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sc_declarationuncon	A	What follows is an opinion from the Supreme Court of the United States. Your task is to indentify whether the Court declared unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance. Note that the Court need not necessarily specify in many words that a law has been declared unconstitutional. Where federal law pre-empts a state statute or a local ordinance, unconstitutionality does not result unless the Court's opinion so states. Nor are administrative regulations the subject of declarations of unconstitutionality unless the declaration also applies to the law on which it is based. Also excluded are federal or state court-made rules. VILLAGE OF WILLOWBROOK et al. v. OLECH No. 98-1288. Argued January 10, 2000 Decided February 23, 2000 James L. DeAno argued the cause and filed briefs for petitioners. Irving L. Gornstein argued the cause for the United States as amicus curiae. With him on the brief were Solicitor General Waxman, Acting Assistant Attorney General Ogden, Deputy Solicitor General Underwood, and Mark B. Stem. John R. Wimmer argued the cause and filed a brief for respondent. Richard Ruda, James I. Crowley, and Donald B. Ayer filed a brief for the International City/County Management Association et al. as amici curiae urging reversal. Harvey Grossman, Steven R. Shapiro, and Richard J. O’Brien filed a brief for the ACLU as amicus curiae urging affirmance. Per Curiam. Respondent Grace Oleeh and her late husband Thaddeus asked petitioner Village of Willowbrook (Village) to connect their property to the municipal water supply. The Village at first conditioned the connection on the Olechs granting the Village a 33-foot easement. The Olechs objected, claiming that the Village only required a 15-foot easement from other property owners seeking access to the water supply. After a 3-month delay, the Village relented and agreed to provide water service with only a 15-foot easement. Oleeh sued the Village, claiming that the Village’s demand of an additional 18-foot easement violated the Equal Protection Clause of the Fourteenth Amendment. Oleeh asserted that the 33-foot easement demand was “irrational and wholly arbitrary”; that the Village’s demand was actually motivated by ill will resulting from the Olechs’ previous filing of an unrelated, successful lawsuit against the Village; and that the Village acted either with the intent to deprive Oleeh of her rights or in reckless disregard of her rights. App. 10, 12. The District Court dismissed the lawsuit pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a cognizable claim under the Equal Protection Clause. Relying on Circuit precedent, the Court of Appeals for the Seventh Circuit reversed, holding that a plaintiff can allege an equal protection violation by asserting that state action was motivated solely by a “ ‘spiteful effort to “get” him for reasons wholly unrelated to any legitimate state objective.’” 160 F. 3d 386, 387 (1998) (quoting Esmail v. Macrane, 53 F. 3d 176, 180 (CA7 1995)). It determined that Olech’s complaint sufficiently alleged such a claim. 160 F. 3d, at 388. We granted certiorari to determine whether the Equal Protection Clause gives rise to a cause of action on behalf of a “class of one” where the plaintiff did not allege membership in a class or group. 527 U. S. 1067 (1999). Our cases have recognized successful equal protection claims brought by a “class of one,” where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. See Sioux City Bridge Co. v. Dakota County, 260 U. S. 441 (1923); Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488 U. S. 336 (1989). In so doing, we have explained that “‘[t]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.’ ” Sioux City Bridge Co., supra, at 445 (quoting Sunday Lake Iron Co. v. Township of Wakefield, 247 U. S. 350, 352 (1918)). That reasoning is applicable to this ease. Oleeh’s complaint can fairly be construed as alleging that the Village intentionally demanded a 33-foot easement as a condition of connecting her property to the municipal water supply where the Village required only a 15-foot easement from other similarly situated property owners. See Conley v. Gibson, 355 U. S. 41, 45-46 (1957). The complaint also alleged that the Village’s demand was “irrational and wholly arbitrary” and that the Village ultimately connected her property after receiving a clearly adequate 15-foot easement. These allegations, quite apart from the Village’s subjective motivation, are sufficient to state a claim for relief under traditional equal protection analysis. We therefore affirm the judgment of the Court of Appeals, but do not reach the alternative theory of “subjective ill will” relied on by that court. It is so ordered. We note that the complaint in this case could be read to allege a class of five. In addition to Grace and Thaddeus Olech, their neighbors Rodney and Phyllis Zimmer and Howard Brinkman requested to be connected to the municipal water supply, and the Village initially demanded the 33-foot easement from all of them. The Zimmers and Mr. Brinkman were also involved in the previous, successful lawsuit against the Village, which allegedly created the ill will motivating the excessive easement demand. Whether the complaint alleges a class of one or of five is of no consequence because we conclude that the number of individuals in a class is immaterial for equal protection analysis. Question: Did the Court declare unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance? A. No declaration of unconstitutionality B. Act of Congress declared unconstitutional C. State or territorial law, regulation, or constitutional provision unconstitutional D. Municipal or other local ordinance unconstitutional Answer:
songer_genresp2	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. In re J. M. WELLS, INC., Bankrupt, Appellant. In re J. M. WELLS, INC., Bankrupt, Harold A. Leventhal, Appellant. Nos. 77-1456, 77-1457. United States Court of Appeals, First Circuit. Argued March 9, 1978. Decided May 15, 1978. Roy Frank Kipp, Boston, Mass., with whom Harold A. Leventhal, Boston, Mass., was on brief, for appellants. Henry C. Ellis, Taunton, Mass., on brief for Philip J. Assiran, appellee. Gerald P. Tishler and Richard Mikels, Boston, Mass., with whom Joseph Braun-stein, Julius Thannhauser, Cohn, Riemer & Pollack, Kenneth Korb, and Brown, Rud-nick, Freed & Gesmer, Boston, Mass., were on brief, for appellees. Before CAMPBELL, Circuit Judge, BOWNES, Circuit Judge, PETTINE, District Judge; Of the District of Rhode Island, sitting by designation. LEVIN H. CAMPBELL, Circuit Judge. This case raises the question whether a bankrupt whose assets were substantially exceeded by his debts may appeal allegedly excessive attorneys’ fees paid out of the estate. We answer the question in the negative, but in view of the nature of the allegations, we have nonetheless examined the fees in question. Creditors filed an involuntary petition in bankruptcy against J. M. Wells, Inc. on February 22, 1973, and the company responded by filing for reorganization under Chapter XI. Ralph Cohn was appointed receiver on August 3,1973, and was permitted to act as his own counsel on August 16, 1973. Although a plan of reorganization was initially approved by the creditors, on March 25, 1974, the bankruptcy judge ruled that the plan was not feasible and adjudicated the company a bankrupt. Cohn was appointed trustee on that date. On April 10, 1974, Cohn was authorized to prosecute a suit already commenced in state court against the Taunton Redevelopment Authority, and on April 18 Cohn was authorized to employ himself as attorney for the trustee. Claims for fees for various legal services were filed in April, 1976, and the bankrupt entered an appeal from orders of the court granting these claims in part. The attorneys filed motions to dismiss, alleging that Wells lacked standing to object to the fees. The district court after a hearing granted these motions, and Wells appealed. At the time the fees were allowed, the assets of the bankrupt equalled $114,095.57, priority claims equalled $25,438.77, and unsecured claims equalled $192,057.65. The allowed attorneys’ fees amounted to $35,-421.28, leaving $53,235.52 for the unsecured creditors after the priority claims had been satisfied in full. On March 14, 1977, the referee ordered payment of all the priority claims and distributed $25,657.45 to the unsecured creditors. Because many of the creditors’ claims, especially those of the family associated with the bankrupt, had been settled or eliminated through litigation, the payments to the unsecured creditors represented a 25% dividend on then outstanding claims of $102,629.51. The balance of the cash on hand will be distributed after resolution of this dispute. Assuming no- future increase in fees, the total dividend of the unsecured creditors should approximate 50%. The lion’s share of the fees went to Cohn and his law firm, Cohn, Reimer & Pollack. Besides commissions of $4,552.31 for services as receiver and trustee, Cohn and his firm received $4,000.00 as counsel to the receiver and $15,000.00 as counsel to the trustees. Kenneth Korb and his firm, Brown, Rudnick, Freed & Gesmer, received a fee of $6,000.00 pursuant to 11 U.S.C. § 104(a)(3) as counsel for intervening creditors who opposed the attempt to reorganize the company under Chapter XI. Christopher Byron, the state court receiver, was awarded a fee of $2,500.00. Counsel for Wells, the bankrupt, received $1,500. The only party to this proceeding that challenged the fee awards was Wells, the bankrupt. Wells does not argue, as on this record it could not, that the disallowance of the fees charged the estate could result in assets exceeding the claims of creditors. Instead Wells acknowledges that it has no financial interest in the outcome of this appeal but argues this court has inherent jurisdiction to redress this alleged despoliation of the estate by officers of the court. Wells cites York Intern. Building, Inc. v. Chaney, 527 F.2d 1061, 1077 (9th Cir. 1975), as authority for this court’s jurisdiction. The right to appeal from orders of a bankruptcy court is limited by 11 U.S.C. § 67(c) to “persons aggrieved” by such orders, and traditionally “injury in fact” has been required of such persons. E. g., In re Harwald Co., 497 F.2d 443 (7th Cir. 1974). In particular a bankrupt that has no hope of obtaining any return from its estate consistently has been held to lack standing to contest orders affecting the size of the estate. Skelton v. Clements, 408 F.2d 353 (9th Cir.), cert. denied, 394 U.S. 933, 89 S.Ct. 1202, 22 L.Ed.2d 462 (1969); Hartman Corp. of America v. United States, 304 F.2d 429 (8th Cir. 1962); Castaner v. Mora, 216 F.2d 189 (1st Cir. 1954). The exception to the rule involved in York Intern. Building, supra, where the bankrupt would create an excess of assets over debts if it were to prevail on its appeal, does not apply here. The bankrupt’s interest in the right administration of estates can be protected by the creditors themselves, without permitting the needless multiplication of lawsuits that would arise from permitting insolvent bankrupts standing to sue. Wells argues that even if this court and the district court below lack jurisdiction to entertain this appeal, “equity” demands that the excessive fee awards be set aside. But federal courts even in proceedings of bankruptcy remain courts of limited jurisdiction, and “the equitable power of the bankruptcy court may only be exercised within the limits of the jurisdiction established by the Bankruptcy Act.” In re Harwald Co., supra at 445. Consequently this court lacks jurisdiction over this appeal, as did the district court below. Although normally the absence of jurisdiction would end the matter, the fact that this dispute involves allegations of misconduct on the part of attorneys acting as officers of a federal court leads us to inquire further. At the outset we note the principles that apply to such awards: a trustee or receiver cannot recover additional legal fees for services that have not been authorized by the court; a trustee or receiver cannot seek additional compensation for the performance of his statutory fiduciary duties; and attorneys’ fees generally are especially subject to the supervisory power of the court, which will not permit its officers to obtain excessive fees that unreasonably diminish an estate. We have examined the itemized accounts submitted by the attorneys in this case and the awards made. For the most part the fees seem within bounds. The record in no way supports charges of impropriety as to the fees awarded Brown, Rudnick, Freed & Gesmer and Christopher Byron, which were substantially reduced by the bankruptcy judge from the amounts initially requested. Cohn, Reimer & Pollack in their capacity as counsel to the receiver sought compensation for 35.8 hours rendered before their appointment as counsel out of a total of 280.4 hours. The pre-appointment charges are in apparent disregard of Fed.R.Bankruptcy P. 219(c)(2), but since the bankruptcy court awarded less than a third of the $12,500.00 requested, we cannot say the actual award was in conflict with the Rule. We are, however, disturbed that hours in apparent excess of the Rule should have been claimed. The one allowed item which we cannot adequately square with the record is the $15,000.00 received by Cohn, Reimer & Pollack as counsel to the trustee. Of the 434 hours billed, 65.4 were for services rendered before Cohn was appointed as counsel. Inasmuch as Cohn, Reimer & Pollack received all of the fee claimed in this capacity, it would seem that the bankruptcy court as well as Cohn may have disregarded Rule 219(c)(2). On the other hand, some of these hours appear to have been connected with the Taunton Redevelopment Authority litigation, which the bankruptcy court did authorize, and the balance conceivably may have been regarded as a continuation of Cohn, Reimer & Pollack’s services as counsel to the receiver, cf. In re Hite, 2 F.Supp. 536 (W.D.Pa.1932). But the bankruptcy court made no finding to this effect and Cohn and his firm have said nothing to explain the facial impropriety of this portion of the fee in spite of the opportunity we afforded them. Furthermore, although we do not accept Wells’ allegations that the majority of the services claimed for the counsel’s fee were actually non-legal in nature and therefore embraced by the statutorily set trustee’s fee, see Fed.R. Bankruptcy P. 219(c)(3), a few of the itemized services have more of the flavor of a trustee’s duties than a counsel’s. If we had jurisdiction, we would remand for reconsideration of the trustee’s counsel’s fee, recognizing at the same time that there may be some explanation. As it is, we can merely note the matter, leaving it to the bankruptcy judge sua sponte to take such corrective or counterbalancing action, if any, as may be within his powers at this date should he determine that the fee includes hourly charges forbidden by the Rule. We add that on the basis of the necessarily limited information before us, the bankruptcy seems to have resulted in a fair recovery for the unsecured creditors on whose behalf the trustee acts, and that the fees, overall, do not seem grossly disproportionate. Appeal dismissed. . Harold A. Leventhal, attorney for Wells, has joined in the appeal. Wells makes no challenge to Leventhal’s fee. . The Rule states: “The compensation allowed by this title to a trustee, receiver, or a marshal shall be in full compensation for the services performed by him as required by this title ¿nd by these rules, but shall not be deemed to cover expenses necessarily incurred in the performance of his duties and allowed upon the settlement of his accounts. Additional compensation may be allowed for legal or other serv- ices not required of him by this title or by these rules, but only if such services were authorized by order of the court before they were rendered.” See also Beecher v. Leavenworth State Bk., 184 F.2d 498 (9th Cir. 1950) . We specifically asked counsel to respond to Wells’ charges of impropriety including the charge of violation of Rule 219(c)(2). Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_usc1	18	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. UNITED STATES of America, Appellee, v. Norman Bernard THIRION a/k/a Norman Tyrone a/k/a Dr. Thirion, Appellant. UNITED STATES of America, Appellee, v. Ronald A. SABLOSKY, Appellant. UNITED STATES of America, Appellee, v. Jack CASPERSON, Appellant. Nos. 86-5026 to 86-5028. United States Court of Appeals, Eighth Circuit. Submitted Nov. 10, 1986. Decided March 5, 1987. Roger Wayne Hunt, Sioux Falls, S.D., for Thirion. Patrick J. Kane, Sioux Falls, S.D., for Sablosky. Richard Braithwaite, Sioux Falls, S.D., for Casperson. David L. Zuercher, Asst. U.S. Atty., Pierre, S.D., for appellee. Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and HUNTER, Senior District Judge. The Honorable Elmo B. Hunter, United States Senior District Judge, Eastern District of Missouri, sitting by designation. HENLEY, Senior Circuit Judge. Defendants Norman Bernard Thirion, Ronald A. Sablosky and Jack Casperson appeal from their convictions for their parts in an advance-fee loan scheme. A jury found Thirion guilty on four counts of mail fraud, 18 U.S.C. § 1341, nine counts of inducing interstate travel to defraud, 18 U.S.C. § 2314, and three counts of wire fraud, 18 U.S.C. § 1343. The district court sentenced Thirion to seven concurrent five-year terms of imprisonment followed by a five-year period of probation on the remaining counts. Thirion was also ordered to make restitution of $330,000.00. Casperson was convicted on the same counts as Thirion, with an additional conspiracy conviction under 18 U.S.C. § 371. Casperson was sentenced to eight concurrent thirteen-month terms of imprisonment followed by a five-year period of probation on the remaining counts. He was also ordered to make restitution of $10,000.00. Sablosky was convicted of one count of conspiracy and one count of mail fraud. He was acquitted by the jury of the remaining six counts against him (three for mail fraud and three for wire fraud). Sablosky was sentenced to one year of imprisonment on the conspiracy conviction followed by a five-year term of probation on his mail fraud conviction. The defendants raise numerous, sometimes overlapping, issues on appeal. This court previously overturned the convictions of defendants Casperson and Sablosky and this is the second time they have been tried for these offenses. United States v. Casperson, 773 F.2d 216 (8th Cir.1985). Thirion was not a defendant in the first trial as he had secreted himself outside the United States. Only defendant Sablosky challenges the sufficiency of the evidence to sustain his conviction. Accordingly, we will limit our factual discussion to providing a background for the issues preserved in the appeals now before us. I. In January, 1982 Casperson first met Thirion in Newport Beach, California. At that time Casperson was seeking financial backing for a business venture he was interested in pursuing. Thirion indicated that he could obtain a low interest block loan of $250 million from overseas sources. In order to secure the loan, however, Thirion required an advance fee of $160,000.00 to cover costs and expenses. Casperson, however, did not then possess financial resources from which he could readily pay the advance fee. He therefore set out to attract other investors interested in low interest loans in order to raise the advance fee. Investors were to pay an advance fee of $20,000.00 for a $1 million loan. The loan was to be obtained in six to eight weeks at which time the investor would receive a refund of his advance fee together with the loan. Casperson further guaranteed the return of the investor’s advance fee by a commission he was to receive from another venture involving the sale of Mexican tuna fish. By April, Casperson had collected over $400,000.00 in advance fees from investors. This money was forwarded to Thirion's company, International Banking Services (IBS). Although the loans were originally to be forthcoming by the end of April, that date passed with no results. The investors were placated by numerous plausible excuses given for the delay. Meanwhile, defendant Sablosky (corporate counsel for IBS) was in Hawaii on behalf of another Thirion corporation, United States Resource Conversion Systems (USRCS). During the month of May Sablosky became aware of the advance-fee loan transactions. Sablosky determined that the tuna fish commissions were of speculative value; in any event, the advance fees paid by the investors exceeded the maximum possible value of the commission. On May 25,1982 Sablosky had Casperson execute promissory notes in favor of each investor for the amount of the advance fee paid by each investor. The promissory notes were payable on September 15, 1982. Thirion, on behalf of IBS, signed a guaranty for each of Casperson’s notes. In turn, Casperson assigned his tuna fish commissions to IBS. Armed with these documents, Sablosky sent letters dated June 10, 1982 (the letters were actually mailed sometime later) to each investor. Sablosky enclosed the documents with each letter and further wrote: I have received from I.B.S., to be held in trust in my attorney account, securities which I believe to be good and of significant value to cover all indebtedness for which I.B.S. has seen fit to guarantee. Additionally, I have received from I.B.S. an assignment of Mr. Casperson’s commissions in the Mexican Tuna sales. This assignment was in and of itself good enough consideration to induce I.B.S. to serve as guarantor. The securities referred to were certificates of stock in USRCS, stock with no market value in a corporation with only speculative worth. The attorney account in which the securities were held in trust was a locked portion of Sablosky’s desk. On September 14, the day before Casperson’s note came due, Sablosky again wrote the investors to explain why the loans continued to be delayed. Investors were further advised that they could cancel their loans and receive a refund. Investors who responded in October did receive the refund; however, those responding later did not. IBS refunded less than $100,000.00. Eventually, a federal grand jury began investigating the advance-fee loan arrangement. In December, 1983 the grand jury indicted nine persons including the three appellants. While Thirion did appear before the grand jury, he had left the country before the indictment was handed down. Following the first jury trial in 1984, Sablosky and Casperson were convicted on various counts of the indictment. They appealed their convictions and during the pendency of that appeal Thirion was extradited from Monaco. Sablosky and Casperson were granted a new trial as a result of their appeals and their second trial was joined with Thirion’s. Upon retrial, Casperson was again convicted on all counts against him and Sablosky was convicted on only two of the remaining counts against him (Sablosky had been acquitted on several counts in the first trial). Thirion was also convicted on every count against him presented to the jury. These appeals followed. II. During the pendency of Casperson and Sablosky’s first appeal, Thirion was apprehended by authorities in Monaco. The United States had entered into an extradition treaty with Monaco, Treaty Respecting Extradition, Feb. 15, 1989, United States-Monaco, 54 Stat. 1780, T.S. No. 959 (hereinafter Treaty), and requested that Thirion be returned to the United States to stand trial. Monaco agreed to extradite Thirion on all the charges against him in the indictment except for the conspiracy count. Prior to trial Thirion moved that the conspiracy count be dismissed as he could not be tried for conspiracy under the terms of his extradition. Thirion’s motion was denied, but the district court instructed the jury not to return a verdict on that count of the indictment against Thirion. At the close of trial Thirion objected to the district court’s instructing the jury on coconspirator liability under Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S.Ct. 1180, 1183-84, 90 L.Ed. 1489 (1946). The district court overruled the objection and so instructed the jury. Although these two conspiracy issues appear distinct, they are somewhat interwoven. Under the doctrine of speciality a defendant may be tried only for the offense for which he was delivered up by the asylum country. United States v. Rauscher, 119 U.S. 407, 422-23, 7 S.Ct. 234, 242, 30 L.Ed. 425 (1886); United States v. Jetter, 722 F.2d 371, 373 (8th Cir.1983). The doctrine is based on the principle of international comity. Jetter, 722 F.2d at 373. While the asylum country may consent to extradite the defendant for offenses other than those expressly enumerated in the treaty, United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir.1986), it did not do so here. See n. 4, supra. Thirion, therefore, may raise whatever objections to his prosecution that Monaco might have. Rauscher, 119 U.S. at 419, 7 S.Ct. at 240. The treaty between the United States and Monaco contains the following provision: No person surrendered... shall be prosecuted, judged or punished for any crime or offense committed prior to his extradition, other than the offense for which his surrender was accorded, and no person shall be arrested or detained by civil process for a cause prior to the extradition, unless, in either case, he has been at liberty for one month to leave the country, after having been tried, or, in case of conviction, after having either served his sentence or obtained pardon. Treaty, supra, 54 Stat. at 1786. The district court correctly determined that Thirion could not be convicted on the conspiracy count. The district court, however, refused to dismiss that count of the indictment. This decision was not necessarily in conflict with the doctrine of speciality since, although Thirion could not then be convicted on the conspiracy count, the Treaty permits subsequent conviction should Thirion remain in the country after having been at liberty for one month to leave. Id. The more difficult question remains. While technically Thirion could not be convicted of conspiracy, the jury was instructed that he could be found guilty of the substantive counts for which he was indicted under a theory of coconspirator vicarious liability. We must consider whether this instruction was properly given when the substantive counts of the indictment charge aiding and abetting and not coconspirator vicarious liability. It has long been the rule in this circuit that a jury may be instructed on the theory of aiding and abetting even though not charged in the indictment. United States v. McKnight, 799 F.2d 443, 445 (8th Cir.1986). “The reason for this rule is that [the aiding and abetting statute, 18 U.S.C. § 2] does not create a separate offense, it simply makes those who aid and abet in a crime punishable as principals.” Id. This reasoning is equally applicable to coconspirator liability. While Congress has recognized the conspiracy itself to be a separate crime, § 371, coconspirator liability does not have its genesis in this statute, but rather in the common law. See Pinkerton, 328 U.S. at 647, 66 S.Ct. at 1184 (“The rule which holds responsible one who counsels, procures, or commands another to commit a crime is founded on the same principle.”). Therefore, the individual substantive counts need not make reference to coconspirator liability in order for the jury to be so instructed. See United States v. Carroll, 510 F.2d 507, 509 (2d Cir.1975), cert. denied, 426 U.S. 923, 96 S.Ct. 2633, 49 L.Ed.2d 378 (1976). Having concluded that the indictment is sufficient, we now turn to the question whether Thirion’s conviction on the substantive offenses as a Pinkerton coconspirator violates the doctrine of speciality. Our determination of whether Thirion’s coconspirator convictions offend the doctrine of speciality requires further inquiry into the nature of coconspirator liability. The evidentiary effect of joining in a criminal conspiracy received early recognition. “Although conspiracy be not charged, if it be shown by the evidence to exist, the act of one or more defendants in furtherance of the common plan is in law the act of all.” Davis v. United States, 12 F.2d 253, 257 (5th Cir.), cert. denied, 271 U.S. 688, 46 S.Ct. 639, 70 L.Ed. 1153 (1926). This maxim later made its way into the Supreme Court’s Pinkerton decision. The Fifth Circuit, in affirming Pinkerton’s conviction, said that in determining the defendant’s guilt in the substantive offenses the jury may consider the existence of a conspiracy, “and this would be true if there had been no conspiracy count in the indictment.” Pinkerton v. United States, 151 F.2d 499, 500 (5th Cir.1945) (citing Davis), aff'd, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); see also Nye & Nissen v. United States, 168 F.2d 846, 853 (9th Cir. 1948) (“[T]he liability of a co-conspirator for crimes in furtherance of the conspiracy in no way depends upon the scope or existence of a conspiracy count.”), aff'd, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919 (1949). Ultimately, the Supreme Court concluded that coconspirator liability rested on much the same principle as aider and abettor liability. The criminal intent to do the act is established by the formation of the conspiracy. Each conspirator instigated the commission of the crime. The unlawful agreement contemplated precisely what was done. It was formed for the purpose. The act done was in execution of the enterprise. The rule which holds responsible one who counsels, procures, or commands another to commit a crime is founded on the same principle. That principle is recognized in the law of conspiracy when the overt act of one partner in crime is attributable to all. Pinkerton, 328 U.S. at 647, 66 S.Ct. at 1184. The fundamental definition of a criminal offense requires the combination of both mens rea (criminal intent) and an actus reus (wrongful act). United States v. Apfelbaum, 445 U.S. 115, 131, 100 S.Ct. 948, 957, 63 L.Ed.2d 250 (1980). In the Pinkerton analysis the actus reus of the substantive offense may be supplied by a fellow conspirator and the defendant's knowledge or participation in that act is not required. The mens rea necessary to transform the act into a criminal offense is evidenced by the defendant’s participation in the conspiracy. Therefore, proof of a conspiracy may serve two ends: first, in itself it is a criminal offense; second, it is evidence of the criminal intent to commit other substantive offenses. Even though Congress has created a separate crime of conspiracy, it is settled that joint participators in the commission of the substantive offenses may be denominated as conspirators. The conspiracy may be shown as an evidentiary fact to prove participation in the substantive crime. United States v. Hoffa, 349 F.2d 20, 41 (6th Cir.1965) (citation omitted), aff'd, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); see also United States v. Papia, 409 F.Supp. 1307, 1316 (E.D.Wisc.1976), aff'd, 560 F.2d 827 (7th Cir.1977). Consequently, the issue is whether the doctrine of speciality prohibits the government from establishing Thirion’s membership in the conspiracy as an evidentiary fact to prove guilt in the other substantive crimes. The courts which have addressed this issue concluded that the doctrine of speciality does not alter existing rules of evidence or procedure. It is clear... that even as the speciality doctrine has been defined and broadened in this century, it has never been construed to permit foreign intrusion into the evidentiary or procedural rules of the requisitioning state, as distinguished from limiting the jurisdiction of domestic courts to “try or punish the fugitive for any crimes committed before the extradition, except the crimes for which he was extradited.” United States v. Flores, 538 F.2d 939, 944 (2d Cir.1976) (quoting Friedmann, Lissitzyn & Pugh, International Law 493 (1969)); see also United States v. Kember, 685 F.2d 451, 458 (D.C.Cir.), cert. denied, 459 U.S. 832, 103 S.Ct. 73, 74 L.Ed.2d 72 (1982). We agree. The doctrine of speciality “reflects a fundamental concern of governments that persons who are surrendered should not be subject to indiscriminate prosecution by the receiving government....” Fiocconi v. Attorney General, 462 F.2d 475, 481 (2d Cir.), cert. denied, 409 U.S. 1059, 93 S.Ct. 552, 34 L.Ed.2d 511 (1972). Neither Thirion nor Monaco should be heard to complain because Thirion was tried only for those crimes for which he was extradited. III. Thirion claims that both his constitutional and statutory rights to a speedy trial were violated. Thirion was apprehended in Monaco on March 29,1985. He was arrested and confined at the request of the United States. Thirion contends that he communicated a desire to waive extradition: once to the Procurator of Monaco and twice to United States diplomatic staff. Nonetheless, Thirion was formally extradited, and on June 26, 1985 Monaco released him into the custody of a United States Marshal for transportation to South Dakota. Thirion first appeared before a United States judicial officer on June 28, 1985 when he appeared before a United States Magistrate for arraignment. The first day of trial commenced on October 23, 1985. Thirion’s statutory right to a speedy trial did not accrue until he appeared before a judicial officer of the District of South Dakota. 18 U.S.C. § 3161(c)(1). Accordingly, the seventy days, id., within which Thirion was to be tried did not begin to run until June 28 when he was arraigned. Thirion’s trial commenced on October 23, 1985, one hundred sixteen days after his arraignment. All but thirty-four of those days are not included, however, due to pretrial motions made by Thirion. §§ 3161(h)(1)(F) and (J). Therefore, Thirion was brought to trial well within the statutory speedy trial period. Thirion also asserts that his right to a speedy trial as guaranteed by the sixth amendment was violated. Sixth amendment challenges receive separate review distinct from the Speedy Trial Act, United States v. Gonzalez, 671 F.2d 441, 442-43 (11th Cir.), cert. denied, 456 U.S. 994, 102 S.Ct. 994, 73 L.Ed.2d 1271 (1982), although it is an unusual case in which the sixth amendment right has been violated when the act’s time limit has been met. United States v. Nance, 666 F.2d 353, 360 (9th Cir.), cert. denied, 456 U.S. 918, 102 S.Ct. 1776, 72 L.Ed.2d 179 (1982). In determining whether a defendant’s sixth amendment speedy trial right has been violated, we consider four factors: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972) (footnote omitted). Two hundred eight days elapsed from the time of Thirion’s arrest in Monaco until the first day of trial. Thirion attempts to attribute the ninety-two-day delay between his arrest in Monaco and his arraignment in the United States to the government. Thirion contends that he attempted to waive extradition and return to the United States. His contention is supported only by his own testimony and is inconsistent with his flight to Europe, decision to remain abroad when he learned of the indictment against him and his strong reliance on the terms of the extradition. Absent evidence of any formal waiver of extradition, we are unwilling to attribute to the government any delay caused by formal extradition proceedings initiated in compliance with the treaty. Upon Thirion’s return to the United States, the case proceeded to trial in an expeditious and timely manner as noted in the previous discussion concerning the Speedy Trial Act. Thirion states in his brief that he “consistently and continually requested a speedy trial.” The only assertion of that right which we have encountered in the record is his September 24, 1985 motion to dismiss for lack of speedy trial. Coincidentally, this motion came contemporaneously with this court’s vacating and remanding for new trial the cases of defendants Sablosky and Casperson. Thirion’s assertion of his speedy trial right when the prospect of joinder with Sablosky and Casperson became imminent is uncompelling, particularly when contrasted with his previous willingness to delay in order to obtain the deposition testimony of foreign witnesses. Thirion complains that the lack of speedy trial prejudiced his defense because of his continuous incarceration. Thirion fails, however, to explain how a speedy trial would have ameliorated the prejudice. Thirion’s incarceration was a result of the district court’s finding that he was a flight risk. The extent to which Thirion’s confinement impinged on his ability to prepare his defense was lessened by the district court’s allowing him furloughs from jail to meet with his attorney. Weighing the four Barker factors, we conclude that Thirion’s sixth amendment right to a speedy trial was not violated. IV. At the sentencing of defendants Casperson and Sablosky in the first trial, the district judge made the following comments: I certainly don’t want to prejudice Mr. Thirion’s case, if he is apprehended and returned here and he may have some defense that we are not aware of and which neither the government nor the defendants saw fit to present. But, on the basis of the testimony that I have heard and on the basis of the evidence presented by the various victims here, I would agree with both the victims and the defendants that the conduct of Mr. Thirion was considerably greater than the criminal conduct of any of the defendants here on trial. He certainly got most of the money and got a disproportionate amount of the money that was obtained from the victims. Now, having said that Mr. Thirion on the basis of the evidence up to this point is the most culpable is not to say that the defendants present here have no culpability. On the basis of this statement Thirion moved the judge to recuse himself from presiding at the second trial. 28 U.S.C. §§ 144 and 455. The district court denied Thirion’s motion. In reviewing the district court’s decision, we will not reverse absent an abuse of discretion. In Re Federal Skywalk Cases, 680 F.2d 1175, 1183 (8th Cir.), cert. denied, 459 U.S. 988, 103 S.Ct. 342, 74 L.Ed.2d 383 (1982); see also United States v. Faul, 748 F.2d 1204, 1210 (8th Cir.1984) (challenges under §§ 144 and 455 may be considered together), cert. denied, 472 U.S. 1027, 105 S.Ct. 3500, 3501, 87 L.Ed.2d 632 (1985). In order for the allegations of bias or prejudice “to be disqualifying [they] must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966) (Harlan, J., dissenting); Faul, 748 F.2d at 1211. The rule of law, without belaboring the point, is that what a judge learns in his judicial capacity — whether by way of guilty pleas of codefendants or alleged coconspirators, or by way of pretrial proceedings, or both — is a proper basis for judicial observations, and the use of such information is not the kind of matter that results in disqualification. Rules against “bias” and “partiality” can never mean to require the total absence of preconception, predispositions and other mental habits____ United States v. Bernstein, 533 F.2d 775, 785 (2d Cir.), cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976), cited with approval in Hale v. Firestone Tire & Rubber Co., 756 F.2d 1322, 1329 (8th Cir.1985). Judge Jones’ observation came entirely from his participation at the previous trial. To accept Thirion’s argument would mean that no judge could preside at a second trial upon remand from an appellate court. The district court did not abuse its discretion in denying Thirion’s motion for recusal. V. Upon remand from their first appeal the trials of Casperson and Sablosky were joined with Thirion’s. Defendants objected to joinder and moved for severance. Casperson and Sablosky argue on appeal that the district court erred in permitting joinder. “Generally persons charged with conspiracy are to be tried together.” United States v. Moeckly, 769 F.2d 453, 465 (8th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1196, 89 L.Ed.2d 811, — U.S. —, 106 S.Ct. 1947, 90 L.Ed.2d 357 (1986). The district court liberally granted requests from defendants for limiting instructions to prevent prejudice. The effectiveness of these instructions was demonstrated by Sablosky’s conviction on only two of the ten counts against him. Defendants have failed to show clear prejudice and an abuse of discretion necessary for reversal. See United States v. Miller, 725 F.2d 462, 467 (8th Cir.1984). VI. The final issue raised by Casperson in his appeal is that the district court erred in refusing to give a limiting instruction regarding the testimony of Andy Nicholaw. The rules of evidence provide for such an instruction. When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. Fed.R.Evid. 105. A request for a limiting instruction should be specific and timely. 21 C. Wright and K. Graham, Jr., Federal Practice and Procedure § 5065 p. 327 (1977); see also Fed.R.Evid. 103. Casperson requested an instruction limiting the jury’s “consideration of all of [Nicholaw’s] testimony except his testimony concerning contacts with Jack Casperson and that they may not be considered against Mr. Casperson, with the exception of those that directly deal with him.” This request came after the government’s direct examination, the cross-examinations by Thirion and Sablosky, and immediately before Casperson’s own cross-examination. On appeal Casperson has first identified those portions of Nicholaw’s testimony to be limited. Casperson’s request may have been specific enough had it immediately followed the offending testimony. Likewise, the request would have been timely had it been made with greater specificity identifying the subject of the testimony to be limited. Because of its deficiency, however, the request was neither timely nor specific and the district court did not abuse its discretion by not giving the requested limiting instruction. VII. Sablosky raises three separate incidents of prosecutorial misconduct. The first need not detain us long. Sablosky contends that the government suppressed exculpatory evidence by not revealing that one of its witnesses held the opinion that Sablosky was innocent. The government denies any knowledge of the opinion held by the witness. Standing alone, such evidence is not truly exculpatory evidence because it is inadmissible as it invades the province of the jury. United States v. Ariza-Ibarra, 605 F.2d 1216, 1226 & n. 13 (1st Cir.1979), cert. denied, 454 U.S. 895, 102 S.Ct. 392, 70 L.Ed.2d 209 (1981); Wesson v. United States, 164 F.2d 50, 55 (8th Cir.1947); see also Fed.R.Evid. 701. The second incident involved the government’s cross-examination of Sablosky in which it elicited Sablosky’s legal representation of a reputed organized crime member. The relevant portion of the record is set forth in the margin. “The district court has broad discretion in determining whether an improper question has so tainted the trial as to require mistrial.” United States v. Clinton, 711 F.2d 115, 117 (8th Cir.1983). The questions came early in a lengthy trial and the subject did not subsequently resurface. Sablosky’s answer linked a client who had defrauded him to organized crime, not Sablosky himself. Accordingly, while we reject the belated reasoning given by the government to establish the relevancy of the inquiry (particularly when it was not argued to the district court), we conclude that the district court did not abuse its discretion in denying Sablosky’s motion for a mistrial. We find the final incident of alleged prosecutorial misconduct more troubling. On the morning that Sablosky took the stand to testify in his defense, the government delivered to him a “target” letter advising him that he was under investigation by the grand jury for allegedly committing perjury when testifying at his first trial. The letter was purportedly delivered to allow Sablosky an opportunity to testify before the grand jury if he so desired. A second letter was delivered the next day which apparently corrected a typographical mistake. The following day Sablosky moved for a mistrial. The government argues that the letter was delivered in order to prevent the appearance of prosecutorial vindictiveness should Sablosky be acquitted at his second trial. We agree with the district court that the timing of the letters is highly suspect. However, in situations involving prosecutorial misconduct the touchstone “is the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78 (1982). Despite the letters, Sablosky testified fully in his defense and did not allege that his testimony would have differed. The district court expressed its intent to grant an immediate mistrial should Sablosky’s scrutiny by the grand jury become public. Therefore, we find that the district court did not err in refusing to grant a mistrial. Nonetheless, we do not condone the actions of the prosecutor and we caution him to be more circumspect in the future. VIII. Sablosky finally challenges the sufficiency of the evidence to sustain his conviction. On such challenges our standard of review is oft-stated. An appellate court reviewing the sufficiency of the evidence to support a conviction must view the evidence in the light most favorable to the verdict, accepting all reasonable inferences that logically arise from this evidence. The evidence need not “exclude every other hypothesis except that of guilt [so long as it is] sufficient to convince the jury beyond a reasonable doubt that the defendant is guilty.” United States v. Wilson, 787 F.2d 375, 381 (8th Cir.1986) (citations omitted) (quoting United States v. Shahane, 517 F.2d 1173, 1177 (8th Cir.), cert. denied, 423 U.S. 893, 96 S.Ct. 191, 46 L.Ed.2d 124 (1975)). Sablosky’s mail fraud conviction arises out of the letter he sent to investors advising them that he held valuable stocks in his attorney trust account to secure their fee payments. The jury could reasonably find this letter fraudulent for several reasons. First, Sablosky wrote that the securities were held in his attorney’s trust account. In fact, they were segregated in a locked portion of his desk. Such an arrangement is inconsistent with the language of the letter. A reasonable juror could conclude that the intent of the letter was to convey a greater sense of security than the unembellished facts would warrant. Second, Sablosky stated that the assignment of the tuna commissions from Casperson would have been of itself adequate consideration for IBS to guarantee the notes. Sablosky, however, calculated the tuna commissions to be worth $180,000.00 while the advance fees paid by investors totalled approximately $498,000.00. It is anomalous to suggest that the tuna commissions offered adequate security. Third, Sablosky contends that the unrebutted testimony of John Flandreau established that he could reasonably believe that the securities were of adequate value to secure the investors’ payments. Flandreau’s valuation could have been discounted by the jury for several reasons. Flandreau did not possess a degree in accounting. Flandreau’s valuation of the corporation was based on several elements: Victor Brown patents, acquisition of another company (Fourth Sink) and goodwill. Flandreau’s valuation of the patents was based on the opinion of an engineer who had not even examined the patents (another engineer to whom Flandreau showed the patents placed no value on them). Further, another witness (Nicholaw) testified that the Brown technology had limited application to the use to which Thirion intended to put it. The value of the Fourth Sink acquisition was limited as only a small portion of its purchase price had actually been paid. As to the goodwill, the jury could reasonably discount any value attached to it as the corporation had not advanced beyond the development stage. Finally, the jury could reasonably infer from the tenor of the letter that the investors were led to believe that the securities had an immediate market value. Sablosky admitted that the securities had no immediate market value. Accordingly, we hold that sufficient evidence existed in the record for the jury to conclude that Sablosky committed mail fraud when he sent the letter. Likewise, the evidence is sufficient to sustain his conspiracy conviction. IX. Thirion’s final claim of error is that the district court imposed a disproportionate and indefinite sentence. “ ‘A sentence is generally not subject to review unless it exceeds statutory limits, violates constitutional or procedural requirements, or reflects that the district court failed to exercise its discretion or manifestly or grossly abused its discretion.’ ” United States v. Goeller, 807 F.2d 749, 751 (8th Cir.1986) (quoting United States v. Rosandich, 729 F.2d 1512, 1512 (8th Cir.1984) (per curiam)). Thirion’s five-year prison sentence is well within the statutory limit. Further, the greater length of his sentence as compared to those of the other defendants is not an abuse of discretion. Thirion’s argument that the district court erred in ordering restitution is without merit. Thirion contends he did not receive the required statutory notice that the district court was considering imposing restitution. 18 U.S.C. § 3553(d). The effective date of the statute, however, is November 1, 1986. See 18 U.S.C.A. § 3551 note (West Supp.1986). Accordingly, the notice provision does not apply to Thirion’s prior sentencing. Thirion’s argument regarding the constitutionality of the Victims Protection and Restitution Act of 1982 rests on the infirm ground of the subsequently reversed district court opinion in United States v. Welden, 568 F.Supp. 516 (N.D.Ala.1983), reversed in relevant part and remanded sub nom., United States v. Satterfield, 743 F.2d 827 (11th Cir.1984), cert denied, 471 U.S. 1117, 105 Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
sc_lcdisposition	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. PALMER et al. v. THOMPSON, MAYOR OF THE CITY OF JACKSON, et al. No. 107. Argued December 14, 1970 Decided June 14, 1971 Black, J., delivered the opinion of the Court, in which Burgee, C. J., and HarlaN, Stewart, and Blackmun, JJ., joined. Burger, C. J., post, p. 227, and Blackmun, J., post, p. 228, filed concurring opinions. Douglas, J., filed a dissenting opinion, post, p. 231. White, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 240. Marshall, J., filed a dissenting opinion, in which Brennan and White, JJ., joined, post, p. 271. Paul A. Rosen and William M. Kunstler argued the cause for petitioners. With them on the briefs were Ernest Goodman and Arthur Kinoy. ■ William F. Goodman, Jr., argued the cause for respondents. On the brief were John E. Stone, Thomas H. Watkins, and Elizabeth W. Grayson. Briefs of amici curiae urging reversal were filed by Solicitor General Griswold, Assistant Attorney General Leonard, and Deputy Solicitor General Wallace for the United States, and by Armand Derfner for James Moore et al. Mr. Justice Black delivered the opinion of the Court In 1962 the city of Jackson, Mississippi, was maintaining five public parks along with swimming pools, golf links, and other facilities for use by the public on a racially segregated basis. Four of the swimming pools were used by whites only and one by Negroes only. Plaintiffs brought an action in the United States District Court seeking a declaratory judgment that this state-enforced segregation of the races was a violation of the Thirteenth and Fourteenth Amendments, and asking an injunction to forbid such practices. After hearings the District Court entered a judgment declaring that enforced segregation denied equal protection of the laws but it declined to issue an injunction. The Court of Appeals affirmed, and we denied certiorari. The city proceeded . to desegregate its public parks, auditoriums, golf courses, and the city zoo. However, the city council decided not to try to operate the public swimming pools on a desegregated basis. ■ Acting in its legislative capacity, the council surrendered its lease on one pool and closed four which the city owned. A number of Negro citizens of Jackson then filed this suit to force the city to reopen the pools and operate them on a desegregated basis. The District Court found that the closing was justified to preserve peace and order and because the pools could not be operated economically on an integrated basis. It held the city’s action did not deny black citizens equal protection of the laws. The Court of Appeals sitting en banc affirmed, six out of 13 judges dissenting. That court rejected the contention that since the pools had been closed either in whole or in part to avoid desegregation the city council’s action was a denial of equal protection of the laws. We granted certiorari to decide that question. We affirm.. I Petitioners rely chiefly on the first section of the Fourteenth Amendment which forbids any State to “deny to any person within its jurisdiction the equal protection of the laws.” There can be no doubt that a major purpose of this amendment was to safeguard Negroes against discriminatory state laws — state Jaws that fail to give Negroes protection equal to that afforded white people. History shows that' the achievement of equality for Negroes was the urgent purpose not only for passage of the Fourteenth Amendment but .for the Thirteenth and Fifteenth Amendments as well. See, e. g., Slaughter-House Cases, 16 Wall. 36, 71-72 (1873). Thus the Equal Protection Clause was principally designed- to protect Negroes against discriminatory action by the States. Here there has unquestionably been “state action” because the official local government legislature, the city council, has closed the public swimming pools of Jackson. The question, however, is whether this closing of the pools is state action that denies “the equal protection of the laws” to Negroes. It should be noted first that neither the Fourteenth Amendment nor any Act of Congress purports to impose an affirmative duty on a State to begin to opejate or to continue to operate swimming pools. Furthermore, this is -not a- case where whites are permitted to use public' facilities while blacks are denied access. It is not a case where a city is maintaining different sets of facilities for blacks and-whites and forcing the races to remain separate in recreational or educational activities. See, e. g., Watson v. City of Memphis, 373 U. S. 526 (1963); Brown v. Board of Education, 347 U. S. 483 (1954). Unless, therefore, as petitioners urge, certain past cases require us to hold that closing the pools to all denied equal protection to Negroes, we must agree with the courts below and affirm.- II - Although petitioners cite a number of our previous cases, the only two which even plausibly support their, argument are Griffin v. County School Board of Prince Edward County, 377 U. S. 218 (1964), and Reitman v. Mulkey, 387 U. S. 369 (1967). For the reasons that " follow, however, neither case leads us to reverse the judgment here. A. In Griffin the public schools of Prince .Edward County, Virginia, were closed under, authority of state and county law, and so-called “private schools” were set up in their place' to avoid a court deségregation order. At the same time, public schools in other counties in Virginia remained open. In Prince Edward County the “private schools” were open to whites only and these schools were in fact run by a practical partnership between State and county, designed to preserve segregated education. We pointed out in Griffin the many facets of state involvement in the running of the “private schools.” The State General Assembly had made available grants of $150 per child to make the program possible. . This was supplemented by a county grant program of $100 per child and county property tax credits for citizens contributing to the “private schools.” Under those circumstances we held that the closing of public schools in just one county while the State helped finance “private schools” was a scheme to perpetuate segregar tion in education which constituted a denial of equal protection of the laws. Thus the Griffin case simply treated the school program for what it was — an operation of Prince Edward County schools under a thinly disguised “private” school system actually planned and carried out by the State and the county to maintain segregated education with public funds. That case can- give no comfort to petitioners here. This record supports no intimation that Jackson has not completely and finally ceased running swimming pools for all time. Unlike Prince Edward County, Jackson has not pretended to close public pools only to run them under a “private” label. It is true that the Leavell Woods pool, previously leased by the city from the YMCA,’ is now run by that organization and appears to be open only to whites. And according to oral argument, another pool owned by the city before 1963 is now owned and operated by Jackson State College, a predominantly black institution, for college students and their guests. But unlike the “private schools” in Prince Edward County there is nothing here to show the city is directly or indirectly involved in the funding or operation of either pool. If the time ever comes when Jackson attempts to run segregated public pools either directly or. indirectly, or participates in a subterfuge whereby pools are nominally run by “private parties” blit actually by the city, relief will be available in the federal courts. B. Petitioners also claim that Jackson’s closing of the public pools authorizes or encourages private pool owners to discriminate on account of race and that such “encouragement” is prohibited by Reitman v. Mulkey, supra. In Reitman, California had repealed two laws relating to racial discrimination in the sale of housing by passing a constitutional amendment establishing the right of private persons to discriminate on racial grounds in real estate transactions. This Court there accépted what it designated as the holding of the Supreme Court of California, namely that the constitutional amendment was an official authorization of racial discrimination which significantly involved the State in the discriminatory acts of private parties. 387 U. S., at 376-378, 380-381. In the first place there are no findings here about any state “encouragement” of discrimination, and it is not clear that any such theory was ever considered by the District Court. The implication of petitioners’ argument appears to be that the fact the city turned over to the YMCA a pool it had previously leased is sufficient to show automatically that the city has conspired with the YMCA to deprive Negroes of the opportunity to swim in integrated pools. Possibly in a case where the city and the YMCA were both parties, a court could find that the city engaged in a subterfuge, and that liability could be fastened on it as an active participant in a conspiracy with the YMCA. We need not speculate upon such a possibility, for there is no such finding here, and it does not appear from this record that there was evidence to support such a.finding. Reitman v. Mulkey was based on a theory that the evidence was sufficient to show the State, was abetting a refusal to rent apartments .on racial grounds. On this record, Reitman offers no more support to petitioners than does Griffin. Ill Petitioners have also argued that respondents’ action violates the Equal Protection Clause because the decision to close the pools was motivated by a desire to avoid integration of the races. . But no case in this Court has held that a legislative act may violate equal protection solely because of the motivations of the" men who voted for it. The pitfalls of such analysis were set forth clearly in the landmark opinion of Mr. Chief Justice Marshall in Fletcher v. Peck, 6 Cranch 87, 130 (1810), where the Court declined to set aside the Georgia Legislature’s. sale of lands on the theory that its members were corruptly motivated in passing the bill. A similar contention that illicit motivation should lead to a finding of unconstitutionality was advanced in United States v. O’Brien, 391 U. S. 367, 383 (1968), where this Court rejected the argument that a defendant could not be punished for burning his draft card because Congress had allegedly passed the statute to stifle dissent. That opinion explained well the hazards of declaring a law unconstitutional because of the motivations of its sponsors. First, it is extremely difficult for a court to ascertain the motivation, or collection of different motivations, that lie behind a legislative enactment. Id., at 383, 384. Here, for example, petitioners have argued that the Jackson pools were closed because of ideological opposition to racial integration in swimming pools. Some evidence in the record appears to support this argument. On the other hand the courts below found that the pools were closed because the city council felt they could not be operated safely and economically on an integrated basis. There is substantial evidence in the record to support this conclusion. It is difficult or impossible for any court to determine the “sole” or “dominant” motivation behind the choices of a group of legislators. Furthermore, there is an element of futility in a judicial attempt to invalidate a law because of the bad motives of its supporters; If the law is struck down for this reason, rather than because of its facial content, or effect, it would presumably be valid as soon as the legislature or relevant governing body re-passed it for different reasons. It is true there is language in some, of our cases interpreting the Fourteenth and. Fifteenth Amendments which may suggest that the motive or purpose behind a law is relevant to its constitutionality. Griffin v. County School Board, supra; Gomillion v. Lightfoot, 364 U. S. 339, 347 (1960). But the focus in those cases was on the actual effect of the enactments, not upon the motivation which led the States to behave as they did. In Griffin, as discussed supra, the State was in fact perpetuating a segregated public school system by financing segregated “private” academies. And in Gomillion the Alabama Legislature’s gerrymander of the boundaries of Tuskegee excluded virtually all Negroes from voting in town elections. Here the record indicates only that Jackson once ran segregated public swimming pools and that no public pools are now maintained by the city. Moreover, there is no evidence in this record to show that the city is now covertly aiding the maintenance and operation of pools which are private in name only. It shows no state action affecting blacks differently from whites. Petitioners have argued strenuously that a city’s possible motivations to ensure safety and save money cannot validate an otherwise impermissible state action. This proposition is, of course, true. Citizens may not be compelled to forgo their constitutional rights because officials fear public hostility or desire to save money. Buchanan v. Warley, 245 U. S. 60 (1917); Cooper v. Aaron, 358 U. S. 1 (1958); Watson v. City of Memphis, 373 U. S. 526 (1963). But the issue here is whether black citizens in Jackson are being denied their' constitutional rights when the city has closed the public pools to black and white alike. Nothing in the history or the language of the Fourteenth Amendment nor in any of oúr prior cases persuades us that the closing of the Jackson swimming pools to all its citizens constitutes a denial of “the equal protection of the laws.” IV Finally, some faint and unpersuasive argument has been made by petitioners that the closing of the pools violated the Thirteenth Amendment which freed the Negroes from slavery. The argument runs this way: The first Mr. Justice Harlan’s dissent in Plessy v. Ferguson, 163 U. S. 537, 552 (1896), argued strongly that the purpose of the. Thirteenth Amendment was not only to outlaw slavery but also all of its “badges, and incidents.” This broad reading of the amendment was affirmed in Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968). The denial of the right of Negroes to swim in pools with white people is said to be a “badge or incident” of slavery. Consequently, the argument seems to run, this Court should declare that the city’s closing of the pools to keep the two races from swimming together violates the Thirteenth Amendment. To reach that result from the Thirteenth Amendment would severely stretch its short simple words and do violence to,its history. .Establishing this Court’s authority under the Thirteenth Amendment to declare new laws to govern the thousands of towns and cities of the country would grant it a lawmaking power far beyond the imagination of the amendment’s authors. Finally,, although the Thirteenth Amendment is a skimpy collection of words to allow this Court to legislate new laws to control the operation of swimming pools throüghout the length and breadth of this Nation, the. Amendment does contain other words that we held in Jones v. Alfred H. Mayer Co. could empower Congress to outlaw “badges of slavery.” The last sentence of the Amendment reads: “Congress shall have power to enforce this'article >by appropriate legislation.” But Congress has passed no law under this power to regulate a city’s opening or closing of swimming pools or other recreational facilities. It has not been so many years since it was first deemed proper and lawful for cities to tax their citizens to build and operate swimming pools for the public. Probably few persons, prior to this case, would have imagined that cities could be forced by five lifetime judges to construct or refurbish swimming pools which they choose not to operate for any reason, sound or unsound. Should citizens of Jackson or any other city be able to establish in court that public, tax-supported swimming pools are being denied to one group because of color and supplied to another, they will be entitled to relief. But that is not the case here. The judgment is Affirmed. Clark v. Thompson, 206 F. Supp. 539 (SD Miss. 1962). 313 F. 2d 637 (CA5), cert. denied, 375 U. S. 951 (1963). The court’s opinion is not officially reported. 419 F. 2d 1222 (CA5 1969). My Brother White’s dissent suggests that the. pool closing operates unequally on white and blacks because, “The action of the city in this case interposes a major deterrent to seeking judicial or executive help in eliminating racial restrictions on the use of public facilities.” Post, at 269. It is difficult to see the force of this argument since Jackson has desegregated its public parks, auditoriums, golf courses, city zoo, and the record indicates it no.w maintains no segregated public facilities. Bush v. Orleans Parish School Board, 187 F. Supp. 42 (ED La. 1960), aff’d, 365 U. S. 569 (1961), does not lead us to reverse the judgment here. -In Bush we wrote no opinion but'merely affirmed a lower federal court judgment that' held unconstitutional _ certain laws designed to perpetuate segregation in the Louisiana public schools. One law held unconstitutional by the lower court empowered the State Governor to close any school ordered to integrate; another empowered him to close all state schools if one were integrated. Of course that case dicl not involve swimming pools but rather public schools, an enterprise we have described as “perhaps the most important function of state and local governments.” Brown v. Board of Education, supra, at 493. More important, the laws struck down in Bush were part of an elaborate package of legislation ' through which Louisiana sought to maintain public education on a segregated basis, not to end public -education. See ajso Bush v. Orleans Parish School Board, 188 F. Supp. 916 (ED La. 1960). Of ' course there was no serious problem of probing the motives of a legislature in Bush because most of the Louisiana statutes explicitly stated they were designed to forestall integrated schools. 187 F. Supp., at 45. Tr. of Oral Arg. 31-32. There is no question before us here whether the black citizens of Jackson may. be entitled to utilize the swimming facilities of Leavell Woods pool. Nothing on the present record indicates state involvement in the running of that pool. The YMCA, which apparently now operates the pool, was not joined as a party and thus, of course, no judgment could be entered against it. Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? A. stay, petition, or motion granted B. affirmed C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. modify K. remand L. unusual disposition Answer:
songer_counsel2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party BARTKUS v. UNITED STATES, and three other cases. Circuit Court of Appeals, Seventh Circuit. June 8, 1927. Nos. 3874-3877. 1. Conspiracy <§=>25 — Conspiracy statute does not make it crime to conspire that some person other than conspirators shall commit crime. Conspiracy statute makes it crime for two or more persons to conspire to commit offense, but does not make it crime to conspire that some person other than conspirators shall commit it. 2. Conspiracy <§=>43(6) — Indictment for conspiracy should state essential elements of substantive offense constituting object of conspiracy. Though technical precision is not required, essential elements of substantive offense should bo stated, when describing object of conspiracy in indictment. 3. Conspiracy <§=43(6) — In indictment for conspiracy that bankrupt corporation withhold property from trustee, allegation that corporation had been adjudged bankrupt and trustee appointed held not essential (Bankruptcy Act, \| 29b, cl. I [Comp. St. § 9613]). In indictment for conspiracy that corporation, as bankrupt, should fraudulently conceal property from its trustee in violation of Bankruptcy Act, § 29b, cl. 1 (Comp. St. § 9613), allegation that corporation had been adjudged bankrupt and trustee had been appointed held not essential. 4. Conspiracy <§=43(12) — In prosecution for conspiracy to withhold property from bankruptcy trustee, there was no fatal variance between allegation that bankrupt was “electrical company” and proof that it was “electric company.” In prosecution for conspiracy that bankrupt corporation should withhold property from trustee, there was no fatal variance between indictment charging that corporation was Bridgeport Electrical Company and proof that it was Bridgeport Electric Company. 5. Conspiracy <§=47 — Evidence held insufficient to support conviction of defendants for conspiring with president of bankrupt corporation to withhold property from trustee. Evidence held insufficient to support conviction of defendants for conspiring with president of bankrupt corporation to withhold property from trustee, though some of bankrupt’s property found its way into their possession. 6. Criminal law <§=l 159(2) — Circuit Court of Appeals cannot weigh evidence. Circuit Court of Appeals is not permitted to weigh evidence in criminal case. 7. Conspiracy <§=>47 — Commission of crime may be evidence that those committing it conspired to commit it. Though crime of conspiracy may be completed without actual commission of crime which is its object, commission of such crime may be evidence that those committing it conspired to commit it. 8. Conspiracy <§=>23 — One defendant alone cannot be convicted of conspiracy. Where evidence was insufficient to support conviction of three of four defendants for conspiracy that bankrupt corporation withhold property from trustee, conviction of the other will be set aside also, since one person cannot commit crime of conspiracy. In Error to the District Court o£ the United States for the Eastern Division of the Northern District of Illinois. Alfons Bartkus, Victor Kelps, Adolph Nevar, alias Adolph Niewiardowski, and William Dronsuth were convicted of conspiracy that a bankrupt should conceal property from bis trustee, and they separately bring error. Reversed and remanded, with direction. John M. Zane, of Chicago, Ill., for plaintiffs in error. George E. Q. Johnson and Edward J. Hess, both of Chicago, Ill., for the United States. Before EVAN A. EVANS, PAGE, and ANDERSON, Circuit Judges. ANDERSON, Circuit Judge. Plaintiffs in error were convicted of violating that portion of the conspiracy statute which provides: “If two or more persons conspire * * * to commit any offense against the United States, * * * and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined * * * or imprisoned, * * * or both.” Comp. St. § 10201. The offense against the United States sought to be charged as the object of the conspiracy is the violation of clause 1 of section 29b of the Bankruptcy Act,, which, though amended since, at the time of the commission of the .alleged offense read: “A- person shall. be punished, by imprisonment for a period not to exceed two years, upon conviction of the offense, of having knowingly and fraudulently concealed while a bankrupt, or after his discharge, from his trustee any of the property belonging to his estate in bankruptcy.” Comp. St. § 9613. In substance the indictment charges that one of the plaintiffs in error, Bartkus, .was president and manager of the Bridgeport Electrical Company, a corporation, and ‘ as such president and manager dominated the acts and doings thereof, and that the plaintiffs in error, anticipating and expecting that an involuntary petition in bankruptcy would be filed against the company, and that thereafter it would be adjudged a bankrupt, and that in said bankruptcy proceedings a trustee would be appointed of and for the estate in bankruptcy of the company, did conspire, combine, confederate and agree together “to the end and for the purpose that said Bridgeport Electrical Company, a corporation, while a bankrupt as aforesaid, unlawfully, knowingly, wilfully, and fraudulently should conceal from said trustee in bankruptcy of said Bridgeport Electrical Company, a corporation, a large amount of property, to wit, the sum óf thirty five thousand dollars ($35,-000.00), and, to wit, a large quantity of merchandise and electrical goods, and goods for the manufacture of electrical appliances, and fixtures (a further and more particular description thereof is to said grand jurors unknown) of the value of, to wit, thirty five thousand dollars ($35,000.00).” Various overt acts are alleged to have been done by the defendants in pursuance of and in furtherance of said conspiracy and to effect the object of the same. The statute makes it a crime for two or more persons to conspire to commit — that is, themselves commit — the offense. It does not, in terms, make it a crime to conspire that some person other than the conspirators shall commit it. This probably accounts for the averment in the indictment that Bartkus was president of and dominated the Bridgeport Company. Bearing in mind that he who does a thing through another does it himself, we may construe the indictment to charge that plaintiffs in error conspired to commit the crime by causing the company to commit it. It is only by so construing it that the indictment can be held to charge the crime defined by the statute. Although- technical precision is not required, it would seem that the essential elements of the substantive offense should be stated when describing the object of the conspiracy.' The statute denounces concealment from the trustee of property belonging to the estate in bankruptcy. There is no averment in this indictment that the property intended to be concealed was the property of the estate in bankruptcy. The objection that there is no allegation that the corporation had been adjudged a bankrupt and a trustee had been appointed for it, is not well taken. Cohen v. United States (C. C. A.) 157 F. 651; Steigman v. United States (C. C. A.) 220 F. 63. It is urged that there is a fatal variance between one material averment and the proof. The indictment charged that it was contemplated that the Bridgeport Electrical Company should be adjudged a bankrupt, and that it should conceal property. The evidence shows that the correct name of the corporation was the Bridgeport Electric Company, and it is claimed that this is a fatal variance. This contention cannot prevail, under the case of Putnam v. United States, 162 U. S. 687, 16 S. Ct. 923, 40 L. Ed. 1118, where the charge was embezzlement of money from “National Granite State Bank” and the proof showed the correct name to be “National Granite State Bank of Exeter,” and under the ease of Beavers v. United States (C. C. A.) 3 F.(2d) 860, where the defendant was charged with having stolen from interstate commerce, and the indictment alleged that the freight was shipped by “Duke & Co.” and the evidence showed the shipment was by “W. B. Duke Sons & Co.” As was stated by the Supreme Court in Bennett v. United States, 227 U. S. 333, at page 338, 33 S. Ct. 288, 289 (57 L. Ed. 531): “The essential thing in the requirement of correspondence between the allegation of the namo of the woman transported and the proof is that the record be in such shape as to inform the defendant of the charge against her and to protect her against another prosecution for the same offense.” Plaintiffs in error contend that the evidence does not sustain the charge; that there is no evidence upon which to base the finding that Kelps, Nevar and Dronsuth conspired with Bartkus to have the company commit the offense; that is, to have the company, while a bankrupt, conceal its property from its trustee. Government’s counsel insist that the evidence is sufficient, and review it in their brief. They conclude their review with this language: “It thus appears that this corporation operated by defendant, Bartkus, must have been know by him to be approaching bankruptcy; that, notwithstanding this, the purchases of merchandise in the name of that company rapidly increased, and by calculations most favorable to the bankrupt, resulted in a shortage of, to wit, $27,000; that after court proceedings were had and notiee posted upon the premises of bankrupt, said defendant, with others, made numerous trips removing merchandise that ostensibly belonged to the trustee in bankruptcy. As above stated, these defendants were related; in the samo general line of business, their places of business being about one mile apart, and, at least, some of the merchandise purchased by the bankrupt found its way, under very suspicious circumstances to possession of the other defendants, namely in a private garage, three or four miles distance away in a residential district. True, defendants seek to explain their possession of' these goods by asserting purchase of the same, bat the record in this case indicates that these alleged purchases were had in the. months of November and December when defendant, Bartkus, was increasing his purchases from others, and by their very defense they were put on notiee that the Bridgeport Electric Company was insolvent. It will also be observed that while some of the defendants made the defense that they purchased this material from the Bridgeport Electric Company, their brother-in-law, Bartkus, informed them the company was in need of money, and at the very time he was in the act of withdrawing $7,500 from the treasury of the company.” An examination of the record discloses that this is as strong a statement of the facts proved as the evidence warrants. If it be conceded that the evidence shows that Bartkus planned to have the company, of which he was president and which he dominated, commit the offense, we do not think it establishes that Kelps, Nevar, and Dronsuth, or any one of them, participated in his plan. The most that can be said of the evidence relating to occurrences before the company became bankrupt, is that it shows that some time before the bankruptcy some merchandise which had been purchased by, and therefore was at one time owned by the bankrupt, found its way into the possession of Kelps, Nevar, and Dronsuth. It is sought to characterize this possession as fraudulent upon the ground that Kelps, Nevar, and Dronsuth were brothers-in-law of Bartkus; that they were engaged in the same business in which he was engaged; that their place of business was about a mile from his, while the garage in which the merchandise was found was three or four miles away, in a residential district ; and upon the further ground that, before the bankruptcy, Bartkus had informed them that the Bridgeport Company was in need of money. These are the suspicious circumstances relied on by government’s counsel. The fact that some merchandise which had been purchased by bankrupt (and alsc^ may have been sold by it) found its way into the possession of Kelps, Nevar, and Dronsuth, even under the suspicious circumstances mentionéd,- does not go-' far tó establish that they ■conspired with Bartkus to commit the crime charged. The record shows that the merchandise which found its way into this garage was not of large amount or value. Government’s counsel say it was “at least, some.” No effort was made to take possession of it for the bankrupt. While we may not weigh the evidence, we deem it proper'to say that it appears from the record that Kelps, Nevar, and Dronsuth took the witness stand themselves and gave testimony, which, if true, disposes of the supposed incriminating circumstances urged against them. They testified that they bought and paid for the goods, and explained why they had merchandise stored in a residential neighborhood — that their business was putting electrical equipment into residences. This testimony was corroborated by other witnesses and was not contradicted in any way. - This brings us to the consideration of the •evidence that, after notice of the bankruptcy, Bártkus, “with others,” took away property which -the government said “ostensibly” belonged to the trustee. The evidence upon this fails -to establish that the ■ property taken away actually belonged- to the Bridgeport -Company: Indeed, “ostensibly” is stronger .than.the whole evidence warrants. ■[7] This taking could only be relevant to show the' intent of the alleged conspirators. While to complete the crime of- conspiracy the actual 'commission of the crime which- is its object is not necessary, its commission may be evidence that those committing it conspired to commit it; bn the familiar principle that persons are held to intend to do what they actually-'do.- So-here, concealment after .bankruptcy' by -"alleged conspirators would strongly tend to prove that- they planned to ■so- oondeal. But-the evidence shows that ■ Kelps, Nevar, and Dronsuth- were not “the others” -with Bartkus. No- one of them was present or Was shown -to have had any knowledge" of it. As, evidence that they conspired to do this particular thing, it has no probative •forcé whatever. We are-not now concerned with the question whether, if a conspiracy were proved,- 'they would be bound by Bartkus’ acts. If a conspiracy to conceal had been otherwise established, the act of Bartkus ' would be the act of' all the conspirators. But the acts'of Bartkus, "even if done'in pursuance- of á plan formed by him, if done with- ' out 1^ie participation and knowledge of Kelps, Nevar,- and Dronsuth, do not tend to show that they participated in his plan. The'-facts proved may warrant -the conclusion that Bartkus planned to conceal the bankrupt’s property as alleged, but they are not sufficient to support a verdict that Kelps, Nevar, and Dronsuth participated with him in such plan. The verdict and judgments against Kelps, Nevar, and Dronsuth cannot stand; and as one person alone cannot commit the crime of conspiracy, and as there is no evidence to support the averment as to other conspirators unknown, the verdict and judgment as to Bartkus must also be set . aside. Reversed and remanded, with- direction to grant a new trial. 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_genapel2	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant. Michael J. TAIT and Monica Tait, his wife, Appellants, v. ARMOR ELEVATOR COMPANY, and Prudential Insurance Company of America, Appellees. No. 91-1378. United States Court of Appeals, Third Circuit. Submitted Under Third Circuit Rule 12(6) Oct. 10, 1991. Decided March 12, 1992. Rehearing and Rehearing In Banc Denied April 10, 1992. Stephen R. Bolden, Michael S. Lubline, Debra Schwaderer Dunne Fell & Spauld-ing, Philadelphia, Pa., for appellants. William J. Conroy, White and Williams, Philadelphia, Pa., for appellee, Armor Elevator Co. Ralph P. Bocchino, Christine M. Brenner, Marshall, Dennehey, Warner, Coleman and Goggin, Philadelphia, Pa., for appellee, Prudential Ins. Co. Before MANSMANN, NYGAARD and SEITZ, Circuit Judges. OPINION OF THE COURT SEITZ, Circuit Judge. Monica and Michael Tait (plaintiffs), appeal a final judgment of the district court in favor of defendants, Armor Elevator Company (Armor) and Prudential Insurance Company of America (Prudential). The district court exercised diversity jurisdiction under 28 U.S.C. § 1332. This court has jurisdiction pursuant to 28 U.S.C. § 1291. Plaintiffs brought this negligence action against Prudential and Armor for injuries allegedly suffered by plaintiff Michael Tait as a result of an abrupt stop of a descending elevator in which he was the sole passenger. Prudential owned the building where the accident occurred. Armor was under contract with Prudential to inspect, repair and maintain the building elevators. In June of 1988, it also contracted to modernize the elevators. At the close of plaintiffs’ case, the district court granted a directed verdict in favor of Prudential and entered a judgment accordingly. The trial continued against Armor and resulted in a jury verdict in its favor based on a finding of no negligence. After entry of judgment therein, the district court denied plaintiffs’ motion for a new trial. This appeal against both defendants followed. I. JURY VERDICT FOR DEFENDANT ARMOR The plaintiffs contend that the district court erred in denying their motion for a new trial against Armor. Plaintiffs first assert that the district court gave an erroneous jury instruction as to the standard of care that Armor owed to plaintiff Michael Tait. In their “Revised and Supplemental Points for Charge,” plaintiffs sought a “highest duty of care” instruction. Although the issue of its propriety was apparently argued, no subsequent ruling can be found in the appendix. Counsel was asked by us to comment on this apparent defect. Their responses, particularly Armor’s, leave us with the definite impression that the district court, in fact, rejected plaintiffs’ request at a sidebar conference during the trial. We conclude that there was a definitive ruling before the jury instructions were given. Therefore, we determine that the issue of instructional error was preserved. Bowley v. Stotler & Co., 751 F.2d 641, 646-47 (3d Cir.1985). As noted, plaintiffs first argue that the jury instruction was erroneous under controlling Pennsylvania law since it failed to correctly instruct the jury as to the duty of care owed by Armor to passengers under the present circumstances. The plaintiffs asked the district court to instruct the jury as follows: Armor owes to the plaintiffs Michael Tait a duty of care similar to that of a corn-mon carrier [and,] ... as such, is required by the law to use a higher degree of care for the safety of passengers who ride upon the elevators maintained, inspected and repaired by it, than that ordinarily imposed on others and it must be judged by a much stricter standard ... [namely,] the highest degree of diligence and care in the operation and maintenance of its elevators. Instead of honoring their request, the court instructed the jury to decide whether Armor breached its duty of care “under all the circumstances.” The instructions recited further: [W]hat constitutes ordinary care varies according to the particular circumstances and conditions and that amount of care required by law must be in keeping with the degree of dangers involved.... [I]n deciding whether ordinary care was exercised in a given case, the conduct in question must be viewed in light of all the surrounding circumstances that are shown by the evidence in the case. Plaintiffs alleged in their motion for a new trial that the district court’s refusal to instruct the jury that Armor owed plaintiff Michael the highest degree of care constituted error. On appeal, they say that since Armor assumed contractual duties to inspect, repair and maintain the elevators, it “must of necessity have assumed the same obligations to passengers as was owed to them by Prudential,” the highest degree of care. The district court denied the motion on the ground that the instructions given fairly reflected the duty of an elevator service company to passengers under Pennsylvania law. The court explained: In speaking about duty of care in Benson v. Penn Central Transportation Co. [463 Pa. 37], 342 A.2d 393 (Pa.1975), the Supreme Court of Pennsylvania said “it is true, of course, that our cases have placed upon common carriers a duty to use ‘the highest degree of care for (their passengers) safety.’ ” (citations omitted.) However, as Dean Prosser correctly states, “Although this language ... seems to indicate that a special standard is being applied, it would appear that none of these cases should logically call for any departure from the usual formula. What is required is merely the conduct of the reasonable man of ordinary prudence under the circumstances, and the greater danger, or the greater responsibility is merely one of the circumstances, demanding only an increased amount of care.” I believe my instructions to the jury referred to previously were consistent with the law. Tait v. Armor Elevator Company and Prudential Life Insurance Company of America, No. 89-6313 (E.D.Pa.), slip. op. 4, 1991 WL 67737 (Buckwalter, J.) The district court’s instructions must be viewed as a whole and read in light of all the evidence. Under such a review, the ruling should be reversed only if it does not fairly and adequately submit the issue to the jury and, thereby, confuse or mislead the jury. Link v. Mercedes-Benz, 788 F.2d 918, 922 (3d Cir.1986). The Pennsylvania Supreme Court has stated that a common carrier “is negligent if a reasonable man under like circumstances would recognize that it involves an unreasonable risk of causing harm to another.” Benson, 342 A.2d at 397. The Benson court reasoned further that the fact that the cab company was a common carrier did not affect the applicability of this definition of the standard of care: It is true, of course, that our cases have placed upon common carriers a duty to use “the highest degree of care for [their passengers’] safety.” (citations omitted). However, as Dean Prosser correctly states, “although [this] language ... seems to indicate that a special standard is being applied, it would appear that none of these cases should logically call for any departure from the usual formula. What is required is merely the conduct of the reasonable man of ordinary prudence under the circumstances, and the greater danger, or the greater responsibility is merely one of the circumstances demanding only an increased amount of care.” W. Prosser, The Law of Torts, § 34, at 181 (4th ed. 1971). Id. at 397 n. 11. Without discussing Benson, the plaintiffs argue that, under Pennsylvania law, an elevator service company owes the highest degree of care to its passengers when it acts as a common carrier. This argument is not supported by Pennsylvania precedent. Prior to Benson, former Chief Justice Jones in his concurrence in Gilbert v. Korvette, Inc., 457 Pa. 602, 327 A.2d 94, 105 (1974), extrapolating from Evans v. Otis Elevator Co., 403 Pa. 13, 168 A.2d 573 (1961), stated “it is clear that the duty owed by a service contractor to third parties is uniformly one of ordinary care and does not vacillate to conform with the standard of care which the law has placed on the other party to the contract.” However, the majority in Gilbert did not determine the extent of the tort law duty of care owed by such a service company to elevator passengers. The Pennsylvania Supreme Court has not decided whether it will apply to an elevator service company the duty of care standard articulated in Benson for common carriers. Further, we recognize that there is a division of authority nationally on the issue of the standard of care owed to passengers by an elevator company arising from its contract to service and maintain an elevator. Prosser and Keaton on the Law of Torts, § 34 at 208-9 n. 5-14 (1984; Supp.1988). See also 64 A.L.R.3d 950, 962-64, 974 (1975). Nevertheless, the case law in Pennsylvania, particularly the quoted footnote in Benson, leads us to believe that the Supreme Court of Pennsylvania would adopt the same duty of care as to an elevator service contractor that it has applied to other common carriers. Thus, we find no error under Pennsylvania law in the instruction given as to Armor’s duty of care. The plaintiffs’ second allegation of trial error is based on the following statement by counsel for Armor in his closing argument to the jury: Let me try and put in perspective what I am driving at. We often pick up the newspaper and we read that a jury verdict has resulted and you start reading through it and you say to yourself, my God, how could they have done what they did with the evidence they had on the issue they had to decide? Because you read it, you say, I can’t believe it. Well, you can imagine picking up a newspaper and reading that a jury had awarded a person or had concluded that a person had a certain injury at one point in time, when his own doctors' agreed that the symptoms that would evidence that injury, all pre-existed the date when he said it occurred? Can you imagine that? Well, that’s what you’re being asked to do, if I may say so, to put it in perspective for you. App. at 843-44. Although plaintiffs did not object to these remarks at trial, they asserted in their motion for a new trial that these remarks constituted plain error. They argued that the remarks were improper because they suggested to the jury that the plaintiff Michael Tait was a malingerer and attempted to link his claim to other frivolous law suits reported in the newspapers. Even entertaining plaintiffs’ argument under the stringent standard of the plain error doctrine, we agree that the district court properly denied plaintiffs’ new trial motion. As it said, the remarks had no “reasonable probability of improperly prejudicing the jury and influencing its verdict.” Thus, the district court did not abuse its discretion in its ruling on this issue. Finally, plaintiffs seek a new trial against Armor on the ground that the district court improperly excluded certain “Elevator Logs” that recorded tenant complaints and which were kept on a regular basis by Prudential’s building manager. The purpose of these tenant logs was to record tenant complaints about elevator operation problems and Armor’s response time in dealing with them. These logs showed a pattern of unexplained malfunctions, other than abrupt stops, in elevator No. 7. They also showed evidence of abrupt stops in No. 7 both before and after the accident. Finally, the logs kept by Prudential revealed incidents in the same bank of mid-rise elevators during the year leading up to the accident in July of 1988. Plaintiffs sought to introduce these logs to establish three propositions: (1) that the defendants had notice or knowledge of the dangerous condition and its magnitude, (2) that defendants had an ability to correct a known danger, and (3) that the defendants knew of the likelihood of injury in connection with an accident. Prior to trial, both defendants filed motions in limine to exclude the tenant logs on the ground that the evidence of prior malfunctions in the same bank of elevators other than No. 7 and incidents in other elevators was not probative and should be excluded under Federal Rule of Evidence 402 (Only relevant evidence admissible). Alternatively, they contended that the evidence was too prejudicial and must be excluded under Rule 403 (when relevant evidence excluded). The defendants asserted that the plaintiffs should be limited to introducing evidence from the logs showing malfunctions prior to the incident involving plaintiff Michael on July 18, that resulted from abrupt stops in elevator No. 7. Plaintiffs argued that the evidence was relevant because poor maintenance of the interconnected safety circuits had caused accidents of a similar nature in both elevator No. 7 and the other elevators. They contended that these circuits would have caused malfunctions in all the elevators because they were exposed to the same environment of dust, dirt and corrosion common to all the mid-rise bank elevator shafts. The district court reserved ruling on this matter until the plaintiffs had presented other evidence. The plaintiffs presented expert testimony to show that the accident alleged by plaintiff Michael would only result from negligence and that dust, dirt or corrosion in the circuits may have caused the alleged abrupt stop in elevator No. 7. The reports of the plaintiffs’ experts were submitted to support their request for admission of the evidence of prior accidents and malfunctions. The defendants presented testimony of an expert, Mr. Steven Man-gold, refuting their theory. Mr. Mangold testified that the safety circuitry of each elevator was separate and would not affect the operation of any other elevator in the same bank of elevators. The court concluded that plaintiffs’ experts had drawn unsubstantiated conclusions about the causal relationship between malfunctions due to bad circuits in any of the mid-rise elevators and a malfunction in elevator No. 7. Thus, the district court granted the defendants’ motions in limine insofar as they sought to exclude the evidence of malfunctions in all the elevators, except No. 7. It also excluded all evidence of malfunctions in elevator No. 7 occurring after the incident involving plaintiff Michael. As to the excluded evidence, the court held that “it would have been more prejudicial than probative to let into testimony problems in elevators other than elevator No. 7.” The court did rule that the logs showing prior instances of abrupt, sudden or jolting stops in elevator No. 7 were admissible “to lend credibility to plaintiff’s unwitnessed account of what happened to him when he was in the elevator alone.” Finally, the district court allowed plaintiffs’ experts to testify about evidence in their reports about prior abrupt stops in elevator No. 7, but excluded any reference by them to accidents in other elevators or in elevator No. 7 occurring after the date of the alleged accident. We review for abuse of discretion the district court’s rulings with respect to plaintiffs’ evidentiary tenders. United States v. Stewart, 806 F.2d 64, 68 (3d Cir.1986). The admission or exclusion of evidence is a matter well suited to the exercise of the district court’s discretion. In re Merritt Logan, Inc., 901 F.2d 349, 359 (3d. Cir.1990). After a review of the record and in light of the rules of evidence applied by the district court, we cannot say that it committed reversible error in its evidentiary rulings. The evidence of malfunction in other elevators was found inadmissible because the plaintiffs' theory of concurrent causation of the malfunction in several elevators at once was purely speculative. Accordingly, plaintiffs did not establish the cause of the accidents in the other elevators or make a sufficient showing that they were related to the accident in elevator No. 7. The district court therefore acted within the scope of its legitimate discretion in excluding reports of malfunctions of the other elevator prior to the accident, given the prejudicial and speculative nature of such evidence. Finally, the district court did not abuse its discretion in excluding evidence of subsequent malfunctions in elevator No. 7. Gumbs v. International Harvester, 718 F.2d 88, 97-98 (3d Cir.1983); Wojcieschowski v. Long-Airdox Div., 488 F.2d 1111 (3d Cir.1973). These incidents in elevator No. 7 after July 18 were not shown to be similar enough to the circumstances in this case to overcome the prejudice inherent in admitting this evidence. We will, therefore, affirm the judgment of the district court in Armor’s favor. Thus, we need not address Armor’s alternative ground for affirmance that the district court erred in refusing to direct a verdict in its favor based on the insufficiency of plaintiffs’ evidence. II. DIRECTED VERDICT FOR PRUDENTIAL Plaintiffs appeal the order of the district court granting Prudential’s motion for a directed verdict at the close of plaintiffs’ case. In proceeding with the case against Armor the district court informed the jury that Prudential had been “dismissed because there was no evidence against the defendant as a matter of law, upon which you could find Prudential was negligent here.” In rejecting the plaintiffs’ motion for a new trial, the district court observed that, [T]here was no evidence of any culpable conduct on the part of Prudential. Prudential was the owner of the building in which the elevator was installed but the uncontroverted evidence was that Armor had sold an [sole and] exclusive control of the elevators and that plaintiff was basing its cause of action on the basis of Armor’s failing to properly maintain the elevators. We accordingly find no merit to plaintiff’s contention that the entry of a directed verdict was incorrect. Tait, slip op. 10. The district court’s opinion did not discuss whether there was sufficient evidence to satisfy the elements of res ipsa loquitur in order to create a permissible inference of Prudential’s negligence. In granting a directed verdict in Prudential’s favor, however, the district court must have found either (1) that Prudential delegated its duty of care by contract to Armor or (2) that there was insufficient evidence to warrant giving a res ipsa lo-quitur instruction against Prudential. On appeal, plaintiffs contest the correctness of the district court’s action. Review of a directed verdict is plenary. “A motion for directed verdict should be granted only if, viewing the evidence in the light most favorable to the non-moving party, there is no question of material fact for the jury, and any verdict other than the one directed would be erroneous under the governing law.” MacLeary v. Hines, 817 F.2d 1081, 1083 (3d Cir.1987). The district court must deny a defendant’s directed verdict motion under this standard “if there is evidence reasonably tending to support the recovery by the plaintiffs as to any of its theories of liability.” Bielevicz v. Dubinon, 915 F.2d 845, 849 (3d Cir.1990). Our first task is to determine whether the district court correctly found that Armor had sole and exclusive control of the elevator. In doing so, we shall assume without deciding that Prudential could have relieved itself of any legal responsibility to plaintiffs under Pennsylvania law by delegating sole and exclusive control to its service contractor. But such an assumption does not help Prudential here because it is clear on this record that it too owed plaintiff Michael, as an elevator passenger, a duty of care. The contract between Armor and Prudential demonstrates that Prudential reserved to itself ultimate control over its elevators and their operation. While the service contract delegates primary responsibility for installation, inspection repairs and maintenance to Armor, the service company did not assume sole and exclusive control of elevator No. 7. In pertinent part, the contract governing Armor’s installation of the new elevator safety circuits states that, “Armor does not assume possession, management, or control of any part of the equipment, but such remains purchaser’s exclusively as the owner or lessee thereof.” Plaintiff’s Exhibit 10. Nor was Armor required “to make renewals or repairs necessitated by non-repetitive or infrequent fluctuations in the AC power systems or extreme variations in machine room temperature, or by negligence or misuse of the equipment.” Id. It further provides that the purchaser, Prudential, is responsible “to keep the elevator pit(s) and machine room(s) free from water and to not use these areas for storage purposes.” Id. In addition, under the contract, Armor does not agree “to install new attachments on the elevators whether recommended or directed by insurance companies or governmental authorities, or to make any replacements with parts of a different design, or to replace or realign guide rails.” Still further, Armor assumed no responsibility under the contract over the following parts of the elevator’s mechanisms and equipment: “the car enclosure, hoistway, enclosures, fixture faceplates, power switches, fuses and electrical power feeders to controllers.” Finally, Prudential owes the following contractual duty to Armor under the agreement: TO GIVE ARMOR NOTICE WITHIN TWENTY-FOUR (24) HOURS OF ANY ACCIDENT, ALTERATION OR CHANGE AFFECTING THE EQUIPMENT AND OF ANY CHANGE OR OWNERSHIP; TO DISCONTINUE IMMEDIATELY THE ELEVATOR FROM SERVICE WHEN THE EQUIPMENT BECOMES UNSAFE OR OPERATES IN A MANNER WHICH MIGHT CAUSE INJURY TO A USER THEREOF. The record does not show whether Prudential gave Armor the required notice after each of the 19 separate reported malfunctions prior to Mr. Tait’s alleged accident on elevator No. 7. The provisions of the service contract, without more, amply demonstrate that a jury could find that Prudential retained substantial control over the elevators and their operation. Thus, a jury could infer that the accident may have resulted from Prudential’s independent negligence. This being so, we conclude that the district court erred in stating that Prudential could not be negligent because Armor was given sole and exclusive control of elevator No. 7. We find unacceptable Prudential’s view that this case is controlled by Brletich v. United States Steel Corp., 445 Pa. 525, 285 A.2d 133 (1971), where the court held that a property owner delegated its duty of care to a demolition contractor to demolish a structure on its land. Unlike Brletich, there is evidence in this case to show that Prudential never fully surrendered actual control over the instrumentality to Armor. Further, the contract specifically provides that Armor would not take control, or even temporary possession, of the elevator. Given these record facts, we conclude that Prudential also owed plaintiff Michael a duty to anticipate or guard against the risks that might result in injury to its elevator passengers. Thus, Prudential’s responsibility or “control” was a proper subject for jury determination. Gilbert, 327 A.2d at 102, citing Restatement (Second) of Torts, § 328C (1965). Having determined that Prudential did not delegate its tort law duty of care, we must now determine the standard of care that plaintiff was owed by Prudential as owner of the elevator. Under controlling Pennsylvania law, Prudential, as building owner, is a common carrier who owes a duty of care to maintain the elevator in a reasonably safe condition for passengers. See generally, McKnight v. Kresge, 285 Pa. 489, 132 A. 575, 577 (1926); Gilbert, 327 A.2d at 97; Lynch v. McStome & Lincoln Plaza Assoc., 378 Pa.Super. 430, 548 A.2d 1276, 1279 (1988); McGowan v. Devonshire Hall Apartments, 278 Pa.Super. 229, 420 A.2d 514, 519 (1980). It was clearly within the scope of Prudential’s duty as owner of the instrumentality to make thorough inspections, to keep the common approaches ... in a reasonably safe condition, and to operate the elevator in a reasonably safe manner. McGowan, 420 A.2d at 519. Moreover, Prudential owed this duty even though it contracted with an elevator service company to perform some, but not all, of its duties with respect to the elevators. The Pennsylvania intermediate appellate courts have consistently held that the owners of elevators owe a duty to elevator passengers similar to that of a common carrier. For example, in Dallas v. F.M. Oxford, 381 Pa.Super. 89, 552 A.2d 1109, 1111 n. 4 (1989), the court found that a building owner and an elevator service company could be found negligent in failing to install an elevator door safety device. Similarly, in McGowan, the court held that an apartment house owner’s negligence could be inferred from its failure to provide for frequent enough or proper inspections based on evidence of the plaintiff’s injury when a door closed as she exited an elevator in the building. McGowan, 420 A.2d at 519 n. 2. In Carney v. Otis Elevator Co., 370 Pa.Super. 394, 536 A.2d 804 (1988), the negligence of both the building owner and the elevator service company were established, although the evidence showed that the duty to inspect was under the service company’s, exclusive control. Id., 536 A.2d at 806. Given that Prudential exercised joint control over the elevator, it owed a duty of care as a common carrier to its elevator passengers under Pennsylvania law. We must next decide whether a res ipsa loquitur instruction may be warranted against the owner of an elevator who shares joint control over that instrumentality with an elevator service company. The district court did not decide whether the evidence showing that Prudential jointly controlled the elevator with Armor would permit a finding under Pennsylvania law that Prudential was negligent in causing the alleged accident. Prior to Gilbert, the Pennsylvania courts limited res ipsa loquitur instructions to cases where defendants had “exclusive control” of the instrumentality allegedly causing the accident. Izzi v. Philadelphia Transportation Co., 412 Pa. 559, 195 A.2d 784, 788 (1963). However, the Pennsylvania Supreme Court thereafter abandoned these “arbitrary requirements [that] have been imposed by earlier cases.” Gilbert, 327 A.2d at 98. In consequence, the application of the res ipsa loquitur doctrine to a building owner in Pennsylvania no longer depends on whether or not the owner exercised exclusive control over the instrumentality. Id. at 99, 101; Jones v. Harrisburg Polyclinic Hospital, 496 Pa. 465, 437 A.2d 1134, 1137, 1139 (1981). Most jurisdictions apply the Restatement rule on res ipsa loquitur to multiple defendants, so long as the defendants are joint tortfeasors or have joint control over the instrumentality causing the injury. See 59 A.L.R. 4th 201 (1988). This is the Pennsylvania rule. Thus, Gilbert held that “if responsibility is vested in and shared by two or more parties, [such as a building owner and its independent contractor], each may be subjected to liability under the rule we adopt.” Id. at 101, (citing Restatement § 328D, cmt. g and illus. 8; 38 A.L.R.2d 905 (1954); 58 Am.Jur.2d Negligence § 503. See generally 63 A.L.R.3d 893, 996 (1975). While it is not clear to us whether the district court decided the issue in ruling on the correctness of the directed verdict, we must determine whether the plaintiffs produced sufficient evidence on the issue of Prudential’s negligence to require that the issue be submitted to a jury. To analyze this issue, we must first determine the scope of plaintiffs’ allegations regarding Prudential’s breach of the duty of care it owes to its elevator passengers. The district court granted Prudential’s motion for a directed verdict on the assumption that “plaintiffs were basing their cause of action on the basis of Armor’s failing to properly maintain the elevators.” This reading of plaintiffs’ complaint is too narrow. Plaintiffs sued Prudential for its breach of its duty of care in operating and maintaining the elevators. Additionally, the plaintiff alleged that Prudential breached its duty to warn passengers of dangerous and defective conditions. We now ask whether there was adequate evidence of Prudential’s breach of its duty of care to warrant a jury instruction on res ipsa loquitur. Plaintiffs sought to establish Prudential’s negligence by circumstantial proof. In some cases, where a party seeking to establish negligence does not establish the exact cause of the injury, he may rely upon res ipsa loquitur, a rule of evidence, that permits the jury to infer the cause of the injury from the circumstances of the event. The Pennsylvania Supreme Court has adopted the Restatement § 328D view that permits the jury to infer the defendant's negligence if the following three elements are satisfied: (a) the event is of the kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiffs and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendant’s duty to the plaintiffs. Gilbert, 327 A.2d at 100 (citing Restatement § 328D.) When the court determines that all three elements of section 328D(1) have been met, the negligence issue must be given to the jury. See Restatement § 328D(2). See also Carney, 536 A.2d at 806; Smith v. City of Chester, 357 Pa.Super. 24, 515 A.2d 303, 305 (1986); Lanza v. Poretti, 537 F.Supp. 777 (E.D.Pa.1982). Plaintiffs easily satisfied the first element of Section 328D(1). Plaintiff Michael testified that elevator No. 7 made an abrupt stop during its descent near the 19th floor on July 18, 1988 causing him to injure his back. As with plaintiff Michael’s accident, “there are many events, such as ... the fall of an elevator ... where the conclusion is at least permissible that such things do not usually happen unless someone has been negligent ... [and] to such events res ipsa loquitur may apply.” Restatement § 328D(1), cmt. c. See also McGowan, 420 A.2d at 518. Moreover, in the claim against Armor, the district court found that the evidence was sufficient to satisfy the first element of § 328D(1). The same evidence satisfies this element in the claim against Prudential. Second, plaintiffs’ evidence permitted a conclusion that the conduct of plaintiff Michael and other third parties was not a responsible cause of the accident. The plaintiffs’ expert, Mr. Thomas W. Carroll, former chief elevator inspector in the Commonwealth of Pennsylvania, testified that the circumstances of the accident meant that it was not caused by its passenger’s activation of the emergency stop button. Mr. Carroll also testified that the abrupt stop of the elevator was not caused by a loss of electrical power from an outside source, such as a power failure due to the fault of the electrical company. The evidence was therefore sufficient to permit an inference that the first and second elements of § 328D were met. The abrupt stop was an accident that would not have occurred in the absence of negligence and the plaintiff was not responsible for that abrupt stop. We must next consider whether plaintiffs’ evidence supported an inference that the alleged negligence was within the scope of Prudential’s duty of care. The evidence of the plaintiffs’ experts shows that Prudential’s negligence may have caused plaintiff Michael’s injury. These experts testified that the alleged accident was most likely caused by a failure of those responsible to properly maintain its elevators in a reasonably safe condition. Before testifying, the plaintiffs’ three experts studied the records of 19 separate prior malfunctions to elevator No. 7 and numerous problems in the other elevators at Five Penn Square. They also inspected elevator No. 7 and reviewed plaintiff Michael’s deposition testimony. After this examination, these experts testified that the abrupt stop was most likely a result of negligent maintenance leading to a malfunction in the elevator’s circuits and/or its electronic controller. First, Mr. Raymond Harkinson, the mechanic who maintained elevator No. 7 for Armor in July of 1988 (the month of the accident), testified that the elevator accident most likely resulted from accumulated dirt, dust and/or corrosion in the elevator’s safety circuits. Second, Nicholas Haneman, a mechanical engineer, corroborated this view that the accident was caused by a malfunction in the safety circuits and/or in the electronic controller due to improper maintenance. Third, Mr. Carroll agreed with the other experts’ evaluations that substandard maintenance to the elevator’s safety circuits most likely caused plaintiff Michael’s accident. Mr. Carroll also observed that Prudential may have caused the accident by failing to take elevator No. 7 out of service when it began “running strange” eleven days before the accident. In addition to this testimony by the plaintiffs’ experts, the record shows that Prudential was aware of malfunctions in the elevator. It received tenant complaints about the problems in that elevator. Moreover, at various times, Prudential monitored Armor’s performance of its maintenance and repair obligations when the elevators malfunctioned. Because Prudential kept no repair records to indicate whether the problems in the operation of elevator No. 7 had been corrected prior to plaintiff Michael’s alleged accident, the issue of Prudential s possible negligence remained. The plaintiffs’ prima facie burden is met when “the facts proved reasonably permit the conclusion that the defendant’s negligence is the more probable explanation.” Sedlitsky v. Pareso, 400 Pa.Super. 1, 582 A.2d 1314, 1316 (1990) (quoting Restatement § 328D, cmt. e.) See also Hollywood Shop, Inc. v. Pennsylvania Gas and Water Co., 270 Pa.Super. 245, 411 A.2d 509, 511 (1979). The plaintiffs produced evidence to support their allegation that Prudential’s substandard maintenance caused the accident by allowing dust and dirt in the circuitry. On this record, Prudential may also have been responsible for allowing corrosion to build up in the circuits due to water exposure. Finally, the jury could well infer from this record that the alleged accident was caused by defects in the elevator equipment that were due to Prudential’s failure to inspect and/or to properly supervise the repair of the elevator. From the foregoing evidence, the jury could infer from the record that Prudential was negligent in failing to conduct inspections, to maintain the elevators according to the standard of care it owed its passengers, and to monitor the elevator’s operation in a safe manner. Gilbert, 327 A.2d 94; McGowan, 420 A.2d at 519. The evidence permitted a legitimate inference under Pennsylvania law that Prudential’s failure to properly maintain the elevator may have been a “substantial factor” in causing plaintiff Michael’s injury. See generally, Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280, 1284-85 (1978); Halsband v. Union Nat. Bank of Pittsburgh, 318 Pa.Super. 597, 465 A.2d 1014, 1018 n. 3 (1983). Thus, it was error to grant Prudential’s motion for a directed verdict. CONCLUSION The judgment of the district court in Armor’s case will be affirmed. The judgment of the district court in Prudential’s favor will be reversed and the matter remanded for a new trial. The district court’s order dismissing Prudential’s cross-claims against Armor will be vacated and the claim remanded for an appropriate resolution. . We do not know why the sidebar ruling was apparently not captured by the audio tracking system as required by the Electronic Sound Recording Operator's Manual 6.2. . The trial court also dismissed Prudential’s cross-claim against its co-defendant, Armor Elevator Co. . We need not decide whether a motion for a new trial under Fed.R.Civ.P. 59 was available to plaintiffs where their claim against Prudential had been dismissed by a directed verdict. . We do not decide, however, whether the negligence of an independent elevator service contractor is attributable to the owner of the building. . The building owner in Camey did not appeal the verdict of liability after the jury determined that it was 10% at fault. 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_r_fed	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. LOUISIANA CONSUMER’S LEAGUE, INC., et al., Plaintiffs-Appellants, v. LOUISIANA STATE BOARD OF OPTOMETRY EXAMINERS, consisting of President, G. Anthony Lemoine, et al., Defendants-Appellees. No. 76-4471. United States Court of Appeals, Fifth Circuit. Aug. 12, 1977. David A. Marcello, La. Center for the Public Interest, Philip S. Derfler, Robert M. Hearin, Jr., New Orleans, La., for plaintiff s-appellants. William J. Wegmann, Sr., William J. Wegmann, Jr., Felicien P. Lozes, New Orleans, La., for defendants-appellees. Before GOLDBERG and FAY, Circuit Judges, and DUMBAULD, District Judge. District Judge of the Western District of Pennsylvania sitting by designation. PER CURIAM: By this action plaintiffs seek to enjoin the enforcement of La.Rev.Stat.Ann. §§ 37:1063(9), 37:1065 (West 1974), insofar as those statutes prohibit the price advertising of prescription eyeglasses, lenses, or the frames or fittings thereof. Plaintiffs contended below that this prohibition operates in derogation of their first amendment right to receive information, as delineated in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346, (1976). Following an evidentiary hearing, the district court denied plaintiffs’ request for a preliminary injunction. Pursuant to 28 U.S.C. § 1292(a)(1), they have appealed that decision. To be entitled to a preliminary injunction, a movant must establish the following four prerequisites: (1) a substantial likelihood that the movant will eventually prevail on the merits; (2) that the movant will suffer irreparable injury unless the injunction issues; (3) that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opponent; and (4) that the injunction would not be adverse to the public interest. See State of Texas v. Seatrain International, S.A., 518 F.2d 175 (5th Cir. 1975). This court’s review of the district judge’s determination whether a movant has carried this burden is limited in scope: The grant or denial of a preliminary injunctive order lies within the discretion of the district court, reviewable in this court only for abuse. In re Fontainebleau Hotel Corp., 508 F.2d 1056, 1060 (5th Cir. 1975) (quoting various formulations of the “abuse of discretion” standard). See also, Morgan v. Fletcher, 518 F.2d 236, 239 (5th Cir. 1975); Texas v. Seatrain International, S.A., 518 F.2d 175, 179 (5th Cir. 1975); Hawkins v. Coleman, 475 F.2d 1278, 1279 (5th Cir. 1973); Johnson v. Radford, 449 F.2d 115, 116 (5th Cir. 1971). Ruiz v. Estelle, 550 F.2d 238, 239 (5th Cir. 1977). In the case at bar the trial judge denied preliminary relief upon his conclusion that plaintiffs had failed to demonstrate both sufficient likelihood of success on the merits and irreparable injury. The limited scope of appellate review notwithstanding, a most recent pronouncement from the Supreme Court makes plain that the district court’s conclusion, however reasonable at the time, rests on legal propositions that can no longer be maintained. Under Bates v. State Bar of Arizona,-U.S. -, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), the showing made by plaintiffs at the preliminary injunction hearing, unless rebutted by defendants, must now be seen as sufficient to compel a grant of the requested relief. The district court’s denial of relief at the conclusion of plaintiff’s presentation precluded defendants from offering any contrary evidence. Accordingly, the denial of a preliminary injunction must be vacated and the case remanded to provide defendants the opportunity to make an evidentiary presentation or, alternatively, for entry of an appropriate injunction. Virginia Citizens Consumer Council, Inc., supra, held that the first amendment protected truthful price advertising in connection with the sale of prescription drugs. In finding an inadequate demonstration of likely success on the merits in the case at bar, the district court relied on the Supreme Court’s caveat that it had spoken only with regard to the pharmaceutical profession and had left open to further consideration the significance of varying characteristics of other professions-. See 96 S.Ct. at 1831 n.25. Bates, supra, makes untenable the restrictive interpretation of Virginia Citizens Consumer Council, Inc. relied on below. In Bates the Supreme Court held that governments may not consistent with the first amendment prohibit lawyers from truthfully advertising the prices of “routine legal services.” See-U.S. at-, 97 S.Ct. 2691. The court included within “routine legal services” such matters as uncontested divorces and adoptions, simple personal bankruptcies, and changes of name. See id. at-,---, 97 S.Ct. 2691. The court determined that price advertising of such services served important individual and social interests. See id. at -, 97 S.Ct. 2691. It rejected numerous purported justifications of the ban on such advertising, including claims that the prohibition is necessary to the spirit of professionalism, that such advertising is inevitably misleading due to an inherent lack of standardization in legal services, that the ban eliminates an incentive to cut the quality of services, and that the difficulties of enforcing narrower regulations require a total ban. Moreover, the court rejected, as irrelevant to the first amendment, claims relating to the economic consequences of lifting the ban. See id. at -, -, -, -, 97 S.Ct. 2691. The only services at issue before this court are those involved in filling a prescription for eyeglasses. The as yet unchallenged expert testimony describes that process as one of mechanical tasks and choices no less routine than the judgment required in processing an uncontested divorce or a simple personal bankruptcy. Under Bates, plaintiffs need only demonstrate that, like these legal services, the filling of a prescription for eyeglasses is not “so unique that fixed rates cannot meaningfully be established” at-, 97 S.Ct. at 2703. Plaintiffs’ initial showing constituted such a demonstration. Unless evidence presented by defendants supports a conclusion that plaintiffs have failed to carry their burden of persuasion in this regard, the instant case is the very rare one in which the plaintiffs have established to a certainty the likelihood of success on the merits. That plaintiffs have sufficiently shown irreparable injury is also now apparent. On their unrebutted evidence, plaintiffs have demonstrated that, absent the challenged statutes, they would presently be receiving constitutionally protected price information on a subject bearing a significant relationship to their health. Denial of a preliminary injunction in this case cannot be predicated on any purported lack of irreparable injury. In short, viewing the record of the preliminary injunction hearing in light of Bates, we must conclude that this is the rare case in which a district court has no choice but to grant relief. At that hearing, however, the defendants had no opportunity to present evidence on their own behalf. However difficult it may be to demonstrate that plaintiffs are not entitled to a preliminary injunction under Bates, defendants are entitled to the opportunity to try. Defendants may attempt to discredit plaintiffs’ description of the process of filling eyeglasses prescriptions. We note that unless that attempt enables the district court to conclude, which it now cannot, that plaintiffs have failed to establish that the services in question are no less routine than such legal services as processing an uncontested divorce or a simple personal bankruptcy, the certainty of plaintiffs’ ultimate success on the merits will remain absolute. As long as the outcome continues to be thus clear, terminating the litigation should require little time or difficulty, and any claim by defendants of harm during the pendency of the litigation must be viewed accordingly. We have no cause to comment on the proper course should the district court conclude that filling an individual prescription for eyeglasses is a process “so unique that fixed rates cannot meaningfully be established.” Bates, at-, 97 S.Ct. at 2703. We note only that the present record is directly to the contrary. Accordingly, the order denying a preliminary injunction is VACATED and the case REMANDED for further proceedings consistent with this opinion. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
sc_decisiontype	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion. NAGELBERG v. UNITED STATES. No. 785. Decided May 25, 1964. Irwin Klein for petitioner. Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Robert G. Maysack for the United States. Per Curiam. On April 11, 1962, petitioner pleaded not guilty to federal narcotics charges; thereafter, on July 18, 1962, he was permitted to withdraw this plea and plead guilty; in November 1962, when the case came on for sentencing, he moved to withdraw his guilty plea because of facts and circumstances which had changed since the time of the plea, including petitioner’s extensive cooperation with the Government. The Government acquiesced in this motion, but the district judge denied it, holding that he had no power to permit withdrawal of the plea on such grounds. The court sentenced petitioner to the minimum statutory term of imprisonment and the Court of Appeals affirmed the conviction, 323 F. 2d 936. The Government now says that it consented to petitioner’s motion to withdraw his plea because it “planned to dismiss the pending indictment against petitioner and substitute lesser charges.” The Government admits that this purpose was not expressly stated and that “it may be that the court was misled.” In these circumstances, we believe that the court has discretion to permit withdrawal of the plea. See Kercheval v. United States, 274 U. S. 220, 224 (1927). Accordingly, we grant the petition for certiorari, vacate the judgment of the Court of Appeals and remand the case to the District Court for further proceedings in conformity with this opinion. Question: What type of decision did the court make? A. opinion of the court (orally argued) B. per curiam (no oral argument) C. decrees D. equally divided vote E. per curiam (orally argued) F. judgment of the Court (orally argued) G. seriatim Answer:
songer_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". DENKER v. MID-CONTINENT PETROLEUM CORPORATION. No. 499. Circuit Court of Appeals, Tenth Circuit. March 1, 1932. Harry O. Glasser, of Enid, Okl., for appellant. R. H. Wills, of Tulsa, Okl. (J. C. Denton, J. H. Crocker, I. L. Lockewitz, and J. P. Greve, all of Tulsa, Okl., on, the brief), for appellee. Before LEWIS and PHILLIPS, Circuit Judges, and KENNAMER, District Judge. PHILLIPS, Circuit Judge. Burchard Denker brought this suit against the Mid-Continent Petroleum Corporation to cancel an oil and gas lease on 166 acres of land entered into between Denker and Bina Denker, his wife, and Joe K. Barker on February 24, 1916. Such lease passed through assignments to the Petroleum Corporation, the present owner thereof. The habendum clause of the lease reads as follows: “It is agreed that this lease shall remain in force for a term of five years from this date, and as long thereafter as oil or gas, or either of them, is produced from said land by the lessee.” The complaint alleged that the Petroleum Corporation’s assignors drilled eight wells on such land between December 7, 1918, and July 23, 1921, and that all of such wells produced oil in paying quantities; that the Petroleum Corporation had failed to drill wells to offset certain wells drilled on adjoining land; that no wells had been-drilled on the lease since July 23, 1921; that no inside locations had been drilled; that the Petroleum Corporation had breached its implied covenants to drill offset wells and to diligently develop the lease; and that none of the wells drilled were then producing oil or gas in paying quantities. It prayed for cancellation of the lease as to that portion of the land which the Petroleum Corporation -had failed to diligently develop. The evidence established the following facts: The Petroleum Corporation’s predecessors in title drilled eight wells along the east and south lines of the lease. The first well was completed on February 20, 1919, and the last on December 21, 1921. At the time of the trial below, one of such wells was producing three barrels a day, six were producing one-half barrel each, and one was not producing oil in substantial quantities. Up to November 30, 1930, forty days prior to the trial, the Petroleum Corporation and its predecessors in title had expended $341,202.25 in the development of such lease, and had received $425,380.03 from the sale of oil, gas, and other products, and had therefore realized a net profit of $84,677.78. Denker sold and repurchased the land after making the lease. Up to November 30, 1930, he and his successors in title had received $56,548.04 in royalties. Of the wells not offset, Wishard well No. 15 had an initial production of fifty barrels and the others did not produce oil in paying quantities. Well No. 15 was drilled to a depth of 2,278 feet at a cost of approximately $25,000. The production from this well was wholly insufficient to justify the cost of drilling an offset well. The wells drilled along the south and east lines of the lease adequately protected it from drainage. The lease was on the edge of the structure. The heavier production was to the south and east of the lease. Dry wells had been drilled to the north and west thereof, and the sands dipped sharply to the northwest. Wells drilled on the remainder of the lease would probably have resulted in either dry holes or lighter production, and it would have been imprudent to drill them under existing conditions. The Petroleum Corporation was ready, able, and willing to drill .additional wells if a change in conditions made it prudent so to do. At the time of the trial, the daily production on the lease was not equal to the cost of operation, and the lease was being operated by the Petroleum Corporation at a slight loss. Such loss will continue until there is either an increase in the price of oil or in production. New methods being developed will probably increase production. In order to comply with the implied covenants of a lease to drill offset wells and to diligently develop the lease, a lessee must do that which, under the circumstances, an operator of ordinary prudence, having regard to the interests of both lessor and lessee, would do. Brewster v. Lanyon Zinc Co. (C. C. A. 8) 140 F. 801; Pelham Petroleum Co. v. North, 78 Okl. 39, 188 P. 1069, 1072; Goodwin v. Standard Oil Co. (C. C. A. 8) 290 F. 92; Humphreys Oil Co. v. Tatum (C. C. A. 5) 26 F.(2d) 882; Orr v. Comar Oil Co. (C. C. A. 10) 46 F.(2d) 59, 63; 40 C. J. p. 1067, § 684. The trial court found, and the evidence fully justified the finding that, tested by the above standard, the Petroleum Corporation had complied with such covenants. There is nothing in the evidence to show that the Petroleum Corporation has abandoned the lease, and the trial court found that it had not. One question remains: Has the lease expired by its terms because oil is not now being produced therefrom in paying quantities ? In Gypsy Oil Co. v. Marsh, 121 Okl. 135, 248 P. 329, 330, 48 A. L. R. 876, and in Parks v. Sinai Oil Co., 83 Okl. 295, 201 P. 517, the court held that the word “produced” in the habendum clause of an oil and gas lease means “produced in paying quantities.” There is respectable authority to the contrary. Thornton on Oil and Gas, § 150; Gillespie v. Ohio Oil Co., 260 Ill. 169, 102 N. E. 1043; McGraw Oil & Gas Co. v. Kennedy, 65 W. Va. 595, 64 S. E. 1027, 28 L. R. A. (N. S.) 959; South Penn Oil Co. v. Snodgrass, 71 W. Va. 438, 76 S. E. 961, 43 L. R. A. (N. S.) 848. The authorities last cited hold that where the word “produced” only is used, the lease continues as long as oil is produced in substantial quantities, regardless of the question of profit. Gypsy Oil Co. v. Marsh, supra, and Parks v. Oil Co., supra, were decided after the lease in the instant case was entered into, and for that reason are not controlling, but persuasive only. However we find it unnecessary to decide this controverted question. We will assume, without deciding, that “in paying quantities” was implied. When an oil and gas lease is for a specified term and as long thereafter as oil and gas is produced therefrom in “paying quantities,” oil is produced in paying quantities within the meaning of the lease as long as the returns from a well drilled in accordance with the lease exceed the cost of operation after completion, although the well may never repay the drilling costs, and the operation as a whole may result in a loss. Aycock v. Paraffine Oil Co. (Tex. Civ. App.) 210 S. W. 851; Lowther Oil Co. v. Miller-Sibley Oil Co., 53 W. Va. 501, 44 S. E. 433, 97 Am. St. Rep. 1027; Young v. Forest Oil Co., 194 Pa. 243, 45 A. 121; Gypsy Oil Co. v. Marsh, supra; Barbour, Stedman & Co. v. Tompkins, 81 W. Va. 116, 93 S. E. 1038, L. R. A. 1918B, 365. Furthermore such phrase is to be construed from the standpoint of the lessee, and by his judgment if exercised in good faith. Gypsy Oil Co. v. Marsh, supra; Aycock v. Oil Co., supra; Lowther Oil Co. v. Miller etc., supra; Barbour, Stedman & Co. v. Tompkins; supra; Young v. Oil Co., supra. Ever since the commencement of this action the oil industry has been and still is passing through a period of depression and many oil producing operations, due to the low price of crude oil, are being carried on at a loss, which under normal conditions would result in profit. We are of the opinion that the parties, when they used such phrase, contemplate-d normal conditions and not the unusual conditions to which we have referred, and intended that the question of whether the requirements thereof were being met should be determined in the light of such normal conditions ; and that if the wells would produce a profit over operating expenses under normal conditions and the Petroleum Corporation is willing to continue to operate them at a loss believing in good faith that normal conditions will return and the wells will ultimately produce a profit over operating expenses, it cannot be said that the wells are not producing oil in paying quantities within the meaning of the lease. One of the wells on this lease is producing three barrels a day. Such wells usually continue to produce for a long period of time. It is common knowledge that three-barrel wells under normal conditions can be operated at a profit. It is our conclusion therefore that the lease has not terminated by reason of failure to produce oil from the leased premises. The decree is 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:
songer_usc1sect	110	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 11. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". George R. DESMOND, Trustee, Plaintiff, Appellant, v. Marilyn J. MOFFIE, Defendant, Appellee. No. 6839. United States Court of Appeals First Circuit. April 13, 1967. George R. Desmond, Framingham, Mass., for appellant. Leonard M. Salter, Boston, Mass., for appellee. Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges. McENTEE, Circuit Judge. In this action plaintiff trustee in bankruptcy seeks to set aside as fraudulent a conveyance of certain Massachusetts real estate made by the bankrupt to his wife in January 1962. The suit, which was commenced on August 22, 1966, is based on Section 70(e) of the Bankruptcy Act. Under this section a trustee in bankruptcy stands in the shoes of a creditor who has a provable claim and may set aside any transfer of property by the bankrupt which is fraudulent or voidable under applicable state law. Plaintiff alleged facts which would render the conveyance in question voidable under the Massachusetts Uniform Fraudulent Conveyance Law. Mass.Gen. Laws ch. 109A (1932). Defendant countered with a motion for summary judgment on the ground that this is an action sounding in tort and therefore is barred by the two year statute of limitations applicable to suits on tort claims. Mass. Ann.Laws ch. 260, § 2A (1952). The district court granted defendant’s motion. On appeal, plaintiff contends that his suit is not barred because it is founded on contract and hence is governed by the six year limitation applicable to contract actions. Mass.Gen. Laws ch. 260, § 2 (1932). This is the only issue raised by this appeal. In Massachusetts the statutes of limitation applicable to law actions based on contract and tort are also applicable to suits in equity. Kagan v. Levenson, 334 Mass. 100, 134 N.E.2d 415, 62 A.L.R.2d 704 (1956). In deciding which statute applies in a given ease, it is necessary to determine the essential nature of plaintiff’s claim. Kagan v. Levenson, supra. In Blumenthal v. Blumenthal, 303 Mass. 275, 21 N.E.2d 244 (1939), the court held that the essential basis of the statutory proceeding to set aside a fraudulent conveyance is an indebtedness that could ordinarily be enforced in an action of contract, and that the nature of the claim is in no way changed by the form of procedure. Accord, State of Rio De Janeiro v. E. H. Rollins & Sons, 299 N.Y. 363, 87 N.E.2d 299, 14 A.L.R.2d 594 (1949); see Salvucci v. Sheehan, 349 Mass. 659, 212 N.E.2d 243 (1965) ; cf. Viera v. Menino, 322 Mass. 165, 76 N.E.2d 177, 179 (1947). Accordingly, since this claim is based on contract rather than tort, it follows that the two year statute of limitations is not applicable here and plaintiff’s suit is not barred. Judgment will be entered vacating the judgment of the district court and remanding the case for further proceedings not inconsistent with this opinion. . The petition in bankruptcy was filed on June 6, 1966 and plaintiff was appointed trustee on June 29, 1966. . 11 U.S.C. § 110(e) (1). 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 11? Answer with a number. Answer:
songer_direct1	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for 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. ITT LAMP DIVISION of the INTERNATIONAL TELEPHONE AND TELEGRAPH CORPORATION, Plaintiff, Appellant, v. Stephen A. MINTER, Commissioner of the Massachusetts Department of Public Welfare, Defendant, Appellee. MAURICE CONCRETE PRODUCTS, INC., Plaintiff, Appellant, v. Stephen A. MINTER, Commissioner of the Massachusetts Department of Public Welfare, Defendant, Appellee. Nos. 7720, 7749. United States Court of Appeals, First Circuit. Dec. 14, 1970. See also D.C., 318 F.Supp. 364. Jerome H. Somers, Boston, Mass., with whom Louis Chandler, Stoneman & Chandler, Boston, Mass., Matthew E. Murray, Andrew M. Kramer,. and Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., were on the brief, for appellants. William E. Searson, III, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., was on the brief, for appellee. Before ALDRICH, Chief Judge, McENTREE and COFFIN, Circuit Judges. COFFIN, Circuit Judge. These two cases, combined for purposes of appeal, present the question whether the defendant Commissioner of the Massachusetts Department of Public Welfare is wrongfully intruding in a labor dispute by making available welfare benefits to strikers who otherwise qualify under Massachusetts statutes providing for General Welfare and Aid to Families with Dependent Children, Mass.G.L. cc. 117 and 118. Plaintiffs claim that such state action alters the relative economic strength of the parties, thus entering a field preempted by the national policy guaranteeing free collective bargaining, in violation of the Supremacy Clause of the Constitution. Plaintiffs’ motions for injunctive relief were denied, the district court finding no evidence of irreparable injury and no reasonable probability of success on the merits. Although the strike against ITT was subsequently settled, the issue, we know from our own experience, has earlier vainly sought appellate review in this circuit and is likely again to be raised, bringing it close to the “recurring question” category, where significant public rights are involved and court review ought not, if possible, be avoided. See So. Pac. Terminal Co. v. I.C.C., 219 U.S. 498, 515-516, 31 S.Ct. 279, 55 L.Ed. 310 (1911) and Marchand v. Director, U. S. Probation Office, 421 F.2d 331 (1st Cir.1970). In any event, however, the appeal of Maurice Concrete presents the identical question. Plaintiffs have not contended in their brief that the district court erred in finding that there was “no evidence to show to what extent the receipt of welfare payments will affect the continuation of the strike” but have based their claim of irreparable injury on the alleged interference with collective bargaining constituted by the present and prospective payments of welfare benefits. Since at least one of the appeals presents a case where a substantial number of strikers might possibly have qualified for welfare, we prefer to accept plaintiffs’ assumption that the issue of irreparable harm merges into and becomes indistinguishable from the issue of probable success on the merits. That is to say that if indeed it is probable that the present and prospective provision of welfare to indigent strikers would be held to frustrate the collective bargaining process, it is equally probable that irreparable injury would be suffered. We therefore move to the question whether plaintiffs have demonstrated sufficient probability of prevailing on the merits. Automatic Radio Mfg. Co. v. Ford Motor Co., 390 F.2d 113, 115-116 (1st Cir.), cert. denied, 391 U.S. 914, 88 S.Ct. 1807, 20 L.Ed.2d 653 (1968). So far as our research indicates, this is the first occasion on which a federal court has considered a confrontation between the national policy of free collective bargaining and the administration of a state’s welfare laws. For nearly four decades the preemptive sweep of this national policy has, from Allen-Bradley Local 1111, UEW v. Wisconsin Emp. Rel. Bd., 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154 (1942) to Local 100, United Association of Journeymen & Apprentices v. Borden, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638 (1963), been interpreted by the Supreme Court in the context of real or potential conflict between federal and state tribunals in deciding issues arising out of activities protected or proscribed by sections 7 and 8 of the National Labor Relations Act, 29 U.S.C. §§ 157; 158, with occasional favorable consideration bestowed on state law invoked to prevent or compensate for acts of violence or for verbal excesses. All of the commentaries that have come to our attention have carried on the labor policy preemption debate in terms of these lines of cases with no mention of the problem posed by these appeals. While we do not know how long the challenged application of the Massachusetts Welfare Laws has existed, we know that New York has so administered its laws for eighteen years, Lascaris v. Wyman, 61 Misc.2d 212, 305 N.Y.S.2d 212, 216 (1969), and Illinois for twenty years, Strat-O-Seal Mfg. Co. v. Scott, 72 Ill.App.2d 480, 218 N.E.2d 227 (1966). This vacuum of case and comment on the issue at hand, while perhaps to be explained by the mooting of cases by strike settlements before the issue is reached, makes us pause before declaring probable the preemptive bar of federal labor policy as applied to the his-' toric state preserve of welfare. The very novelty of the issue posed by the appeals places it outside of the focus of San Diego Building Trades v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1958), its ancestors and progeny. For Garmon, a deliberate effort by the Court to clarify standards relating to preemption in the labor-management field, was concerned with the specific subject matter of sections 7 and 8 of the National Labor Relations Act, 29 U.S.C. §§ 157, 158 — the protection of concerted activities and the proscription of unfair labor practices — both responsibilities having been vested in a single tribunal, the National Labor Relations Board. The bar against state action in Garmon, therefore, covers state regulation of conduct or activities which are clearly or arguably “within the compass” of sections 7 and 8 and therefore within the sole jurisdiction of the Board. Garmon, supra at 245, 79 S.Ct. 773. The administration of state welfare programs so as to render eligible individual strikers who otherwise qualify does not even arguably fall within the zone delineated in Garmon. What we therefore confront is the question of applying the Supremacy Clause to a non -Garmon situation, where the asserted conflict is not an invasion by the state into an area of conduct regulated by a national instrumentality but a tangential frustration of the national policy objective of unfettered collective bargaining by state economic sustenance of some of the individuals who participate in federally protected, concerted activity. In such a situation, a balancing process seems called for under the general approach to preemption followed by the Supreme Court, in which both the degree of conflict and the relative importance of the federal and state interests are assessed. Note, Federal Preemption: Governmental Interests and the Role of the Supreme Court, Duke L.J. 484, 510, 511 (1966). Where Congress has not clearly manifested its purpose to exclude state action which takes the form of exercise of its historic police powers, such state action will not be invalidated under the Supremacy Clause, “in the absence of persuasive reasons”, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), or unless the administration of the state law “palpably infringes” upon the federal policy. Southern Pac. Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 766, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945). See also Head v. New Mexico Bd. of Examiners, 374 U.S. 424, 83 S.Ct. 1759, 10 L.Ed.2d 983 (1963); Buck v. California, 343 U.S. 99, 72 S.Ct. 502, 96 L.Ed. 775 (1952). On neither count — the issue of extent of conflict or the relative strength of the federal and state interests — would we feel confident in any a priori judgment. A court would first have to determine the quantum of impact on collective bargaining stemming from the granting of welfare benefits' to strikers. If this is found substantial a court would then have to weigh the impact on the state of declaring needy strikers and their families ineligible for welfare against the extent to which making them eligible stripped state government of its neutrality in a labor-management dispute. Such weighing exércises could not be restricted to an ad hoe exploration of the microcosm of these particular disputes. A court must deal with “classes of situations” and not “judgments on the impact of * * * ' particular conflicts on the entire scheme of federal labor policy and administration”, Garmon, supra, 359 U.S. at 242, 79 S.Ct. at 778. Under such an approach, a court would be interested in how many states permit strikers to receive welfare; whether or not strikes tend to be of longer duration where welfare is received; any studies or expert testimony evaluating the impact of eligibility for benefits on the strikers’ resolve; a comparison between strike benefits and welfare benefits; the impact of the requirement that welfare recipients accept suitable employment; how many strikers actually do receive welfare benefits; and a host of other factors. In addition, the state’s legitimate interests must also be considered: its interests in minimizing hardship to families of strikers who have no other resources than the weekly pay check, its concern in avoiding conditions that could lead to violence, its interest in forestalling economic stagnation in local communities, etc. This very catalogue of data relevant to a macrocosmie weighing, which a court, if called upon would have to undertake, indicates the preferable forum to be the Congress. Congress would be particularly appropriate in resolving this issue. The activity allegedly intruding into federal labor policy is not solely a state activity but rather a joint state-federal program. Congress has established the minimal requirements with which participating state welfare plans must comply. 42 U.S.C. § 602, et seq. We do not attribute heavy weight to Congressional silence, but we would doubt that, if striker eligibility for welfare had a significant impact on labor-management relations, Congress would be unaware of that impact. Moreover, if the issue proves to be finely balanced, after weighing all the evidence, it may be a sufficient justification for upholding the state action that Congress is always free to provide specifically for preemption. See Penn Dairies v. Milk Control Comm., 318 U.S. 261, 275, 63 S.Ct. 617, 87 L.Ed. 748 (1943). In sum, wholly apart from the inadequacy of the evidence before the district court, we have substantial doubt that a significant frustration of federal collective bargaining policy is effected by the granting of welfare benefits to indigent strikers or that, even so, the state interest is so insubstantial compared to the federal interest that Congress must be supposed to have deprived the state of such power to serve that interest. We accordingly hold that the district court did not err in concluding that plaintiffs’ case did not have a sufficient probability of prevailing on the merits. There remains for our consideration plaintiffs’ contention that the granting of welfare benefits to strikers violates the provisions of the Massachusetts Welfare Statutes and its federal counterpart, in that strikers, having voluntarily left their jobs, are persons who have “without good cause * * * refused a bona fide offer of employment. * * ” 42 U.S.C. § 607(b) (l). Plaintiffs tend in their argument to assume the very point in issue by equating a refusal to work with “fault” and absence of “good cause”. But this is no less circular or more persuasive than the contrary assumption of the defendant, accepted by the district court, that exercising one’s federally protected right to strike constitutes “good cause” to refuse employment. And the federal scheme, as plaintiffs’ reference to the Senate Finance Committee’s Report makes clear, allows the state, without of course deciding the merits of a particular controversy, to make the determination of what is covered by “good cause”, and what constitutes a “bona fide” offer of employment. Senate Committee on Finance, Rep.No. 165, 87th Cong., 1st Sess. p. 3 (1961), U.S.Code Cong. & Admin.News, pp. 1716, 1718. The fact that the Massachusetts legislature has specifically made unemployment compensation unavailable to workers on strike, Mass.G.L. c. 151A, § 25, does not cast doubt on the Commissioner’s determination. We observe first that welfare programs, supplying unmet subsistence needs to families without time limitation, address a more basic social need than does unemployment compensation, which attempts to cushion the shock of seasonal, cyclical, or technological unemployment by making available time limited benefits to individual workers, varying in relation to their prior earnings and without reference to demonstrated need. Secondly, we would not lightly expand the legislature’s expressed negative in one piece of legislation to constitute an unexpressed proviso in another. Indeed silence on an issue where a legislature has shown its capacity to speak is all the more significant. Plaintiffs’ further reference to the legislative history behind the federal enactment is not particularly helpful. The passages they quote do support the proposition, which the court accepts, that welfare programs were not designed to aid those who do not seek employment. But strikers who receive benefits fully conform to this legislative intention, since, as we noted above, all recipients, strikers included, must register and accept available alternate work under Mass.G.L. c. 117, § IB. Furthermore, the legislative history neither states, nor can be read to imply that strikers, as a group, are to be held ineligible for welfare benefits if they meet all qualifications set by the state. In sum, therefore, we cannot say, as a matter of probability, that the Commissioner’s administrative determination of striker eligibility for welfare is precluded by the relevant state or federal statutes. Affirmed. . Brought separately by the ITT Lamp Division of the International Telephone and Telegraph Corporation and Maurice Concrete Products, Inc. . The action of the court, though in response to a motion for temporary restraining order, was taken after a full presentation by both parties, Austin v. Altman, 332 F.2d 273, 275 (2d Cir. 1964), and had the effect of a denial of an injunction, see United States v. Cities Service Co., 410 F.2d 662, 663 n. 1 (1st Cir. 1969), and is therefore appealable. . If plaintiffs’ approach is not correct, they, in any case, have surely not established irreparable injury. Our record is almost bereft of any indication of significant impact on either plaintiff. In the ITT case, apparently 175 or about 25% of 660 striking employees had applied for welfare. In the Maurice Concrete ease we have only the contrary assertions of counsel at argument that (1) a majority of 25 workers were receiving welfare and (2) only one worker was on welfare, and he because he was hit by a truck. There is no evidence of any relationship between the availability of welfare benefits to present or prospective striker recipients and the likelihood of prolongation of either strike. . Of the same genus was our own case, General Electric Co. v. Callahan, 294 F.2d 60 (1st Cir. 1961), appeal dismissed, 369 U.S. 832, 82 S.Ct. 851, 7 L.Ed.2d 840 (1962), in which state legislation authorized a state tribunal to investigate a labor dispute and publicly report its findings as to the blameworthiness of the parties. . United Construction Workers v. Laburnum, 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025 (1954) ; International Union, UAW v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.E'd.2d 1030 (1958). . Linn v. United Plant Guard Workers Local 114, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966). . See, e. g., Labor Decisions of the Supreme Court at the October Term, 1957, 44 Va.L.Rev. 1057 (1958) ; Wellington, Labor and the Federal System, 26 U. of Chic.L.Rev. 542 (1959) ; Michelman, State Power to Govern Concerted Employee Activities, 74 Harv.L.Rev. 641 (1962) ; Meltzer, The Supreme Court, Congress and State Jurisdiction over Labor Relations, 59 Col.L.Rev. 6 (1959); Note, Preemption of State Labor Regulations Collaterally in Conflict with the National Labor Relations Act, 37 Geo. Wash.L.Rev. 132 (1968) ; Note, Federal Preemption in Labor Relations, 63 Northwestern L.Rev. 128 (1968). . Garmon itself applies, within its area, the general approach, recognizing that on any issue of arguable conflict with sections 7 and 8, state action would nevertheless be tolerated where “the activity regulated [is] a merely peripheral concern of the Labor Management Relations Act”, 359 U.S. at 243, 79 S.Ct. at 779 “[o]r where the regulated conduct touche [s] interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.” 359 U.S. at 244, 79 S.Ct. at 779. . We note that there may arise non-Garmon labor relations situations where the conflict between federal and state interests and their relative importance would be so clear as to render such an extended empirical exploration unnecessary. The Massachusetts Supreme Judicial Court considered such to be the case in John Hancock Life Ins. Co. v. Com’r. of Insurance, 349 Mass. 390, 208 N.E.2d 516 (1965). In that decision the court invalidated a state statute protecting insurance policy holders by declaring a moratorium on the obligation to prepay premiums during a strike and a 31-day period following its termination. The court found, on the one hand, that this law “tips the balance in favor of the [striking] agents in any labor dispute” with an insurance company, 349 Mass, at 403, 208 N.E.2d at 525, by depriving the employer of assets and actuarial data vital to its business, and by effectively frustrating the employer’s right to replace workers who have struck. Moreover, the statute denies to nonstriking agents their right to refrain from concerted activities. On the other hand, the court noted that the “harm sought to be averted by this exercise of the police power does not clearly appear.” 349 Mass, at 404, 208 N.E.2d at 525. . The complementary Massachusetts statute likewise renders a person ineligible if he “willfully fails without good cause, as determined by the [welfare] department, to maintain his registration for work * * or to accept a referral to or offer of suitable employment”, Mass.G.L. c. 117, § 1B. . The middle ground, qualifying for welfare on a case-by-case basis only those strikers who aro engaged in a “reasonable” strike, is almost unthinkable, necessarily requiring the Commissioner of Welfare to take sides in every labor dispute, an activity which we held impermissible in General Electric Co. v. Callahan, 294 F.2d 60 (1st Cir. 1961), appeal dismissed, 369 U.S. 832, 82 S.Ct. 851, 7 L.Ed.2d 840 (1962). Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_genresp1	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. Fielding M. McGEHEE, III, Appellant v. CENTRAL INTELLIGENCE AGENCY. No. 82-1096. United States Court of Appeals, District of Columbia Circuit. Argued Sept. 15, 1982. Decided Jan. 4, 1983. Katherine A. Meyer, Washington, D.C., with whom Alan B. Morrison, Washington, D.C., was on the brief, for appellant. John H.E. Bayly, Jr., Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence and Michael J. Ryan, Asst. U.S. Attys., and Emilio Jaksetic, Atty., C.I.A., Washington, D.C., were on the brief, for appellee. Before WRIGHT, EDWARDS and BORK, Circuit Judges. Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS. Separate opinion concurring and dissenting in part filed by Circuit Judge BORK. TABLE OP CONTENTS Page Introduction_____________________________ 1097 I. BACKGROUND _____ 1097 II. THE USE OP A TIME-OF-REQUEST CUT-OPP DATE......—......... 1100 A. Applicable Law_________________ 1100 B. The Legality of the Agency’s Rule Adopting A Time-of-Request Cut-off Date......... 1102 C. The Reasonableness of the Agency’s Procedure in This Instance________ 1103 Page III. THE REFERRAL PROCEDURE_____ 1105 A. “Agency Records” Covered by the Act.......................... 1105 B. Treatment of Documents Obtained From Other Agencies____________ 1109 IV. INVOCATION OP THE “INTELLIGENCE SOURCE” EXEMPTION.... 1112 CONCLUSION.............. ni4 HARRY T. EDWARDS, Circuit Judge: We are asked in this case to decide several questions concerning the scope of the duties imposed on government agencies by the Freedom of Information Act (“FOIA” or “the Act”). The District Court granted appellee’s motion for summary judgment on the theories that appellee had conducted a sufficiently thorough search for documents subject to disclosure and had released to appellant all of the materials required by the Act. In reaching these conclusions, the District Court upheld as reasonable an an-publicized Central Intelligence Agency (“CIA” or “the agency”) rule which had the effect of limiting the FOIA search to materials in the agency’s possession on the date when appellant made his initial request for documents. This “time-of-request cut-off” policy was approved by the trial court even though the agency failed to disclose any documents to appellant until compelled to do so by an order of the court almost two and one-half years after the original time of request. The District Court also granted appellee’s motion to dismiss from the lawsuit all records in the possession of the CIA that had been obtained from the State Department or the Federal Bureau of Investigation (“FBI”). Finally, the District Court relied solely on affidavits submitted by the CIA in upholding the nondisclosure of a number of disputed documents under FOIA exemptions (1) and (3). Because we conclude that the District Court’s rulings were founded upon misinterpretations of applicable legal standards, we reverse and remand for further proceedings. I. Background The outcome of this case turns substantially upon nuances in its facts. Accordingly, the procedural background to this appeal will be described at some length. Appellant McGehee is a free-lance journalist and a relative of three victims of the gruesome demise of the “People’s Temple” in Jonestown, Guyana. Many of the circumstances surrounding the Jonestown Tragedy are well known, indeed notorious. In November, 1978, Congressman Leo J. Ryan and a portion of his staff traveled to Guyana to investigate allegations of mistreatment of some of his constituents in the Jonestown religious community. On November 18, as they were about to board a plane to leave, Ryan, three representatives of the media, and one apparent defector from the community were shot and killed. Within hours, almost all of the more than 900 members of the Jonestown congregation, including its founder, Jim Jones, either committed suicide or were murdered. Despite the extensive attention given the Jonestown Tragedy, the character of the People’s Temple religious community, the events leading up to the catastrophe, and the manner in which so many people died remain somewhat mysterious. Proceeding on the assumption that the CIA possesses recorded information that sheds light on these matters, McGehee, on December 6, 1978, filed the FOIA request that gives rise to this controversy. McGehee initially asked for documents relating to several aspects of the development and fate of Jim Jones’ congregation. On December 22, at the suggestion of a representative of the agency, he narrowed his request to records pertaining to the “Peoples Temple.” The treatment accorded McGehee’s request during the following month is not entirely clear from the record. It appears that the agency’s Information and Privacy Division (“IPD”), the office that coordinates responses to requests for information, determined that two other divisions—the Directorate of Operations (“DO”) and the Office of Security (“OS”)—were the offices most likely to possess documents of the sort McGehee was seeking. Accordingly, those two divisions were “tasked”—i.e., asked to search for and identify relevant records. Each division apparently was instructed to confine its attention to documents received on or before December 22, 1978, the day McGehee’s request was finalized. Soon thereafter OS informed IPD that it had found no such materials. An initial search by DO, on the other hand, revealed the existence of responsive documents, but DO at this time appears not to have informed IPD of its findings. Nor does DO seem to have made any effort at this point to review or even to retrieve the identified documents. Meanwhile, IPD learned that a third division, the National Foreign Assessment Center/Office of Central Reference (“NFAC/OCR”), had completed a computer search in response to an earlier FOIA request very similar to McGehee’s (the “Douglas request”) and had identified relevant documents in the agency’s possession. However, no immediate effort was made to retrieve those documents either. Instead, McGehee’s request (which was marked with some kind of notation of the location of records that might prove responsive) was placed at the end of a “processing queue,” the CIA’s system for dealing with FOIA requests on a “first-in-first-out basis.” This initial flurry of activity had subsided by mid-January, 1979. Between that time and December, 1980, the agency did virtually nothing about McGehee’s request. Beginning in March, 1979, McGehee periodically contacted the CIA, either directly or through counsel, to ascertain the status of his request. The agency provided him with no information regarding the steps it had taken and gave him no definite indication of when any responsive documents would be released. Never did the agency inform McGehee that it had adopted December 22, 1978 as a “cutoff date” for its searches. On November 21, 1980, McGehee filed suit in the District Court seeking to compel the CIA to respond to his pleas. On March 3, 1981, the court set a deadline of May 5,1981, by which time the agency was to complete its processing of McGehee’s request, release all nonexempt responsive material, and submit a Vaughn index cataloging any withheld documents. Soon thereafter the court granted the agency’s motion for a protective order, shielding the CIA from discovery by McGehee. On May 5, in compliance with the court’s directive, the agency revealed (for the first time) that it possessed 84 documents responsive to McGehee’s request. It disposed of those materials as follows: 12 were released in full; 18 were released with substantial portions deleted; 26 were withheld; 28 were forwarded to other government agencies, from which the CIA had originally obtained them. The last set of records is one of the hubs of this controversy. It is undisputed that, of the 28 “other agency” documents, 27 had originated with the State Department and one with the FBI. In accordance with its standard procedure, the CIA declined to undertake any kind of substantive review of the “other agency” records and instead sent them to the agencies that first compiled them to enable those agencies to determine whether any material was exempt from disclosure. McGehee has not submitted a FOIA request to either the State Department or the FBI, insisting that the CIA is required by the Act to evaluate and release the documents in question. Nevertheless, the State Department has voluntarily reviewed the 27 records that it originally created and has released a majority of them to McGehee. The fate of the FBI document does not appear from the record. In the summer of 1981, McGehee accidentally learned, from a letter written by a representative of the CIA to a third party, that the agency had been treating the time of his original request as a cut-off date for its FOIA search. Moreover, comments made in that letter raised the possibility that the agency had limited its searches to files denominated “People’s Temple” and had not sought information under any closely related headings—e.g., the Reverend James Jones or Jonestown. See App. 191. On January 19,1982, despite these revelations, the District Court issued final judgment in the case. The court denied McGehee’s motion for an in camera inspection of the withheld and edited documents to test the basis for the agency’s refusal to release them, granted the CIA’s motion to dismiss from the lawsuit the documents it had obtained from the State Department and FBI, and granted the CIA’s motion for summary judgment as to the remainder of the suit. This appeal followed. II. The Use of a Time-of-Request Cut-off Date McGehee’s first challenge concerns the CIA’s decision to limit its search to records in its possession on the date when his request was finalized. He points out that the agency did not disclose any documents to him until compelled to do so by an order of the District Court almost two and one-half years after his original request. Under these circumstances, he argues, the agency failed to discharge its statutory obligation when it retrieved and released only documents that originated with and were in the possession of the CIA during the first month following the events to which his request principally related. A. Applicable Law We begin by reviewing the legal principles that govern McGehee’s claim. First, it is well established that the adequacy of an agency’s response to a FOIA request is measured by a standard of reasonableness. As this court recently noted: [A]n agency is not “ ‘required to reorganize its [files] in response to’ ” a demand for information, but it does have a firm statutory duty to make reasonable efforts to satisfy it. Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 837 (D.C.Cir.1979) (footnotes omitted) (emphasis added). This same standard of reasonableness that has been applied to test the thoroughness and comprehensiveness of agency search procedures is equally applicable to test the legality of an agency rule establishing a temporal limit to its search effort. In other words, a temporal limit pertaining to FOIA searches (such as the “time-of-request cut-off” policy that is at issue in this case) is only valid when the limitation is consistent with the agency’s duty to take reasonable steps to ferret out requested documents. Second, we hold that the agency bears the burden of establishing that any limitations on the search it undertakes in a particular case comport with its obligation to conduct a reasonably thorough investigation. It seems to us clear that the burden of persuasion on this matter is properly imposed on the agency. The Act explicitly assigns to the agency the burden of persuasion with regard to the closely related issue of the legitimacy of the agency’s invocation of a statutory exemption to justify withholding of material. Two considerations indicate that the same rule should govern the issue before us. One is that the information bearing upon the reasonableness of any temporal or other limitation on a search effort is within the agency’s exclusive control. The other is that the Act as a whole is clearly written so as to favor the disclosure of any documents not covered by one of the enumerated exemptions. Insofar as burdens of persuasion are generally assigned to parties advancing disfavored contentions, the agency should bear the responsibility of convincing the trier of fact that its less than comprehensive search is reasonable under the circumstances Third, the fact that the subject of this appeal is the grant of appellee’s motion for summary judgment means that the agency must satisfy a significant legal standard in order to carry its burden. The standard has been stated as follows: It is well settled in Freedom of Information Act cases as in any others that “[s]ummary judgment may be granted only if the moving party proves that no substantial and material facts are in dispute and that he is entitled to judgment as a matter of law.”... [Moreover, the] “ ‘inferences to be drawn from the underlying facts... must be viewed in the light most favorable to the party opposing the motion.’ ” Church of Scientology, 610 F.2d at 836 (footnotes omitted). Thus, for the CIA to have properly prevailed in the case at bar, it must have shown that no material fact relevant to the reasonableness of its use of a time-of-request cut-off date was in dispute and that the evidence established that the procedure employed was reasonable “as a matter of law.” In deciding whether the agency had made such a showing, the District Court was entitled to rely upon affidavits submitted by the agency, describing its search procedures and explaining why a more thorough investigation would have been unduly burdensome. Id. But such affidavits would suffice only if they were relatively detailed, nonconclusory and not impugned by evidence in the record of bad faith on the part of the agency. Id. B. The Legality of the Agency’s Rule Adopting A Time-of-Request Cut-off Date In light of the foregoing principles, we must now determine whether the District Court fairly could have concluded that the CIA’s decision to limit its search to documents in its possession as of the date of McGehee’s finalized request was consistent with its statutory obligations. The agency would have us decide this question from a generic standpoint; it argues that language in the FOIA and authoritative case law interpreting the statute establish that the use of a time-of-request cut-off date is always reasonable. However, we are convinced that none of the arguments advanced by the agency to support this sweeping claim survives scrutiny. The CIA first points to the statutory provision requiring that the materials sought by a FOIA request be “reasonably describe[d].” That provision pertains to the subject matter, location and form of materials sought by a request, not to the times at which responsive documents are acquired. The CIA next directs our attention to two cases holding that an agency has no duty continuously to update its responses to a FOIA request. The doctrine tentatively established by those decisions is inapposite. The question presented in this case is whether, when an agency first releases documents to a requester, it may use as a cut-off date the time of his original demand. That an agency has no obligation, after it has once responded fully to a FOIA request, “to ‘run what might amount to a loose-leaf service’ ” for the benefit of the applicant has little bearing on the issue before us. Finally, the CIA points to case law suggesting that one cannot modify a FOIA request in mid-litigation. Those decisions establish, at most, that a requester is not permitted to alter or refine the subjects to which he originally directed attention; they have nothing to do with the legality of the use of the time of a request as a temporal limit to a FOIA search. C. The Reasonableness of the Agency’s Procedure in This Instance Having concluded that neither the terms of the statute nor the case law interpreting them supports a claim that the use of a time-of-request cut-off date is always proper, we are compelled to turn to the particular facts of the case before us to assess the reasonableness of the agency’s conduct. MeGehee directs our attention to circumstances that, on their face, east considerable doubt on the merits of the agency’s procedure. The CIA took almost two and one-half years to respond to McGehee’s request. Yet, when it finally released documents, the CIA chose to limit itself to records that originated with and were possessed by the agency during the first 35 days following the Jonestown Tragedy. Were these facts all that appeared in the record, we would be very hard pressed to sustain the agency’s actions. The CIA attempts to dispel the skepticism to which the foregoing circumstances give rise by arguing that it would be exceedingly difficult to conduct its processing of FOIA requests on any other basis. In the affidavit of John Bacon submitted to the District Court, in its brief to this court, and in oral argument, the agency has consistently maintained that uniform use of a time-of-request cut-off date is essential to avoid an “administrative nightmare.” To support this claim, the agency points to the benefits of “precispon]” (the value of having a single cut-off date that all agency divisions know in advance), the “confusion” that might be engendered by different agency components using different cutoff dates (e.g., each division using the date at which it commenced searching for documents), the alleged cost and inconvenience to the agency of conducting the successive, duplicative searches that might be necessary if the date of a final response or the date of litigation were employed as a cutoff date, and the disruption of the agency’s fee schedules that would accompany the use of anything other than its present procedure. In the absence of more detailed substantiation, these claims strike us as either unpersuasive or irrelevant. Indeed, alternative procedures, without the flaws of the time-of-request cut-off policy and without any real potential for the administrative nightmares alleged by appellee, readily come to mind. The following procedure is an example: Sample Procedure Applying a Reasonable “Cut-off” Date to a FOIA Search Soon after the CIA first receives a request, IPD “tasks” divisions of the agency it considers likely to have access to responsive documents. Those divisions determine whether they have any such materials and so inform IPD. IPD then notifies the requester that the agency possesses some relevant documents and will process his request as soon as it has completed processing all requests it received earlier. When the request nears the head of the “queue,” IPD instructs each agency division that it thinks might possess relevant records to conduct, at that time, a thorough search for all responsive documents in its possession, to retrieve identified records forthwith, and to submit them to the central office for evaluation by persons able to determine whether any material is exempt. Substantive review follows promptly and all nonexempt material is released. We do not offer the foregoing Sample as a directive to the agency, a procedure with which it is henceforth bound to comply. Nor do we mean to endorse a procedure fraught with excessive time delays. In designing the system, we have taken for granted the fact that the CIA is experiencing inordinate delays in processing FOIA requests; a different procedure might be more suitable for an agency that responds to requests on a relatively current basis. In sum, we set forth the Sample Procedure merely to indicate that one can easily imagine a system that incorporates a cut-off date much later than the time of the original request, that results in a much fuller search and disclosure than the procedure presently used by the agency, that forecloses the necessity for an excessive number of supplementary demands (see note 42 infra), and that does not appear unduly burdensome, expensive, or productive of “administrative chaos.” It is possible that circumstances unknown to us or to the District Court do indeed render unfeasible any such alternative, more responsive procedure. If so, the agency’s argument that its present practice is “reasonable” would be powerful. We therefore remand this portion of the case with instructions to afford the agency an opportunity to adduce additional relevant testimony. It should be clear, however, that to prevail on this issue, the agency will have to do better than it has thus far. One additional aspect of this general problem merits brief attention. It would be extremely difficult for the CIA to convince us that it may “reasonably” use any cut-off date without so informing the requester. Such notification would involve an insignificant expenditure of time and effort on the part of the agency. And it would enable the requester to submit supplementary demands for information if he felt so inclined. Unless on remand some extraordinary showing is forthcoming of why the agency should not be required to inform requesters of the dates it is using, the CIA’s unpublicized temporal limitation of its searches should be held invalid. III. The Referral Procedure McGehee’s second allegation of error is that the District Court improperly granted the CIA’s motion to dismiss from the lawsuit the records it had obtained from the State Department and FBI. As was true with regard to the issue just discussed, the general principles governing McGehee’s claim are well known but their application to the specific question presented has never been resolved. A. “Agency Records” Covered by the Act The Supreme Court has recently clarified the conditions under which a federal court may compel an agency to release documents. In Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980), the Court held: The FOIA represents a carefully balanced scheme of public rights and agency obligations designed to foster greater access to agency records than existed prior to its enactment. That statutory scheme authorizes federal courts to ensure private access to requested materials when three requirements have been met. Under 5 U.S.C. § 552(a)(4)(B) federal jurisdiction is dependent upon a showing that an agency has (1) “improperly”; (2) “withheld”; (3) “agency records.” Judicial authority to devise remedies and enjoin agencies can only be invoked, under the jurisdictional grant conferred by § 552, if the agency has contravened all three components of this obligation. Id. at 150, 100 S.Ct. at 968. The CIA argues vigorously that the District Court’s decision in the instant case was proper under the third branch of this test. Records that are in the possession of the agency to which a FOIA request is submitted but that were originally compiled by another agency, the CIA insists, are not “agency records” within the meaning of the Act. So stated, the argument seems rather implausible, but this was indeed the theory on which the District Court rested its ruling. Evaluation of this argument proves surprisingly difficult because of the absence of statutory or precedential guidance. As has often been remarked, the Freedom of Information Act, for all its attention to the treatment of “agency records,” never defines that crucial phrase. A reading of the legislative history yields insignificant insight into Congress’ conception of the sorts of materials the Act covers. And we gain little by ransacking the case law interpreting the FOIA; no appellate court has expressed an opinion on the question of the legal status of documents prepared by one agency in the possession of another This and other courts have, on occasion, been called upon to decide whether other materials of ambiguous form or origin fall within the category of “agency records.” It is upon some of those decisions that the District Court and the CIA principally rely in justifying the position they take in the instant ease. Unfortunately, none of the cases in question is apposite. It has been held that, under certain circumstances, records in an agency’s possession that originated with Congress do not constitute “agency records” for the purpose of the FOIA. Likewise, materials prepared by or for the judiciary that eventually find their way into the hands of an agency eovered by the Act have been held to fall outside the crucial category. The same is true of documents prepared by the President or his personal staff. But two factors distinguish all of these cases from the situation before us. First, each of the departments of government listed above is itself exempt from the coverage of the FOIA. Second, special policy considerations militate against a rule compelling disclosure of records originating in these three bodies merely because such documents happen to come into the possession of an agency. Congress, we have held, should not be forced to abandon either its long-acknowledged right to keep its records secret or its ability to oversee the activities of federal agencies (a supervisory authority it exercises partly through exchanges of documents with those agencies “to facilitate their proper functioning in accordance with Congress’ originating intent”). The courts, similarly, have an important interest in controlling the dissemination of their documents to the public, yet, to facilitate the operation of the penal system, often must make those records available to departments of government covered by the Act. Finally, the importance of the confidentiality of communications between the President and his immediate advisors, combined with the likelihood that records of those exchanges will find their way into portions of the “Executive Office of the President” covered by the Act, render undesirable a per se rule that such documents are “agency records.” In the present case, by contrast, the organs of government that first compiled the records—the State Department and FBI—clearly are covered by the Act. And no policy considerations comparabie to those requiring special protection for documents emanating from Congress, the courts or the President’s personal staff are applicable. In sum, the question whether a document in the possession of one agency that originated in another constitutes an “agency record” for the purposes of the FOIA is not governed by either the terms of the statute, the legislative history or precedent. To resolve the issue, we are thus compelled to look to the general principles that underlie the Act as a whole. It has often been observed that the central purpose of the FOIA is to “open[ ] up the workings of government to public scrutiny.” One of the premises of that objective is the belief that “an informed electorate is vital to the proper operation of a democracy.” A more specific goal implicit in the foregoing principles is to give citizens access to the information on the basis of which government agencies make their decisions, thereby equipping the populace to evaluate and criticize those decisions. Each of these objectives—and particularly the last—would be best promoted by a rule that all records in an agency’s possession, whether created by the agency itself or by other bodies covered by the Act, constitute “agency records.” This conclusion is buttressed by consideration of the probable practical effect of a different rule. If records obtained from other agencies could not be reached by a FOIA request, an agency seeking to shield documents from the public could transfer the documents for safekeeping to another government department. It could thereafter decline to afford requesters access to the materials on the ground that it lacked “custody” of or “control” over the records and had no duty to retrieve them. The agency holding the documents could likewise resist disclosure on the theory that, from its perspective, the documents were not “agency records.” The net effect could be wholly to frustrate the purposes of the Act. B. Treatment of Documents Obtained From Other Agencies Our conclusion that the documents the CIA obtained from the State Department and FBI constitute “agency records” does not settle the fate of those materials. Two branches of the test delineated by the Supreme Court remain to be satisfied. The District Court should have compelled disclosure of the documents only if they were “(1) ‘improperly’; (2) ‘withheld’” by the CIA. Kissinger v. Reporters Committee, 445 U.S. at 150, 100 S.Ct. at 968. Unfortunately, the recent vintage of the Court’s three-pronged test means that there is very little case law directly concerned with the meaning of those crucial terms. Nor does the legislative history of the Act provide us much guidance. Once again, therefore, we are cast back upon the premises and objectives of the FOIA as a whole. Those considerations suggest the following definitions: “ WithholdingCertainly a categorical refusal to release documents that are in the agency’s “custody” or “control” for any reason other than those set forth in the Act’s enumerated exemptions would constitute “withholding.” Interpretive problems arise only in the context of processing or referral procedures that are likely to result eventually, but not immediately, in the release of documents. The legal status of such procedures seems to us best determined on the basis of their consequences. We conclude, in other words, that a system adopted by an agency for dealing with documents of a particular kind constitutes “withholding” of those documents if its net effect is significantly to impair the requester’s ability to obtain the records or significantly to increase the amount of time he must wait to obtain them. “Improper’’: We are persuaded by Justice Stevens’ opinion in Kissinger that sensible explication of the term “improper” in this context requires incorporation of a standard of reasonableness. Thus, “withholding” of the sort just described will be deemed “improper” unless the agency can offer a reasonable explanation for its procedure. The form such an explanation would be most likely to take would be a showing that the procedure significantly improves the quality of the process whereby the government determines whether all or portions of responsive documents are exempt from disclosure. Naturally, the more serious the resultant impediments to obtaining records or the longer the resultant delay in their release, the more substantial must be the offsetting gains offered by the agency to establish the reasonableness of its system. At the extreme, a procedure that, in practice, imposed very large burdens on requesters (eg., by compelling them to pay huge processing costs or to submit separate requests to a number of independent bodies) or that resulted in very long delays would be highly difficult to justify. A principle implicit in the foregoing definitions is that, when an agency receives a FOIA request for “agency records” in its possession, it must take responsibility for processing the request. It cannot simply refuse to act on the ground that the documents originated elsewhere. There is insufficient evidence in the record to determine what result should be reached by applying these standards to the instant case. Neither the decision below nor the affidavits on which it was based make clear the nature of the referral procedure or exactly what advantages were gained by referring each of the documents obtained from the State Department and FBI to the originating body. Nor is the extent of the accompanying impairment of McGehee’s ability to gain access to those records apparent. We therefore remand the case with instructions to afford the parties opportunity to adduce additional relevant evidence. We recognize that the standards we adopt today are not “bright line” tests. The District Court may find it difficult, given the absence of other germane precedent, to apply our holdings to the instant case even when all the facts have been ascertained. To mitigate that uncertainty, and to provide some guidance to courts confronted with similar problems in future cases, we set forth below a model for a referral system. We do not suggest that agencies are bound to accept our plan; we describe it merely to indicate one set of practices that would comport with the general principles embodied in the Act: Sample Procedure for Processing Documents Originating with Other Agencies An agency in possession of documents, responsive to a FOIA request, that it has received from another agency would forward them to the originating body (in lieu of processing them itself) if and only if they satisfied an “intent to control” test. Specifically, an intention on the part of the originating agency that it retain the authority to decide if and when materials are released to the public would have to be made evident by either (i) explicit indications to that effect on the face of each document or (ii) the circumstances surrounding the creation and transfer of the documents. To minimize the resultant delay, the referral would have to be prompt and public. In other words, as soon as the agency retrieved responsive documents, and possibly even before it \| undertook ah examination of their contents to determine whether they were exempt from disclosure, it would identify those records that originated elsewhere and, if they passed the aforementioned “intent to control” test, would immediately (i) inform the requester of the situation, (ii) notify the originating agency and, (iii) if necessary, forward to the latter copies of the relevant documents. To minimize the burden on the requester, this notification and referral would be accorded the status of a FOIA request; the person seeking information would thereby be relieved of the duty to submit a separate demand to the originating agency. The system we outline, by promoting (i) the processing by the agencies to which requests are submitted of a substantial percentage of the “other agency” records in their possession and (ii) the rapid referral to the originating bodies of the remainder, would mitigate the two most serious hardships associated with the extant automatic referral systems: the inconvenience to requesters of being compelled to assert their rights in two or more independent administrative fora and the long delays resulting from the superimposition of two or more processing sequences. If, in a given case, the “intent to control” test were satisfied but the agency to which the request was first submitted had not followed the procedures suggested above by the time litigation commenced, the district court would still have some options at its disposal that would enable it to ensure that the petitioner’s request was processed expeditiously without sacrificing the benefits accruing from a substantive review by the originating agency. The court might, for example, allow the defendant agency to submit affidavits or present witnesses from the originating agency, explaining which documents are exempt and why. Alternatively, the court could require the originating agency to appear as a party to the suit pursuant to Fed.R.Civ.P. 19(a). But these options would be makeshift arrangements; the preferable situation would be adherence to a set of review and referral guidelines of the sort described above. IV. Invocation of the “Intelligence Source” Exemption McGehee’s final allegation of error concerns the District Court’s decision to grant summary judgment on the ground that all material withheld by the agency was properly exempt from disclosure under the Act. The CIA defends the ruling below on the ground that it has established that the material in question is covered by FOIA exemptions (1) and (3). In the context of the instant case, the agency observes, those two provisions are functionally equivalent: both shield all information whose disclosure would result in revelation of the identities of “intelligence sources.” The crucial issue, as this matter appears before us, is whether the District Court was warranted in granting the CIA’s motion for summary judgment solely on the basis of affidavits submitted by the agency. Here at last we have the benefit of a well-established body of precedent. A long line of cases, decided in this circuit and elsewhere, have prescribed the standards for reviewing claims of exemptions in this procedural context: [Sjummary judgment on the basis of such agency affidavits is warranted if the affidavits describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith. Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981) (footnote omitted). The CIA 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_weightev	C	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". Carolyn L. DUCEY, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. Lois M. OLSON, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. Helen GRUGEL, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. No. 81-6058. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 13, 1982. Decided Aug. 18, 1983. As Amended Oct. 27, 1983. Betsy Ginsberg, Trial Atty., U.S. Dept, of Justice, Washington, D.C., for defendantappellee. Arthur J. Jaffee, Pomona, Cal., for plaintiffs-appellants. Before SKOPIL and FLETCHER, Circuit Judges, and GRAY, District Judge. The Honorable William P. Gray, District Judge for the Central District of California, sitting by designation. . The liability of the United States for the allegedly negligent or wrongful omissions of NPS employees is determined under the “law of the place where the... [negligent or wrongful] omission occurred,” 28 U.S.C. § 1346(b), not the place of the accident, loss, or injury or the place where the act or omission had its “operative effect.” Leaf v. United States, 588 F.2d 733, 735 (9th Cir.1978). Furthermore, under Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1961), the whole law (including the choice of law principles) of the state in which the allegedly wrongful act or omission occurred must be applied to determine whether the United States is liable under § 1346(b). Since an omission, by its very definition, is an act which failed to occur, an allegedly negligent omission cannot have actually “occurred” anywhere. Hence, Congress must have intended the applicable law under § 1346(b) in regard to a negligent omission to be that of the place where the act necessary to avoid negligence should have occurred. Cf. Mundt v. United States, 611 F.2d 1257, 1259 (9th Cir.1980) (Arizona tort law applied under FTCA to failure to release prisoner from Arizona jail presumably stemming in part from decisions occurring outside Arizona); Gard v. United States, 594 F.2d 1230, 1232-33 (9th Cir.) (Nevada tort law applied to failure to place fences to mark Nevada mine stemming in part from decisions of Bureau of Mines officials in Washington, D.C.), cert. denied, 444 U.S. 866, 100 S.Ct. 138, 62 L.Ed.2d 90 (1979). Here, plaintiffs have alleged numerous wrongful or negligent omissions, including a failure to close down the facility and a failure to post signs. While these omissions may have stemmed in part from decisions made in San Francisco, California, the omissions could have been prevented only by the doing of such physical acts as the posting of signs, the erection of barbed wire, and the tearing up of boat slips and trailer spaces in Nevada. Contrary to plaintiffs’ contention that California law applies to this case, the omissions “occurred” in Nevada, and Nevada whole law (including Nevada choice of law principles) governs the determination of liability of the United States. Although the Nevada courts have not addressed the issue of the appropriate choice of law principles for tort cases, we have held, in the context of another tort case, that the Nevada choice of law rule follows that set forth in the Restatement (Second) of Conflict of Laws. Hanley v. Tribune Pub. Co., 527 F.2d 68, 69 (1975). . Nev.Rev.Stat. § 41.510 (1973) states in pertinent part: 1. An owner, lessee or occupant of premises owes no duty to keep the premises safe for entry or use by others for hunting, fishing, trapping, camping, hiking, sightseeing, or for any other recreational purposes, or to give warning of any hazardous condition, activity or use of any structure on such premises to persons entering for such purposes, except as provided in subsection 3 of this section. 2. When an owner, lessee or occupant of premises gives permission to another to hunt, fish, trap, camp, hike, sightsee, or to participate in other recreational activities, upon such premises: (a) He does not thereby extend any assurance that the premises are safe for such purpose, constitute the person to whom permission is granted an invitee to whom a duty of care is owed, or assume responsibility for or incur liability for any injury to person or property caused by any act of persons to whom permission is granted, except as provided in subsection 3 of this section. 3. This section does not limit the liability which would otherwise exist for: (a) Willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity. (b) Injury suffered in any case where permission to hunt, fish, trap, camp, hike, sightsee, or to participate in other recreational activities, was granted for a consideration other than the consideration, if any, paid to the landowner by the state or any subdivision thereof.... 4. Nothing in this section creates a duty of care or ground of liability for injury to person or property. FLETCHER, Circuit Judge: Plaintiffs appeal from the district court’s judgment for the defendant United States in three consolidated wrongful death actions brought pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680 (1976). 523 F.Supp. 225 (D.Nev. 1981). We have jurisdiction under 28 U.S.C. § 1291 (1976). We reverse in part and affirm in part. FACTS The spouses of the three plaintiffs in these consolidated cases (the “Users”) were killed in a flash flood in the Lake Mead National Recreational Area (LMNRA) in Nevada on September 14, 1974. The Users had been camping at and boating from a recreational site on the banks of the Colorado River in Eldorado Canyon. The National Park Service (NPS), the agency that operated the LMNRA, provided a ranger station, boat launching ramp, and comfort stations at the site. In the same area Eldorado Canyon Resorts, Inc. (ECR), a concessioner of the NPS, maintained and operated a cafe-store, boat slips, automobile fueling and boat service facilities, rental cabins, and trailer spaces. The parties stipulated that on the day of the flood, each of the Users was present “in the canyon that day for recreational purposes.” None of the Users had paid a fee directly to the NPS or to the United States either to gain entrance to or to engage in recreational activities on the public lands in the LMNRA or to use the NPS-provided facilities. Two of the Users had paid rental fees to ECR for use of a boat slip, one User had rented a trailer space, and all three Users had recently bought various goods at the ECR cafe-store. Pursuant to the terms of the concession agreement between ECR and the NPS, ECR was obligated to remit to the United States 1%% of its gross annual receipts from sales at the cafe-store and from boat slip and trailer space rentals and to fulfill certain other maintenance and caretaking responsibilities. However, ECR in fact made no payment to the NPS for the calendar year 1974. Following the flood, the surviving spouses of the Users brought suit against the United States in district court for damages allegedly caused by a breach of duty of NPS and ECR employees to warn of or guard against the flood. ANALYSIS The FTCA provides a limited exception to the sovereign immunity of the United States for suits in tort, where an injury is caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b). I. Tort Liability of United States for Negligence of NPS Employees. The trial court, applying the law of the place (Nevada), found the Government immune from tort liability under the Nevada recreational use statute, Nev.Rev. Stat. 41.510 (1973). Plaintiffs challenge this holding, asserting that immunity under the recreational use statute does not obtain here. The government contends that, even if the ruling below were incorrect, the government is not liable because the government’s conduct falls within the discretionary function exemption from tort liability contained in the FTCA. A. Immunity Under Recreational Use Statute. Apart from the generally applicable Nevada rules governing tort liability, the Nevada recreational use statute provides immunity for a landowner whose property is used for recreational purposes, subject, however, to several exceptions. In holding for the defendant, the trial court found that section 41.510(1), the immunity section, is applicable to the facts of this case and that neither of two possible exceptions contained in section 41.510(3) change the result. In particular, the district court found the consideration exception to the Nevada recreational use statute, subsection 41.510(3)(b), inapplicable on the ground that the various forms of “consideration” allegedly tendered by the Users — money for store purchases, moorage fees, and trailer space rental fees — were tendered not to the United States but to ECR and that “[mjoney paid to the concessioner is not payment to the Government.” Plaintiffs challenge this holding on the ground that the consideration exception is applicable on the facts of this case. The Government contends that the district court’s conclusion should be upheld for two reasons: (1) since the Users made no direct payments for permission to enter, no “consideration” in the sense of subsection 41.-510(3)(b) was tendered; and (2) even if such “consideration” in the sense of subsection 41.510(3)(b) was tendered, it was not tendered to the United States. We reject both of the Government’s contentions and conclude that the exception is applicable here. 1. Lack of Transfer of “Consideration.” The Government argues first that even if the Government itself had operated the Eldorado Canyon facility none of the various forms of consideration ECR received are the sort of “consideration” in return for “permission to participate in recreational activities” required under subsection 41.-510(3)(b). Like any other visitors to Eldorado Canyon, the Users paid no direct fee to enter the Canyon, to boat on the Colorado, or to hike, fish, sightsee, or participate in any other recreational activity in the Canyon. The only consideration tendered was for the purchase of products or for the use of the artificial amenities of trailer spaces and boat slips. The Government insists that subsection 41.510(3)(b) is applicable only where a fee is specifically charged for permission to enter. We do not read the exception so narrowly. No Nevada or Ninth Circuit cases construing Nevada law address the scope of the consideration exception to the Nevada statute. However, the statutory language, the principle of statutory construction governing statutes in derogation of the common law, the policy underlying the statute, and the case law of other jurisdictions all support a broad application of that exception. First, the language of the consideration exception itself suggests a broad reading of section 41.510(3)(b). The exception is worded not in narrow terms of “fee” or “charge,” but rather in the far more encompassing terms, “for a consideration.” “Consideration” is a term of art, a word with a well-understood meaning in the law, embracing any “right, interest, profit or benefit.” Black’s Law Dictionary 277 (rev. 5th ed. 1979). Used in a statute, it should be accorded that meaning. Application of Filippini, 66 Nev. 17, 24, 202 P.2d 535, 538 (1949). The statutory exception, then, is itself literally applicable to situations well beyond those involving a strict charging of a “fee” for “permission” to recreate. Since the recreational use statute is in derogation of common law rules of tort liability, we take care to avoid an overbroad interpretation of the statute that would afford immunity that was not intended. See Rush v. Nevada Industrial Commission, 94 Nev. 403, 407, 580 P.2d 952, 954 (1978) (statute in derogation of common law should be read narrowly); West Indies, Inc. v. First National Bank of Nevada, 67 Nev. 13, 33-34, 214 P.2d 144, 154 (1950) (same); Copeland v. Larson, 46 Wis.2d 337, 347, 174 N.W.2d 745, 749-50 (1970) (recreational use statute construed narrowly since in derogation of common law). Consequently, exceptions to the statute, including the consideration exception, must be given the broadest reading that is within the fair intendment of the language used. The policy underlying the adoption of a consideration exception to the Nevada recreational use statute is to retain tort liability in actions involving recreational use of land where the use of the land for recreational purposes is granted not gratuitously but in return for an economic benefit. Since the potential for profit alone is thought sufficient to encourage those owners who wish to make commercial use of their recreational lands to open them to the public, the further stimulus of tort immunity is both unnecessary and improper. Furthermore, where a landowner derives an economic benefit from allowing others to use his land for recreational purposes, the landowner is in a position to post warnings, supervise activities, and otherwise seek to prevent injuries. Such a landowner also has the ability to purchase liability insurance or to self-insure, thereby spreading the cost of accidents over all users of the land. An ability to spread risks exists regardless of whether the economic benefit the landowner derives is in the form of direct entrance fees or in the form of revenues from a connected economic enterprise. Confining the term “consideration” in subsection 41.510(3)(b) solely to direct payments of entrance fees or charges would extend the Immunity of the statute beyond those persons whom the statutory policy would protect. Our conclusion is consistent with decisions of this and other courts, construing the consideration exceptions of the recreational use statutes of other states. In Graves v. United States Coast Guard, 692 F.2d 71, 73 (9th Cir.1982) (per curiam), we held that the California recreational use statute did not immunize the United States from liability for injuries arising out of the use of a riverside cabana, even though the only alleged “consideration” was the payment of a fee to private entrepreneurs for the privilege of camping near the river. We held that since the use of the cabana and access to the river were implied benefits received as a consequence of the payment of consideration to the campground operators, the camping fee was considera tion in return not merely for “permission to camp” but also “to gain access to the river” and “to use waterside facilities” within the meaning of the consideration exception to the California recreational use statute. Id. Similarly, in Copeland v. Larson, 46 Wis.2d 337, 347, 174 N.W.2d 745, 749-50 (1970), the Wisconsin Supreme Court denied immunity under the Wisconsin recreational use statute to a lakeshore resort owner who had allowed free access to a dock and swimming area adjacent to his general store and short-order restaurant. The Wisconsin statute provided in pertinent part that the section “does not limit the liability which would otherwise exist... for injury suffered in any case where permission to hunt, fish, trap, camp, hike, sightsee, berry-pick or to proceed with water sports or recreational uses was granted for a valuable consideration.” Id. at 340 n. 1, 174 N.W.2d at 747 n. 1. In Copeland, the plaintiff swam and dived from the pier “without restriction and without paying any charge because no such charge was ever imposed.” Id. at 339, 174 N.W.2d at 747. Although the plaintiff had been a “patron of the store” in the past, he had not made any purchases on the day of the accident. Id. The Wisconsin court nonetheless found the consideration exception applicable, holding that “valuable consideration” included not merely “a monetary fee paid to the landowners” but also “non-monetary benefits and indirect economic benefits flowing to the owner from the recreational use of his land.” Id. at 346, 174 N.W.2d at 750-51. In Kesner v. Trenton, 216 S.E.2d 880 (W.Va.1975), the West Virginia Supreme Court held the West Virginia recreational use statute inapplicable to a marina operator, who coincident with renting “spaces for private boats” and “parking spots with electricity, water, and toilet facilities,” and operating a store, “provided, without charge to the general public, areas for picnicking and swimming in the waters adjacent to [his] boat dock and marina.” Id. at 882. The West Virginia statute denies immunity to landowners who make a charge to a person to enter or go upon the land. It defines “charge” as “the amount of money asked in return for an invitation to enter or go upon the land.” Id. at 885. Since the plaintiffs in Kesner had not paid to picnic or swim at the marina and had not rented a boat from the operator, the court noted that “technically... there was not an ‘amount of money asked in return for an invitation to enter or go upon the land’ ” as literally required by the statute. Id. at 883, 885. Nonetheless, the court held that the defendant’s reasonable expectation “to attract prospective customers and thus, to increase sales and rentals at the marina by allowing people to swim in the lake at no cost” was “a sufficient ‘charge’ within the meaning” of the statute to toll the imposition of tort immunity. Id. at 885. As in the cases discussed, the Users did not pay an entrance or permission fee or charge to participate in recreational activities in Eldorado Canyon. But, just as in the other cases, similar amenities were offered by the concessioners, and all but one of the Users had rented boat slips or trailer spaces and all had regularly purchased goods from the cafe-store. Moreover, all were concededly participating in recreational activities in Eldorado Canyon, and not elsewhere, at the time of the flood. We conclude that if the United States itself had operated the Eldorado Canyon facility the rentals and purchases by the Users would constitute “consideration” in return for permission to recreate in Eldorado Canyon within the meaning of the consideration exception to the Nevada statute. 2. Lack of Payment of Consideration to United States. The Government contends that, even if moorage and trailer fees and cafe-store purchases constitute “consideration” in ■ the sense of 41.510(3)(b), the exception does not apply since ECR, and not the United States, operated the cafe-store and rental facilities. The Government argues that since ECR had no power to deny permission to the Users to recreate in Eldorado Canyon and since the Users paid ECR and not the United States for all rentals and purchases, the consideration is not in return for permission to recreate as required by subsection 41.510(3)(b). We reject that argument. Subsection 41.510(3)(b) does not specify to whom consideration must be tendered. We think it a fair reading of the provision, however, that consideration must be tendered directly or indirectly to a person who has.the power to grant or deny permission to participate in recreational activities. Since the concession agreement did not give ECR the power to deny permission to recreate in Eldorado Canyon, the exception is applicable only if consideration was tendered, directly or indirectly, to the United States in return for permission to recreate in Eldorado Canyon. We conclude that this condition is met in this case. Before entering its concession agreement with ECR, the United States certainly was free to deny permission to recreate in Eldorado Canyon. See Jones v. United States, 693 F.2d 1299, 1302-03 (9th Cir.1982). Thereafter, however, it was not. The concession agreement required the concessioner to provide and maintain facilities, to offer services, and to pay to the government a fixed percentage of all revenues from operations. Implicit in the agreement was a commitment on the government’s part that users would be allowed to enter the area to use the concession facilities. Under these circumstances, we conclude that the consideration tendered here by the Users to ECR was in return for permission to participate in recreational activities in Eldorado Canyon in the sense of subsection 41.510(3)(b). In so holding, we break no new ground. While we recognize that the case law pertaining to the recreational use statutes of other jurisdictions must be viewed cautiously because of variations from statute to statute, we see our interpretation of subsection 41.510(3)(b) to be in keeping with this court’s construction of similar consideration exception clauses in the recreational use statutes of other states. In Graves v. United States Coast Guard, for example, the Ninth Circuit imposed liability on the United States although the plaintiff had paid his camping fee to a private campground operator, who had leased the camping area from the United States. 692 F.2d at 73. Noting that the statute did “not specify to whom the consideration is to be paid,” we held that even though the fee was paid to the government’s lessee and not to the United States, the fee constituted “a consideration” in return for “permission to enter” for “a recreational purpose” and thereby invoked the consideration exception to deny immunity to the United States under the California recreational use statute. Id. Similarly, in Thompson v. United States, 592 F.2d 1104 (9th Cir.1979), we denied immunity to the government. An injured motorcycle rider had paid a fee to a racing association in return for permission to participate in a motorcycle race. Id. at 1108. The racing association had previously paid a fee to the Bureau of Land Management for the right to hold a race on government land. Even though the injured rider had not himself paid a fee to the United States for permission to enter United States land, we nonetheless held that, under the totality of the circumstances, the rider had tendered “consideration” in return for “permission to enter for [vehicular riding] purposes” within the meaning of the consideration exception to the California recreational use statute. Id. The denial of immunity in the cases we describe comports with the general policy considerations underlying the exception. The consideration exception is not simply a mechanical test to distinguish those recreational use cases that involve direct payments from user to landowner from those that do not. Rather, it is intended to serve more broadly as a proxy for differentiating the entrepreneur-landowner whose land is open for business reasons from the landowner whom the statute encourages to open his land on a gratuitous basis by the promise of immunity. The relevant factor in determining whether to apply the “consideration” exception is thus not whether the consideration passes directly from user to landowner but rather whether economic benefit inures to the landowner. ECR’s failure to make payment on its concession agreement in 1974, the year of the accident, does not affect the result. All of the Users had actually purchased products at the ECR cafe-store in the time period immediately preceding the accident, and all but one had made rental payments to ECR for moorage and trailer spaces. Under the concession agreement the United States was entitled to 1 A% of ECR’s gross receipts including those payments by the Users. The failure of ECR to make good on its monetary and other contractual obligations to the government, for whatever reasons, is irrelevant. The payments by the Users to ECR, as to which the United States is entitled to a share, constitute consideration in return for permission to recreate in Eldorado Canyon. By holding the consideration exception applicable on the facts of this case, we do not imply that the exception applies to a broader geographic area than that over which the concessionaire has the explicit or implicit power to grant or deny permission to recreate. All three of the Users were killed while in Eldorado Canyon, well within the geographical boundaries of ECR’s concession facility. B. Discretionary Function or Duty Exemption to § 1346(b). The Government contends that, even if it derives no immunity from the Nevada recreational use statute, it is nonetheless immune under the discretionary function exemption of the FTCA. The exemption provides in pertinent part: The provisions of this Chapter and Section 1346(b) of this title shall not apply to — (a) Any claim... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. 28 U.S.C. § 2680(a) (1976). The government asserts that the allegedly negligent acts and omissions of NPS employees upon which plaintiffs’ claims are based constitute the exercise of a “discretionary” function or duty on the part of a,federal employee in the sense of section 2680(a). Whether an act or omission is a discretionary activity in the sense of section 2680(a) turns on whether the act or omission occurred on the “planning” level of governmental activity or on the “operational” level. Nevin v. United States, 696 F.2d 1229, 1230 (9th Cir.1983); Lindgren v. Unit ed States, 665 F.2d 978, 980 (9th Cir.1982). In addition to examining the level at which the act or omission took place, our court has also considered “the ability of the judiciary to evaluate the act or omission and whether judicial evaluation would impair the effective administration of the government.” Nevin, 696 F.2d at 1230. While the government’s decision to encourage recreation at Eldorado Canyon is the exercise of a discretionary function, the government’s duty to warn of or guard against hazards resulting from that decision may nonetheless be actionable. Lindgren, 665 F.2d at 980-81 (citing cases). The judgment and decision-making involved in day-to-day management of a recreational area are not the sort of decision-making contemplated by the exemption. See Thompson v. United States, 592 F.2d 1104, 1111 (9th Cir.1979). The trial judge made no findings on the applicability of the discretionary function exemption. On remand, the trial court must examine the alleged acts of commission and omission alleged (among them, the failure to post signs warning of the possibility of a flood, the failure to remove or repair an earthen dam at one end of the canyon, and the failure to institute flood evacuation procedures) to determine whether, on the facts of this case, they fall within or without the discretionary function exemption. See Lindgren, 665 F.2d at 982. C. Tort Liability of United States Under Nevada Law. Both the plaintiffs and the defendant argue the respective merits of their positions under Nevada tort law in the event the government is not immune. The trial court, however, made no factual findings and drew no legal conclusions regarding the defendant’s liability in tort under Nevada law, absent the immunity of the recreational use statute. Further proceedings consistent with this opinion on the issue of liability of the United States for acts and omissions of NPS employees under Nevada tort law will be required if the government’s conduct was not discretionary within the meaning of the FTCA. II. Tort Liability of United States for Negligence of ECR or Its Employees. The government argues that the negligence of ECR or its employees, as the negligence of “agents” of the United States, may not be imputed to the United States to form the basis of tort liability under section 1346(b). We agree. The United States is not liable under the FTCA for the negligence of its independent contractors. 28 U.S.C. § 2671; United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976). The critical test for distinguishing an agent from a contractor is the existence of federal authority to control and supervise the “detailed physical performance” and “day-today operations” of the contractor, and not whether the agent must comply with federal standards and regulations. Orleans, 425 U.S. at 814-15, 96 S.Ct. at 1975-76 (citing Logue v. United States, 412 U.S. 521, 528, 93 S.Ct. 2215, 2219, 37 L.Ed.2d 121 (1973)). In both Logue and Orleans, the Supreme Court held that in the absence of the authority of federal employees to supervise the day-to-day operations of a contractor, the mere ability of the government to compel compliance with federal standards is not sufficient to create an agency relationship. Orleans, 425 U.S. at 816, 96 S.Ct. at 1976; Logue, 412 U.S. at 527-28, 93 S.Ct. at 2219. While “by contract, the [federal] Government may fix specific and precise conditions to implement federal objectives,” such restrictions required by regulation “do not convert the acts of entrepreneurs... into federal governmental acts.” Orleans, 425 U.S. at 816, 96 S.Ct. at 1976 (footnote omitted). The trial court did not err in finding that ECR was an independent contractor. ECR was required by the concession agreement to submit price lists for federal approval, to “maintain and operate” the facilities “to such extent and in such manner as the Secretary may deem satisfactory,” to pay a fixed percentage of revenues to the United States, and to comply with numerous other contractual provisions. Many of these contractual provisions find their origin, however, in various rules and regulations which were issued by the Department of the Interior for “standard” concession agreements. As such, they are the sort of regulation-mandated contractual restrictions described in Orleans that are designed to secure federal objectives and that, despite their restrictive effect on the activities of the contracting party, do not convert an independent entrepreneur into an “agent” of the federal government. Furthermore, the contractual provisions themselves, while restricting the operations of ECR to some degree, do not give the NPS authority to regulate the detailed physical performance of conducting a recreational facility in Eldorado Canyon. Instead, they leave the concessioner in large part free to select the means of implementing the contractual requirements. For example, while the NPS, by contract, had the power to regulate and approve the rates and prices of goods and services charged by ECR, the contract nowhere gives the NPS the power to set prices initially or to choose the specific items or goods to be sold. Similarly, while the NPS had the contractual power to disapprove “unfit” employees and to require employees of ECR to wear a uniform or badge, the contract does not empower the Secretary to supervise the initial hiring decisions, the assignment of job tasks, the choice of uniform color and design, the placement of the badge, the frequency of uniform laundering, or any other day-to-day activities. Plaintiffs assert that it was the usual absence of the NPS ranger from Eldorado Canyon on his duties elsewhere that was in part responsible for the deaths in this case. We take this as an indication that the only federal employee who conceivably could have executed any supervisory authority the federal government might have had over the day-to-day operations of ECR did not in fact exercise any substantial control over ECR activities. The degree of federal authority to supervise and control the day-to-day operations of ECR that is required under the Orleans test is simply lacking. CONCLUSION The district court erred in its determination that the consideration exception to the immunity provided by the Nevada recreational statute, Nev.Rev.Stat. § 41.510, did not apply to remove the shield of the statute from the United States for the alleged negligence of its employees. The district court’s finding that ECR was an independent contractor whose negligence cannot be imputed to the United States was not error. Material factual issues remain to be tried as to (1) whether the United States is entitled to the benefit of the discretionary function exemption of the FTCA; and (2) if not, whether the United States was negligent. We AFFIRM in part, REVERSE in part, and REMAND for proceedings consistent with this opinion. . The trial court’s factual finding that “[t]he contract required that 1A% of gross profits be paid to the Park Service annually” (emphasis added) is clearly erroneous. Section 9(a) of the concession agreement states that NPS was entitled to “(1A%) of the concessioner’s gross receipts" (emphasis added), which “receipts” were defined by the contract to be “the total amount received or realized by all sales... of services, accommodations, and other merchandise” by ECR. . Under Nevada choice of law rules, see supra note 2, “whether a person is excused from liability by reason of the fact that his action [or omission] was... privileged by the local law of the state where he acted [or failed to act]” is usually determined by the substantive rules of the state where the conduct or lack thereof and injury occurred. Restatement (Second) of Conflict of Laws § 163 & comment a (1971). Since the alleged failure to warn of or to guard against accidents in Eldorado Canyon “took place” in Nevada, see supra note 2, since the deaths themselves occurred in Nevada, and since Nevada is otherwise clearly the state with the most significant relationship to the flood and the injuries, any immunity of the United States for accidents arising from the use of the land it owns in and around Eldorado Canyon is governed by Nevada tort law. See Gard v. United States, 420 F.Supp. 300, 302 n. 1 (N.D. Cal. 1976) (applying Nevada recreational use statute to California residents injured on Nevada land), aff'd, 594 F.2d 1230 (9th Cir.1979). . Since we conclude that the consideration exception to § 41.510 is applicable in this case, we need not decide whether the trial court properly ruled that the willful or malicious misconduct exception to § 41.510 was inapplicable. Furthermore, we need not reach plaintiffs’ contentions that § 41.510 has no application to developed recreational areas or to public facilities. . Comment, Wisconsin’s Recreational Use Statute: A Critical Analysis, 66 Marq.L.Rev. 312, 312, 340-41 (1983) (comparing recreational use statutes requiring an “admission price or fee” with those requiring only “commercial activity” or a “consideration”) [hereinafter cited as Comment, Wisconsin’s Statute]; Barrett, Good Sports and Bad Lands: The Application of Washington’s Recreational Use Statute Limiting Landowner Liability, 53 Wash.L.Rev. 1, 7 & n. 45, 11 & n. 74 (1977) (comparing statutes based on model act expressing exception strictly in terms of “fee” or a “monetary admission” with other statutes which “have departed from the model act and speak principally in terms of consideration passing from an entrant to an owner” and do not “disregard... potential benefit of a material or pecuniary nature”). . The existence of the last clause of subsection 41.510(3)(b), which states that a payment by a Nevada governmental entity to a landowner is not “consideration” in return for permission to recreate, further supports a broad reading of the term “consideration” in subsection 41.-510(3)(b). If the term “consideration” were read to encompass only direct payments by recreational users in return for permission to recreate, as the Government urges, then the last clause in subsection 41.510(b)(3) would be superfluous. See Copeland v. Larson, 46 Wis.2d 337, 346- 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_appel2_7_2	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). UNITED STATES of America, Plaintiff-Appellee, v. E. M. "Mike” RIEBOLD and Donald T. Morgan, Defendant-Appellants. Nos. 76-1170, 76-1171. United States Court of Appeals, Tenth Circuit. Argued and Submitted March 15, 1977. Decided May 25, 1977. Petition for Rehearing Denied June 14,1977. Lyman G. Sandy, Asst. U. S. Atty., Albuquerque, N. M. (Victor R. Ortega, U. S. Atty., Albuquerque, N. M., on the brief), for plaintiff-appellee. James Patrick Quinn and Philip F. Cardarella, Kansas City, Mo., for defendant-appellant Riebold. Peter Everett, IV, of Parker, Francis & Everett, Albuquerque, N. M., for defendant-appellant Morgan. Before SETH, BARRETT, Circuit Judges, and KERR, District Judge. Of the District of Wyoming, sitting by designation. BARRETT, Circuit Judge. E. M. “Mike” Riebold (Riebold) and Donald T. Morgan (Morgan) have been found guilty by a jury of receipt of a fee for procuring a loan, aiding and abetting, misapplication of bank funds, false statement in a securities registration statement, wire fraud, interstate transportation of property obtained by fraud, securities, fraud, conspiracy, and mail fraud. On the verdicts, the trial judge entered judgments convicting appellants and sentencing them, from which they appeal. Appellants were initially charged on December 20, 1974, by an 84 count indictment. This indictment was superseded by a subsequent 84 count indictment filed on April 29, 1975. After three co-defendants entered guilty pleas, appellants proceeded to trial on the 75 counts of the indictment bearing charges relating to them. Riebold was convicted on 72 counts. Morgan was convicted on 71 counts. Riebold was engaged in the business of mineral development involving oil, gas, and coal. He was the controlling stockholder of several corporations, including American Fuels, Inc., Garfield Mines, Inc., Auqua Pura, and United States Lime. Through numerous bank loans and loans from private investors, as will be developed, infra, Riebold was able to project an image of immense wealth. Morgan was a vice-president and a chief loan officer of the First National Bank of Albuquerque, New Mexico (First National). Morgan initially approved loans to Riebold because he “had thought for some time that our bank, as the second largest bank in the state, ought to achieve a certain expertise in oil and gas lending that didn’t exist in New Mexico banks at that time.” Thereafter, he continued to approve loans to Riebold because he felt “trapped” and because he believed that additional loans were necessary if First National was to recover any of the money it had advanced. The trial consumed more than thirty days. The Government introduced an overwhelming amount of evidence which established the manner in which appellants defrauded First National and a number of private investors. Loans were generally acquired for Riebold and his companies by misrepresentations made by appellants relating to the value of Riebold’s assets and the manner in which the monies were to be expended. The Government proved that Riebold’s companies were, for all practical purposes, dormant; that the companies generated little or no income, had negative net worths, and were unable to pay their obligations on a timely basis; that loans advanced by Morgan and private investors allowed the companies to exist; that loans advanced for specific exploration activities were diverted to pay salaries, telephone bills, costs incurred in operating Riebold’s airplane, entertainment expenses, work on Riebold’s home, and in payment of existing loans and overdrawn bank accounts. The Government established that Morgan utilized his position as senior vice-president of First National to: loan Riebold approximately three million dollars ($3,000,000.00) at a time when Morgan’s authorized lending limit was $150,000; make loans to Riebold that other bank officers would not have made; loan Riebold monies after being warned not to do so because of Riebold’s poor payment history; loan Riebold monies without first obtaining a credit check or securing adequate and proper collateral; conceal loans made to Riebold which he knew would not be approved; assure other officers that the Riebold loans would all be repaid shortly; repay some $2.8 million of Riebold’s loans by fraudulently completing a signed blank check of a corporate depositor; continue to make loans to Riebold after being expressly admonished by his superiors not to make any further loans to him. Morgan made these loans in a relatively unnoticed manner because of the high position of influence and authority he held and further because he was much respected within First National. His co-employees and associates were disinclined to challenge his loans. Riebold rewarded Morgan for his help by bestowing financial favors upon him. The Government introduced detailed evidence establishing the manner by which appellants were able to defraud a number of private investors out of an amount in excess of $2,000,000.00. This is well summarized in the Government’s brief: “Riebold’s usual method of doing business with these investors and others was to impress them with his apparent wealth, including his lavish mansion and jet planes, which he used to fly investors to various properties. He boasted of his many companies and properties which he falsely represented to be worth many millions of dollars, and told tales of huge deals that were always just about to be closed.” Riebold and Morgan testified and they presented evidence supportive of their defense which “was a general denial of any intent by Riebold or Morgan to pay or receive any ‘kickbacks’, or misapply bank funds, or defraud anyone.” Whether appellants intended to defraud or injure First National is, of course, immaterial in an 18 U.S.C.A. § 656 prosecution. In United States v. Tokoph, 514 F.2d 597 (10th Cir. 1975), we said: . This evidence is said to indicate Weil and appellant did not intend to injure or defraud the Bank. Whether or not the loans were repaid or the Bank actually suffered a loss is not material to a § 656 charge. “The offense occurred and was complete when the misapplication took place.” United States v. Acree, supra [466 F.2d 1114 (10 Cir.)]. 514 F.2d, at 604. On appeal appellants do not directly challenge the sufficiency of the evidence. They contend that the trial court erred in: (1) refusing to grant a continuance; (2) denying their motion for a mistrial during the testimony of the Government’s chief witness; (3) allowing the jurors to take notes; (4) permitting their trial on a patently biased indictment; and (5) inadequately instructing the jury. I. (a) Morgan contends that the trial court erred in refusing to grant a continuance in that his motion was not dilatory but was necessary to prepare for “such a complex and lengthy trial” and that with additional time he could have produced evidence which would have materially benefited his defense. Morgan was originally indicted on December 20, 1974. He had the services of retained counsel at that dme and for some time prior thereto in the course of First National’s investigation. Morgan then retained other counsel who represented him throughout the period that the second indictment was brought (April 29, 1975), during the many hearings on motions that arose thereafter and until August 8; > 1975, when his counsel assumed a state district judgeship. This, of course, precluded him from further representation of Morgan. His counsel had informed Morgan about July 8, 1975, almost one month prior to his assumption of the judgeship, that he had been so appointed and would be unable to further represent him. Even so, it was four weeks later when Morgan retained new counsel, who entered his appearance in this case on August 13,1975. At that time, trial had been scheduled for September 8, 1975. The trial court had granted two continuances at that time. Following his entry of appearance as Morgan’s newly retained counsel, he filed for yet another continuance. He contended, inter alia: 5. The undersigned is informed and believes that the trial in this cause will last from two to three months and as a result of the complexities of the case, the number of witnesses and exhibits to be offered by the Government and the Defendant, the undersigned respectfully moves the Court for a continuance in order to properly acquaint himself with the case and prepare a defense for the defendant. [R„ Vol. I, p. 167.] Morgan argues that the denial of the continuance placed an insurmountable burden upon his newly retained counsel in that it was impossible for him to prepare for the trial to commence September 8, 1975. On this predicate, Morgan alleges that he was effectively denied assistance of counsel and due process of law. We hold that the trial court acted well within its discretion in denying the continuance. A trial court’s determination to deny a motion for a continuance will not be set aside absent proof of a manifest injustice resulting from its denial. In United States v. Hill, 526 F.2d 1019 (10th Cir. 1975), cert. denied, 425 U.S. 940, 96 S.Ct. 1676, 48 L.Ed.2d 182 (1976), we said: Consideration of these contentions is based on the well-established rule that “[t]he trial court is vested with discretion as to granting a continuance. Its exercise will not be disturbed on appeal in the absence of a clear showing of abuse resulting in manifest injustice.” United States v. Spoonhunter, 476 F.2d 1050 (10th Cir. 1973). Our review of the record convinces us no abuse of discretion occurred in denying this motion for continuance. One attorney had entered his appearance on November 27, 1973, two other attorneys had entered their appearances on January 24, 1974. Services of a court-appointed investigator were utilized. No showing of inadequate time to investigate and prepare for trial is made. See United States v. Harris, 441 F.2d 1333 (10th Cir. 1971). The record does not show any injustice resulting from the denial of this continuance request. 526 F.2d, at 1021-1022. We hold that the record evidences that Morgan suffered no manifest injustice by reason of the denial of his motion for a continuance. Although the trial was lengthy, the case was not complex. The evidence introduced by the Government centered upon Morgan’s scheme and intent to defraud First National and a number of private investors. Morgan was ably represented by his experienced retained counsel who had spent considerable time preparing for the trial, aided by the services of a full-time investigator. Morgan’s contention that a continuance may have allowed him to present mitigating evidence is too general to pass judicial muster, particularly in view of the adequate, able defense conducted by his retained counsel. The denial of the motion for continuance did not deny Morgan due process of law. Morgan’s related allegation that the denial of his motion for continuance in turn denied him effective assistance of counsel is equally without merit. We cannot lend even token credibility to Morgan’s allegation that during the period December, 1974, to August, 1975, his retained counsel did “... little or no action [was taken] to prepare a defense thus shifting the burden of preparing the entire case for the defense to [newly retained counsel]... inasmuch the record is devoid of any evidence, direct or circumstantial, supporting this contention. The standard for effective assistance of counsel is well established in this circuit. In United States v. Dingle, 546 F.2d 1378 (10th Cir. 1976), we said: Dingle contends that he was denied his right to counsel as guaranteed by the Sixth Amendment because his trial counsel was incompetent. A specific hearing was held by the trial court on this issue following remand. At the competency hearing, Dingle and his wife testified that Dingle repeatedly requested his trial counsel that he be permitted to take the stand. His trial counsel testified that his trial strategy was to attack the credibility of the government witnesses, [R., Vol. I, Supp., p. 17], and that he did not recommend that Dingle testify nor did he contact a witness, Mrs. Bean, because, in his judgment, she was not helpful to the defense strategy. The trial court found that counsel was competent. This finding must be given added weight in light of the fact that the court had an opportunity to view, hear, and observe the witnesses. United States v. 79.95 Acres of Land, More or Less, in Rogers county, State of Oklahoma, 459 F.2d 185 (10th Cir. 1972). Dingle would have us adopt a new standard for determining the competency of counsel. He urges that the test for competent counsel should be whether the representation “... [is] reasonably likely to render and rendering reasonably effective assistance.” People v. Gonzales, 543 P.2d 72, 74 (Colo.App.1974). This court has long held that representation is competent unless it “was perfunctory, in bad faith, a sham, a pretense or without adequate opportunity for conference or preparation.” Johnson v. United States, supra [485 F.2d 240 (10 Cir.)]; Tolhurst v. United States, 453 F.2d 432 (10th Cir. 1971); United States v. Baca, 451 F.2d 1112 (10th Cir. 1971), cert. denied, 405 U.S. 1072, 92 S.Ct. 1524, 31 L.Ed.2d 806 (1972); Ellis v. State of Oklahoma, 430 F.2d 1352 (10th Cir. 1970), cert. denied, 401 U.S. 1010, 91 S.Ct. 1260, 28 L.Ed.2d 546 (1971). The rule is alive and well in this circuit. 546 F.2d, at 1384-1385. Applying this standard, we hold that Morgan was not denied effective assistance of counsel. Effective assistance of counsel cannot be equated with victorious or flawless counsel. Brady v. United States, 433 F.2d 924 (10th Cir. 1970). In our view Morgan was represented by able trial counsel. His allegation of ineffective assistance of counsel is frivolous and without merit. Finally, we observe that even had Morgan’s then retained counsel undertaken “little or no action” between December, 1974 and August, 1975, thereby rendering his representation a sham, farce, or mockery as now contended, (a) it did not extend to or affect the representation at trial, and (b) Morgan must assume the fault for any failure of his trial counsel to exercise greater diligence inasmuch as counsel was retained in each instance. This is particularly applicable when we consider that Morgan learned that his originally retained counsel was to be appointed to a judgeship almost two months prior to the trial date. (b) Riebold contends that the trial court refused to allow his appointed counsel sufficient time to prepare for trial. His counsel was appointed on July 10,1975. Accordingly, he had more then eight weeks to prepare for trial. Rieboiu submits no specific proof of prejudice, but rather a “shotgun” general allegation that the case was extremely “complex” and that “It is better for the wheels of justice to grind slowly and finely than for them to grind rapidly but crush the right of the accused in the process.’ We hold that Riebold’s appointed counsel had adequate time to prepare his defense, thus assuring that the wheels of justice were able to grind rapidly without crushing the rights of the accused. However, even had there been inadequate time for his counsel to prepare, the fault, rests squarely with Riebold. Riebold had the services of retained counsel until April 14, 1975. At that time, his attorneys were allowed to withdraw because of Riebold's failure to cooperate with them in the preparation of his defense. From that date until July 10, 1975, when the trial court appointed counsel for him, Riebold continually reassured the trial court that he would obtain counsel, that he was in the process of “hiring one right now,” and that “I have about completed negotiations with my attorney.” Where, as here, appellant’s dilatory tactics are the sole cause for the delay in obtaining counsel, it cannot be held that the trial court abused its discretion in denying a motion for a continuance. In United States v. Curry, 512 F.2d 1299 (4th Cir. 1975), cert. denied, 423 U.S. 832, 96 S.Ct. 55, 46 L.Ed.2d 50 (1975), the Court pertinently observed: . Curry’s counsel argues that he did not have adequate time in which to prepare a defense. The record demonstrates that Curry made no effort to retain trial counsel between August 20, 1973, at which time he retained counsel for purposes of representation at arraignment only, and November 27, 1973, just seven days prior to trial when he employed his present counsel. Had Curry acted with reasonable dispatch in employing counsel for trial, no continuance need have been requested. Where the defendant has unreasonably delayed retention of counsel to represent him and such delay is the sole result of defendant’s dilatory tactics it is not an abuse of discretion to deny a request for continuance based upon an allegation that additional time would be “helpful” in preparing a defense. In any event, defense counsel did have seven days for preparation. We find no merit in this assignment of error. 512 F.2d, at 1302. Riebold also contends that he was denied effective assistance of counsel because his appointed counsel had to represent him while suffering severe pain and while under the influence of medicine. Riebold states that his trial attorney, “feeling the effects of the intense pain and the drug taken to relieve that pain, did not effectively represent him.” We hold that this contention is not supported by the record. Riebold’s trial attorney did notify the trial court that he was having back pains and that he was taking medicine for this condition. However, he also informed the court that a continuance was not necessary and that the medicine would not impair his ability to represent Riebold, evidenced by the following colloquy: THE COURT: Let me ask you a question: would it help you if the Court would allow you to remain seated while you— MR. DEATON: No, Your Honor, I don’t think that would help, I appreciate that, but I don’t think that would help. This is something I haven’t had trouble with in approximately five years in any real acute nature. I have had one week in this trial where I wore a brace, and was kind of limping around, but it was sufficiently severe this morning, I did want to bring it to the attention of the Court. Because if I can’t control the symptoms of it, I can’t function. * THE COURT: Well, the only thing I know to do is for you to just tell the Court, and we will declare a recess. MR. DEATON: I will. MR. HARTZ: May I ask the question, will the pain killer dull your mind? MR. DEATON: I am not representing that the amount of codeine that I would be taking will sufficiently impair me to continue. [R., Vol. XXIV, pp. 4079-4080.] Riebold’s trial counsel advised the court that he would be able to proceed with the trial and afford Riebold effective legal assistance. The record does not contain any further reference to counsel’s physical condition even though the trial lasted at least ten days beyond the colloquy, supra. Under these circumstances, and in view of the very able defense afforded Riebold, we cannot accept Riebold’s suggestion, advanced and orally argued by his appellate counsel, that we, in effect, look beyond the record in accepting Riebold’s personal “diagnosis” of his trial counsel’s physical condition, together with some invidious effect upon his mental capacities resulting from the use of codeine, supra. Even though appellate counsel do not advocate utilization of this circuit’s standard for effective assistance of counsel, supra, the allegation on appeal is, in effect, that the retained counsel for Morgan, prior to trial, and Riebold’s appointed trial counsel were so ineffective that they rendered the trial a sham, a mockery and a farce. These allegations are wholly frivolous and without merit. We do not look with favor on these bald, unfounded appellate arguments. II. Appellants contend that the trial court erred in refusing to grant a mistrial when FBI Agent Behrenz, a certified public accountant, stated on direct examination that the “first count in the indictment. refers to one of the kickbacks to Donald Morgan.” Defense counsel objected immediately to the use of the word “kickback,” alleging that it was highly prejudicial and that its usage mandated a mistrial. The trial court promptly ordered that the testimony be stricken and that the agent should “start over again” in his testimony. Count I of the indictment states, in part: ... DONALD T. MORGAN.. for endeavoring to procure and for procuring a loan in the amount of $200,000... did stipulate for, agree to receive, and receive for his personal use a fee, commission, and thing of value, to-wit: $10,000. This count clearly charges a “kickback.” “Kickback” is defined in Ballentine’s Law Dictionary, p. 700, (3rd Ed. 1969), as including “the payment of money or property to an individual for causing his employer. to deal otherwise with, the person making the payment.” In United States v. Engle, 458 F.2d 1017 (8th Cir. 1972), the Court upheld the refusal to grant a mistrial when a government agent referred to unreported payments as “kickbacks”: Appellant next complains because the court denied his motion for a mistrial when a witness for the Government, in response to a question on direct examination, referred to the payments received by appellant as “kickbacks.” The court, upon motion, ordered the question and answer stricken and admonished the jury to disregard both. However, appellant’s motion for a mistrial was denied. We are satisfied the incident did not require a mistrial. Indeed, we suspect the agent’s use of the term “kickbacks” was warranted. In any event, no prejudice resulted. 458 F.2d, at 1020. We hold that the use of the term “kickback” did not warrant the trial court’s grant of a mistrial. This is particularly true where, as here, the term had been used a dozen times in the Government’s opening statement without objection. Furthermore, testimony of the conversation objected to related simply to Count I. Error, even if present, could rise no higher than harmless error because appellants were sentenced to concurrent sentences on numerous counts. Thus, error relative to one count which is unrelated to other counts, as here, could not effect the sentences. United States v. Gamble, 541 F.2d 873 (10th Cir. 1976); United States v. Smith, 532 F.2d 158 (10th Cir. 1976). III. Morgan contends that the trial court erred in allowing the jurors to take notes during the trial and that a mistrial should have been granted. The trial court allowed the jurors to take notes after one juror requested permission to do so. The court did so because of the complexity of the case, and then only after a majority of the jurors indicated their desire to take notes. Although Morgan now contends that the trial court’s admonitions to the jury relative to notetaking were inadequate, he failed to offer any suggestions or admonitions on notetaking to the trial court at the time the matter arose. This Court has not ruled on the propriety of notetaking by jurors. While some circuits have differed on this issue, the recent trend is to allow notetaking under the guidance of the trial court. That trend is well stated in United States v. Braverman, 522 F.2d 218 (7th Cir. 1975), cert. denied, 423 U.S. 985, 96 S.Ct. 392, 46 L.Ed.2d 302 (1975): The decision to allow a jury to take notes as well as the procedure used for such note-taking are also matters within the sound discretion of the district court. United States v. Marquez, 449 F.2d 89, 93 (2d Cir. 1971), cert. denied, 405 U.S. 963, 92 S.Ct. 1173, 31 L.Ed.2d 239 (1972); United States v. Pollack, 433 F.2d 967 (5th Cir. 1970). We find no abuse of discretion here. Since the jury here requested that they be permitted to make notes during the playing of the tape, the defendant’s reliance on United States v. Standard Oil Co., 316 F.2d 884 (7th Cir. 1963), is inapposite. 522 F.2d, at 224. We believe that the rule applied in Braver-man, supra, is the logical approach. The ultimate purpose to be served is that of aid and assistance to the jurors. It is well known that judges and trial attorneys, trained by experience and practice in the art of noting important, relevant facts freely avail themselves of the opportunity of notetaking. The Braver man rule is analogous to our holding that the trial court may allow the submission of papers, documents, or articles to the jury during the course of its deliberations, whether admitted or not, in order to guide and assist the jury in understanding and resolving factual controversies. United States v. Downen, 496 F.2d 314 (10th Cir. 1974), cert. denied, 419 U.S. 897, 95 S.Ct. 177, 42 L.Ed.2d 142 (1974). In Downen, supra, we stated: We have held that it is within the discretion of the Trial Court, absent abuse working to the clear prejudice of the defendant, to permit the display of demonstrative or illustrative exhibits admitted in evidence both in the courtroom during trial and in the jury room during deliberations. Taylor v. Reo Motors, Inc., 275 F.2d 699 (10th Cir. 1960); Ahern v. Webb, 268 F.2d 45 (10th Cir. 1959); Millers’ National Insurance Company, Chicago, Illinois v. Wichita Flour Mills Company, 257 F.2d 93 (10th Cir. 1958); Carlson v. United States, 187 F.2d 366 (10th Cir. 1951). 496 F.2d, at 320. To the same effect, we hold that the submission of papers, documents or articles, whether or not admitted in evidence, to the jury for view during trial or jury deliberations, accompanied by careful cautionary instructions as to their use and limited significance, is within the discretion accorded the Trial Court in order that it may guide and assist the jury in understanding and judging the factual controversy. Shane v. Warner Mfg. Corp., 229 F.2d 207 (3rd Cir. 1956), dismissed, 351 U.S. 959, 76 S.Ct. 860, 100 L.Ed. 1481 (1956); Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395, 68 A.L.R.2d 761; 5B C.J.S. Appeal and Error § 1782, 89 C.J.S. Trial § 467. 496 F.2d, at 321. Applying these standards to the circumstances of this case, we hold that the trial court did not abuse its discretion in allowing the jurors to take notes. The trial court properly admonished the jurors as to the manner in which they were to take and use notes: THE COURT: All right. We will give each of you a stenographer’s notebook, and a pencil, and if any of you have reason to have your pencils sharpened, we have a pencil sharpener in the office and the bailiff can sharpen your pencil for you. Now, I want to make certain admonitions to you. That is, that.whatever you put down is confidential. In other words, you can’t go out into the jury room and discuss it with each other until the case is submitted to you. In other words, you are not to discuss this case in the jury room or elsewhere. If any notes have been taken in the jury room up to now, they are to be kept confidential. In other words—well, you can see what I am talking about. Another thing, I don’t want note-taking to distract you from hearing the evidence. If you would make your notes at some lull in the proceedings, or when you retire to the jury room, or something, it would be better than to have you distracted. Of course, if there’s some date or something you have to put down while the case is going on, why, that’s all right. But I just didn’t want this note-taking to distract any of you from hearing the evidence. Do you all have a note book now and a pencil? [R., Vol. IX, pp. 1287-1288.] IV. Morgan contends that the 84 count indictment returned was patently biased and embarrassing to all defendants. He contends further that it caused great confusion in the minds of the jury, led the jury to infer guilt, and constituted a misjoinder of crimes and defendants. Morgan’s “broadside” challenge is that it “does not require one trained in the law to conclude that the 84 count indictment... is patently unfair, prejudicial and a constitutional travesty to defendant’s rights... ”. He also urges that “legal citations need not be made to support the statement that such an indictment as is found herein must be shown to have embarrassed and prejudiced the defendants in their defense.. ”. Morgan’s attack seems to contend that the trial court erred in refusing to sever the counts and- the defendants for trial. We hold that the trial court did not err. The granting of a motion to sever is a discretionary matter which will not be set aside, absent an abuse of discretion. Mutual participation of defendants in an offense or series of offenses is considered a logical, basic ground for refusing to grant a motion to sever. In United States v. Walton et al., 552 F.2d 1354 (10th Cir. 1977), we said: . One moved for severance prior to trial. We held that a motion for severance is directed to the sound discretion of the trial court, citing to United States v. Rodgers, 419 F.2d 1315 (10th Cir.1969). We there held that refusal to grant such a motion is error only when that discretion has been abused. In Davis, [United States v. Davis, 436 F.2d 679 (10th Cir.)] as in Rodgers, we noted that Fed.Rules Cr.Proe. 8(b), 18 U.S.C.A. permits the joinder of two or more defendants in the same indictment “if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses... ” [P. 1359.] See also: United States v. Branker, 395 F.2d 881 (2nd Cir. 1968), cert. denied, 393 U.S. 1029, 89 S.Ct. 639, 21 L.Ed.2d 573 (1969), where the court upheld the denial of a motion to sever applicable to two of eight defendants named in eighty (80) substantive counts. Joinder of defendants and counts in the case at bar was proper. In United States v. Eagleston, 417 F.2d 11 (10th Cir. 1969), we stated: Eagleston complains of a misjoinder of offenses under Fed.R.Crim.P. 8(a). Faubian complains of a misjoinder of defendants under Fed.R.Crim.P. 8(b). This court has held the joinder of offenses proper if they are of the same character. Hoover v. United States, 268 F.2d 787 (10th Cir. 1959); Mills v. Aderhold, 110 F.2d 765 (10th Cir. 1940); Archambault v. United States, 224 F.2d 925 (10th Cir. 1955). Therefore the misjoinder claim of Eagleston is without merit. Under Fed.R.Crim.P. 8(b) when there is a joinder of defendants and offenses totally unconnected, there is no room for judicial discretion and the court must grant severance. Ingram v. United States, 272 F.2d 567 (4th Cir. 1959). In this case Eagleston participated in the offenses charged in all three counts, however, it is without question that Faubian participated only in counts two and three. Therefore, there was no misjoinder of offenses regarding Eagleston but there was a misjoinder of defendants in regard to Faubian and the conviction of Faubian must be reversed and remanded to the trial court for further proceedings. The government argues that since counts two and three were properly joined to count one under Rule 8(a), the joinder of Faubian was proper. Rule 8(a), however, does not apply in cases where more than one defendant is joined in the same indictment. Such joinder is governed by Rule 8(b).... 417 F.2d, at 14. We recognize that whenever defendants are tried jointly on a multicount indictment there is a remote possibility that the jury may infer guilt on all the counts garnered simply from a finding of guilt on one of the counts. This conjectural possibility should not, however, dictate nonuse of multicount indictments under proper circumstances. United States v. Meriwether, 486 F.2d 498 (5th Cir. 1973), cert. denied, 417 U.S. 948, 94 S.Ct. 3074, 41 L.Ed.2d 668 (1974). Where the evidence overlaps and the offenses are similar, such as here, and the operable events occurred within a relatively short span of time, joinder of offenses is proper. United States v. Riley, 530 F.2d 767 (8th Cir. 1976); Fed.Rules Cr.P. Rules 8(a), 14, 18 U.S.C.A., Morgan complains that Count 70, which is a lengthy, detailed conspiracy charge, should not have been included within the indictment. His complaint is without merit. A conspiracy count may be charged in an indictment together with separate counts charging substantive offenses. In United States v. Cooper, 464 F.2d 648 (10th Cir. 1972), cert. denied, 409 U.S. 1107, 93 S.Ct. 902, 34 L.Ed.2d 688 (1973), we said: . The first improper joinder asserted is that of including the conspiracy charge and the separate substantive offenses together in the indictment. It is a general rule that “a conspiracy count may properly be joined with substantive counts where it is alleged and shown that the offenses are of the same or similar character and are based upon two or more acts or transactions connected together or constituting parts of a common scheme or plan.” Miller v. United States, 410 F.2d 1290 (8th Cir. 1969), cert. denied, 396 U.S. 830, 90 S.Ct. 81, 24 L.Ed.2d 80. Inclusion in the indictment of the conspiracy count and the separate substantive counts was not improper under F Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. A. not ascertained B. male - indication in opinion (e.g., use of masculine pronoun) C. male - assumed because of name D. female - indication in opinion of gender E. female - assumed because of name Answer:
songer_numresp	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Appellee, v. Solomon GREEN, Appellant. No. 340, Docket 33989. United States Court of Appeals, Second Circuit. Submitted Dec. 4, 1969. Decided Jan. 27, 1970. Herbert S. Siegal, New York City, for appellant. Robert M. Morgenthau, U. S. Atty., for the Southern District of New York, New York City, Gary P. Naftalis, Ross Sandler, Asst. U. S. Attys., New York City, of counsel, for appellee. Before WATERMAN, HAYS and FEINBERG, Circuit Judges. PER CURIAM: The trial court found Green guilty of perjury in violation of 18 U.S.C. § 1621 (1964), and of conspiracy to. violate 26 U.S.C. § 7206(2) (1964) and Green appeals. We affirm the conviction. From the findings of the trial court which are supported by ample evidence it appears that Green participated in a conspiracy to cash winning twin double tickets at Yonkers and Roosevelt Raceways. The purpose of the conspiracy was to keep secret from the raceway officials, and ultimately from the Internal Revenue Service, the identity of true winners on these tickets. Green contends that his conviction on the conspiracy count must be- set aside because he was charged with conspiring with one Sandler and there is insufficient evidence of Sandler’s participation. However, the indictment charged Green with conspiring not only with Sandler but with other persons unknown to the Grand Jury. The evidence as to conspiracy with various winners was clearly sufficient to establish the conspiracy. “Of course, at least two persons are required to constitute a conspiracy, but the identity of the other members of the conspiracy is not needed, inasmuch as one person can be convicted of conspiring with persons whose names are unknown.” Rogers v. United States, 340 U.S. 367, 375, 71 S.Ct. 438, 443, 95 L.Ed. 344 (1951). Moreover, there was evidence that Green had Sandler obtain for him a quantity of losing twin double tickets to offset the winning tickets. Green also urges that he was not properly convicted of perjury. The question which elicited the allegedly perjurious answer, “No,” was: “Now, from then [1964] until the present did you engage in any transaction at Yonkers Raceway where you either gave winning twin double tickets to others to cash or cashed winning twin double tickets which you received from others ?” Green’s contention that he thought the question referred only to transactions involving more than one ticket is clearly frivolous. In any event a moment later Green answered, “No” to the question: “During that entire period then you neither cashed anyone else’s ticket or gave anyone else a ticket to cash for you?” Finally Green argues that the evidence as to perjury did not satisfy the two witness rule. However, apart from the corroboration of each other’s testimony provided by two witnesses each testifying to different transactions, see United States v. Manfredonia, 414 F.2d 760, 764 (2d Cir. 1969), the evidence of a witness as to one of the transactions was corroborated by Green’s own admission. See United States v. Marchisio, 344 F.2d 653, 665 (2d Cir. 1965). Question: What is the total number of respondents in the case? Answer with a number. 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. CARLSBAD TECHNOLOGY, INC. v. HIF BIO, INC., et al. No. 07-1437. Argued February 24, 2009 Decided May 4, 2009 Glenn W. Rhodes argued the cause for petitioner. With him on the briefs were Richard L. Stanley and Stephanie M. Byerly. Theodore Allison argued the cause for respondents. With him on the brief was Bub-Joo S. Lee. Justice Thomas delivered the opinion of the Court. In this case, we decide whether a federal court of appeals has jurisdiction to review a district court’s order that remands a case to state court after declining to exercise supplemental jurisdiction over state-law claims under 28 U. S. C. § 1867(c). The Court of Appeals for the Federal Circuit held that appellate review of such an order is barred by § 1447(d) because it viewed the remand order in this case as resting on the District Court’s lack of subject-matter jurisdiction over the state-law claims. We disagree and reverse the judgment of the Court of Appeals. I In 2005, respondents filed a complaint against petitioner and others in California state court, alleging that petitioner had violated state and federal law in connection with a patent dispute. Petitioner removed the case to the United States District Court for the Central District of California pursuant to § 1441(c), which allows removal of an “entire case” when it includes at least one claim over which the federal district court has original jurisdiction. Petitioner then filed a motion to dismiss the only federal claim in the lawsuit, which arose under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C. §§ 1961-1968, for failure to adequately allege a pattern of racketeering. HIF Bio, Inc. v. Yung Shin Pharmaceuticals Indus. Co., 508 F. 3d 659, 662 (CA Fed. 2007). The District Court agreed that respondents had failed to state a RICO claim upon which relief could be granted and dismissed the claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The District Court also declined to exercise supplemental jurisdiction over the remaining state-law claims pursuant to 28 U. S. C. § 1367(c)(3), which provides that a district court “may decline to exercise supplemental jurisdiction over a claim” if “the district court has dismissed all claims over which it has original jurisdiction.” The District Court then remanded the case to state court as authorized by this Court’s decision in Carnegie-Mellon Univ. v. Cohill, 484 U. S. 343 (1988). Petitioner appealed to the United States Court of Appeals for the Federal Circuit, arguing that the District Court should have exercised supplemental jurisdiction over the state-law claims because they implicate federal patent-law rights. 508 F. 3d, at 663. The Court of Appeals dismissed the appeal, finding that the remand order could “be colorably characterized as a remand based on lack of subject matter jurisdiction” and, therefore, could not be reviewed under §§ 1447(c) and (d), which provide in part that remands for “lack of subject matter jurisdiction” are “not reviewable on appeal or otherwise.” See id., at 667. This Court has not yet decided whether a district court’s order remanding a case to state court after declining to exercise supplemental jurisdiction is a remand for lack of subject-matter jurisdiction for which appellate review is barred by §§ 1447(c) and (d). See Powerex Corp. v. Reliant Energy Services, Inc., 551 U. S. 224, 235, n. 4 (2007) (“We have never passed on whether Cohill remands are subject-matter jurisdictional for purposes of . . . § 1447(c) and § 1447(d)”). We granted certiorari to resolve this question, 555 U. S. 943 (2008), and now hold that such remand orders are not based on a lack of subject-matter jurisdiction. Accordingly, we reverse the judgment of the Court of Appeals and remand for further proceedings. II Appellate review of remand orders is limited by 28 U. S. C. § 1447(d), which states: “An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.” This Court has consistently held that § 1447(d) must be read in pari materia with § 1447(c), thus limiting the remands barred from appellate review by § 1447(d) to those that are based on a ground specified in § 1447(e). See Thermtron Products, Inc. v. Hermansdorfer, 423 U. S. 336, 345-346 (1976); see also Powerex, supra, at 229; Quackenbush v. Allstate Ins. Co., 517 U. S. 706, 711-712 (1996); Things Remembered, Inc. v. Petrarca, 516 U. S. 124, 127 (1995). One type of remand order governed by § 1447(c) — the type at issue in this case — is a remand order based on a lack of “subject matter jurisdiction.” § 1447(c) (providing, in relevant part, that “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded”). The question presented in this case is whether the District Court’s remand order, which rested on its decision declining to exercise supplemental jurisdiction over respondents’ state-law claims, is a remand based on a “lack of subject matter jurisdiction” for purposes of §§ 1447(c) and (d). It is not. “Subject matter jurisdiction defines the court’s authority to hear a given type of case,” United States v. Morton, 467 U. S. 822, 828 (1984); it represents “the extent to which a court can rule on the conduct of persons or the status of things,” Black’s Law Dictionary 870 (8th ed. 2004). This Court’s precedent makes clear that whether a court has subject-matter jurisdiction over a claim is distinct from whether a court chooses to exercise that jurisdiction. See, e.g., Quackenbush, supra, at 712 (holding that an abstention-based remand is not a remand for “lack of subject matter jurisdiction” for purposes of §§ 1447(c) and (d)); Ankenbrandt v. Richards, 504 U. S. 689, 704 (1992) (questioning whether, “even though subject-matter jurisdiction might be proper, sufficient grounds exist to warrant abstention from the exercise of that jurisdiction”); Iowa Mut. Ins. Co. v. LaPlante, 480 U. S. 9, 16, n. 8 (1987) (referring to exhaustion requirement as “a matter of comity” that does “not deprive the federal courts of subject-matter jurisdiction” but does “rende[r] it appropriate for the federal courts to decline jurisdiction in certain circumstances”). With respect to supplemental jurisdiction in particular, a federal court has subject-matter jurisdiction over specified state-law claims, which it may (or may not) choose to exercise. See §§ 1367(a), (c). A district court’s decision whether to exercise that jurisdiction after dismissing every claim over which it had original jurisdiction is purely discretionary. See § 1367(c) (“The district courts may decline to exercise supplemental jurisdiction over a claim ... if... the district court has dismissed all claims over which it has original jurisdiction” (emphasis added)); Osborn v. Haley, 549 U. S. 225, 245 (2007) (“Even if only state-law claims remained after resolution of the federal question, the District Court would have discretion, consistent with Article III, to retain jurisdiction”); Arbaugh v. Y & H Corp., 546 U. S. 500, 514 (2006) (“[W]hen a court grants a motion to dismiss for failure to state a federal claim, the court generally retains discretion to exercise supplemental jurisdiction, pursuant to 28 U. S. C. §1367, over pendent state-law claims”); see also 13D C. Wright, A. Miller, E. Cooper, & R. Freer, Federal Practice and Procedure §3567.3, pp. 428-432 (3d ed. 2008) (“Once it has dismissed the claims that invoked original bases of subject matter jurisdiction, all that remains before the federal court are state-law claims.... The district court retains discretion to exercise supplemental jurisdiction [over them]”). As a result, “the [district] court’s exercise of its discretion under § 1367(c) is not a jurisdictional matter. Thus, the court’s determination may be reviewed for abuse of discretion, but may not be raised at any time as a jurisdictional defect.” 16 J. Moore et al., Moore’s Federal Practice §106.05[4], p. 106-27 (3d ed. 2009). It is undisputed that when this case was removed to federal court, the District Court had original jurisdiction over the federal RICO claim pursuant to 28 U. S. C. § 1331 and supplemental jurisdiction over the state-law claims because they were “so related to claims in the action within such original jurisdiction that they form[ed] part of the same case or controversy under Article III of the United States Constitution,” § 1367(a). Upon dismissal of the federal claim, the District Court retained its statutory supplemental jurisdiction over the state-law claims. Its decision declining to exercise that statutory authority was not based on a jurisdictional defect but on its discretionary choice not to hear the claims despite its subject-matter jurisdiction over them. See Chicago v. International College of Surgeons, 522 U. S. 156, 173 (1997) (“Depending on a host of factors, then — including the circumstances of the particular case, the nature of the state law claims, the character of the governing state law, and the relationship between the state and federal claims — district courts may decline to exercise jurisdiction over supplemental state law claims”). The remand order, therefore, is not based on a “lack of subject matter jurisdiction” for purposes of the bar to appellate review created by §§ 1447(c) and (d). The Court of Appeals held to the contrary based on its conclusion that “every § 1367(c) remand necessarily involves a predicate finding that the claims at issue lack an independent basis of subject matter jurisdiction.” 508 F. 3d, at 667. But, as explained above, §§ 1367(a) and (c) provide a basis for subject-matter jurisdiction over any properly removed state claim. See Osborn, supra, at 245; Arbaugh, supra, at 514. We thus disagree with the Court of Appeals that the remand at issue here “can be colorably characterized as a lack of subject matter jurisdiction.” 508 F. 3d, at 667. * * * When a district court remands claims to a state court after declining to exercise supplemental jurisdiction, the remand order is not based on a lack of subject-matter jurisdiction for purposes of §§ 1447(c) and (d). The judgment of the Court of Appeals for the Federal Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. We do not revisit today whether Thermtron was correctly decided. Neither the brief for petitioner nor the brief for respondents explicitly asked the Court to do so here, and counsel for both parties clearly stated at oral argument that they were not asking for Thermtron to be overruled. See Tr. of Oral Arg. 16, 22; cf. South Central Bell Telephone Co. v. Alabama, 526 U. S. 160, 171 (1999). We also note that the parties in Powerex, Quackenbush, and Things Remembered did not ask for Therm-tron to be overruled. 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	2113	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 18. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". Juan KELSEY, Appellant, v. UNITED STATES of America. No. 72-2009. United States Court of Appeals, Third Circuit. Submitted Under Third Circuit Rule 12(6) July 25, 1973. Resubmitted Under Third Circuit Rule 12(6) Sept. 4, 1973. Decided Sept. 13,1973. Harry S. Tischler, Asst. Defender, Defender Ass’n of Philadelphia, Philadelphia, Pa., for appellant. Robert E. J. Curran, U. S. Atty., Carmen C. Nasuti, Asst. U. S. Atty., Philadelphia, Pa., for appellee. Submitted Under Third Circuit Rule 12(6) July 25, 1973 Before SEITZ, Chief Judge, and AL-DISERT, Circuit Judge. Resubmitted Under Third Circuit Rule 12(6) Sept. 4, 1973 Before SEITZ, Chief Judge, and AL-DISERT and HUNTER, Circuit Judges. OPINION OF THE COURT PER CURIAM. Where defense counsel erroneously informs a defendant entering a plea of guilty that sentences in a bank robbery charge could be pyramided into a 75-year maximum, can it be said that the guilty plea was entered “voluntarily after proper advice and with full understanding of the circumstances”? Following an evidentiary hearing in a § 2255 proceeding, the district court found that “any error was harmless beyond a reasonable doubt.” We reverse. Critical to the pronouncement of any sentence on multicount indictments under the federal bank robbery statute, 18 U.S.C. § 2113, is the avoidance of improper pyramiding punishment authorized for the violation of various sections of the statute. The district court appears to have acknowledged that the information furnished appellant was erroneous, but reasoned that at thé time of the reception of the plea the clear guidelines of United States v. Conway, 415 F.2d 158 (3d Cir. 1969), had not yet been announced. Such an approach does not appear to recognize that Conway simply applied the teachings of Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957), a decision handed down twelve (12) years prior to the plea in this case. We deem as inapplicable to these proceedings the doctrine of Brady v. United States, 397 U. S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), that a subsequent change in the law which greatly reduces the possible sentences which might have been imposed does not vitiate a previously entered guilty plea. The clarification of the law did not originate in Conway, it stemmed from Prince. In United States v. Jasper, 481 F.2d 976 (3d Cir., 1973), we reported that “the court’s first advice gave too low a maximum, the statement by the Assistant United States Attorney assumed, contrary to Prince that the sentence could be pyramided, and the court, while finally stating the correct maximum on each count, did not correct the pyramiding; misstatement.” We held that defendant’s acknowledgment that he understood this colloquy “is hardly sufficient to indicate that he knew the real potential consequences of his plea.” (481 F.2d 981.) Moreover, we are convinced that the controlling principle is that stated in Berry v. United States, supra, 412 F.2d at 191: “Whether prejudice resulted from the entry of the guilty plea is not measured by the severity or leniency of the sentence imposed; prejudice inheres when an accused pleads guilty, thus convicting himself of a criminal offense, without understanding the significance or consequences of his action.” The appellant having been told that the maximum sentence was 75 years, when in fact the maximum was considerably less than that, we are persuaded that there was not total compliance with F.R.Cr.P. 11, McCarthy v. United States, supra, and that he did not enter his plea with “understanding of the . . . consequences of the plea.” The plea of guilty will be vacated, the sentence imposed thereon will be vacated, and the proceedings remanded with a direction to permit appellant to plead anew. . Berry v. United States, 412 F.2d 189, 192 (3d Cir. 1969), citing United States ex rel. Crosby v. Brierley, 404 F.2d 790 (3d Cir. 1968). . Appellant entered his plea October 23, 1969, subsequent to McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), and was sentenced to 25 years imprisonment pursuant to 18 U.S.C. § 4208(b). The sentence was modified on January 15, 1970, to imprisonment for a period of 7 years under the provision of 18 U.S.C. § 5010(c) of the Youth Corrections Act. . In Prince the defendant had been sentenced to 20 years for robbery of a federally insured bank and 15 years for entering the bank with the intention to commit a felony. The Court held that “when Congress made either robbery or an entry for that purpose a crime it intended that the maximum punishment for robbery should remain at 20 years, but that, even if the culprit should fall short of accomplishing his purpose, he could be imprisoned for 20 years for entering with the felonious intent.” 352 U.S. at 329, 77 S.Ct. at 407. In this case, appellant was indicted in four multiple counts charging a violation of 18 U.S.C. § 2113(a), (b) and (d). Count one charged a taking by force and violence the sum of $474.00 belonging to the bank, a violation of (a). Count two also referred to (a), charging an entering of the bank to commit a felony. Count three charged a violation of (b), the actual taking. Count four charged a violation of (d), “putting in jeopardy” the lives of others while committing (a) and (b). In the statutory text, a violation of (a) calls for a penalty of 20 years for the robbery clause, or the entering clause. Section (b), the larceny clause, calls for a 10-year penalty. Section (d) is the use-of-firearm clause with its 25-year penalty. The following colloquy took place at the plea: THE COURT: Do you know on each of those counts if you enter a plea of guilty you could be sentenced to a term of imprisonment of 20 years and/or a fine of $5,000.00; do you understand that? APPELLANT: Yes, Sir. DEFENSE COUNSEL: Your honor, I believe it is 20 years on the first two counts, and 25 years on the fourth count, a total of 75 years. THE COURT: All right, I stand corrected. Do you understand that, Mr. Kelsey, 20 years on the first two counts, 10 years on the third count and 25 years on the fourth count? APPELLANT: Yes, sir. Without dissecting the entire colloquy, we note that the use of the 75 years by defense counsel had the capability of being interpreted as follows: count one, 20 years; count two, 20 years; count three, 10 years; count four, 25 years, or a total of 75 years. By the court’s statement: “All right, I stand corrected,” the court unwittingly endorsed the erroneous computation of appellant’s counsel. Prince flatly held that there could not be an accumulation of sentences on counts one and two. In any event, the government does not in its brief suggest that appellant was not misinformed, but contends that this was harmless error. . In dissent, Judge Van Dusen stated: “On the facts presented by this record, I would apply the holdings in the Fifth and Tenth Circuits that misinformation, given to a defendant at arraignment by a district judge, which indicates a possible longer sentence than the law permits does not invalidate a plea of guilty entered after receipt of such misinformation. United States v. Woodall, 438 F.2d 1317, 1329 (5th Cir. 1971) ; Murray v. United States, 419 F.2d 1076, 1079 (10th Cir. 1969).” 481 F.2d at 984. The majority rejected his view. 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 18? Answer with a number. Answer:
sc_petitioner	166	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them. Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. RONDEAU v. MOSINEE PAPER CORP. No. 74-415. Argued April 15, 1975 — Decided June 17, 1975 David E. Beckwith argued the cause for petitioner. With him on the briefs were Maurice J. McSweeney and Richard H. Porter. Laurence C. Hammond, Jr., argued the cause for respondent. With him on the brief was James A. Urdan. Mr. Chief Justice Burger delivered the opinion of the Court. We granted certiorari in this case to determine whether a showing of irreparable harm is necessary for a private litigant to obtain injunctive relief in a suit under § 13 (d) of the Securities Exchange Act of 1934, 48 Stat. 894, as added by § 2 of the Williams Act, 82 Stat. 454, as amended, 84 Stat. 1497, 15 TJ. S. C. § 78m (d). 419 U. S. 1067 (1974). The Court of Appeals held that it was not. 500 F. 2d 1011 (CA7 1974). We reverse. I Respondent Mosinee Paper Corp. is a Wisconsin company engaged in the manufacture and sale of paper, paper products, and plastics. Its principal place of business is located in Mosinee, Wis., and its only class of equity security is common stock which is registered under § 12 of the Securities Exchange Act of 1934, 15 U. S. C. § 781. At all times relevant to this litigation there were slightly' more than 800,000 shares of such stock outstanding. In April 1971 petitioner Francis A. Rondeau, a Mosinee businessman, began making large purchases of respondent’s common stock in the over-the-counter market. Some of the purchases were in his own name; others were in the name of businesses and. a foundation known to be controlled by him. By May 17, 1971, petitioner had acquired 40,413 shares of respondent’s stock, which constituted more than 5% of those outstanding. He was therefore required to comply with the disclosure provisions of the Williams Act, by filing a Schedule 13D with respondent and the Securities and Exchange Commission within 10 days. That form would have disclosed, among other things, the number of shares beneficially owned by petitioner, the source of the funds used to purchase them, and petitioner’s purpose in making the purchases. Petitioner did not file a Schedule 13D but continued to purchase substantial blocks of respondent’s stock. By July 30, 1971, he had acquired more than 60,000 shares. On that date the chairman of respondent’s board of directors informed him by letter that his activity had “given rise to numerous rumors” and “seems to have created some problems under the Federal Securities Laws....” Upon receiving the letter petitioner immediately stopped placing orders for respondent’s stock and consulted his attorney. On August 25, 1971, he filed a Schedule 13D which, in addition to the other required disclosures, described the “Purpose of Transaction” as follows: “Francis A. Rondeau determined during early part of 1971 that the common stock of the Issuer [respondent] was undervalued in the over-the-counter market and represented a good investment vehicle for future income and appreciation. Francis A. Rondeau and his associates presently propose to seek to acquire additional common stock of the Issuer in order to obtain effective control of the Issuer, but such investments as originally determined were and are not necessarily made with this objective in mind. Consideration is currently being given to making a public cash tender offer to the shareholders of the Issuer at a price which will reflect current quoted prices for such stock with some premium added.” Petitioner also stated that, in the event that he did obtain control of respondent, he would consider making changes in management “in an effort to provide a Board of Directors which is more representative of all of the shareholders, particularly those outside of present management....” One month later petitioner amended the form to reflect more accurately the allocation of shares between himself and his companies. On August 27 respondent sent a letter to its shareholders informing them of the disclosures in petitioner's Schedule 13D. The letter stated that by his “tardy filing” petitioner had “withheld the information to which you [the shareholders] were entitled for more than two months, in violation of federal law.” In addition, while agreeing that “recent market prices have not reflected the real value of your Mosinee stock,” respondent's management could “see little in Mr. Rondeau's background that would qualify him to offer any meaningful guidance to a Company in the highly technical and competitive paper industry.” Six days later respondent initiated this suit in the United States District Court for the Western District of Wisconsin. Its complaint named petitioner, his companies, and two banks which had financed some of petitioner's purchases as defendants and alleged that they were engaged in a scheme to defraud respondent and its shareholders in violation of the securities laws. It alleged further that shareholders who had “sold shares without the information which defendants were required to disclose lacked information material to their decision whether to sell or hold,” and that respondent “was unable to communicate such information to its stockholders, and to take such actions as their interest required.” Respondent prayed for an injunction prohibiting petitioner and his codefendants from voting or pledging their stock and from acquiring additional shares, requiring them to divest themselves of stock which they already owned, and for damages. A motion for a preliminary injunction was filed with the complaint but later withdrawn. After three months of pretrial proceedings petitioner moved for summary judgment. He readily conceded that he had violated the Williams Act, but contended that the violation was due to a lack of familiarity with the securities laws and that neither respondent nor its shareholders had been harmed. The District Court agreed. It found no material issues of fact to exist regarding petitioner’s lack of willfulness in failing to timely file a Schedule 13D, concluding that he discovered his obligation to do so on July 30, 1971, and that there was no basis in the record for disputing his claim that he first considered the possibility of obtaining control of respondent some time after that date. The District Court therefore held that petitioner and his codefendants “did not engage in intentional covert, and conspiratorial conduct in failing to timely file the 13D Schedule.” Similarly, although accepting respondent’s contention that its management and shareholders suffered anxiety as a result of petitioner’s activities and that this anxiety was exacerbated by his failure to disclose his intentions until August 1971, the District Court concluded that similar anxiety “could be expected to accompany any change in management,” and was “a predictable consequence of shareholder democracy.” It fell far short of the irreparable harm necessary to support an injunction and no other harm was revealed by the record; as amended, petitioner’s Schedule 13D disclosed all of the information to which respondent was entitled, and he had not proceeded with a tender offer. Moreover, in the view of the District Court even if a showing of irreparable harm were not required in all cases under the securities laws, petitioner’s lack of bad faith and the absence of damage to respondent made this “a particularly inappropriate occasion to fashion equitable relief....” Thus, although petitioner had committed a technical violation of the Williams Act, the District Court held that respondent was entitled to no relief and entered summary judgment against it. The Court of Appeals reversed, with one judge dissenting. The majority stated that it was “giving effect” to the District Court’s findings regarding the circumstances of petitioner’s violation of the Williams Act, but concluded that those findings showed harm to respondent because it “was delayed in its efforts to make any necessary response to” petitioner’s potential to take control of the company. In any event, the majority was of the view that respondent “need not show irreparable harm as a prerequisite to obtaining permanent injunctive relief in view of the fact that as issuer of the securities it is in the best position to assure that the filing requirements of the Williams Act are being timely and fully complied with and to obtain speedy and forceful remedial action when necessary.” 500 F. 2d, at 1016-1017. The Court of Appeals remanded the case to the District Court with instructions that it enjoin petitioner and his co-defendants from further violations of the Williams Act and from voting the shares purchased between the due date of the Schedule 13D and the date of its filing for a period of five years. It considered “such an injunctive decree appropriate to neutralize [petitioner’s] violation of the Act and to deny him the benefit of his wrongdoing.” Id., at 1017. We granted certiorari to resolve an apparent conflict among the Courts of Appeals and because of the importance of the question presented to private actions under the federal securities laws. We disagree with the Court of Appeals’ conclusion that the traditional standards for extraordinary equitable relief do not apply in these circumstances, and reverse. II As in the District Court and the Court of Appeals, it is conceded here that petitioner’s delay in filing the Schedule 13D constituted a violation of the Williams Act. The narrow issue before us is whether this record supports the grant of injunctive relief, a remedy whose basis “in the federal courts has always been irreparable harm and inadequacy of legal remedies.” Beacon Theatres, Inc. v. Westover, 359 U. S. 500, 506-507 (1959). The Court of Appeals’ conclusion that respondent suffered “harm” sufficient to require sterilization of petitioner’s stock need not long detain us. The purpose of the Williams Act is to insure that public shareholders who are confronted by a cash tender offer for their stock will not be required to respond without adequate information regarding the qualifications and intentions of the offering party. By requiring disclosure of information to the target corporation as well as the Securities and Exchange Commission, Congress intended to do no more than give incumbent management an opportunity to express and explain its position. The Congress expressly disclaimed an intention to provide a weapon for management to discourage takeover bids or prevent large accumulations of stock which would create the potential for such attempts. Indeed, the Act’s draftsmen commented upon the “extreme care” which was taken “to avoid tipping the balance of regulation either in favor of management or in favor of the person making the takeover bid.” S. Rep. No. 550, 90th Cong., 1st Sess., 3 (1967); H. R. Rep. No. 1711, 90th Cong., 2d Sess., 4 (1968). See also Electronic Specialty Co. v. International Controls Corp., 409 F. 2d 937, 947 (CA2 1969). Th^ short of the matter is that none of the evils to which the Williams Act was directed has occurred or is threatened in this case. Petitioner has not attempted to obtain control of respondent, either by a cash tender offer or any other device. Moreover, he has now filed a proper Schedule 13D, and there has been no suggestion that he will fail to comply with the Act’s requirement of reporting any material changes in the information contained therein. 15 U. S. C. § 78m (d) (2); 17 CFR § 240.13d-2 (1974). On this record there is no likelihood that respondent’s shareholders will be disadvantaged should petitioner make a tender offer, or that respondent will be unable to adequately place its case before them should a contest for control develop. Thus, the usual basis for injunctive relief, “that there exists some cognizable danger of recurrent violation,” is not present here. United States v. W. T. Grant Co., 345 U. S. 629, 633 (1953). See also Vicksburg Waterworks Co. v. Vicksburg, 185 U. S. 65, 82 (1902). Nor are we impressed by respondent’s argument that an injunction is necessary to protect the interests of its shareholders who either sold their stock to petitioner at predisclosure prices or would not have invested had they known that a takeover bid was imminent. Brief for Respondent 13, 20-21. As observed, the principal object of the Williams Act is to solve the dilemma of shareholders desiring to respond to a cash tender offer, and it is not at all clear that the type of “harm” identified by respondent is redressable under its provisions. In any event, those persons who allegedly sold at an unfairly depressed price have an adequate remedy by way of an action for damages, thus negating the basis for equitable relief. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 595 (1952) (Frankfurter, J., concurring). Similarly, the fact that the second group of shareholders for whom respondent expresses concern have retained the benefits of their stock and the lack of an imminent contest for control make the possibility of damage to them remote at best. See Truly v. Wanzer, 5 How. 141, 142-143 (1847). We turn, therefore, to the Court of Appeals’ conclusion that respondent’s claim was not to be judged according to traditional equitable principles, and that the bare fact that petitioner violated the Williams Act justified entry of an injunction against him. This position would seem to be foreclosed by Hecht Co. v. Bowles, 321 U. S. 321 (1944). There, the administrator of the Emergency Price Control Act of 1942 brought suit to redress violations of that statute. The fact of the violations was admitted, but the District Court declined to enter an injunction because they were inadvertent and the defendant had taken immediate steps to rectify them. This Court held that such an exercise of equitable discretion was proper despite § 205 (a) of the Act, 56 Stat. 23, 50 U. S. C. App. § 925 (a) (1940 ed., Supp. II), which provided that an injunction or other order “shall be granted” upon a showing of violation, observing: “We are dealing here with the requirements of equity practice with a background of several hundred years of history.... The historic injunctive process was designed to deter, not to punish. The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims. We do not believe that such a major departure from that long tradition as is here proposed should be lightly implied.” 321 U. S., at 329-330. (Emphasis added.) This reasoning applies a fortiori to actions involving only “competing private claims,” and suggests that the District Court here was entirely correct in insisting that respondent satisfy the traditional prerequisites of extraordinary equitable relief by establishing irreparable harm. Moreover, the District Judge’s conclusions that petitioner acted in good faith and that he promptly filed a Schedule 13D when his attention was called to this obligation support the exercise of the court’s sound judicial discretion to deny an application for an injunction, relief which is historically “designed to deter, not to punish” and to permit the court “to mould each decree to the necessities of the particular case.” Id., at 329. As Mr. Justice Douglas aptly pointed out in Hecht Co., the “grant of jurisdiction to issue compliance orders hardly suggests an absolute duty to do so under any and all circumstances.” Ibid, (emphasis in original). Respondent urges, however, that the “public interest” must be taken into account in considering its claim for relief and relies upon the Court of Appeals’ conclusion that it is entitled to an injunction because it “is in the best position” to insure that the Williams Act is complied with by purchasers of its stock. This argument misconceives, we think, the nature of the litigation. Although neither the availability of a private suit under the Williams Act nor respondent’s standing to bring it has been questioned here, this cause of action is not expressly authorized by the statute or its legislative history. Rather, respondent is asserting a so-called implied private right of action established by cases such as J. I. Case Co. v. Borak, 377 U. S. 426 (1964). Of course, we have not hesitated to recognize the power of federal courts to fashion private remedies for securities laws violations when to do so is consistent with the legislative scheme and necessary for the protection of investors as a supplement to enforcement by the Securities and Exchange Commission. Compare J. I. Case Co. v. Borak, supra, with Securities Investor Protection Corp. v. Barbour, 421 U. S. 412 (1975). However, it by no means follows that the plaintiff in such an action is relieved of the burden of establishing the traditional prerequisites of relief. Indeed, our cases hold that quite the contrary is true. In Deckert v. Independence Shares Corp., 311 U. S. 282 (1940), this Court was called upon to decide whether the Securities Act of 1933 authorized purchasers of securities to bring an action to rescind an allegedly fraudulent sale. The question was answered affirmatively on the basis of the statute’s grant of federal jurisdiction to “enforce any liability or duty” created by it. The Court’s reasoning is instructive: “The power to enforce implies the power to make effective the right of recovery afforded by the Act. And the power to make the right of recovery effective implies the power to utilize any of the procedures or actions normally available to the litigant according to the exigencies of the particular case. If petitioners’ bill states a cause of action when tested by the customary rules governing suits of such character, the Securities Act authorizes maintenance of the suit....” 311 U. S., at 288. In other words, the conclusion that a private litigant could maintain an action for violation of the 1933 Act meant no more than that traditional remedies were available to redress any harm which he may have suffered; it provided no basis for dispensing with the showing required to obtain relief. Significantly, this passage was relied upon in Borak with respect to actions under the Securities Exchange Act of 1934. See 377 U. S., at 433-434. Any remaining uncertainty regarding the nature of relief available to a person asserting an implied private right of action under the securities laws was resolved in Mills v. Electric Auto-Lite Co., 396 U. S. 375 (1970). There we held that complaining shareholders proved their case under § 14 (a) of the 1934 Act by showing that misleading statements in a proxy solicitation were material and that the solicitation itself “was an essential link in the accomplishment of” a merger. We concluded that any stricter standard would frustrate private enforcement of the proxy rules, but Mr. Justice Harlan took pains to point out: “Our conclusion that petitioners have established their case by showing that proxies necessary to approval of the merger were obtained by means of a materially misleading solicitation implies nothing about the form of relief to which they may be entitled.... In devising retrospective relief for violation of the proxy rules, the federal courts should consider the same factors that would govern the relief granted for any similar illegality or fraud.... In selecting a remedy the lower courts should exercise “ 'the sound discretion which guides the determinations of courts of equity/ ” keeping in mind the role of equity as 'the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims.’ ” 396 U. S., at 386, quoting Hecht Co. v. Bowles, 321 U. S., at 329. Considering further the remedies which might be ordered, we observed that “the merger should be set aside only if a court of equity concludes, from all the circumstances, that it would be equitable to do so,” and that “damages should be recoverable only to the extent that they can be shown.” 396 U. S., at 388, 389. Mills could not be plainer in holding that the questions of liability and relief are separate in private actions under the securities laws, and that the latter is to be determined according to traditional principles. Thus, the fact that respondent is pursuing a cause of action which has been generally recognized to serve the public interest provides no basis for concluding that it is relieved of showing irreparable harm and other usual prerequisites for injunctive relief. Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded to it with directions to reinstate the judgment of the District Court. So ordered. Me. Justice Marshall dissents. The Williams Act added § 13 (d) to the Securities Exchange Act of 1934, which has been further amended to provide in relevant part: “(d) (1) Any person who, after acquiring directly or indirectly the beneficial ownership of any equity security of a class which is registered pursuant to section 781 of this title, or any equity security of an insurance company which would have been required to be so registered except for the exemption contained in section 781 (g) (2) (G) of this title, or any equity security issued by a closed-end investment company registered under the Investment Company Act of 1940, is directly or indirectly the beneficial owner of more than 5 per centum of such class shall, within ten days after such acquisition, send to the issuer of the security at its principal executive office, by registered or certified mail, send to each exchange where the security is traded, and file with the Commission, a statement containing such of the following information, and such additional information, as the Commission may by rules and regulations prescribe as necessary or appropriate in the public interest or for the protection of investors— “(A) the background and identity of all persons by whom or on whose behalf the purchases have been or are to be effected; “(B) the source and amount of the funds or other consideration used or to be used in making the purchases, and if any part of the purchase price or proposed purchase price is represented or is to be represented by funds or other consideration borrowed or otherwise obtained for the purpose of acquiring, holding, or trading such security, a description of the transaction and the names of the parties thereto, except that where a source of funds is a loan made in the ordinary course of business by a bank, as defined in section 78c (a) (6) of this title, if the person filing such statement so requests, the name of the bank shall not be made available to the public; “(C) if the purpose of the purchases or prospective purchases is to acquire control of the business of the issuer of the securities, any plans or proposals which such persons may have to liquidate such issuer, to sell its assets to or merge it with any other persons, or to make any other major change in its business or corporate structure; “(D) the number of shares of such security which are beneficially owned, and the number of shares concerning which there is a right to acquire, directly or indirectly, by (i) such person, and (ii) by each associate of such person, giving the name and address of each such associate; and “(E) information as to any contracts, arrangements, or understandings with any person with respect to any securities of the issuer, including but not limited to transfer of any of the securities, joint ventures, loan or option arrangements, puts or calls, guaranties of loans, guaranties against loss or guaranties of profits, division of losses Question: Who is the petitioner of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
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. ARMSTRONG et al. v. UNITED STATES. No. 270. Argued March 28, 1960. Decided June 27, 1960. Burton R. Thorman argued thé cause for petitioners. With him on the brief was Solomon Dimond. Samuel D. Slade argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Doub and Seymour Farber. Mr. Justice Black delivered the opinion of the Court. In this action petitioners assert materialmen's liens under state law for materials furnished to a prime contractor building boats for the United States, and seek just compensation under the Fifth Amendment for the value of their liens on accumulated materials and uncompleted work which have been conveyed to the United States. The United States entered into a contract with the Rice Shipbuilding Corporation for the construction of 11 navy personnel boats. The contract provided that in the event of default by Rice, the Government could terminate the contract and require Rice to transfer title and deliver to the Government all completed and uncompleted work together with all manufacturing materials acquired by Rice for building the boats. Petitioners furnished various materials to Rice for use in construction of the boats. Upon Rice's default, the Government exercised its option as to 10 of the boat hulls still under construction; Rice executed an itemized “Instrument of Transfer of Title” conveying to the United States the hulls and all manufacturing materials then on hand; and the Government removed all of these properties to out-of-state naval shipyards for use in the completion of the boats. When the transfer occurred, petitioners had not been paid for their materials and they have not been paid since. Petitioners therefore contended that they had liens under Maine law which provides that “[wjhoever furnishes labor or materials for building a vessel has a lien on it therefor, which may be enforced by attachment thereof within 4 days after it is launched .... He also has a lien on the materials furnished before they become part of the vessel, which may be enforced by attachment . . . .” Maine Rev. Stat., 1954, c. 178, § 13. Claiming valid liens on the hulls and manufacturing materials at the time they were transferred by Rice to the United States, petitioners asserted that the Government’s action destroyed their liens by making them unenforceable and that this constituted a taking of their property without just compensation in violation of the Fifth Amendment. The Court of Claims, relying on United States v. Ansonia Brass & Copper Co., 218 U. S. 452, held that petitioners never acquired valid liens on the hulls or the materials transferred to the Government and that therefore there had been no taking of any property owned by them. -Ct. Cl.-, 169 F. Supp. 259. We granted certiorari. 361 U. S. 812. L The Court of Claims reached its conclusion from the correct premise that laborers and materialmen can acquire no liens on a “public work.” Hill v. American Surety Co., 200 U. S. 197, 203; Equitable Surety Co. v. McMillan, 234 U. S. 448, 455; United States v. Munsey Trust Co., 332 U. S. 234, 241. It reasoned that because the contract between Rice and the United States contemplated that title to the vessels would eventually vest in the Government, the Government had “inchoate title” to the materials supplied by petitioners, rendering such materials “public works” immune from the outset to petitioners’ liens. We cannot agree that a mere prospect that property will later be owned by the United States renders that property immune from otherwise valid liens. The sovereign’s immunity against materialmen’s liens has never been extended beyond property actually owned by it. The Ansonia case itself, upon which the Court of Claims relied, makes this clear, where in dealing with one aspect of the issues there involved, the Court said: “We are not now dealing with the right of a State to provide for such liens while property to the chattel in process of construction remains in the builder, who may be constructing the same with a view to transferring title therein to the United States upon its acceptance under a contract with the Government. We are now treating of property which the United States owns. Such property, for the most obvious reasons of public policy, cannot be seized by authority of another sovereignty against the consent of the Government.” 218 U. S., at 471. The terms of the contract between Rice and the United States show conclusively that Rice, not the United States, had title to the property when petitioners furnished their materials. The agreement provided for delivery, preliminary acceptance, and final acceptance of the boats, the contractor to remain responsible for all supplies until delivery. The contractor was required to insure the property for the Government’s benefit only to the extent of progress payments made and materials furnished by the Government. The very clause here invoked by the Government provided that upon default and termination of the contract the Government might “require the Contractor to transfer title and deliver” the work, supplies and materials on hand. (Emphasis added.) While the Government was obliged to make progress payments based on the percentage of the work completed, nothing in the contract provided that ownership of the portion of the work paid for should vest in the United States. On the contrary, it was stipulated that all progress payments should be secured by a paramount government lien on the property. And finally, the contractor was required to discharge immediately any lien or right in rem asserted against the property. In their totality, these provisions clearly recognize that title was to remain in Rice during performance of the work, and show that private liens could attach to the property while Rice owned it. We think, therefore, that the Court of Claims was in error in holding as it did. This, however, does not end the case in petitioners’ favor since the United States urges other grounds to support its judgment. II. It is contended that petitioners’ asserted liens gave them no compensable property interests within the meaning of the Fifth Amendment. Under Maine law, material-men become entitled to a lien when they furnish supplies; however, the lien must subsequently be enforced by attachment of the vessel or supplies. There is no allegation that any of the petitioners had taken steps to attach the uncompleted work. Nevertheless, they were entitled to resort to the specific property for the satisfaction of their claims. That such a right is compensable by virtue of the Fifth Amendment was decided in Louisville Bank v. Radford, 295 U. S. 555. In that case, a bank acquired a mortgage which under state law constituted a lien enforceable only by suit to foreclose. Subsequently, Congress amended the Bankruptcy Act so as to deprive mortgagees of substantial incidents of their rights to resort to mortgaged property. This Court held that the bank’s property had been taken without just compensation in violation of the Fifth Amendment. No reason has been suggested why the nature of the liens held by petitioners should be regarded as any different, for this purpose, from the interest of the bank held compensable in the Radford case. The Government, however, suggests that because it held a paramount lien on the property to secure its progress payments, petitioners’ claimed liens were in fact worthless. Petitioners, on the other hand, argue that when the Government chose to acquire title to the property rather than to enforce its lien, the lien merged with the title, thus making petitioners’ liens paramount, and that even if it did not, and their liens remained subordinate to that of the Government, the value of the hulls and materials would have been sufficient to satisfy the Government’s claims and some or all of petitioners’ claims as well. We need not decide whether, as a matter of law, the Government’s lien "merged” in its title. At the very least, petitioners, prior to the transfer of title, had the right to whatever proceeds the property might bring over and above the Government’s claim to the amount of its progress payments. By the date of default, Rice had expended some $198,000, while the Government had advanced only about $141,000 in progress payments. We have no way of knowing what the property would have brought had it been sold, but it cannot be said with certainty that it would have brought no more than the amount of the Government’s claim. Moreover, petitioners themselves might have been able to purchase the property and realize some amount on their claims after the Government’s claims had been satisfied. While these factors may present a difficult problem of valuation, we cannot say on this record that petitioners’ interests were valueless. The Government also seems to suggest that because the contract between Rice and the United States expressly gave the Government the option of requiring a conveyance of title upon default, petitioners’ liens attached subject to that limitation. Petitioners, however, were not parties to the contract. Furthermore, their liens attached by operation of law and nothing in the record indicates that the scope of such liens is affected by contractual arrangements into which the owner of the property may have entered. We conclude, therefore, that on this record petitioners must be considered to have had compensable property interests within the meaning of the Fifth Amendment prior to transfer of title to the Government. III. The final question is whether the Government’s action constituted a “taking” of petitioners’ property interests within the meaning of the Fifth Amendment. Before the United States compelled Rice to transfer the hulls and all materials held for future use in building the boats, petitioners had valid liens under Maine law against both the hulls and whatever unused materials which petitioners had furnished. Before transfer these liens were enforceable by attachment against both the hulls and all materials. After transfer to the United States the liens were still valid, United States v. Alabama, 313 U. S. 274, 281-282, but they could not be enforced because of the sovereign immunity of the Government and its property from suit. The result of this was a destruction of all petitioners’ property rights under their liens, although, as we have pointed out, the liens were valid and had com-pensable value. Petitioners contend that destruction of their liens under the circumstances here is a “taking.” The United States denies this, largely on the premise that inability of petitioners to enforce their liens because of immunity of the Government and its property from suit cannot amount to a “taking.” The Government argues that the Ansonia case is dis-positive of this Fifth Amendment issue. In that case, the contract between the shipbuilder and the United States provided, as to one of the ships contracted for, the dredge Benyuard, that as progress payments were made, the portion of the- work paid for should become the property of the United States. Subcontractors claimed liens on the uncompleted vessel under the Virginia supply-lien law. This Court merely held that, as the property had passed to the United States by virtue of the terms of the contract, no lien could be enforced against it. No question was raised as to the rights possessed by the subcontractors prior to the acquisition of title by the United States nor as to whether that event entitled them to just compensation under the Fifth Amendment. There is, to be sure, reason to believe that the subcontractors’ liens in that case, like those of petitioners here, did attach as soon as materials were furnished, which would necessarily be prior to the making of a progress payment for the portion of the work incorporating those materiáls and the consequent passage of title to the United States. See Hawes & Co. v. Trigg Co., 110 Va. 165, 185-186, 199, 65 S. E. 538, 546-547, 551-552. But the Fifth Amendment question was not raised or passed upon. In these circumstances we cannot regard the court’s decision as dispositive on the precise point now under, consideration, and must proceed to decide that question. We hold that there was a taking of these liens for which just compensation is due under the Fifth Amendment. It is true that not every destruction or injury to property by governmental action has been held to be a “taking” in the constitutional sense. Omnia Commercial Co. v. United States, 261 U. S. 502, 508-510. This case and many others reveal the difficulty of trying to draw the line between what destructions of property by lawful governmental actions are compensable “takings” and what destructions are “consequential” and therefore not compensable. See, e. g., United States v. Central Eureka Mining Co., 357 U. S. 155; United States v. Causby, 328 U. S. 256; United States v. General Motors Corp., 323 U. S. 373; United States v. Sponenbarger, 308 U. S. 256; Pennsylvania Coal Co. v. Mahon, 260 U. S. 393; Louisville & Nashville R. Co. v. Mottley, 219 U. S. 467; Legal Tender Cases, 12 Wall. 457, 551. The total destruction by the Government of all value of these liens, which constitute compensable property, has every possible element of a Fifth Amendment “taking” and is not a mere “consequential incidence” of a valid regulatory measure. Before the liens were destroyed, the lienholders admittedly had compensable property. Immediately afterwards, they had none. This was not because their property vanished into thin air. It was because the Government for its own advantage destroyed the value of the liens, something that the Government could do because its property was not subject to suit, but which no private purchaser could have done. Since this acquisition was for a public use, however accomplished, whether with an intent and purpose of extinguishing the liens or not, the Government’s action did destroy them and in the circumstances of this case did thereby take the property value of those liens within the meaning of the Fifth Amendment. Neither the boats’ immunity, after being acquired by the Government, from enforcement of the liens nor the use of a contract to take title relieves the Government from its constitutional obligation to pay just compensation for the value of the liens the petitioners lost and of which loss the Government was the direct, positive beneficiary. The Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. A fair interpretation of this constitutional protection entitles these lienholders to just compensation here. Cf. Thibodo v. United States, 187 F. 2d 249. The judgment is reversed and the cause is remanded to the Court of Claims for further proceedings to determine the value of the property taken. . Reversed and remanded. Mr. Justice Stewart concurs in the result. The relevant portion of the Fifth Amendment provides, "... nor shall private property be taken for public use, without just compensation.” While Rice was also liable to the Government for an additional amount approximating $146,000 representing the excess cost to the Government of having the boats completed, the contract does not provide, and there is no allegation, that this amount was secured by a lien on the property. Questions of value of the liens were not determined by the Court of Claims since it entered a summary judgment for the United States for reasons stated on p. 42, supra. United States v. Ansonia Brass & Copper Co., 218 U. S. 452; Hill v. American Surety Co., 200 U. S. 197; Equitable Surety Co. v. McMillan, 234 U. S. 448; United States v. Munsey Trust Co., 332 U. S. 234; The Siren, 7 Wall. 152; Minnesota v. United States, 305 U. S. 382; United States v. Alabama, 313 U. S. 274. The Government also cites Mullen Benevolent Corp. v. United States, 290 U. S. 89. The facts there, however, revealed that the Government’s action could not have destroyed any liens existing at the time the Government acquired the land because as the Court said, “None remained upon the land, when the purchases were consummated,” 290 U. S., at 95. 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_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. Charles M. MODICA, d/b/a G & D Grocery, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. No. 75-1447 Summary Calendar. United States Court of Appeals, Fifth Circuit. July 31, 1975. As Modified Aug. 11, 1975. James A. Harris, Jr., Birmingham, Ala., for plaintiff-appellant. Wayman G. Sherrer, U. S. Atty., Billy L. Barnett, A. Lattimore Gastone, Asst. U. S. Attys., Birmingham, Ala., for defendant-appellee. Before COLEMAN, AINSWORTH and SIMPSON, 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. AINSWORTH, Circuit Judge: Appellant brought suit in the district court below seeking judicial review of an administrative determination of the Food and Nutrition Service of the United States Department of Agriculture which disqualified appellant and his food store from participation in the federal food stamp program. The district judge granted the Government’s Motion for Summary Judgment, and appellant pursued this appeal. We affirm. Appellant is the owner of the G & D Grocery, which participates in the federally supervised food stamp program. A substantial portion of appellant’s grocery business consists of food stamp customers. Appellant’s participation in the food stamp program began in 1963, and he has since been the subject of administrative scrutiny numerous times. On two occasions in 1969, appellant received “confirming letters” from food stamp officials expressing concern over what appeared to be an excessive amount of coupon redemptions. On two other occasions, one in 1967 and one in 1968, appellant received “warning letters” regarding admitted violations of food stamp regulations. These violations involved the use of coupons for ineligible items (imported foods) and improper change procedures. In April 1971, investigators using food stamps made numerous purchases at appellant’s store of ineligible items such as beer, razor blades, hosiery, light bulbs, crayons and mouse traps. In light of these violations and prior dealings with appellant, the Food and Nutrition Service sought to disqualify appellant from participation in the food stamp program for violations which were claimed to have been “accomplished deliberately and with flagrant disregard for the program regulations.” Record at 96. Appellant was subsequently suspended from participation in the program for a period of six months. Appellant and two of his cashiers were charged with violations of food stamp regulations; the cashiers pled guilty and were fined $100 each, and charges against appellant were dismissed. After the six-month suspension was announced, appellant immediately sought a hearing before an administrative review officer pursuant to 7 U.S.C. § 2022. Appellant and witnesses in his behalf spoke of his strong support for the food stamp program, the importance of food stamp customers to his business, the high repute in which the community held appellant, and the disastrous consequences which would result from disqualification. At no point did appellant deny the charges against him or the improper actions of his employees. Rather, the violations were classified as unintentional, unavoidable and de minimis. The six-month disqualification sanction was upheld. Appellant then commenced this action and, after proceedings not relevant to this appeal, requested the district court to review the administrative decision pursuant to 7 U.S.C. § 2022. Section 2022 provides that administrative sanctions under the food stamp program can be reviewed by means of a “trial de novo by the court in which the court shall determine the validity of the questioned administrative action in issue,” and also allows the court to set aside the agency action upon determining that it is invalid. The Government moved for summary judgment, relying on the extensive administrative record, appellant’s admissions therein, and the convictions for violations of the applicable regulations entered upon the cashiers’ guilty pleas. In opposition to the Government’s motion, appellant filed an affidavit stating that he was “completely unaware of any violations” of the program regulations and denying that such violations had occurred. Further, the affidavit stated that if such violations had occurred, they were in derogation of his specific instructions to employees to abide by all regulations and were “inconsequential and insignificant.” In a considered 11-page memorandum opinion, the district court concluded that there were no genuine issues of material fact and that the Government was entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The sole issue before this court is appellant’s contention that the district court erred in granting the Government’s motion for summary judgment. The trial de novo provision of 7 U.S.C. § 2022 is clearly broader than the review standard provided for under the Administrative Procedure Act. It requires the district court to examine the entire range of issues raised, and not merely to determine whether the administrative findings are supported by substantial evidence. Saunders v. United States, 6 Cir., 1974, 507 F.2d 33, 36; Great Atlantic and Pacific Tea Co. v. United States, S.D.N.Y., 1972, 342 F.Supp. 492, 493; J.C.B. Super Markets, Inc. v. United States, W.D.N.Y., 1972, 57 F.R.D. 500, 502-03. When a case is properly before the court for a trial de novo, the court must reach its own factual and legal conclusions based on the preponderance of the evidence, and should not limit its consideration to matters previously appraised in the administrative proceedings. Redmond v. United States, 5 Cir., 1975, 507 F.2d 1007, 1011; Saunders v. United States, supra, 507 F.2d at 36; J.C.B. Super Markets, Inc. v. United States, supra, 57 F.R.D. at 502-03. The party seeking judicial review has the burden of proving facts to establish that he was entitled to relief from the disqualification determination, and must establish the invalidity of the agency action by a preponderance of the evidence. Redmond v. United States, supra, 507 F.2d at 1011-12. Despite the trial de novo provision, it is clear that summary judgment is a proper means of disposing of requests for review under section 2022 where there are presented no genuine issues of material fact. United States v. Saunders, supra, 507 F.2d at 36; Save More of Gary, Inc. v. United States, 7 Cir., 1971, 442 F.2d 36, cert. dismissed, 404 U.S. 987, 92 S.Ct. 535, 30 L.Ed.2d 549; J.C.B. Super Markets, Inc. v. United States, supra. The issue we must decide is whether the grant of summary judgment in this case was proper. Such a decision turns, of course, on the specif ic facts of the case. Here, appellant has admitted, implicitly and explicitly, his store’s wrongdoing in the extensive prior administrative proceedings. Two of his employees, for whose conduct as employees he is responsible, have admitted and been adjudged guilty of the violations for which appellant has been cited. But appellant asserts that his denial by way of affidavit of any wrongdoing created a disputed issue of fact sufficient to require a trial on the merits. But we reiterate that appellant had previously admitted the violations throughout the course of this matter through administrative proceedings, and that the guilty pleas of his employees are incontestible. These facts are determinative. We agree with the district court’s conclusion that while' a sworn denial of this sort would ordinarily create an issue of disputed fact, this “eleventh-hour denial of facts admitted over a three-year period” is not a sufficient basis in this case for denying summary judgment. In light of the record in this case, the court below had good reason for questioning the good faith of appellant’s affidavit. See Record at 49. We hold that, under the circumstances of this case, the district court properly concluded that summary judgment was warranted. The stay of disqualification pending appeal granted by the district court is hereby vacated. Appellant will be taxed with the costs of this appeal. Affirmed. . The facts of this case should be compared with Saunders v. United States, supra, and Miller v. United States Department of Agriculture, W.D.Pa., 1972, 54 F.R.D. 471, cases in which it was found improper to grant summary judgment in a section 2022 proceeding because there had been no admission of guilt in the administrative proceedings and the courts were presented with conflicting affidavits. . In questioning the. good faith of appellant’s affidavit, the district court referred to Fed.R. Civ.P. 56(g), which provides that when affidavits are presented in bad faith or solely for the purpose of delay, the' court may order the offending party to pay the reasonable expenses thereby incurred by the opposing party or hold the offending party of attorney in contempt. Three days after entering summary judgment for the Government, the district judge amended his order so as to tax all costs of the action against appellant. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_numresp	99	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Roy E. McGUIRK, Petitioner, Appellant, v. Michael FAIR et al., Respondents, Appellees. No. 79-1653. United States Court of Appeals, First Circuit. Argued April 10, 1980. Decided June 19, 1980. Stephen Hrones, Boston, Mass., for petitioner, appellant. Barbara A. H. Smith, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Stephen R. Delinsky, Asst. Atty. Gen., Chief, Criminal Bureau and Robert Y. Greco, Asst. Atty. Gen., Criminal Bureau, Boston, Mass., were on brief, for respondents, appellees. Before COFFIN, Chief Judge, BOWNES, Circuit Judge, LOUGHLIN, District Judge. Of the District of New Hampshire, sitting by designation. LOUGHLIN, District Judge. The issue in this habeas corpus appeal is whether the defendant voluntarily pled guilty to an indictment charging second degree murder. The defendant was indicted by the Grand Jury for the County of Middlesex in the Commonwealth of Massachusetts for murder in the first degree. On July 14, 1975 defendant pled guilty to murder in the second degree and was sentenced to a life term at the Massachusetts Correctional Institution at Walpole. Approximately a year later on July 16, 1976 the defendant filed a motion for a new trial requesting that he be allowed to withdraw his plea of guilty. The basis for his motion is that he was not informed relative to the distinction between murder in the first and second degree or as to the elements of second degree murder. On June 29, 1974, the defendant returned to his home about 6 o’clock in the morning. He had been drinking and had consumed some drugs. In his apartment he found a young woman whom the defendant had allowed to live there in the past. With the young woman was the victim, Nicholas Zoffreo. The remaining undisputed facts are set forth in the opinion of the Massachusetts Supreme Judicial Court, 380 N.E.2d 662, 664-665 (1978): The defendant explained his anger at finding his apartment being used in his absence and stated that an argument had ensued. The defendant then said: “Nicky came towards me; I thought he was going to hit me or something. I just started hitting on him, and I didn’t stop until I realized what — I just kept on hitting him, I didn’t realize I killed him. I just panicked from there.” The defendant admitted striking the first blow and also stated that he was sorry for what had happened for he was “not a person that goes around killing people like that.” The detective who had investigated the homicide testified at the plea hearing. He related statements from an eyewitness that the defendant had thrown a fit of temper and had beat, kicked, and strangled the victim with a rope or wire and suffocated him with pillows and blankets. The detective said that the defendant had made an admission to the person who had helped him dispose of the body in the Charles River that he had received rope burns as a result of the pressure used in garrotting the victim. After informing the defendant of the constitutional rights being waived by him and the maximum penalty for murder in the second degree and inquiring into the voluntariness of the plea, the judge accepted the guilty plea. A petition for writ of certiorari was denied by the United States Supreme Court. A petition for writ of habeas corpus, filed in the Federal District Court for the District of Massachusetts, was denied. Defendant at the time of his arraignment on October 23, 1974 was represented by appointed counsel, presently a member of the judiciary, who continued to represent him through his guilty plea. Trial counsel and the prosecutor had discussions about a change of plea from first degree murder to a plea to murder in the second degree and a plea to manslaughter. These discussions took place from May 12, 1975 up to the date of the plea. Counsel advised the defendant against a plea to second degree murder. Defendant decided to plead to second degree murder telling his counsel: “I want to get it over with. I don’t want to go through it. I want to finish it right here and now. I killed him, and I’ve got to pay the price and I want to get it over with right now.” Conferences between defense counsel and the defendant went on over a period of two months about the evidence the Commonwealth had and possible pleas to murder in the second degree and manslaughter. Defense counsel didn’t want the defendant to plead guilty to second degree murder. It was at this point as heretofore stated the defendant stated he wanted to get it over with. At the conclusion of the evidentiary hearing, before the U.S. District Court, the court indicated to defense counsel that he had practically pleaded with him to put the defendant on the stand to testify as to his state of mind, but counsel declined to do so. See Henderson v. Morgan, 426 U.S. 637, 639, 96 S.Ct. 2253, 2255, 49 L.Ed.2d 108 (1976). It is the contention of the defendant that his plea is invalid under Henderson v. Morgan, supra. The question presented in Henderson v. Morgan, supra, 638, 96 S.Ct. 2254 is whether a defendant may enter a voluntary plea of guilty to a charge of second degree murder without being informed that intent to cause the death of his victim was an element of the offense. The holding of Henderson was very narrow, however, and its facts are distinguishable from those of the instant case. The Court held that the defendant must receive “real notice” of the offense to which he pleaded, 426 U.S. at 645, 96 S.Ct. at 2257, the Court was not erecting a per se rule that failure to inform the defendant of the technical elements of an offense, which are often confusing even to lawyers, renders involuntary a plea of guilty to that offense. The Court wrote: “Normally the record contains either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused. Moreover, even without an express representation, it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. This case is unique because the trial judge found as a fact that the element of intent was not explained to respondent.” 426 U.S. at 647, 96 S.Ct. at 2258. In the case before us, the experienced trial counsel sufficiently explained second degree murder to petitioner to give him notice of the offense to which he pleaded. We agree with the finding of the district court: “[DJefense counsel’s extended discussion with the petitioner about the difference between first and second degree murder, the chances for conviction of first degree murder, the possibility of a manslaughter plea and his analysis of the evidence and inferences which the jury could draw all combined to fairly appraise him of the crime to which he ultimately pleaded. “Petitioner may well have received a more effective explanation of second degree murder than a formal incantation of technical elements would have given him.” We find it implausible, considering the statement about the killing the accused made to the trial judge, the description of the events given by the detective to the judge in the accused’s presence, and the conference between the accused and his counsel, that petitioner did not have real notice of the offense to which he pleaded guilty. For the court to find constitutional infirmity in petitioner’s guilty plea would violate rather than follow Henderson. Affirmed. Question: What is the total number of respondents in the case? Answer with a number. 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). Charles B. CHAPMAN, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee. No. 78-1609. United States Court of Appeals, Fifth Circuit. April 23, 1979. Rehearing En Banc Granted June 5, 1979. See 597 F.2d 590. Charles Chapman, pro se. Michael L. Tobin, Staff Counsel for Inmates, Huntsville, Tex., for petitioner-appellant. John L. Hill, Atty. Gen., David M. Kendall, Jr., Joe B. Dibrell, Jr., Douglas M. Becker, Asst. Attys. Gen., Austin, Tex., for respondent-appellee. Before THORNBERRY, CLARK and RONEY, Circuit Judges. THORNBERRY, Circuit Judge: In Texas state court, a jury found that petitioner Charles Chapman was guilty of burglary and that previously he had twice been convicted of committing felonies. Accordingly, as Texas law requires, the court sentenced Chapman to life imprisonment. See Rummel v. Estelle, 587 F.2d 651, 653 (5 Cir. 1978) (en banc). After having properly exhausted state procedures, Chapman brings this petition for writ of habeas corpus asserting that the prosecutor’s refusal to consider plea bargaining after Chapman succeeded in having the trial court vacate his original guilty plea violated Chapman’s fourteenth amendment due process rights. The original indictment alleged that petitioner had committed burglary and that he had been convicted of two prior felonies. Pursuant to a plea agreement petitioner pled guilty to the burglary, the prosecutor dismissed the enhancement provisions and the court sentenced petitioner to ten years imprisonment. Petitioner subsequently filed a motion for new trial alleging that his plea was not voluntary. After a hearing, the court granted petitioner’s motion for a new trial. The prosecutor then obtained a new indictment, which again included the enhancement provisions. After the reindictment, petitioner approached the prosecutor about the possibility of negotiating a plea, which the prosecutor refused to consider. Petitioner went to trial, the jury convicted him on the new indictment and he received the mandatory life sentence. Petitioner bases his due process argument on Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and Jackson v. Walker, 585 F.2d 139 (5 Cir. 1978), asserting that the prosecutor’s refusal to plea bargain after petitioner was reindicted both creates an appearance of vindictiveness and proves that the prosecutor acted out of actual vindictiveness prompted by petitioner’s exercise of his right to seek vacation of his guilty plea. Other decisions have discussed similar factual situations, but we cannot apply their reasoning to the present case. In United States v. Johnson, 537 F.2d 1170 (4 Cir. 1976), and United States v. Anderson, 514 F.2d 583 (7 Cir. 1975), the courts held that after a defendant had succeeded in vacating a bargained guilty plea in exchange for which the prosecutor dismissed some portions of the indictment, there is no due process violation when the prosecutor obtains a new indictment that makes the same charges contained in the original. These decisions, however, are based on the conclusion that “[rjetrial on the original indictment would simply return [defendant] and the government to the status that existed before [defendant] pleaded guilty.” United States v. Johnson, 537 F.2d 1170, 1175 (4 Cir. 1976). Chapman’s argument is more refined than that considered in these cases. He argues that before he pled guilty the prosecutor was willing to charge Chapman with the burglary alone, without the enhancement provisions. After Chapman rejected the guilty plea, the prosecutor refused to assert only the burglary charge and insisted on prosecuting on the enhanced indictment. Thus, Chapman argues that the prosecutor’s initial willingness to vacate the enhancement provisions, although not as formal an exercise of prosecutorial discretion as obtaining an indictment, nevertheless proves both actual and apparent vindictiveness. The Johnson and Anderson courts did not discuss this contention. The facts in Martinez v. Estelle, 527 F.2d 1330 (5 Cir. 1976), cert. denied, 429 U.S. 924, 97 S.Ct. 325, 50 L.Ed.2d 292 (1976), and Arechiga v. Texas, 469 F.2d 646 (5 Cir. 1973), are also similar to those in the present case. We cannot merely adopt the reasoning of those decisions, however, because in those cases the prosecutor had reoffered the original bargain after the defendant indicated he desired a new trial. The decisions held that there was no due process violation on those facts, but did not hold, as Chapman urges, that the reoffer was always necessary to avoid such a violation. We base our decision instead on the particular reason for which petitioner withdrew his guilty plea in this case, and conclude that both aspects of petitioner’s argument are without merit. The record is clear that petitioner withdrew his original guilty plea solely because he was dissatisfied with the sentence he had previously accepted. In a hearing on petitioner’s motion to quash the enhancement portions of the second indictment petitioner explained his position: THE COURT: And what grounds were you urging as grounds for your new trial? THE DEFENDANT: Grounds that he, my attorney— THE COURT: Who is he? THE DEFENDANT: My attorney, the attorney refused to subpoena my defense witnesses. He refused to request a postponement so I could have them subpoenaed. He let the District Attorney introduce in evidence my prior convictions when an habitual portion had been quashed. And he also refused to put the case on appeal. THE COURT: Well, you’re saying then that you were coerced into the plea of guilty. Is that correct? THE DEFENDANT: Yes, sir. Well, I had no other choice. THE COURT: I’m sorry? THE DEFENDANT: I had no other choice. THE COURT: Well, then, are you telling me now that you were coerced into your plea of guilty that you made — when was it? MR. MAGUIRE: February 20th. THE COURT: —February 20th of 1974? THE DEFENDANT: Yes, sir. THE COURT: So, what you’re telling us here today is that the whole reason that you pled guilty back on February of 1974, February the 20th, that you didn’t want to plead guilty, that you at no time really wanted to plead guilty, that you were forced into this and coerced into doing something that you never really wanted to do. Is that correct? THE DEFENDANT: That’s right. THE COURT: And if you had had your way about it, you would have gone to trial on the indictment without ever entering a plea of guilty regardless of what the recommendation was, regardless of what the admonishments were or anything else. Is that correct? THE DEFENDANT: No, sir. If he had lowered that recommendation, I would have pled guilty, but nothing about it— THE COURT: But at the time that you pled guilty and whatever you felt they were going to offer, you didn’t want that? THE DEFENDANT: No, sir. THE COURT: And you didn’t want to plead guilty. At that time, you wanted to go to trial on that indictment the way it stood and take your chances. Is that correct? THE DEFENDANT: Yes, sir. In such a situation it would be futile for the prosecutor to reoffer the bargain Chapman had just succeeded in vacating. We cannot perceive how future defendants would be made apprehensive about the possibility of prosecutorial vindictiveness by the news that after Chapman succeeded in vacating his original bargain, the prosecutor failed to reoffer the identical bargain. Similarly, we cannot understand how this evidence would tend to prove that the prosecutor was actually retaliating against Chapman for requesting a new trial. Thus, the refusal to reoffer the bargain does not exhibit actual vindictiveness. Because there is no danger of actual or apparent vindictiveness, the prosecutor’s actions do not raise the due process concerns identified in Blackledge and Jackson. The district court is therefore AFFIRMED. . Chapman also argues that his sentence of life imprisonment for having committed two burglaries arid a forgery is cruel and unusual. We have decided this issue against Chapman’s position in Rummel v. Estelle, 587 F.2d 651 (5 Cir. 1978) (en banc), cert. filed. Even the original panel in Rummel and the Fourth Circuit, where Hart v. Coiner, 483 F.2d 136 (4 Cir. 1973), cert. denied, 415 U.S. 983, 94 S.Ct. 1454, 39 L.Ed.2d 495 (1974) is the law, would likely reject Chapman’s claim that his life imprisonment for committing two burglaries and a forgery violates the eighth amendment. Rummel v. Estelle, 568 F.2d 1193 (5 Cir. 1978); Griffin v. Warden, 517 F.2d 756 (4 Cir.), cert. denied, 423 U.S. 990, 96 S.Ct. 402, 46 L.Ed.2d 308 (1975). . Petitioner’s motion and appearance at this hearing were pro se. He does not now contend that he was entitled to an attorney in this proceeding and apparently has never raised this issue to the state courts. Therefore, we will not discuss it here. . That petitioner requested the opportunity to plea bargain and the prosecutor refused does not appear in the record. The state does not argue, however, that this did not occur and petitioner has offered to prove his allegations if we find that these facts entitle him to relief. We conclude that even if the facts are as Chapman alleges, his appeal is without merit. . Cf. Jackson v. Walker, 585 F.2d 139, 147 (5 Cir. 1978): “in examining a record for Black-ledge violations, our principal concern must of course be with charges on which the defendant was actually tried. Had the prosecutor here tried Jackson for a relatively minor charge at first, and then, after a successful appeal, retried her on a more severe charge, we would be more ready to suspect unconstitutional retaliation . . For the reasons explained in the text, however, we conclude that there is no reason “to suspect unconstitutional retaliation” in this particular case. . In Jackson this court has recently established a refined procedure for determining “whether to require a showing of actual vindictiveness or merely a showing of reasonable apprehension of vindictiveness . . . ” before prohibiting the reindictment. Even if it is fully applicable to guilty plea cases, we do not undertake the Jackson analysis in this case because the underlying assumption of Jackson was that the situation discussed in that case created at least some appearance of vindictiveness. Unless there is at least a minimum danger of making future defendants apprehensive, there is no need to balance that danger against the infringement of the prosecutor’s discretion. We decide this case on an issue antecedent to the Jackson analysis: that the prosecutor’s actions in the present case do not appear even minimally vindictive. . It is irrelevant whether petitioner’s guilty plea was in fact involuntary. He specifically complained that he wished to vacate the plea because the sentence he received was unsatisfactory. Furthermore, it is irrelevant that Chapman may have agreed to plead guilty after the reindictment if the prosecution had offered to recommend a sentence less onerous than the first. The only action Chapman complains of is the prosecutor’s failure to reoffer the original bargain. 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_origin	H	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. CONSUMERS CONST. CO. v. COMMISSIONER OF INTERNAL REVENUE. No. 3269. Circuit Court of Appeals, First Circuit Feb. 15, 1938. Bernhard Knollenberg, of New York City (Charles M. Trammell, of Washington, D. C., and Bradford S. Magill and Francis J. Sweeney, both of New York City, on the brief), for petitioner for review. Ellis N. Slack, Sp. Asst, to Atty. Gen. (James W. Morris, Asst Atty. Gen., and 'Sewall Key, Sp. Asst, to Atty. Gen., on the brief), for the Commissioner. Before BINGHAM, WILSON, and MORTON, Circuit Judges. WILSON, Circuit Judge. - This is a petition for review of a decision and order of the Board of Tax Appeals determining a deficiency in the income tax of the petitioner for the period from August 1, 1927, to December 31, 1927. There was originally before the Commissioner the assessment of the, tax of the petitioner, not only for the period covered in this appeal, but also for the periods from March 30, 1927, to December 31, 1927, and from January'1, 1928, to October 31, 1928, as well as the taxes for the same periods to be assessed on several affiliated corporations and trusts. The petitioner’s appeal from the Board’s decision affirming the findings of the Comr missioner for the period from’August 1, 1927, to December 31, 1927, raises the only questions which are before this court in these proceedings. To state in detail all the interrelations of the several corporations and trusts forming the set-up of the system of which the petitioner was a part would only serve to confuse the issue here involved, which is, whether the net income received by the petitioner from the operating companies during the period from August 1, 1927, to December 31, 1927, was taxable to the petitioner, or whether the petitioner acted merely as the agent of the two companies holding its common stock, or as a conduit through which the receipts from operating companies were passed on to the holding companies and should be taxed to them. So far as this appeal is concerned, it is sufficient to state the following facts: The petitioner was organized as a corporation on March 30, 1927. All of its common stock was issued to holding companies in the proportion of five per cent, to the New England Gas & Electric Association, a Massachusetts trust, which controlled through stock ownership certairi subsidiary corporations furnishing gas and electricity to the public, and 95 per cent, to the Associated Gas & Electric Company, which controlled a larger nhmber of subsidiary companies, of which there were a total of over 163 in the system and which are hereafter referred to as operating companies. In consideration of the issue of its common stock to the New England Gas & Electric Association and to the Associated Gas & Electric Company, it received from these companies certain construction contracts with the operating companies under which the petitioner was to supervise the construction activities of the operating companies, and was to receive for such supervision 7% per cent, of the total cost of any construction work undertaken by the operating companies. During the period covered in this appeal the petitioner had no employees, and employed the J. G. White Management Corporation to do the work of construction, for which the petitioner paid it a stated sum. The petitioner also issued a large amount of preferred stock which was held by the Eastern Utilities Investing Corporation, an investment trust, though for what consideration does not appear. 14,500 shares of the 7 per cent, preferred stock of the Eastern Utilities Investing Corporation was sold and transferred to the New England Gas & Electric Association, and practically all the remainder of the preferred stock of the Eastern Utilities Investing Corporation, except such as was sold to the public, was held by the Associated Gas & Electric Company. After operating under this arrangement, it was found that the subsidiaries of the New England Gas & Electric Association contributed 10 per cent, of the construction fees, and the operating subsidiaries of the Associated Gas & Electric Company contributed 90 per cent, of the construction fees. To readjust the stock holdings of these companies to correspond to the contributions of its subsidiaries to the petitioner under its construction contracts, 10 per cent, of the common stock of the petitioner was transferred to the New England Gas & Electric Association, leaving 90 per cent, in the hands of the Associated Gas & Electric Corporation. Apparently this readjustment of the stock holdings of tfye holding companies took place on or about August 1, 1927, as, prior to that date, the petitioner was clearly affiliated-with the Associated Gas & Electric Company, which held 95 per cent, of its common stock. Before the Commissioner, and in its petition to the Board of Tax Appeals for redetermination of its tax, the petitioner based its claim for a redetermination in part on the ground that it was affiliated with certain other corporations, and in part on the ground that it should be permitted to file a consolidated return under section 240(f) of the Revenue Act of 1926 with certain other taxpayers who were also asking for a redetermination of their taxes for the year 1927. In its petition to this court, however, it claims that during the period in question it was a mere conduit between the operating companies and the holding companies for conducting the income received from the many operating companies under its construction contracts with them to the holding companies, or that it was an agent of the holding companies for the collection and distribution of the moneys it received from the operating companies to its principals. From March 31 to August 1, 1927, the petitioner was clearly affiliated with the Associated Gas & Electric Company, which owned 95 per cent, of its common stock. After August 1, 1927, when the ratio of the petitioner’s common stock owned by the Associated Gas & Electric Company and the New England Gas & Electric Association was changed from 95 per cent, and 5 per cent, to 90 per cent, and 10 per cent., the petitioner was no longer affiliated with any other corporation. Its right to file a consolidated return after August 1, 1927, under section 240(f) of the Revenue Act of 1926, 44 Stat. 46, was also refused by the Commissioner, and the ruling of the Commissioner on this point was accepted by the petitioner before the Board of Tax Appeals. The petitioner could not, we think, claim to be affiliated with another corporation from March 30 to August 1, 1927, and then claim to be a mere agent of the affiliated corporation from August 1 to December 31, 1927. If its status as an affiliated corporation from March 31, 1927, to August 1, 1927, is once conceded, its status as an independent corporation after August 1 continues. It may be significant, too, that the petitioner did not appeal from so much of the Board’s decision as related to its tax for the period from January 1, 1928, to October 31, 1928, inasmuch as for a part of that period the petitioner had employees and apparently conducted the construction work for the subsidiaries, which the J. G. White Management Corporation had previously done. As further evidence of its functioning as an independent corporation and that it was not a mere agent of the holding companies or a conduit for transferring to the holding companies the income received under its construction contracts with the operating companies, it appears that, after paying the stipend of- the J. G. White Management Corporation and its ordinary expenses, it declared first from its receipts from its construction contracts dividends on the preferred stock held by the Eastern, Utilities Investing Corporation, and then from the remainder of its receipts dividends on its common stock held by the holding companies. This is significant, since the New England Gas & Electric Association and the Associated Gas & Electric Company held only a part of the preferred stock of the Eastern Utilities Investing Corporation, while the remainder was held by the public. It is, therefore, clear that not all of the earnings or receipts of the petitioner from its construction con-' tracts found their way into the hands of the holding companies, but a part, at least, came, or might come, into the hands of the investing public through dividends on the preferred stock of the Eastern Utilities Investing Corporation. It is clear, we think, the corporate entity of the petitioner must be kept up in order for' the Eastern Utilities Investing Corporation and its stockholders to receive such .part of the earnings of the petitioner as they were entitled to. The petitioner lays stress on an admission in the answer of the Commissioner that the petitioner “was engaged in the business of serving as a corporation control and convenience.” While the answer .of the Commissioner admits the allegations of the paragraph in which the statement appears, it is far from being a categorical admission that the petitioner was the agent of the holding companies, or served as a conduit for the transfer of construction service funds from the operating companies to the holding companies. It is not clear at all what it was intended to allege by the statement above referred to. To serve as a “corporate control,” the natural inference is that the petitioner’s business was to control something, which it did not do. Such an allegation is too vague and indefinite to bind the Commissioner to any form of doing business, and the other paragraphs denied in the Commissioner’s answer clearly indicate, we think, that he had no intent to admit that the petitioner was acting as agent of the holding companies. It is not necessary to comment on the petitioner’s brief in which it is stated that “corporate control and convenience” was the sole business of the petitioner. Stress is also laid on the stock control of the holding companies over the petitioner, but it does not appear that, during the period involved here, the holding companies controlled, or could have controlled, the declaration of dividends on the preferred stock of the petitioner. They were the first to be recognized in distributing the earnings of the petitioner, and the investing public was entitled to have the Eastern Utilities Investing Company receive its share of the dividends on the preferred stock of the petitioner as against ’ common stock holdings of the holding companies. It is the general rule that a corporate entity must be observed unless unusual conditions exist which require the courts to look behind the form to the substance. ; It cannot be said, we think, that the petitioner did not .serve a business purpose; and, as the Board said in Broadway Strand Theatre Co. v. Commissioner, 12 B.T.A. 1052: “Where a corporate cloak is resorted to for its business benefits, the burdens, if any, must also be assumed.” The cases in which the line is drawn between a corporate entity, which must be observed, and one in which corporate foi;m may be disregarded and the rule pf constructive receipts be applied, may be more or less shadowy. Only in cases .where there are exceptional .circumstances may the separate entity of the corporation be disregarded and the courts look through form to the substance. Burnet v. Commonwealth Improvement Co., 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399; Nixon v. Lucas, 2 Cir., 42 F.2d 833, 834; McDonald et al. v. Commissioner, 4 Cir., 52 F.2d 920, 922. It is not surprising, therefore, that charges of inconsistency, on the part of the Commissioner or the Board in determining upon this finely drawn line arise. No hard and fast rule can be laid down for drawing this line in every case. The determination of the Board in a given case must stand if there is substantial evidence to support its finding. The petitioner cites Southern Pacific Co. v. Lowe, 247 U.S. 330, 38 S.Ct. 540, 62 L.Ed. 1142; Gulf Oil Corporation v. Lewellyn, 248 U.S. 71, 39 S.Ct. 35, 63 L.Ed. 133; Rensselaer & S. R. Co. v. Irwin, 2 Cir., 239 F. 739; West End Street Railway Co. v. Malley, 1 Cir., 246 F. 625; Gold & Stock Telegraph Co. v. Commissioner, 2 Cir., 83 F.2d 465. But these cases and other similar cases cited by the petitioner all provided for the lessee, or a subsidiary company, to pay rentals directly to the stockholders of the lessor or a parent company. This the court held was, in effect, a payment to the lessor or the parent company itself, which was trustee for the benefit of its stockholders, and are in no way controlling as to this petitioner, which maintained separate books of account, carried on business as any independent corporation would. The other cases cited by the petitioner are not in point. In the Gordon Can Company v. Com’r Case, 29 B.T.A. 272, Helvering v. Gordon, 8 Cir., 87 F.2d 663, on which the petitioner relies, Gordon and his wife owned all the stock of the Gordon Can Company. They also owned all the stock of a Realty Company. Gordon arranged to buy tin plate of a corporation engaged in supplying this article and at a price considerably below the regular market price. He arranged with an official of this corporation supplying the tin plate who was a personal and close friend to bill the plate to the Gordon Can Company at the regular market price and to give a rebate agreed upon which was paid to the Realty Company without any obligation, contractual or otherwise, to do so, which company had nothing to -do with making or selling cans. The court very properly held that the Realty Company was a mere conduit in that case to transfer the rebate through it to the stockholders of the Can Company. The petitioner undertakes to draw an analogy between the parties in that case and this, but the part performed by the Realty Company in that case is in no way analogous to that performed by the petitioner in this case. The Realty Company performed no service at all except as a conduit to transfer the funds represented by the rebates to the stockholders of the Can Company. It does not appear to have had any contractual relations with the corporation giving the rebates. On the other hand, the petitioner, which it is claimed corresponds to the Realty Company in that case, performs a very important service directly. connected with the collection of the funds under its construction contracts and their distribution as dividends among the stockholders holding its stock, some part of which finds its way into the hands of the public through preferred dividends by the Eastern Utilities Investing Corporation. In the case of Ford Motor Co. v. United States, Ct.Cl., 9 F.Supp. 590, 599, the government referred to the cases of Southern Pacific Co. v. Lowe, supra, and Gulf Oil Corporation v. Lewellyn, supra, but the court, in holding they did not apply to the facts before it, said: “We have carefully considered the decisions of the Supreme Court cited by the defendant in support of the contention that the separate corporate entities of the corporations involved should be disregarded and the case treated as that of a single taxpayer. The facts in each of the cases relied upon are, we think, clearly distinguished from the facts in the instant case. * ❖ ❖ “The essence of the decisions in the cases referred to is that, where stock ownership has been resorted to, not for the purpose of participating in the affairs of a corporation in the normal and usual manner, but for the purpose of controlling the corporation and dominating its management and affairs so that it may be used as a mere agency, tool, or instrumentality of the owning corporation or corporations, the courts will disregard the fiction of the separate corporate entity and deal with the substance of the transactions in such manner as the justice of the case may require. * * * “In each of the cases cited, the company, whose separate corporate entity was disregarded by the court, was a subsidiary corporation, the entire property and assets of which were owned by one or more other corporations which completely dominated its affairs and exercised control over the management of its business to such an extent that the companies were in substance but one corporation.” This case obviously is not authority in support of the petitioner’s contention in the case at bar. The holding companies in this case did not have in their possession any of the property of the petitioner, nor does the record show that they undertook to dominate its corporate dealings. So far as the record shows, they permitted it to act throughout as an independent corporate entity. The construction contracts with the operating companies transferred to the petitioner in return for the issue of its stock must be held to be capital assets and the earnings under them constituted income. It is not denied that the petitioner was corporate in form; that it kept separate books of account; that it had all the officers common to corporations; that they performed their usual functions in the collection of the construction contract fees, the expending of the moneys, in meeting any obligations they were under, and in the declaration of dividends. The Board found the petitioner was not an example of an agency passing along benefits to its principal, that it was not a mere bookkeeping entity or a corporation without substance, or an agent or conduit for holding companies. We think its findings are supported by some substantial evidence and cannot be disturbed on appeal. The decision and order of the Board of Tax Appeals are affirmed. Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
songer_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". WES CHAPTER, FLIGHT ENGINEERS’ INTERNATIONAL ASSOCIATION, AFL-CIO, Appellant, v. NATIONAL MEDIATION BOARD et al., Appellees. No. 16697. United States Court of Appeals District of Columbia Circuit. Argued Oct. 5, 1962. Decided Nov. 15, 1962. Mr. Isaac N. Groner, Washington, D. C., with whom Messrs. I. J. Gromfine, Washington, D. C., Herman Sternstein, New York City, and William B. Peer, Washington, D. C., were on the brief, for appellant. Mr. Frank Q. Nebeker, Asst. U. S. Atty., for appellee National Mediation Board and certain other appellees. Mr. David C. Acheson, U. S. Atty., and Messrs. Nathan J. Paulson and Harold D. Rhynedance, Jr., Asst. U. S. Attys., at the time the brief was filed, were on the brief for appellee National Mediation Board and certain other appellees. Mr. Tim L. Bornstein, Washington, D. C., for appellee Second Officers’ Association. Mr. Donald K. Hall, Los Angeles, Cal., of the bar of the Supreme Court of California, pro hac vice, by special leave of court, with whom Messrs. L. Welch Pogue, Washington, D. C., and Hugh W. Darling, Los Angeles, Cal., were on the brief, for appellee, Western Air Lines, Inc. Messrs. Calvin Davison and Robert H. Shorb, Washington, D. C., also entered appearances for appellee Western Air Lines, Inc. Before FAHY, BASTIAN and BURGER, Circuit Judges. FAHY, Circuit Judge. The action in the District Court was to obtain a decree vacating orders, rulings, and the direction of an election made by the National Mediation Board, and for a declaratory judgment and injunctive relief. The plaintiff, now appellant, is WES Chapter, Flight Engineers International Association, AFL-CIO, hereinafter referred to as “the Association” or “the Union”. The District Court dismissed the action for failure to state a claim upon which relief could be granted. The court also granted the Board’s cross motion for summary judgment. The Board proceedings under attack were held pursuant to Section 2, Ninth, of the Railway Labor Act, 48 Stat. 1186 (1934), 45 U.S.C.A. § 152 (Supp.1961), providing that “[i]f any dispute shall arise among a carrier’s employees as to1 who are the representatives of such employees”, the Board shall investigate-the dispute, conduct a secret ballot and’ then certify who or what organization is-to represent the employees of the carrier. And “[i]n the conduct of any election * * * the Board shall designate who may participate in the election and establish the rules to govern the election * * A certifying election wa.s held by the Board with the result that the Second Officers’ Association,- to which we shall refer as SO A, replaced the Association, as the designated representative of the flight engineers of Western Airlines, the employer. The Board excluded from the voting flight engineers who were members of the Association. The first contention of the Association is that such exclusion violated the Board’s own Rule 6. Tlie second claim is that the Board deprived appellant of due process of law by not investigating fully the. charge that SOA was dominated and assisted by the employer. On the claim of eligibility the following are the essential facts. One hundred twenty three flight engineers, then represented by the Association, walked off their jobs at Western in February 1961, as part of a general walkout of flight engineers at a number of air lines, growing out of a dispute at United Air Lines. The day after the walkout the men in effect were ordered by the United States District Court for the Southern District of California to return to work and failed to do so. Upon their refusal to accept normal work assignments Western terminated the employment of the 123, obtained replacements in large part and refused to take back those who had declined the work assignments. Nine of these unsuccessfully appealed under the procedures of the collective bargaining agreements between Western and the Association. Six of the nine then unsuccessfully appealed to the Vice President-Operations of Western. The other three did not file .second appeals and are claimed by Western to have abandoned their cases. Western also claims that none appealed to the System Board of Adjustment in accordance with another agreement between the Association and Western, and that Western’s action in terminating the employment of the 123 flight engineers became final on or about May 19, 1961, under the terms of the collective bargaining agreement. In the meanwhile, when the walkout ended on the other air lines a few days after it began, a Presidential Commission was set up to consider the issues involved, and a back-to-work agreement was reached, which, however, Western did not accept. This agreement pledged the air lines which did accept it to take no disciplinary action against the flight engineers. Those represented by the Association promptly offered to return to work, but Western would not take them back. In April, following the February walkout and the replacements at Western, SOA claimed to represent the flight engineers employed by Western. It initiated the Board proceedings under section 2, Ninth, and it was in the ensuing election that the flight engineers for whom the Association speaks were not permitted to vote. The need for a large degree of conclusiveness in the settlement of labor disputes over the question of employee representation in the transportation industry was met by Congress in the Railway Labor Act. Responsibility was given to a board with special competence, in the effort to maintain enough harmony to prevent interruption of service. Congress sought to preclude litigation in the courts over what the Supreme Court has called an “explosive problem.” Switchmen’s Union of North America v. National Mediation Board, 320 U.S. 297, 303, 64 S.Ct. 95, 98, 88 L.Ed. 61 (1943). The Court said Congress had taken “great pains” to protect the Mediation Board in its handling of the problem. Consequently the courts have seldom intruded. Switchmen’s Union has been followed in a line of cases which include our recent decisions in UNA Chapter, etc. v. National Mediation Board, supra, and Air Line Stewards and Stewardesses Ass’n v. National Mediation Board, 111 U.S.App.D.C. 126, 294 F.2d 910 (1961), cert. denied, 369 U.S. 810, 82 S.Ct. 687, 7 L.Ed.2d 611 (1962). And see Air Line Dispatchers Ass’n v. National Mediation Board, 89 U.S.App.D.C. 24, 189 F.2d 685 (1951). Where courts have taken jurisdiction of such representation disputes the context has strongly indicated either that the Board by refusing to act had obliterated rights granted to employees by Congress or, turning now to a situation arising under the National Labor Relations Act, the Board had acted in excess of .its delegated powers and contrary to a statutory provision which' is “clear and mandatory.” Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). When this occurs, the courts “cannot lightly infer that Congress does not intend judicial protection of rights it confers against agency action taken in excess of delegated powers.” Id. at 190, 79 S.Ct. at 185. Viewed against this background the two questions raised by appellant do not enable the courts to assume jurisdiction. As to eligibility, it is clear the Board made a determination that the excluded engineers were not eligible under Rule 6 to vote in the certifying election. The Board has not refused to act on the one hand, nor has it exceeded the express commands of Congress on the other. In the face of strong Association challenge on this point it might have been preferable for the Board to have delineated more fully its determination — making clear whether, for example, the excluded men were “dismissed” within the meaning of Rule 6 or had merely quit ; and whether if dismissed their reinstatement applications were pending before “proper authorities.” However that may be, the challenge by appellant does not go beyond asking for a different solution to a mixed factual and legal issue which has been solved by the Board in a manner not clearly contrary to its statutory, including its rule-making, authority. Switch-men’s Union and related cases cited above; cf. Order of Ry. Conductors of America v. Penn. R. R., 323 U.S. 166, 65 S.Ct. 222, 89 L.Ed. 154 (1944), where in the face of allegations of “illegal” action ■on part of the Board but with the absence of the Board from the case the Court failed to reach the question of the propriety of judicial relief. The second question must be decided in a similar manner. The Association charged that SOA was assisted and dominated by the employer in violation of section 2, Third and Fourth, of the Act. The Board held a hearing on these charges, taking pertinent testimony but declining, because of lack of power, to compel attendance of certain witnesses requested by the Association. The statute, in Section 2, Ninth, requires an “investigation” of such disputes; and the Board, it seems to us, did investigate. In a different case, where, for example, a stronger showing is made initially by the charging party than was made here, the Board might be required to make a more independent investigation into a charge of company assistance to an opposing union seeking certification. But in discharging its duty to investigate in the manner it did in this case we find no official conduct in excess of authority and no refusal to bring the processes of the Board to bear in a reasonable manner on the dispute. Accordingly we do not think the District Court acquired jurisdiction to upset the Board’s ruling that the Association’s charges were without merit. It remains only to be said that in our view the Board’s scope of authority under the statute, and its exercise, preclude a successful challenge that the Association’s constitutional rights were violated. “[T]he requirements of due process * * * vary with the type of proceeding involved.” Hannah v. Larche, 363 U.S. 420, 440, 80 S.Ct. 1502, 1513, 4 L.Ed.2d 1307 (1959). And “when governmental action does not partake of an adjudication, as for example, when a general fact-finding investigation is being conducted, it is not necessary that the full panoply of judicial procedures be used.” Id. at 442, 80 S.Ct. at 1515. Due process of law would not appear to require more in the circumstances than was accorded appellant. The order of the District Court dismissing the complaint is Affirmed. . This rule reads as follows: “Dismissed employees whose request for reinstatement account of wrongful dismissal are pending before proper authorities, which includes the National Railroad Adjustment Board or other appropriate adjustment board, are eligible to participate in elections among the craft or class of employees in which they are employed at the time of dismissal. This does not include dismissed employees whose guilt has been determined, and who are seeking reinstatement on a leniency basis.” . The Association states that the .walkout occurred because of, or as a protest against, a Board decision adverse to an-, other chapter of the same union, upheld by this court in UNA Chapter, Flight Engineers’ Int’l Ass’n, AFL-CIO v. National Mediation Board, 111 U.S.App.D.C. 121, 294 F.2d 905 (1961), cert. denied, 368 U.S. 956, 82 S.Ct. 394, 7 L.Ed.2d 388 (1962). . Air Line Dispatchers Ass’n v. National Mediation Board, supra. . Judge Hall of the United States District Court for the Southern District of California in Flight Engineers’ International Association v. Western Air Lines, Inc., Civil Action No. 362-61 PH, stated in his oral opinion that the flight engineers had “simply quit their jobs.” . The Board itself states that at the time of the proceedings before it, which began April 5, 1961, no “valid” appeal for reinstatement was pending before any official of Western or before the System Board of Adjustment. But the Association claims it then had a counterclaim pending in the District Court in California,- demanding restoration and reinstatement, a claim for reinstatement before the System Board of Adjustment, and a similar claim before the Presidential Commission. . “While the Mediation Board is given specified powers in the conduct of elections, there is no requirement as to hearr ings. And there is no express grant of subpoena power.” Switchmen’s Union,' supra, 320 U.S. at 304, 64 S.Ct. at 98. . The Board found “no fact was established from which even an inference — to say nothing of a conclusion — can be drawn” supporting the charges. . The charges of employer assistance were made on “information and belief” and were only general in nature. At the hearing the original charges were not made more specific or detailed. Furthermore, representatives of both SOA and the employer were present at the hearing, which was held by one member of the Board. The full Board reviewed the transcript of the hearing and examined copies of SOA’s minutes. 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_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). In re CHICAGO, M., ST. P. & P. R. CO. CHICAGO, T. H. & S. E. RY. CO. FIRST LIEN BONDHOLDERS’ COMMITTEE v. CHICAGO, M., ST. P. & P. R. CO. No. 9275. Circuit Court of Appeals, Seventh Circuit. Nov. 6, 1947. Reese D. Alsop, of New York City, and Joseph E. Nolan, of Chicago, 111. (Hunt, Hill & Betts, of New York City, and Bell, Boyd & Marshall, of Chicago, 111., of counsel), for appellant. Kenneth F. Burgess, of Chicago, 111., Fred N. Oliver, of New York City, A. N. Whitlock, M. L. Bluhm, Douglas F. Smith, Ray Garrett, and George Ragland, Jr., all of Chicago, 111., and Willard P. Scott, of New York City (Sidley, Austin, Burgess & Harper, of Chicago, 111., and Oliver & Donnally, of New York City, of counsel), for appellees. Before MAJOR and KERNER, Circuix Judges, and LINDLEY, District Judge. MAJOR, Circuit Judge. This appeal is from an order of the District Court, entered November 5, 1946, denying allowance for compensation to the members of the Chicago, Terre Haute and Southeastern Railway Company First Lien Bondholders’ Committee (hereinafter called the committee), for services alleged to have been rendered in connection with the reorganization proceedings of Chicago, Milvvaukee, St. Paul and Pacific Railroad Company (hereinafter called Milwaukee). On November 26, 1945, the court entered an order fixing the time within which claims were to be filed for expenses incurred and services rendered in connection with the reorganization proceedings. Pursuant to this order, the appellant committee, consisting of Charles B. Roberts, John E. Blunt, Lemuel H. McHenry and Roger H. Williams, filed its claim for services rendered, the denial of which forms the basis of the present controversy. So far as here pertinent, the petition prayed “for an allowance to the Committee of $20,000 as compensation to it and its members for division among them as they may agree and as may be in their opinion proportionate to the time and labor spent by each in connection herewith and in proportion to the accomplishments of each in aid of the bondholders represented by them and in aid of the consummation of the Plan herein * . ” The petition also sought compensation for attorneys who represented the committee and other expenses incurred by the committee and its attorneys, which were allowed and are not involved in this appeal. The committee’s petition for allowance and other similar petitions for compensation in respect to services rendered and expenses incurred from September 1, 1943 to the conclusion of the reorganization proceeding was transmitted to the Interstate Commerce Commission for the fixing of maximum limits, pursuant to Sec. 77, sub. c(12) of the Bankruptcy Act, 11 U.S.C.A. § 205, sub. c(12). The Commission concluded that Section 77, sub. c(12) did not permit the allowance of the committee’s claim, and refused to fix a maximum limit therefor. The court below in the order appealed from approved the report and order of the Commission to the effect that no allowance should be made from the debt- or’s estate for compensation to the committee members. We think it not important to enter any detailed discussion of the relation existing between the debtor corporation and the Chicago, Terre Haute and Southeastern Railway Company (referred to as Terre Haute), whose bonds were represented by the committee. The position occupied by Terre Haute with reference to the Milwaukee and the provision made in the reorganization proceeding for Terre Haute and its bondholders is described in Group of Institutional Investors et al. v. Chicago, Milwaukee, St. Paul and Pacific Railroad Co., 318 U.S. 523, on page 546 et seq., 63 S.Ct. 727, 87 L.Ed. 959. It appears therefrom, as well as from the record before us, that the committee contested''the plan of reorganization as it pertained to Terre Haute and received an adverse decision at the hands of the Supreme Court. It is sufficient here to note that Terre Haute .was not a property of Milwaukee but their relations stem from a long-term lease in which Terre Haute was the lessor and Milwaukee the lessee, and that the plan of reorganization required that “substantially all” of the bondholders of Terre Haute agree to the plan as a condition of its becoming effective as to it. The committee, having failed to sustain its position in the Supreme Court; was confronted with the difficult problem of deciding a course to pursue in the interest of those whom it represented. The record discloses that a number of plans were discussed and considered and that it was finally determined by the committee that it was for the best interest of the Terre Haute bondholders to approve the plan as it pertained to Terre Haute and thereby assist in its confirmation. It was for services rendered by the committee in obtaming the approval of such bondholders that it sought the allowance in question. The committee devotes much effort in showing that it was generally responsible for procuring the approval of the bondholders represented by it, as well as the importance and benefit which inured to the reorganized company by reason of such approval. We think there is no point in detailing either the efforts of the committee in this respect or the benefits which the reorganized company derived therefrom. This is so for the reason that such matters are not in dispute. In fact, it appears to be conceded on all sides that the services rendered by the committee were valuable and that the result obtained was of benefit to the reorganized company. While it may be a matter of some conjecture, it is not unreasonable to conclude that without such services the approval of the necessary bondholders could not have been obtained. Neither is there any question as to the-reasonableness of the committee’s claim. Numerous issues are raised and discussed, but we think they are all encompassed within the primary issue as to whether Sec. 77, sub. c(12) is controlling; and, if so, was the power of the court as to the committee’s claim limited thereby? Sec. 77, sub. c(12) provides: “Within such maximum limits ■ as are fixed by the Commission, the judge may make an allowance, to be paid out of the debtor’s estate, for the actual and reason-aide expenses (including reasonable attorney’s fees) incurred in connection with the proceedings and plan by parties in interest and by reorganization managers and committees or other representatives of creditors and stockholders, and within such limits may make an allowance to be paid out of the debtor’s estate for the actual and reasonable expenses incurred in connection with the proceedings and plan and reasonable compensation for services in connection therewith by trustees under indentures, depositaries and such assistants as the Commission with the approval of the judge may especially employ.” A study of this provision makes it plain, so we think, .that Congress placed a limitation not only upon those who could receive compensation but a further limitation that their allowance must be within a maximum' amount fixed by the Commission. Also as to those, the right to receive compensation was limited to services rendered “in connection with the proceedings arid plan.” As to other parties and groups, including “committees,” their right to an allowance was limited to a reimbursement for the actual and reasonable expenses incurred “in connection with the proceedings and plan.” It hardly seems reasonable to think that Congress authorized compensation for attorneys and trustees and inadvertently failed to make similar provision for a committee. That Congress had committees specifically in mind is evidenced from the. fact that provision was made for an allowance for their expenses. The fact that no provision was made for their compensation is a persuasive indication that Congress intended that they should have none. After all, a committee usually represents a group of bondholders or other creditors, and its primary responsibility is to those whom it represents. Reconstruction Finance Corporation v. Bankers Trust Co., 318 U.S. 163, 63 S.Ct 515, 87 L.Ed. 680, while not decisive of the question before us, is authority for the proposition that any compensation allowable in a proceeding of the instant nature must be for services rendered in connection “with the proceedings and plan,” and we think this case also supports the view that Congress has by this subsection imposed a limitation upon those who may be allowed compensation for such services. The committee, upon a factual situation subsequently related, argues that subsection c(12) is not applicable for the reason that the services performed by the committee were rendered to the court and not before the Commission. No case is cited and we are aware of none which makes such a distinction. • The test which Congress has prescribed is that the services be rendered “in connection with the proceedings and plan,” and not that they be rendered before the Commission. That the committee’s services were rendered “in connection with the proceedings and plan” is not open to dispute. Moreover, the committee is in a poor position to argue that subsection c(12) is not controlling because its petition for allowance was predicated upon this provision and the court, without objection on the part of the committee, referred its petition to the Commission, as is required where allowances are sought under this subsection. After having thus proceeded, and after the Commission refused to fix a máximum limit, the committee now attempts to maintain the position that subsection c(12) is not applicable, that such reference was unnecessary, and that the court independently of any action by -the Commission was authorized to make the allowance. in thus construing subsection c(12) we have not overlooked the committee’s contention that a court in a proceeding under Sec. 77 is in the position of a federal court appointing a receiver in equity and thus has the power to make an allowance to the committee irrespective of subsection c(12). It is true that subsection a authorizes the court to exercise certain powers in addition to those conferred by the section, provided they are “not inconsistent with this section.” As we construe it, subsection c(12) is inconsistent with the power of the court to allow compensation for services rendered “in connection with the proceedings and plan,” except as therein provided. If the committee’s contention in this respect be accepted, it would seriously impair, in fact well near emasculate, the salutary provisions of subsection c(l2). If the court has the power which the committee asserts, we see no reason why it could not allow compensation not only to committees but to any others who might aid in the proceedings. We shall not cite or discuss the numerous cases cited by the committee in support of its contention in this respect. None of them, with the exception of In re Chicago & North Western Ry. Co., 7 Cir., 121 F.2d 791, had anything to do with a proceeding under Sec. 77. In the North Western case this court held that the court had the power, without reference to the 'Commission, to allow and make payable out of the estate the expenses to foe incurred by a debtor in perfecting an appeal to this court. Our holding was predicated largely on the theory that subsection c(12) covered services which had been rendered, while the amount sought was for a service or expense to be incurred in the future. A further basis for our conclusion might well have been that the allowance sought was not for services rendered “in connection with the proceedings and plan,” and therefore was not within the terms of subsection c(12). At any rate, neither this case nor any of the others relied upon by the committee furnishes any support to the argument here presented. Another contention advanced by the committee is that its services were rendered under the express authority of the court and at the request of the reorganization managers, and that even though subsection c(12) be held applicable the claim for compensation should be allowed as expenses incurred by the reorganization managers. As already noted, the committee, after the adverse decision of the Supreme Court, decided that it was in the interest of the bondholders to approve the plan. On February 20, 1945, at the time the reorganization proceeding came before the court for confirmation, counsel for the committee, acting on instructions therefrom, appeared before the court and advised it of the decision of the committee to go along with the plan. Counsel suggested that there might be some difficulty in obtaining the necessary approval but that the committee (one member refusing to agree) was willing to assist and requested the court to approve of the committee-sending a letter to the bondholders suggesting that they approve of the plan. In the meantime, the reorganization managers had sent out ballots to the Terre Haute bondholders, under the approval of the court, in order to obtain the vote of such bondholders as to whether they approved the provisions of the plan as it related to them. Without going into detail, it is sufficient to state that the reorganization managers met with little success. Sometime in June-1945, counsel for the reorganization managers called the chairman of the committee by telephone, informed him in effect of the disappointing result being obtained from the bondholders, reminded him of the statement made foy- the committee’s counsel in court that the committee would be willing to help, and inquired if the committee was still willing. Coúnscl for the managers was informed that the committee would do its best to bring.about the necessary approval. Thereupon, the committee on June 7, 1945 filed a petition in the court evidencing its willingness to assist in procuring a favorable vote, recited that- favorable action by the bondholders would redound not only to their advantage but also to the advantage of the debtor, and prayed that “an order authorizing it to retain persons to solicit the favorable vote of ‘the Terre Haute’ bondholders to the plan, and authorizing the debtor’s trustee to pay to your petitioner the reasonable expenses thereof, not exceeding $15,000, for that purpose.” The court on June 12, 1945 entered an order, predicated upon such petition, which among other things authorized the committee to retain persons to solicit the bondholders and directed the debtor’s trustee to pay the committee the cost of such solicitation. The order further recited: “ * * and it appearing to the Court that it is in the interests of the Trust Estate and ultimate reorganization that all of the holders of said ‘Terre Haute Bonds’ should vote in respect of the provisions of the Plan relative to the ‘Terre Haute Bonds’ and Lease, and that the holders of such bonds who have not yet voted in respect of said provisions should be solicited to vote in favor thereof, and that it is appropriate that said Committee should solicit the holders of said bonds to cast their votes; and it further appearing that the reasonable cost of such solicitation will be not less than $10,000 * * The court authorized the committee to retain suitable persons to solicit the bondholders, and in conclusion stated: “Further Ordered that upon proper showings made to the Trustees of the property of the Debtor herein, amounts not to exceed $10,000 for the cost of such solicitation shall be advanced to said Committee by said Trustees out of the funds of the Trust Estate pending final determination as to the total amount to be allowed for the cost of such solicitation.” The committee engaged the services of a professional solicitor whose claim for such services has been approved and paid. It is plain from the court’s order that the payment for this service was authorized by the court, but we are unable to find, as the committee would have us do, any authority in the order for compensation to the committee for the services rendered by it, valuable as they might have been, in obtaining the desired result. In the report of the Commission concerning this order, it is stated: “The court authorization referred to above specified that the committee might retain solicitors, and placed a limitation upon the sum which could be expended for such services. It contained no direction or authorization to committee members to undertake such services themselves.” We agree with the interpretation which the Commission places upon the court’s order. So we think there is no merit to the contention that the committee’s claim for compensation can properly be charged as an expense incurred by the reorganization managers. The committee was not acting as an agent or on behalf of such managers in performing the service for which compensation is sought. It is true, no doubt, that the managers were glad to have the assistance of the committee, which the latter proffered in open court. About the most which can be said of the relation existing between the committee and the managers is that the latter were glad to avail themselves of the committee’s offer. It also appears that this theory for obtaining compensation was an afterthought. If the committee was entitled to be paid by the reorganization managers as an expense incurred by them, we think the claim should have been presented directly to such managers, and in turn they would have sought its allowance from the court and the Commission as an expense incurred “in connection with the proceedings and plan.” The petition for allowance, however, and the course which has been pursued indicate that no such theory was relied upon. Moreover, the primary responsibility of the committee was to the bondholders whom it represented. That this responsibility was discharged in good faith is evidenced by the fact that the committee on their behalf contested the plan all the way to the Supreme Court. It was only after an adverse decision that it agreed to cooperate and then only, and rightfully so, after the committee had determined that the best interest of the bondholders called for approval of the plan. The benefit which inured to the reorganized company was that which flowed from the committee’s labors in behalf of its bondholders whom it was under obligation to serve. We agree with the Commission that it was without authority • to fix a maximum limit of compensation for the committee and we agree with the lower court that it, in the absence of such authority on the part of the Commission, was also without authority to make an allowance of compensation as prayed for by the committee. The order appealed from is affirmed. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_treat	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. UNITED STATES of America, Appellee, v. Joseph L. BELCULFINE, Defendant-Appellant. No. 75-1213. United States Court of Appeals, First Circuit. Submitted Sept. 12, 1975. Decided Dec. 30, 1975. Robert Snider, Boston, Mass., and Snider, Crowe & Sbrogna, Boston, Mass., on brief for appellant. James N. Gabriel, U. S. Atty., and Alan R. Hoffman, Sp. Asst. U. S. Atty., Boston, Mass., on brief for appellee. Before COFFIN, Chief Judge, and McENTEE and CAMPBELL, Circuit Judges. COFFIN, Chief Judge. This is the second time that we have considered issues arising from this case. Appellant was originally convicted for thé possession and mailing of a pipe bomb, which exploded in the South Boston Postal Annex. An important piece of evidence in that prosecution was a piece of wire which had been seized by Postal Inspectors, acting pursuant to a warrant, from a workbench that was located in a workshop in the rear of the offices of the Bell Music and Amusement Company. The affidavit that the postal inspectors submitted in support of their application for the search warrant stated: “On several occasions, between July 26 and August 8, 1973, we went to the premises of Bell Music and Amusement Company, Inc., at 1 Pineland Avenue, Shrewsbury, Massachusetts, [and] looked through the glass window. The premises consisted of a front office with one desk and file cabinets. To the rear of this office through a door partially open, we observed a wooden bench and table.” Subsequent to the search it became apparent that the postal inspectors could not have seen the workbench from which the wire was seized by looking through the glass window at the front of the premises. The appellant thereupon moved to suppress the wire evidence, contending that there had been no probable cause to issue the warrant. A federal magistrate held a hearing, and the district court denied the motion, stating that so long as the affidavits were facially sufficient, the motion to suppress must be denied. An appeal was taken to this court, and we vacated the judgment of the district court, holding that the wire evidence must be suppressed if the affidavit contained an intentional, relevant, and non-trivial misstatement. United States v. Belculfine, 508 F.2d 58 (1974). Since the district court had made no findings with respect to whether the postal inspectors had knowingly misrepresented the facts, we remanded the case to the district court for a hearing on that issue. In the course of our opinion, this court made the statement that “[the] evidence adduced at the suppression hearing [established] conclusively that the statement in the affidavit that ‘[t]o the rear of this office through a door partially open, we observed a wooden bench and table’ was incorrect.” 508 F.2d at 62. . On remand the district court conducted an evidentiary hearing to resolve the factual question of the inspector’s intent. In the course of the hearing, the district court took a view of the Bell Music and Amusement Company premises. On the basis of the evidence adduced the district court found that, although the postal inspectors could not have seen the workbench from which the wire was seized by looking through the glass window, the postal inspectors had not been referring to that workbench in their affidavit. Rather, the district court found, they were referring to certain objects in a middle room which looked like a wooden bench and table and, therefore, that the postal inspectors had not committed a misstatement. Because the district court was concerned that this court’s prior statement regarding the accuracy of the representation in the affidavit may have been binding on it, the district court found, in the alternative, that any misrepresentation that was made was unintentional. Since we affirm on the basis of the district court’s primary finding, we need not consider the propriety of its alternative finding. Appellant attacks these findings on three grounds. First, he contends that our statement concerning the truth of the representation in the affidavit constituted the “law of the case” and therefore precluded the district court from finding that the postal inspectors actually observed objects that looked like a wooden bench and table. We disagree that our statement regarding the accuracy of the statement contained in the inspector’s affidavit foreclosed the district court from finding that the inspectors had not made a misstatement. Under the federal doctrine of the law of the case, when a case is decided by an appellate court and remanded for a new trial, any questions that were before the appellate court and disposed of by its decree become the law of the case and bind the district court on remand. See In re Sanford Fork & Tool Co., 160 U.S. 247, 255-58, 16 S.Ct. 291, 40 L.Ed. 414 (1895); 6A Moore’s Federal Practice U 59.16. In the prior appeal, we were reviewing the district court’s determination that the evidence could not be suppressed because it was not permissible for it to delve beneath the face of the affidavit. We were, therefore, not in the position of reviewing any findings of fact regarding what the postal inspectors could have seen. Our statement, quoted earlier, may unfortunately be read broadly; in context, however, it should be taken as indicating our belief that the photographic evidence established that the postal inspectors could not have seen the workshop in the rear of the premises, not as a finding that the inspectors could not and did not see objects in the middle room. See 508 F.2d at 62 n. 7. Even if we had made such a finding, the law of the case doctrine would not have operated to give this court’s factual assertion a preclusive effect. As appellant admits, law of the case principles have been applied to give binding effect to decisions regarding the weight and sufficiency of the evidence at a former trial only where the evidence at the later trial is substantially the same as, that at the earlier one. See, e. g., Taylor v. Pierce Bros. Ltd., 220 Mass. 254, 107 N.E. 947 (1915). Here, of course, the evidence at the second trial was not substantially the same as that at the first. Appellant’s second major argument is that certain statements made by the government and by Inspectors O’Leary and Peterson during the proceedings before the magistrate on the original motion to suppress constituted judicial admissions and hence were binding on the government at the second hearing. We reject these contentions. It is doubtful that any of the statements in question could be treated as judicial admissions, but even if they could, the district court did not abuse its discretion in relieving the government of the consequences of having made them. Unlike ordinary admissions, which are admissible but can be rebutted by other evidence, judicial admissions are conclusive on the party making them. Because of their binding consequences, judicial admissions generally arise only from deliberate voluntary waivers that expressly concede for the purposes of trial the truth of an alleged fact. Although there is a limited class of situations where, because of the highly formalized nature of the context in which the statement is made, a judicial admission can arise from an “involuntary” act of a party, see Best v. District of Columbia, 291 U.S. 411, 415, 54 S.Ct. 487, 78 L.Ed. 882 (1933), considerations of fairness dictate that this class of “involuntary” admissions be narrow. Similarly, considerations of fairness and the policy of encouraging judicial admissions require that trial judges be given broad discretion to relieve parties from the consequences of judicial admission in appropriate cases. See Wigmore on Evidence If 2590; United States v. Cline, 388 F.2d 294, 296 (4th Cir. 1968). The first statement appellant contends should operate as a judicial admission is contained in the memorandum the government submitted in opposition to appellant’s pretrial motion to suppress the wire evidence. The statement, which appeared in a footnote and which apparently was inserted in the brief over the weekend following the completion of the hearing before the magistrate, stated: “ . . . at the hearing, it became clear that this observation [that the affiants observed a wooden bench and table] was incorrect. The Government submits that in view of the draperies and poor light inside the premises this was an innocent misrepresentation.” It was a somewhat casual statement, commenting on what the evidence before the magistrate established. Since the government’s statement was made at a time when the government was urging a legal theory under which the accuracy of the statement was irrelevant and under circumstances in which the government had not had the time to research the factual issue, we doubt that it would have been proper to treat the government as bound by the statement on remand after this court had rejected the government’s primary legal theory. But even if the statement could properly have been treated as a judicial admission at the hearing on remand, the district court did not, in any event, abuse its discretion in relieving the government of the consequences of its statement. As we noted, the policy of encouraging judicial admissions is served by giving trial judges broad discretion in these matters, and here we see no basis for concluding that the district court abused its discretion. Appellant also contends that statements made by Inspectors O’Leary and Peterson in the course of their testimony at the initial hearing bound the government to the position that the affidavit contained a misstatement. Passing the substantial arguments that the doctrine should not apply to testimonial statements, see Wigmore, supra If 2594a, and that the postal inspectors could not bind the government by way of a judicial admission, we are satisfied that neither inspector’s testimony is sufficiently conclusive to be treated as a judicial admission. Inspector Peterson testified that he “believed” or “thought” he saw a workbench. Appellant maintains that this testimony conclusively establishes that he did not actually see a workbench. We reject this argument as frivolous. The testimony clearly possesses none of the attributes of a judicial admission; it only indicates that the inspector was not certain that he had seen a workbench. Inspector O’Leary testified that the drapes had been closed at the time he observed the workbench. Since subsequent evidence established that it would not have been possible to have observed anything inside the premises if the curtains were fully drawn, appellant contends that Inspector O’Leary’s testimony must be taken as conclusively establishing that he did not observe anything on the days in question, and that it foreclosed him from testifying at the second hearing that the draperies had been either open or parted and that he had seen something that looked like a workbench — testimony which the district court relied upon to find that the draperies were parted. Although the earlier testimony is arguably inconsistent with the later testimony, the earlier testimony clearly cannot be taken as a conclusive admission that Inspector O’Leary did not see anything. Finally, appellant argues that the district court’s finding that the postal inspectors had in fact seen something that looked like a workbench was clearly erroneous. We have examined the record carefully and find no merit to this contention. The evidence adduced by the district court when it took the view and the testimony of both inspectors clearly support the district court’s findings. There is no other evidence in the record suggesting that the findings were clearly wrong. Affirmed. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
songer_circuit	C	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. Terri Lee HALDERMAN, a retarded citizen, by her mother and guardian, Winifred Halderman; et al., Plaintiff-Intervenors, v. PENNHURST STATE SCHOOL & HOSPITAL, et al., Pennhurst Parent-Staff Association, Intervenor. Appeal of COMMONWEALTH OF PENNSYLVANIA, Defendants, Pennhurst State School & Hospital, et al., in No. 78-1490. Appeal of George METZGER, et al. in No 78-1564. fer in No. 78-1602. Nos. 78-1490, 78-1564 and 78-1602. United States Court of Appeals, Third Circuit. Hearing En Banc on Remand from the Supreme Court of the United States. Argued Nov. 23, 1981. Decided Feb. 26, 1982. Certiorari Granted June 21, 1982. See 102 S.Ct. 2956. LeRoy S. Zimmerman, Atty. Gen., Allen C. Warshaw, Deputy Atty. Gen., Chief, Special Litigation, Robert B. Hoffman, Deputy Atty. Gen. (argued), Harrisburg, Pa., for Commonwealth appellants. Thomas M. Kittredge (argued), Jami Wintz McKeon, Morgan, Lewis & Bockius, Alan J. Davis, Mark A. Aronchick, Pauline Cohen, Philadelphia, Pa., for City and County appellants. Joel I. Klein (argued), H. Bartow Farr, III, Peter Scheer, Onek, Klein & Farr, Washington, D. C., for Pennhurst Parent-Staff Association, intervenor. David Ferleger (argued), Penelope A. Boyd, Philadelphia, Pa., for appellees Terri Lee Halderman, et al. Thomas K. Gilhool (argued), Frank J. La-ski, Public Interest Law Center of Pennsylvania, Philadelphia, Pa., for appellees, Pennsylvania Ass’n for Retarded Citizens, et al. Peter F. Vaira, Jr., U. S. Atty., Philadelphia, Pa., Wm. Bradford Reynolds, Brian K. Landsberg (argued), Dept, of Justice, Washington, D. C., for the United States of America. Before SEITZ, Chief Judge, and ALDISERT, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM and SLOVITER, Circuit Judges. OPINION OF THE COURT GIBBONS, Circuit Judge, with whom ALDISERT, WEIS, A. LEON HIGGIN-BOTHAM, Jr. and SLOVITER, Circuit Judges, join: This appeal is before us on a remand from the Supreme Court, which on April 20, 1981, reversed our judgment upholding in part and modifying the permanent injunction ordered by the district court. I The Supreme Court’s judgment remanded to this court “for further proceedings in conformity with the opinion of the Court.” Accordingly it is necessary to examine that opinion, in the light of our prior opinion, to determine what issues must now be addressed. Our judgment, now reversed, rested upon a federal statute and a Pennsylvania statute. The federal statute we relied upon is the “bill of rights” provision of the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. § 6010 (1976). Proceeding on the assumption that Congress had constitutional authority under Section 5 of the Fourteenth Amendment to enact that section of the Act, we held that a private cause of action for the enforcement of the rights it defined should be implied. That holding was predicated upon our belief that it was inappropriate for courts faced with a statute which fell within any of several constitutional grants of Congressional lawmaking authority to reject any source of such authority. The Supreme Court, however, adopted a different standard, stating: Although this Court has previously addressed issues going to Congress’ power to secure the guarantees of the Fourteenth Amendment,... we have had little occasion to consider the appropriate test for determining when Congress intends to enforce those guarantees. Because such legislation imposes congressional policy on a State involuntarily, and because it often intrudes on traditional state authority, we should not quickly attribute to Congress an unstated intent to act under its authority to enforce the Fourteenth Amendment.... The case for inferring intent is at its weakest where, as here, the rights asserted imposed affirmative obligations on the States to fund certain services, since we may assume that Congress will not implicitly attempt to impose massive financial obligations on the States. 451 U.S. at 15-16,101 S.Ct. at 1539. Applying this newly announced rule of statutory interpretation to Section 6010, the Court held that it was not passed pursuant to Section 5 of the Fourteenth Amendment, but was merely a funding clause enactment. As such, the statute was subject to another rule of statutory interpretation: “if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously,” for “[b]y insisting that Congress speak with a clear voice, we enable the States to exercise their choice [of participating in a federally funded program] knowingly, cognizant of the consequences of their participation.” 451 U.S. at 17, 101 S.Ct. at 1540. Applying this clear statement requirement, the Court held: We would be attributing far too much to Congress if we held that it required the States, at their own expense, to provide certain kinds of treatment. Accordingly, we reverse the principal holding of the Court of Appeals and remand for further proceedings consistent with this opinion. 451 U.S. at 31-32, 101 S.Ct. at 1547. The “principal holding” referred to is our holding that Section 6010 conferred substantive rights. The precise holding in the Supreme Court’s opinion is that we erred in that single respect. Turning to our alternative state law grounds for affirming, to the extent we did, the relief ordered by the district court, the Supreme Court observed: Respondents contend that, even if we conclude that relief is unavailable under federal law, state law adequately supports the relief ordered by the Court of Appeals. There are, however, two difficulties with that argument. First, the lower court’s finding that state law provides a right to treatment may well have been colored by its holding with respect to § 6010. Second, the court held only that there is a right to “treatment,” not that there is a state right to treatment in the “least restrictive” environment. As such, it is unclear whether state law provides an independent and adequate ground which can support the court’s remedial order. Accordingly, we remand the state law issue for reconsideration in light of our decision here. 451 U.S. at 31, 101 S.Ct. at 1547. Thus the Supreme Court has expressed no view on the question whether state law provides an independent and adequate ground which can support the district court order. We are directed to consider that question in light of the decision in In re Joseph Schmidt, announced by the Pennsylvania Supreme Court after our decision but prior to that of the Supreme Court. Implicit in that direction is a holding that the plaintiffs’ federal law claims are of sufficient substance to support the exercise of pendent jurisdiction over that Pennsylvania law claim. Finally, the Court addressed legal contentions advanced by the plaintiffs in support of the district court order which this court found it unnecessary to decide. Respecting the contention that Section 6063 of the Developmentally Disabled Assistance and Bill of Rights Act,- which requires that state plans comply with several specific federal conditions, may be enforceable in a private action, the Court noted that the, contention raised a number of issues, but concluded: These are all difficult questions. Because the Court of Appeals has not addressed these issues, however, we remand the issues for consideration in light of our decision here. 451 U.S. at 30, 101 S.Ct. at 1546. The Court also said: For similar reasons, we also remand to the Court of Appeals those issues it did not address, namely, respondents’ federal constitutional claims and their claims under § 504 of the Rehabilitation Act [of 1973, as amended in 1974, 1976, and 1978, 29 U.S.C. § 701 et seq.]. 451 U.S. at 31, 101 S.Ct. at 1547. We do not understand the remand on these issues as directions that this court must consider and decide either constitutional or statutory supremacy issues which, in light of state grounds independent and adequate to support the district court order, may not have to be reached. Rather, we construe the Court’s remand as leaving open for our reconsideration, to the extent we find it necessary for such a purpose, any grounds of decision which might support the order appealed from, except our previous holding that Section 6010 was enacted pursuant to Section 5 of the Fourteenth Amendment and thus conferred substantive rights. The Supreme Court found no fault with the district court’s findings of fact, or with the standing of the United States as an intervening plaintiff. Thus there is no need for a repetition of the discussion in Parts II and III of our prior opinion. Moreover the Court did not address those issues respecting scope of relief which are discussed in Part VII of our prior opinion. Thus, assuming the propriety of some legal standard upon which relief could be predicated, there is no occasion, for purposes of this appeal, for a reconsideration of our discussion of the Commonwealth’s Eleventh Amendment contention, of objections to the definition of the class, of objections to the use of a master, or of other specific objections to provisions of the injunction which we rejected. II When our prior decision was announced, the highest court of Pennsylvania had not yet definitively construed the effect on the habilitation of mentally retarded persons of that state’s Mental Health and Mental Retardation Act of 1966 (hereinafter MH/MR Act of 1966), Pa.Stat.Ann. tit. 50, §§ 4101-4704 (Purdon 1969). We held that the MH/MR Act of 1966 provides a state statutory right to habilitation for such persons, that the plaintiffs could sue to enforce that right and that a federal court has pendent jurisdiction over such a claim, which was properly exercised in this instance. Because the Supreme Court of Pennsylvania had not yet considered whether habilitation under the MH/MR Act of 1966 required the choice by the state of the least restrictive environment, while in our (mistaken) view Section 6010 did, we found it unnecessary to speculate about how that Court would construe the state statute in this respect. Since our decision, however, In re Joseph Schmidt, 494 Pa. 86, 429 A.2d 631 (1981), has been decided, and the state court has spoken definitively.. Joseph Schmidt, a mentally retarded adult, resided and received treatment, from the age of eight at the expense of Allegheny County, in a privately operated residential school for mentally retarded children. After 14 years of support for Schmidt in that school, the county petitioned the Court of Common Pleas of Allegheny County for his involuntary commitment to Western Center, a state-operated residential facility. The Commonwealth of Pennsylvania intervened as a respondent, contending that Schmidt’s commitment to the Western Center facility would not be appropriate under the MH/MR Act of 1966. The parties did not dispute that neither Allegheny County nor the Commonwealth’s Western Center provided a program which would enable Schmidt to receive adequate habilitation. The dispute was over which governmental unit, under the Pennsylvania statutory scheme, was primarily responsible in cases such as his for developing a plan for his habilitation. As in this case, the County contended that it had no obligation under the MH/MR Act of 1966 to provide supportive services which would eliminate the necessity for institutionalization. The Court of Common Pleas rejected the County’s contention and ordered it to develop for Schmidt an individual practical life-management plan suitable to his needs. The Pennsylvania Supreme Court reversed, holding that under the MH/MR Act of 1966 the state rather than the county was responsible for developing a suitable placement for a mental patient so severely retarded that there is no alternative for his habilitation less restrictive than long term institutional residential placement. In deciding the allocation of responsibilities between the County and the Commonwealth, however, the Court made it clear that under Pennsylvania law both were bound by the same requirement of normalization. The opinion of the Court states: We fully agree with the court below that the legislative scheme was designed to require the county to provide those supportive services where they would eliminate the necessity of institutionalization, even where those services would be required on a long term basis. With the acceptance of the principle of “normalization” and the resultant legislation, it is clear that the restrictive view urged by the county as to its obligations in the area is out of step. The concept of normalization envisions that the mentally retarded person and his or her family shall have the right to live a life as close as possible to that which is typical for the general population. Consistent with this concept is the requirement that the least restriction consistent with adequate treatment and required care shall be employed. 429 A.2d at 635-36. Addressing the regulations of that Pennsylvania Department charged with the responsibility for administering the MH/MR Act of 1966, the Court observed: This [least restrictive alternative] approach to the problem of mental retardation was reflected in the regulations promulgated by the secretary pursuant to § 301 of the Act, 50 P.S. § 4301, on February 10, 1973. Regulations 5200 Appendix IV County Mental Health and Mental Retardation Program — Service Content of the Program. The following pertinent excerpts from these regulations are most instructive in the instant inquiry. The County Program is the means by which minimum services as described in the act shall be readily available to promote the social, personal, physical and economical habilitation or rehabilitation of mentally retarded person with all due respect for the full human, social and legal rights of each person. This means that the health, social, educational, vocational, environmental and legal resources that serve the general population shall be marshalled and coordinated by the County Program to meet the personal development goals of mentally retarded persons, in accordance with the principle of normalization.... In keeping with this principle of normalization, the County is responsible to utilize county program funds for the mentally retarded to accomplish the following objectives: 4. shaping and maintaining an environment most productive of basic human personality qualities involving parent-child and sibling relationships, environmental adaptation, self-awareness and learning motivation and ability; 5. specific training and learning situations designed and implemented to develop all potential; 6. community development and restructuring to achieve the maximum normalization for the mentally retarded person wherever he is. I. Responsibility for Planning, Direction and Coordinated Delivery of Services — The Base Service Unit: The County Administrator shall be responsible to provide for the establishment of an organizational unit consisting of multidisciplinary professional and non-professional services for persons who are mentally retarded and in need of service from the County Program.... The Base Service Unit shall be responsible to perform the following functions in such a way as to carry out the objectives of the County Program as stated above. D. Provide for comprehensive diagnosis and evaluation services to: 3. Develop a practical life-management plan for the individual and his family and provide the necessary counseling and following-along services; These regulations make it clear that the legislative grant of power to the counties under § 301(e)(3) of the Act, 50 P.S. § 4301(e)(3), empowering them to establish additional services and programs “designed to prevent... the necessity of admitting or committing the mentally disabled to a facility” was intended to be utilized by the counties to minimize the necessity of institutionalization. It was more than a mere grant of power to be used at the county’s option. The power of the department to issue the regulations in question and to require the counties to assume the responsibilities set forth therein was clearly within the purview of section 201 of the Act, 50 P.S. § 4201, which charges the department to create a comprehensive and coordinate program in conjunction with the county governments. Moreover, any question as to the legislative recognition of the concept of normalization and the adoption of the doctrine of least restrictive alternatives in matters relating to the mentally retarded has been removed by the enactment of the Mental Health Procedures Act, Act of 1976, July 9, P.L. 817, No. 143, § 101; 50 P.S. § 7101. 429 A.2d at 636-37. In the course of announcing that the MH/MR Act of 1966 embodied the least restrictive alternative means standard for achieving habilitation of the mentally retarded, the opinion of the Pennsylvania Supreme Court makes passing reference to the fact that the least restrictive alternative doctrine was first articulated by Chief Judge Bazelon in Lake v. Cameron, 364 F.2d 657 (D.C.Cir.1966), and subsequently adopted in a series of commitment and treatment related cases. From the context, it is clear that the Court did not suggest that it was giving to the MH/MR Act of 1966 an interpretation not, perhaps, intended by the Pennsylvania legislature, but instead compelled by the federal constitution. Indeed the-Attorney General does not suggest that the statutory interpretation of the MH/MR Act of 1966 announced in Schmidt is other than independent of federal law. The Pennsylvania law ground of decision being entirely independent of federal law, the sole remaining state law question is whether that ground of decision is adequate to support the order appealed from. Except to the extent that we previously required modification of the order, we hold that it is. This case, unlike Schmidt, is a class action. In our prior decision we held that because for some members of the plaintiff class institutionalization might well be the least restrictive available means of habilitation, it was error to order the complete closing of Pennhurst without individualized determinations of need. Addressing the Pennsylvania legislation we observed that we do not think that the Pennsylvania legislature, in providing a right to treatment in the Mental Health and Mental Retardation Act of 1966, intended to foreclose all institutionalization. In section 102 of that Act, for example, the legislature expressly included “institution[s]” within the category of “facilities” for which the Department of Welfare was responsible. Pa.Stat.Ann. tit. 50, § 4102. Thus, we see in the MH/MR Act of 1966 exactly the intent ascribed to it by Senator Pechan when he spoke in support of the measure: The object of the legislation is to make it possible for every mentally disabled person to receive the kind of treatment he needs, when and where he needs it. 1966 Pa.Legis.J. 3d Spec.Secc., No. 33, 76 (Sept. 27, 1966). The state statute... was focused on individual needs. 612 F.2d at 114-15. This interpretation of the MH/MR Act of 1966 was fully com firmed by the Schmidt decision. That case involved a dispute between two governmental units over allocation of burdens among them, which in the particular instance of a single individual was resolved in favor of the County. The resolution in Schmidt resulted from the Pennsylvania Supreme Court’s conclusion that where long term institutional care is in fact the least restrictive means of habilitation, institutionalization is permissible and the state is obliged to provide it. Our prior holding that individual determinations must be made for each member of the class is entirely consistent with the holding that Joseph Schmidt must be provided a place in a state facility. But unlike Schmidt, we have before us numerous class members who the court found should not be in Pennhurst. For these the court ordered that suitable community living arrangements be provided, and enjoined the county defendants from recommending future commitments to Pennhurst without an individual determination that a community living arrangement or other less restrictive environment would be suitable. These holdings are also consistent with the Schmidt opinion, for while the opinion, recognizes that under the MH/MR Act of 1966 the state was given responsibility for overall supervision and control of the statutory program, it expressly rejected Allegheny County’s contention that the County had no obligation to provide merely ameliorative services until a state placement could be arranged. 429 A.2d at 635. The allocation, in the order appealed from, of responsibility among the county and state defendants based upon individualized determinations as to what is the least restrictive environment in which habilitation can take place, is completely congruent with the Schmidt court’s interpretation of the MH/MR Act of 1966. The defendants urge that because the Schmidt case did not present any issue of funding of proper care, it should not be regarded as controlling. (Appellants’ Joint Brief on Remand, 54, citing 429 A.2d at 633.) Except that this is a class action, however, we are not persuaded that there is any essential difference in the posture of the Schmidt case and this. As in this case, the County attempted to limit its responsibility to petitioning for the commission of mentally retarded persons to a state residential facility. The Schmidt court made clear that the Pennsylvania law imposed the obligation on both levels of government to provide habilitation in that environment providing the least restriction on personal liberty consistent with habilitation. Insofar as financial burdens are concerned, it merely referred to Sections 508 and 509 of the MH/MR Act of 1966, which impose funding duties on both levels of government, and which provide mechanisms for the allocation of appropriated funds among the counties. 429 A.2d at 633. The Commonwealth was ordered to find a placement for Schmidt in an institution with a staff-patient ratio suitable to his needs. There is no suggestion in the Schmidt opinion that this order would be qualified by the necessity for appropriations. Obviously the Schmidt Court anticipated that the adjustment mechanisms of Sections 508 and 509 would be operated in good faith. Nothing in the record which is before us on this appeal suggests that those mechanisms will be dismantled, will be operated other than in good faith, or are inhibited by the provisions of the judgment. On this record we, like the Supreme Court of Pennsylvania, must assume that the Pennsylvania legislature intends. compliance with its statutes. Moreover, a Rule 60(b) motion would be the proper vehicle to present a showing that changed circumstances no longer require the use of a federal court master to administer a state program under state laws. We conclude, therefore, that except as the order appealed from must be modified in accordance with our prior decision, the Pennsylvania MH/MR Act provides adequate support for it independent of federal law. Ill Recognizing, as they must, that this court is bound by the Pennsylvania Supreme Court’s interpretation of the MH/MR Act of 1966, the defendants urge that we may not rely on that Act as support for the order appealed from because the Eleventh Amendment is a bar to federal court consideration of that claim. The contention that neither the district court, this court, nor the Supreme Court has jurisdiction to consider plaintiffs’ state law claims has not previously been advanced in this action, and from the dearth of authorities cited in its support, not previously advanced anywhere. To put the Commonwealth’s unique contention in context, a brief description of the parties and the nature of the action is appropriate. First, the class action plaintiffs at this point in the proceedings seek only prospective injunctive relief. Second, although Pennhurst State School and Hospital, which apparently is a division of the Department of Welfare, is named as a defendant, there are numerous individual state officers who have been joined as defendants in their official capacities. Thus, insofar as prospective injunctive relief is sought against those defendants, the case is a classic example of an action falling within Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Third, the United States is an intervening plaintiff, see 42 U.S.C. § 1997(c) (1976), against which even the state itself cannot successfully plead the Eleventh Amendment as a bar to jurisdiction. See, eg., United States v. North Carolina, 136 U.S. 211, 10 S.Ct. 920, 34 L.Ed. 336 (1890); United States v. Minnesota, 270 U.S. 181, 46 S.Ct. 298, 70 L.Ed. 539 (1926). Fourth, the counties, even as juridical entities, do not fall within the coverage of the Eleventh Amendment. Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766 (1890). Against those defendants even money damages may be awarded. Finally, as we held in our prior opinion, in a suit against state officials for injunctive relief the Eleventh Amendment is no bar to prospective injunctive relief even though such relief realistically will impose financial burdens which will be met by the state treasury. Thus it is quite plain that the Eleventh Amendment is no bar to the prospective injunctive relief which was ordered by the district court insofar as that, relief is predicated on constitutional or federal statutory claims. Indeed, at oral argument the deputy attorney general representing the Commonwealth defendants conceded that if we did not consider claims under MH/MR Act of 1966, we would have jurisdiction to decide, and indeed must decide, those federal claims. The Commonwealth defendants urge, nevertheless, that the Eleventh Amendment applies in a particular and different way to causes of action based upon state law, over which.a federal court is asked to exercise pendent jurisdiction. The contention is made that while peculiarly federal interests may justify the holdings of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), and of Edelman v. Jordan, 415 U.S. 651, 667-68, 94 S.Ct. 1347, 1357-58, 39 L.Ed.2d 662 (1974), no such interests justify entertaining causes of. action based upon state law. This argument is predicated upon misunderstandings both of the meaning of the Eleventh Amendment and of the doctrine of pendent jurisdiction. That amendment reads: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. (Emphasis supplied.) It was adopted in reaction to the exercise by the Supreme Court of original jurisdiction in Chisholm v. Georgia, 2 U.S. (2 Dali.) 419, 1 L.Ed. 440 (1793), solely on the ground that the plaintiff was a citizen of another state. The italicized language, which would otherwise be surplusage, shows, when compared with Article III Section 2 of the Constitution, that only a narrow and technical amendment to the latter was intended. So the amendment was long understood. In the post-Reconstruction era, however, the original interpretation of the amendment came under pressure for political and economic reasons which are not of immediate relevance. Eventually in Hans v. Louisiana, 134 U.S. 1,10 S.Ct. 504, 33 842 (1890), the Court effectively rewrote the amendment as if it did not contain the last fourteen italicized words, by holding that it was intended, at least to some extent, to constitutionalize a doctrine of state sovereign immunity. If the Hans v. Louisiana interpretation of the amendment were to be taken literally, no federal court could entertain an action against officials acting under color of state law. The consequences of such a rule were intolerable, and eighteen years after Hans v. Louisiana rewrote the amendment, the Court reconsidered. In Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), it substantially restored the earlier understanding, holding that a federal court could entertain an action for injunctive relief against state officials sued in their official capacities. Although federal question jurisdiction was relied upon, the Court’s Eleventh Amendment discussion is separate from and independent of its conclusion that the complaint stated a claim arising under the Constitution and laws of the United States. 209 U.S. at 145, 28 S.Ct. at 448. The decision in Ex Parte Young, which permitted district courts to enjoin the enforcement of state regulatory statutes, aroused considerable opposition in Congress — opposition which, in a compromise with proponents of more drastic curtailments of federal jurisdiction, produced the Three Judge District Court Act of 1910. While the controversy, aroused by Ex Parte Young was at its height, Siler v. Louisville & Nashville R.R. Co., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753 (1909), came before the Court. Like Ex Parte Young it involved a challenge to state utility regulation on federal constitutional grounds. Federal jurisdiction depended on the existence of that federal question, but the plaintiffs also contended that the Kentucky Railroad Commission had exceeded its powers under the Kentucky enabling act. Justice Peckham, the author of Ex Parte Young, wrote for a unanimous court: The Federal questions, as to the invalidity of the state statute because, as alleged, it was in violation of the Federal Constitution, gave the Circuit Court jurisdiction, and, having properly obtained it, that court had the right to decide all the questions in the case, even though it decided the Federal questions adversely to the party raising them, or even if it omitted to decide them at all, but decided the case on local or state questions only. ... Of course, the Federal question must not be merely colorable or fraudulently set up for the mere purpose of endeavoring to give the court jurisdiction.... 213 U.S. at 191-92, 29 S.Ct. at 454-55. Explaining the reason for entertaining pendent state law claims even in cases where a colorable federal claim is not decided, Justice Peckham continued: Where a case in this court can be decided without reference to questions arising under the Federal Constitution, that course is usually pursued and is not departed from without important reasons. In this case we think it much better to decide it with regard to the question of a local nature, involving the construction of the state statute and the authority therein given to the commission to make the order in question, rather than to unnecessarily decide the various constitutional questions appearing in the record. 213 U.S. at 193, 29 S.Ct. at 455. The rule that a federal court should rely upon a state law interpretation rather than decide a federal constitutional question was an old one even in 1909. Charles River Bridge v. Warren Bridge, 36 U.S. (11 Pet.) 420, 9 L.Ed. 773 (1837). What Siler added was the express recognition that the lower federal courts could entertain pendent state law claims not otherwise within their subject matter jurisdiction so as to implement that longstanding and important federal policy rule. The rule of preference for non-constitutional grounds of decision is a vital corollary to the power of judicial review, which recognizes that the exercise of that great function should be reserved for cases in which its exercise cannot otherwise be avoided. A decision on state statutory grounds leaves both the state legislature and Congress free to reconsider, and perhaps to avoid permanently, the need for exercise of the power of judicial review. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). Siler is generally regarded as the seminal case on pendent jurisdiction. For our pur^poses its greatest significance is that it presented the identical problem before us: a case against state officers over which the federal court had federal question jurisdiction, despite the Eleventh Amendment, because of the holding in Ex Parte Young. Since the pendent jurisdiction rule originated in a case involving state officers, there cannot be, as the Commonwealth suggests, an Eleventh Amendment exception to that rule. Later developments of the pendent jurisdiction rule enlarged its scope to include cases where entertaining a state law claim advanced not the policy of avoiding constitutional adjudications, but only that of avoiding duplicative litigation. United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Hum v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933). Some commentators have criticized the enlargement. See Shakman, The New Pendent Jurisdiction of the Federal Courts, 20 Stan.L.Rev. 262 (1968). So far as we know, however, no commentator or court has ever suggested that the Siler rule itself should be reconsidered, so as to force the federal courts to make pronouncements of constitutional law which, if a state law ground would support the relief requested, might come dangerously close to an advisory opinion about the constitution. The Supreme Court’s remand for further consideration of the federal constitutional questions establishes as law of the case for this court the substantiality of the federal questions supporting jurisdiction. Moreover, even if the Commonwealth’s unique interpretation of the pendent jurisdiction rule as inapplicable to suits against state officers had any substance, the Court’s express mandate that we reconsider the state law issue appears to preclude its adoption in this case by this court. And in any event, the Eleventh Amendment can offer no solace to the County defendants. Thus the pendent state law claim would have to be faced with respect to those defendants. We hold, therefore, that the Eleventh Amendment is no bar to the exercise of pendent jurisdiction over a state law claim under the MH/MR Act of 1966, independent and adequate to support the order appealed from. See Frederick L. v. Thomas, 557 F.2d 373 (3d Cir. 1977). IV The defendants also urge that the district court should have abstained from adjudicating the claim under the MH/MR Act of 1966. There was no pending state proceeding, criminal or civil, to which the rule of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny could apply. Thus a dismissal of the complaint would clearly have been inappropriate. As to abstention under Railroad Comm’n of Texas v. Pullman Company, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), it is difficult to see how a case for the application of that rule was made out in the district court. The plaintiffs were contending for injunctive relief against intolerably inhumane conditions on both federal and state law grounds. Pullman suggests the retention of jurisdiction in cases where state law is challenged on constitutional grounds, and an interpretation of state law suggested by the defendants might make unnecessary the decision of a constitutional law issue. See, e.g., Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101 (1944). In this case the plaintiffs’ position all along has been that the MH/MR Act of 1966 is consistent with the requirements of the Fourteenth Amendment, while the defendants have urged a construction of that Act which would force the court to consider the Fourteenth Amendment grounds of decision. At the time the district court acted, abstention with a retention of jurisdiction would have left the class members in the intolerably inhumane conditions in which the district court found them, while the Commonwealth attempted to persuade the Pennsylvania Supreme Court that the MH/MR Act of 1966 afforded less relief than the plaintiffs sought. We now know from the decision in In re Schmidt that it would not have been successful. But even if it might have been, the result would be just the opposite of what the Pullman rule was intended to achieve: requiring a constitutional law decision rather than avoiding it. We note also that the district court had before it several federal statutory claims. These would remain in the case regardless of any Pennsylvania Court interpretation of the MH/MR Act of 1966. Whether Pullman abstention is ever proper in a case presenting federal statutory interpretation issues distinct from claims predicated directly on the constitution is a question we need not decide. The Pullman rule involves the exercise of discretion, and it cannot be held that the district court abused its discretion in granting relief from the conditions in Pennhurst in a case presenting such federal statutory claims. Finally, if the defendants mean to suggest that at this late stage, after the Supreme Court of Pennsylvania has given us a definitive construction of the MH/MR Act of 1966, we should completely unglue this several year-old case and start all over so that the Pennsylvania Supreme Court can tell us again, we reject that suggestion. At best, if we thought Pullman abstention on the state law claim might be appropriate, we would have to proceed to the consideration of federal claims which might otherwise support the order. To do so, when we now have a definitive construction of a state statute, which supports most of the relief requested, would do violence to the letter of Siler and to the animating purpose of the Pullman rule. V In one respect the MH/MR Act of 1966 does not lend support to the judgment appealed from. As noted in Part II above, and as we held in our prior decision, that Act does not foreclose all institutionalization, and thus does not support that part of the judgment requiring the closing of Pennhurst. Since this is so, even under the Siler rule we must consider whether federal law, constitutional or statutory, requires that result. In this one respect federal law issues must be faced, and we reiterate our prior holding that the order directing the eventual closing of and barring all future admissions to Pennhurst went beyond what any federal statute or the Fourteenth Amendment requires. Since the MH/MR Act of 1966 is sufficient to support the judgment in other respects, the Siler rule prevents our consideration of plaintiffs’ claims under the Fourteenth Amendment except to 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_r_natpr	99	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Cheryl and James PAULSEN et al., Plaintiffs-Appellees, v. COACHLIGHT APARTMENTS CO. et al., Defendants-Appellants. Cheryl and James PAULSEN et al., Plaintiffs-Appellees, v. SECRETARY OF HOUSING AND URBAN DEVELOPMENT and Alfred Raven, Director, Grand Rapids Insuring Office, Department of Housing and Urban Development Federal Housing Administration, Defendants-Appellants. Nos. 73-1595, 73-1596. United States Court of Appeals, Sixth Circuit. Nov. 22, 1974. John Milanowski, U. S. Atty., Grand Rapids, Mich., Kathryn H. Baldwin, Ronald R. Glancz, Irving Jaffe, Dept, of Justice, Civil Div., Washington, D. C., for defendants-appellants Secretary of Housing and Urban Development, and others. R. Bruce Carruthers, Doyle, Smith, Whitmer & Carruthers, Lansing, Mich., for defendants-appellants Coachlight Apartments Co., and others. Robertamarie Kiley, Lansing, Mich., Carl H. Kaplan, Executive Director, Greater Lansing Legal Aid, Lansing, Mich., Richard Reed, Robert L. Reed, Alan W. Houseman, Michigan Legal Services Assistance Program, Detroit, Mich., for plaintiffs-appellees. Before PHILLIPS, Chief Judge, McCREE, Circuit Judge, and ROSENSTEIN, Senior Customs Judge. Honorable Samuel M. Rosenstein, Senior Judge, United States Customs Court, sitting by designation. PHILLIPS, Chief Judge. This appeal presents the question of whether, and to what extent, tenants in lower income housing subsidized and insured under the provisions of § 236 of the National Housing Act, as amended, 12 U.S.C. § 1715z-l, are entitled to a hearing before the Federal Housing Administration (FHA) approves their landlord’s application for an increase in rent. The appellants seek reversal of an order of the District Court granting the appellee class’s motion for partial summary judgment on the questions of the presence of jurisdiction, class action status and due process deprivations. We vacate and remand. I. The appellees are tenants in Pine-brook Manor Apartments, an apartment complex comprised of 136 rental units located in Lansing, Michigan. Pine-brook Manor receives FHA subsidy payments pursuant to § 236. In order to receive these payments, the landlord, Coachlight Apartments Co. (Coach-light), agreed to abide by certain statutory and regulatory requirements, including the requirement that all proposed rent increases be approved by the FHA. In August 1972, Coachlight, a limited dividend partnership registered under the laws of Michigan, acting through its apartment manager, requested FHA approval for a proposed rent increase. Supporting documents indicating the increased costs of operation were submitted shortly thereafter to the FHA. Without any input from the tenants at Pinebrook Manor, the FHA in late September 1972 approved a new rental schedule, comprising a 7.2 per cent overall increase. The increases took effect on November 1, 1972, as the tenants' annual leases began to expire. The appellees thereafter instituted this action seeking, inter alia, (1) to compel the governmental appellants to rescind their approval of the rent increases, (2) to .declare that the appellants unconstitutionally failed to accord the appellees certain due process rights prior to the rent increases, and (3) to obtain damages from the private appellants to the extent of the increased rent collected. The suit was sustained as a class action. On the appellees’ motion for partial summary judgment, the District Court concluded that the tenants were entitled to the following five elements of procedural due process: (1) notice that the landlord has filed an application for rent increases, (2) an opportunity to examine any materials submitted by the landlord in support of his application, (3) a reasonable opportunity to make written objections to the landlord’s application, (4) an opportunity to make an informal oral presentation [to the FHA inspector who is required under FHA regulations to make an on-site inspection whenever a rent increase is requested] of any objection to the landlord’s application, (5) a concise statement of the FHA action taken on the application and the reasons for that action. The opinion and order of the District Court, dated March 8, 1973, concludes with the following language: “This court, after careful consideration of the facts in this case, holds that this opinion does not require an immediate refund of the increases which have been collected to date. However, the increase may not be collected after this date and if the FHA should determine, after reconsidering the application in accordance with this opinion, that the increase was improper, then the landlord would be re- ' quired to refund the amount of the increase already collected.” II. The District Court held that the fifth amendment requires that the tenants be accorded an opportunity for a due process hearing before their rents could be increased. We disagree with the fifth amendment holding, concurring in the results reached by four circuits that have held to the contrary. People’s Rights Organization v. Bethlehem Associates, 487 F.2d 1395 (3d Cir.), aff’g 356 F.Supp. 407 (E.D.Pa.1973); Langevin v. Chenango Court, Inc., 447 F.2d 296 (2d Cir. 1971) ; McKinney v. Washington, 143 U.S.App.D.C. 4, 442 F.2d 726 (1970); Hahn v. Gottlieb, 430 F.2d 1243 (1st Cir. 1970). See Geneva Towers Tenants Organization v. Federated Mortgage Investors, 504 F.2d 483, 493 (9th Cir. 1974) (Hufstedler, J., dissenting). In Marshall v. Lynn, 497 F.2d 643, 647 (D.C.Cir. 1973), cert. denied,-U.S. -, 95 S.Ct. 235, 41 L.Ed.2d 186 (1974), the Court of Appeals for the District of Columbia Circuit held that “tenants in housing financed with Federal subsidy in the form of below-market interest rate loans have a statutory right to be heard before their rents are increased.” In response to the decision in Marshall, new interim HUD regulations were published in 39 Fed.Reg. 32736 (1974), providing the following procedures for tenant participation in the rental approval process (§ 401.1-4): (1) Notification to the tenants of intent to request approval of an increase in the maximum permissible rents; (2) An opportunity for tenants to make written comments to the mortgagor and to HUD on the proposed increase ; and (3) Notification to the tenants of the reasons for approval or disapproval after HUD has considered all the submitted material. These regulations, which are an exercise of the rule-making power conferred upon HUD by Congress, embody the statutory right found to exist in Marshall v. Lynn, supra. HUD construed Marshall to require the procedures set forth in the foregoing regulations with respect to tenants in the situation presented in the case at bar. We agree with this conclusion. The decision of the District Court is vacated. The case is remanded for further proceedings not inconsistent with this opinion. No costs are taxed. Each party will pay his own costs on this appeal. . There are two distinct groups of defendants-appellants : (1) the Secretary of Housing and Urban Development and the Director of the Grand Rapids Insuring Office, Federal Housing Administration (the governmental appellants), and (2) Coachlight Apartments Co., the owner of the apartment complex, and Republic Management Corporation, the manager of the complex (the private appellants). . Neither set of appellants on appeal challenges the District Court’s determinations that jurisdiction over the governmental appellants existed under 28 U.S.C. § 1361 and that joinder of the private appellants was necessary to effectuate any remedy granted, Fed.R.Civ.P. 19(a), or that this suit was properly maintained as a class action under Fed.R.Civ.P. 23. . The majority opinion in the Geneva Towers case held that the tenants are entitled to a limited hearing under the due process clause of the fifth amendment, affirming two district court opinions to that effect: Keller v. Kate Maremount Foundation, 365 F.Supp. 798 (N.D.Cal.1972) ; Geneva Towers Tenants Organization v. Federated Mortgage Investors, No. C-70 104 SAW (N.D.Cal., Jan. 3, 1972). Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_treat	G	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. TRIUMPH EXPLOSIVES, Inc., et al. v. KILGORE MFG. CO. et al. No. 4814. Circuit Court of Appeals, Fourth Circuit. May 19, 1942. • Before PARKER, SOPER and DOBIE, Circuit Judges. H. A. Toulmin, Jr., of Dayton, Ohio (Joseph Brennan, 2d, of Baltimore, Md., H. A. Toulmin and Rowan A. Greer, both of Dayton, Ohio, Brown & Bruñe, of Baltimore, Md., and Toulmin & Toulmin, of Dayton, Ohio, on the brief), for appellees and cross-appellants. Harold F. Watson, of Washington, D. C. (Watson, Cole, Grindle & Watson, of Washington, D. C., on the brief), for appellants and cross-appellees. SOPER, Circuit Judge. This suit for infringement of patents issued to Driggs and Faber relates to claims 1 and 2 of patent No. 1,712,382, and claims 2 and 7 of patent 1,712,383, which patents were issued May 7, 1929, on applications filed March 20, 1928, and to claims 1 to 4, 9 to 12 and 18 to 23 of patent No. 1,947,-834 issued February 20, 1934 on an application filed September 19, 1931. These patents are called herein the first, second and third patent respectively. The first patent was for a firearm, the second for fixed ammunition for firearms, and the third for a flare signal. Infringement was charged against Triumph Explosives, Inc., a manufacturer of explosives, herein called the defendant, and against Glenn L. Martin Company, a purchaser of its goods. The District Judge held the first and second patents valid and infringed, and the third patent valid but not infringed. Cross-appeals were taken. D.C., 37 F.Supp. 766. The general purpose of the patents is indicated by the introductory paragraphs of the specification of the first patent, which are as follows: “This invention relates to an improved hand operated muzzle loading firearm adapted for use in firing comparatively heavy projectiles at a low initial velocity, and with a minimum of recoil, and it is especially adapted for use in firing pyrotechnic signals from aircraft or from water borne vessels. It may also be used to discharge flares for illumination purposes, smoke signals, or the like, or it may be useful in distributing gases by police, or military or naval troops, and in a great variety of other ways, * * The evidence indicates that after the first World War, need was felt for an improved device to furnish signal lights and flares to be used by aviators in place of the Very pistol which was a breech-loading mechanism requiring the use of two hands. Various ideas were suggested but no substantial improvement was made until the applications for the first two patents in suit were filed. The Ordnance Division of the United States Army had been searching for a more satisfactory manner of signal-ling, consisting of a pistol that could be operated with one hand, fired in any direction, up, down or sideways, by the use of ammunition which, in case of misfiring, could be released from the pistol without bringing it back into the plane and thereby increasing the fire hazard. The patented devices met these requirements and were adopted by the Army as standard equipment. Faber had been connected with the Pyrotechnic Schools of the Ordnance Department, and may have had something to do with the formulation of the Army’s requirements, but there is no doubt that the new apparatus was a substantial improvement, or that it achieved commercial success. The sales between 1928 and 1940 were something in excess of one million dollars. The patents disclose a heavy metal pistol with a very short, large calibre, smooth bore barrel into which is loaded from the muzzle a longer aluminum cylinder which serves as a cartridge case and auxiliary barrel. The cartridge case is held automatically in the barrel by a spring latch which fits into an annular groove at the base of the cylinder and can be released when desired by pressure of the thumb. The cartridge case is closed at both ends but contains at the base a blank cartridge that is exploded when the trigger of the pistol is pulled. The cartridge case also contains an aluminum cylinder or projectile case which encloses a candle or flare attached to a folded parachute. The explosion of the blank cartridge forces the projectile case from the cartridge case, which remains in the barrel of the pistol. The explosion also fires a delayed action .fuse in the base of the projectile case so that after it has been shot out, a powder charge within is ignited, forcing the flare, that has also been ignited, and the parachute into the air. The cartridge case with its contents is called fixed ammunition. In practical operation cartridge cases are placed in a rack in the cockpit of the plane; the pistol, conveniently placed near at hand, is grasped by the aviator and the barrel is pressed down over the base of a cartridge case until it is automatically held by the spring latch. The pistol is then fired outside the plane and while it is held outside, the cartridge case is dropped by releasing the latch. Claim 1 of the first patent is as follows: “A muzzle loading- low pressure fire arm, adapted to be used with fixed ammunition provided with a cartridge case, comprising a pistol grip, a short smooth bore barrel, spring actuated firing mechanism with a trigger for releasing same, and automatic means for holding the cartridge dase in said barrel before and after firing, with means for releasing same from said barrel when desired.” . On September 23, 1931, a disclaimer was filed restricting Claim 1 as follows: “By-restricting the element ‘cartridge casing’ of said Claim 1 to ‘closed at its rear end and capable of standing the strains of firing and ejecting completely a projectile therefrom without deformation of the cartridge casing’.” Claim 2 of .the first patent is as follows: “A muzzle loading low pressure fire arm, adapted to be used with fixed ammunition provided with a cartridge case, having an annular groove near its base comprising a hand grip, a short smooth bore barrel of large calibre, spring actuated firing mechanism with a trigger for releasing same, and means for retaining the cartridge case in said barrel before and after firing, or for releasing same from said barrel when desired, and means comprising a spring latch adapted to engage in said annular groove, and to. be released by hand.” The validity of Claim 1 of this patent is first attacked on account of the character of the disclaimer. It is said that the disclaimer serves to add an element to the original claim and therefore amounts to a surrender of the claim. It was held in Altoona Publix Theatres v. Tri-Ergon Corp., 294 U.S. 477, 55 S.Ct. 455, 79 L.Ed. 1005, that a patentee is not permitted to add by disclaimer a new element to a combination claimed by his patent, thereby transforming it into a new patent for a new combination; and also that a disclaimer, although invalid, amounts to an abandonment of the claim which cannot thereafter be revived. The principle was applied in that case to a patent for a combination apparatus for securing uniformity of speed in machines for recording talking motion pictures; and a disclaimer was held invalid which attempted to add a flywheel to the combination. There is merit in this contention. The title of the first patent and the introductory paragraphs of the specification quoted above indicate that the invention relates, not to the fixed ammunition to be fired, but to the pistol to be used to fire it. Ammunition is the subject of the second patent. Thus, the patentees state in their specification of the first patent that the “cartridge case and its contents are illustrated, described and claimed in our separate copending application filed March 20, 1928, Serial Number 263,026, and entitled ‘Improvements in Fixed Ammunition for Firearms’, but for the purpose of illustrating the operation of the gun, this cartridge case and its contents will now be briefly described”. So also we find that the original claim speaks of a firearm “adapted to be used with fixed ammunition provided with a cartridge case”. The claim describes the pistol, its firing mechanism and automatic means for holding the cartridge case in the barrel before and after firing, but does not describe the fixed ammunition itself. The disclaimer for the first time speaks of the cartridge case as an element of the claim and seeks to restrict this element to a cartridge case closed at the rear and strong enough to stand the explosion without deformation. The evidence does not show why the disclaimer was filed or what excess of invention, claimed through “inadvertence, accident, or mistake”, the patentee was attempting to correct under the permissive terms of R.S. § 4917, 35 U.S.C.A. § 65; but whatever the motive, the attempt to introduce this new element into a claim originally confined to the pistol cannot be sanctioned under the established rule. See Altoona Publix Theatres v. Tri-Ergon Corp. supra; Milcor Steel Co. v. George A. Fuller Co., 2 Cir., 122 F.2d 292. We think, moreover, that both claims of the first patent are invalid because the disclosures of the prior art were of such a character that it did not require an exercise of inventive faculty to devise the pistol. The French patent No. 594,962 to Vaxelaire published September 24, 1925, and the French patents No. 496,832 and No. 509,591 to Rollet published on November 18, 1919 and November 13, 1920 respectively, furnished sufficient information to enable one skilled in the art to add the improvements of the patent to signalling pistols that had long been known and used. The Vaxelaire patent relates to improvements in the manufacture of rocket pistols for firing signal cartridges, and discloses an apparatus which enables the shooter to load the pistol and to extract the empty cartridge after it has been fired, with the use of only one hand. The patent does not show a completed structure but is confined so far as it is pertinent to the present discussion to this one improvement. This is accomplished by providing a cylindrical casing to contain the pyrotechnic signal and by attaching to the casing a hollow cylindrical tube of smaller diameter so grooved as to permit it to be held rigidly in the barrel of the pistol. Suitably disposed in the barrel are hooks or shoulders actuated by springs which are operated by buttons or levers placed on the exterior of the pistol.- The hooks or shoulders cannot move automatically during the firing. They are actuated only when the shooter pushes a button or lever, thereby operating the springs and causing the liberation of the cartridges. This arrangement enables the operator to load and unload the pistol with one hand, and also suggests a cartridge case which extends beyond the barrel of the pistol but remains therein during the firing whereupon the signal is expelled from the casing. Rollet’s earlier patent, No. 496,382, relates to a signal cartridge for use in sig-nalling pistols in aviation service. The flare or signal is lodged in a metal case which is introduced into the bore of the pistol and remains there during the firing. The case is closed in the rear so that the gases resulting from the ignition do not come in contact with the barrel of the pistol. The cartridge is frictionally held in the barrel. It consists of a cylindrical tube of approximately the same diameter as the calibre of the barrel and is equal in length to the barrel. The tube is prolonged so as to form a cylinder of greater diameter that remains outside the barrel and contains the fireworks to be ignited. Before firing, the lid of the larger cylindrical portion of the casing is taken off. Ignition is conveyed through a wick in the smaller tube from powder contained at the lower end that is enclosed. The smaller cylindrical portion fits frictionally into the barrel and no means are shown for automatic firing, holding or release. Both hands are required to operate the apparatus. The fireworks are not carried in a separate projectile casing but in the larger portion of the cartridge casing outside the barrel of the pistol and they leave the cartridge casing and are launched to the exterior by the force of the deflagration gases from the powder charge actuated by the primer which is subject to the firing pin of the pistol. In the later Rollet patent, No. 509’,591, a muzzle loading pistol with a very short barrel of large calibre is shown and also a cartridge designed to be locked in the barrel by a bayonet joint. An enlarged outer end of the cartridge projects beyond the barrel. The thickness of the metal in the cartridge is great enough so that it will not be warped through use but may be used again and again, meanwhile serving as a reenforcement for the barrel. The device is said to be capable of firing the signal as far as possible without deterioration of the sleeve. The lighting of the device is caused by percussion. Two hands are required for its operation. It will be noticed that the cartridge case is closed at the rear end and that it is of sufficient strength to resist the explosion. None of these French patents purports to show a complete structure consisting of a fire arm and fixed ammuriition. They merely offer improvements to signal-ling pistols and signalling means that are assumed to be well known. But complete anticipation of the patent in suit is not essential to a determination of invalidity. It is very clear that the Vaxelaire patent showed an improvement to a signalling pistol, permitting it to be loaded, fired and unloaded by the use of one hand, and that taken together, the three French patents suggested a pistol adapted to be used with a cartridge casing closed at its base and having an annular groove near its base and strong enough to act as an auxiliary barrel to the pistol. It did not require invention in our opinion to introduce these improvements in the signalling pistols that were well known when the application for the first patent in suit was filed, or to devise the combination of that patent; and this plain absence of invention is nor overcome by evidence of the commercial success of the Driggs and Faber pistol even though it satisfied a long felt want. Altoona Publix Theatres v. Tri-Ergon Corp., 294 U.S. 477, 487, 55 S.Ct. 455, 79 L.Ed. 1005. It may be added that the commercial success achieved was due to the practical advantage that flowed from the use of the fixed ammunition of the second patent in the pistol of the first patent and not from the pistol alone. • The second patent in suit specifically describes and claims the, fixed ammunition to bé used in the pistol. It consists of a cartridge case of sufficient size to contain the prójectile and of sufficient strength to serve as an auxiliary barrel when used with a short barrel pistol, such as is shown and claimed in the co-pending application for the first patent. As more particularly Shown by the specification, the device consists of a cylindrical cartridge casing with a stem of smaller diameter adapted to slide freely in the short barrel of the pistol and carrying an annular groove which engages the spring latch in the pistol. A blank cartridge, which fits in the base of the cartridge case, contains a small amount of explosive to expel the projectile therefrom. In the base of the cartridge case is an expansion chamber which affords sufficient room for the escape of the gases from the explosive. The forward portion of the cartridge case comprises the loading chamber into which the projectile is slidably mounted. The projectile consists of a cylindrical casing with side walls which may be of aluminum, bakelite, cardboard or other suitable material. It contains a pad of felt next to the base plug which forms the head of the cylindrical casing. This head has a flange to engage the end of the cylindrical casing and contains a sufficient expelling charge which is ignited by a fuse two or three seconds after the piece has been fired and the projectile has been ejected from the cartridge case. In front of the plug, another cylinder containing the flare composition is mounted. An ignition Charge is situated adjacent to the chamber containing the expelling charge and is ignited by the latter and in turn ignites the flare. Forward of the flare is the parachute connected by the flare suspension wire to the end cap of the flare. The outer end of the cartridge case is closed by a cupped head. Claims 2 and 7 of the second patent are as follows: “2. Fixed ammunition for use with low power smooth bore firearms, having a short barrel of large calibre, said ammunition comprising a cartridge case forming an auxiliary barrel for the small arm and provided with a rearwardly projecting portion adapted to slide freely in the gun barrel with a propelling charge in the rear end of said cartridge case, and having a chamber for the expansion of the gases from the propelling charge, and said cartridge case having a loading chamber in front of said expansion chamber with a projectile mounted in said loading chamber, and adapted to be ejected therefrom by the gases from' the propelling charge, said projectile comprising a tube closed at its rear slidably mounted in said loading chamber, signalling devices mounted in said tube and an expelling charge mounted in the base of said tube with means controlled by the firing of the small arm for igniting said expelling charge.” “7. Fixed ammunition for use with low power smooth bore firearms, having a short barrel of large calibre, said ammunition comprising a cartridge case forming an auxiliary barrel for the small arm and provided with a rearwardly projecting portion adapted to slide freely in the gun barrel with a propelling charge in the rear end of the cartridge case, and having a chamber for the expansion of the gases from' the propelling charge, and said .cartridge case having a loading chamber in front of said expansion chamber, with a projectile mounted in said loading chamber, and adapted to be ejected therefrom by the gases from the propelling charge, said projectile comprising a tube slidably mounted in the loading chamber of the cartridge case, a parachute and flare mounted in said tube, an expelling charge also mounted in said tube for ejecting said parachute and flare and for igniting said flare, and means, controlled by the firing of the small arm, for igniting said expelling charge.” When we first considered this patent, we reached the conclusion that it disclosed a combination of inventive quality not shown in the Rollet patents or other prior art. We pointed out in an opinion, for which the present opinion has been substituted, that the combination of the patent comprised a projectile casing containing the signal mounted in a cartridge casing that formed an auxiliary barrel for the pistol, an expelling charge in the projectile casing, means to ignite this charge after the projectile had been expelled from the cartridge, and means to ignite the flare material in the projectile from the firing means of the pistol after the projectile had left the cartridge casing; and we concluded that the novelty of this arrangement did not consist merely in the contents of the projectile, or in the combination of the cartridge casing and the projectile. But, upon further examination of the prior art, assisted by briefs and arguments of counsel upon rehearing, we are convinced that this conclusion was erroneous in that it failed to give sufficient weight to the British patent to Wilder No. 128,975 of July-10, 1919, which was referred to in somewhat general terms but not specifically described in the original briefs or arguments. This patent disclosed a projectile enclosing a pyrotechnic signalling device of the kind adapted to be discharged into the air from a gun and to be suspended by a parachute. A more particular description of this projectile is not needed at this point for it has already been set out in the description of the projectile contained in our summary of the specifications and in claims 2 and 7 of the second patent above set out. In short, it now appears that what we formerly attributed to the patentee as a new and substantial contribution to the art was in fact to be found in the Wilder patent. The projectile element of the second patent in suit is in fact the projectile of Wilder. The question, therefore, is whether invention can be found in the combination of this device with the cartridge casing of the second patent to form the fixed ammunition therein described. We think not; for, as we have pointed out above, the Vaxe-laire patent disclosed the method by which a cylindrical casing could be loaded in the barrel of a pistol and unloaded at will with one hand; and the Vaxelaire patent and more clearly the Rollet patents also disclosed a cylindrical cartridge casing closed at its base, of sufficient strength to serve as an auxiliary barrel of the pistol, consisting of a stem of smaller diameter to be inserted within the barrel of the pistol and a portion of larger diameter projecting beyond the barrel of sufficient size to contain the projectile. To put these suggestions together, and combine them with the Wilder projectile, as is done in the second patent, was undoubtedly an improvement in the art that makes for safety and efficiency in the use of pyrotechnic signals and is of value in the present war emergency; but in our view it does not rise to the dignity of invention. ' We do not find, as contended at the bar, that the second patent may be distinguished from the Rollet patents because in it one explosion occurs within the barrel of the pistol and another explosion occurs beyond the barrel within the extended portion of the cartridge casing that is made strong enough to stand the strain, while in the Rol-let structure there is no explosion in that part of the cartridge which is beyond the barrel of the pistol. It plainly appears from an examination of the drawings and specifications of the second patent in suit that while the first explosion takes place within the cartridge casing inside the bore of the pistol, the second explosion does not take place until the projectile casing has left the cartridge casing, and only then takes place the second explosion which ejects the Contents of the projectile casing into the air. Moreover, it is not without significance that neither the Rollet patents nor the Wilder patent were cited in the examination of the second patent in the Patent Office. The third patent in suit, which is fully described in the opinion of the District Court, covers an improvement in the projectile case covered by the second patent. The improvement, as set out in the claims of the third patent, consists in the construction of the projectile case of one piece of aluminum with a relatively heavy base and thin side walls. The validity of the patent is not free from doubt, but the question need not be decided here; for even if the patent is valid, it is only entitled, as the District Judge, held, to a narrow range of equivalents, and it was not infringed by the defendant because its structure, notwithstanding a general similarity to the structure of the patent, was not made of a single piece of metal. The decree of the District Court will be affirmed in part and reversed in part, and the case will be remanded for further proceedings in accordance with this opinion. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
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. SLATTERY v. MARRA BROS., Inc. MARRA BROS., Inc. v. WM. SPENCER & SON CORPORATION. No. 89, Docket 21804. United States Court of Appeals Second Circuit Argued Dec. 7, 1950. Decided Jan. 4, 1951. Purdy, Lamb & Catoggio, New York City (Edmund F. Lamb and Thomas J. Irving, New York City, of counsel), for plaintiff. Abraham M. Fisch, New York City (Sidney Schiffman, New York City, of counsel), for plaintiff-appellee. Charles Landesman, New York City (Sol Deutsch, New York City, of counsel), for defendant-appellee. Before L. HAND, Chief Judge, and SWAN and CHASE, Circuit Judges. L. HAND, Chief Judge. Marra Bros., Inc., appeals from that part of a judgment, entered on the verdict of a jury which awarded damages to the plaintiff for injuries suffered while Ise was at work as a member of a stevedoring gang upon a pier in New Jersey. It also appeals from the remainder of the judgment which dismissed an amended complaint served by it against Wm. Spencer & Son Corporation under Rule 14(a), Fed.Rules Civ.Proc., 28 U.S.C.A., and which demanded that the Spencer Company indemnify it for any damages that the plaintiff might recover. It will be most convenient to consider first the action of Slattery v. Marra, as though it stood alone; and then the “third party action” of Marra v. Spencer. Slattery v. Marra Bros., Inc. The defendant was the lessee of a New Jersey pier, alongside of which on the day of the accident lay a lighter which the Spencer & Son Corporation, a stevedore, had engaged to lade. There was a shed on the pier, whose side towards the slip was made up of a number of metal doors that had to be raised to gain access to the slip. These opened by sliding up and down vertically, each being raised by a chain and block, affixed as follows. At the centre of the door was fastened a vertical plate — a “fish-plate” — the top of which was above the top of the door, and at whose end was a hole. When the door was to be raised, the proper way was to pass the straight bar or bolt of a “shackle” through this hole, and to fix the other member of the “shackle” upon it. Into the “shackle” so completed a hook at the end of the block could then be inserted and the door be raised by a chain passing from the block over a pulley fastened to the ceiling and down within reach of men, standing on the floor of the pier. On the day of the accident no “shackle” had been fixed through the hole in the “fish-plate,” but instead, the hook at the end of a block had been pushed into the hole, which was too big to go clear through it, although the tip of it apparently went in far enough to allow the door to have been lifted in the past. At any rate one of the plaintiff’s witnesses swore that he had seen the door so rigged four weeks before the accident. On the afternoon of the day in question a gang of stevedores employed by the Spencer Company, among whom was Slattery, the plaintiff, went to- the pier, and found the door in question raised about two feet from the floor of the dock and held by the hook. Slattery and the gang boss went under it to the “string piece,” as others of the gang were raising it, and started back before the gang had finished doing so. While Slattery was passing under it the second time, the hook became disengaged from the hole in the “fish-plate” and dropped to the floor, pinning his leg and doing the injuries for which he sued. The defendant raises a number of objections to the judgment. First, it says that, since Slattery was only a “business guest” or “invited person,” and since the danger was open and apparent, as lessee of the premises, it owed him no duty. Next it says that the judge was wrong in describing its duty to the jury, if the danger was not open and apparent, because he did not limit it to reasonable precautions, but imposed an absolute liability. Lastly, it complains of several incidents during the course of the trial including rulings upon the evidence. We shall take these up in that order. It is the generally accepted doctrine that one, who is in possession of real property, owes to a “business guest” or “invited person” no greater duty than to advise him of any dangers which reasonable prudence would have foreseen and corrected. Since the accident happened in New Jersey, the law of that state determined the 'liability; but apparently, its law also is that, if the “invited person” is made aware of the danger, the possessor of the premises owes him no 'further duty. Since the defendant did not advise Slattery of the faulty way in which the door was rigged, and had no reason to assume that he would notice it, it was liable to him, provided that its failure to give him notice was an actionable cause of his injury. It answers that its failure was not an actionable cause, because the employees of the Spencer Company were themselves negligent in trying to raise the door, rigged as it was. Negligent indeed they were, but their negligence is irrelevant in deciding whether the defendant was liable to Slattery, unless it was justified in assuming that whoever had occasion to raise the door, would notice the danger, and would be sure to substitute a “shackle,” of which there were plenty on the pier. Obviously the jury was justified in finding that a reasonable person who thought about it at all, would realize that a gang of stevedores who had to open such a door and found it fastened as it was, might well take the chance of using it as it was. The intervening wrong of a third person is no longer considered as “breaking the causal chain,” or making the first wrong a “remote,” and not a “proximate,” cause, for all those preceding events, without which any later event would not happen, are “causes.” What really matters is how far the first wrongdoer should be charged with forecasting the future results of his conduct; and the intervention of a later wrong is no different from the intervention of any other event. Section 449 of the Restatement of Torts states the present doctrine as it is now generally accepted, and we know of no reason to suppose that the courts of New Jersey would not follow it. The defendant’s next objection is to the charge, which, however, quite conformed to what we have just said, as appears from the following excerpts. “A careless person is liable for all the natural and probable consequences of his misconduct. If the misconduct is of a character which, according to the usual experience of mankind, is calculated to invite or induce the intervention of some subsequent cause, the intervening cause will not excuse him, and the subsequent mischief will be held to be the result of the original misconduct.” Applying this to the case at bar the judge added: “Ought Marra Brothers in this instance to have reasonably foreseen that if the door was pulled up without the use of a shackle that injury might occur?” The next objection is that at the close of the plaintiffs examination, as he was about to step down, the judge, sua sponte, asked him the following questions: “Are you married?” and have you “any children”? To the first question he answered “yes” and to the second, “six.” He was excused and the defendant’s attorney made no objection, nor did he ask for any ruling on the matter at any time, although the trial went on for several days. The only later occasion on which the answers could be thought to have been important was during the address to the jury of the plaintiff’s attorney, in which he spoke of the plaintiff’s inability to play with his children as an element of damages. The defendant objected, the court answered that that was not an element of damages, and there then followed a colloquy, irrelevant to this particular testimony. The law in federal courts is well settled that such testimony is irrelevant, beginning with Pennsylvania Company v. Roy; and we have ourselves three times so ruled, in the third instance making it the only ground for reversal. Other circuits have so held; and the same is true of some at any rate of the state courts, though on such matters these would not be relevant unless they were in New York and more liberal than the federal doctrine. Rule 43(a). The defendant, recognizing that it did not object at any stage, invokes the doctrine that in cases of grave prejudice we should reverse a judgment even when the aggrieved party has made no objection. We are not disposed to class this as such a situation; indeed in 1897 we refused to do so just because the defendant had not objected in a more extreme case. New York Electric Equipment Co. v. Blair, supra, 79 F. at page 899. Next is an objection to testimony that on the day after the plaintiff’s accident the superintendent sent a workman to the door, and had him rig a “shackle” in the hole in the “fish-plate.” The well settled rule that repairs made after an accident are not competent evidence of negligence has an exception, recognized by New York decisions, which Rule 43(a) in this case makes authoritative, because they admit the evidence, that, if the control of the cause of the injury when it happened is in issue, evidence of later conduct relevant to control is competent; and in this instance the defendant’s control over the rigging of the door was in issue. True, it did concede that it had what it insisted upon calling “general control” of the pier; but it would not concede that it had control of the door. It said: “We admit we occupied the pier. We deny control in so far as it relates to particular control.” The only meaning which can be given this is that it denied control over the rigging of the “shackle”on the door. There remain only two other objections: first, to the cross-examination of the defendants’ medical expert, and second, to the exposure to the jury of the plaintiff’s injured leg. The first is so completely without foundation that we shall not discuss it; the second lay within the trial judge’s discretion, and we can find nothing to indicate any abuse of it. It is sometimes said that the jury should not be allowed to see repulsive injuries since they may excite their emotions. That may at times be true; but ordinarily it would seem that the very hideousness of the deformity was a part of the suffering of the victim, and could not rationally be excluded in the assessment of his damages. The judgment in favor of Slattery will be affirmed. Marra Bros., Inc. v. Spencer & Son Corporation This appeal, as we have said, is from the dismissal of an amended complaint, in consequence of which the Spencer Company did not appear at the trial and the cause comes to us upon the complaint alone. The theory on which the complaint was drawn is that, if Slattery recovered from Marra Bros., Inc. because of defects in the way the door was rigged, it would be “because of the primary fault and neglect” of the Spencer Company, whose employees “were negligent among other things in that they used and employed defective, unsafe and dangerous appliances * * * more particularly for the purpose of lifting or opening the door”; and that this would entitle Marra Bros., Inc., not to contribution, but to full indemnity. In considering the legal effect of these allegations we take judicial notice of the New Jersey Workmen’s Compensation Act, of which § 34:-15-7 N.J.S.A. provides that “When employer and employee shall by agreement, either express or implied * * * accept the provisions of this article” the employer shall pay compensation regardless of his negligence; and § 34:15-8 provides that “Such agreement shall be a surrender by the parties thereto of their rights to any other method, form or amount of compensation”. Finally § 34:15-9 provides that “Every contract of hiring * * * shall be presumed to have been made with reference to * * * this article”, unless the parties shall have provided in writing to the contrary. We are therefore to assume that Slattery’s contract of employment with the Spencer Company was a “surrender * * * of * * * any other method, form or amount of compensation” for any injuries which he might receive “in the course of his employment”; and the Spencer Company was under no liability to him of any kind. Therefore, the right of Marra Bros., Inc., to indemnity from the Spencer Company cannot rest upon any liability of that company to Slattery; and, if it exists at all, it is hard to see how it can arise in the absence of some legal transaction between the two corporations, other than that of joint tortfeasors: such as contract — as was the case in Burris v. American Chicle Co., 2 Cir., 120 F.2d 218, and Rich v. United States, 2 Cir., 177 F.2d 688 — or as tort — as was the case in Westchester Lighting Co. v. Westchester Estates Corp., 278 N.Y. 175, 15 N.E.2d 567. Yet it is true, at least when the putative indemnitor is not protected by a compensation act, that courts have at times based indemnity merely upon a difference between the kinds of negligence of the two tortfeasors; as for instance, if that of the indemnitee is only “passive,” while that of the indemnitor is “active.” Such cases may perhaps be accounted for as lenient exceptions to the doctrine that there can be no contribution between joint tortfeasors, for indemnity is only an extreme form of contribution. When both are liable to the same person for a single joint wrong, and contribution, stricti jwris, is impossible, the temptation is strong if the faults differ greatly in gravity, to throw the whole loss upon the more guilty of the two. The only decision we have found in New Jersey —the decision of a “Commissioner” — was one in which the only fault of the indemnitee was its failure to observe that the in-demnitor had failed properly to set the tire of a motor truck; and the result could have been put equally well upon a breach of the indemnitor’s contract to set the tire. However that may be, we shall assume that, when the indemnitor and indemnitee are both liable to the injured person, it is the law of New Jersey that, regardless of any other relation between them, the difference in gravity of their faults may be great enough to throw the whole loss upon one. We cannot, however, agree that that result is rationally possible except upon the assumption that both parties are liable to the same person for the joint wrong. If so, when one of the two is not so liable, the right of the other to indemnity must be found in rights and liabilities arising out of some other legal transaction between the two. However, in the case at bar, not only was the Spencer Company not liable to Slattery, but it had no contract with Marra Bros., Inc., or any other legal relation with it except that of joint tortfeasor. Unless therefore there be some controlling authority to the contrary, the amended complaint was rightly dismissed. There is no such authority: none whatever in New Jersey, and none outside to which we think its courts would feel bound to yield. In American Mutual Liability Ins. Co. v. Matthews, 2 Cir., 182 F.2d 322, we held that a shipowner, who had been held liable to a longshoreman for defect of the ship’s tackle, should not have contribution against the longshoreman’s employer because of the employer’s negligence in performing a stevedoring contract with the shipowner. We so decided because we held that it was not a breach of the employer’s contract for him to use defective tackle supplied by the shipowner; and it was only upon a breach of contract that the shipowner could rely. The decision of the Ninth Circuit in United States v. Rothschild International Stevedoring Co., 183 F.2d 181, can indeed hardly be reconciled with ours, for we can see no more reason to hold that it was a breach of the stevedore’s contract with the ship to use a winch known to be defective than to use a defective stay. However, it is not clear that the decision did not presuppose that the stevedore failed in the performance of its contract with the ship; in which event the only difference between us is in the interpretation of such a contract. In any event it is not certain that the result would have been the same, had there been no contract whatever between the two. The decision of the same circuit in Booth-Kelly Lumber Co. v. Southern Pacific Co., 9 Cir., 183 F.2d 902, is not relevant, because it was expressly based upon a contract between the two tortfeasors; and incidentally it was the employer who was the indemnitee. The decision of the Eighth Circuit in American District Telegraph Co. v. Kittleson, 179 F.2d 946, can well be rested upon the employer’s undertaking to the contractor to furnish the contractor’s men with a safe place to work, whose breach was the cause of the injury to one of the employer’s workmen. As we have already said, Westchester Lighting Co. v. Westchester Estates Corp., supra, can also rest upon the tort which the indemnitor committed against the indemnitee. So far as we can see therefore there is nobody of sure authority for saying that differences in the degrees of fault between two tortfeasors will without more strip one of them, if he is an employer, of the protection of a compensation act; and we are at a loss to see any tenable principle which can support such a result. As always, it is embarrassing to have to pass upon the law of a state whose courts have not decided the question. However, in cases depending upon the “diversity jurisdiction” that often happens; we are then forced to prophecy, and in the case at bar our best forecast is that under the law of New Jersey the complaint was properly dismissed. Judgment affirmed as to both causes of action. . Restatement of Torts, § 343. . Broecker v. Armstrong Cork Co., 128 N.J.L. 3, 24 A.2d 194. . 102 U.S. 451, 26 L.Ed. 141. . New York Electric Equipment Co. v. Blair, 2 Cir., 79 P. 896; Chesapeake & Ohio Ry. v. Stojanowski, 2 Cir., 191 P. 720; Lacorazzo v. Cantalupo, 2 Cir., 210 P. 875. . Baltimore & Ohio R. R. Co. v. Camp, 6 Cir., 81 P. 807; Chicago & Northwestern Ry. v. Kelly, 8 Cir., 74 P.2d 31; Southern Pacific Co. v. Ralston, 10 Cir., 67 F.2d 958. . 2 Cir., 79 F. 896. . Wigmore, § 283. . Scudero v. Campbell, 288 N.Y. 328, 43 N.E.2d 66; Noble v. Marx, 298 N.Y. 106, 81 N.E.2d 40. . Sun Oil Co. v. Rhodes, 8 Cir., 15 F.2d 790; Clark v. Brooklyn Heights R. R. Co., 177 N.Y. 359, 69 N.E. 647. . Popkin Brothers, Inc., v. Volk’s Tire Co., 23 A.2d 162, 20 N.J.Misc. 1. . 278 N.Y. 175, 15 N.E.2d 567. 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_typeiss	C	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. ST. LOUIS-SAN FRANCISCO RY. CO. v. BARTON. (Circuit Court of Appeals, Fifth Circuit. March 18, 1927.) No. 4838. 1. Trial 143 — Refusal to direct verdict held not error, where the evidence bearing on the controlling fact was conflicting. Where a case turned on a question of fact, it was the province of the jury to pass on conflicts in the evidence bearing on that question, and it was not error to refuse to direct a verdict, though the court, on the whole evidence, would have been justified in finding in favor of the moving party. 2. Evidence <®=472(I) — Opinion of witness on ultimate fact for determination of jury is properly excluded. It is not error to exclude the opinion of a witness on an ultimate fact for determination of the jury. In Error to the District Court of the United States for the Northern District of Mississippi; Edwin R. Holmes, Judge. Action by W. H. Barton against the St. Louis-San Francisco Railway . Company. Judgment for plaintiff, and defendant brings error. Affirmed. J. W. Canada, of Memphis, Tenn., and D. W. Houston, of Aberdeen, Miss. (D. W. Houston, Sr. & Jr., of Aberdeen, Miss., on the brief), for plaintiff in error. Geo. T. Mitchell, of Tupelo, Miss. (Geo. T. & Chas. S. Mitchell, of Tupelo, Miss.,- and R. G. Draper, of Memphis, Tenn., on the brief),.for defendant in error. Before WALKER, BRYAN, and FOSTER, Circuit Judges. WALKER, Circuit Judge. This was an action to recover damages for personal injuries sustained by the defendant in error, a Pullman car conductor, when a coach in a moving train, where he was in the performance of his duties, left the track on a bridge or trestle and fell to the ground below.. The case went to the jury on the fourth count of the declaration, which attributed the derailment and fall of the coach to negligence of the plaintiff in error in permitting its track, roadbed, and bridge to be and remain in a defective and unsafe condition. The parties are herein referred to as plaintiff and defendant, respectively. The defendant complains of a ruling of the court in sustaining an objection to testimony and of the refusal of the court to charge the jury to find in its favor on the fourth count of the declaration. The record shows that in the trial the plaintiff contended that cross-ties in the traek near the end of the trestle in the direction from which the train was coming and timbers in the trestle at or near that end of it were rotten and unsafe, and that the derailment and fall of the coach in which plaintiff was riding resulted from those defects, and that the defendant contended that the derailment was caused by the breaking, due to a hidden defect, of a rail at a point more than 100 feet from the end of the trestle in the direction from which the train was moving. The evidence offered by the parties in support of their respective contentions was in sharp conflict. In behalf of the defendant it is urged in this court that the evidence as a whole required a finding that the breaking of the rail was the sole proximate cause of the casualty, and that the defendant was not chargeable with negligence with reference to the condition of that rail. We are of opinion that the record does not justify the just stated proposition. A result of a careful examination of the evidence is that we conclude that a phase of it supported a finding that the derailment and fall of the coach and the consequent injury to the plaintiff were due, not to the breaking of a rail in consequence of a hidden defect, but to. the defective and unsafe condition of cross-ties near the end of the trestle in the direction from which the train was coming and of timbers of the trestle at or near that end of it, and that the defendant was chargeable with negligence in failing to have the defects mentioned remedied before the casualty occurred. This being so, it was not enough to justify the direction of a verdict for the defendant that another phase of the evidence supported the conclusion contended for by the defendant, and that a court, upon a careful scrutiny of the evidence as a whole, would be justified in reaching a conclusion different from that evidenced by the verdict. The ease turned upon questions of fact, and it was the provinee of the jury to pass on the conflicts in the evidence bearing on those questions. It follows that it was not error for the court to refuse to give the above-mentioned charge. [2] An employee of the defendant, a division engineer, in the corase of his testimony as to his inspection of the scene of the derailment after the casualty occurred, stated that the broken rail caused the derailment. The court sustained an objection to this statement of the opinion of the witness. The cause of the derailment being an ultimate fact to be determined by the jury, the court was not chargeable with error for sustaining an objection to a statement by the witness of his opinion on the subject. Central of Georgia R. Co. v. Robertson, 206 Ala. 578, 91 So. 470 ; 22 C. J. 502. The record showing no reversible error, the judgment is affirmed. Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
songer_appbus	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. ACHESON, Secretary of State, v. NOBUO ISHIMARU. No. 12690. United States Court of Appeals Ninth Circuit. Dec. 4, 1950. Ray J. O’Brien, U. S. Atty., Howard K. Hoddick, Asst, Honolulu, T. H., Edgar R. Bonsall, Asst. U. S. Atty., San Francisco, Cal., for appellant. Wilfred C. Tsukiyama, Honolulu, T. H., A. L. Wirin, Los Angeles, Cal., for appellee. Before HEALY, BONE, and POPE, Circuit Judges. PER CURIAM. This matter is befo-re us on a motion to dismiss the appeal of the Secretary of State on the ground that the order of which he seeks review ’is not appealable. By agreement of .the parties, the appeal is likewise before us for decision on the merits in event the motion to dismiss is denied. •In 1948 appellee (hereafter called the plaintiff) brought suit against the Secretary pursuant to § 503 of the Nationality Act of 1940, 8 U.S.C.A. § 903, *to obtain a judgment declaring him to be a national of the United States. The Secretary answered, but notwithstanding the suit has long been at issue it has not been tried, allegedly because of the refusal of the 'Consular authorities to grant the plaintiff’s application for a certificate of identity so that he may come to Hawaii, where the suit is pending, to testify in his case. 'Consult Statute, note 1, supra. In March of 1950 plaintiff moved for an order directing the Secretary to issue such a certificate, supporting the motion by an affidavit of his counsel giving an account of the circumstances. The matters stated in the affidavit were not controverted by the Secretary, and the court ordered the latter to issue a certificate, or other equivalent document, enabling the plaintiff to return to Hawaii for the purpose of attending the trial and being a witness in his own behalf. It is from this order that the appeal was taken. lt appears to be undisputed that the plaintiff, as alleged in his complaint, was born in the Territory of Hawaii and went as a minor to Japan. As conceded by the Secretary in his argument here, the sole issues raised below are: “1. Did the Appellee expatriate himself, under the provisions of Section 80,1c, Title 8, United States Code, by serving in the Japanese Army? 2. Did the Appellee expatriate himself, under the provisions of Section 801e, Title 8, United States Code, by voting in a political election in a foreign state, namely Japan?” We are of opinion that the order below is not appealable. It appears not to fall “in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528. By this order the district court but took a step toward final disposition of the merits of the case. The order is more nearly analogous to that held purely interlocutory in Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783, involving an attempted appeal from the denial of a motion to quash a subpoena duces tecum. The appeal is dismissed. . The statute reads: “If any person who claims a right or privilege as a national of the United States is denied such right or privilege by any Department or agency, or executive official thereof, upon the ground that he is not a national of the United States, such person, regardless of whether he is within the United States or abroad, may institute an action against the head of such Department or agency in the District Court of the United States for the District of Columbia or in the district court of the United States for the district in which such person claims a permanent residence for a judgment declaring him to be a national of the United States. If such person is outside the United States and shall have instituted such an action in court, he may, upon submission of a sworn application showing that the claim of nationality presented in such action is made in good faith and has a substantial basis, obtain from a diplomatic or consular officer of the United States in the foreign country in which, he is residing a certificate of identity stating that his nationality status is pending before the court, and may be admitted to the United States with such certificate upon the condition that he shall be subject to deportation in case it shall be decided by the court that he is not a national of the United States. Such certificate of identity shall not be denied solely on the ground that such person has lost a status previously had or acquired as a national of the United States; and from any denial of an application for such certificate the applicant shall be entitled to an appeal to the Secretary of State, who, if he approves the denial, shall state in writing the reasons for his decision. The Secretary of State, with approval of the Attorney General, shall prescribe rules and regulations for the issuance of certificates of identity as above provided.” 8 U.S.O.A. § 903. . By reference to the statute (footnote 1, supra) it is seen to provide that “Such certificate of identity shall not be denied solely on the ground that such person has lost a status previously had or acquired as a national of the United States”. Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
sc_casesource	021	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. BOARD OF EDUCATION OF THE HENDRICK HUDSON CENTRAL SCHOOL DISTRICT, WESTCHESTER COUNTY, et al. v. ROWLEY, BY HER PARENTS, ROWLEY et ux. No. 80-1002. Argued March 23, 1982 Decided June 28, 1982 Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Powell, Stevens, and O’Connor, JJ., joined. Blackmun, J., filed an opinion concurring in the judgment, post, p. 210. White, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 212. Raymond G. Kuntz argued the cause for petitioners. With him on the briefs were Robert D. Stone, Jean M. Coon, Paul E. Sherman, Jr., and Donald O. Meserve. Michael A. Chatoff argued the cause and filed a brief for respondents. Elliott Schulder argued the cause for the United States as amicus curiae urging affirmance. On the brief were Solicitor General Lee, Assistant Attorney General Reynolds, Walter W. Barnett, and Louise A. Lerner. Briefs of amici curiae urging affirmance were filed by Charles S. Sims for the American Civil Liberties Union; by Jane Bloom Yohalem, Norman S.Rosenberg, Daniel Yohalem, and Marian Wright Edelman for the Association for Retarded Citizens of the United States et al.; by Ralph J. Moore, Jr., and Franklin D. Kramer for the Maryland Advocacy Unit for the Developmentally Disabled, Inc., et al.; by Marc Charmatz, Janet Stotland, and Joseph Blum for the National Association of the Deaf et al; by Minna J. Kotkin and Barry Felder for the New York State Commission on the Quality of Care for the Mentally Disabled, Protection and Advocacy System; and by Michael A. Rebell for the United Cerebral Palsy Associations, Inc., et al. Norman H. Gross, Gwendolyn H. Gregory, Thomas A. Shannon, and August W. Steinhilber filed a brief for the National School Boards Association et al. as amici curiae. Justice Rehnquist delivered the opinion of the Court. This case presents a question of statutory interpretation. Petitioners contend that the Court of Appeals and the District Court misconstrued the requirements imposed by Congress upon States which receive federal funds under the Education of the Handicapped Act. We agree and reverse the judgment of the Court of Appeals. I The Education of the Handicapped Act (Act), 84 Stat. 175, as amended, 20 U. S. C. § 1401 et seq. (1976 ed. and Supp. IV), provides federal money to assist state and local agencies in educating handicapped children, and conditions such funding upon a State’s compliance with extensive goals and procedures. The Act represents an ambitious federal effort to promote the education of handicapped children, and was passed in response to Congress’ perception that a majority of handicapped children in the United States “were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to ‘drop out.’” H. R. Rep. No. 94-332, p. 2 (1975) (H. R. Rep.). The Act’s.evolution and major provisions shed light on the question of statutory interpretation which is at the heart of this case. Congress first addressed the problem of educating the handicapped in 1966 when it amended the Elementary and Secondary Education Act of 1965 to establish a grant program “for the purpose of assisting the States in the initiation, expansion, and improvement of programs and projects... for the education of handicapped children.” Pub. L. 89-750, § 161, 80 Stat. 1204. That program was repealed in 1970 by the Education of the Handicapped Act, Pub. L. 91-230, 84 Stat. 175, Part B of which established a grant program similar in purpose to the repealed legislation. Neither the 1966 nor the 1970 legislation contained specific guidelines for state use of the grant money; both were aimed primarily at stimulating the States to develop educational resources and to train personnel for educating the handicapped. Dissatisfied with the progress being made under these earlier enactments, and spurred by two District Court decisions holding that handicapped children should be given access to a public education, Congress in 1974 greatly increased federal funding for education of the handicapped and for the first time required recipient States to adopt “a goal of providing full educational opportunities to all handicapped children.” Pub. L. 93-380, 88 Stat. 579, 583 (1974 statute). The 1974 statute was recognized as an interim measure only, adopted “in order to give the Congress an additional year in which to study what if any additional Federal assistance [was] required to enable the States to meet the needs of handicapped children.” H. R. Rep., at 4. The ensuing year of study produced the Education for All Handicapped Children Act of 1975. In order to qualify for federal financial assistance under the Act, a State must demonstrate that it “has in effect a policy that assures all handicapped children the right to a free appropriate public education.” 20 U. S. C. §1412(1). That policy must be reflected in a state plan submitted to and approved by the Secretary of Education, § 1413, which describes in detail the goals, programs, and timetables under which the State intends to educate handicapped children within its borders. §§ 1412, 1413. States receiving money under the Act must provide education to the handicapped by priority, first “to handicapped children who are not receiving an education” and second “to handicapped children... with the most severe handicaps who are receiving an inadequate education,” § 1412(3), and “to the maximum extent appropriate” must educate handicapped children “with children who are not handicapped.” § 1412(5). The Act broadly defines “handicapped children” to include “mentally retarded, hard of hearing, deaf, speech impaired, visually handicapped, seriously emotionally disturbed, orthopedically impaired, [and] other health impaired children, [and] children with specific learning disabilities.” § 1401(1). The “free appropriate public education” required by the Act is tailored to the unique needs of the handicapped child by means of an “individualized educational program” (IEP). § 1401(18). The IEP, which is prepared at a meeting between a qualified representative of the local educational agency, the child’s teacher, the child’s parents or guardian, and, where appropriate, the child, consists of a written document containing “(A) a statement of the present levels of educational performance of such child, (B) a statement of annual goals, including short-term instructional objectives, (C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs, (D) the projected date for initiation and anticipated duration of such services, and (E) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved.” § 1401(19). Local or regional educational agencies must review, and where appropriate revise, each child’s IEP at least annually. § 1414(a)(5). See also § 1413(a)(ll). In addition to the state plan and the IEP already described, the Act imposes extensive procedural requirements upon States receiving federal funds under its provisions. Parents or guardians of handicapped children must be notified of any proposed change in “the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to such child,” and must be permitted to bring a complaint about “any matter relating to” such evaluation and education. §§ 1415(b)(1)(D) and (E). Complaints brought by parents or guardians must be resolved at “an impartial due process hearing,” and appeal to the state educational agency must be provided if the initial hearing is held at the local or regional level. §§ 1415(b)(2) and (c). Thereafter, “[a]ny party aggrieved by the findings and decision” of the state administrative hearing has “the right to bring a civil action with respect to the complaint... in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy.” § 1415(e)(2). Thus, although the Act leaves to the States the primary responsibility for developing and executing educational programs for handicapped children, it imposes significant requirements to be followed in the discharge of that responsibility. Compliance is assured by provisions permitting the withholding of federal funds upon determination that a participating state or local agency has failed to satisfy the requirements of the Act, §§ 1414(b)(2)(A), 1416, and by the provision for judicial review. At present, all States except New Mexico receive federal funds under the portions of the Act at issue today. Brief for United States as Amicus Curiae 2, II This case arose in connection with the education of Amy Rowley, a deaf student at the Furnace Woods School in the Hendrick Hudson Central School District, Peekskill, N. Y. Amy has minimal residual hearing and is an excellent lipreader. During the year before she began attending Furnace Woods, a meeting between her parents and school administrators resulted in a decision to place her in a regular kindergarten class in order to determine what supplemental services would be necessary to her education. Several members of the school administration prepared for Amy's arrival by attending a course in sign-language interpretation, and a teletype machine was installed in the principal's office to facilitate communication with her parents who are also deaf. At the end of the trial period it was determined that Amy should remain in the kindergarten class, but that she should be provided with an FM hearing aid which would amplify words spoken into a -wireless receiver by the teacher or fellow students during certain classroom activities. Amy successfully completed her kindergarten year. As required by the Act, an IEP was prepared for Amy during the fall of her first-grade year. The IEP provided that Amy should be educated in a regular classroom at Furnace Woods, should continue to use the FM hearing aid, and should receive instruction from a tutor for the deaf for one hour each day and from a speech therapist for three hours each week. The Rowleys agreed with parts of the IEP but insisted that Amy also be provided a qualified sign-language interpreter in all her academic classes in lieu of the assistance proposed in other parts of the IEP. Such an interpreter had been placed in Amy’s kindergarten class for a 2-week experimental period, but the interpreter had reported that Amy did not need his services at that time. The school administrators likewise concluded that Amy did not need such an interpreter in her first-grade classroom. They reached this conclusion after consulting the school district’s Committee on the Handicapped, which had received expert evidence from Amy’s parents on the importance of a sign-language interpreter, received testimony from Amy’s teacher and other persons familiar with her academic and social progress, and visited a class for the deaf. When their request for an interpreter was denied, the Rowleys demanded and received a hearing before an independent examiner. After receiving evidence from both sides, the examiner agreed with the administrators’ determination that an interpreter was not necessary because “Amy was achieving educationally, academically, and socially” without such assistance. App. to Pet. for Cert. F-22. The examiner’s decision was affirmed on appeal by the New York Commissioner of Education on the basis of substantial evidence in the record. Id., at E-4. Pursuant to the Act’s provision for judicial review, the Rowleys then brought an action in the United States District Court for the Southern District of New York, claiming that the administrators’ denial of the sign-language interpreter constituted a denial of the “free appropriate public education” guaranteed by the Act. The District Court found that Amy “is a remarkably well-adjusted child” who interacts and communicates well with her classmates and has “developed an extraordinary rapport” with her teachers. 483 F. Supp. 528, 531 (1980). It also found that “she performs better than the average child in her class and is advancing easily from grade to grade,” id., at 534, but “that she understands considerably less of what goes on in class than she could if she were not deaf” and thus “is not learning as much, or performing as well academically, as she would without her handicap,” id., at 532. This disparity between Amy’s achievement and her potential led the court to decide that she was not receiving a “free appropriate pub-lie education,” which the court defined as “an opportunity to achieve [her] full potential commensurate with the opportunity provided to other children.” Id., at 534. According to the District Court, such a standard “requires that the potential of the handicapped child be measured and compared to his or her performance, and that the resulting differential or ‘shortfall’ be compared to the shortfall experienced by non-handicapped children.” Ibid. The District Court’s definition arose from its assumption that the responsibility for “giv[ing] content to the requirement of an ‘appropriate education’ ” had “been left entirely to the [federal] courts and the hearing officers.” Id., at 533. A divided panel of the United States Court of Appeals for the Second Circuit affirmed. The Court of Appeals “agree[d] with the [District [C]ourt’s conclusions of law,” and held that its “findings of fact [were] not clearly erroneous.” 632 F. 2d 945, 947 (1980). We granted certiorari to review the lower courts’ interpretation of the Act. 454 U. S. 961 (1981). Such review requires us to consider two questions: What is meant by the Act’s requirement of a “free appropriate public education”? And what is the role of state and federal courts in exercising the review granted by 20 U. S. C. §1415? We consider these questions separately. III A This is the first case in which this Court has been called upon to interpret any provision of the Act. As noted previously, the District Court and the Court of Appeals concluded that “[t]he Act itself does not define ‘appropriate education,’” 483 F. Supp., at 533, but leaves “to the courts and the hearing officers” the responsibility of “giv[ing] content to the requirement of an‘appropriate education.’” Ibid. See also 632 F. 2d, at 947. Petitioners contend that the definition of the phrase “free appropriate public education” used by the courts below overlooks the definition of that phrase actually found in the Act. Respondents agree that the Act defines “free appropriate public education,” but contend that the statutory definition is not “functional” and thus “offers judges no guidance in their consideration of controversies involving ‘the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education.’” Brief for Respondents 28. The United States, appearing as amicus curiae on behalf of respondents, states that “[ajlthough the Act includes definitions of a ‘free appropriate public education’ and other related terms, the statutory definitions do not adequately explain what is meant by ‘appropriate.’ ” Brief for United States as Amicus Curiae 13. We are loath to conclude that Congress failed to offer any assistance in defining the meaning of the principal substantive phrase used in the Act. It is beyond dispute that, contrary to the conclusions of the courts below, the Act does expressly define “free appropriate public education”: “The term ‘free appropriate public education’ means special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) are provided in conformity with the individualized education program required under section 1414(a)(5) of this title.” § 1401(18) (emphasis added). “Special education,” as referred to in this definition, means “specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions.” §1401(16). “Related services” are defined as “transportation, and such developmental, corrective, and other supportive services... as may be required to assist a handicapped child to benefit from special education.” §1401(17). Like many statutory definitions, this one tends toward the cryptic rather than the comprehensive, but that is scarcely a reason for abandoning the quest for legislative intent. Whether or not the definition is a “functional” one, as respondents contend it is not, it is the principal tool which Congress has given us for parsing the critical phrase of the Act. We think more must be made of it than either respondents or the United States seems willing to admit. According to the definitions contained in the Act, a “free appropriate public education” consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child “to benefit” from the instruction. Almost as a checklist for adequacy under the Act, the definition also requires that such instruction and services be provided at public expense and under public supervision, meet the State’s educational standards, approximate the grade levels used in the State’s regular education, and comport with the child’s IEP. Thus, if personalized instruction is being provided with sufficient supportive services to permit the child to benefit from the instruction, and the other items on the definitional checklist are satisfied, the child is receiving a “free appropriate public education” as defined by the Act. Other portions of the statute also shed light upon congressional intent. Congress found that of the roughly eight million handicapped children in the United States at the time of enactment, one million were “excluded entirely from the public school system” and more than half were receiving an inappropriate education. 89 Stat. 774, note following § 1401. In addition, as mentioned in Part I, the Act requires States to extend educational services first to those children who are receiving no education and second to those children who are receiving an “inadequate education.” §1412(3). When these express statutory findings and priorities are read together with the Act’s extensive procedural requirements and its definition of “free appropriate public education,” the face of the statute evinces a congressional intent to bring previously excluded handicapped children into the public education systems of the States and to require the States to adopt procedures which would result in individualized consideration of and instruction for each child. Noticeably absent from the language of the statute is any substantive standard prescribing the level of education to be accorded handicapped children. Certainly the language of the statute contains no requirement like the one imposed by the lower courts — that States maximize the potential of handicapped children “commensurate with the opportunity provided to other children.” 483 F. Supp., at 534. That standard was expounded by the District Court without reference to the statutory definitions or even to the legislative history of the Act. Although we find the statutory definition of “free appropriate public education” to be helpful in our interpretation of the Act, there remains the question of whether the legislative history indicates a congressional intent that such education meet some additional substantive standard. For an answer, we turn to that history. B (i) As suggested in Part I, federal support for education of the handicapped is a fairly recent development. Before passage of the Act some States had passed laws to improve the educational services afforded handicapped children, but many of these children were excluded completely from any form of public education or were left to fend for themselves in classrooms designed for education of their nonhandicapped peers. As previously noted, the House Report begins by emphasizing this exclusion and misplacement, noting that millions of handicapped children “were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to ‘drop out.’” H. R. Rep., at 2. See also S. Rep., at 8. One of the Act’s two principal sponsors in the Senate urged its passage in similar terms: “While much progress has been made in the last few years, we can take no solace in that progress until all handicapped children are, in fact, receiving an education. The most recent statistics provided by the Bureau of Education for the Handicapped estimate that... 1.75 million handicapped children do not receive any educational services, and 2.5 million handicapped children are not receiving an appropriate education.” 121 Cong. Rec. 19486 (1975) (remarks of Sen. Williams). This concern, stressed repeatedly throughout the legislative history, confirms the impression conveyed by the language of the statute: By passing the Act, Congress sought primarily to make public education available to handicapped children. But in seeking to provide such access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful. Indeed, Congress expressly “recognize[d] that in many instances the process of providing special education and related services to handicapped children is not guaranteed to produce any particular outcome.” S. Rep., at 11. Thus, the intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside. Both the House and the Senate Reports attribute the impetus for the Act and its predecessors to two federal-court judgments rendered in 1971 and 1972. As the Senate Report states, passage of the Act “followed a series of landmark court cases establishing in law the right to education for all handicapped children.” S. Rep., at 6. The first case, Pennsylvania Assn. for Retarded Children v. Commonwealth, 334 F. Supp. 1257 (ED Pa. 1971) and 343 F. Supp. 279 (1972) (PARC), was a suit on behalf of retarded children challenging the constitutionality of a Pennsylvania statute which acted to exclude them from public education and training. The case ended in a consent decree which enjoined the State from “denying] to any mentally retarded child access to a free public program of education and training.” 334 F. Supp., at 1258 (emphasis added). PARC was followed by Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 (DC 1972), a case in which the plaintiff handicapped children had been excluded from the District of Columbia public schools. The court’s judgment, quoted in S. Rep., at 6, provided that “no [handicapped] child eligible for a publicly supported education in the District of Columbia public schools shall be excluded from a regular school assignment by a Rule, policy, or practice of the Board of Education of the District of Columbia or its agents unless such child is provided (a) adequate alternative educational services suited to the child’s needs, which may include special education or tuition grants, and (b) a constitutionally adequate prior hearing and periodic review of the child’s status, progress, and the adequacy of any educational alternative.” 348 F. Supp., at 878 (emphasis added). Mills and PARC both held that handicapped children must be given access to an adequate, publicly supported education. Neither case purports to require any particular substantive level of education. Rather, like the language of the Act, the cases set forth extensive procedures to be followed in formulating personalized educational programs for handicapped children. See 848 F. Supp., at 878-883; 334 F. Supp., at 1258-1267. The fact that both PARC and Mills are discussed at length in the legislative Reports suggests that the principles which they established are the principles which, to a significant extent, guided the drafters of the Act. Indeed, immediately after discussing these cases the Senate Report describes the 1974 statute as having “incorporated the major principles of the right to education cases.” S. Rep., at 8. Those principles in turn became the basis of the Act, which itself was designed to effectuate the purposes of the 1974 statute. H. R. Rep., at 5. That the Act imposes no clear obligation upon recipient States beyond the requirement that handicapped children receive some form of specialized education is perhaps best demonstrated by the fact that Congress, in explaining the need for the Act, equated an “appropriate education” to the receipt of some specialized educational services. The Senate Report states: “[T]he most recent statistics provided by the Bureau of Education for the Handicapped estimate that of the more than 8 million children... with handicapping conditions requiring special education and related services, only 3.9 million such children are receiving an appropriate education.” S. Rep., at 8. This statement, which reveals Congress’ view that 3.9 million handicapped children were “receiving an appropriate education” in 1975, is followed immediately in the Senate Report by a table showing that 3.9 million handicapped children were “served” in 1975 and a slightly larger number were “unserved.” A similar statement and table appear in the House Report. H. R. Rep., at 11-12. It is evident from the legislative history that the characterization of handicapped children as “served” referred to children who were receiving some form of specialized educational services from the States, and that the characterization of children as “unserved” referred to those who were receiving no specialized educational services. For example, a letter sent to the United States Commissioner of Education by the House Committee on Education and Labor, signed by two key sponsors of the Act in the House, asked the Commissioner to identify the number of handicapped “children served” in each State. The letter asked for statistics on the number of children “being served” in various types of “special education program[s]” and the number of children who were not “receiving educational services.” Hearings on S. 6 before the Subcommittee on the Handicapped of the Senate Committee on Labor and Public Welfare, 94th Cong., 1st Sess., 205-207 (1975). Similarly, Senator Randolph, one of the Act’s principal sponsors in the Senate, noted that roughly one-half of the handicapped children in the United States “are receiving special educational services.” Id., at 1. By characterizing the 3.9 million handic Question: What is the court whose decision the Supreme Court reviewed? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. 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songer_typeiss	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. UNITED STATES of America v. Samuel WILLIAMS, Appellant. Nos. 23093, 23098. United States Court of Appeals, District of Columbia Circuit. Nov. 3, 1970. Mr. J. Gordon Forester, Jr., Washington, D. C. (appointed by this court) was on the brief for appellant. Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry and John R. Dugan, Asst. U. S. Attys., were on the brief for appellee. Before BAZELON, Chief Judge, and MeGOWAN and TAMM, Circuit Judges, in Chambers. PER CURIAM: These appeals are from jury convictions of passing and uttering counterfeited obligations of the United States (18 U.S.C. § 472), and for intimidating a government witness (18 U.S.C. § 1503). The three issues raised by appellant on appeal all relate to matters to which no objection was taken in the trial court. Appellant first argues that the trial judge abused his discretion by failing to exclude prior convictions of witnesses who testified for appellant. See Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965). In Davis v. United States, 133 U.S.App.D.C. 167, 409 F.2d 453 (1969), this court held that the Luck doctrine applies to impeachment by prior convictions of all witnesses, not just the accused. However, unless the trial judge’s discretion in this regard is properly invoked in the first instance with respect to an accused testifying in his own defense, it cannot normally be held on appeal to have been abused. See, e. g., Evans v. United States, 130 U.S. App.D.C. 114, 397 F.2d 675 (1968), cert. denied, 394 U.S. 907, 89 S.Ct. 1016, 22 L.Ed.2d 218 (1969); Harley v. United States, 126 U.S.App.D.C. 287, 377 F.2d 172 (1967); Hood v. United States, 125 U.S.App.D.C. 16, 365 F.2d 949 (1966). The same principle is a fortiori applicable to defense witnesses other than the accused. Appellant’s second contention focuses upon the trial judge’s explanatory remarks prefatory to his instruction to the jury with respect to the impeachment of defense witnesses. The trial judge stated that a counsel vouches for the credibility of the witnesses he produces. Appellant charges that these remarks put the credibility of the defense counsel in issue. This appears to be a strained construction of what was said; and we note that trial counsel himself saw no occasion to object. Under the circumstances, we find no basis for reversal in this incident. Finally, appellant contends that he was fatally prejudiced by the allegedly improper cross-examination by the prosecutor of certain character witnesses offered by appellant. Questions were asked as to the witnesses’ knowledge of previous arrests of appellant for robbery, possession of a prohibited weapon, and housebreaking. There is considerable latitude to ask character witnesses about the state of their knowledge of defendant’s background and experience as they bear upon his reputation for honesty and integrity. See Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1958); Cf. United States v. Wooden, 137 U.S.App.D.C. 1, 420 F.2d 251 (1969). Whether the government’s cross-examination in this instance was within the permissible bounds need not be definitely resolved by us since there was no objection to the questions asked. Of this point, as of the others discussed above, it is true in any event that the error, if any, was harmless when considered by reference to the entire record. See Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Affirmed. . Appellant has also belatedly challenged in this court the constitutionality of 14 D.C.Code § 305. The issue is untimely; and see Bailey v. United States, 138 U.S.App.D.C. 242, 426 F.2d 1236 (1970). 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_district	G	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". Alicia G. GARCIA, Plaintiff-Appellant, v. CITY OF ABILENE, et al., Defendants-Appellees. No. 89-1372 Summary Calendar. United States Court of Appeals, Fifth Circuit. Dec. 21, 1989. Gilbert Rodriguez, William Kimble, West Texas Legal Services, Abilene, Tex., for plaintiff-appellant. Claudia Clinton, Harvey Cargill, Jr., City Attys., Abilene, Tex., for defendants-appel-lees. Before WILLIAMS, HIGGINBOTHAM, and SMITH, Circuit Judges. PER CURIAM: Mrs. Alicia Garcia filed suit under 42 U.S.C. § 1983 against the City of Abilene and Judge Phillip Wetherbee, an Abilene municipal court judge, alleging that the City of Abilene’s fine collection system was unconstitutional and seeking injunctive relief, monetary damages, and attorney’s fees. The district court directed a verdict against Mrs. Garcia. We affirm. I On October 9, 1986, a city official issued a citation to Mrs. Garcia for failure to restrain her dog. Mrs. Garcia promised to appear in Abilene Municipal Court in regard to the citation within 10 days. When Mrs. Garcia did not appear, the city assessed an additional citation and fine for failure to appear. On November 17, 1986, Mrs. Garcia appeared and pleaded guilty to the failure to restrain her dog citation. Judge Wetherbee dismissed the failure to appear citation because Mrs. Garcia’s mother and husband had died in early November. Mrs. Garcia signed a continuance agreement on the payment of her $12 fine until December 5, 1986. The continuance agreement stated that not appearing on December 5 would subject her to arrest and failure to appear charges. On December 5, 1986, Mrs. Garcia again failed to appear. When she appeared on December 9, 1986, Judge Wetherbee dismissed the second failure to appear citation and allowed Mrs. Garcia to sign a second continuance agreement on the $12 fine until January 9, 1987. She failed to appear on January 9 and received a third failure to appear citation. On January 13, 1987, the municipal court issued a capias pro fine arrest warrant for Mrs. Garcia based upon her failure to either pay the $12.00 fine or appear and assert some excuse. Mrs. Garcia was notified by telephone of the warrant that morning and appeared later that day. When she appeared Judge Wetherbee apparently told her that she could plead guilty and pay the fine, which was $32.00 at that time, or plead not guilty and have a jury trial. Mrs. Garcia chose to plead not guilty to the failure to appear charge, a class C misdemeanor, Tex.Penal Code Ann. § 38.11(e) (Vernon 1989), which is a fine only offense under Texas law, Tex.Penal Code Ann. § 12.23 (Vernon 1974). The failure to appear charge was tried to a jury on February 5, 1987. The jury found her guilty and assessed a fine and costs totaling $102. The court set an installment plan of $25 per month pursuant to Tex.Crim.Proc.Code Ann. art. 45.06 (Vernon Supp.1989). On March 5, 1987, Mrs. Garcia told the court that she could not pay the first $25.00 installment. She then signed another continuance agreement promising to appear on March 20,1987, and let the court know when she could pay. She again failed to appear. A fourth citation for failure to appear was issued and, because of her default in the payment of the $102 without appearing in court to explain the default, a warrant for her arrest was issued. Although the City of Abilene never arrested and incarcerated Mrs. Garcia, she filed suit under 42 U.S.C. § 1983 in district court against the City of Abilene and Judge Wetherbee seeking injunctive relief, monetary damages, and attorney’s fees for violation of her constitutional rights. Mrs. Garcia alleged that the City of Abilene unconstitutionally jailed indigent defendants because of their inability to pay fines. She also asserted that she should have been provided counsel at her trial. Originally, Mrs. Garcia filed suit as a class action, but the district court refused to certify the case as a class action because Mrs. Garcia did not comply with Fed.R.Civ.P. 23. A trial was held before the district court on March 20, 1989. During trial Mrs. Garcia withdrew any claim against Judge Wetherbee for damages. After hearing the testimony of Judge Wetherbee and Mrs. Garcia the court directed a verdict in favor of the City of Abilene and entered judgment on that verdict on March 31, 1989. Mrs. Garcia appealed. II Mrs. Garcia contends that the City of Abilene violated her sixth and fourteenth amendment right to counsel by not appointing an attorney to represent her in the municipal court trial of the failure to appear charge. However, because Mrs. Garcia was never actually incarcerated, the right to appointed counsel never attached. See Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). Ill Mrs. Garcia also argues that the City of Abilene’s fine collection system as applied to her is unconstitutional under Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), and Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). She claims that the City of Abilene, through Judge Wetherbee, discriminated against her based on her economic status by attempting to imprison her for failure to pay her fine and by only extending the time for full payment of her fine instead of reducing the amount owed. Although Mrs. Garcia has never been arrested and placed in jail, the issuance of the arrest warrant, which to our knowledge remains pending, makes this case sufficiently ripe for our resolution. Cf. KVUE, Inc. v. Austin Broadcasting Corp., 709 F.2d 922, 927-31 (5th Cir.1983) (holding that real fear of prosecution under statute was sufficient to give plaintiff “standing” to challenge it). In Tate the Supreme Court held that imprisoning an indigent solely because he is unable to pay his fines contravenes the equal protection clause by discriminating based upon economic status. Id. 401 U.S. at 399, 91 S.Ct. at 671. However, the Court emphasized that other alternatives are available to the states to enforce payment of fines: The State is not powerless to enforce judgments against those financially unable to pay a fine; indeed, a different result would amount to inverse discrimination since it would enable an indigent to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other conviction. It is unnecessary for us to canvass the numerous alternatives to which the State by legislative enactment — or judges within the scope of their authority — may resort in order to avoid imprisoning an indigent beyond the statutory maximum for involuntary nonpayment of a fine or court costs. Appellant has suggested several plans, some of which are already utilized in some States, while others resemble those proposed by various studies. The State is free to choose from among the variety of solutions already proposed and, of course, it may devise new ones. Id. at 399-400, 91 S.Ct. at 671-72 (quoting Williams v. Illinois, 399 U.S. 235, 244-45, 90 S.Ct. 2018, 2023-24, 26 L.Ed.2d 586 (1970)) (footnote omitted). The Court suggested payment of fines in installments as one alternative. Id. at 400 n. 5, 91 S.Ct. at 671 n. 5. Finally, the Court noted that it was leaving for decision another day the propriety of imprisonment when “alternative means are unsuccessful despite the defendant’s reasonable efforts to satisfy the fines.” Id. at 401, 91 S.Ct. at 672. However, in Burton v. Goodlett, 480 F,2d 983 (5th Cir.1973), we opined that the question left open Tate, whether the state could jail indigents who failed to pay despite reasonable efforts, was implicitly answered in Tate. We stated: Surely, such a caveat was an inescapable ingredient of the opinion. If indigents may avoid the payment of fines while those with funds or property are required to pay the penalty, we are a country in which some people are ruled by law while others are practically immune, at least as to offenses ordinarily punished by the exaction of a fine. Id. at 985. We also found that Tate allowed the jailing of those whose failure to pay is “willful or otherwise unjustified.” Id. In Bearden the Supreme Court revisited the Tate problem in the context of probation revocation. The Court, relying heavily on Tate, held that in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment other than imprisonment. Only if alternative measures are not adequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment. 461 U.S. at 672-73, 103 S.Ct. at 2072-73. The Court suggested that the states’ interest in punishment and deterrence could generally be satisfied by alternative punishments such as extending the time for payments, reducing the fine, or substituting some form of labor or public service in place of the fine. Id. at 672, 103 S.Ct. at 20. Mrs. Garcia contends that the City of Abilene violated the principles established in Tate and Bearden by attempting to jail her solely because she could not pay her fines. However, these cases rest on the assumption that the indigent appears before the court to assert his inability to pay. Even assuming an individual who is fined is too poor to pay, if he does not appear and assert his indigency, the court cannot inquire into his reasons for not paying and offer alternatives. Mrs. Garcia’s second argument is that Tate and Bearden required Judge Wetherbee to reduce the amount of the fine instead of extending the time for full payment. This is incorrect. These cases require only that courts use alternatives to imprisonment, one of which is extending the time to pay; they do not require courts to reduce the fine. In this case Judge Wetherbee employed three different alternatives: he dismissed two fines, extended the time for Mrs. Garcia to pay and offered her an installment plan. IV In sum, we find that the fine collection system of the City of Abilene as applied to Mrs. Garcia does not contravene constitutional standards, and, accordingly, the judgment 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:
songer_appnatpr	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. COLGATE-PALMOLIVE-PEET CO. et al. v. LEVER BROS. CO. No. 5774. Circuit Court of Appeals, Seventh Circuit, April 8, 1937. Rehearing Denied June 21, 1937. •Marston Allen, Erastus S. Allen, and Frank F. Dinsmore, all of Cincinnati, Ohio, Louis Quarles, of Milwaukee, Wis., Mason Trowbridge, of Jersey City, N. J., and Arthur C. Denison and Newton D. Baker, both of Cleveland, Ohio, for. appellants. C. B. Tinkham, of Hammond, Ind., Leroy C. Shonts, John B. Macauley, and Frank Parker Davis, all of Chicago, 111., Ramsay Hoguet, of New York City, Floyd S. Davis, of Cambridge, Mass., and Geo. I. Haight, of Chicago, 111., for appellee. Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge. EVANS, Circuit Judge. Appellants and appellee are competitors engaged in making and selling soap. Their activities cover the entire industry. The competition and the competitive methods which led to this litigation concern themselves with laundry soap. The size of this branch of the industry as conducted by the three parties to the litigation is tremendous. Appellants assert that they jointly own the patent covering the product of the inventive mind which produced a better and more acceptable soap than was ever before offered to the housewife or the laundryman. They ask the court for the protection which this discovery deserves. Appellee denies all such claims of merit and distinction, disputes all its adversaries’ asserted right to patent protection, and denies infringement ; hence, this controversy. The patent granted to Dallas R. Lamout (and assigned to appellants) to reward one who made an original and unusually valuable contribution to the science of soap making, is asserted and assailed. The validity of the patent is denied; its infringement is disputed. Many hundreds of thousand words have been spoken by witnesses who proclaimed their belief in the merit of Lamont’s discovery. An equal number of witnesses assert that it would be a travesty on justice to honor Lamont with the name of inventor or to characterize what his coworker did, as invention. The District Court held the patent was not infringed. On the issue of validity, he found not squarely, but invoked disputes over inferences when he used the following language: “Lamont patent is invalid unless limited to a process of controlled steam inflation and the product thereof and as so limited is not infringed.” Validity and infringement of patent No. 1,652,900, issued December 13, 1927, to Dallas R. Lamont, are the subjects of our inquiry. The patent consisting of eleven claims covers both soap products and processes of manufacturing soap. The product is almost exclusively used for laundry purposes. Lamont was an employee of the Industrial Spray Drying Company, which was entitled to his discoveries and inventions and to whom he duly assigned his patent. Through appropriate steps, the title and right to use the patent were transferred to appellants. Colgate-PalmolivePeet Company, formerly Colgate & Company, obtained an exclusive license and started production in 1927 of a soap, called Super Suds. The appellant, Procter & Gamble, soon came out with a product known as Selox. The latter company was sued for infringement, and it purchased a half interest in the patent. In 1929, appellee, a pioneer and always a very large manufacturer of soap for laundry purposes, brought out a laundry soap. It obtained patents which covered both the product and the process for making this soap. The extent and rapidity with which this so-called new laundry soap business grew is shown by the fact that in 1930, three years after the appearance of Super Suds, the public had used 500,000,000 cartons of the combined products of the parties. It may be fairly and conservatively said, speaking generally and not technically, that the soaps made by the parties to this litigation, for laundry purposes, are much alike. Admittedly they today dominate the field of granular washing soap. Appellee called its laundry soap Rinso long before 1927. It never changed its name. Appellants assert that while the. name remained the same, the product, and the process by which the soap was made, changed after appellants brought out their soap made in accordance with Lamont’s patent teachings. Colgate first called its soap made under the Lamont patent, Super Suds. It later brought out Palmolive Beads. Procter & Gamble has given its laundry soap different names: Selox, Chipso, Chipso Granules, Oxydol, and Ivory Snow. ' The application for Lamont’s patent was made May 25, 1927, and it issued December 13, 1927. The specifications are extremely long and somewhat involved. There are eleven claims of which eight are contested. The first five are product claims. Three process claims, 7, 8, and 9, are also in issue. In the margin appear claim 2, a product claim, and claims 7 and 8, two process claims. These claims are presented as typical. Appellee emphasizes claim 1, a product claim, and it is also reproduced in the margin. A brief statement of the history and the art of soap making, as well as a statement of what Lamont did, follows: Commercial soap is ordinarily made by boiling soda lye and fats and oils in a kettle. When salt water is added to the mass, the kettle contents separate into layers of which the top one forms the basis for the ordinary soap of commerce. This material at kettle temperature is a molten mass and its composition is surprisingly constant at 70 per cent solids combined with 30 per cent water. At the temperature at which this soap is finished, i. e., between 170° and 212° F¡, the soap is a heavy moltei? mass and will flow in the mass, although it is not a liquid and is not free-flowing. In this condition the soap is called kettle soap, or more technically, neat soap. This condition is spoken of as the “neat soap” phase. When neat soap is cooled to a temperature of 150° F. or below, it changes and becomes what is known as solid soap. Also if moisture is driven out of soap when in the neat soap phase, the transformation point from the neat phase to the solid phase takes place at higher and higher temperatures. Appellants claim Lamont taught the art to spray this nonliquid material when in the neat phase, and during its transformation into the solid phase, to cause the soap substance itself to divide into particles which may be described as puffed or inflated. If solid soap containing the percentage of water of neat soap is heated to a point above 150° F. (depending somewhat upon the particular fats used), the material is transformed into its neat soap or kettle soap phase, but once this phase has been reached, further rise in temperature can be continued without reducing the viscosity of the soap although in some instances its stringiness can be reduced at the higher temperatures. This quality of soap constitutes a sharp distinction between it and other kinds of heat fusible material, which as heat is increased become more fluid. Appellants assert that the usual practice in spray processing of other materials required them to be first brought to a condition which formed fine round drops when sprayed which is impossible with neat soap. Neat soap is not film forming and will not break up into true drops when sprayed. It merely breaks into fragments. Another phase in which soap can and does exist, is the “nigre” or soap solution phase. This phase, as in the instance of the neat phase, has a definite water content, and cannot exist with less than about 70 per cent of water. At a temperature around 170° F. and above, it is a true free-flowing thin liquid. When at lower temperature, about 150° F., and below, nigre does not change into solid soap but instead congeals into a wet-gelatinous, elastic-like material. The nigre phase of soap is one in which the material can readily be sprayed, but when it is sprayed and dried by driving out moisture, it does not puff. Intermediate between neat soap and nigre in respect of moisture content, is a substance known as “middle soap.” Where water is present in soap in an amount less than about 70 per cent, and greater than about 30 per cent, middle soap exists. At kettle temperature it is a thick viscous gum, and further heating does not change its consistency. At no temperature can it be pumped or sprayed, and it can be stirred only with great difficulty. Below about 150° F. it congeals into an opaque, rubbery mass. The existence of this middle soap phase is important in the present case because attempts to bring neat soap into a condition for spraying by thinning it with water are all hut impossible. Soap solution can practicably only be made by dissolving small pieces of solid soap in a large amount of water, i. e., by adding soap to water and not water to soap. Thus soap is a substance which has to be made into a thin solution to bring it to readily sprayable condition, but this cannot ordinarily be done by the addition of water to neat soap. Of the three phases of soap, neat soap, middle soap and nigre, the only one which is film forming and which will form round drops upon being sprayed is nigre. The drop or rounded form is a valuable property in any spray process product and Lamont, although he sprayed neat soap and hence did not form round drops in * his spray, yet by reason of his later puffing treatment converted the material into gen-'erally rounded particles,. and moreover into particles of substantial size. Soap also is heat sensitive and will burn at temperatures in the neighborhood of 385° F. When sodium silicate is added or mixed in kettle soap, in a crutcher, as is ordinarily done, the neat or kettle soap remains in the “neat” condition although the water content may go as high as 40 per cent without reaching the middle soap phase. If the mix is treated with water there is a production of “middle soap” in the same manner as when water is added to kettle soap. There is no distinction therefore between kettle or “neat soap” in the pure state and with an appropriate amount of silicate of soda added. Both have the same phase characteristics. The spray processing, with which the present patent is concerned in its process aspects, can be divided into two general classes in the prior art, spray cooling (where the sprayed particle becomes' solid during its passage from the spray to the point of collection due to drop in temperature) and spray drying (in which moisture or other solvent is driven off from the sprayed particles leaving them at the final temperature of collection in a solid state for this reason). Neat soap is a substance which recommends itself to spray cooling, because it changes to solid phase at a relatively high temperature. Only one commercial attempt to spray cool neat soap appears of record, and the substance was not particularly desirable because it was in large, jagged fragments, without puffing. Such a substance is not free flowing as it would be if in rounded particles. Such a product is not soluble in the manner of a puffed soap particle. Neat soap when much of the moisture has been driven off burns quite readily. Substances which had formerly been spray dried at high temperatures showed a tendency to glaze. Neat soap particles with a glaze upon them would resist ready solubility. Lamont found that neat soap would puff at high temperatures and not glaze. A common practice in spray drying was to preconcentrate the material, such as milk, before spraying for purposes of economy. Neat soap could not be preconcentrated. Nigre soap cannot be preconcentrated because it will turn into middle soap, which cannot be pumped nor sprayed. ■ As a result of the peculiarities of neat soap, soap makers changed its nature by the addition of harsh chemicals prior to spraying. They added soda ash to the product. The result of adding soda ash in sufficient quantities to neat soap is that it becomes in the hot state a composition of particles of matter floating in a liquid, a condition known as a “slurry.” Slurries can be thinned by water, or if too thin, can be thickened by boiling. Hence spraying of soap-soda ash compositions did not present any conditioning problem preparatory to spraying. A soap-soda ash composition solidifies quickly because the soda ash takes up water rapidly. Hence it is adapted to spray cooling. No heated drying air is required, and the final product will contain the same moisture content as the original slurry, in the usual practice. Such a product is known on the market as washing powder, or by a term “soap powder.” In the instant case it is necessary to distinguish between soap powder and powdered soap, the latter being the terms applied to soap when it is ground up from the solid state. Soap powder or washing powder is a harsh, chemical detergent. Its action is drastic. It acts chemically in attacking dirt, whereas soap acts through suds, and tends to emulsify the dirt. It was soap powder which constituted the commercial laundry soap product, which had been made and sold in large quantities by soap makers. Attempts had been made in the art to spray dry soap, in contradistinction to spray cooling, although this was only experimental. The workers invariably reduced the neat soap to a nigre or soap solution before spraying, and what they made was a very fine powdery and dusty product, of glassy thin-walled particles. This product lumped and balled when stirred into warm water. There had been flaked soap on the market, this being the most widely used form of soap dispensed in packages. There had been powdered soaps on the market, and granular soaps in coarser form, these being solid soap reduced by mechanical grinding. The powdered soaps are dusty and lump and ball badly in warm water. The granular (larger sized chunks) do not possess any puffed quality, and naturally are not rounded in form and are slow to dissolve. Neat soap, the soap phase with which Lamont dealt, is a material which appellants describe as sui generis. It cannot be water thinned, or heat plasticized beyond a certain point. It cannot be sprayed to form true drops. The substance can be spray cooled, but not to form a satisfactory product. The commercial package soaps prior to Lamont had been flaked soap, powdered soap, and granulated soap, all of these beiug made from soap which was first brought to solid form and then granulated. The spray processed soap product which had been commercialized prior to Lamont, was not unadulterated soap, but was a soap-soda ash composition called soap powder or washing powder. Lamont’s Product. It may be fairly said that the Lamont patent deals with finely divided soap products, the material used being soap as distinguished from soap powder or washing soap in which soda ash predominates. Lamont uses molten soap taken from ordinary kettle soap. He claims his soap is more quickly and completely soluble than soap flakes, less fragile, so less likely to break up in the package. His product is distinguishable from granular or shredded soaps or soap powder in that it is less dusty and more soluble. For his product it is claimed that it is more uniform, flows more freely from carton, and does not lump when spread over water. The novel characteristics of his soap are set forth by counsel as follows: “(a) rounded particle shape, not geometric spheres, but characteristically near spherical, potato shaped and reasonably smooth rounded formation * * * as distinguished from fragmentary, sharp cornered or shredded conformation; (b) particle size readily perceptible to the unaided eye, giving in the mass the appearance of independent balls with interstices visible between them.” Qualities (a) and (b) taken together give the product a free-flowing, non-caking, non-lumping, and dust free characteristic which are desirable and novel. There is evidence to support these claims so stoutly asserted by appellants. His process claims call for a structure with a tower. The soap is sprayed, etc., and the product passes out of the bottom. It is not contended that the apparatus is novel, but patentable novelty is asserted for the process by which the soap is treated. We herewith set forth, greatly abbreviated, the substance of the inventor’s own statement as it appears in the specifications. We have however eliminated, because of its great length, his description of the various steps in his process, including temperature statements. “The * * * invention relates to the production of a soap product in reasonably fine state of division, * * * having certain useful novel physical properties and with a process of obtaining and controlling these physical properties in the product. The invention contemplates * * a. * * * soap as ordinarily produced by * * * commercial manufacture * * * which product * * * is * * * distinguished from so-called soap powders or washing powders which contain a predominating proportion of soda ash or similar ingredient. * * * The * * * invention is based on the discovery that a new product * * * can be produced * * * from molten soap of the usual composition and heavy flowing but not particularly viscid consistency ordinarily obtained in the manufacture of soap which is essentially different from products heretofore produced directly from such molten soap. “Soap flakes, chips and the like, are not quickly and completely soluble in water of temperature convenient for washing. When the usual soap flakes are poured into water and stirred * * * they may be seen for some time * * * partly undissolved, and if not stirred until completely dissolved some part * * * collects at the bottom of the dish. * * * Undissolved soap frequently sticks to garments being washed and appears as a spot on the laundered article. Also, in washing machines, a considerable amount of the soap usually passes the washing machine undissolved. The most quickly * * * and most nearly * * * soluble soap flakes are those which are the thinnest, and * * * (such) are quite frail and * * * break up during manufacture, shipment and use so that a considerable amount of dust forms. * * * Soaps in finely divided condition, granulated soaps, shredded soaps, soap powders, and the like are usually dusty and cause discomfort to the user. Such soaps tend to lump in water and remain partly undissolved. * * * (They) * * * cannot be poured * * * out of the package with * * * exactness as to amount. They frequently cake * * * in the carton and to be shaken out at all, require the removal of a substantial piece of the carton. The product of the present invention is uniform in particle size and is quickly and completely soluble; it is free-flowing and does not lump or cake in the carton or in water, and it is not dusty, * * * (which) qualities * * * give it a usefulness not heretofore obtained. * * * A description and definition of the product in terms of these qualities * * * (and) structural and * * * physical properties * * * which give it such qualities, and a * * * definition of the process by which such product is obtained constitute the- subject matter of this.application.' “The drawings * * * illustrate certain of the novel physical properties of the product and show an apparatus in which the process of the present invention can be successfully conducted. * * * “The process of the present invention involves a spray treatment and drying of * * * soap material under certain particular controlled process conditions. * * * The apparatus consists basically of the principal drying or treating chamber 1. The molten soap is delivered into the tower 1 in the form of a spray by means of nozzles 2 locáted at appropriate intervals about the periphery of the upper end of the tower 1, as shown. The soap is delivered to the nozzles 2 through the soap line 3 which communicates with the soap mixing tanks or crutchers 4. The soap is withdrawn from the crutcher 4 by means of a suitable pump 5 and is forced through the heater 6 into line 3 and from thence to nozzles 2. The pump 5 maintains the soap in line 3 and at the nozzles 2 at a pressure appropriate for properly spraying the soap,.as it issues from the nozzles, into uniform and reasonably finely divided condition. The heater 6 is preferably provided with a thermostatic control device 7 which controls admission of heating steam to the heater and thus "regulates the temperature of the soap discharged from the heater to a substantially constant proper value. The line 3 beyond the heater 6 is steam jacketed, and the steam supplied to the line is regulated by an automatic pressure controlling device 8 which functions to maintain the steam at a pressure which is equivalent to the condensation pressure for steam at a temperature equal to that of the soap as it leaves the heater 6. With this arrangement the temperature of the soap leaving the heater remains the same until the soap is delivered into the tower 1 through the nozzles 2, and a uniform temperature of the soap at all of the nozzles 2 is assured. “The heated drying or treating gas is supplied to the tower 1 through duct 9 * * * which enters the top of the tower as shown. Inside of the tower under the discharge end of the duct 9 is located a distributor 10 designed to distribute th’e incoming gas uniformly across the section of the tower and to restrict whirling and eddying of the gas as it enters the tower. The distributor 10 is positioned above the soap nozzles 2 so that at the time the gas comes into contact with the soap particles issuing from the nozzles it is distributed reasonably uniformly across the tower and is proceeding downwardly through the tower in an orderly manner of flow without substantial whirling or eddying. Thus, the particles of the sprayed liquid soap are carried downwardly in orderly positively controlled flow through the tower by the drying gas. The drying gas comes into contact with all of the sprayed particles of soap at substantially the same temperature, and all of the particles are positively propelled through the tower so that every particle is subj ected to a similar treatment by the drying gas for a substantially similar length of time. As here shown, the heated treating gas supplied to the tower 1 through duct 9 consists of products of combustion from the oil burning furnace 11 diluted and reduced to the proper temperature by air admitted to the system through the damper controlled opening 18. Further dampers 19 and 20 are provided for facilitating operation and permitting ready regulation and control of air volumes and air temperatures. The * * * contents of the tower are continuously discharged through the * * * opening * * * at the bottom of the tower. * * * “The individual component rounded particles of the present product are ordinarily hollow unitary bodies. Each particle is a dei ached unit consisting of a shell or wall of the dry soap material solidified into the characteristic rounded particle shape and enclosing within it a single void or hollow space. The unitary hollow particle structure is shown in * * * (the figure). This is in contrast to a spongy material consisting of granules or particles of sponge-like or honeycomb structure. In such products the component particles are usually of irregular fragmentary character and the interior of the particle is a mass of interlacing walls and pores rather than a single void. The thickness of the walls of the particles is controlled by the condi1 ions of the process and may he varied depending upon the characteristic desired in the finished product such as particle size, bulking weight, speed of solubility, etc. The practical limiting minimum thinness of the particle walls is determined by tlie wall strength which is required to prevent the particles from crushing or breaking under the conditions normally encouritered in bulking of the product in bins, handling it through conveyors and filling machines, and shipping it for use. The particles of the present product are made sufficiently stable so that they will withstand such normal handling and shipping conditions without breaking down. This hollow unitary particle structure is important in making the product quickly and completely soluble and at the same time providing a product of substantial particle size which is free from dust, stable, and free-flowing. “Soap products made by spraying molten soap as heretofore proposed are normally of shredded and fragmentary particle form. The novel structure properties of the present product just described are the result of certain particular process conditions. To obtain from the usual molten soap the characteristic rounded particle formation and to produce a product substantially free from excessively 'elongated particles, shreds, and the like, it is necessary that the temperature of the soap as sprayed be controlled within a proper range. * * * “Definite spaces or interstices betwreen the particles are clearly evident, and these spaces appear clean and free from any dust or fine powder. The product illustrated in Figures 2 and 3 (of the patent) is, as stated above, of an average particle size of about 0.75 mm. In this product substantially none of the particles are as large as 2 mm. in diameter; 100% of the product passes through a 10 mesh sieve in which the openings are 2 mm. square. Of this same product 85% to 90% passes a 20 mesh sieve (sieve openings 1 mm. square) while only 15% to 20% of the product passes a 40 mesh sieve (sieve openings 0.5 mm. square). Only about 5% to 8% of the product passes a 60 mesh sieve (sieve openings 0.3 mm. square), and only about 1 to 3% of the product passes a 100 mesh sieve (sieve openings 0.15 mm. square). The fact that no substantial part of the product is of sufficiently small particle size to pass a 100 mesh sieve shows that the product is practically entirely free of objectionable fine material or dust.” It is but fair at this point to set forth appellee’s defenses and its position in general. It disputes and challenges many facts asserted by appellants in their historical statement; denies that it followed the teachings of Lamont; asserts itself to he the pioneer and always a leader in the art; insists that Lamont was but a novice who played with soap making for a few days and never learned more about the science and art of laundry soap making than a sciolist. We are required to pass on fact issues and scientific disputes involving matters wherein the parties are hopelessly in disagreement. Appellee also denies that it followed Lamont hut it claims its product and process are its own and the result of changes following experiment and that its soap and the process by which it is made is covered by its own patents Nos. 1,779,516 and 1,779,-517, dated Oct. 28, 1930. The District Court found for appellee and made findings which adopt the contentions of appellee, on both validity and non-infringement. They are complete. Our failure to accept certain conclusions therein appearing is due to the fact that the evidence (physical exhibits) upon which they are based is all before us. Below is set forth the substance of such findings, slightly abbreviated. The findings although somewhat long are helpful in stating and narrowing the issues. The Issues. The issues in controversy-are more numerous than in the usual patent suit. The appellee asserts the patent is invalid for want of invention, and the determination of the force and validity of this contention necessitates a separate consideration of the product and the process claims. Appellee also challenges invention on the ground that Lamont was not the first inventor; in fact he was not the first or even a subsequent inventor. On this issue, purely one of fact, there is sharp controversy and each side is supported by persuasive argument. No finding of fact on this issue was made by the District Court. On the issue of infringement appellee contends that its soap does not respond to the product claims of the patent. It asserts that the soap particles are radically different in shape and uniformity as well as in other respects. It also insists (a) that its method of making soap differs from the steps described in the process claims; and (b) the methods followed in making its soap were but improvements of the process and steps by it followed in making its laundry soap for years prior to Lamont’s entry into the industry. The logical disposition of the determinative questions calls first for a consideration and disposition of appellee’s challenge of Lamont’s inventorship. The precise question which is here raised may be stated thus: Was it not Holliday rather than Lamont who made the discovery, etc. set forth in the Lamont patent? Both these gentlemen, Holliday and Lamont, were employed by the same company, the Industrial Waste Product Corporation (otherwise known as Industrial Spray Drying Co.), which was engaged in rendering laboratory services to industries of various kinds. Among its employees were three men of more than ordinary technical knowledge. They were Paul D. Zinzinia, Robert L. Holliday, and Dallas R. Lamont. Holliday had chemistry and engineering' training. Lamont had engineering training and acted as patent solicitor, being licensed to practice in the United States Patent Office. Both gentlemen were under agreement to transfer their discoveries and inventions and patent applications to their employer. Undoubtedly Holliday was the first to make experiments with soap. Industrial Waste Products Corporation was embarrassed financially and most anxious to hit upon a product and to make a discovery which would enlarge its activities and balance its budget. Industrial Waste Products Corporation had in other fields engaged in what is known as spray drying. Securing a kettle of soap from the manufacturer, Holliday began his experiments, working with kettle soap which in the raw material form was 30% water. Holliday applied heat before spraying the product..The results of his various experiments were written up in the form-of a report. Qther experiments were undertaken and other steps followed and additional reports were recorded. As a result of Holliday’s experimental work it was decided by him or his employer that he should apply for a patent. Lamont acted as his solicitor. Patent No. 1,621,506 covering “The manufacture of a finely divided dry soap product” was issued upon Holliday’s application which bore date of April 19, 1926. It was issued March 22, 1927. It is apparent that Mr. Holliday subsequently believed that he had secured too broad a patent and he filed a disclaimer. Thereafter Holliday left the employ and Lamont continued to make experiments in the soap field. As a result of what he learned from Holliday or from his own experiments, or both, the application for the patent in suit was by him filed, and very shortly thereafter the patent here in question was issued and by him assigned to his employer. Neither Holliday nor Lamont is financially interested in the outcome of this suit. The controversy between Lamont and Holliday is sharp and unyielding. The burden of proof looms large as the determining factor of this issue. This burden rests upon Holliday. The presumptions favor Lamont. Holliday made a written statement of his discoveries in 1927. He at that time applied for a patent and, under oath, he set forth his discoveries. Tested by the action of other inventors acting under similar circumstances and seeking patents to protect their discoveries, it is fair to assume that the full strength of the discovery would be set forth by the applicant. Why not? What he did not claim, he waived — he lost. If he claimed more than what he could prove himself to be the first to have discovered, the Patent Office would reject the excess as non-patentahle. Experience has demonstrated that the usual discoverer asserts more rather than less than he is entitled to. This is partly due to the fact that he does not know what others have invented or discovered. In the instant case therefore, we must assume that Holliday set forth all his discoveries when he applied for his patent. Most significant therefore is the absence of a disclosure of the discovery which Lamont later asserted to be his. However, this is not all. After the patent was issued to Holliday and he had read it and meditated over it, he concluded there was a mistake in the statement of his discoveries. He sought to correct the mistake appearing in specifications and claims. Here again Holliday had the opportunity to make claim to the discovery covered by Lamont’s patent, if omission existed in his original claims and specifications. Instead we find that Holliday corrects the original application by stating that he had been granted too broad a patent. In other words, his discovery had been too broadly stated, and he therefore sought to limit and restrict the patent previously issued to him by filing a disclaimer. In the face of such a record it is hard to find that Holliday erred when he sought to narrow the statement of his discovery when he might have broadened it so as to include as his, something he did not suggest when he filed his original application, nor claim when he filed his corrected and amended application. On the other hand, there was persuasive evidence produced at the trial which supported appellee’s argument. It seems that Holliday wrote a report of each of his experiments, when working for Industrial Spray Dryer Company. Likewise, the product which resulted from his experiments was placed in a tin can and marked by the report number. Sometime after the patent was issued and after the Industrial Spray Dryer Company had transferred the patent to Colgate-Palmolive, a receiver was appointed for the former company. Its assets were sold. Various cans containing the products which resulted from numerous experiments were considered valueless. Some of them had been transferred to a warehouse where they were left neglected for many years. At the time of the trial one of these cans bearing the Idolliday experiment number was produced in court to prove that the soap therein found responded fully to the claims of the Lamont patent. In other words, appellee offered the product found in this can as soap such as is described in Lamont’s patent. It was offered as the product of the Holliday test. It would serve no useful purpose to set forth in detail all the evidence Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_fedlaw	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. BUNGE CORPORATION, Plaintiff-Appellant, v. The LONDON AND OVERSEAS INSURANCE CO. et al., Defendants-Appellees. The LONDON AND OVERSEAS INSURANCE CO. et al., Third-Party Plaintiffs-Appellants, v. Brooks BANKER, as Treasurer of American Express Company, Third-Party Defendant-Appellee. No. 354, Docket 32015. United States Court of Appeals Second Circuit. Argued March 19, 1968. Decided May 6, 1968. See also D.C., 267 F.Supp. 406. Philip C. Scott, New York City (Marc J. Luxemburg, Robert J. Paulus, and Dewey, Ballantine, Bushby, Palmer & Wood, New York City, on the brief), for Plaintiff-Appellant. William Warner, New York City (William Garth Symmers, Frederick Fish, and Symmers, Fish & Warner, New York City, on the brief), for Defendants-Appellees and Third-Party Plaintiffs-Appellants. Peter H. Kaminer, New York City (Edwin J. Wesely, George I. Gordon, and Winthrop, Stimson, Putnam & Roberts, New York City, on the brief), for Third-Party Defendant-Appellee. Before FRIENDLY and HAYS, Circuit Judges, and CLARIE, District Judge. Of the District Court for the District of Connecticut, sitting by designation. HAYS, Circuit Judge: Bunge Corporation was one of the holders of warehouse receipts on vegetable oil stored in the tanks of a warehousing subsidiary of the American Express Company. In late 1963 it was discovered that a massive fraud had been perpetrated by one Tino De An-gelis, president of a vegetable oil concern, and that there was little or no oil in the tanks. Bunge brought suit on a contract of insurance against the issuing underwriters (hereinafter referred to collectively as “Lloyd’s”) to recover its losses. Jurisdiction is based on diversity of citizenship. Lloyd’s denied liability under the contract but served a third-party complaint on the American Express Company. Thereafter, Bunge entered into a settlement with American Express and gave it a general release. American Express then moved for summary judgment dismissing the third-party complaint. The court below granted the motion on the ground that the release given American Express by Bunge was binding on Lloyd’s. However, in response to an oral motion by counsel for Lloyd’s, the court also granted summary judgment dismissing the complaint in the main action, the action of Bunge against Lloyd’s. The court ruled that Bunge’s release of American Express had the effect of relieving Lloyd’s of any obligation to Bunge under the insurance contract. We affirm as to dismissal of the third-party complaint, but reverse as to dismissal of Bunge’s action against Lloyd’s. I. An insurer who has not paid its insured’s claim has no right in claims which the insured has against third parties. See, e. g., Meredith v. The Ionian Trader, 279 F.2d 471, 474 (2d Cir., 1960); Glens Falls Ins. Co. v. Wood, 8 N.Y.2d 409, 412, 208 N.Y.S.2d 978, 979-980, 171 N.E.2d 321, (1960); American Surety Co. v. Palmer, 240 N.Y. 63, 67, 147 N.E. 359 (1925). Since Bunge has executed a release, its rights against American Express are extinguished; thus, even if Lloyd’s were now to pay Bunge in full, it would succeed to no rights against American Express. It follows that the third-party complaint was properly dismissed. Lloyds’ contention that our decision in St. Paul Fire & Marine Ins. Co. v. United States Lines Co., 258 F.2d 374 (2d Cir. 1958), cert. denied, 359 U.S. 910, 79 S.Ct. 587, 3 L.Ed.2d 574 (1959), requires a contrary result is without merit. The court there found that the purposes of Rule 14(a) of the Federal Rules of Civil Procedure — avoidance of a multiplicity of suits and inconsistent adjudications — would be furthered by interpreting the Rule to permit an insurance company which had not made payment to implead a third party. The court did not purport to change the law of subrogation as to the rights of nonpaying insurers against such third parties. II. It is well settled that, at least after a denial of liability by an insurer, the insured may enter into a settlement with a third party without prejudicing its rights against the insurer. See, e. g., Vanguard Ins. Co. v. Polchlopek, 18 N.Y.2d 376, 382, 275 N.Y.S.2d 515, 520, 222 N.E.2d 383 (1966); Cardinal v. State, 304 N.Y. 400, 410-411, 107 N.E.2d 569 (1952), cert. denied as not timely applied for, 345 U.S. 918, 73 S.Ct. 729, 97 L.Ed. 1351 (1953); In re People ex rel. Emmet (Empire State Surety Co.), 214 N.Y. 553, 563-564, 108 N.E. 825 (1915). To require that the insured first fully litigate its dispute with the insurer before pursuing the third party would be manifestly unfair. The possibility of prompt reimbursement would be lost. Moreover, because of the financial condition of the third party or the size of other claims pending against it, it might be essential that redress against the third party be promptly pursued lest nothing remain to satisfy insured’s claim. On the other hand, the self-interest on the insured affords considerable protection to the insurer under the present rule. Recognizing the possibility that his suit against the insurance company may fail, the insured will attempt to recoup as much of his losses as possible from the third party. If the insurer is ultimately held liable, the amount so recovered will inure to its benefit. Of course, it remains open to Lloyd’s to challenge the settlement on the ground that it was entered into in bad faith; certainly an insured cannot claim as losses such amounts as it could have recouped in a good faith settlement. The judgment is reversed as to dismissal of Bunge’s complaint against Lloyd’s and affirmed as to dismissal of the third-party complaint. . Popularly known as the “salad oil swindle.” Question: Did the interpretation of federal statute by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_method	I	What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc. SIMON v. CITY CAB CO., Inc. No. 6265. United States Court of Appeals for the District of Columbia. Argued Jan. 8, 1935. Decided May 13, 1935. Rehearing Denied June 11', 1935. HITZ, J., dissenting. Louis Ottenberg, George D. Horning, Jr., and H. M. Ammerman, all of Washington, D. C., for appellant. Alwin L. Newmyer and David G. 'Bress, both of Washington, D. C., for appellee. Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices. VAN ORSDEL, Associate Justice. This action was brought in the Supreme Court of the District of Columbia by appellant, plaintiff below, against defendant, City Cab Company, for damages sustained by the plaintiff through the alleged negligence of the driver of one of the defendants cabs. At the conclusion of all the evidence the court, on motion of defendant, directed the jury to return a verdict in its favor. From the judgment, this appeal was taken. It appears that one James Hall Semmes, Sr., had been employed by the defendant company in June, 1932, to operate the taxicab in question. He paid defendant $3.25 daily, whether he did any business or not. He was entitled to retain all he earned above that amount. He was permitted to keep the cab at his place of residence in Tacoma Park, Md., but was required to report to defendant each day. When he returned home in the evening, it was his custom to leave the cab standing in the driveway beside his house, and to leave the keys in the switch of the car. His son, James Hall Semmes, Jr., a licensed hacker, occasionally drove the cab at night, sometimes with and sometimes without his father’s permission. The son was driving the car on the night of the accident, having taken it without his father’s permission, and, after discharging a passenger, was returning home about half past two on the morning of October 4, 1932, when the accident occurred. Plaintiff belonged to one of the fire companies, and was' in attendance at a fire on Tenth street in this city. He was engaged in replacing the hose in a fire truck when Semmes, Jr., driving the taxicab, ran into him, crushing his leg between the taxicab and the hose wagon, so severely injuring his leg as to require its amputation. On the issue of negligence, there is ample evidence to take the case to the jury, but the court directed a verdict on the ground that Semmes, Jr., was not the agent of the defendant for the operation of the taxicab, and that the company was therefore not liable. This raises the single question necessary for the determination of this case. The uncontradicted evidence discloses that Semmes, Sr., under his contract with the defendant to operate the taxicab, was without authority to permit any one else to use or operate the cab for any purpose whatever. We think, therefore, that whether or not he permitted his son to drive the cab on the night of the accident is immaterial. In neither event ’could Semmes, Sr., to this extent extend the scope of his agency without the consent of his principal. This elementary rule of agency we think is decisive of this case. It was not within the power of Semmes, Sr., to permit any one else to use the cab, either in the course of the company’s business or otherwise, without the consent of the company; and if Semmes, Jr., on the night in question was using the cab without the permission of his father, the situation is not different from a case where a car has been stolen and an accident occurs when it is operated by the thief. Under no circumstances in such a case could the owner of the car be held liable. Counsel for plaintiff invoke the rule of law that where the plaintiff is injured by a taxicab hearing the name of the owner, the presumption arises that the vehicle is in the custody and on the business of the defendant, and that the driver is its agent and acting within the scope of his employment. This presumption, if standing alone, is sufficient to establish a prima facie case, and if uncontradicted, to carry the case to the jury. In Callas v. Independent Taxi Owners’ Association, 62 App. D. C. 212, 66 F.(2d) 192, 194, the taxicab bore the peculiar colors and trade-name of the defendant company, and it was held that this was sufficient to raise the presumption that it was “in the custody and on the business of the person whose name it bore.” The president of the company testified that it did not own a cab and intimated that it was not in the cab business, and there was no evidence to show that the operator of the cab was or was not a member, servant, or agent of the company. It was there held that these facts were not .sufficient to overcome the presumption to the extent of authorizing the court to take the case from the jury. On this point the court said: “Whether the effect of this presumption was overcome by the testimony of the president of the company that it did not own a cab, and his intimations that it was not in the cab business was a question of fact for the jury, and consequently its decision as a question of law by the court was error.” The court, in ■ support of this holding, quoted with approval from Holzheimer et ux. v. Lit Brothers, 262 Pa. 150, 152, 105 A. 73, as follows: “So far as the liability of the defendant was concerned, the plaintiffs’ case rested wholly upon a presumption. There was no direct evidence as to who was the owner of the truck that inflicted the injury, nor as to who was in charge of it when the collision occurred. There was evidence, however, that the truck bore the name of the defendant company. This was sufficient to establish, not only a prima facies that the defendants were the owners of the truck, but also that it was then in charge of their servant or employee. This was presumptive evidence, and, as has frequently been ruled, was quite sufficient to carry the case to the jury.” The instant case, however, can be clearly differentiated from the Callas Case. The facts in the present case are all disclosed, leaving no room for reliance upon a presumption. Whatever presumption arose was overcome by uncontradicted proof. Where that situation clearly arises, a motion for a directed verdict should be granted. If, however, the evidence is contradictory, or reasonably subject to contradictory interpretations, as was held in the Callas Case, the question of liability then is one for the jury. In the instant case, defendant admits the ownership of the taxicab, admits the employment and agency of Semmes, Sr., and proved conclusively, at the time of the accident, the car was in the possession of Semmes, Jr., a total stranger to defendant, who possessed no authority, express or implied, to operate the car for the defendant or to use it in carrying on its business; and whose prior and instant use of the cab was without its knowledge or consent. Indeed, these facts stand uncontradicted, and to submit the issue to the jury of whether or not they are sufficient to overcome the presumption establishing a prima facie case, would be to submit the rights of the defendant to the speculation and sympathy of the jury. It is difficult to conceive of a case where the owner of an automobile, used privately, for business purposes, or publicly as a taxicab, could be held liable for an accident caused by the car while operated by a person unknown to the owner and without his express or implied permission. Clear it is, that the agent of the owner, in whatever capacity he is charged with the use or operation of the car, cannot without the knowledge or consent of the owner transmit his agency to a person unknown to the owner, and thereby impose liability on the owner for the reckless or negligent operation of the car. Nor does it follow that the owner is always liable for’an accident occurring through the negligent operation of his car by his servant, agent, or employee. In Peabody v. Marlboro Implement Company, 63 App. D. C. 288, 72 F.(2d) 81, 82 (certiorari denied by the Supreme Court, 293 U. S. 601, 55 S. Ct. 117, 118, 79 L. Ed. -), defendant company admitted the ownership of the automobile but denied that the operator thereof, at the time of the accident, was operating it as the agent or employee of the defendant. The testimony disclosed that the driver of the car was in the general employ of defendant company, and was in custody and control of the car and permitted to use it in the business of the company, and when it was not in such use to keep it in his own garage. The uncontradicted testimony showed that at the time of the accident the agent was using the car on a personal mission, not directly or indirectly connected with the company’s business, or with its knowledge or consent. The court, speaking through Mr. Chief Justice Martin, distinguishing the Callas Case, and, holding that the verdict had been directed properly for the defendant, said: “It is true that in Callas v. Independent Taxi Owners’ Association, 62 App. D. C. 212, 66 F.(2d) 192, we held that a car operated as a taxicab at the time of an accident, bearing the peculiar colors and trade name of the defendant company, was legally presumed to be in the custody and on the business of the company whose name it bore. But in Curry v. Stevenson, 58 App. D. C. 162, 26 F.(2d) 534, we held that where the prima facie inference of possession of the automobile at the time of the accident, arising from the fact of ownership, is overcome by uncontradicted proof that in fact the automobile was not in possession of the owner or his servant or agent, the question is one for the court, and not for the jury. We think that this rule is equally applicable where the issue relates to the liability of an owner for the alleged negligence of an agent in the operation of a car.” Special stress is placed by counsel for plaintiff on the case of Schweinhaut v. Flaherty, 60 App. D. C. 151, 49 F.(2d) 533, 535. In that case the agent of the taxicab company in whose hands the taxicab had been placed for the purpose of soliciting and obtaining fares and transporting passengers departed from the purpose for which he was employed to take a woman friend to her place of residence free of charge. While thus engaged, he collided with a pedestrian, and the injury complained of was sustained. It was therefore contended that the company was not responsible for the reason that its servant or agent was not engaged in the regular course of the company’s business at the time the accident occurred. We held the company liable, but in so doing we approached so close to the line that the rule of liability announced in this case will admit of little if any extension. In that case the court, speaking through Mr. Justice Groner, clearly stated the rule of liability in taxicab cases, as follows: “In these circumstances, it seems to us the duty of the courts to indulge no subtle reasoning in extending the doctrine of nonliability to the owner of such an instrumentality who, in his search of gain and profit, places one of these in irresponsible hands, but rather to require of him such supervision of his servant as will avoid disobedience to and disregard of his rules, or, failing so to do, when injury occurs to a stranger, to shoulder the responsibility. Hence we are of opinion that whatever may be the rule in the case of a private chauffeur who, in violation of his master’s orders, takes his private automobile and uses it without the master’s knowledge and for the servant’s purposes alone, or, in the case of one intrusted for the moment by its owner with an automobile for a specific purpose who, in disregard of that. purpose, uses it for another, the rule in the case of one who, as a carrier of passengers for hire, places an automobile in the hands of a servant for the purpose of soliciting and obtaining 'fares and transporting them from one part of the city to another, and who, in such circumstances, admittedly would be liable to a pedestrian negligently injured by the servant, should reasonably be held to include liability for an injury inflicted by the negligence of the servant where that servant, in violation of the master’s rules, is, as was here the case, transporting free a friend to her home nearby. There is, we think, nothing novel in such a rule.” That case, however, is easily distinguished from the one at bar for the reason that the agent of the company was in charge of the cab and driving it at the time the accident occurred. Here, when the accident occurred, the cab was being driven by a total stranger — one with whom the company had no express or implied contractual relation. His possession of the automobile was not such as in any manner to attach liability to defendant. The judgment is affirmed, with costs. Question: What is the nature of the proceeding in the court of appeals for this case? A. decided by panel for first time (no indication of re-hearing or remand) B. decided by panel after re-hearing (second time this case has been heard by this same panel) C. decided by panel after remand from Supreme Court D. decided by court en banc, after single panel decision E. decided by court en banc, after multiple panel decisions F. decided by court en banc, no prior panel decisions G. decided by panel after remand to lower court H. other I. not ascertained Answer:
sc_lcdisposition	C	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. CITY OF WEST COVINA v. PERKINS et al. No. 97-1230. Argued November 3,1998 Decided January 13, 1999 David D. Lawrence argued the cause for petitioner. With him on the briefs was Cindy S. Lee. Jeffrey S. Sutton, State Solicitor of Ohio, argued the cause for the State of Ohio et al. as amici curiae urging reversal. With him on the brief were Betty D. Montgomery, Attorney General of Ohio, Elise W. Porter and Jeffrey B. Hartranft, Assistant Attorneys General, and the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Grant Woods of Arizona, Winston Bryant of Arkansas, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Gus F. Diaz of Guam, Margery S. Bronster of Hawaii, Jeffrey A. Modisett of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Peter Verniero of New Jersey, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Charles M. Condon of South Carolina, Mark W. Barnett of South Dakota, Jan Graham of Utah, Mark L. Earley of Virginia, and Christine 0. Gregoire of Washington. Patrick S. Smith argued the cause and filed a brief for respondents. Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Waxman, Deputy Solicitor General Dreeben, and Irving L. Gornstem; for 62 named California Cities, Counties and Towns by Julia Hayward Biggs and Rufus C. Young, Jr.; and for the National League of Cities et al. by Richard Ruda and Clifford M. Sloan. Justice Kennedy delivered the opinion of the Court. We granted certiorari, 523 U. S. 1105 (1998), to consider in this case whether the Constitution requires a State or its local entities to give detailed and specific instructions or advice to owners who seek return of property lawfully seized but no longer needed for police investigation or criminal prosecution. Interpreting the Due Process Clause of the Fourteenth Amendment, the Court of Appeals for the Ninth Circuit imposed a series of specific notice requirements on the city responsible for the seizure. We conclude these requirements are not mandated by the Due Process Clause, and we reverse. I The case began when police officers of petitioner, the city of West Covina, California (City), acting in accordance with law and pursuant to a valid search warrant, seized personal property. The property belonged to the owner of the searched home, respondent Lawrence Perkins, and to his family. The suspect in the crime was neither Perkins nor anyone in his family, but one Marcus Marsh. Marsh had been a boarder in the Perkins’ home. After leaving their home, and unknown to them, he became the subject of a homicide investigation. During the search of respondents’ home for evidence incriminating Marsh, the police seized a number of items, including photos of Marsh, an address book, a 12-gauge shotgun, a starter pistol, ammunition, and $2,629 in cash. 113 F. 3d 1004, 1006 (CA9 1997). At the conclusion of the search, the officers left respondents a form entitled “Search Warrant: Notice of Service,” which stated: “TO WHOM IT MAY CONCERN: “1. THESE PREMISES HAVE BEEN SEARCHED BY PEACE OFFICERS OF THE (name of searching agency) West Covina Police DEPARTMENT PURSUANT TO A SEARCH WARRANT ISSUED ON (date) 5-20-93. BY THE HONORABLE (name of magistrate) Dan Oki. JUDGE OP THE SUPERIOR/MUNICIPAL COURT, Citrus JUDICIAL DISTRICT. “2. THE SEARCH WAS CONDUCTED ON (date) 5-21-93. A LIST OP THE PROPERTY SEIZED PURSUANT TO THE SEARCH WARRANT IS ATTACHED. “3. IF YOU WISH FURTHER INFORMATION, YOU MAY CONTACT: (name of investigator) Pet. Ferrari or Pet Melnuk AT [telephone number]. “LT. SCHIMANSKI [telephone number].” App. 76-77 (italicized characters represent those portions of the original document which were handwritten on the form). In accordance with the notice, the officers also left respondents an itemized list of the property seized. 113 F. 3d, at 1011-1012. The officers did not leave the search warrant number because the warrant was under seal to avoid compromising the ongoing investigation. Id., at 1007. In a public index maintained by the court clerk, however, the issuance of the warrant was recorded by the address of the home searched and the search warrant number. Ibid. Not long after the search, Perkins called Ferrari, one of the detectives listed on the notice, and inquired about return of the seized property. No. CV 93-7084 SVW (CD Cal., July 8, 1996), App. to Pet. for Cert. E3. One of the detectives told Perkins he needed to obtain a court order authorizing the property’s return. Ibid. About a month after the search, Perkins went to the Citrus Municipal Court to see Judge Oki, who had issued the warrant. He learned Judge Oki was on vacation. Ibid. He tried to have another judge release his property but was told the court had nothing under Perkins’ name. Ibid. Rather than continuing to pursue a court order releasing the property by filing a written motion with the court, making other inquiries, or returning to the courthouse at some later date, ibid., respondents filed suit in United States District Court against the City and the officers who conducted the search. They alleged the officers had violated their Fourth Amendment rights by conducting a search without probable cause and exceeding the scope of the warrant. App. 7-9. They further alleged that the City had a policy of permitting unlawful searches. Id., at 10. The District Court granted summary judgment for the City and its officers. App. to Pet. for Cert. Bl-Bll. The court, however, invited supplemental briefing on an issue respondents had not raised: whether available remedies for the return of seized property were adequate to satisfy due process. Id., at B7. The parties submitted briefs on the issue, but the court did not rule on it. Respondents appealed the District Court’s holding on their Fourth Amendment claims, but the Court of Appeals remanded the case to the District Court for resolution of the due process question. No. 94-56365 (CA9, Apr. 30, 1996), App. to Pet. for Cert. D1-D3. The District Court held on remand that the remedies provided by California law for return of the seized property satisfied due process, and it granted summary judgment for the City. No. CV 93-7084 SVW, supra, App. to Pet. for Cert. E2. In particular, the court rejected respondents’ claim that the procedure for return of their property was unavailable to them because the City did not give them adequate notice of the remedy and the information needed to invoke it. Id., at E6. On appeal, the Court of Appeals reversed the grant of summary judgment for the City. 113 F. 3d, at 1006. As an initial matter, the court noted that, under Fuentes v. Shevin, 407 U. S. 67 (1972), respondents were entitled only to an adequate postdeprivation remedy, and not to a predeprivation hearing prior to the seizure. 113 F. 3d, at 1010. The Court of Appeals also agreed with the District Court that the post-deprivation remedies for return of property established by California statute and ease law satisfied the requirements of due process. Id., at 1011. Nevertheless, the court held, by analogy to this Court’s decision in Memphis Light, Gas & Water Div. v. Craft, 436 U. S. 1 (1978), that the City was required to give respondents notice of the state procedures for return of seized property and the information necessary to invoke those procedures (including the search warrant number or a method for obtaining the number). 113 F. 3d, at 1012. While acknowledging that it was not the court’s place “to specify the exact phrasing of an adequate notice,” the court proceeded to explicate, in some detail, the content of the required notice: “In eases where property is taken under California law . . . the notice should include the following: as on the present notice, the fact of the search, its date, and the searching agency; the date of the warrant, the issuing judge, and the court in which he or she serves; and the persons to be contacted for further information. In addition, the notice must inform the recipient of the procedure for contesting the seizure or retention of the property taken, along with any additional information required for initiating that procedure in the appropriate court. In circumstances such as those presented by this record, the notice must include the search warrant number or, if it is not available or the record is sealed, the means of identifying the court file. It also must explain the need for a written motion or request to the court stating why the property should be returned.” Id., at 1013. This expansive requirement lacks support in our case law and mandates notice not now prescribed by the Federal Government or by any one of the 50 States. At this stage, no one contests the right of the State to have seized the property in the first instance or its ultimate obligation to return it. So rules restricting the substantive power of the State to take property are not implicated by this case. What is at issue is the obligation of the State to provide fair procedures to ensure return of the property when the State no longer has a lawful right to retain it. Respondents acknowledge, as they must, that the City notified them of the initial seizure and gave them an inventory of the property taken. Accordingly, we need not decide how detailed the notice of the seizure must be or when the notice must be given. They also raise no independent challenge to the Court of Appeals’ conclusion that California law provides adequate remedies for return of their property, including a motion under Cal. Penal Code Ann. § 1536 (West 1982) or a motion under § 1540. See 113 E 3d, at 1011. Rather, they contend the City deprived them of due process by failing to provide them notice of their remedies and the factual information necessary to invoke the remedies under California law. When the police seize property for a criminal investigation, however, due process does not require them to provide the owner with notice of state-law remedies. A primary purpose of the notice required by the Due Process Clause is to ensure that the opportunity for a hearing is meaningful. See Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 314 (1950) (“Th[e] right to be heard has little reality or worth unless one is informed that the matter [affecting one’s property rights] is pending and can choose for himself whether to appear or default, acquiesce or contest”). It follows that when law enforcement agents seize property pursuant to warrant, due process requires them to take reasonable steps to give notice that the property has been taken so the owner can pursue available remedies for its return. Cf. Schroeder v. City of New York, 371 U. S. 208, 214 (1962) (requiring a city to provide adequate notice of the deprivation — the city’s condemnation of certain water rights — which created the property owner’s right to pursue damages claims and triggered the statute of limitations on those claims). Individualized notice that the officers have taken the property is necessary in a case such as the one before us because the property owner would have no other reasonable means of ascertaining who was responsible for his loss. No similar rationale justifies requiring individualized notice of state-law remedies which, like those at issue here, are established by published, generally available state statutes and case law. Once the property owner is informed that his property has been seized, he can turn to these public sources to learn about the remedial procedures available to him. The City need not take other steps to inform him of his options. Cf. Reetz v. Michigan, 188 U. S. 505, 509 (1903) (holding that a statute fixing the time and place of meetings of a medical licensing board provided license applicants adequate notice of the procedure for obtaining a hearing on their applications because: “When a statute fixes the time and place of meeting of any board or tribunal, no special notice to parties interested is required. The statute is itself sufficient notice”); Atkins v. Parker, 472 U. S. 115, 131 (1985) (noting that “[tjhe entire structure of our democratic government rests on the premise that the individual citizen is capable of informing himself about the particular policies that affect his destiny”). In prior eases in which we have held that post-deprivation state-law remedies were sufficient to satisfy the demands of due process and the laws were public and available, we have not concluded that the State must provide further information about those procedures. See, e. g., Hudson v. Palmer, 468 U. S. 517 (1984). Memphis Light, the ease on which the Court of Appeals relied, is not to the contrary. In Memphis Light, the Court held that a public utility must make available to its customers the opportunity to discuss a billing dispute with a utility employee who has authority to resolve the matter before terminating utility service for nonpayment. 436 U. S., at 16-17. The Court also held that due process required the utility to inform the customer not only of the planned termination, but also of the availability and general contours of the internal administrative procedure for resolving the accounting dispute. Id., at 13-15. In requiring notice of the administrative procedures, however, we relied not on any general principle that the government must provide notice of the procedures for protecting one’s property interests but on the fact that the administrative procedures at issue were not described in any publicly available document. A customer who was informed that the utility planned to terminate his service could not reasonably be expected to educate himself about the procedures available to protect his interests: “[T]here is no indication in the record that a written account of [the utility’s dispute resolution] procedure was accessible to customers who had complaints about their bills. [The plaintiff’s] ease reveals that the opportunity to invoke that procedure, if it existed at all, depended on the vagaries of ‘word of mouth referral.’” Id., at 14, n. 14. While Memphis Light demonstrates that notice of the procedures for protecting one’s property interests may be required when those procedures are arcane and are not set forth in documents accessible to the public, it does not support a general rule that notice of remedies and procedures is required. The Court of Appeals’ far-reaching notice requirement not only lacks support in our precedent but also conflicts with the well-established practice of the States and the Federal Government. The notice required by the Court of Appeals far exceeds that which the States and the Federal Government have traditionally required their law enforcement agencies to provide. Indeed, neither the Federal Government nor any State requires officers to provide individualized notice of the procedures for seeking return of seized property. See Appendix, infra, p. 244. Federal Rule of Criminal Procedure 41(d), for example, requires federal agents seizing property pursuant to a warrant to “give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or [to] leave the copy and receipt at the place from which the property was taken.” The Rule makes no provision for notifying property owners of the procedures for seeking return of their property. The Court of Appeals’ analysis would render the notice required by this Federal Rule — and by every analogous state statute — inadequate as a constitutional matter. In the shadow of this unwavering state and federal tradition, the Court of Appeals’ holding is all the more untenable; to sustain it, we would be required to find that due process requires notice that not one State or the Federal Government has seen fit to require, in the context of law enforcement practices that have existed for centuries. Respondents urge that if we cannot uphold the Court of Appeals’ broad notice requirement, we should, at least, affirm the Court of Appeals’ judgment on the narrower ground that the notice provided respondents was inadequate because it did not provide them with the factual information — specifically, the search warrant number — they needed to invoke their judicial remedies. The District Court, however, made an explicit factual finding that respondents failed to establish that they needed the search warrant number to file a eourt motion seeking return of their property: “Perkins argues that this [court] procedure was not available to him because he did not know the number of the warrant pursuant to which his property was seized. Unfortunately for Perkins, there is no evidence either way about whether one must have the warrant number in order to obtain a court order releasing seized property. Defendants assert that it is not necessary, that as long as the claimant can sufficiently identify the property he seeks (i. e., by providing the date of the warrant, the name of the seizing agency and officer, and the identity of the issuing court and judge, all of which information was in Perkins’ possession), the court will release it. Plaintiffs want the Court simply to assume that if Perkins had filed a request with the court, it would have been denied because he did not have the warrant number. But there is no evidence to support that speculation.” No. CV 93-7084 SVW, App. to Pet. for Cert. E6. This finding undermines the factual predicate for respondents’ alternative argument, and we need not discuss it further. 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. APPENDIX TO OPINION OP THE COURT Federal and State Laws Governing Execution of Search Warrants and Procedures for Return of Seized Property Fed. Rule Crim. Proc. 41(d); Ala. Code §15-5-11 (1995); Ala. Rule Crim. Proc. 3.11 (1996); Alaska Stat. Ann. § 12.35.025 (1996); Alaska Rule Crim. Proc. 37 (1998); Ariz. Rev. Stat. Ann. §§13-3919 to 13-3922 (1989); Ark. Rule Crim. Proc. 13.3 (1998); Cal. Penal Code Ann. §1535 (West 1982); Colo. Rev. Stat. § 16-3-305 (1997); Colo. Rule Crim. Proc. 41 (1997); Conn. Gen. Stat. Ann. §§54-33e, 54-36f (West Supp. 1998); Del. Ct. Common Pleas Rule Crim. Proc. 41 (1997); Del. Super. Ct. Rule Crim. Proc. 41 (1997); D. C. Code Ann. § 23-524 (1996); D. C. Super. Ct. Rule Crim. Proc. 41 (1998); Fla. Stat. Ann. §933.11 (West Supp. 1998); Ga. Code Ann. §§ 17-5-25,17-5-29 (1990); Haw. Rule Penal Proc. 41 (1997); Idaho Code §§19-4413, 19-4415, 19-4416 (1997); Idaho Rule Crim. Proc. 41 (1998); Ill. Comp. Stat. Aim., eh. 725, §§5/108-6, 5/108-10 (West 1992); Ind. Code Aim. §§35-33-5-2 to 35-33-5-7 (West 1998); Iowa Code Ann. §808.8 (West 1994); Kan. Stat. Ann. §§22-2506, 22-2512 (1988 and Supp. 1997); Ky. Rule Crim. Proe. 13.10 (1993); La. Code Crim. Proe. Ann., Art. 166 (West 1991); Me. Rule Crim. Proc. 41 (1998); Md. Rule Crim. Proc. 4-601 (1997); Mass. Ann. Laws, ch. 276, §§ 1 to 4 (Law Co-op. 1992 ed. and Supp. 1998); Mich. Comp. Laws Ann. §780.655 (West 1998); Minn. Stat. Ann. §§626.16, 626.17 (West Supp. 1998); Miss. Code Ann. § 41-29-157(a)(3) (1981), §99-27-15 (1994); Mo. Ann. Stat. §542.291 (Vernon Supp. 1998); Mont. Code Ann. §§46-5-227, 46-5-301 (1997); Neb. Rev. Stat. §29-815 (1995); Nev. Rev. Stat. Ann. §179.075 (Miehie 1997); N. H. Rev. Stat. Ann. § 595-A:5 (1986); N. J. Stat. Ann. §33:1-61 (West 1994); N. J. Rule Crim. Prac. 3:5-5 (1998); N. M. Dist. Ct. Rule Crim. Proc. §5-211 (1996); N. M. Magis. Ct. Rule Crim. Proc. §6.208 (1996); N. Y. Crim. Proe. Law §690.50 (McKinney 1995); N. C. Gen. Stat. §§15A-252, 15A-254 (1997); N. D. Rule Crim. Proc. 41 (Supp. 1987); Ohio Rev. Code Ann. §2933.241 (1997); Ohio Rule Crim. Proe. 41 (1994); OMa. Stat. Ann., Tit. 22, §§ 1232 to 1234 (West 1986 ed. and Supp. 1998); Ore. Rev. Stat. §§133.575, 133.595 (1991); Pa. Rules Crim. Proe. 2008, 2009 (1998); R. I. Super. Ct. Rule Crim. Proe. 41 (1998); S. C. Code Ann. §17-13-150 (1985); S. D. Codified Laws §23A-35-10 (Rule 41(d)) (1998); Tenn. Rule Crim. Proc. 41 (1998); Tex. Code Crim. Proc. Ann. § 18.06 (Vernon 1977 ed. and Supp. 1997); Utah Code Ann. §77-23-206 (1995); Vt. Rule Crim. Proe. 41 (1993 and Supp. 1998); Va. Code Ann. §19.2-57 (Miehie 1995); Wash. Super. Ct. Rule Crim. Proc. 2.3 (1996); W. Va. Code §62-lA-4 (1997); W. Va. Rule Crim. Proc. 41 (1997); Wis. Stat. Ann. §968.17 (West 1985); Wyo. Stat. Ann. §7-7-102 (Miehie 1997); Wyo. Rule Crim. Proc. 41 (1998). Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? A. stay, petition, or motion granted B. affirmed C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. modify K. remand L. unusual disposition Answer:
sc_petitioner	055	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them. Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. CLAY v. UNITED STATES No. 01-1500. Argued January 13, 2003 Decided March 4, 2003 Ginsburg, J., delivered the opinion for a unanimous Court. Thomas C. Goldstein, by appointment of the Court, 537 U. S. 808, argued the cause for petitioner. With him on the briefs was Amy Howe. Matthew D. Roberts argued the cause for the United States. With him on the briefs were Solicitor General Olson, Assistant Attorney General Chertoff, and Deputy Solicitor General Dreeben. David W. DeBruin, by invitation of the Court, 536 U. S. 974, argued the cause and filed a brief as amicus curiae in support of the judgment below. With him on the brief was Elaine J. Goldenberg. Justice Ginsburg delivered the opinion of the Court. A motion by a federal prisoner for postconviction relief under 28 U. S. C. § 2255 is subject to a one-year time limitation that generally runs from “the date on which the judgment of conviction becomes final.” §2255, ¶ 6(1). This case concerns the starting date for the one-year limitation. It presents a narrow but recurring question on which courts of appeals have divided: When a defendant in a federal prosecution takes an unsuccessful direct appeal from a judgment of conviction, but does not next petition for a writ of certiorari from this Court, does the judgment become “final” for post-conviction relief purposes (1) when the appellate court issues its mandate affirming the conviction, or, instead, (2) on the date, ordinarily 69 days later, when the time for filing a petition for certiorari expires? In accord with this Court’s consistent understanding of finality in the context of collateral review, and the weight of lower court authority, we reject the issuance of the appellate court mandate as the triggering date. For the purpose of starting the clock on §2255’s one-year limitation period, we hold, a judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court’s affirmation of the conviction. I In 1997, petitioner Erick Cornell Clay was convicted of arson and distribution of cocaine base in the United States District Court for the Northern District of Indiana. On November 23, 1998, the Court of Appeals for the Seventh Circuit affirmed his convictions. That court’s mandate issued on December 15, 1998. See Fed. Rules App. Proc. 40(a)(1) and 41(b) (when no petition for rehearing is filed, a court of appeals’- mandate issues 21 days after entry of judgment). Clay did not file a petition for a writ of certiorari. The time in which he could have petitioned for certiorari expired on February 22, 1999, 90 days after entry of the Court of Appeals’ judgment, see this Court’s Rule 13(1), and 69 days after the issuance of the appellate court’s mandate. On February 22, 2000 — one year and 69 days after the Court of Appeals issued its mandate and exactly one year after the time for seeking certiorari expired — Clay filed a motion in the District Court, pursuant to 28 U. S. C. § 2255, to vacate, set aside, or correct his sentence. Congress has prescribed “[a] 1-year period of limitation” for such motions “run[ning] from the latest of” four specified dates. §2255, ¶ 6. Of the four dates, the only one relevant in this case, as in the generality of cases, is the first: “the date on which the judgment of conviction becomes final.” § 2255, ¶ 6(1). Relying on Gendron v. United States, 154 F. 3d 672, 674 (CA7 1998) (per curiam), the District Court stated that “when a federal prisoner in this circuit does not seek certiorari . . . , the conviction becomes 'final’ on the date the appellate court issues the mandate in the direct appeal.” App. to Pet. for Cert. 8a. Because Clay filed his § 2255 motion more than one year after that date, the court denied the motion as time barred. The Seventh Circuit affirmed. That court declined Clay’s “invitation to reconsider our holding in Gendron,” although it acknowledged that Gendron's “construction of section 2255 represents the minority view.” 30 Fed. Appx. 607, 609 (2002). “Bowing to stare decisis,” the court expressed “reluctance] to overrule [its own] recently-reaffirmed precedent without guidance from the Supreme Court.” Ibid. The Fourth Circuit has agreed with Gendron’s interpretation of §2255. See United States v. Torres, 211 F. 3d 836, 838-842 (2000) (when a federal prisoner does not file a petition for certiorari, his judgment of conviction becomes final for §2255 purposes upon issuance of the court of appeals’ mandate). Six Courts of Appeals have parted ways with the Seventh and Fourth Circuits. These courts hold that, for federal prisoners like Clay who do not file petitions for certiorari following affirmance of their convictions, §2255’s one-year limitation period begins to run when the defendant’s time for seeking review by this Court expires. To secure uniformity in the application of § 2255’s time constraint, we granted certiorari, 536 U. S. 957 (2002), and now reverse the Seventh Circuit’s judgment. II Finality is variously defined; like many legal terms, its precise meaning depends on context. Typically, a federal judgment becomes final for appellate review and claim preclusion purposes when the district court disassociates itself from the case, leaving nothing to be done at the court of first instance save execution of the judgment. See, e. g., Quackenbush v. Allstate Ins. Co., 517 U. S. 706, 712 (1996); Restatement (Second) of Judgments § 13, Comment b (1980). For other purposes, finality attaches at a different stage. For example, for certain determinations under the Speedy Trial Act of 1974, 18 U. S. C. § 3161 et seq., and under a now-repealed version of Federal Rule of Criminal Procedure 33, several lower courts have held that finality attends issuance of the appellate court’s mandate. See Brief for Amicus Curiae by Invitation of the Court 22-28 (hereinafter DeBruin Brief) (citing cases). For the purpose of seeking review by this Court, in contrast, “[t]he time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate (or its equivalent under local practice).” This Court’s Rule 13(3). Here, the relevant context is postconviction relief, a context in which finality has a long-recognized, clear meaning: Finality attaches when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires. See, e. g., Caspari v. Bohlen, 510 U. S. 383, 390 (1994); Griffith v. Kentucky, 479 U. S. 314, 321, n. 6 (1987); Barefoot v. Estelle, 463 U. S. 880, 887 (1983); United States v. Johnson, 457 U. S. 537, 542, n. 8 (1982); Linkletter v. Walker, 381 U. S. 618, 622, n. 5 (1965). Because “we presume that Congress expects its statutes to be read in conformity with this Court’s precedents,” United States v. Wells, 519 U. S. 482, 495 (1997), our unvarying understanding of finality for collateral review purposes would ordinarily determine the meaning of “becomes final” in § 2255. Amicus urges a different determinant, relying on verbal differences between § 2255 and a parallel statutory provision, 28 U. S. C. § 2244(d)(1), which governs petitions for federal habeas corpus by state prisoners. See DeBruin Brief 8-20. Sections 2255 and 2244(d)(1), as now formulated, were reshaped by the Antiterrorism and Effective Death Penalty Act of 1996. See §§ 101, 105, 110 Stat. 1217, 1220. Prior to that Act, no statute of limitations governed requests for federal habeas corpus or § 2255 habeas-like relief. See Vasquez v. Hillery, 474 U. S. 254, 265 (1986); United States v. Nahodil, 36 F. 3d 323, 328 (CA3 1994). Like § 2255, § 2244(d)(1) establishes a one-year limitation period, running from the latest of four specified dates. Three of the four time triggers under § 2244(d)(1) closely track corresponding portions of §2255. Compare §§2244(d)(1)(B)-(D) with §2255, ¶¶6(2)-(4). But where § 2255, ¶ 6(1), refers simply to “the date on which the judgment of conviction becomes final,” § 2244(d)(1)(A) speaks of “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” When “Congress includes particular language in one section of a statute but omits it in another section of the same Act,” we have recognized, “it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U. S. 16, 23 (1983) (quoting United States v. Wong Kim Bo, 472 F. 2d 720, 722 (CA5 1972)). Invoking the maxim recited in Russello, amicus asserts that “becomes final” in §2255, ¶ 6(1), cannot mean the same thing as “became final” in § 2244(d)(1)(A); reading the two as synonymous, amicus maintains, would render superfluous the words “by the conclusion of direct review or the expiration of the time for seeking such review” — words found only in the latter provision. DeBruin Brief 8-20. We can give effect to the discrete wording of the two prescriptions, amicus urges, if we adopt the following rule: When a convicted defendant does not seek certiorari on direct review, §2255’s limitation period starts to run on the date the court of appeals issues its mandate. Id., at 36. Amicus would have a stronger argument if § 2255, ¶ 6(1), explicitly incorporated the first of § 2244(d)(1)(A)’s finality formulations but not the second, so that the § 2255 text read “becomes final by the conclusion of direct review.” Had § 2255 explicitly provided for the first of the two finality triggers set forth in § 2244(d)(1)(A), one might indeed question the soundness of interpreting § 2255 implicitly to incorporate § 2244(d)(1)(A)’s second trigger as well. As written, however, §2255 does not qualify “becomes final” at all. Using neither of the disjunctive phrases that follow the words “became final” in § 2244(d)(1)(A), §2255 simply leaves “becomes final” undefined. Russello, we think it plain, hardly warrants the decision amicus urges, one that would hold the § 2255 petitioner to a tighter time constraint than the petitioner governed by § 2244(d)(1)(A). Russello concerned the meaning of a provision in the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C. § 1961 et seq., that directed forfeiture to the United States of “any interest [a convicted defendant] has acquired ... in violation of [the Act].” § 1963(a)(1). The petitioner in Russello urged a narrow construction of the unqualified words “any interest . . . acquired.” Rejecting that argument, we observed that a succeeding subsection, § 1963(a)(2), reached “any interest in... any enterprise” the defendant conducted in violation of RICO’s proscriptions.' (Internal quotation marks omitted.) At that point, we referred to the maxim invoked by amicus. See supra, at 528. The qualifying words “in . . . any enterprise” narrowed § 1963(a)(2), but in no way affected § 1963(a)(1). The comparison of the two subsections, we said, “fortified” the broad construction we approved for the unmodified words “any interest . . . acquired.” Russello, 464 U. S., at 22-23 (internal quotation marks omitted); see id., at 23 (“Had Congress intended to restrict § 1963(a)(1) to an interest in an enterprise, it presumably would have done so expressly as it did in the immediately following subsection (a)(2).”). Far from supporting the Seventh Circuit’s constricted reading of § 2255, ¶ 6(1), Russello’s reasoning tends in Clay’s favor. An unqualified term — here “becomes final” — Russello indicates, calls for a reading surely no less broad than a pinpointed one — here, § 2244(d)(1)(A)’s specification “became final by the conclusion of direct review or the expiration of the time for seeking such review.” Moreover, as Clay and the Government urge, see Brief for Petitioner 22; Reply Brief for United States 7-8, one can readily comprehend why Congress might have found it appropriate to spell out the meaning of “final” in § 2244(d)(1)(A) but not in §2255. Section 2244(d)(1) governs petitions by state prisoners. In that context, a bare reference to “became final” might have suggested that finality assessments should be made by reference to state-law rules that may differ from the general federal rule and vary from State to State. Cf. Artuz v. Bennett, 531 U. S. 4, 8 (2000) (an application for state postconviction relief is “properly filed” for purposes of 28 U. S. C. § 2244(d)(2) “when its delivery and acceptance are in compliance with the applicable [state] laws and rules governing filings”). The words “by the conclusion of direct review or the expiration of the time for seeking such review” make it clear that finality for the purpose of § 2244(d)(1)(A) is to be determined by reference to a uniform federal rule. Section 2255, however, governs only petitions by federal prisoners; within the federal system there is no comparable risk of varying rules to guard against. Amicus also submits that 28 U. S. C. § 2263 “reinforces” the Seventh Circuit’s understanding of §2255. DeBruin Brief 20; accord, Torres, 211 F. 3d, at 840. Chapter 154 of Title 28 governs certain habeas petitions filed by death-sentenced state prisoners. Section 2263(a) prescribes a 180-day limitation period for such petitions running from “final State court affirmance of the conviction and sentence on direct review or the expiration of the time for seeking such review.” That period is tolled, however, “from the date that a petition for certiorari is filed in the Supreme Court until the date of final disposition of the petition if a State prisoner files the petition to secure review by the Supreme Court of the affirmance of a capital sentence on direct review by the court of last resort of the State or other final State court decision on direct review.” § 2263(b)(1). We do not find in § 2263 cause to alter our reading of § 2255. First, amicus’ reliance on §2263 encounters essentially the same problem as does his reliance on § 2244(d)(1)(A): Section 2255, ¶ 6(1), refers to neither of the two events that § 2263(a) identifies as possible starting points for the limitation period — “affirmance of the conviction and sentence on direct review” and “the expiration of the time for seeking such review.” Thus, reasoning by negative implication from §2263 does not justify the conclusion that §2255, ¶6(1)’8 limitation period begins to run at one of those times rather than the other. Cf. supra, at 529-531. Second, § 2263(a) ties the applicable limitation period to “affirmance of the conviction and sentence,” while §2255, ¶ 6(1), ties the limitation period to the date when “the judgment of conviction becomes final.” See Torres, 211 F. 3d, at 845 (Hamilton, J., dissenting). “The Russello presumption — that the presence of a phrase in one provision and its absence in another reveals Congress’ design — grows weaker with each difference in the formulation of the provisions under inspection.” Columbus v. Ours Garage & Wrecker Service, Inc., 536 U. S. 424, 435-436 (2002). * * * We hold that, for federal criminal defendants who do not file a petition for certiorari with this Court on direct review, §2255’s one-year limitation period starts to run when the time for seeking such review expires. Under this rule, Clay’s § 2255 petition was timely filed. The judgment of the United States Court of Appeals for the Seventh Circuit is therefore reversed, and the ease is remanded for further proceedings consistent with this opinion. It is so ordered. See Derman v. United States, 298 F. 3d 34, 39-42 (CA1 2002); Kapral v. United States, 166 F. 3d 565, 567-577 (CA3 1999); United States v. Gamble, 208 F. 3d 536, 537 (CA5 2000) (per curiam); United States v. Garcia, 210 F.3d 1058, 1059-1061 (CA9 2000); United States v. Burch, 202 F 3d 1274, 1275-1279 (CA10 2000); Kaufmann v. United States, 282 F. 3d 1336, 1337-1339 (CA11 2002). Agreeing with the position advanced by the majority of the courts of appeals that have ruled on the question, the United States joins petitioner Clay in urging that Clay's §2255 motion was timely filed. We therefore invited David W. DeBruin to brief and argue this case, as amicus curiae, in support of the Seventh Circuit’s judgment. Mr. DeBruin’s able advocacy permits us to decide the case satisfied that the relevant issues have been fully aired. The Courts of Appeals have uniformly interpreted “direct review” in § 2244(d)(1)(A) to encompass review of a state conviction by this Court. See Derman v. United States, 298 F. 3d, at 40-41; Williams v. Artuz, 237 F. 3d 147, 151 (CA2 2001); Kapral v. United States, 166 F. 3d, at 575; Hill v. Braxton, 277 F. 3d 701, 704 (CA4 2002); Ott v. Johnson, 192 F. 3d 510, 513 (CA5 1999); Bronaugh v. Ohio, 235 F. 3d 280, 283 (CA6 2000); Anderson v. Litscher, 281 F. 3d 672, 674-675 (CA7 2002); Smith v. Bowersox, 159 F. 3d 345, 347-348 (CA8 1998); Bowen v. Roe, 188 F. 3d 1157, 1159 (CA9 1999); Locke v. Saffle, 237 F. 3d 1269, 1273 (CA10 2001); Bond v. Moore, 309 F. 3d 770, 774 (CA11 2002). Although recognizing that “the question is not presented in this case,” Tr. of Oral Arg. 27, amicus suggests that §2255’s limitation period starts to run upon issuance of the court of appeals’ mandate even in cases in which the defendant does petition for certiorari. Id., at 27-28, 36-38, 41-42. As amicus also recognizes, however, id., at 41, courts of appeals “have uniformly concluded that, if a prisoner petitions for certiorari, the contested conviction becomes final when the Supreme Court either denies the writ or issues a decision on the merits,” United States v. Hicks, 283 F. 3d 380, 387 (CADC 2002). Question: Who is the petitioner of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
sc_caseorigin	003	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. KEENE CORP. v. UNITED STATES No. 92-166. Argued March 28, 1993 Decided May 24, 1993 Richard D. Taranto argued the cause for petitioner. With him on the briefs were Joel I. Klein, John H. Kazanjian, Irene C. Warshauer, Stuart E. Rickerson, and John G. O’Brien. Deputy Solicitor General Wallace argued the cause for the United States. On the brief were Acting Solicitor General Bryson, Assistant Attorney General Gerson, Deputy Solicitor General Mahoney, Robert A. Long, Jr., and Barbara C. Biddle. Briefs of amici curiae urging reversal were filed for the State of Alaska by Charles E. Cole, Attorney General, and Ronald G. Birch; for the State of Hawaii by Robert A Marks, Attorney General, and Steven S. Michaels, Deputy Attorney General; for the Chamber of Commerce of the United States by Herbert L. Fenster, Ray M. Aragon, and Robin S. Conrad; for the Gheyenne-Arapaho Tribes of Oklahoma et al. by Richard Dauphinais, Yvonne T. Knight, Patrice Kunesh, and Scott B. McElroy; for Defenders of Property Rights by Nancie G. Mamulla; for Dieo, Inc., by Charles F. Lettow; for the Pacific Legal Foundation et al. by Ronald A Zumbrun, James S. Burling, and R. S. Radford; for Whitney Benefits, Inc., et al. by George W. Miller, Walter A Smith, Jr., and Jonathan L. Abvam; and for the National Association of Home Builders by Albert J. Beveridge III and Virginia S. Albrecht. Don S. Willner and Thomas M. Buchanan filed a brief for C. Robert Suess et al. as amici curiae. Justice Souter delivered the opinion of the Court. Keene Corporation has been sued by thousands of plaintiffs alleging injury from exposure to asbestos fibers and dust released from products made by Keene and by a company it acquired. In trying to recoup some of the money it was paying to litigate and settle the cases, Keene filed two complaints against the United States in the Court of Federal Claims. When it filed each complaint, however, Keene had a similar claim pending against the Government in another court. We hold that 28 U. S. C. § 1500 consequently precludes Court of Federal Claims jurisdiction over Keene’s actions and affirm the dismissal of its complaints. r — i Through its subsidiary Keene Building Products Corporation, Keene manufactured and sold thermal insulation and acoustical products containing asbestos, as did a company it acquired in 1968, Baldwin-Ehret-Hill, Inc. In the mid-1970’s, plaintiffs began suing Keene in tort, alleging injury or death from exposure to asbestos fibers. In a typical case filed against Keene and other defendants in the District Court for the Western District of Pennsylvania, Miller v. Johns-Manville Products Corp., No. 78-1283E, the plaintiff alleged, on behalf of the estate of one Dzon, that the decedent had died of lung cancer caused by asbestos fibers and dust inhaled during employment in 1948 and 1944. In June 1979, Keene filed a third-party complaint against the United States, alleging that any asbestos products to which Dzon was exposed had been supplied to the Government in accordance with specifications set out in Government contracts, and seeking indemnification or contribution from the Government for any damages Keene might have to pay the plaintiff. This third-party action ended, however, in May 1980, when the District Court granted Keene’s motion for voluntary dismissal of its complaint. In the meantime, in December 1979, with the Miller third-party action still pending, Keene filed the first of its two complaints in issue here, seeking damages from the United States in the Court of Federal Claims “for any amounts which have been, or which may be recovered from Keene by the claimants, by settlement or judgment.” Keene Corp. v. United States, No. 579-79C (Keene I), App. to Pet. for Cert. H15. The “claimants” are defined as the plaintiffs in the more than 2,500 lawsuits filed against Keene “by persons alleging personal injury or death from inhalation of asbestos fibers contained in thermal insulation products” manufactured or sold by Keene or its subsidiaries. Id., at H3. Keene alleges conformance with Government specifications in the inclusion of asbestos within the thermal insulation products Keene supplied to Government shipyards and other projects funded or controlled by the Government, and Keene further claims that the Government even sold it some of the asbestos fiber used in its products. Keene’s theory of recovery is breach by the United States of implied warranties in contracts between the Government and Keene, a theory only the Court of Federal Claims may entertain, given the amount of damages requested, under the Tucker Act, 28 U.S.C. § 1491(a)(1). Keene’s next move against the Government came the following month when it filed a 23-count complaint in the District Court for the Southern District of New York. Keene Corp. v. United States, No. 80-CIV-0401(GLG). The pleadings tracked, almost verbatim, the lengthy factual allegations of Keene I, but the action was recast in terms of various tort theories, again seeking damages for any amounts paid by Keene to asbestos claimants. Keene also added a takings claim for the Government’s allegedly improper recoupment, under the Federal Employees’ Compensation Act (FECA), 5 U. S. C. § 8132, of money paid by Keene to claimants covered by the Act. For this, Keene sought restitution of “the amounts of money which have been, or which may be, recouped by [the United States] from claimants from judgments and settlements paid by Keene,” App. 37, as well as an injunction against the Government’s collection of FECA refunds thereafter. This suit suffered dismissal in September 1981, on the basis of sovereign immunity, which the court held unaffected by any waiver found in the Federal Tort Claims Act, the Suits in Admiralty Act, and the Public Vessels Act. The Court of Appeals affirmed, Keene Corp. v. United States, 700 F. 2d 836 (CA2 1983), and we denied certiorari, 464 U. S. 864 (1983). Only five days before the Southern District’s dismissal of that omnibus action, Keene returned to the Court of Federal Claims with the second of the complaints in issue here. Keene Corp. v. United States, No. 585-81C (Keene II). Although this one, too, repeats many of the factual allegations of Keene I, it adopts one of the theories raised in the Southern District case, seeking payment for “the amounts of money that [the United States] has recouped” under FECA from asbestos claimants paid by Keene. App. to Pet. for Cert. F10-F11. Again, the recoupments are said to be takings of Keene’s property without due process and just compensation, contrary to the Fifth Amendment. See 28 U. S. C. § 1491(a)(1) (covering, inter alia, certain claims “founded... upon the Constitution”). After the Court of Federal Claims raised the present jurisdictional issue sua sponte in similar actions brought by Johns-Manville, the Government invoked 28 U. S. C. § 1500 in moving to dismiss both Keene I and Keene II, as well as like actions by five other asbestos product manufacturers. With trial imminent in the Johns-Manville cases, the Court of Federal Claims initially granted the motion to dismiss only as to them. Keene Corp. v. United States, 12 Cl. Ct. 197 (1987). That decision was affirmed on appeal, Johns-Manville Corp. v. United States, 855 F. 2d 1556 (CA Fed. 1988) (per curiam), cert. denied, 489 U. S. 1066 (1989), and the Court of Federal Claims then entered dismissals in Keene I and Keene II, among other cases, finding that when Keene had filed both Keene I and Keene II, it had the same claims pending in other courts. 17 Cl. Ct. 146 (1989). While a panel of the Court of Appeals for the Federal Circuit reversed on the ground that § 1500 was inapplicable because no other claim had been pending elsewhere when the Court of Federal Claims entertained and acted upon the Government’s motion to dismiss, UNR Industries, Inc. v. United States, 911 F. 2d 654 (1990), the Court of Appeals, en banc, subsequently vacated the panel opinion, 926 F. 2d 1109 (1990), and affirmed the trial court’s dismissals, 962 F. 2d 1013 (1992). We granted certiorari. 506 U. S. 939 (1992). HH HH The authority cited for dismissing Keene’s complamts for want of jurisdiction was 28 U. S. C. § 1500 (1988 ed., Supp. IV): “The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States.” The lineage of this text runs back more than a century to the aftermath of the Civil War, when residents of the Confederacy who had involuntarily parted with property (usually cotton) during the war sued the United States for compensation in the Court of Claims, under the Abandoned Property Collection Act, ch. 120, 12 Stat. 820 (1863). When these cotton claimants had difficulty meeting the statutory condition that they must have given no aid or comfort to participants in the rebellion, see §8 of the Act, they resorted to separate suits in other courts seeking compensation not from the Government as such but from federal officials, and not under the statutory cause of action but on tort theories such as conversion. See Schwartz, Section 1500 of the Judicial Code and Duplicate Suits Against the Government and Its Agents, 55 Geo. L. J. 573, 574-580 (1967). It was these duplicative lawsuits that induced Congress to prohibit anyone from filing or prosecuting in the Court of Claims “any claim... for or in respect to which he... shall have commenced and has pending” an action in any other court against an officer or agent of the United States. Act of June 25, 1868, ch. 71, § 8, 15 Stat. 77. The statute has long outlived the cotton claimants, having been incorporated with minor changes into § 1067 of the Revised Statutes of 1878; then reenacted without further change as § 154 of the Judicial Code of 1911, Act of Mar. 3, 1911, ch. 281, § 154, 36 Stat. 1138, 28 U. S. C. §260 (1940 ed.); and finally adopted in its present form by the Act of June 25, 1948, ch. 646, 62 Stat. 942, 28 U. S. C. § 1500. Keene argues it was error for the courts below to apply the statute by focusing on facts as of the time Keene filed its complaints (instead of the time of the trial court’s ruling on the motion to dismiss) and to ignore differences said to exist between the Court of Federal Claims actions and those filed in the District Courts. Neither assignment of error will stand. A Congress has the constitutional authority to define the jurisdiction of the lower federal courts, see Finley v. United States, 490 U. S. 545, 548 (1989), and, once the lines are drawn, “limits upon federal jurisdiction... must be neither disregarded nor evaded,” Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). In § 1500, Congress has employed its power to provide that the Court of Federal Claims “shall not have jurisdiction” over a claim, “for or in respect to which” the plaintiff “has [a suit or process] pending” in any other court. In applying the jurisdictional bar here by looking to the facts existing when Keene filed each of its complaints, the Court of Federal Claims followed the longstanding principle that “the jurisdiction of the Court depends upon the state of things at the time of the action brought.” Mollan v. Torrance, 9 Wheat. 537, 539 (1824) (Marshall, C. J.); see Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U. S. 49, 69 (1987) (opinion of Scalia, J.); St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U. S. 283, 289-290 (1938); Minneapolis & St. Louis R. Co. v. Peoria & P.U.R. Co., 270 U. S. 580, 586 (1926). While acknowledging what it calls this “general rule” that subject-matter jurisdiction turns on the facts upon filing, Keene would have us dispense with the rule here. Brief for Petitioner 33. Assuming that we could, however, Keene gives us nothing to convince us that we should. Keene argues that if §1500 spoke of “jurisdiction to render judgment” instead of “jurisdiction” pure and simple, the phrase would “all but preclude” application of the time-of-filing rule. Id., at 34. But, without deciding whether such a change of terms would carry such significance, we have only to say that § 1500 speaks of “jurisdiction,” without more, whereas some nearby sections of Title 28 use the longer phrase. This fact only underscores our duty to refrain from reading a phrase into the statute when Congress has left it out. “ ‘[W]here Congress includes particular language in one section of a statute but omits it in another..., it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’” Russello v. United States, 464 U. S. 16, 23 (1983) (citation omitted). Keene’s next appeal, to statutory history, is no more availing. The immediate predecessor of § 1500, § 154 of the Judicial Code of 1911, provided that “[n]o person shall file or prosecute in the Court of Claims... any claim for or in respect to which he... has pending in any other court any suit or process....” Act of Mar. 3, 1911, ch. 231, § 154, 36 Stat. 1138. With this express prohibition against filing claims for which another suit was pending, there could, of course, have been no doubt that at least a time-of-filing rule applied. See Shapiro v. United States, 168 F. 2d 625, 626 (CA3 1948) (§ 154 “forbids the filing” of a Little Tucker Act claim when a related suit is pending); British American Tobacco Co. v. United States, 89 Ct. Cl. 488, 439 (1939) (per curiam) (dismissing a claim under §154 where, “[a]t the time the petition was filed in this court, the plaintiff... had pending in the District Court... a suit based upon the same claim”), cert. denied, 310 U. S. 627 (1940); New Jersey Worsted Mills v. United States, 80 Ct. Cl. 640, 641, 9 F. Supp. 605, 606 (1935) (per curiam) (“[W]e think it clear that the plaintiff was not permitted even to file its claim in this court”). Although Keene urges us to see significance in the deletion of the “file or prosecute” language in favor of the current reference to “jurisdiction” in the comprehensive revision of the Judicial Code completed in 1948, we do not presume that the revision worked a change in the underlying substantive law “unless an intent to make such [a] ehang[e] is clearly expressed.” Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222, 227 (1957) (footnote omitted); see Newman-Green, Inc. v. Alfonzo-Larrain, 490 U. S. 826, 831, n. 4 (1989); Finley v. United States, supra, at 554; Tidewater Oil Co. v. United States, 409 U. S. 151, 162 (1972). On the point in issue here, there is no such clear expression in the shift from specific language to the general, and the Reviser's Note to §1500 indicates nothing more than a change “in phraseology,” see H. R. Rep. No. 308, 80th Cong., 1st Sess., A140 (1947); cf. Newman-Green, supra, at 831. Since Keene, indeed, comes up with nothing to the contrary, we read the statute as continuing to bar jurisdiction over the claim of a plaintiff who, upon filing, has an action pending in any other court “for or in respect to” the same claim. B The statutory notion of comparable claims is more elusive. _ By precluding jurisdiction over the claim of a plaintiff with a suit pending in another court “for or in respect to” the same claim, § 1500 requires a comparison between the claims raised in the Court of Federal Claims and in the other lawsuit. The exact nature of the things to be compared is not illuminated, however, by the awkward formulation of § 1500. Nor does it advance the ball very far to recognize from the statute’s later reference to “the cause of action alleged in such suit or process,” that the term “claim” is used here synonymously with “cause of action,” see Black’s Law Dictionary 247 (6th ed. 1990) (defining “claim” as “cause of action”), since, as both parties admit, “cause of action,” like “claim,” can carry a variety of meanings. See Brief for Petitioner 18; Brief for United States 15; see also Johns-Manville Corp., 855 F. 2d, at 1560. Fortunately, though, we can turn to earlier readings of the word “claim” as it appears in this statute. The phrase “any claim... for or in respect to which” has remained unchanged since the statute was first adopted in 1868, see Act of June 25, 1868, ch. 71, § 8, 15 Stat. 77, and prior encounters with § 154 of the Judicial Code of 1911, the immediate predecessor to §1500, shed some light on the issue. Corona Coal Co. v. United States, 263 U. S. 537 (1924), was an action brought against the United States in the Court of Claims, seeking compensation for coal requisitioned by the Government. Before bringing its appeal to this Court, the plaintiff sued the President’s agent in Federal District Court, “the causes of action therein set forth being the same as that set forth in the [Court of Claims] case.” Id., at 539. After noting that the causes of action “arose out of” the same factual setting, we applied §154 and dismissed the appeal. Id., at 539-540. Later that year, we had the case of a plaintiff seeking a writ of mandamus to stop the Court of Claims from reinstating a suit it had dismissed earlier, without prejudice, on the plaintiff’s own motion. Ex parte Skinner & Eddy Corp., 265 U. S. 86 (1924). Skinner & Eddy had sued the United States in the Court of Claims for nearly $17.5 million; “[t]he largest item of the claim was for anticipated profits on 25 vessels” covered by an order, later canceled, by the United States Emergency Fleet Corporation. Id., at 91. After the Court of Claims had granted its motion to dismiss, Skinner & Eddy sued the Emergency Fleet Corporation in state court “on substantially the same causes of action as those sued for in the Court of Claims.” Id., at 92. There was no question that the factual predicate of each action was the same, except for the omission from the state court action of any demand for anticipated profits, thus limiting the damages sought to $9.1 million. We issued the writ of mandamus, holding that § 154 prevented the Court of Claims from exercising jurisdiction over the claims it had dismissed earlier, given the intervening state court suit. A few years later, the Court of Claims settled a key question only foreshadowed by Skinner & Eddy: whether § 154 applied when the Court of Claims action and the “other” suit proceeded under different legal theories. In British American Tobacco Co. v. United States, 89 Ct. Cl. 438 (1939) (per curiam), after the plaintiff had surrendered his gold bullion to the Government (in compliance with executive orders and regulations that took this country off the gold standard), he sued in the Court of Claims on allegations that he had been underpaid by more than $4.3 million. Earlier the same day, the plaintiff had filed a suit in Federal District Court “for the recovery of the same amount for the same gold bullion surrendered.” Id., at 439. The Court of Claims observed that “[t]he only distinction between the two suits instituted in the District Court and in this court is that the action in the District Court was made to sound in tort and the action in this eourt was alleged on contract.” Id., at 440. Because the two actions were based on the same operative facts, the eourt dismissed the Court of Claims action for lack of jurisdiction, finding it to be “clear that the word ‘claim/ as used in section 154,... has no reference to the legal theory upon which a claimant seeks to enforce his demand.” Ibid. These precedents demonstrate that under the immediate predecessor of § 1500, the comparison of the two cases for purposes of possible dismissal would turn on whether the plaintiff’s other suit was based on substantially the same operative facts as the Court of Claims action, at least if there was some overlap in the relief requested. See Skinner & Eddy, supra; Corona Coal, supra. That the two actions were based on different legal theories did not matter. See British American Tobacco, supra. Since Keene has given us no reason to doubt that these cases represented settled law when Congress reenacted the “claim for or in respect to which” language in 1948, see 62 Stat. 942, we apply the presumption that Congress was aware of these earlier judicial interpretations and, in effect, adopted them. Lorillard v. Pons, 434 U. S. 575, 580 (1978); cf. United States v. Powell, 379 U. S. 48, 55, n. 13 (1964) (presumption does not apply when there is no “settled judicial construction” at the time of reenactment). The decision in British American Tobacco strikes us, moreover, as a sensible reading of the statute, for it honors Congress’s decision to limit Court of Federal Claims jurisdiction not only as to claims “for... which” the plaintiff has sued in another court, but as to those “in respect to which” he has sued elsewhere as well. While the latter language does not set the limits of claim identity with any precision, it does make it clear that Congress did not intend the statute to be rendered useless by a narrow concept of identity providing a correspondingly liberal opportunity to maintain two suits arising from the same factual foundation. Keene nonetheless argues, for the first time in its merits brief, that “[a] claim brought outside the [Court of Federal Claims] is ‘for or in respect to’ a claim in the [Court of Federal Claims only] when claim-splitting law would treat them as the same — i. e., require them to be joined in a single suit — if the two claims were both brought against the United States.” Brief for Petitioner 20. Under this theory, § 1500 would not apply to a Court of Federal Claims plaintiff unless his suit pending in the other court rested on a legal theory that could have been pleaded (as Keene’s could not have been) in the Court of Federal Claims. But this reinterpretation of § 1500 is bound to fail, not because novelty is always fatal in the construction of an old statute, but because the novel proposition in Keene’s suggested reading would have rendered the statute useless, in all or nearly all instances, to effect the very object it was originally enacted to accomplish. Keene fails to explain how the original statute would have applied to the cotton claimants, whose tort actions brought in other courts were beyond the jurisdiction of the Court of Claims, just as tort cases are outside the jurisdiction of the Court of Federal Claims Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims 212. United States Supreme Court Answer:
songer_appel1_1_2	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". RESERVE LIFE INSURANCE COMPANY, a corporation, Appellant, v. Donald E. MARR, as Executor of the Estate of Mary I. Marr, Deceased, Appellee. No. 15721. United States Court of Appeals Ninth Circuit. April 23, 1958. Rehearing Denied May 27, 1958. G. J. Silvernale, Jr., Paine, Lowe, Coffin & Herman, Spokane, Wash., for appellant. Fielding H. Ficklen, Spokane, Wash., for appellee. Before ORR, CHAMBERS and BARNES, Circuit Judges. ORR, Circuit Judge. Effective May 4, 1954, appellant Reserve Life Insurance Company, hereafter company, issued two Insurance Policies to one Mary I. Marr, hereafter insured, wherein the company agreed to pay certain therein named hospital expenses if and when incurred by insured. She is now deceased. Appellee Donald E. Marr is administrator of her estate. At age 70 the insured suffered a stroke and on her doctor’s orders was taken to the Jane O’Brien Hospital in Spokane, Washington. Her condition stabilized after several weeks, but she remained partially incapacitated physically and required medicinal and nursing care. Insured was hospitalized for 14 months, receiving medicinal treatment and care by her physician. She made claim for the medical and hospital expenses incurred. The company denied the claim on the ground that the hospital in which insured was treated did not meet the standards set up in the policies. Suit was brought and a judgment rendered in favor of appellee. The two policies contained identical definitions of the word “hospital” as used in the wording of a condition therein to the effect that in order to recover the insured must “be necessarily confined within a recognized hospital” (policy J) or “be necessarily confined within a recognized hospital (as defined in part 2 hereof)” (policy A). That definition is as follows: “The word ‘hospital’ wherever used in this policy means an institution which has a laboratory, X-ray equipment and an operating room where major surgical operations may be performed, and which maintains permanent and full time facilities for the care of over-night resident patients under the supervision of a licensed Doctor of Medicine or Osteopathy and which has a Graduate Registered Nurse always on duty.” The trial court found that the Jane O’Brien Hospital in which insured was confined was licensed by the State of Washington to maintain 61 beds and had a daily average of 50 patients for the year in question. At the time of the insured’s admission to the hospital, it was licensed as a “nursing home”. It is now licensed as a “psychiatric hospital” and was so licensed for several years prior thereto. It had a registered nurse on duty at all times, X-ray facilities, and full-time facilities for overnight resident patients, for administering oxygen, and for taking blood samples. That the above enumerated facilities were furnished is not contested, but it is contended that further requirements contained in the policy definition were not met, in that the hospital was not “an institution which has a laboratory.” There was a laboratory on the premises; laboratory test work however was regularly sent to an independent laboratory under a contractual arrangement. It is conceded that these facilities so utilized were adequate. But, argues the company, no matter how available and efficient the facilities were, they must have been under the same roof or within an integrated hospital facility in order to meet the definition contained in the policy. The policies do not specifically require that the laboratory be within the confines of a building or buildings owned and operated by the hospital as an integrated whole. There was no operating room on the premises where major operations could be performed, but an arrangement existed whereby the operating room facilities of the Sacred Heart Hospital, one and one-half blocks away, were available if the patient’s doctor wished to use them. Here again we find no requirement in the policies that the operating room be on the premises or within the confines of a building or buildings operated by the hospital as an integrated whole. McKinney v. American Security Life Ins. Co., La.App.1954, 76 So.2d 630. There is no requirement in the policies that the insured be confined in a “general” hospital, nor is there any exclusion from the term “hospital” of a psychiatric or nursing hospital, as there was in Rew v. Beneficial Standard Ins. Co., 1952, 41 Wash.2d 577, 250 P.2d 956, 35 A.L.R.2d 891, relied on by the company. These policies were not limited to surgical benefits and covered costs of “hospital confinement * * * (b) resulting from sickness. * * * ” Reference was specifically made therein to “any disease of the heart or circulatory system,” and the coverage here sued upon was the provision for expenses of a “Hospital Room, including meals and general nursing care.” (Italics supplied) . Another argument concerning the definition is directed toward the requirement that the hospital maintain “permanent and full time facilities for the care of over-night resident patients under the supervision of a licensed Doctor of Medicine or Osteopathy.” Appellant urges that this requires supervision by a Doctor of the hospital facilities rather than of the patients, so that administrative control of the hospital would be by licensed doctors. The Jane O’Brien Hospital did not have a doctor as its director but was managed by a person who had had over eight years experience in hospital management work, with pre-medical training and two years of medical school, and experience in operating a medical laboratory. It is apparent that the portion of the definition here relevant is ambiguously stated, so that the supervision phrase can be read to modify either the “facilities” themselves or the “patients” using such facilities. If read the latter way, there was admittedly sufficient compliance, for each patient was under the care of his own physician. It may well be that higher standards of operation of a hospital could be insured if the hospital is administered by a licensed doctor. The policies in question do not unequivocally contain such a requirement, and the ambiguity was properly construed by the trial court in favor of the policy holder. McCarty v. King County Medical Service Corp., 1946, 26 Wash.2d 660, 175 P.2d 653; Dorsey v. Strand, 1944, 21 Wash.2d 217, 222, 150 P.2d 702, 705; Doke v. United Pacific Ins. Co., 1942, 15 Wash.2d 536, 131 P.2d 436, 135 P.2d 71. The trial court found that the facilities furnished substantially complied with the terms of the policy. A policy will be liberally construed in favor of the object to be accomplished and conditions and provisions therein will be strictly construed against the insurer. Jack v. Standard Marine Ins. Co., 1949, 33 Wash.2d 265, 205 P.2d 351, 8 A.L.R.2d 1426. Undoubtedly the object to be accomplished by the insertion in the policy of a statement of the facilities to be available was to meet the standard of a hospital which the company determined would guarantee to the policy holders a high standard of care when hospitalized. This was undoubtedly on the theory that the better the care the sooner the patient would be released and thereby minimize the expense to the company. If such be the object to be accomplished, what difference would it make to a recovery whether the named facilities were under one management so long as the care was expertly provided and readily at hand? In so deciding we are not disregarding plain and explicit language, but are holding that a liberal construction of the language of the policies supports the finding of the trial court that the facilities furnished by the hospital in which the insured was confined were in substantial compliance with the definition of a “hospital” contained in the policy. Appellant attacks a finding of the trial court that the insured was “necessarily confined” within the meaning of the policy. It is not disputed that the insured’s confinement was under the direction of her doctor, nor is it shown that he improperly so directed, or that her confinement was not the result of a sickness covered by the terms of the policy. This contention is essentially the same as that made to the effect that the policy covers only “general hospital” type confinements, with which we have heretofore dealt. Affirmed. . There is instead only a specific exclusion of “hospitalization for nervous or mental disorders, rest cure or alcoholism.” 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_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, Plaintiff-Appellee, v. Wendell BLOUNT, Defendant-Appellant. No. 72-2040. United States Court of Appeals, Sixth Circuit. Argued April 2, 1973. Decided June 8, 1973. John W. Peck, Circuit Judge, filed concurring opinion. Frederick Taft, Cleveland, Ohio, for defendant-appellant; James D. London (Court Appointed), Public Defender, Cleveland, Ohio, on brief. Clarence B. Taylor, Asst. U. S. Atty., for plaintiff-appellee; Frederick M. Coleman, U. S. Atty., Charles A. Caruso, Dept, of Justice, Atty., Office for Drug Abuse Law Enforcement, Cleveland, Ohio, on brief. Before PECK, McCREE and LIVELY, Circuit Judges. McCREE, Circuit Judge. We consider an appeal from a judgment following jury convictions on both counts of a two-count indictment charging illegal distribution of heroin, in violation of 21 U.S.C. § 841(a)(1). Appellant was sentenced to three years imprisonment on each count, to be served consecutively. Five issues are presented on appeal. Two issues attack the sufficiency of the evidence to refute the defense of entrapment. We determine that they are without merit. The record contains ample evidence to support the finding that appellant was not entrapped and it was therefore proper to submit that issue to the jury. A third contention assigns error to the trial judge’s failure to give a limiting instruction about testimony of criminal acts not charged in the indictment, offered solely to negative appellant’s contention that he had been entrapped. Appellant’s counsel did not request a limiting instruction either at the time the evidence was introduced or before the ease was submitted to the jury. Since the testimony was relevant to an issue in the case, we find no error in the court’s failure to give a limiting instruction sua sponte. Appellant’s remaining assignments of error have more substance. During the voir dire examination of the prospective jurors, the district court refused appellant’.s request to ask if they could accept the proposition of law that a defendant is presumed to be innocent, has no burden to establish his innocence, and is clothed throughout the trial with this presumption. Appellant contends that this refusal constituted reversible error. We agree. Federal Rule of Criminal Procedure 24(a) invests wide discretion in trial judges in determining the questions to be asked of veniremen, and the prevailing rule is that the court’s determination about the questions to be put to the jury will not be disturbed without a clear showing of abuse of discretion. 5A Moore’s Federal Practice ¶ 47.06 (2d ed. 1967); United States v. Crawford, 444 F.2d 1404 (10th Cir. 1971); United States v. Owens, 415 F.2d 1308 (6th Cir.), cert. denied, 397 U.S. 997, 90 S.Ct. 1138, 25 L.Ed.2d 406 (1969). The primary purpose of the voir dire of jurors is to make possible the empanelling of an impartial jury through questions that permit the intelligent exercise of challenges by counsel. Wright, 2 Federal Practice and Procedure ¶ 382 (1969). It follows, then, that a requested question should be asked if an anticipated response would afford the basis for a challenge for cause. See e. g., United States v. Carter, 440 F.2d 1132 (6th Cir. 1971); Brown v. United States, 119 U.S.App.D.C. 203, 338 F.2d 543 (D.C. Cir. 1964); United States v. Napoleone, 349 F.2d 350 (3d Cir. 1965). Certainly, a challenge for cause would be sustained if a juror expressed his incapacity to accept the proposition that a defendant is presumed to be innocent despite the fact that he has been accused in an indictment or information. It is equally likely that careful counsel would exercise a peremptory challenge if a juror replied that he could accept this proposition of law on an intellectual level but that it troubled him viscerally because folk wisdom teaches that where there is smoke there must be fire. Accordingly, the failure of the trial judge to ask the question upon request was erroneous and since the failure may have resulted in the denial of an impartial jury, the error cannot be dismissed as harmless. See Brown v. United States, supra (Burger, J.). It matters not that the putting of the question might also, as appellee contends, have constituted anticipatory argument to precondition the jury. This is an unavoidable consequence of the voir dire jury examination. The remaining contention concerns the denial of appellant’s request for a continuance. At arraignment on June 8, 1972, without benefit of counsel, appellant pled not guilty and assured the district court that he intended to retain his own attorney prior to trial. To prevent delays and ensure a speedy trial, the district court appointed the Cleveland Public Defender’s Office to act as defense counsel of record and marked the case for trial on June 19, eleven days later. The Defender’s Office was promptly notified that same day, and appellant was told that the court would permit the substitution of counsel once a private attorney was retained. Appellant contends that such a short time to obtain counsel and prepare a defense constituted a violation of due process. The trial judge’s concern to expedite the trial is most commendable, but expedition should not be pursued at the cost of the quality of justice. Fundamental to due process is the effective assistance of counsel, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L. Ed.2d 799 (1963). And a defendant with sufficient means should be afforded the opportunity to employ counsel of his own choice. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L. Ed. 680 (1942); United States v. Balk, 318 F.2d 288 (6th Cir. 1963). Blount lived in Akron, was incarcerated before trial in Youngstown, and was scheduled to be tried in Cleveland. These cities form the vertices of a scalene triangle, one leg of which is 35 miles long, another 50, and the third 70. Appellant was afforded only 11 days, with two intervening weekends (seven work days), within which to obtain counsel from a jail cell, in a city not his residence. And it does not appear that he had ready access to a telephone and a legal directory. Because of our disposition of the voir dire issue, we find it unnecessary to decide whether the denial of a continuance requires us to follow Balk, supra, where we found a denial of Sixth Amendment rights, or United States v. Sisk, 411 F.2d 1192 (6th Cir.), cert. denied, 396 U.S. 1018, 90 S.Ct. 584, 24 L.Ed.2d 509 (1969), where we found no error. Reversed and remanded for a new trial. 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_state	33	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". CITY OF SAN DIEGO v. ATCHISON, TOPEKA & SANTA FÉ RY. CO. No. 6106. Circuit Court of Appeals, Ninth Circuit. Nov. 10, 1930. M. W. Conkling, City Atty., and C. L. Byers, Asst. City Atty., both of San Diego, Cal., for appellant. Robert Brennan, M. W. Reed, and E. T. Lucoy, all of Los Angeles, Cal., for appellee. Before RUDKIN and WILBUR, Circuit Judges, and NORCROSS, District Judge. RUDKIN, Circuit Judge. Upon the original submission of this ease an opinion was prepared by Judge DIE.TRICH, but after his death the ease was restored to the calendar for reargument and has been resubmitted to the court by stipulation of the parties. Upon full consideration the opinion of Judge DIETRICH, which follows, is adopted as the opinion of the court. “By the decree below the appellant is enjoined from enforcing an assessment-made by •its officers upon property constituting a portion of appellee’s terminal facilities in the city of San Diego, to cover the expense, in part, of opening a street in the vicinity thereof. The total cost of the proposed work was determined to be $54,565.83, of which $12,-607-12 was assessed against appellee’s property. The decree followed a finding that the projected improvement, if not detrimental, would at least be of no benefit to appellee. “Appellee’s depot and appurtenances are at the eornér of Broadway and Kettner streets) with entrances from both streets. •Broadway is a wide thoroughfare, running east and west, and easterly from the depot penetrates the main business section of the city. Kettner street, not so wide, extends indefinitely north and south at right angles with Broadway. North of appellee’s premises, and approximately 600 feet from Broadway, is B street, which, in its easterly reaches,' also passes through the main business section. It will thus bé seen that appellee’s station may be entered on the south side from Broadway and on the east side from Kettner street, which connects with Broadway and other east and west streets to the south and with B and other streets to the north. Immediately across Kettner street, east of appellee’s grounds, lies a vacant block, bounded .by B street on the north, Broadway on the south, and on the east by India street, which is parallel with and.about 200 feet from Kettner street. Extending east from India street ■is C street, midway between and parallel with Broadway and B streets. The projected work contemplates the extension of this C street westerly from India street to Kettner, whereupon it will terminate directly in front of the easterly depot entrance. The expense is to be. imposed under what is known as a local or 'district assessment plan. The improvement district established as the area to be assessed •is a. rectangular tract 'with the longer boundary lines thereof 90 feet on either side of the .center line of C street, actual or projected, and extending in, length from a line nine blocks easterly from India street to a line 225 feet west from the westerly line of Kettner street, thus including, of appellee’s property, a tract 180 by 225 feet. By the city council the railway company’s protest, on the ground that the assessment was unjust and arbitrary, was overruled. Whereupon this suit was instituted. “That the court below did not err touching the general principles of law applicable in such a case is disclosed by the following excerpt from its well-considered opinion, 34 F.(2d) 293: “ 'The Street Improvement Act of the State of California, under which, it is asserted, the city proceeded (sees. 4, 5, p. 70, Stats, of Cal., 1889, and Amendatory Acts [Deering’s Gen. Laws, 1923, Act 8195]), provides for the hearing of objections to the proposed work and to the assessments made, and declares that the decision of the City Council allowing or disallowing protests “shall be final and conclusive.” It is admitted by defendants that the finality which attends the determination of the City Council when it acts upon the protest of a property owner assumes eases where that body acts within a fair and reasonable discretion upon the matter before it (which is presumed, prima facie), but that the protestan! is not concluded if he is able to show that no fair rule of uniformity was adopted in making the assessment (Schaffer v. Smith, 169 Cal. 764, 147 P. 976), or that the assessment was made without regard to benefits to accrue to the property taxed (Spring Street Company v. City of Los Angeles, 170 Cal. 24, 148 P. 217, L. R. A. 1918E, 197). “ 'The question to be answered in such eases is: Did the municipal body use the judicial judgment which the law requires of it, and determine the amount of the assessments upon the basis of benefits to property assessed? Where it is plain that the Council, upon a showing of valid, supporting facts, has ruled that benefits accrue to the property assessed to pay the cost of the work, that determination may not be overthrown by witnesses produced in court who testify that the assessment is. for too large an amount. The law has established the agencies, which shall settle the question of the amount of damages and benefits: first, the commissioners appointed for that purpose; second, the municipal Council, with full power to revise, correct and annul the commissioners’ report. Counsel for defendants have cited a number of California decisions on the question, all showing the limited power which the courts have in these matters. There is no real difference between respective counsel as to the law. “ ‘An assessment of the kind here to be considered will be deemed arbitrary and illegal if, upon examination of the record of proceedings had, together with other evidence offered to show fully plain conditions which the assessing officers are presumed to have had before them, the conclusion is inescapable that the property assessed could not be benefited by the contemplated work, or that, if benefited, the benefit necessarily would be trivial or inconsequential. * * * “ ‘The State law authorizing the segregating of the property of a limited number of taxpayers within a district, and placing the cost of improvement work, the use of which will be equally shared in by the general public, as a charge upon the property within the district, rests, as the Supreme Court of California said in Spring Street Company v. City of Los Angeles, supra, upon the compensating benefit resulting to the included property as “its solo warrant.” ’ “Not only is appellee’s property now devoted exclusively to railroad purposes, and so improved as to make wholly probable the permanency of such use, but by the deeds conveying title to its immediate predecessor in interest it was expressly provided that the grantee must construct and maintain thereon a passenger station, with reversion of title in case of failure to comply with this condition. We aré, therefore, of the opinion that in making the assessment appellant was bound to assume the measurable permanency of such use and to make assessment accordingly. See Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 17 S. Ct. 581, 41 L. Ed. 979; City of Oakland v. Schenck, 197 Cal. 456, 241 P. 545; Southern Pac. R. Co. v. S. F. Savings Union, 146 Cal. 290, 79 P. 961, 70 L. R. A. 221, 106 Am. St. Rep. 36, 2 Ann. Cas. 962; Naugatuck R. Co. v. City of Waterbury, 78 Conn. 193, 61 A. 474; New York Bay R. Co. v. Newark, 82 N. J. Law, 591, 83 A. 962; In re East 136th Street, 127 App. Div. 672, 111 N. Y. S. 916; City of Barre v. Barre & Chelsea R. Co., 97 Vt. 398, 123 A. 427, 37 A. L. R. 207; Federal Construction Co. v. Ensign, 59 Cal. App. 200, 210 P. 536; Road Improvement Dist. No. 1 v. Missouri Pac. R. Co. (C. C. A.) 2 F.(2d) 340 ; Kimama Highway Dist. v. O. S. L. R. Co. (C. C. A.) 298 F. 431; Kankakee v. Illinois Cent. R. Co., 257 Ill. 298, 100 N. E. 996. “In its discussion of the facts the lower court said: “ ‘The proposed opening of C street does not touch either side of the depot property. The depot now has access furnished on its southerly side from Broadway and along its easterly side from Kettner. Already B street, at the maximum of 300 feet from the easterly center line of the depot, furnishes a way for traffic to enter or depart to or from Kettner. The block lengths in the city are short, none exceeding 300 feet. It would seem to be beyond denial that if Kettner were a private way, and the railroad company were allowed the exclusive use of it as far as B street, for loading purposes, passenger and express, its interests would bo advanced. Any condition which would divert general traffic, having no business at the depot of complainant, from Kettner, would facilitate the handling of the railroad business, both as to the railroad itself and the public who make use of its service. With as ample means, of ingress and egress as could be desired already enjoyed by it, quite apparent it is that any change in conditions which will have the effect of increasing general traffic along the depot frontage on Kettner boulevard can bo of no eoneeivable benefit to the railroad, but rather a detriment. The greater the general traffic the greater the obstruction to complainant’s business. The opening of C street will not only bring into Kettner a new line of miscellaneous traffic, but will create a corner turning-point directly opposite that side of the depot used by cabs and vehicles brought there on business with the railroad. How this condition eould result in advantage to complainant or enhance the value of the property for railroad uses cannot reasonably be explained. This conclusion results from a consideration of fixed conditions, all necessarily apparent, as a fact and by presumption, to the street-opening commissioners and to the municipal Council.’ “Upon an examination of the evidence we discover no reason for disturbing these findings and conclusions, and, therefore, the decree will be affirmed.” Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
sc_respondentstate	50	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials. ANDERSON v. JOHNSON, WARDEN. No. 700. Argued March 6, 1968. Decided March 25, 1968. /. Brad Reed argued the cause and filed a brief for petitioner. Ed R. Davies argued the cause for respondent. With him on the brief was George F. McCanLess, Attorney General of Tennessee. Per Curiam. Four members of the Court would reverse. Four members of the Court would dismiss the writ as improvidently granted. Consequently, the judgment of the United States Court of Appeals for the Sixth Circuit remains in effect. Mr. Justice Marshall took no part in the consideration or decision of this case. Question: What state is associated with the respondent? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
songer_r_bus	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. BUKTA v. ZURBRICK. No. 5833. Circuit Court of Appeals, Sixth Circuit. June 11, 1931. H. A. Behrendt, of Detroit, Mich., for appellant. W. G-. Comb, of Detroit, Mich., for appel-lee. Before DENISON, HICKS, and HICK-ENLOOPER, Circuit Judges. HICKS, Circuit Judge. Appeal from an order dismissing a writ of habeas corpus. The purpose of the writ was to test the validity of a warrant which directed the deportation of appellant to Hungary upon the grounds: (1) That he had entered the United States without inspection; (2) that he had entered for an immoral purpose; and (3) that he had admitted the commission of a crime involving moral turpitude, to wit, perjury, prior to his entry. The evidence is sufficient to sustain the first ground and we need not therefore consider the second and third. Appellant is a native of Hungary. In' 1922 while yet in Hungary he and one Jolan ■Gal began living together as common-law husband and wife. In company with her he left Hungary on November 25,1924, destined for Canada, and they arrived at St. Johns, New Brunswick, about December 12, 1924. While living at Windsor, Canada, appellant aided the United States Immigration Service in an effort to apprehend smugglers and in consideration of such services the Immigration Inspector at Detroit issued to appellant and thewoman, J oían Gal, a temporary visa permitting them to commute daily between Windsor and Detroit for the purpose of employment. It fairly appears that appellant permitted this visa to expire without reporting to the immigration authorities but upon apprehension he was allowed to return to Canada voluntarily. Erom the confused record it is' difficult to determine clearly just what occurred after appellant’s return to Canada. Appellant claims that he again procured a visa from the American Consul at Windsor and that upon the authority thereof he and Jolan Gal again entered the United States about December 18, 1925. This was his last entry. The matter is not entirely clear, but it is fair to assume that appellant did have some color of permission to enter, possibly a temporary-visa indorsed upon his passport, or whatever document he may have had in the nature of a passport. Appellant again overstayed his temporary visa, if in fact he had it, and was arrested at Detroit upon a warrant of the Department of Labor issued October 19, 1928. This warrant of arrest exhibited the same charges finally carried into the deportation warrant. Even a visa could not of itself authorize appellant to enter. Section 2 (g) of the Immigration Act of 1924 (tit. 8, see. 202 (g) U. S. C. (8 USCA § 202 (g). Although aimed with it he may not enter elsewhere than at a designated port or without inspection or at any time other than that designated by the immigration officials. Sections 16 and 19 of the Immigration Act of 1917 (tit. 8, see. 152,155 U. S. C. (8 USCA §§ 152, 155). These se'etions apply to any and all aliens.,' Visa holders are not excepted. If appellant entered without inspection be was deportable under section 19, supra. See also United States ex rel. Natali v. Day, 45 F.(2d) 112 (C. C. A. 2); United States ex rel. Fanutti v. Flynn (D. C.) 17 F.(2d) 432; Singh v. U. S., 243 F. 557 (C. C. A. 9). It avails appellant nothing that his entry was a re-entry. Lewis v. Frick, 233 U. S. 291, 297, 34 S. Ct. 488, 58 L. Ed. 967; Zurbrick v. Borg, 47 F.(2d) 690, decided by this court, March 6, 1931; U. S. v. Day, supra; Cahan v. Carr, 47 F.(2d) 604, 605 (C. C. A. 9). Section 23 of the Immigration Act of 1924 (tit. 8, sec. 221 U. S. C. [8 USCA § 221]) placed upon appellant the burden of showing that he had entered lawfully. He failed to carry this burden. His claim that he thought he had permission to stay is beside the point. He introduced-no evidence tending to show that he underwent inspection upon his last entry. Upon the other hand, it substantially appears that he did not. There is no substantial evidence that he paid the head tax required by the Immigration Act of Feb. 5, 1917, see. 2 (tit. 8, sec. 132, U. S. C. [8 USCA § 132]), or that he ever presented himself at the designated port. He testified: “I paid the man who brought me across $100.00.” This is of course inconsistent with any other than a surreptitious entry. Upon his examination he was asked touching his last entry: “Were you at that time properly examined by the immigration officer and legally admitted to the United States?”. His answer was, “No, not in Detroit.” We have no doubt of the validity of the deportation warrant and the order denying the writ of habeas corpus is therefore affirmed. However, we think the deportation should have been to Canada. Appellant was destined for Canada upon his voyage from Hungary and lived both at Toronto and Windsor. The case will therefore be remanded with diréetions to allow the warrant to be amended so as to order deportation to Canada or in the alternative if that country refuses to receive him or imposes any condition upon his re-entry then to Hungary. Tit. 8, see. 156 U. S. C. (8 USCA § 156); Gorcevich v. Zurbrick (C. C. A. decided April 7, 1931) 48 F.(2d) 1054; United States v. Curran, 16 F.(2d) 958 (C. C. A. 2). Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_respond2_8_2	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "miscellaneous". Your task is to determine which of the following categories best describes the litigant. R. E. PECKHAM, etc., Appellant, v. RONRICO CORPORATION et al., Defendants, Appellees. No. 5596. United States Court of Appeals First Circuit. April 11, 1961. Jay E. Darlington, Hammond, Ind., for appellant. Jose G. Gonzalez, San Juan, P. R., with whom Ruben Rodriguez-Antongiorgi and Fiddler, Gonzalez, Guillemard & Rodriguez, San Juan, P. R., were on brief, for appellees. Before WOODBURY, Chief Judge, MARIS, Senior Circuit Judge, and HARTIGAN, Circuit Judge. Sitting by designation. WOODBURY, Chief Judge. This is another appeal in protracted litigation in this court and in the United States District Court for the District of Puerto Rico. This time appeal is taken from a judgment dismissing the plaintiff-appellant’s complaint and intervening claim with prejudice and ordering entry of judgment for the defendants, with costs, and also from a subsequent order of the court below denying the appellant’s motion as plaintiff and intervenor for a new trial. The only relief the appellant seeks is a new trial, presumably before another judge, on the ground that the judge who tried the case had a personal bias and prejudice against the appellant and his counsel and in favor of the defendants. After the mandate in accordance with this court’s opinion of April 13, 1954 (211 F.2d 727), went down on May 17, several motions of one sort or another were filed in the court below and orders entered thereon, and on September 29, 1954, the defendants moved that a date be set for trial. Acting in response to that motion the court on the same day set the case for trial on December 6,1954. The plaintiff and intervenor filed an opposition to this motion and the court after hearing on October 29, set its previous order aside and fixed February 21, 1955, as the date for trial. During the summer and fall of 1954 the plaintiff and intervenor filed a number of motions for inspection of the defendants’ records many of which after hearing were acted upon favorably in whole or in part. Then, on January 10, 1955, the plaintiff and intervenor filed a motion under Title 28 U.S.C. § 144 for the judge to disqualify himself for bias and prejudice with a supporting affidavit and certificate of counsel as the section requires. Two grounds for the motion were asserted in the affidavit filed in its support. One was that the court had manifested hostility to the appellant in the opinion which it had filed nearly two years before on March 31, 1953 (14 F. R.D. 181), denying his motion to intervene and which came before this court on his last appeal, Peckham v. Ronrico Corp., 1 Cir., 1954, 211 F.2d 727. The other was that like hostility on the part of the judge was shown by his remarks in the course of a hearing on November 22, 1954, on opposed motions of the plaintiff and intervenor for inspection of certain documents in the defendants’ possession. The court below denied the motion for disqualification as both untimely and insufficient and ordered the affidavit in support of the motion stricken as scandalous. The trial then proceeded on schedule. The plaintiff and intervenor took forty trial days to present his case in the court below. He alleges on this appeal that during that time the court evidenced such hostility to him and to his counsel and such partiality for the defendants that he was deprived of a fair trial in violation of his constitutional rights. We think the appellant’s motion for disqualification was properly denied by the court below. There is no need to pause to point out the insufficiency of the affidavit filed in support of the motion insofar as concerns allegations of bias and prejudice based on the language used by the court in its opinion of March 31, 1953. It is enough to say that § 144 makes timely filing of affidavits of bias and prejudice of the essence for the obvious purpose of preventing their use as a device to obtain last minute postponements of trial and to prevent a litigant from sampling the temper of the court before deciding whether or not to file an affidavit of prejudice and that the present affidavit, insofar as it relates to the statements in the district court’s opinion, which it is said contained statements of the court showing its hostility to the appellant and his counsel, was clearly filed far too late. The time to question the court’s statements in its opinion was on the appeal from the order entered in accordance with that opinion which, indeed, the appellant did, although this court did not regard the contention as having sufficient basis even to warrant mention. Having raised the question once the appellant cannot raise it again. The charge that the court below exhibited bias and prejudice in remarks made at the hearing on November 22, 1954, on the plaintiff's and intervenor’s motion for disclosure, if timely, impresses us as simply frivolous. We cannot, of course, tell the judge’s tone of voice from the record. But what the court said gives no indication that the court harbored any disqualifying bias or prejudice whatever. The same may be said with respect to the remarks made by the court during the course of the plaintiff’s and intervenor’s presentation of his case. This consumed many trial days of a busy court, the case had been pending for years and the docket entries and such parts of the transcript of the trial as are reproduced in the record appendix indicate that perhaps counsel for the plaintiff and intervenor had not proceeded as diligently as he might in bringing his case to trial and in presenting his evidence. These circumstances would justify the court in sometimes speaking sharply in an effort to expedite the trial and to induce plaintiff’s and intervenor’s counsel to come to the critical point of hie case. A careful examination of the appellant’s record appendix does not show that the court below ever went so far as to exhibit any disqualifying bias and prejudice. The assertion that the court exceeded proper bounds in its remarks is frivolous. Judgment will be entered affirming the judgment of the District Court. . See Peckham v. Ronrico Corp., 1 Cir., 1948, 171 F.2d 653; Peckham v. Ronrico Corp., 1 Cir., 1954, 211 F.2d 727. . Alternatively, the judge was asked voluntarily to disqualify himself pursuant to Title 28 U.S.C. § 455. Relief under this section is not pressed and the section is so obviously inapplicable that no further notice of it needs to be taken. . See In re United Shoe Machinery Corp., 1 Cir., 1960, 276 F.2d 77, 79. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "miscellaneous". Which of the following categories best describes the litigant? A. fiduciary, executor, or trustee B. other C. nature of the litigant not ascertained 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. Willie A. WOMACK, Appellant, v. UNITED STATES of America, Appellee. No. 21629. United States Court of Appeals District of Columbia Circuit. Argued March 28, 1968. Decided May 1, 1968. Petition for Rehearing En Banc Denied May 24, 1968. Mr. Jerome H. Simonds, Washington, D. C., (appointed by this Court) for appellant. Mr. Lawrence Lippe, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the opposition, for appellee. Before Bastían, Senior Circuit Judge, and Burger and Wright, Circuit Judges. PER CURIAM: After a direct appeal from his criminal conviction had been noted, appellant moved to hold that appeal in abeyance pending disposition by the District Court of a motion under 28 U.S.C. § 2255. The motion filed below alleged denial of due process under the principles announced in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The District Court refused a hearing on appellant’s allegations, holding that it had no jurisdiction to entertain a Section 2255 motion while a direct appeal was pending in this court. Appellant noted an appeal from this order and has moved for summary reversal. We are of the view that there is no jurisdictional bar to the District Court’s entertaining a Section 2255 motion during the pendency of a direct appeal but that the orderly administration of criminal law precludes considering such a motion absent extraordinary circumstances. A motion under Section 2255 is an extraordinary remedy and not a substitute for a direct appeal. Moreover, determination of the direct appeal may render collateral attack unnecessary. In the case at bar, the District Judge properly refused to entertain the Section 2255 motion. Although the trial was held prior to the Supreme Court’s decision in Stovall v. Denno, swpra, and the record on direct appeal may, therefore, be insufficient to warrant reversal of the conviction, this court may nonetheless remand for further proceedings if there appears to be a nonfrivolous Stovall claim. See Wright v. United States, No. 20,153 (D.C.Cir. Jan. 31, 1968). Since such an evidentiary hearing is all that appellant seeks by way of Section 2255, we think that an adequate remedy is available on direct appeal. Appellant would, of course, be free to renew his Section 2255 motion after disposition of the direct appeal, should relief still be necessary. Motion for summary reversal denied. . Where tlio District Judge concludes that the motion is or may be appropriate, he may follow the procedure outlined in Smith v. Pollin, 90 U.S.App.D.C. 178, 194 F.2d 349 (1952). See also Smith v. United States, 109 U.S.App.D.C. 28, n. 9, 283 F.2d 607 (1960), cert. denied, 364 U.S. 938, 81 S.Ct. 387, 5 L.Ed.2d 369 (1961). . Thornton v. United States, 125 U.S.App.D.C. 114, 117-118, 368 F.2d 822, 825-826 (1966). . United States v. Brilliant, 274 F.2d 618 (2d Cir.), cert. denied, 363 U.S. 806, 80 S.Ct. 1242, 4 L.Ed.2d 1149 (1960) ; Black v. United States, 269 F.2d 38, 41 (9th Cir. 1959), cert. denied, 361 U.S. 938, 80 S.Ct. 379, 4 L.Ed.2d 357 (1960); Bell v. United States, 265 F.Supp. 311 (N.D. Miss.1966), aff’d, 375 F.2d 763 (5th Cir.), cert. denied, 389 U.S. 881, 88 S.Ct. 121, 19 L.Ed.2d 175 (1967). Cf. Adams v. United States ex rel. McCann, 317 U. S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942). . The only factor in this case running in favor of granting a hearing is that more than seven months had elapsed since sentencing when the District Court refused to entertain the Section 2255 motion. More than seventeen months have now elapsed since appellant’s allegedly improper pre-trial identification. Much of the delay since the conviction is attributable to appellant’s seeking extraordinary relief rather than pursuing his direct appeal. 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:
sc_casedisposition	C	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. ARONSON v. QUICK POINT PENCIL CO. No. 77-1413. Argued December 6, 1978 Decided February 28, 1979 Burger, C. J., delivered the opinion of the Court, in which Brennan, Stewart, White, Marshall, Powell, Rehnquist, and Stevens, JJ., joined. Blackmun, J., filed an opinion concurring in the result, post, p. 266. C. Lee Cook, Jr., argued the cause for petitioner. With him on the briefs were David C. Bogan, Robert S. Robin, and Robert E. Knechtel. Erwin N. Griswold argued the cause and filed a brief for respondent. Barry Grossman argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General McCree, Assistant Attorney General Shene-field, Deputy Solicitor General Easterbrook, Stephen M. Shapiro, and Roger B. Andewelt. Ned L. Conley filed a brief for the Patent, Trademark and Copyright Section of the State Bar of Texas as amicus curiae urging reversal. Edward S. Irons and Richard H. Stern filed a brief for Ercon, Inc., as amicus curiae urging affirmance. Briefs of amici curiae were filed by Tom Arnold for the American Patent Law Assn.; and by Leonard B. Mackey and Eugene L. Bernard for the Licensing Executives Society (U. S. A.), Inc. Mr. Chief Justice Burger delivered the opinion of the Court. We granted certiorari, 436 U. S. 943, to consider whether federal patent law pre-empts state contract law so as to pre-elude enforcement of a contract to pay royalties to a patent applicant, on sales of articles embodying the putative invention, for so long as the contracting party sells them, if a patent is not granted. (1) In October 1955 the petitioner, Mrs. Jane Aronson, filed an application, Serial No. 542677, for a patent on a new form of keyholder. Although ingenious, the design was so simple that it readily could be copied unless it was protected by patent. In June 1956, while the patent application was pending, Mrs. Aronson negotiated a contract with the respondent, Quick Point Pencil Co., for the manufacture and sale of the keyholder. The contract was embodied in two documents. In the first, a letter from Quick Point to Mrs. Aronson, Quick Point agreed to pay Mrs. Aronson a royalty of 5% of the selling price in return for “the exclusive right to make and sell keyholders of the type shown in your application, Serial No. 542677.” The letter further provided that the parties would consult one another concerning the steps to be taken “[i]n the event of any infringement.” The contract did not require Quick Point to manufacture the keyholder. Mrs. Aronson received a $750 advance on royalties and was entitled to rescind the exclusive license if Quick Point did not sell a million keyholders by the end of 1957. Quick Point retained the right to cancel the agreement whenever “the volume of sales does not meet our expectations.” The duration of the agreement was not otherwise prescribed. A contemporaneous document provided that if Mrs. Aron-son’s patent application was “not allowed within five (5) years, Quick Point Pencil Co. [would] pay . . . two and one half percent (2%%) of sales ... so long as you [Quick Point] continue to sell same.” In June 1961, when Mrs. Aronson had failed to obtain a patent on the keyholder within the five years specified in the agreement, Quick Point asserted its contractual right to reduce royalty payments to 2%% of sales. In September of that year the Board of Patent Appeals issued a final rejection of the application on the ground that the keyholder was not patentable, and Mrs. Aronson did not appeal. Quick Point continued to pay reduced royalties to her for 14 years thereafter. The market was more receptive to the keyholder’s novelty and utility than the Patent Office. By September 1975 Quick Point had made sales in excess of $7 million and paid Mrs. Aronson royalties totaling $203,963.84; sales were continuing to rise. However, while Quick Point was able to pre-empt the market in the earlier years and was long the only manufacturer of the Aronson keyholder, copies began to appear in the late 1960’s. Quick Point’s competitors, of course, were not required to pay royalties for their use of the design. Quick Point’s share of the Aronson keyholder market has declined during the past decade. (2) In November 1975 Quick Point commenced an action in the United States District Court for a declaratory judgment, pursuant to 28 U. S. C. § 2201, that the royalty agreement was unenforceable. Quick Point asserted that state law which might otherwise make the contract enforceable was preempted by federal patent law. This is the only issue presented to us for decision. Both parties moved for summary judgment on affidavits, exhibits, and stipulations of fact. The District Court concluded that the “language of the agreement is plain, clear and unequivocal and has no relation as to whether or not a patent is ever granted.” Accordingly, it held that the agreement was valid, and that Quick Point was obliged to pay the agreed royalties pursuant to the contract for so long as it manufactured the keyholder. The Court of Appeals reversed, one judge dissenting. 567 F. 2d 757. It held that since the parties contracted with reference to a pending patent application, Mrs. Aronson was estopped from denying that patent law principles governed her contract with Quick Point. Although acknowledging that this Court had never decided the precise issue, the Court of Appeals held that our prior decisions regarding patent licenses compelled the conclusion that Quick Point’s contract with Mrs. Aronson became unenforceable once she failed to obtain a patent. The court held that a continuing obligation to pay royalties would be contrary to “the strong federal policy favoring the full and free use of ideas in the public domain,” Lear, Inc. v. Adkins, 395 U. S. 653, 674 (1969). The court also observed that if Mrs. Aronson actually had obtained a patent, Quick Point would have escaped its royalty obligations either if the patent were held to be invalid, see ibid., or upon its expiration after 17 years, see Brulotte v. Thys Co., 379 U. S. 29 (1964). Accordingly, it concluded that a licensee should be relieved of royalty obligations when the licensor’s efforts to obtain a contemplated patent prove unsuccessful. (3) On this record it is clear that the parties contracted with full awareness of both the pendency of a patent application and the possibility that a patent might not issue. The clause de-escalating the royalty by half in the event no patent issued within five years makes that crystal clear. Quick Point apparently placed a significant value on exploiting the basic novelty of the device, even if no patent issued; its success demonstrates that this judgment was well founded. Assuming, arguendo, that the initial letter and the commitment to pay a 5% royalty was subject to federal patent law, the provision relating to the 2y2% royalty was explicitly independent of federal law. The cases and principles relied on by the Court of Appeals and Quick Point do not bear on a contract that does not rely on a patent, particularly where, as here, the contracting parties agreed expressly as to alternative obligations if no patent should issue. Commercial agreements traditionally are the domain of state law. State law is not displaced merely because the contract relates to intellectual property which may or may not be patentable; the states are free to regulate the use of such intellectual property in any manner not inconsistent with federal law. Kewanee Oil Co. v. Bicron Corp., 416 U. S. 470, 479 (1974); see Goldstein v. California, 412 U. S. 546 (1973). In this as in other fields, the question of whether federal law pre-empts state law “involves a consideration of whether that law 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.5 Hines v. Davidowitz, 312 U. S. 52, 67 (1941).” Kewanee Oil Co., supra, at 479. If it does not, state law governs. In Kewanee Oil Co., supra, at 480-481, we reviewed the purposes of the federal patent system. First, patent law seeks to foster and rewaxd invention; second, it promotes disclosure of inventions to stimulate further innovation and to permit the public to practice the invention once the patent expires; third, the stringent requirements for patent protection seek to assure that ideas in the public domain remain there for the free use of the public. Enforcement of Quick Point's agreement with Mrs. Aronson is not inconsistent with any of these aims. Permitting inventors to make enforceable agreements licensing the use of their inventions in return for royalties provides an additional incentive to invention. Similarly, encouraging Mrs. Aronson to make arrangements for the manufacture of her keyholder furthers the federal policy of disclosure of inventions; these simple devices display the novel idea which they embody wherever they are seen. Quick Point argues that enforcement of such contracts conflicts with the federal policy against withdrawing ideas from the public domain and discourages recourse to the federal patent system by allowing states to extend “perpetual protection to articles too lacking in novelty to merit any patent at all under federal constitutional standards." Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225, 232 (1964). We find no merit in this contention. Enforcement of the agreement does not withdraw any idea from the public domain. The design for the keyholder was not in the public domain before Quick Point obtained its license to manufacture it. See Kewanee Oil Co., supra, at 484. In negotiating the agreement, Mrs. Aronson disclosed the design in confidence. Had Quick Point tried to exploit the design in breach of that confidence, it would have risked legal liability. It is equally clear that the design entered the public domain as a result of the manufacture and sale of the keyholders under the contract. Requiring Quick Point to bear the burden of royalties for the use of the design is no more inconsistent with federal patent law than any of the other costs involved in being the first to introduce a new product to the market, such as outlays for research and development, and marketing and promotional expenses. For reasons which Quick Point’s experience with the Aronson keyholder demonstrate, innovative entrepreneurs have usually found such costs to be well wotth paying. Finally, enforcement of this agreement does not discourage anyone from seeking a patent. Mrs. Aronson attempted to obtain a patent for over five years. It is quite true that had she succeeded, she would have received a 5% royalty only on keyholders sold during the 17-year life of the patent. Offsetting the limited terms of royalty payments, she would have received twice as much per dollar of Quick Point’s sales, and both she and Quick Point could have licensed any others who produced the same keyholder. Which course would have produced the greater yield to the contracting parties is a matter of speculation; the parties resolved the uncertainties by their bargain. (4) No decision of this Court relating to patents justifies relieving Quick Point of its contract obligations. We have held that a state may not forbid the copying of an idea in the public domain which does not meet the requirements for federal patent protection. Compco Corp. v. Day-Brite Lighting, Inc., 376 U. S. 234 (1964); Sears, Roebuck & Co. v. Stiffel Co., supra. Enforcement of Quick Point’s agreement, however, does not prevent anyone from copying the keyholder. It merely requires Quick Point to pay the consideration which it promised in return for the use of a novel device which enabled it to pre-empt the market. In Lear, Inc. v. Adkins, 395 U. S. 653 (1969), we held that a person licensed to use a patent may challenge the validity of the patent, and that a licensee who establishes that the patent is invalid need not pay the royalties accrued under the licensing agreement subsequent to the issuance of the patent. Both holdings relied on the desirability of encouraging licensees to challenge the validity of patents, to further the strong federal policy that only inventions which meet the rigorous requirements of patentability shall be withdrawn from the public domain. Id., at 670-671, 673-674. Accordingly, neither the holding nor the rationale of Lear controls when no patent has issued, and no ideas have been withdrawn from public use. Enforcement of the royalty agreement here is also consistent with the principles treated in Brulotte v. Thys Co., 379 U. S. 29 (1964). There, we held that the obligation to pay royalties in return for the use of a patented device may not extend beyond the life of the patent. The principle underlying that holding was simply that the monopoly granted under a patent cannot lawfully be used to “negotiate with the leverage of that monopoly.” The Court emphasized that to “use that leverage to project those royalty payments beyond the life of the patent is analogous to an effort to enlarge the monopoly of the patent. . . .” Id., at 33. Here the reduced royalty which is challenged, far from being negotiated “with the leverage” of a patent, rested on the contingency that no patent would issue within five years. No doubt a pending patent application gives the applicant some additional bargaining power for purposes of negotiating a royalty agreement. The pending application allows the inventor to hold out the hope of an exclusive right to exploit the idea, as well as the threat that the other party will be prevented from using the idea for 17 years. However, the amount of leverage arising from a patent application depends on how likely the parties consider it to be that a valid patent will issue. Here, where no patent ever issued, the record is entirely clear that the parties assigned a substantial likelihood to that contingency, since they specifically provided for a reduced royalty in the event no patent issued within five years. This case does not require us to draw the line between what constitutes abuse of a pending application and what does not. It is clear that whatever role the pending application played in the negotiation of the 5% royalty, it played no part in the contract to pay the 2%% royalty indefinitely. Our holding in Kewanee Oil Co. puts to rest the contention that federal law pre-empts and renders unenforceable the contract made by these parties. There we held that state law forbidding the misappropriation of trade secrets was not preempted by federal patent law. We observed: “Certainly the patent policy of encouraging invention is not disturbed by the existence of another form of incentive to invention. In this respect the two systems [patent and trade secret law] are not and never would be in conflict.” 416 U. S., at 484. Enforcement of this royalty agreement is even less offensive to federal patent policies than state law protecting trade secrets. The most commonly accepted definition of trade secrets is restricted to confidential information which is not disclosed in the normal process of exploitation. See Restatement of Torts § 757, Comment b, p. 5 (1939). Accordingly, the exploitation of trade secrets under state law may not satisfy the federal policy in favor of disclosure, whereas disclosure is inescapable in exploiting a device like the Aronson keyholder. Enforcement of these contractual obligations, freely undertaken in arm’s-length negotiation and with no fixed reliance on a patent or a probable patent grant, will “encourage invention in areas where patent law does not reach, and will prompt the independent innovator to proceed with the discovery and exploitation of his invention. Competition is fostered and the public is not deprived of the use of valuable, if not quite patentable, invention.” (Footnote omitted.) 416 U. S., at 485. The device which is the subject of this contract ceased to have any secrecy as soon as it was first marketed, yet when the contract was negotiated the inventiveness and novelty were sufficiently apparent to induce an experienced novelty manufacturer to agree to pay for the opportunity to be first in the market. Federal patent law is not a barrier to such a contract. Reversed. In April 1961, while Mrs. Aronson’s patent application was pending, her husband sought a patent on a different keyholder and made plans to license another company to manufacture it. Quick Point's attorney wrote to the couple that the proposed new license would violate the 1956 agreement. He observed that “your license agreement is in respect of the disclosure of said Jane [Aronson’s] application (not merely in respect of its claims) and that even if no patent is ever granted on the Jane [Aronson] application, Quick Point Pencil Company is obligated to pay royalties in respect of any keyholder manufactured by it in accordance with any disclosure of said application.” (Emphasis added.) 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:
sc_caseoriginstate	06	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the court in which the case originated. Consider the District of Columbia as a state. DOUGLAS et al. v. CALIFORNIA. No. 34. Argued April 17, 1962. Restored to the calendar for reargument June 25, 1962. Reargued January 16, 1963. Decided March 18, 1963. Marvin M. Mitchelson and Burton Marks reargued the ■ cause for petitioners. With them on the briefs were A. L. Wirin, Fred Okrand and Nanette Dembitz. William E. James, Assistant Attorney General of California, and Jack E. Goertzen, Deputy Attorney General, argued the cause for respondent. With them on the briefs was Stanley Mosk, Attorney General. Mr. Justice Douglas delivered the opinion of the Court. Petitioners, Bennie Will Meyes and William Douglas, were jointly tried and convicted in a California court on an information charging them with 13 felonies. A single public defender was appointed to represent them. At the commencement of the trial, the defender moved for a continuance, stating that the case was very complicated, that he was not as prepared as he felt he should be because he was handling a different defense every day, and that there was a conflict of interest between the petitioners requiring the appointment of separate counsel for each of them. This motion was denied. Thereafter, petitioners dismissed the defender, claiming he was unprepared, and again renewed motions for separate counsel and for a continuance. These motions also were denied, and petitioners were ultimately convicted by a jury of all 13 felonies, which included robbery, assault with a deadly weapon, and assault with intent to commit murder. Both were given prison terms. Both appealed as of right to the California District Court of Appeal. That court affirmed their convictions. 187 Cal. App. 2d 802, 10 Cal. Rptr. 188. Both Meyes and Douglas then petitioned for further discretionary review in the California Supreme Court, but their petitions were denied without a hearing. 187 Cal. App. 2d, at. 813, 10 Cal. Rptr., at 195. We granted certiorari. 368 U. S. 815. Although several questions are presented in the petition for certiorari, we address ourselves to only one of them. The record shows that petitioners requested, and were denied, the assistance of counsel on appeal, even though it plainly appeared they were indigents. In denying petitioners’ requests, the California District Court of Appeal stated that it had “gone through” the record and had come to the conclusion that “no good whatever could be served by appointment of counsel.” 187 Cal. App. 2d 802, 812,10 Cal. Rptr. 188,195. The District Court of Appeal was acting in accordance with a California rule of criminal procedure which provides that state appellate courts, upon the request of an indigent for counsel, may make “an independent investigation of the record and determine whether it would be of advantage to the defendant or helpful to the appellate court to have counsel appointed. . . . After such investigation, appellate courts should appoint counsel if in their opinion it would be helpful to the defendant or the court, and should deny the appointment of counsel only if in their judgment such appointment would be of no value to either the defendant or the court.” People v. Hyde, 51 Cal. 2d 152, 154, 331 P. 2d 42, 43. We agree, however, with Justice Traynor of the California Supreme Court, who said that the “[d]enial of counsel on appeal [to an indigent] would seem to be a discrimination at least as invidious as that condemned in Griffin v. Illinois . . . .” People v. Brown, 55 Cal. 2d 64, 71, 357 P. 2d 1072, 1076 (concurring opinion). In Griffin v. Illinois., 351 U. S. 12, we held that a State, may not grant appellate review in such a way as to discriminate against some convicted defendants on account of their poverty. There, as in Draper v. Washington, post, p. 487, the right to a free transcript on appeal was in issue. Here the issue is whether or not an indigent shall be denied the assistance of counsel on appeal. In either case the evil is the same: discrimination against the indigent. For there can be no equal justice where the kind of an appeal a man enjoys “depends on the amount of money he has.” Griffin v. Illinois, supra, at p. 19. In spite of California’s forward treatment of indigents, under its present practice the type of an appeal a person is afforded in the District Court of Appeal hinges upon whether or not he can pay for the assistance of counsel. If he can the appellate court passes on the merits of his case only after having the full benefit of written briefs and oral argument by counsel. If he cannot the appellate court is forced to prejudge the merits before it can even determine whether counsel should be provided. At this stage in the proceedings only the barren record speaks for the indigent, and, unless the printed pages show that an injustice has been committed, he is forced to go without a champion on appeal. Any real chance he may have had of showing that his appeal has hidden merit is deprived him when the court decides on an ex parte examination of the record that the assistance of counsel is not required. We are not here concerned with problems that might arise from the denial of counsel for the preparation of a petition for discretionary or mandatory review beyond the stage in the appellate process at which the claims have once been presented by a lawyer and passed upon by an appellate court. We are dealing only with the first appeal, granted as a matter of right to rich and poor alike (Cal. Penal Code §§ 1235, 1237), from a criminal conviction. We need not now decide whether California would have to provide counsel for an indigent seeking a discretionary hearing from the California Supreme Court after the District Court of Appeal had sustained his conviction (see Cal. Const., Art. VI, § 4c; Cal. Rules on Appeal, Rules 28, 29), or whether counsel must be appointed for an indigent seeking review of an appellate affirmance of his conviction in this Court by appeal as of right or by petition for a writ of certiorari which lies within the Court’s discretion. But it is appropriate to observe that a State Can, consistently with the Fourteenth Amendment, provide for differences so long as the result does not amount to a denial of due process or an “invidious discrimination.” Williamson v. Lee Optical Co., 348 U. S. 483, 489; Griffin y. Illinois, supra, p. 18. Absolute equality is not required; lines can be and are drawn and we often sustain them. See Tigner v. Texas, 310 U. S. 141; Goesaert v. Cleary, 335 U. S. 464. But where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor. When an indigent is forced to run this gantlet of a preliminary showing of merit, the right to appeal does not comport with fair procedure. In the federal courts, on the other hand, an indigent must be afforded counsel on appeal whenever he challenges a certification that the appeal is not taken in good faith. Johnson v. United States, 352 U. S. 565. The federal courts must honor his request for counsel regardless of what they think the merits of the case may be; and “representation in the role of an advocate is required.” Ellis v. United States, 356 U. S. 674, 675. In California, however, once the court has “gone through” the record and denied counsel, the indigent has no recourse but to prosecute his appeal on his own, as best he can, no matter how meritorious his case may turn out to be. The present case, where counsel was denied petitioners on appeal, shows that the discrimination is not between “possibly good and obviously bad cases,” but between cases where the rich man can require the court to listen to argument of counsel before deciding on the merits, but a poor man cannot. There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself. The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal. We vacate the judgment of the District Court of Appeal and remand the case to that court for further proceedings not inconsistent with this opinion. It is so ordered. While the notation of a denial of hearing by the California Supreme Court indicates that only Meyes petitioned that Court for a hearing, and is silent as to Douglas’ attempts at further review, the record shows that the petition for review was expressly filed on behalf of Douglas as well. Both Meyes and Douglas, therefore, have exhausted their state remedies and both cases are properly before us. 28 U. S. C. § 1257 (3). “When society acts to deprive one of its members of his life, liberty or property, it takes its most awesome steps. No general re-, spect for, nor adherence to, the law as a whole can well be expected without judicial recognition of the paramount need for prompt, eminently fair and sober criminal law procedures. The methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilization may be judged.” Coppedge v. United States, 369 U. S. 438, 449. Question: What is the state of the court in which the case originated? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
songer_opinstat	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. Audrey WALKER, Petitioner-Appellant, v. Martha WHEELER, Superintendent, Respondent-Appellee. No. 18884. United States Court of Appeals Sixth Circuit. May 27, 1969. James R. Willis, Cleveland, Ohio, for petitioner-appellant. Leo J. Conway, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellee; Paul W. Brown, Atty. Gen. of Ohio, on brief. Before PECK and McCREE, Circuit Judges, and McALLISTER, Senior Circuit Judge. PER CURIAM. This is an appeal from the District Court’s denial of a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 (1948). A number of constitutional issues are presented, but we reach only the question whether in this ease the District Court is precluded from considering the validity of one of appellant’s convictions because the sentence imposed is concurrent with, and identical to, a sentence on a later conviction, the validity of which has not been successfully attacked. Appellant was convicted of a narcotics offense in the state court on December 19, 1960, and sentenced to a term of ten to twenty years in the Ohio Reformatory for Women. In December, 1961, she was convicted on other counts that were related to the original narcotics conviction, but which had been severed from the original indictment. These later convictions resulted in sentences of ten to twenty years, to run concurrently with the sentence on the first conviction, and twenty to forty years, to run consecutively to that sentence. Appellant attacks her first conviction on the ground that she was denied an appeal because of the state trial court’s erroneous determination that she was not indigent and therefore entitled to the costs of a bill of exceptions. The state court apparently based its finding on the fact that appellant’s paramour and co-defendant, Yancey Wilson, had paid for her trial counsel and could afford to furnish her a bill of exceptions. The District Judge declined to consider appellant’s contention despite the state court’s unsatisfactory reason for finding her not indigent. Relying on Mc-Nally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934), and Coleman v. Maxwell, 387 F.2d 134 (6th Cir. 1967), he held that since appellant’s second conviction had not been successfully attacked and the sentence on that conviction was concurrent with, and identical to, the sentence on the first conviction, he did not have to consider the validity of the confinement pursuant to the first conviction. Subsequent to the District Judge’s consideration of this case, the Supreme Court overruled McNally in Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968). This decision would seem also to erode Coleman, at least to the extent that in this case the District Judge should consider appellant’s contentions concerning her first conviction. Appellee’s contention that Peyton is distinguishable because under Ohio law appellant’s eligibility for parole is unaffected by the existence of her second conviction is unpersuasive. It is unlikely that in practice parole is granted as readily to a person serving concurrent sentences on several convictions as to one serving a sentence for a single offense. See Williams v. Peyton, 372 F.2d 216, 220 (4th Cir. 1967). The decision of the District Court is reversed and the case is remanded for proceedings consistent with this opinion. Question: Is the opinion writer identified in the opinion, or was the opinion per curiam? A. Signed, with reasons B. Per curiam, with reasons C. Not ascertained Answer:
songer_numappel	99	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Ralph J. GALLIANO, et al., Appellants, v. UNITED STATES POSTAL SERVICE. No. 86-5684. United States Court of Appeals, District of Columbia Circuit. Argued Sept. 28, 1987. Decided Jan. 8, 1988. MacKenzie Canter III, with whom Mark J. Diskin, Washington, D.C., was on brief, for appellants. Sandra C. McFeeley, Atty., U.S. Postal Service, with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth, Michael J. Ryan and Bradley L. Kelly, Asst. U.S. At-tys., Washington, D.C., were on brief, for appellee. Lawrence M. Noble, Gen. Counsel, Richard B. Bader, Asst. Gen. Counsel, Jonathan A. Bernstein, Atty., Fed. Election Com’n, Washington, D.C., on the brief for amicus curiae urging reversal. Before RUTH BADER GINSBURG and WILLIAMS, Circuit Judges, AUBREY E. ROBINSON, Jr., Chief Judge, U.S. District Court for the District of Columbia. Sitting by designation pursuant to 28 U.S.C. § 292(a). Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG. RUTH BADER GINSBURG, Circuit Judge: This case presents an issue of first impression concerning the regulation of solicitations for political contributions: Do the prescriptions of the Federal Election Campaign Act (FECA or Act) — in particular, those on name identifications and disclaimers contained in 2 U.S.C. §§ 432(e)(4) and 441d(a) — displace pro tanto application of the postal fraud proscriptions contained in 39 U.S.C. § 3005 to mail solicitations for funds to support political action? Parties charged with violating the postal fraud proscriptions, and the Federal Election Commission (FEC or Commission), as amicus curiae, are ranged on one side of the question; the United States Postal Service stands on the other side. We hold that FECA does qualify or control in part the operation of the postal fraud measure. Accordingly, we reverse the judgment of the district court, 669 F.Supp. 488 dismissing the action, and return the case to the district court with instructions to remand the matter to the Postal Service for reconsideration of its decision in light of this opinion. I. The Congressional Majority Committee (CMC) is an independent political action committee; founded in 1980, the organization maintains its offices in Arlington, Virginia. CMC raises money through political appeals and independently decides how to spend the funds it solicits in furtherance of its projects; it contributes no money directly to the candidates it supports, or to their authorized campaign committee. Ralph J. Galliano is the chairman of CMC. In September 1983, CMC decided to urge the election of then Representative Phil Gramm as United States Senator for Texas. CMC therefore set up, as its independent project, Americans for Phil Gramm in ’84 (APG). Between November 1983 and April 1984, CMC mailed, in three batches, over 200,000 solicitations for contributions to APG. The APG solicitations featured a six-page letter. The letterhead displayed in large print, “Americans for Phil Gramm in ’84,” followed in the next two lines by the statement, in small print, “an independent project of the Congressional Majority Committee” and, in the same small print, CMC’s address and telephone number in Arlington. In the body of the letter, CMC was described as “an independent conservative political action committee.” “Ralph J. Gal-liano, Chairman, Americans for Phil Gramm in ’84,” identified the letter signer. Flyers accompanying each mailing stated that in 1982 CMC had “raised and contributed well over one-half million dollars to candidates nationwide.” Joint Appendix (J.A.) at 55-67 (first mailing); J.A. at 68-80 (second mailing); Administrative Record (A.R.) at 340-52 (third mailing). The second and third mailings, but not the first mailing, included, in small print at the bottom of the first page of the solicitation letter, this disclaimer: “Not authorized by any candidate or candidate’s committee.” J.A. at 68 (second mailing); A.R. at 340 (third mailing). All three mailings enclosed a pre-paid envelope addressed to APG, c/o CMC, in Arlington, Va. No mailing mentioned Gramm’s official campaign committee, Friends of Phil Gramm (FPG). Representative Gramm learned of the APG appeals and became concerned that those solicitations were misleading potential supporters and diverting contributions away from his campaign. FPG, Gramm’s only authorized campaign committee, took legal action on three fronts. First, in November 1983, Gramm filed an administrative complaint with the FEC alleging that Galliano, CMC, and APG had violated 2 U.S.C. §§ 432(e)(4), 441d(a)(3) (1982) and 11 C.F.R. § 110.1 l(a)(l)(iii) (1983). These provisions require a political committee not authorized by any candidate to refrain from including the name of any candidate in its name and to state clearly in its political communications both the name of the person or group who paid for the communication and the fact that the communication is not authorized by any candidate. After investigating Gramm’s complaint, the FEC’s General Counsel recommended only one adverse action; he proposed that the Commission find probable cause to believe a violation of section 441d(a)(3) had occurred because the first (November 1983) APG mailing had failed to state clearly that the solicitation was not authorized by any candidate or candidate’s committee. The Commission approved its General Counsel’s recommendation and entered into a conciliation agreement with CMC pursuant to 2 U.S.C. § 437g(a)(4)(A) (1982). See In re Congressional Majority Committee, M.U.R. (Matter Under Review) 1603 (July 8, 1985), reprinted in Brief for the FEC, Amicus Curiae, as Attachment 3. Second, in April 1984, FPG sued APG, CMC, and Galliano in the United States District Court for the Eastern District of Virginia alleging jurisdiction based on diversity of citizenship and asserting state law claims for fraud and the unauthorized use of Gramm’s name for advertising or commercial purposes. The court denied FPG’s plea for preliminary injunctive relief. The state law claim based on APG’s use of Phil Gramm’s name in its title, the court ruled, could not stand, because FECA, specifically, 2 U.S.C. § 432(c)(4) (1982), provided the exclusive regulatory regime for that matter. On the fraud charge, the court thought that the precise disclaimer prescriptions of FECA, 2 U.S.C. § 441d(a)(3) (1982), might preempt part of the state law claim. In any event, the court found, FPG had not adduced facts at the evidentiary hearing adequate to demonstrate the intent to deceive that is, under state law, an essential element of a fraud claim. Friends of Phil Gramm v. Americans for Phil Gramm in ’84, 587 F.Supp. 769 (E.D.Va.1984). No appeal was taken. Third, some time before filing the diversity action in federal court, Gramm notified the General Counsel of the U.S. Postal Service of APG’s solicitations. On March 15, 1984, the General Counsel, pursuant to 39 C.F.R. § 952.5 (1983), filed an administrative complaint against Galliano, APG, and CMC, appellants here (hereafter referred to collectively as APG); the complaint charged that the APG solicitations were unlawful under 39 U.S.C. § 3005 (1982), a measure initially enacted in 1872, which proscribes “scheme[s] or deviee[s] for obtaining money... through the mail by means of false representations. In particular, the Service charged that APG’s mailings had conveyed “directly or indirectly” the following false representations: a) Respondents [Galliano, APG, and CMC] are authorized by Congressman Phil Gramm to solicit and collect funds for his campaign to be elected to the United States Senate; b) Contributors to Respondents may reasonably expect that Congressman Phil Gramm or his authorized campaign committee will receive the money that is sent to Respondents; and c) In 1982 Congressional Majority Committee raised and contributed well over one-half million dollars to candidates nationwide. In re Galliano, P.S. Docket No. 19/15 at 2 (May 2, 1985), reprinted in J.A. at 25, quoting Complaint of U.S. Postal Service (March 15, 1984). After a hearing, the Administrative Law Judge (AU) found that APG had made the representations charged in the administrative complaint, and that the representations were both material and false; accordingly, the AU concluded that APG had violated section 3005. In re Galliano, P.S. Docket No. 19/15 (June 13, 1984) (Initial Decision). APG appealed and thereafter filed a motion to dismiss the entire Postal Service proceedings because of a settlement APG had reached with FPG, in view of which FPG had no objection to the requested dismissal. The Judicial Officer of the Postal Service denied the motion to dismiss, reasoning that “other members of the public still need[ed] the protections [of section 3005].” See J.A. at 26-27. Based principally on an assessment of the misrepresentational nature of ÁPG’s name and disclaimers, the Judicial Officer affirmed the AU’s decision and issued two remedial orders standard under the statute: one order required the postmaster at Arlington, Va. to stop most mail addressed to APG, permit inspection of the stopped mail by APG, and return to the sender any mail containing responses to the APG solicitations; the other ordered APG to cease and desist from falsely representing that it was authorized by Gramm to solicit contributions, or that the contributions would go directly to the Gramm campaign, and from misrepresenting the nature of its past fundraising efforts. In re Galliano, P.S. Docket No. 19/15 (May 2, 1985) (Postal Service Decision), reprinted in J.A. at 24-42. No participant in these proceedings is aware of any prior case applying section 3005 to solicitations for political contributions. See Brief for the FEC, Amicus Curiae, at 11. On August 7, 1985, APG commenced the instant action seeking judicial review of the Postal Service decision. APG urged, centrally, that in the context of solicitations for political contributions, the Postal Service either cannot regulate speech at all, or cannot do so without first obtaining a judicial determination that the speech at issue is unprotected by the first amendment. On cross-motions for summary judgment, the district court ruled in favor of the Postal Service and dismissed the action. The court held that, without offense to the first amendment, the Postal Service could determine, in the first instance, whether a mail solicitation for political contributions made false representations in order to obtain money. Galliano v. United States Postal Service, 669 F.Supp. 488 (D.D.C.1986). Following the September 28, 1987 oral argument on APG’s appeal to this court, we directed the parties and invited the FEC to submit briefs addressing the following question: Bearing in mind the first amendment concerns implicated, should the prescriptions of the Federal Election Campaign Act, particularly those contained in 2 U.S.C. §§ 432(e)(4), 441d(a), be deemed to occupy the field and to displace pro tanto the application of 39 U.S.C. § 3005 to mailings of the kind at issue in this case? Order filed October 28,1987. After considering the briefs filed in response by APG, the FEC, and the Postal Service, we hold that the Postal Service, in its enforcement of 39 U.S.C. § 3005, may not impose constraints upon the names or disclaimers of organizations mailing solicitations for political contributions beyond those imposed by FECA. II. Regarding the tension between the general false representation provisions of 39 U.S.C. § 3005 (1982) and the specific disclosure requirements of 2 U.S.C. §§ 432(e)(4), 441d(a)(3) (1982), the participants in this appeal invoke familiar principles of statutory interpretation. Appellants and their amicus, the FEC, emphasize that “a precisely drawn, detailed statute pre-empts more general remedies.” Brown v. General Servs. Admin., 425 U.S. 820, 834, 96 S.Ct. 1961, 1968, 48 L.Ed.2d 402 (1976). See also Radzanower v. Touche Ross & Co., 426 U.S. 148, 153, 96 S.Ct. 1989, 1992, 48 L.Ed.2d 540 (1976), quoting Morton v. Mancari, 417 U.S. 535, 550-51, 94 S.Ct. 2474, 2482-83, 41 L.Ed.2d 290 (1974) (“When there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.”). The Postal Service, on the other hand, stresses that “when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Morton v. Mancari, 417 U.S. at 551, 94 S.Ct. at 2483. See also Pennsylvania v. ICC, 561 F.2d 278, 292 (D.C.Cir.1977) (“It is well established that when two regulatory systems are applicable to a certain subject matter, they are to be reconciled and, to the extent possible, both given effect.”). We set out first each side’s elaborations upon these basic themes, and then explain how we believe the statutes are best reconciled. The overarching consideration, according to appellants and the FEC, is the context in which each statute came into being. Section 3005 originated well over a century ago; as the Postal Service itself observes, it is one of the oldest federal consumer protection statutes, and it is notable for the breadth and generality of its language. See Brief for Appellee at 12. Nothing in the legislative history of section 3005 indicates that Congress ever adverted to the potential application of the measure to political solicitations of the kind involved here, and the special problems such applications might entail. By contrast, the name identification and disclaimer provisions of FECA, 2 U.S.C. §§ 432(e)(4), 441d(a)(3) (1982), were framed with the particular problems Congress identified in political solicitations in clear focus, and with first amendment concerns in plain view. See Brief for the FEC, Amicus Curiae, at 10-11. PECA, appellants and the FEC emphasize, establishes a comprehensive regime of limitations on campaign contributions and expenditures and extensive disclosure requirements including sections 432(e)(4) and 441d(a)(3); it is thus precisely the kind of detailed statute whose specific provisions control matters that might otherwise fall under the total governance of a more broadly conceived and crafted statute. See, e.g., National Republican Congressional Comm. v. Legi-Tech Corp., 795 F.2d 190, 192 (D.C.Cir.1986) (“[T]he provisions of the Copyright Act... dealing with compilations generally, must be construed in a manner that will accommodate [FECA].”). Part of the design of FECA, appellants and the Commission strenuously urge, is to place responsibility for the civil enforcement of matters specifically covered by the Act exclusively in the hands of the FEC in the first instance. Consistent with this view of FECA’s and the FEC’s province, 2 U.S.C. § 437c(b)(l) (1982) provides: The Commission shall administer, seek to obtain compliance with, and formulate policy with respect to, this Act and chapter 95 and chapter 96 of Title 26. The Commission shall have exclusive jurisdiction with respect to the civil enforcement of such provisions. This section, distinct from 2 U.S.C. § 437d(e) (1982) which curtails private rights of action under FECA, “was enacted by Congress to make clear that only the FEC, and no other governmental authority, would have jurisdiction to enforce” the civil provisions of FECA. Democratic Party v. National Conservative Political Action Comm., 578 F.Supp. 797, 806 (E.D.Pa.1983) (3-judge panel) (emphasis in original; discussing legislative history), affd in part, rev’d in part sub nom. FEC v. National Conservative Political Action Comm., 470 U.S. 480, 105 S.Ct. 1459, 84 L.Ed.2d 455 (1985). See also FEC v. National Conservative Political Action Comm., 470 U.S. at 489, 105 S.Ct. at 1465 (“We do not necessarily reject the District Court’s conclusion that the legislative history of the successive amendments to § 437c(b)(l) indicates an intention by the word ‘exclusive’ to centralize in one agency the civil enforcement responsibilities previously fragmented among various governmental agencies.”); 470 U.S. at 505, 105 S.Ct. at 1473 (White, J., dissenting) (“[T]he reference to ‘exclusive’ jurisdiction [in section 437c(b)(l) ] was designed to centralize all governmental enforcement authority in the FEC.”) (emphasis in original; citing H.R. Rep. No. 917, 94th Cong., 2d Sess. 3-4, reprinted in Federal Election Commission, Legislative History op Federal Election Campaign Act Amendments of 1976, at 803-04 (1977)); McNamara v. Johnston, 522 F.2d 1157, 1162 n. 5 (7th Cir.1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1506, 47 L.Ed.2d 761 (1976), quoting 120 Cong.Rec. 35, 134 (1974) (FECA “provides that all civil complaints predicated upon or pertaining in any manner to titles I and III of the act... shall be channeled to the Commission.... The delicately balanced scheme of procedures and remedies set out in the act is intended to be the exclusive means for vindicating the rights and declaring the duties stated therein.”) (statement of Rep. Hays, Chairman of House conferees to 1974 FECA Amendments creating the FEC). In sum, appellants and the FEC reach this conclusion from the context, structure, specificity, and legislative history of FECA: where FECA sets specific requirements for the content of political communications, as it does in the case of the names and disclaimers of unauthorized political committees, no other agency may proceed against such a committee on the basis of that agency’s assessment of the misrepresentational nature of those names or disclaimers. In opposition to any FECA-inspired shrinkage of its domain, the Postal Service cites a string of cases holding that “the same issues and parties may be proceeded against simultaneously by more than one agency.” Warner-Lambert Co. v. FTC, 361 F.Supp. 948 (D.D.C.1973). The cases featured by the Postal Service, although they differ significantly from the instant case as to the facts and the agencies involved, illustrate a reality of which we are fully cognizant. As this court has remarked: “[T]his is an era of overlapping agency jurisdiction under different statutory mandates.” FTC v. Texaco, Inc., 555 F.2d 862, 881 (D.C.Cir.) (en banc), cert. denied, 431 U.S. 974, 97 S.Ct. 2940, 53 L.Ed.2d 1072 (1977). In such an era “a court should approach gingerly a claim that one agency has conclusively determined an issue later analyzed from another perspective by an agency with different substantive jurisdiction.” Id. See, e.g., FTC v. Cement Inst., 333 U.S. 683, 689-93, 68 S.Ct. 793, 797-99, 92 L.Ed. 1010 (1948) (concurrent Federal Trade Commission/Department of Justice jurisdiction approved); Thompson Medical Co. v. FTC, 791 F.2d 189, 192-93 (D.C.Cir.1986) (concurrent Federal Trade Commission/Food and Drug Administration jurisdiction approved), cert. denied, — U.S. -, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987); Bristol-Meyers Co. v. FTC, 738 F.2d 554, 559 (2d Cir.1984) (same); Pennsylvania v. ICC, 561 F.2d 278, 292 (D.C.Cir.1977) (concurrent Interstate Commerce Commission/Federal Maritime Commission jurisdiction approved); Friedlander v. United States Postal Service, 658 F.Supp. 95, 103 (D.D.C.1987) (concurrent FDA/PTC/U.S. Postal Service jurisdiction approved). Based on this array of authority, the Postal Service maintains that it may find a solicitation for political contributions to be a false representation under 39 U.S.C. § 3005 (1982) even if the FEC finds the solicitation to have met the requirements of 2 U.S.C. §§ 432(c)(4), 441d(a)(3) (1982). The Postal Service takes this position without qualification. The Service sees no need to accommodate or adjust to any FECA prescription or FEC ruling. It may proceed under section 3005, the Service believes, totally on the basis of its own assessment of a mailing like APG’s, and may find fraudulent name identifications and disclaimers that meet FECA standards. Any other approach, the Postal Service concludes, would constitute a partial repeal of section 3005 by implication. Because repeals by implication are strongly disfavored, see Radzanower v. Touche Ross & Co., 426 U.S. 148, 154, 96 S.Ct. 1989, 1993, 48 L.Ed.2d 540 (1976), the Postal Service asserts that appellants’ and the FEC’s position cannot be credited. In arriving at our disposition of this case in light of the initial and supplemental briefing, see supra p. 1367, we are mindful that the Postal Service’s application of section 3005 to solicitations for political contributions poses genuine constitutional questions. See Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971) (need for judicial determination whether allegedly obscene mailing was unprotected expression); Lebron v. WMATA, 749 F.2d 893 (D.C.Cir.1984) (need for judicial determination whether distinctively political message was false, unprotected expression). Our resolution reconciles the two statutes in a manner that reduces constitutional doubt. See NLRB v. Catholic Bishop, 440 U.S. 490, 500-01, 99 S.Ct. 1313, 1318-19, 59 L.Ed.2d 533 (1979) (construing National Labor Relations Act to avoid first amendment questions); Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932) (construing Longshoremen’s and Harbor Workers’ Compensation Act to avoid fifth amendment questions); EEOC v. Pacific Press Publishing Assoc., 676 F.2d 1272, 1276 (9th Cir.1982) (construing Title VII to avoid first amendment questions). We hold that the FEC is the exclusive administrative arbiter of questions concerning the name identifications and disclaimers of organizations soliciting political contributions. As to representations not specifically regulated by FECA, however — for example, CMC’s allegedly false statement that in 1982 it raised and contributed over half a million dollars to candidates nationwide— nothing in or about the Act limits the 39 U.S.C. § 3005 enforcement authority of the Postal Service. To permit the Postal Service to base findings of false representation on a political action committee’s name and disclaimers that are consistent with FECA requirements would defeat the substantive objective of that Act’s first-amendment-sensitive provisions. See H.R. Rep. No. 917, 94th Cong., 2d Sess. 5, reprinted in Federal Election Commission, Legislative History of Federal Election Campaign Act Amendments of 1976, at 805 (1977) (provisions for direct notice of sponsorship adequately inform the public “while safeguarding the full enjoyment of the First Amendment rights of individuals and groups to make expenditures for political expression”); see generally Buckley v. Valeo, 424 U.S. 1, 64-68, 96 S.Ct. 612, 656-58, 46 L.Ed.2d 659 (1976) (applying strict first amendment scrutiny to disclosure requirements of FECA). A fine balance of interests was deliberately struck by Congress in the name and disclaimer requirements of FECA. Those provisions, we think it fair to infer, represent more than a minimal requirement that the Postal Service is free to supplement. Rather, we believe they were meant to provide a safe haven to candidates and political organizations with respect to those organizations’ names and sponsorship. If FECA requirements are met, then as we comprehend that legislation, no further constraints on names and disclaimers may be imposed by other governmental authorities. FECA’s first-amendment-sensitive regime includes a procedural as well as a substantive component. When a candidate or political organization is alleged to have violated the name or disclaimer provisions of FECA, the allegations will be assessed according to FECA procedures. Those procedures require that informal conciliation efforts between an alleged FECA violator and the FEC occur before any formal civil enforcement action is taken. 2 U.S.C. § 437g(a)(4) (1982). If conciliation fails, the FEC may not itself impose sanctions; it must institute a civil action in a federal district court in order to obtain relief. 2 U.S.C. § 437g(a)(6) (1982). Thus, even if the Postal Service were to apply the substantive standards of FECA in determining whether the name or disclaimers of an organization soliciting political contributions constituted a false representation for purposes of section 3005, there would be a gap. The Postal Service’s procedures, which include neither conciliation nor judicial imposition of sanctions, would not measure up to the first-amendment-prompted arrangements Congress devised for FECA enforcement actions. We thus conclude that the Postal Service’s no-repeal-by-implication argument, see supra pp. 1369-1370, is properly turned around. Assume that a political action committee employs name identifications and disclaimers lawful under FECA. Were the Postal Service to find the representations false under section 3005 based on its own assessment of the public’s perception, the Service’s adjudication — both substantively and procedurally — would effectively countermand the “precisely drawn, detailed” prescriptions of FECA. Nevertheless, we do not hold that solicitations for political contributions are entirely immune from Postal Service scrutiny under section 3005. Apart from the name of a political organization and the presence or absence of a sponsorship disclaimer, much may appear in a solicitation for political contributions that could materially deceive readers and thereby constitute a false representation under section 3005. An organization’s false claims regarding its past fundraising success conceivably could fit that bill. No provisions of FECA set standards for such representations and there is no reason to believe that the silence of that legislation was meant to exempt uncovered statements from all regulation. Congress’ intent, expressed in section 3005, was broadly to protect the public from fraud. We cannot conclude that Congress meant to leave unregulated misrepresentations that it may constitutionally regulate merely because the false statements are made in an endeavor to extract political contributions. Conclusion The Postal Service in this case based its decision on the cumulative impact of APG’s name, disclaimers (or the absence or inadequacy thereof), and representations concerning prior fundraising efforts. Our decision, which reverses the district court’s judgment, rules out Service consideration of the first two charges in the Service’s complaint. See supra p. 1366. For the reasons stated, we return the case to the district court with instructions to reinstate the complaint and remand the matter to the Postal Service for reconsideration of its decision in light of this opinion. Reversed and remanded. . 2 U.S.C. § 432(e)(4) (1982) provides, in relevant part: In the case of any political committee which is not an authorized committee, such political committee shall not include the name of any candidate in its name. 2 U.S.C. § 441d(a) (1982) provides: Whenever any person makes an expenditure for the purpose of financing communications expressly advocating the election or defeat of a clearly identified candidate, or solicits any contribution through any broadcasting station, newspaper, magazine, outdoor advertising facility, direct mailing, or any other type of general public political advertising, such communication— (3) if not authorized by a candidate, an authorized political committee of a candidate, or its agents, shall clearly state the name of the person who paid for the communication and state that the communication is not authorized by any candidate or candidate's committee. 11 C.F.R. § 110.11(a)(1) (1987) provides: [WJhenever any person makes an expenditure for the purpose of financing a communication that expressly advocates the election or defeat of a clearly identified candidate, or that solicits any contribution, through any broadcasting station, newspaper, magazine, outdoor advertising facility, poster, yard sign, direct mailing or any other form of general public political advertising, a disclaimer meeting the requirements of 11 C.F.R. 110.1 l(a)(l)(i), (ii), (iii) or (iv) shall appear and be presented in a clear and conspicuous manner to give the reader, observer or listener adequate notice of the identity of persons who paid for and, where required, who authorized the communication. Such person is not required to place the disclaimer on the front face or page of any such material, as long as a disclaimer appears within the communication, except on communications such as billboards, that contain only a front face. (iii) Such communication, including any solicitation, if made on behalf of or in opposition to a candidate, but paid for by any other person and not authorized by a candidate, authorized committee of a candidate or its agent, shall clearly state that the communication has been paid for by such person and is not authorized by any candidate or candidate’s committee. The language of 2 U.S.C. §§ 432(e)(4), 441d(a) (1982) and 11 C.F.R. § 110.11(a)(1) (1987) has remained constant throughout the history of this case. Under the FEC’s current interpretation, section 432(e)(4) prohibits only the use of a candidate’s name in the formal name of a political committee unauthorized by a candidate, for example, the Congressional Majority Committee, and not in a project name, such as Americans for Phil Gramm in ’84. This interpretation is sub judice before this court in an appeal from Common Cause v. FEC, 655 F.Supp. 619 (D.D.C.1986). Our decision in this case regarding the impact of FECA on 39 U.S.C. § 3005 (1982) will be unaffected by the outcome of that case. Whatever the correct interpretation of section 432(e)(4), we hold that it and section 441d(a)(3) operate to prevent the Postal Service from proceeding under 39 U.S.C. § 3005 (1982) against APG based on the Service’s assessment of the misrepresentational nature of APG’s name and the inefficacy of the APG mailings’ disclaimers. . 2 U.S.C. § 437g (1982) requires the FEC to attempt to resolve violations of FECA through conciliation. If conciliation fails, the FEC may not itself impose sanctions upon a FECA violator; it may, however, bring a civil suit to enforce the law in federal district court. See 2 U.S.C. § 437g(a)(6)(A) (1982). . The language of 11 C.F.R. § 952.5 at the time the General Counsel filed the administrative complaint was not materially different from the current language of that regulation. Compare 11 C.F.R. § 952.5 (1983) with 11 C.F.R. § 952.5 (1987). . Section 3005(a) reads in full: Upon evidence satisfactory to the Postal Service that any person is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations, including the mailing of matter which is nonmailable under section 3001(d) of this title, or is engaged in conducting a lottery, gift enterprise, or scheme for the distribution of money or of real or personal property, by lottery, chance, or drawing of any kind, the Postal Service may issue an order which— (1)directs the postmaster of the post office at which mail arrives, addressed to such a person or to his representative, to return such mail to the sender appropriately marked as in violation of this section, if the person, or his representative, is first notified and given reasonable opportunity to be present at the receiving post office to survey the mail before the postmaster returns the mail to the sender; (2) forbids the payment by a postmaster to the person or his representative of any money order or postal note drawn to the order of either and provides for the return to the re-mitter of the sum named in the money order or postal note; and (3) requires the person or his representative to cease and desist from engaging in any such scheme, device, lottery, or gift enterprise. For purposes of the preceding sentence, the mailing of matter which is nonmailable under such section 3001(d) by any person shall constitute prima facie evidence that such person is engaged in conducting a scheme or device for obtaining money or property through the mail by false representations. . At the September 28, 1987 oral argument of this appeal, the following exchange occurred: Court: We’re told this is a case of first impression and it was triggered by Congressman Gramm’s complaint. Have there been other similar Question: What is the total number of appellants in the case? Answer with a number. 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). UNITED STATES of America v. Arthur L. JOHNSON, Appellant. No. 15746. United States Court of Appeals Third Circuit. Submitted March 21, 1966. Decided May 3, 1966. Arthur L. Johnson, pro se. David M. Satz, Jr., U. S. Atty., Wilbur H. Mathesius, Asst. U. S. Atty., Newark, N. J., for appellee. Before KALODNER, Chief Judge, and McLAUGHLIN and HASTIE, Circuit Judges. PER CURIAM: This is an appeal from an Order of the District Court of New Jersey denying the appellant’s “Petition for Writ of Error Coram Nobis” which was treated as an application under Section 2255, Title 28, U.S.C.A., to vacate and set aside the sentence imposed following a plea of guilty on an indictment charging passing, possessing and uttering counterfeit money. The petition below was premised on the contention that the appellant was not advised of his right to counsel. The District Court found after hearing and consideration of the proceedings at the arraignment that the appellant “was fully apprised of his right to counsel and was, in fact, offered counsel by the presiding judge.” That finding is amply sustained. The appellant for the first time here makes the further contention that he was induced to plead guilty by inducement of Government agents. With respect to that contention it need only be said that it is settled that “Questions cannot be presented on appeal that have not first been determined by the District Court, from which the appeal is taken.” Bush v. United States, 347 F.2d 231, 232 (6 Cir. 1965). The Order of the District Court will be affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:
sc_petitioner	029	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them. Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. APODACA et al. v. OREGON No. 69-5046. Argued March 1, 1971 Reargued January 10, 1972 Decided May 22, 1972 White, J., announced the Court’s judgment and delivered an opinion, in which BurgeR, C. J., and Blackmun and Rehnquist, JJ., joined. Blackmun, J., filed a concurring opinion, ante, p. 365. Powell, J., filed an opinion concurring in the judgment, ante, p. 366. Douglas, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, ante, p. 380. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, ante, p. 395. Stewart, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 414. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, ante, p. 399. Richard B. Sobol reargued the cause and filed briefs for petitioners. Jacob B. Tanzer, Solicitor General of Oregon, reargued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and Thomas H. Denney, Assistant Attorney General. Briefs of amici curiae urging reversal were filed by James J. Doherty and Marshall J. Hartman for the National Legal Aid and Defender Association, and by Norman Dorsen, Melvin L. Wulf, and Paul R. Meyer for the American Civil Liberties Union. Mr. Justice White announced the judgment of the Court and an opinion in which The Chief Justice, Mr. Justice Blackmun, and Mr. Justice Rehnquist joined. Robert Apodaca, Henry Morgan Cooper, Jr., and James Arnold Madden were convicted respectively of assault with a deadly weapon, burglary in a dwelling, and grand larceny before separate Oregon juries, all of which returned less-than-unanimous verdicts. The vote in the cases of Apodaca and Madden was 11-1, while the vote in the case of Cooper was 10-2, the minimum requisite vote under Oregon law for sustaining a conviction. After their convictions had been affirmed by the Oregon Court of Appeals, 1 Ore. App. 483, 462 P. 2d 691 (1969), and review had been denied by the Supreme Court of Oregon, all three sought review in this Court upon a claim that conviction of crime by a less-than-unanimous jury violates the right to trial by jury in criminal cases specified by the Sixth Amendment and made applicable to the States by the Fourteenth. See Duncan v. Louisiana, 391 U. S. 145 (1968). We granted certiorari to consider this claim, 400 U. S. 901 (1970), which we now find to be without merit. In Williams v. Florida, 399 U. S. 78 (1970), we had occasion to consider a related issue: whether the Sixth Amendment’s right to trial by jury requires that all juries consist of 12 men. After considering the history of the 12-man requirement and the functions it performs in contemporary society, we concluded that it was not of constitutional stature. We reach the same conclusion today with regard to the requirement of unanimity. I Like the requirement that juries consist of 12 men, the requirement of unanimity arose during the Middle Ages and had become an accepted feature of the common-law jury by the 18th century. But, as we observed in Williams, “the relevant constitutional history casts considerable doubt on the easy assumption. . . that if a given feature existed in a jury at common law in 1789, then it was necessarily preserved in the Constitution.” Id., at 92-93. The most salient fact in the scanty history of the Sixth Amendment, which we reviewed in full in Williams, is that, as it was introduced by James Madison in the House of Representatives, the proposed Amendment-provided for trial “by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites . . . .” 1 Annals of Cong. 435 (1789). Although it passed the House with little alteration, this proposal ran into considerable opposition in the Senate, particularly with regard to the vicinage requirement of the House version. The draft of the proposed Amendment was returned to the House in considerably altered form, and a conference committee was appointed. That committee refused to accept not only the original House language but also an alternate suggestion by the House conferees that juries be defined as possessing “the accustomed requisites.” Letter from James Madison to Edmund Pendleton, Sept. 23, 1789, in 5 Writings of James Madison 424 (G. Hunt ed. 1904). Instead, the Amendment that ultimately emerged from the committee and then from Congress and the States provided only for trial “by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law . . . .” As we observed in Williams, one can draw conflicting inferences from this legislative history. One possible inference is that Congress eliminated references to unanimity and to the other “accustomed requisites” of the jury because those requisites were thought already to be implicit in the very concept of jury. A contrary explanation, which we found in Williams to be the more plausible, is that the deletion was intended to have some substantive effect. See 399 U. S., at 96-97. Surely one fact that is absolutely clear from this history is that, after a proposal had been made to specify precisely which of the common-law requisites of the jury were to be preserved by the Constitution, the Framers explicitly rejected the proposal and instead left such specification to the future. As in Williams, we must accordingly consider what is meant by the concept “jury” and determine whether a feature commonly associated with it is constitutionally required. And, as in Williams, our inability to divine “the intent of the Framers” when they eliminated references to the “accustomed requisites” requires that in determining what is meant by a jury we must turn to other than purely historical considerations. II Our inquiry must focus upon the function served by the jury in contemporary society. Cf. Williams v. Florida, supra, at 99-100. As we said in Duncan, the purpose of trial by jury is to prevent oppression by the Government by providing a “safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.” Duncan v. Louisiana, 391 U. S., at 156. “Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen . . . .” Williams v. Florida, supra, at 100. A requirement of unanimity, however, does not materially contribute to the exercise of this commonsense judgment. As we said in Williams, a jury will come to such a judgment as long as it consists of a group of laymen representative of a cross section of the community who have the duty and the opportunity to deliberate, free from outside attempts at intimidation, on the question of a defendant’s guilt. In terms of this function we perceive no difference between juries required to act unanimously and those permitted to convict or acquit by votes of 10 to two or 11 to one. Requiring unanimity would obviously produce hung juries in some situations where nonunanimous juries will convict or acquit. But in either case, the interest of the defendant in having the judgment of his peers interposed between himself and the officers of the State who prosecute and judge him is equally well served. Ill Petitioners nevertheless argue that unanimity serves other purposes constitutionally essential to the continued operation of the jury system. Their principal contention is that a Sixth Amendment “jury trial” made mandatory on the States by virtue of the Due Process Clause of the Fourteenth Amendment, Duncan v. Louisiana, supra, should be held to require a unanimous jury verdict in order to give substance to the reasonable-doubt standard otherwise mandated by the Due Process Clause. See In re Winship, 397 U. S. 358, 363-364 (1970). We are quite sure, however, that the Sixth Amendment itself has never been held to require proof beyond a reasonable doubt in criminal cases. The reasonable-doubt standard developed separately from both the jury trial and the unanimous verdict. As the Court noted in the Winship case, the rule requiring proof of crime beyond a reasonable doubt did not crystallize in this country until after the Constitution was adopted. See id., at 361. And in that case, which held such a burden of proof to be constitutionally required, the Court purported to draw no support from the Sixth Amendment. Petitioners’ argument that the Sixth Amendment requires jury unanimity in order to give effect to the reasonable-doubt standard thus founders on the fact that the Sixth Amendment does not require proof beyond a reasonable doubt at all. The reasonable-doubt argument is rooted, in effect, in due process and has been rejected in Johmon v. Louisiana, ante, p. 356. IV Petitioners also cite quite accurately a long line of decisions of this Court upholding the principle that the Fourteenth Amendment requires jury panels to reflect a cross section of the community. See, e. g., Whitus v. Georgia, 385 IT. S. 545 (1967); Smith v. Texas, 311 U. S. 128 (1940); Norris v. Alabama, 294 U. S. 587 (1935); Struader v. West Virginia, 100 U. S. 303 (1880). They then contend that unanimity is a necessary precondition for effective application of the cross-section requirement, because a rule permitting less than unanimous verdicts will make it possible for convictions to occur without the acquiescence of minority elements within the community. There are two flaws in this argument. One is petitioners’ assumption that every distinct voice in the community has a right to be represented on every jury and a right to prevent conviction of a defendant in any case. All that the Constitution forbids, however, is systematic exclusion of identifiable segments of the community from jury panels and from the juries ultimately drawn from those panels; a defendant may not, for example, challenge the makeup of a jury merely because no members of his race are on the jury, but must prove that his race has been systematically excluded. See Swain v. Alabama, 380 U. S. 202, 208-209 (1965); Cassell v. Texas, 339 U. S. 282, 286-287 (1950); Akins v. Texas, 325 U. S. 398, 403-404 (1945); Ruthenberg v. United States, 245 U. S. 480 (1918). No group, in short, has the right to block convictions; it has only the right to participate in the overall legal processes by which criminal guilt and innocence are determined. We also cannot accept petitioners’ second assumption— that minority groups, even when they are represented on a jury, will not adequately represent the viewpoint of those groups simply because they may be outvoted in the final result. They will be present during all deliberations, and their views will be heard. We cannot assume that the majority of the jury will refuse to weigh the evidence and reach a decision upon rational grounds, just as it must now do in order to obtain unanimous verdicts, or that a majority will deprive a man of his liberty on the basis of prejudice when a minority is presenting a reasonable argument in favor of acquittal. We simply find no proof for the notion that a majority will disregard its instructions and cast its votes for guilt or innocence based on prejudice rather than the evidence. We accordingly affirm the judgment of the Court of Appeals of Oregon. It is so ordered. [For concurring opinion of Blackmun, J., see ante, p. 365.] [For opinion of Powell, J., concurring in judgment, see ante, p: 366.] [For dissenting opinion of Douglas, J., see ante, p. 380.] [For dissenting opinion of Brennan, J., see ante, p. 395.] [For dissenting opinion of Marshall, J., see ante, p. 399.] Ore. Const., Art. I, § 11, reads in relevant part: “In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed; . . . provided, however, that any accused person, in other than capital cases, and with the consent of the trial judge, may elect to waive trial by jury and consent to be tried by the judge of the court alone, such election to be in writing; provided, however, that in the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict, and not otherwise The origins of the unanimity rule are shrouded in obscurity, although it was only in the latter half of the 14th century that it became settled that a verdict had to be unanimous. See 1 W. Holds-worth, A History of English Law 318 (1956); Thayer, The Jury and its Development, 5 Harv. L. Rev. (pts. 1 and 2) 249, 295, 296 (1892). At least four explanations might be given for the development of unanimity. One theory is that unanimity developed to compensate for the lack of other rules insuring that a defendant received a fair trial. See L. Orfield, Criminal Procedure from Arrest to Appeal 347-351 (1947); Haralson, Unanimous Jury Verdicts in Criminal Cases, 21 Miss. L. J. 185, 191 (1950). A second theory is that unanimity arose out of the practice in the ancient mode of trial by compurgation of adding to the original number of 12 compurgators until one party had 12 compurgators supporting his position; the argument is that when this technique of afforcement was abandoned, the requirement that one side obtain the votes of all 12 jurors remained. See P. Devlin, Trial by Jury 48-49 (1956); Ryan, Less than Unanimous Jury Verdicts in Criminal Trials, 58 J. Crim. L. C. & P. S. 211, 213 (1967). A third possibility is that unanimity developed because early juries, unlike juries today, personally had knowledge of the facts of a case; the medieval mind assumed there could be only one correct view of the facts, and, if either all the jurors or only a minority thereof declared the facts erroneously, they might be punished for perjury. See T. Plucknett, A Concise History of the Common Law 131 (5th ed. 1956); Thayer, supra, at 297. Given a view that minority jurors were guilty of criminal perjury, the development of a practice of unanimity would not be surprising. The final explanation is that jury unanimity arose out of the medieval concept of consent. Indeed, “[t]he word consent (consensus) carried with it the idea of concordia or unanimity. . . M. Clarke, Medieval Representation and Consent 251 (1964). Even in 14th-century Parliaments there is evidence that a majority vote was deemed insufficient to bind the community or individual members of the community to a legal decision, see id., at 335-336; Plucknett, The Lancastrian Constitution, in Tudor Studies 161, 169-170 (R. Seton-Watson ed. 1924); a unanimous decision was preferred. It was only in the 15th century that the decisionmaking process in Parliament became avowedly majoritarian, see 1 K. Pickthorn, Early Tudor Government: Henry YII, p. 93 (1967), as the ideal of unanimity became increasingly difficult to attain. See Clarke, supra, at 266-267. For evidence in 18th-century America of a similar concern that decisions binding on the community be taken unanimously, see Zuckerman, The Social Context of Democracy in Massachusetts, 25 Wm. & Mary Q. (3d ser.) 523, 526-527, 540-544 (1968). See 3 W. Blackstone, Commentaries 375-376. Four 18th-cen-tury state constitutions provided explicitly for unanimous jury verdicts in criminal cases, see N. C. Const, of 1776, Art. IX; Pa. Const, of 1776, Art. IX; Vt. Const, of 1786, Art. XI; Va. Const, of 1776, § 8; while other 18th-century state constitutions provided for trial by jury according to the course of the common law, see Md. Const, of 1776, Art. Ill, or that trial by jury would remain “inviolate,’"' see Ga. Const, of 1777, Art. LXI; Ky. Const, of 1792, Art. XII, §6; N. Y. Const, of 1777, Art. XLI; Tenn. Const, of 1796, Art. XI, § 6; be “confirmed,” see N. J. Const, of 1776, Art. XXII; or remain “as heretofore.” See Del. Const, of 1792, Art. I, §4; Ky. Const, of 1792, Art. XII, §6; S. C. Const, of 1790, Art. IX, §6. See also Apthorp v. Backus, 1 Kirby 407, 416-417 (Conn. 1788); Grinnell v. Phillips, 1 Mass. 530, 542 (1805). Although unanimity had not been the invariable practice in 17th-century America, where majority verdicts were permitted in the Carolinas, Connecticut, and Pennsylvania, see Williams v. Florida, 399 U. S. 78, 98 n. 45 (1970), the explicit constitutional provisions, particularly of States such as North Carolina and Pennsylvania, the apparent change of practice in Connecticut, and the unquestioning acceptance of the unanimity rule by text writers such as St. George Tucker indicate that unanimity became the accepted rule during the 18th century, as Americans became more familiar with the details of English common law and adopted those details in their own colonial legal systems. See generally Murrin, The Legal Transformation: The Bench and Bar of Eighteenth-Century Massachusetts, in Colonial America: Essays in Politics and Social Development 415 (S. Katz ed. 1971). See also F. Heller, The Sixth Amendment 13-21 (1951). See Andres v. United States, 333 U. S. 740, 748 (1948); Maxwell v. Dow, 176 U. S. 581, 586 (1900) (dictum). Cf. Springville v. Thomas, 166 U. S. 707 (1897); American Publishing Co. v. Fisher, 166 U. S. 464 (1897). The most complete statistical study of jury behavior has come to the conclusion that when juries are required to be unanimous, “the probability that an acquittal minority will hang the jury is about as great as that a guilty minority will hang it.” H. Kalven & H. Zeisel, The American Jury 461 (1966). For the history of the reasonable-doubt requirement, see generally C. McCormick, Evidence §321 (1964); 9 J. Wigmore, Evidence § 2497 (3d ed. 1940); May, Some Rules of Evidence — Reasonable Doubt in Civil and Criminal Cases, 10 Am. L. Rev. 642, 651-660 (1876). (See 69 U. S. L. Rev. 169, 172 (1935).) According to May and McCormick, the requirement of proof beyond a reasonable doubt first crystallized in the case of Rex v. Finny, a high treason case tried in Dublin in 1798 and reported in 1 L. MacNally, Rules of Evidence on Pleas of the Crown 4 (1811). Confusion about the rule persisted in the United States in the early 19th century, where it was applied in civil as well as criminal cases, see, e. g., Ropps v. Barker, 21 Mass. (4 Pick.) 239, 242 (1826); it was only in the latter half of the century that the reasonable-doubt standard ceased to be applied in civil cases, see Ellis v. Buzzell, 60 Me. 209 (1872), and that American courts began applying it in its modern form in criminal cases. See Commonwealth v. Webster, 59 Mass. (5 Cush.) 295, 320 (1850). See generally May, supra. Question: Who is the petitioner of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
songer_typeiss	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. John W. GARDNER, Secretary of Health, Education and Welfare, Appellant, v. Warren G. EARNEST, Appellee. No. 10536. United States Court of Appeals Fourth Circuit. Argued Oct. 6, 1966. Decided Jan. 10, 1967. Harvey L. Zuckman, Atty., Dept, of Justice (John W. Douglas, Asst. Atty. Gen., and Alan S. Rosenthal, Atty., Dept. of Justice, and Milton J. Ferguson, U. S. Atty., on brief), for appellant. Harry F. Thompson, Jr., Huntington, W. Va., for appellee. Before SOBELOFF, BRYAN and CRAVEN, Circuit Judges. SOBELOFF, Circuit Judge: Almost three years after he filed his application for disability insurance benefits, Warren G. Earnest is still in the process of litigating his right to the sought-after payments. His case is here on appeal by the Secretary of Health, Education and Welfare, who urges reversal of the District Court’s decision holding that the hearing examiner’s adverse finding, adopted by the Secretary, is not supported by substantial evidence. The hearing examiner found that Earnest is not totally disabled and possesses residual skills which can be transferred to other jobs available in the local economy. We affirm the District Court. Earnest, a 46 year old laborer with a fifth grade education and an Intelligence Quotient of 65, worked in the West Virginia coal mines for 25 years, from ages 16 to 41. His various jobs during this period all required a substantial amount of heavy manual labor. He left the mines in March, 1961 when, according to his testimony, he “just couldn’t work” any longer. The undisputed medical evidence is that he suffers from second stage silicosis which, he testified, hurts him constantly and causes shortness of breath on any exertion. He has a kidney ailment resulting from a mine injury which, he said, “burns like fire” and keeps him awake at night, and medical evidence also shows that he is suffering from ankylosis of the right knee, ulcers and chronic arthritis. Earnest’s wife testified that he has difficulty breathing and is constantly bothered by phlegm deposits, that he complains of back and stomach pains frequently, and that his knee is continuously swollen. Several doctors expressed the opinion that Earnest is disabled from performing any manual labor, while other doctors found him physically unable to pursue any gainful occupation. Considered in connection with his limited education and intelligence and the fact that his sole work experience was in the coal mines at heavy manual labor, the clinical facts, medical opinions and subjective evidence of pain and disability confirm us in the conclusion that realistically Earnest is, as the District Court found, unable to perform any “substantial gainful activity.” See Dillon v. Celebrezze, 345 F.2d 753, 755 (4th Cir. 1965); Underwood v. Ribicoff, 298 F.2d 850, 851 (4th Cir. 1962). The District Court also found a complete lack of factual evidence to support the hearing examiner’s conclusion that Earnest possesses residual skills which can be transferred to jobs existing in the local economy. The only evidence introduced by the Secretary at the hearing bearing on this question was the testimony of Miss Hattie Spangler, a vocational counselor in the West Virginia Department of Employment Security. Miss Spangler reviewed the various jobs Earnest performed in the mines and pinpointed the skills she thought inherent in them. Taking account of his present condition, she relied upon her expertise and upon occupations contained in the Dictionary of Occupational Titles and the West Virginia Manufacturing Directory as the basis of her assertion that Earnest “has acquired certain skills that would be applicable and transferrable to other jobs * * * [which] exist in the area.” Referring to Earnest’s work in the mines as a roof bolter and as a loader, Miss Spangler noted that both jobs involved the use of a drill. A roof bolter, she testified, “operates a portable pneumatic machine with removable bits to drill holes in roof of mine [sic],” while a loader “blasts and loads coal by hand using both machine and hand drills.” Having isolated the skill of drilling, Miss Spangler testified that the job of Single Spindle Drill Press Operator, which she described as entailing “drilling, reaming and sometimes tapping, on metal objects with a drill press,” was well within the limits of Earnest’s skills and physical capabilities. In this fashion Miss Span-gler went through several other occupations, reasoning that Earnest could also work as a Radial Drill Press Operator, Oiler or Conveyer Feeder. She also mentioned the jobs of gateman and watchman as particularly suited to Earnest since they involve no manual labor and are primarily sedentary. Turning to the availability of these jobs in the local economy, Miss Spangler stated that drilling jobs are “found” in all machine shops and that the West Virginia Manufacturing Directory lists many such shops in the state. “There are a few,” she went on, “right here in the City of Logan,” the site of the hearing, located 25 miles from Earnest’s home. Her specific knowledge, however, was limited, and based on a belief that “Guyan Machinery is a fairly good sized plant. * * * I’ve never been in it but it is located nearby — I believe, in Pine-ville.” She testified that conveyer feeders are employed in “soft drink manufacturing plants [and in] * * * bakeries, and I notice in the West Virginia Directory there are a number right here in the City of Logan.” Construction companies, industrial plants and the State Road Commission hire oilers, she continued, and “of course, as far as Watchmen and Gatemen are concerned, they are found in about every area one goes.” In this and other circuits, concern has been expressed over the type of showing which the Secretary has found sufficient to warrant a finding that a claimant possesses residual and transferrable skills. Mere conclusory assertions that a claimant is capable of engaging in productive work have been held inadequate when unsupported by specific evidence as to both the type of job to which he is suited and the availability of such employment in his geographic area to a person with his physical impairments, educational level and past work experience. See Gardner v. Smith, 368 F.2d 77 (5th Cir. 1966); Marion v. Gardner, 359 F.2d 175, 181 (8th Cir. 1966); Hodgson v. Celebrezze, 312 F.2d 260, 263 (3d Cir. 1963), 357 F.2d 750 passim (3d Cir. 1966); Henninger v. Celebrezze, 349 F.2d 808, 819 (6th Cir. 1965); Hall v. Celebrezze, 347 F.2d 937, 938 (4th Cir. 1965) and cases cited therein; Massey v. Celebrezze, 345 F.2d 146, 154-157 (6th Cir. 1965); Celebrezze v. Warren, 339 F.2d 833, 837 (10th Cir. 1964); Butler v. Flemming, 288 F.2d 591, 595 (5th Cir. 1961); Kerner v. Flemming, 283 F.2d 916, 921 (2d Cir. 1960). In Cochran v. Celebrezze, 325 F.2d 137 (4th Cir. 1963), we reversed the District Court’s affirmance of an administrative denial of benefits where the only specific evidence related to the claimant’s former occupations, to which he was unable to return, and the hearing examiner’s decision was based upon the bald assertion that the claimant was not disabled from pursuing “numerous other types of * * * work available in the American economy.” 325 F.2d at 139. We required that the record be enhanced to reflect “what, if any, kind of work * * * [claimant) is able to do, and whether this kind of work, if any, is available to him.” Ibid.; see also Woodson v. Celebrezze, 325 F.2d 479 (4th Cir. 1963). To avoid misunderstanding as to our interpretation of the requirements of the Act, we have on numerous occasions expressly rejected the view that the relevant standard is the abstract “average” man and have focused the inquiry on whether job opportunities exist for persons with the claimant’s disabilities and limitations. E. g., Simmons v. Celebrezze, 362 F.2d 753, 755-756 (4th Cir. 1966); Wimmer v. Celebrezze, 355 F.2d 289, 293 (4th Cir. 1966); see also Celebrezze v. Bolas, 316 F.2d 498, 501 (8th Cir. 1963). We have found unpersuasive vocational testimony which purports to demonstrate the availability of these employment opportunities when the expert merely relies on lists of capsule job descriptions appearing in vocational manuals such as the Dictionary of Occupational Titles. E. g., Cyrus v. Celebrezze, 341 F.2d 192, 196—197 (4th Cir. 1965); Ray v. Celebrezze, 340 F.2d 556, 559 (4th Cir. 1965); Hanes v. Celebrezze, 337 F.2d 209, 215 (4th Cir. 1964); See also Miracle v. Celebrezze, 351 F.2d 361, 381-382 (6th Cir. 1965); Henninger v. Celebrezze, 349 F.2d 808, 817-818 (6th Cir. 1965); Massey v. Cele-brezze, 345 F.2d 146, 154-157 (6th Cir. 1965); Stancavage v. Celebrezze, 323 F.2d 373, 377-378 (3d Cir. 1963). In Cyrus, supra, we affirmed the grant of summary judgment for the claimant, noting that “[t]he record is barren of evidence to show that * * * [the vocational counselor] actually checked to determine whether the jobs he cited were available in the vicinity of * * v* [claimant’s] home.” 341 F.2d at 196. More recently, we decided two cases involving the issue of the availability in the claimant’s geographical area of vocational opportunities suitable for one in his situation. In Bells v. Celebrezze, 360 F.2d 601 (4th Cir. 1966), the court viewed the vocational expert’s testimony as sufficiently detailed, noting that the expert had thoroughly explored employment possibilities throughout the state. In Gardner v. Stewart, 361 F.2d 827 (4th Cir. 1966), however, where the testimony was strikingly similar to that in the case now before us, the court affirmed the District Court’s reversal of the Secretary’s decision, observing that when the expert is invited to testify in generalities, and to rest his conclusion on unproved assumptions as to what jobs are available without any verified evidence as to the actual existence of these jobs for persons in the claimant’s position, “[t]his is little more than asking the expert to read the Dictionary of Occupational Titles aloud into the record. The Secretary has not met his burden.” 361 F.2d at 828. Judge Friendly neatly phrased the requirement the Act makes on the Secretary when he wrote that “[m]ere theoretical ability to engage in substantial gainful activity is not enough if no reasonable opportunity for this is available.” Kerner v. Flemming, 283 F.2d 916, 921 (2d Cir. 1960). The standard which emerges from these decisions in our circuit and elsewhere is a practical one: whether there is a reasonably firm basis for thinking that this particular claimant can obtain a job within a reasonably circumscribed labor market. While we have condemned exclusive reliance upon the Dictionary of Occupational Titles and similar publications, we have indicated that these manuals are useful tools in opening up, by way of suggestion, an assortment of possible job titles to which the claimant may be suited. They may serve as the beginning, but not the end, of the inquiry. There must be a further showing as to which of these occupations are in fact available to a person with the claimant’s specific characteristics and impairments. Arm-chair speculation, even by vocational experts, is insufficient in the absence of any evidence that employers in the area have hired persons with the claimant’s limitations or would be willing to do so. Theoretical expertise untarnished by any field investigations is not enough. While we do not require the Secretary to take the claimant by the hand and lead him to a specific job, the statute is not satisfied without a factual showing of job availability for persons of his limited capacity. True, the Act does not entitle a claimant to benefits if work is unavailable because of depressed economic conditions ; yet if, as a practical matter, employers would not hire him because of his age, physical impairments and lack of education, he does not lose his benefits merely because even able bodied persons can find no work in the area. Requiring a common-sense judgment as to the practical employability of an impaired person is a far cry from converting the Social Security Act into an unemployment compensation law. Just as we reject rigid and abstract standards of physical capacity which disregard the fact that a person with the claimant’s impairments might not be considered for any substantial employment, so we do not lay down a rule favoring claimants whose capacities, though impaired, enable them to engage in gainful work but who have not made a good faith endeavor to secure work that is available and within their capacities. A man is required to act to help himself in whatever way it is reasonable to expect of a man in his circumstances. An employer hires the whole man, not a separate back, hand or eye, and if the claimant is so afflicted as to put any job beyond his reach, he is entitled to benefits if he meets the other requirements of the statute. In all cases there should be a realistic exploration of the totality of the surrounding circumstances. Tested by these criteria, the opinion testimony of the vocational expert is clearly deficient, both as to Earnest’s possession of transferable skills and as to the availability of employment suitable for him in the local economy. Miss Spangler assumed, for example, that Earnest’s drilling experience in the mines equipped him for employment in a machine shop to operate electric drills. But not all drilling is alike. The crude drilling which Earnest did in the coal mines is qualitatively different from the precision work performed in a machine shop, yet no attempt was made to bridge this gap. Moreover, as a loader, Earnest’s primary function was physically to load coal on cars for eventual shipment, and the drilling was merely to dislodge the coal from the mine walls preparatory to loading. He was basically a manual laborer, able to do his work when in the full vigor of health. His experience, especially in light of his borderline mental condition, and his physical infirmities can hardly be said, in the total absence of any proof, to qualify him for a job involving the use of modern machine shop precision drills. Retrainability is a factor only when there exists a sound physical basis for retraining and the acquisition of a new skill is reasonably likely to transform the claimant into an employable individual; but this factor should not be ignored when there is reasonable probability that the claimant may be made substantially productive. Likewise, with respect to both the machine shop jobs and the other occupations Miss Spangler mentioned, there was no proferred factual basis to support her assertion that these jobs were in fact available for someone with Earnest’s impediments. As was said in Cooke v. Celebrezze, 365 F.2d 425 (4th Cir. 1966): “It is a matter of common knowledge that employers are hesitant to hire the handicapped, particularly if they have no special skills. The prospective employer’s fear of absenteeism, the possibility of higher workmen’s compensation premiums, and uncertainty whether such an employee will be able to perform his work satisfactorily, are factors militating against the abstract judgment that jobs are available to this man.” Id. at 428; see e. g., Gardner v. Smith, 368 F.2d 77 (5th Cir. 1966); Bridges v. Gardner, 368 F.2d 86, 90-91 (5th Cir. 1966); Hilton v. Celebrezze, 367 F.2d 481, 485n-5 (4th Cir. 1966); Williams v. Celebrezze, 359 F.2d 950, 952-953 (4th Cir. 1966); Marion v. Gardner, 359 F.2d 175, 181 (8th Cir. 1966); Thomas v. Celebrezze, 331 F.2d 541, 546 (4th Cir. 1964); Ferran v. Flemming, 293 F.2d 568, 571 (5th Cir. 1961), (“[i]f there is no market for the services he is able to render then he is truly disabled within the meaning of the statute”). These observations are as pertinent here as they were in the context in which they were made, of a miner with an eighth grade education and a steadily degenerating back condition. In the present case Miss Spangler failed to undertake any field investigation in Earnest’s geographical vicinity, and her judgment, based on an abstract generalization, is open to serious question when she testifies that she “believes” there is a “good sized” machine shop in Logan, or “nearby — I believe.” Surmise is not enough; it must be validated by further exploration. We are impelled to the same conclusion as the District Court, namely, that Miss Spangler and, in turn, the Secretary placed undue reliance on the Dictionary of Occupational Titles and the West Virginia Manufacturing Directory. Applying the legal standard of the Act to the record as a whole, as we are required by Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), we “cannot conscientiously find that the evidence supporting * * [the Secretary’s] decision is substantial * * . * ” Id. at 488, 71 S.Ct. at 465. Since we agree with the District Judge that Earnest is disabled within the meaning of the Act and that the Secretary’s conclusion that he has transferrable residual capacity finds no substantial support in the record, we affirm the District Court. Benefits having been so long delayed while the claim was being processed and litigated, the Secretary should expedite payments upon receipt of the mandate of this court. Affirmed. . The pertinent testimony, which the court deemed insufficient, was as follows: Dr. Charles Auvenshine, an expert vocational witness, testified as to eleven jobs listed in the Dictionary of Occupational Titles which the claimant was capable of performing. Concerning the existence of these jobs he testified as follows: “Q. Dr. Auvenshine, do you know anything about the industrial activity in Wyoming County, West Virginia, or any of the surrounding counties as to whether there are any of these jobs existing in that area? “A. Only of a general nature, in a general sort of way by reference to what I know of Appalachia generally here, and essentially none of these jobs exist in Wyoming County. “Q. Do you know where such jobs could be found? “A. Typically such jobs as these would be found in larger cities and some of these would be within, say a hundred miles radius of the home of the claimant in such cities as Charleston, Huntington, Bluefield, Beckley. We would expect to find a goodly number of these represented in these areas, in these cities of this size. “Q. You don’t know of any such jobs in Welsh, do you? “A. No. “Q. Do you know of any sedentary jobs that are found within the vicinity of the claimant’s home, Wyoming County? “A. Any sedentary jobs? No, I do not. It would be my impression that they would be even scarcer than the light jobs in this geographical area.” In quoting the above testimony, this circuit made footnote reference to Miracle v. Celebrezze, 351 F.2d 361 (6th Cir. 1965), and noted the Sixth Circuit’s disparagement of similar testimony by the same witness. 361 F.2d 828 n. 1. . The geographical boundaries of this market are to be determined in accordance with the standards enunciated in our opinion in Wimmer v. Celebrezze, 355 F.2d 289 (4th Cir. 1966). There we indicated that the claimant’s mobility turns on the “circumstances of the particular case.” 355 F.2d at 294. No general rule can satisfactorily adumbrate the precise circumstances that will be controlling in a specific case; the claimant’s educational background, physical condition and family responsibilities are all relevant indicia of his geographical mobility. A person in a certain economic and educational category might well be expected to seek employment in a wider area than would be reasonable for a person in different circumstances. 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_7_2	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "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"). UNITED STATES of America v. Samuel KRAVITZ, Appellant in Nos. 13180, 13182 and 13183, and Herman Kravitz, Appellant in Nos. 13181, 13182 and 13183. Nos. 13180-13183. United States Court of Appeals Third Circuit. Argued July 11, 1960. Decided Aug. 12, 1960. Rehearings Denied in Nos. 13181,13182 and 13183. Sept. 30, 1960. Jacob Kossman, Philadelphia, Pa., for appellants. Frederic C. Ritger, Jr., Asst. U. S. Atty., Newark, N. J. (Chester A. Wei-denburner, U. S. Atty., Newark, N. J., on on the brief), for appellee. Before GOODRICH, KALODNER and FORMAN, Circuit Judges. GOODRICH, Circuit Judge. This is an appeal from convictions of two defendants, father and son, for income tax evasion and conspiracy. There are four indictments and each defendant was found guilty on the three applicable to him. Defendants appeal, not on the basis of the insufficiency of the evidence as to Herman Kravitz (the son) but for alleged errors in the conduct of the trial and in the jury charge. With regard to Samuel Kravitz (the father), the point is made that the evidence is insufficient to convict him. This latter point will be discussed separately. Just enough facts will be stated to indicate the nature of the case before the trial court. The two Kravitzes were the owners of all the shares in a corporation called Kravin Park Clothes. Fifty-five percent of the stock was owned by Samuel and forty-five percent by Herman Kravitz. This company had contracts with the United States for the furnishing of uniforms at the time of the Korean War. It was charged and proved by the evidence that earnings were drained off from Kravin Park to other corporations. Some of these corporations were controlled by the conspirators and used for the purpose; in other instances, bank accounts were set up in the names of existing corporations but in banks not used by those corporations and without the officers of those corporations know-mg what was being done. In this way, obviously, the amount of profit on which Kravin Park was compelled to pay income tax was greatly reduced since, on its books and tax return, these payments were recorded as having gone out to the corporations named for subcontractor work supposed to have been done by them. So far as the evidence showed, the actual operations of this plan were carried on by Joseph Abrams and Herman Kravitz. Abrams was a key witness for the prosecution and most of the summation by defense counsel consisted of an attempt to discredit his testimony. The money thus siphoned from the treasury of Kravin Park was in turn drawn out of the banks in which it was deposited. It is not necessary to go into detail concerning just how this was done nor in what the withdrawn funds were invested. Nor is it necessary to follow through the difference of opinion which developed between Abrams and Herman Kravitz as to who got what. On this appeal defendants’ counsel presents a great many alleged errors as a basis for reversal. It seems to us that his greatest emphasis is directed to the charge of the trial judge and to the prosecuting attorney’s summation. We shall deal with these first, then take up the alleged errors occurring in the course of the trial and finally deal separately with the case against Samuel Kravitz, the father. The Charge. Appellants’ counsel makes a scattering shotgun attack at the charge of the trial judge saying that it is an argument for the prosecution rather than an objective description of the case to the jury and a presentation of issues for that body to decide. This general attack is not well founded. The trial judge gave a thorough and, quite evidently, carefully prepared charge to the jury. He told it what the offenses were with which the defendants were charged. He read Section 145(b) of the Internal Revenue Code of 1939 and Section 371 of 18 U.S.C.A. He explained at length the difficult-to-explain crime of conspiracy and he recounted the witnesses one by one for the jury’s consideration. It is not to be expected that counsel for the defense would see the charge in the same light as that of a reviewing court. There is no doubt that, on the whole, the trial judge made a fair presentation to the jury. Now we turn to particular points complained of by counsel with regard to the charge. The judge mentioned to the jury the testimony of Abrams. The judge said he did not believe all of Abrams’ testimony but thought that on the whole it was acceptable. He pointed out one instance where it was shown that Abrams had lied in his testimony. He also commented upon the evidence produced from a transcript of Grand Jury hearings in New York where Herman Kravitz had testified upon the same subject matter. The judge said he did not believe all of Herman Kravitz’s testimony either and he pointed out why. None of this goes beyond the power of a federal judge to comment upon testimony when he sees fit. There was nothing venomous about the judge’s characterization of the testimony of these two men. That a federal judge in a criminal case may comment on the evidence to the jury and give his personal opinion thereon is too well established to require elaborate citation of authority. The point is that he must not prejudice the case and he must leave ultimate determination of the facts to the jury. In his charge the trial judge said at least five times that the determination of the facts was for the jury. He not only said it in passing but he emphasized it- so no juror who was listening could have any doubt about what his responsibility was. Defendants’ point is not well taken, Another complaint made by the-appellants is that the judge misled the jury in quoting an excerpt from the Supreme Court opinion in Spies v. United States, 1943, 317 U.S. 492, 63 S.Ct, 364, 87 L.Ed. 418. This objection is so thin as to be almost frivolous. The trial judge was explaining to the jury the meaning of the term “willful attempt to evade” as used in the statute. Then he quoted this excerpt from Spies. “By way of illustration, and not by way of limitation, we would think affirmative willful attempt may be inferred from conduct such as keeping a double set of books, making false entries or alterations, or false invoices or documents, destruction of books or records, concealment of assets or covering up sources of income, handling of one’s affairs to avoid making the records usual in transactions of the kind, and any conduct, the likely effect of which would be to mislead or to conceal. If the tax-evasion motive plays any part in such conduct the offense may be made out even though the conduct may also serve other purposes such as concealment of other crime.” 317 U.S. at page 499, 63 S.Ct. at page 368. Nobody had claimed in this case that anybody had kept a double set of books. But the reading of the line of illustrations used by the Supreme Court to show the application of the terms in the statute was proper help to give the jury and the very language used in the Supreme Court opinion showed that the various points stated were “by way of illustration.” The defense also complains that the judge quoted testimony of a witness named Laura Barko but that he did not read Mrs. Barko’s cross-examination. The testimony had to do with the establishment of an account in one of the banks which was a recipient of the siphoning process. The particular question involved signature cards. Cross-examination showed that the witness had made a statement several years earlier to a federal investigating officer in which she had not mentioned Herman Kravitz. But in the court room she did mention Herman Kravitz. The jury had all this before it. The witness did not recant her original testimony upon cross-examination. The whole episode was but a drop in the bucket which by the time the drop was put in was nearly overflowing. The Summation. The defense complains of the language used in the next to the last paragraph of the government’s summation. The prosecutor said: “This crime that we are dealing with here is, in a real sense, treason. These defendants, by their action, have torn away the very foundation of our Government. Unless the Government maintains a strong, even economic keel, it will be destroyed.” It should be noted that prior to this burst of oratory the government’s summation had been strictly factual. The prosecutor had described the way in which the conspiracy was alleged to have operated and recalled to the jury various bits of evidence which, according to his argument, made the case against the defendants a convincing whole. Then for three sentences the departure from the record took place. We think little of the words used by the prosecutor. We think they were unnecessary in an otherwise logical and convincing summation. But we quite realize as we have said before that some latitude must be given to lawyers’ language in a hard fought case. To say that this remark would have a prejudicial effect on a jury which had listened throughout a long trial to the unfolding of the testimony is to attribute a stupidity and absence of common sense which is incredible in a federal jury. Even counsel for the defendants, in arguing the point orally, said that everybody knows what treason is. We, too, think that everybody does, although perhaps not with full knowledge of the words used in the Constitution. We do not, however, pass this point lightly. A United States attorney in a criminal ease has an even greater responsibility than counsel for an individual client. For the purpose of the individual case he represents the great authority of the United States and he must exercise that responsibility with the circumspection and dignity the occasion calls for. His case must rest on evidence, not epithet. If his case is a sound one his evidence is enough; if it is not sound, he should not resort to epithet to give it a false appearance of strength. The language just quoted is deplorable. Furthermore, on this point, the defendants’ counsel did not say a word. Had he thought the language harmful to his clients at the time, he could have objected and we have no doubt that the court would have corrected any erroneous impression that the jury might have had and that the prosecutor would have apologized for his use of the term. Alternatively he could have moved for the withdrawal of a juror. We think the defendants’ lawyer is not entitled to lie low, say nothing and to bring up this fleeting argument months afterward as a basis of reversal. The Alleged Trial Errors. We turn now to complaints about the conduct of the trial. One objection has to do with alleged improper limitation of defense counsel in his reading of certain testimony of Herman Kravitz given before the Federal Grand Jury in New York City. The transcript of Herman Krav-itz’s testimony before the Grand Jury was released for use in this case by the judge in New York and portions were read into evidence by the prosecutor. He selected, of course, those parts of the Kravitz testimony which admitted participation in the unlawful scheme. The testimony was highly damaging. The defense was permitted to read into evidence other portions of Herman Krav-itz’s testimony before this same Grand Jury. The question of what defense counsel would be permitted to read was discussed at length between counsel for the prosecution, counsel for the defense and the judge out of the presence of the jury. When the judge said he was not going to admit one of the things which defense counsel wanted to read the judge indicated that he would be glad to hear defense counsel on a motion to introduce the whole record. Counsel did not follow this offer up. The portions read into evidence by the defense had to do with explanations of statements in the excerpts read into evidence by the prosecution. Limiting defense counsel to such items was proper and any argument to the effect that if part of the record is introduced all should be received is not well founded in view of the defense’s failure to ask for the whole business. As to proper limitations upon the opponent’s right to introduce the remainder of a verbal utterance, see 7 Wigmore, Evidence § 2113 (3d ed. 1940). Complaint is made of permission given to Abrams to plead the Fifth Amendment privilege against self-incrimination. Abrams, under cross-examination, was asked whether he was guilty of the charges pending against him in the District Court for the District of New Jersey. Abrams was not represented by counsel. The judge told the witness that he need not answer and he claimed his constitutional privilege. We see no error in this. Abrams had already admitted a very great many damaging acts in connection with the charge of conspiracy and it clearly appeared that he was already in jail. To ask him outright and make him say whether he was guilty of pending charges was certainly placing him in the dilemma of getting into trouble for perjury or admitting his guilt in the matters charged. There was no error; if there was, it could not possibly have been prejudical. Indeed, the trial court told the jury it could consider Abrams’ pleading of the constitutional privilege as bearing upon his credibility. If this went too far the prosecution did not complain about it. Error is alleged in the admitting into evidence of a memorandum which Abrams said that he and Herman Kravitz had worked out together back in 1952 This document put down a great many figures concerning their transactions; Abrams said it was shown to no one but was just a matter “between he and I.” The admission of this document is attacked because as “past recollection recorded,” the proper foundation was not laid. Abrams did not say he did not remember at the time of testifying all the material in the document. He did not say he did remember it all either. But he claimed to remember a very great deal, and was even able to state from present memory that the memorandum differed from the final accounting between Herman Kravitz and himself by no more than $10,000 to $20,000. We do not need at this time to reexamine the basis of what is charged to be an artificial and too strict limitation upon the introduction of documents under the past recollection recorded rule. The point to dispose of the objection here is that if Abrams’ testimony was believed this was a joint document with Herman Kravitz. If so, it is admissible, of course, as an admission against Herman Kravitz even though cumulative. Finally, appellants complain that it was error for the court to refuse to continue the case and to examine the minutes of a proceeding before the Federal Grand Jury in Brooklyn, New York. The trial court emphasized to defense counsel that, while counsel was on notice two weeks before that the prosecution was going to use the New York Grand Jury testimony, he did nothing about getting the Brooklyn Grand Jury minutes until too late to get the Brooklyn court to consent to the removal during the time testimony was being given at the Camden trial. We find no error in the trial court’s refusal to continue this case while these minutes were examined. There is no showing of who the witnesses were whose testimony was supposed to be looked at or what connection they had with the trial going on in Camden. At the time counsel for the defense asked the court to examine these minutes the testimony was all in and the trial had been a long and technical one. In the absence of any showing of what the tardily procured minutes would help to prove, it certainly was not error to finish up the already prolonged litigation in Camden. The Sentence. Counsel urges the point that, while an appellate court may not correct sentences in the federal system, when the sentence is unduly harsh it should make the court extraordinarily astute to make sure that the trial was fair. We have two answers to this point in regard to this case. First, we have examined the record and the objections with great care. Second, the sentence, while severe, is not shockingly brutal. Herman Kravitz is sentenced, counting the concurrent terms, to ten years in prison and to pay a fine of $30,000. This is within the sentence allowed by the statute The case, if the testimony for the prosecution is believed, and the jury accepted it, shows a shocking well-planned scheme to cheat the government. It is not surprising that the sentence showed that the judge regarded the matter as a very serious one. The Case Against Samuel Kravitz. Samuel Kravitz is the father of Herman Kravitz. The whole story of the Kravitz-Abrams dealings which was in evidence was limited to Herman. Let us turn to what there is to connect Samuel Kravitz with this scheme. Samuel Kravitz was the president and majority shareholder in the corporation Kravin Park Clothes. He, along with the accountant who prepared the tax return, signed the corporation’s income tax return for the year 1951, the year in question. We do not know of any connection with the financial end of the corporation by Samuel Kravitz. There was testimony that he knew Abrams and gave Abrams expert advice about preparing bids for government contracts; but that is all. One of the corporations to which money from Kravin Park Clothes was diverted was called J. K. Productions. Samuel Kravitz signed a corporate resolution setting up a bank account for J. K. Productions. There is one episode which does cast suspicion. An account was opened with a Mr. Wood, an officer in the Leonia Bank and Trust Company of Leonia, New Jersey. This account was in the name of “E. W. Randal” and could have been found to contain proceeds of the siphoning process already described. Wood could not remember whether Samuel Kravitz or Herman Kravitz opened this account. He remembers that in 1954 both of these men visited him one evening at his home and upon leaving one of them left upon a chair a package containing some coupons, clipped from bonds, to be deposited in the Randal account. Samuel Kravitz, in 1953, cashed two checks with a factor named Brown which were signed, made payable to and endorsed “E. W. Randal.” We think the most that can be said in the case against Samuel Kravitz is that there are one or two circumstances which arouse a little suspicion and might make one lift one’s eyebrows. But we do not find, after a careful review of the case as a whole, that there is enough here to justify twelve reasonable jurors to find him guilty beyond a reasonable doubt. The case, as said before, was a complicated one and it could well be that with the best of intentions jurors were so impressed with the weighty case made out against Herman Kravitz that the father, Samuel, was unconsciously dragged in. As to Herman Kravitz, the judgments of the district court are affirmed. As to Samuel Kravitz, the judgments are reversed and the case remanded to the District Court for the District of New Jersey with directions to file judgments of acquittal. . Indictment No. 114-58 charged Samuel Kravitz with willfully attempting to evade personal income taxes owed by him for the year 1951 by willfully understating his net income on the return filed by him for that year in violation of § 145(b) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 145 (b). Indictment No. 115-58 charged Herman Kravitz with a similar offense with regard to his personal income taxes for that same year. Indictment No. 116 — 58 charged Samuel Kravitz, Herman Kravitz and Joseph Abrams with unlawfully conspiring to evade income and excess profits taxes owed by Kravin Park Clothes, a corporation, for the year 1951 in violation of IS U.S.C.A. § 371, and specified certain overt acts performed by the conspirators in furtherance of the alleged conspiracy. Indictment No. 117-58 charged Samuel Kravitz, Herman Kravitz and Joseph Abrams with attempting to evade taxes owed by Kravin Park Clothes for the year 1951 by willfully understating the corporation’s net income on the tax return filed by it for that year in violation of § 145(b) of the Internal Kevenue Code of 1939. An order of severance was entered as to Joseph Abrams on the two indictments in which he was included. . Joseph Abrams was a former public accountant who had handled the Kravin Park account from 1944 until 1949 when he gave up his accounting practice. He considered himself to be a tax expert. In 1951, the year in question, Abrams was in the clothes manufacturing business. At the time of trial, he was serving a prison sentence for filing false tax returns 'for himself and a corporation known as Fabric Garment Company for the year 1952 and for stealing certain goods from that company. . In Volume IX of the English publication called “Law Quarterly Review” (July, 1893) there is a note at page 197 about the litigation called “The Highwayman’s Case.” It was a bill in equity. “It recites an oral partnership between the defendant and the plaintiff, who was ‘skilled in dealing in several sorts of commodities;’ and that the parties had ‘proceeded jointly in the said dealings with good success on Hounslow Heath, where they dealt with a gentleman for a gold watch;’ and that defendant had informed plaintiff that Finchley ‘was a good and convenient place to deal in, and that the said commodities were very plenty at Finchley aforesaid,’ and that if they were to deal there ‘it would be almost all gain to them.’ Further recitals show how the parties accordingly ‘dealt witli several gentlemen for divers watches, rings, swords, canes, hats, cloaks, horses, bridles, saddles, and other things to the value of £200 and upwards;’ and how there was a gentleman at Blackheath who had several things of this sort to dispose of, which defendant represented ‘might be had for little or no money, in case they could prevail on the said gentleman to part with the said things;’ and how, ‘after some small discourse with the said gentleman,’ the said things were dealt for ‘at a very cheap rate.’ The Bill further recites that the parties’ joint dealings were carried on at Bagshot, Salisbury, Hampstead, and elsewhere, to the amount of £2000 and upwards; and that the defendant would not come to a fair account with the plaintiff touching and concerning the said partnership. The Bill, which concludes with a prayer for discovery, an account, and general relief, purports to be signed at the foot by counsel, one Jonathan Collins.” 9 L.Q.Rev. at 197-198. The article reports that it is further stated that John Everet, the plaintiff, was executed at Tyburn in 1730; Joseph Williams, the defendant, at Maidstone in 1727. Id. at 199. . The relevant portions of the charge are as follows: “While, the weight and credit to be given to the testimony of a witness is a province of the jury, it is also proper for the court to make such observations regarding the witnesses and their credibility as the court may feel the circumstances of each particular case may require. Such observations by the court are not to impinge upon the rights of the jury or to usurp its functions in weighing the evidence but are limited solely to the duty of assisting the jury in its deliberations. I specifically reiterate that if your recollection is different than mine it is your recollection that controls, and if your observation of the witness leads you to a different conclusion than mine, you are the final judges of the weight and credibility of the evidence. “There has been considerable comment regarding the credibility of the witness Joseph Abrams. Let me say quite frankly to you that I do not believe Joseph Abrams absolutely and in all respects. In the Court’s estimation it would be difficult for any man to get on the witness stand and be absolutely correct regarding what happened back in 1951, especially when it involves the multifarious transactions surrounding these events, hundreds of thousands of dollars, fictitious invoices, fictitious bank accounts, millions of dollars of bonds. It is easy to see how a mistake would be made. When you couple that with the admission on the part of Abrams that he still has criminal and civil tax problems to face in the future, one has some difficulty in accepting his entire story as gospel in all respects. “However, in view of all the other testimony and evidence I say quite frankly to you, members of this jury, that in the main I believe the testimony of Abrams as credible. The only recollection that the Court has of Abrams’s testimony being at variance with the truth, as I see the truth in the matter, is that in his testimony, that he did not sign the name Joe Haber on the signature card, Exhibit G-54, the account in the name of Model Clothes in the Royal Industrial Bank, when it appears from the stipulation of the handwriting expert that he did. “Is this sufficient to disregard his testimony altogether regarding this scheme and the various parts the defendants played in it? That is for your judgment. “And, just as I have informed you of my reactions regarding the credibility of the testimony of Abrams, I think it proper also to point out to you my beliefs regarding the testimony entered in the record here of Herman Kravitz before the Grand Jury in New York. I do not believe that testimony in all respects and for the same reasons. Kravitz knew then that he had criminal and civil tax problems to face in the future the same as Abrams had and has. “Let me point out to you the exhibit which is a jeopardy assessment notice against Kravin Park Clothes in the amount of $1,252,077, dated November 1, 1956. Let me further remind you that Herman Kravitz was indicted, as you can see from the indictments which you will take into the jury room with you, on March 13, 1958, and that he plead not guilty to those indictments in this court, according to the records of the court, on June 20, 1958. This was prior to the testimony of Kravitz in New York on June 24 and June 30, 1958. So that it is completely possible that Herman Kravitz had an eye to the future at that time and was putting his best foot forward. “I again remind you that it is not the Court’s intention or function to usurp your duties or rights in determining what weight and credit shall be given to the witnesses and again I admonish you that if your belief in this regard is different than mine, then it is your belief that controls.” . See e.g., Quercia v. United States, 1933, 289 U.S. 466, 469, 53 S.Ct. 69S, 77 L.Ed. 1821; United States v. Murdock, 1933, 290 U.S. 389, 394, 54 S.Ct. 223, 78 L.Ed. 381; United States v. Curzio, 3 Cir., 1948, 170 F.2d 354, 357; United States v. Rutkin, 3 Cir., 1951, 189 F.2d 431, 440, affirmed on other grounds, 1952, 343 U.S. 130, 72 S.Ct. 571, 96 L.Ed. 833. . See cases cited note 5 supra. See also United States v. Gollin, 3 Cir., 166 F.2d 123, 127, certiorari denied 1948, 333 U.S. 875, 68 S.Ct. 905, 92 L.Ed. 1151; Sullivan v. United States, 1949, 85 U.S.App.D.C. 409, 178 F.2d 723; Billeci v. United States, 1950, 87 U.S.App.D.C. 274, 184 F.2d 394, 402-403, 24-A.L.R. 2d 881; United States v. Link, 3 Cir., 1953, 202 F.2d 592, 594-595; Blunt v. United States, 1957, 100 U.S.App.D.C. 266, 244 F.2d 355, 365 — 366; Buchanan v. United States, 6 Cir., 1957, 244 F.2d 916, 919-920; Benes v. United States, 6 Cir., 1960, 276 F.2d 99, 102-104. . He made such a statement both immediately before and immediately after his reference to the "testimony given by Abrams and the Grand Jury testimony of Herman Kravitz. See note 4 supra. . See United States v. Stirone, 3 Cir., 1958, 262 F.2d 571, 577, reversed on other grounds 1960, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252. See also United States v. Sober et al., 3 Cir., 281 F.2d 244; Di Carlo v. United States, 2 Cir., 1925, 6 F.2d 364, 368. . See United States v. Socony-Vacuum Oil Co., 1940, 310 U.S. 150, 237-240, 60 S.Ct. 811, 84 L.Ed. 1129. . Ibid. See also Jenkins v. United States, 5 Cir., 1958, 251 F.2d 51, 52. This case is not at all like those exceptional cases where justice would require us to reverse even though defense counsel voiced no objection to the prosecutor’s remarks at the time. Compare Viereck v. United States, 1943, 318 U.S. 236, 248, 63 S.Ct. 561, 87 L.Ed. 734; Stewart v. United States, 1957, 101 U.S.App.D.C. 51, 247 F.2d 42; Ginsberg v. United States, 5 Cir., 1958, 257 F.2d 950, 954-955, 70 A.L.R.2d 548; Wagner v. United States, 5 Cir., 1959, 263 F.2d 877, 882-884. . See Fed.R.Crim.P. 6(e), 18 U.S.C.A. . The defense was in this way able to introduce into evidence testimony which tended to show that Abrams had kept all of the diverted funds. . Defense counsel’s failure to request that the complete transcript be introduced into evidence was probably based on the fact that certain portions not read into evidence by either side would have been, as the trial judge so aptly put it, “terribly detrimental to the interests of the defendant.” . Although the handwriting was entirely that of Abrams, Abrams’ testimony is explicit in pointing out that Herman Kravitz participated in the preparation of the document. . Compare 3 Wigmore, Evidence § 738 (3d ed. 1940) and McCormick, Evidence § 277 (1954) with In re Messenger, D.C. E.D.Pa.1940, 32 F.Supp. 490, 495-497. See generally on “past recollection recorded” and “present recollection revived” United States v. Riccardi, 3 Cir., 174 F.2d 883, certiorari denied 1949, 337 U.S. 941, 69 S.Ct. 1519, 93 L.Ed. 1746. . 4 Wigmore; Evidence § 1048 et seq. (3d ed. 1940). . Counsel relies on Amendola v. United States, 2 Cir., 1927, 17 F.2d 529, 530; United States v. Mazzochi, 2 Cir., 1935, 75 F.2d 497; and United States v. Pagano, 2 Cir., 1955, 224 F.2d 682, for this proposition. . The maximum sentence he could have been given upon conviction on the three indictments was fifteen years in prison and a $30,000 fine. See 18 U.S.C.A. § 371 ($10,000 fine and/or five years in prison) and Int.Rev.Code of 1939, § 145 (b) (same). There were two separate violations of the latter statute. See note 1 supra. . This was perfectly legitimate since, at the time, J. K. Productions was partially owned and controlled by the Kravitzés. 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:
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. MOYA et ux. v. DeBACA, dba DeBACA & CO. CREDIT & COLLECTION AGENCY, et al. No. 996, Misc. Decided June 23, 1969. William G. Fitzpatrick, Jr., for appellants. Claud S. Mann for DeBaca et al., and Boston E. Witt, Attorney General, and James V. Noble, Assistant Attorney General, for the State of New Mexico, appellees. Per Curiam. The motion for leave to proceed in forma pauperis is granted. The motion to dismiss is granted and the appeal is dismissed. Mr. Justice Harlan and Mr. Justice Brennan would vacate the judgment and remand the case in light of Sniadach v. Family Finance Corp. of Bay View, ante, p. 337. Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_respond1_7_5	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). UNITED STATES v. STEESE. No. 8545. Circuit Court of Appeals, Third Circuit. Submitted on Briefs Feb. 7, 1944. Decided Aug. 25, 1944. Appellant for himself. Gerald A. Gleeson and Edward A. Kallick, both of Philadelphia, Pa., for appellee. Before BIGGS, GOODRICH, and Mc-LAUGHLIN, Circuit Judges. GOODRICH, Circuit Judge. This is an appeal from an order of the District Court of the United States for the Eastern District of Pennsylvania denying a motion filed by the appellant, Frederick Steese, the object of which, in his words, was to have a conviction against him “declared null and void to the end that it be expunged from the records.” The petitioner’s original motion stated that he is incarcerated in the New York State Prison, having been convicted of the crime of forgery in that state. It said that he is serving an indeterminate term, the minimum of which is five years and the maximum ten years; five years of this term, he said, was imposed as additional punishment because there appeared upon his criminal record a notation to the effect that on July 24, 1935 he was convicted of the crime of forgery in the United States District Court for the Eastern District of Pennsylvania. The petition went on to say that this conviction in the United States District Court was illegally secured by the court, the said court “having ignored and disregarded his rights to the assistance of counsel for his defence” and offered as an exhibit a copy of the record of his conviction in the District Court. It was alleged, also, in the petition, that the prayed adjudication would enable appellant to ask the courts of New York for resentence as a first felony offender. The other averments of the petition are either irrelevant or argumentative conclusions of law. The document was submitted by petitioner, Steese, over his own signature without, so far as the record shows, the assistance of counsel. The docket entries in the District Court of the United States for the Eastern District of Pennsylvania, June 1934 Term, in the case of United States of America v. Frederick Steese show the finding of a true bill on September 7, 1934, issue of a bench warrant September 14, 1934, plea of guilty July 24, 1935 and the imposition of sentence : “Imprisonment in a County Jail for term of one year — suspended. Probation three years.” These are all the facts which the District Court had before it when the appellant’s motion was presented. There was no allegation there on the part of the petitioner that he was not guilty of the crime of which he was charged; no claim that he did not intelligently waive his right to counsel and did not knowingly plead guilty nor did he even allege that he was not advised of his right to counsel. However, in considering the petition the District Judge considered the matter “as though the defendant had pleaded that- he was not so advised by the Court [of his rights to counsel] and that such inquiry was not made.” The District Judge, however, found nothing to indicate that the right to counsel had not been intelligently waived. He therefore denied the motion. We think that on the case as it was presented to the District Judge, including his assumption of fact in petitioner’s favor, that his conclusion was correct. The constitutional provision in the Sixth Amendment entitling one accused of crime to have the benefit of counsel has received renewed and extended force and application through recent decisions of the Supreme Court. It applies both to situations where defendant pleads not guilty and goes to trial and where he pleads guilty. At the same time “the constitution does not force a lawyer upon a defendant. He may waive his constitutional right to assistance of counsel if he knows what he is doing and his choice is made with eyes open.” In order that an accused person’s constitutional rights to counsel be protected is it incumbent, to uphold a judgment of conviction, to show affirmatively that a defendant pleading guilty was advised of his rights to counsel and that he understandingly rejected the opportunity for legal advice? Unless we are prepared to go that far the District Judge committed no error in the hearing before him. That the constitutional requirement does go this far seems to be the point of view of the United States Court of Appeals for the District of Columbia. The Ninth Circuit, at about the same time, declared the contrary, saying “waiver of counsel is usually to be implied from the appearance of an accused without counsel, and his failure to request counsel. * * * This is particularly true when the accused by his plea of guilty has rendered a trial unnecessary.” While it is highly desirable to prevent subsequent disputes and misunderstanding that an accused, if he wishes to waive the right to counsel, should do so in a writing which becomes part of the record, we do not think the rule goes so far that .the absence of the waiver as a matter of record or the failure of the judge expressly to advise the defendant is, by itself, sufficient to invalidate a conviction on constitutional grounds. The instant case, however, has grown more complicated since coming to this Court. Among the documents which the appellant puts before us is a recital which he denominates a “case history.” In it the appellant makes many allegations of fact. He says that in 1934 he was serving a sentence in a county prison in Pennsylvania for the crime of uttering a worthless check, a misdemeanor under Pennsylvania law and no crime at all under federal statutes. While serving this sentence he states that he was visited by a person who described himself as an United States Postal Inspector who informed the defendant that he had been indicted by a Federal Grand Jury for the crime of forging a Post Office money order. This person, defendant says, informed him that if he would sign a certain document he would undoubtedly receive a suspended sentence, but that if he decided to go to trial a sentence of ten years would likely be imposed upon him. At this time, says the petitioner, he was but nineteen years of age and incarcerated as a convicted prisoner for the first time. He says he signed the document without reading it. His statement continues to the effect that when he was released from the county prison he was taken by a Deputy United States Marshal before the United States District Court, was in the courtroom less than five minutes and that throughout the entire proceedings he spoke no words to anyone nor were any words except the sentence of the Court addressed to him. In the Government’s brief in this Court there is included a copy of a Federal Bureau of Investigation report on petitioner. In the document denominated “Reply Brief” the latter vigorously disputes the correctness of entries in this report. We cannot find error on the part of the trial judge upon the basis of the allegation of facts brought to us for the first time. If the present litigation were a civil case, with an appellant represented by counsel, we should have no hesitation in refusing to consider as part of an appeal allegations of fact not presented to the court below. This case is on a different basis. The appellant represents himself to be a person of limited education, he is conducting his own appeal in forma pauperis. We should not, and do not, apply to him requirements imposed in the usual case for the purpose of securing orderly administration of judicial business. The appellant’s story may or may not be established as a fact if opportunity is given for hearing evidence and deciding facts. If his statements are found to be true the conclusion may well be that he was deprived of constitutional protection by the over-zealousness of Government officers. It may be true that even the setting aside of this conviction would not help the appellant; that he has been convicted of other felonies, and a petition to the New York courts must fail in any event. Appellant says that his record shown in the Federal Bureau of Investigation report is incorrect. We have no way of knowing whether it is or not. Only a hearing of the facts can establish the truth or falsity of these allegations. There is a further point stressed by counsel for the Government. It is that there is no way by which this case, thus sought to be reopened by motion many years after the term has expired in which the judgment of conviction was had, may be opened. Certain it is that the time for motion for a new trial or for an appeal has long since passed. Habeas corpus is not available in this district as petitioner is not here confined. The Supreme Court has expressly refrained from passing upon the question whether district courts may exercise in criminal cases a correctional jurisdiction at subsequent terms. We think, however, a court is not helpless to remedy an injustice, if one is proved to have been committed, which goes to the extent of depriving a man of his constitutional rights. The motion in the particular case may be treated, for this purpose, as a modern substitute for the ancient writ of error coram nobis. We think the present question involving protection of one’s rights under the constitution is just as fundamental as those for the protection of which this time honored writ was devised and used in the early common law procedure. The judgment of the District Court is, therefore, vacated and the case remanded to that court to give the petitioner an opportunity to present evidence to establish his allegations of fact which would show that his original conviction was in violation of his rights under the Sixth Amendment of the Constitution of the United States. Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357; see also Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Adams v. United States ex rel. McCann, 1942, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268, 143 A.L.R. 435. Walker v. Johnston, 1941, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830. Evans v. Rives, 1942, 75 U.S.App.D.C. 242, 126 F.2d 633; the opinion of the court collects the recent federal decisions on the subject. The citations need not be repeated here. O’Keith v. Johnston, 9 Cir., 1942, 129 F.2d 889, 890. See rules 2 and 3 of the Rules of Criminal Procedure, 18 U.S.C.A. following Section 688. United States ex rel. Harrington v. Schlotfeldt, 7 Cir., 1943, 136 F.2d 935; Jones v. Biddle, 8 Cir., 1942, 131 F.2d 853, certiorari denied, 1943, 318 U.S. 784, 63 S.Ct. 856, 87 L.Ed. 1152, rehearing denied, 1943, 319 U.S. 780, 784, 785, 63 S.Ct. 1027, 1325, 1431, 87 L.Ed. 1725, 1728; United States ex rel. Belardi v. Day, 3 Cir., 1931, 50 F.2d 816. United States v. Mayer, 1914, 235 U.S. 55, 69, 35 S.Ct. 16, 59 L.Ed. 129. For a discussion of the writ by a modern case authority see Orfield, The Writ of Error Coram Nobis in Civil Practice (1934) 20 Ya.L.Rev. 423. Question: This question concerns the first listed respondent. 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_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. UNITED STATES of America v. Kinley THOMAS, Appellant. No. 92-3113. United States Court of Appeals, District of Columbia Circuit. Decided April 16, 1993. Thomas W. Farquhar, Washington, DC (appointed by this Court), was on the brief for appellant. Jay B. Stephens, U.S. Atty. at the time the brief was filed, John R. Fisher, Thomas C. Black, Peggy Kuo, Eric M. Acker and Edward F. McCormack, Asst. U.S. Attys., Washington, DC, were on the brief, for appellee. Before WALD, RUTH BADER GINSBURG and SENTELLE, Circuit Judges. Opinion for the Court PER CURIAM. PER CURIAM: On appeal from his conviction for two counts of distributing cocaine base and one count of distributing heroin, Kinley Thomas challenges the district court’s order denying his motion to suppress tangible evidence. Thomas argues that the police officer’s affidavit in support of the application for a search warrant for Thomas’ house was inadequate because it offered no facts indicating that criminal activity occurred at the house. We affirm the district court’s ruling. On June 27, 1991, Metropolitan Police Department officers applied for a warrant to search a two-story red brick row house at 515 — 51st Street, N.E., where Thomas lived with his wife. The affidavit of Officer Burton, submitted in support of the warrant, stated that within the preceding 72 hours, Burton had received information from a reliable informant that Thomas was selling cocaine and heroin in the 900 block of N Street, N.W. The informant had previously provided the police department with information that led to twenty-five arrests and the seizure of narcotics. After receiving the informant’s tip, an undercover officer observed Thomas in the 900 block of N Street, N.W. A second undercover officer purchased from Thomas with police department funds three ziplock bags containing white powder which tested positive for cocaine. The affidavit described the clothing Thomas wore during this transaction, and recounted that Thomas and the undercover officer discussed previous narcotics sales Thomas had made in the area. The affidavit also detailed Burton’s experience investigating narcotics trafficking. Burton stated that in his experience, drug dealers frequently keep business records, narcotics, proceeds from sales, and firearms in their houses. The affidavit also stated that Thomas was paroled in February 1991 from incarceration for convictions for assault with intent to kill while armed, armed robbery, and carrying a pistol without a license. On June 27, 1991, District of Columbia Superior Court Judge Sylvia Bacon issued the warrant. It authorized the police to search Thomas’ house for “books, ledgers, records and other documents” and the clothing Thomas wore during the sale to Myers that day. Members of the Metropolitan Police Department executed the warrant the next day. All of the clothing described in the warrant was recovered, as well as a magnetic key holder from which Thomas had sold Officer Myers cocaine on June 27, and the ten one dollar bills of prerecorded funds used to purchase cocaine from Thomas. A gun, some ammunition, and two plastic bags containing a white rocky substance were also seized. Following the search, Thomas was arrested and subsequently indicted on two counts of distributing cocaine, one count of distributing heroin, and one count of being a felon in possession of a firearm. Thomas moved to suppress the items seized during the search. He argued that the rationale given by police for the warrant, that Thomas had been observed engaging in narcotics trafficking in the 900 block of N Street, N.W., was insufficient to support a finding of probable cause to believe that evidence of a crime would be found in Thomas’ house at 515—51st Street, N.E. The district court denied the motion to suppress. Thomas was convicted of two counts of distribution of cocaine and one count of distribution of heroin. The task of a judicial officer from whom a search warrant is requested is “to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983); see also United States v. Laws, 808 F.2d 92, 94 (D.C.Cir.1986) (affidavit must set forth sufficient facts to induce a “reasonably prudent person” to believe evidence of crime will be found). Hearsay in an affidavit does not render the information insufficient to establish probable cause, “so long as a substantial basis for crediting the hearsay is presented.” Illinois v. Gates, 462 U.S. at 242, 103 S.Ct. at 2334. The reviewing court will not make a de novo determination of probable cause, but will uphold the decision to issue the warrant if it is supported by substantial evidence. Massachusetts v. Upton, 466 U.S. 727, 728, 104 S.Ct. 2085, 2085, 80 L.Ed.2d 721 (1984) (per curiam). The totality of the circumstances supported Judge Bacon’s issuance of the warrant. Although this court has not had the opportunity to address the question previpusly, other circuits have held that observations of illegal activity outside of the home can provide probable cause for the issuance of a search warrant for a suspect’s hoúse, even in the absence of an allegation that any illegal activity occurred in the home itself. See, e.g., United States v. Riedesel, 987 F.2d 1383 (8th Cir.1993) (lawful seizure of drugs from defendant’s car provided probable cause to support issuance of warrant to search his house); United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.1986) (probable cause existed to .search defendant’s ■ residence, based on reasonable inference that suspected drug dealer would keep evidence at home); United States v. Cruz, 785 F.2d 399, 406 (2d Cir.1986) (probable cause found to search defendant’s apartment, although no witness ever saw defendant or his associates use apartment). We agree with these rulings: observations of illegal activity occurring away from the suspect’s residence, can support a finding of probable cause to issue a search warrant for the residence, if there is a reasonable basis to infer from the nature' of the illegal activity observed, that relevant evidence will be found in the residence. Because substantial evidence supported a finding of probable cause to issue the warrant, the district court’s judgment denying Thomas’ motion to suppress tangible evidence is affirmed. So ordered. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained 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". Lazaro PEREZ and Migdalia Perez, individually and as parents and natural guardians of Vladimir Perez, a minor, Appellants, v. THE BAHAMAS, a foreign state. No. 80-1215. United States Court of Appeals, District of Columbia Circuit. Argued March 2, 1981. Decided April 28, 1981. Arnold R. Ginsberg, Washington, D. C., with whom James E. Burk, Washington, D. C., was on the brief, for appellants. William A. Bradford, Jr., Washington, D. C., with whom Edward A. McDermott and Allan D. Windt, Washington, D. C., were on the brief, for appellee. Before MacKINNON and WALD, Circuit Judges, and AUBREY E. ROBINSON, Jr., District Judge. Sitting by designation pursuant to 28 U.S.C. § 292(a) (1976). AUBREY E. ROBINSON, Jr., District Judge: This is an appeal from the District Court’s, 482 F.Supp. 1208, dismissal of a tort action against the Government of the Bahamas. The lower court held that it lacked subject matter and personal jurisdiction under 28 U.S.C. § 1330 (1976), which is predicated upon the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602-1611 (1976). The FSIA exception relied upon by Appellant is clearly inapplicable to this case. Accordingly, we affirm. I Appellant Perez was a minor aboard a United States fishing vessel in the territorial waters of The Bahamas and was severely injured by a gunshot when Bahamian governmental gunboats fired on the fishing vessel. Suit was commenced against the Government of The Bahamas in the United States District Court for the Southern District of Florida for damages resulting from Appellant’s injury. The case was transferred to the District Court for the District of Columbia pursuant to the special venue provision applicable to actions brought against a foreign state. Id. § 1391(f)(4). The District Court construed our statute to hold that The Bahamas was immune from suit since Appellant had failed to show how the facts of the case triggered any of the statutory exceptions to sovereign immunity. As a result, the District Court dismissed Appellant’s complaint since it lacks subject matter or personal jurisdiction when a foreign sovereign is immune from suit. Id. § 1330. The provision of the Foreign Sovereign Immunities Act principally at issue in this case 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— (5) not otherwise encompassed in paragraph (2) above, in which money damages are sought against a foreign state for personal injury or death, or .damage to or loss of property, occurring in the United States and caused by the tor-tious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment; 28 U.S.C. § 1605(a)(5) (1976) (emphasis added). A related provision is the definitional section of the FSIA, which specifies that [t]he ‘United States’ includes all territory and waters, continental or insular, subject to the jurisdiction of the United States. Id. § 1603(c). Appellant would have us hold that the shooting incident in this case occurred “in the United States” since, he argues, it occurred within the 200-mile wide Fishery Conservation Zone established by Congress in the Fishery Conservation and Management Act of 1976. 16 U.S.C. §§ 1801-1882 (1976). Alternatively, he argues that the shooting occurred within an area subject to the special maritime jurisdiction of the United States established for purposes of criminal law enforcement, 18 U.S.C. § 7 (1976), and thus occurred “in the United States.” II We need not reach the question of whether territory subject to the limited jurisdiction of the United States for circumscribed purposes of fishery conservation or of law enforcement is territory of the United States, sufficient to strip a foreign sovereign of its immunity from tort actions in United States Courts. The shooting incident involved in this case occurred less than a half mile from an island of The Bahamas, the Great Isaac Cay, in Bahamian territorial waters. Even if Appellant’s theories are accepted, the tort did not occur in the United States. The Bahamas is immune from suit in our courts for torts occurring outside the United States. But see 28 U.S.C. § 1605(aX3). The Secretary of State, pursuant to the authority given him by the Fishery Conservation Management Act, 16 U.S.C. § 1822 (1976), declared the limit of the Fishery Conservation Zone, insofar as The Bahamas is concerned, to be the median line halfway between the United States and The Bahamas. 42 Fed.Reg. 12937-38 (1977). It is undisputed that the events in this case took place well beyond the median line, in the territorial waters of The Bahamas and outside the Fishery Conservation Zone. This placement by the Secretary of State of the area in question beyond the United States Fishery Conservation Zone is dispositive of Appellant’s principal contention. Appellant’s argument that a tort committed in the Fishery Conservation Zone is a tort “occurring in the United States” is thus not supported by the facts of this case. Perez also relies upon 18 U.S.C. § 7(1) but that statute defines the “special maritime and territorial jurisdiction of the United States” only for purpose of the title dealing with United States crimes. Also, the only waters subject to the United States’ special maritime jurisdiction are “high seas”, 18 U.S.C. § 7(1) (1976), and territorial waters of a nation are not part of the “high seas”. See, e. g., Convention on the High Seas, Article I, T.I.A.S., 13 U.S.T. 2312; Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 330, 338 n.14 (5th Cir. 1978); United States v. Mitchell, 553 F.2d 996, 1005 n.15 (5th Cir. 1977). Cf. United States v. Flores, 289 U.S. 137, 53 S.Ct. 580, 77 L.Ed. 1086 (1933) (acts committed by U.S. citizens on U.S. vessels in territorial waters of another sovereign are subject to criminal jurisdiction of U.S. Courts). Appellant’s injuries were not suffered on the high seas but, rather, were inflicted within Bahamian territorial waters. Therefore, the special maritime jurisdiction is in no way involved here and we need not reach the question of its applicability to jurisdictional determinations under the FSIA. Appellant has failed to demonstrate how Section 1605(a)(5), or any of the statutory exceptions to sovereign immunity, are applicable to The Bahamas in this case. The Government of The Bahamas is entitled to the sovereign immunity granted it by statute, 28 U.S.C. § 1604 (1976), and the lower court was correct in dismissing this action. . It is doubtful that territory falling within the Fishery Conservation Zone suffices as territory of the United States within the meaning of the FSIA. The Fishery Conservation Management Act explicitly provides that it was Congress’ intent to “maintain without change the existing territorial or other ocean jurisdiction of the United States for all purposes other than the conservation and management of fishery resources.” 16 U.S.C. § 1801(c)(1) (emphasis added). The language of the statute makes it clear that it was the intent of Congress to extend United States jurisdiction beyond our territorial seas only for the purpose of conserving and managing scarce marine resources. See United States v. Postal, 589 F.2d 862, 880 n.30 (5th Cir. 1979); Note, Fishery Conservation & Management Act of 1976: An Accommodation of State, Federal and International Interests 10 J. Int’l Law 703, 735 (1978). Indeed, if the Fishery Conservation Zone is used as a device to obtain personal and subject matter jurisdiction over foreign sovereigns in civil suits unrelated to the purposes of the Fishery Act, international law may be violated. Publicist Ian Brownlie observed: Excessive and abusive assertion of civil jurisdiction could lead to international responsibility or protests at ultra vires acts. Indeed, as civil jurisdiction is ultimately reinforced by procedures of enforcement involving criminal sanctions, there is in principle no great difference between the problems created by assertion of civil and criminal jurisdiction over aliens. 1. Brownlie, Principles of Public International Law 299 (1979). Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_respond2_7_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 second listed respondent. 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"). Kent EARNHARDT, et al., Plaintiffs, Appellees, v. The COMMONWEALTH OF PUERTO RICO, et al., Defendants, Appellants. Kent EARNHARDT, Plaintiff, Appellant, v. The COMMONWEALTH OF PUERTO RICO, et al., Defendants, Appellees. Nos. 84-1055, 84-1105. United States Court of Appeals, First Circuit. Argued June 7, 1984. Decided Sept. 17, 1984. Carlos V. Garcia Gutierrez, Santurce, P.R., for Kent Earnhardt, et al. Gerardo Mariani, Asst. Sol. Gen., San Juan, P.R., with whom Miguel A. Pagan, Deputy Sol. Gen., Dept, of Justice, San Juan, P.R., was on brief, for The Commonwealth of Puerto Rico, et al. Before BOWNES and BREYER, Circuit Judges, and DOYLE, Senior District Judge. Of the Western District of Wisconsin, sitting by designation. BOWNES, Circuit Judge. In this Title VII discriminatory discharge case, based on 42 U.S.C. § 2000e, plaintiff, Dr. Kent Earnhardt (Earnhardt), convinced the district court that his employment with the Commonwealth of Puerto Rico was terminated because of invidious national origin discrimination and the court awarded him his lost salary as damages. Defendant Commonwealth of Puerto Rico (Commonwealth) appeals, maintaining that the district court, 582 F.Supp. 25, erred in concluding the plaintiff was fired as a result of discriminatory animus. Plaintiff Earnhardt cross-appeals the denial of a Federal Rule of Civil Procedure 59(e) motion to amend the back pay judgment to include prejudgment interest and a liquidated sum for loss of fringe benefits. The court’s subsidiary findings of fact and its ultimate determination of liability are amply supported by the evidence. Because the findings rest on a strong evidentiary base, we rehearse only the factual highlights. Earnhardt, who was born in the continental United States, was hired by the Commonwealth of Puerto Rico Health Department (Department) by contract dated October 24, 1975. The decision to hire Earnhardt was made by Dr. Antonio Silva Iglecia (Silva), who at that time was Assistant Secretary of Health for the Family Planning Division. The contract, under which he was to work ninety-five hours per month, expired on June 30, 1976. Shortly before that date, the contract was renewed for an additional year. In September 1976, the new contract was amended to allow for prorated sick leave and vacation time. During his tenure with the Department, Earnhardt worked closely with Silva, preparing speeches and other policy statements. He represented Silva and the Department at an international conference on population and worked on various research projects. Earnhardt subsequently became subdirector of the Planning and Development Division under Sandra Quinones Lopez (Quinones) in July of 1976. Earnhardt’s contract was terminated later that year by a memorandum dated December 20, 1976, stating that clause 11 of the contract was the basis for the termination. Clause 11 provided that either party had the right to terminate the contract on thirty days’ notice, No reason was given to Earnhardt for the contract termination; Silva testified that he had invoked clause 11 so that the termination would not have to be justified by specific reasons. The district court found as follows. Earnhardt, the only continental American working in the Family Planning Program, was frequently reminded of this by being addressed as “gringo” by his supervisors and co-workers rather than by his name. He was criticized upon occasion for being “muy Americano” (“very American”). “There existed in the workplace a sense that ‘Americans’ were outsiders, and that Earnhardt was one of them.” Earnhardt’s supervisor, Silva, who signed the termination memorandum, was “overly sensitive to professional differences of opinion when they came from ‘Americans.’ ” This was evidenced by a memorandum couched in ethnic terms from Silva responding to a critique by a team of evaluators from the U.S. Department of Health, Education, and Welfare and by comments Silva made to Earnhardt. The Commonwealth contends that low productivity was the cause of Earnhardt’s termination rather than any discriminatory animus of his supervisors and co-workers. We agree with the district court that this profferred reason is not credible: “The overall impression we get from the memorandums submitted [into] evidence is that the plaintiff was a worker whose goal was to get on with his work and accomplish it in the most efficient manner possible.” The district court further found that some work rules were applied strictly and inflexibly to the plaintiff in contrast to the flexible application afforded Puerto Rican and Latin American employees in the Division. Moreover, defendant’s own evidence was inconsistent on the reason for the firing. Silva testified that the reason Earnhardt was fired at this particular time lay in the incumbent government’s desire to turn over to the incoming administration, to which it had lost the election, only the best employees in the division. Yet there is no evidence that any other employee was terminated, or, for that matter, even evaluated at this time. The district court found that Earnhardt’s discharge was in direct violation of a Puerto Rican law which forbids Commonwealth agencies from effectuating any change in the personnel status of any employee during the sixty days before and sixty days after a general election. See 3 L.P.R.A. § 1337; see also Ortiz v. Alcade de Aguadillo, 107 D.P.R. 819 (1978). It was during this sixty-day period that Earnhardt received his termination notice. Our review of the record convinces us that the district court’s findings were not only not clearly erroneous, but were clearly correct. We, therefore, turn to the plaintiff’s cross-appeal, which questions the summary denial of liquidated fringe benefits and prejudgment interest despite the judgment in his favor. Plaintiffs Cross-Appeal Earnhardt submitted a timely Rule 59(e) motion, Fed.R.Civ.P. 59(e), to amend the judgment to include within the back pay award prejudgment interest and liquidated fringe benefits, and to fix a sum certain as the amount of judgment. In his proposed findings and judgment submitted to the court after trial, Earnhardt had omitted these requests and petitioned solely for the value of his employment contract with the Commonwealth, at the rate of $850 per month, which was awarded him. Earnhardt’s 59(e) motion was denied. Where a district court rejects a motion to alter or amend a judgment, the standard of review is whether there was an abuse of discretion. Robinson v. Watts Detective Agency, 685 F.2d 729, 743 (1st Cir.1982). Although the district court gave no reason for the denial of the motion, it was not required to do so under the rules and we must assume that the motion received careful consideration. The determination of the amount of damages is, absent legal error, a matter for the finder of fact. It cannot be said that either prejudgment interest or an award for lost fringe benefits must, as a matter of law, be part of the damages awarded in a Title VII case. The question of whether they are necessary to make a plaintiff whole is within the discretion of the district court. This is especially so when the request for such an award comes as an afterthought by the plaintiff. The district court did not abuse its discretion in denying the Rule 59(e) motion. The judgment of the district court is affirmed in all respects. Question: This question concerns the second listed respondent. 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_majvotes	2	What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes. COMMISSIONER OF INTERNAL REVENUE v. LIBERTY BANK & TRUST CO. LIBERTY BANK & TRUST CO. v. COMMISSIONER OF INTERNAL REVENUE. Nos. 5780, 5867. Circuit Court of Appeals, Sixth Circuit. May 12, 1932. Ill OKENLOOPER, Circuit Judge, dissenting. G. A. Youngquist, Ass’t Atty. Gen. (Sewall Key, Hayner N. Larson, C. M. Charest, and Prew Savoy, all of Washington, D. C.), for Commissioner. George M. Morris, of Washington, D. C. (KixMiller, Baar & Morris, of Washington, D. C., on the brief), for Liberty Bank. W. A. Sutherland, of Atlanta, Ga., ami-cus curia. Before MOORMAN, HICKS and HICK-ENLOOPER, Circuit Judges. MOORMAN, Circuit Judge. Petitions to review decisions of the Board of Tax Appeals by the taxpayer, the Liberty Bank & Trust Company, in No. 5867, and by the Commissioner in No. 5780. The petitioner in No. 5867 contends that debts owing to it by the Kentucky Wagon Manufacturing Company and the Wolko Lead Batteries Company were recoverable only in part on December 31, 1921, and that deductions should have been allowed therefor from gross income for the year 1921 in the sum of $175,000. The Commissioner disallowed the deductions, and the Board of Tax Appeals sustained his ruling upon the ground that no art of the indebtedness was charged off by the taxpayer during the taxable year. The ruling of the Board was based on section 234(a) (5) of the Revenue Act of 1921 (42 Stat. 254), which provides that the taxpayer shall be allowed as deductions “debts ascertained to be worthless and charged off within the taxable year (or in the discretion of the Commissioner, a reasonable addition to a reserve for bad debts); and when satisfied that a debt is recoverable only in part, the Commissioner may allow such debt to be charged off in pari.” This statute deals with two classes of debts: Those that have become wholly worthless, and those recoverable only in part. It makes provision for the deduction of each from gross income, providing as to the first that, when “ascertained to be worthless and charged off,” a deduction therefor “shall be allowed”; and as to the second, that, when “satisfied that a debt is recoverable only in part the -Commissioner may allow such debt to .be charged off in part.” The allowance as to each class depends on the performance of a precedent act or acts. Those in the first are the ascertainment of worthlessness and the charging off, which must be done by the taxpayer, subject, of course,.to tbe review of the Commissioner as to tbe reasonableness of the ascertainment. Sherman & Bryan v. Blair, Comm. (C. C. A.) 35 F.(2d) 713; Deeds v. Commissioner, 47 F.(2d) 695 (6 C. C. A.). In the other class the precedent, act must be performed by the Commissioner. He must be “satisfied that a debt is recoverable only in part,” and, until he is, there can be no charge off, and then only with his permission. The taxpayer being under no -duty to make the charge off in this class until the Commissioner permits ( it to be done, it is sufficient to give him a right to have the Commissioner’s ruling reviewed that his claim to a charge off was made and rejected. In this case claims were presented and disallowed. Whether the disallowances by the Commissioner were because of tbe failure of the taxpayer to charge off the debts in part or were made in the exercise of the discretion which the Commissioner has does not appear. See Stranahan v. Commissioner, 42 F.(2d) 729 (6 C. C. A.) as to the extent of discretion. The Board of Tax Appeals, as we have said, based its decision upon the failure of the taxpayer- to charge off the debts in part. We think it should have considered and determined whether the Commissioner abused his discretion in not allowing the charge offs to be made. The initial question in case Ho. 5780 is whether this court has jurisdiction and power to hear and determine the questions presented by the petition of the Commissioner. It is said that'there is no such power because there is no “ease or controversy” within the ineaning of section 2 of article 3 of the Constitution. The theory of that view is that the Board of Tax Appeals is an executive or administrative tribunal of the government superior in authority to the Commissioner of Internal Revenue, and that when the Board acted favorably to the taxpayer .on its appeal from the deficiency assessment there was an accord between the taxpayer and the highest administrative body, and no controversy remained. It is to be noted in connection with this contention that there are thirty-five reported eases, among them ■ Commissioner v. Bingham, 35 F.(2d) 503 (6 C. C. A.), And Commissioner v. Leasing & Building Co., 46 F.(2d) 2 (6 C. C. A.), in which petitions in behalf of the Commissioner to review decisions of the Board of Tax Appeals have been accepted without question. Among these eases are decisions from each of the Circuit Courts of Appeals, some of which were reviewed by tbe Supreme Court, and in none of them was the power of the Circuit Court of Appeals to review a decision of the Board of Tax Appeals upon petition of the Commissioner ever questioned or thought to he in doubt. Whatever may have been assumed heretofore, it is, however, true that, unless a decision against the government by tbe Board of Tax Appeals presents a “case or controversy” within tbe judiciary article, there is no power of review in a constitutional court. We inquire therefore, into the statutory functions of the Board, which, as pointed out in Old Colony Trust Co. v. Commissioner, 279 U. S. 716, 49 S. Ct. 499, 502, 73 L. Ed. 918, was established by the Revenue Act of 1924 (43 Stat. 253). Under that Act it became" tbe duty of the Board to hear and decide whether deficiencies reported by the Commissioner were rightly determined. It was provided in the act that, if the Board determined there was a deficiency, the amount so determined should be assessed and paid upon notice and demand from tbe collector, and no part of the deficiency assessed by the Commissioner hut disallowed as such by tho Board could be assessed. The Commissioner, however, was given the power notwithstanding the decision of the Board, to bring a suit in a proper court against the taxpayer to collect as a deficiency the difference between his assessment and that allowed by the Board. See United States v. Cleveland Co., 42 F.(2d) 413 (6 C. C. A.). The Revenue Act of 1926 (44 Stat. 9) enlarged the original jurisdiction of the Board to consider deficiencies beyond those shown in the Commissioner’s notice if the Commissioner made claim therefor at or before tbe hearing. It further provided for a direct judicial review of the Board’s decision by the filing by either the Commissioner or tho taxpayer of a petition for review. Thus there is full statutory authority for the review here under consideration, and the sole question is whether it was within the power of Congress to confer such authority upon the courts. The question would seem to depend first upon who is the United States’ “authorized official” or “its representative” Cor the purpose of asserting its right to tho payment of the tax. If the Board is such representative, there is, of course, no controversy between the government and taxpayer after the Board has made a detei mination in favor of the taxpayer. But the sole function of the Board “consists in reviewing, on appeal, determinations of the Commissioner under the revenue laws.” It is not concerned with the collection of taxes and “is not a part of the Bureau of Internal Revenue,” but is “an independent agency * * k ‘in the executive branch of the government.’ ” Williamsport Wire Rope Co. v. United States, 277 U. S. 551, 564, 48 S. Ct. 587, 591, 72 L. Ed. 985. While it is not a court but is an executive or administrative board, it nevertheless exercises “appellate powers which are judicial in character.” Goldsmith v. United States Board of Tax Appeals, 270 U. S. 117, 46 S. Ct. 215, 70 L. Ed. 494; Blair v. Oesterlein Mach. Co., 275 U. S. 220, 227, 48 S. Ct. 87, 89, 72 L. Ed. 249. The Commissioner, on the other hand, has “general superintendence of the assessment and collection of all duties and taxes imposed by any law providing internal revenue.” 26 USCA, § 2. He is designated by Congress to represent the government before the Board and is a party to the proceeding before it. Thus, when a taxpayer seeks a review before the Board of a deficiency assessment, the controversy is between tho taxpayer and the government as represented by the Commissioner, and the Commissioner by statutory designation thereafter continues as the government’s representative to prosecute its claims from adveráis decisions of the Board. 26 USCA § 1224(a). It makes no difference that the Board is an executive or administrative tribunal. There are certain matters involving public rights which “admit of legislative or exec-' utive determination, and yet from their nature are susceptible of determination by courts.” Den ex dem. Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 284, 15 L. Ed. 372; Fong Yue Ting v. United States, 149 U. S. 698, 714, 13 S. Ct. 1036, 37 L. Ed. 905; Ex Parte Bakelite Corporation, 279 U. S. 438, 451, 49 S. Ct. 411, 73 L. Ed. 789. Tho mode of determining matters of this class is completely within congressional control. Congress may reserve the power to itself, may delegate it to executive officials, or may commit it to judicial tribunals. Ex Parte Bakelite Corporation, supra. Tho latter course can only be adopted as to constitutional courts in matters which take such form that tho judicial power is capable of acting upon them. That power is capable of acting when there are parties whose adverse contentions are submitted to the court in the form proscribed by law, and where the determination involves neither advisory nor executive action. In re Pacific Ry. Commission (C. C.) 32 F. 241, 255; Osborn v. Bank of United States, 9 Wheat. 738, 6 L. Ed. 204. In pa-ssing upon matters such as are involved in this case; the Board exercises functions similar to those exercised by a trial court in a. law case without a jury. Phillips v. Commissioner, 283 U. S. 589, 599, 51 S. Ct. 608, 75 L. Ed. 1289. In our opinion, they aro matters susceptible of judicial determination. Tho order for reargumont in the Old Colony Trust Co. Case, supra, recited, among other things, that the court especially desired the assistance of counsel in respect to the question: “Was there power in Congress to confer jurisdiction upon the Circuit Court of Appeals to review action by the Board of Tax Appeals?” The question was not limited to reviews at the instance of the taxpayer, and in holding' that such power existed in the case then under consideration the court said: “In tho case we have here, there are adverse parties. The United States or its authorized official asserts its right to tho payment by a taxpayer of a tax due from him to the gov-eminent, and the taxpayer is resisting that payment or is seeking to recover what he has already paid as taxes when by law they were not properly due. That makes a case or controversy, and the proper disposition of it is the exercise of judicial power.” It is true that in that ease the Board of Tax Appeals had not decided for the taxpayer, but, as already pointed out, that Board is an “independent agency” whose sole function “consists in reviewing, on appeal, determinations of the Commissioner under the revenue laws.” It is not charged with the duty of assessing or collecting taxes but with deciding controversies between the taxpayer and the authorized representative of the government, the Commissioner of Internal Revenue. The position of the Board is analogous to that of. the Board of Appraisers under the Act of June 10, 1890 (26 Stat. 131), That act gave the collector of customs and the Secretary of the Treasury the right to have the decision of the Board of Appraisers as to certain matters reviewed in the Circuit Court. It was never suggested in any of the eases arising under that act that, when the Board of Appraisers decided such matters in favor of the importer, there remained no cognizable controversy for the courts. United States v. Klingenberg, 153 U. S. 93, 14 S. Ct. 790, 38 L. Ed. 647; United States v. Passavant, 169 U. S. 16, 18 S. Ct. 219, 42 L. Ed. 644; United States v. Lies, 170 U. S. 628, 636, 18 S. Ct. 780; 42 L. Ed. 1170. The questions involved in Federal Radio Commission v. General Electric Co., 281 U. • S. 464, 50 S. Ct. 389, 390, 74 L. Ed. 969, were “purely administrative,” and, while the court held that it could not review such questions, it nevertheless pointed out that the proceedings there under consideration were wholly unlike proceedings under the Revenue Act of 1926 “on a petition for the review of a decision of the Board of Tax Appeals,” saying: “For, as this court heretofore has pointed out, such a petition (a) brings before the reviewing court the United States or its representative on the one hand and the interested taxpayer on the other, (b) presents for consideration either the right of the United States to the payment of a tax claimed to be due from the taxpayer or his right to have refunded to him money whieh he has paid to satisfy a tax claimed to have been erroneously charged against him, and (c) calls for a judicial and binding determination of the matter so presented — all of whieh makes the proceeding a case or controversy within the scope of the judicial power as defined in the judiciary article” — citing the Old Colony Trust Company Case, supra. Nowhere in that case nor in the Old Colony Company Case does it appear that the controversy is any the less a controversy within the judiciary article though the petition to review the decision of the Board of Tax Appeals be filed by the United States through its official representative rather than by the taxpayer. There being a controversy in this case between the taxpayer and the government as to the right of the government through its authorized representative to assess and collect, the tax, and the Board of Tax Appeals being an independent agency set up to review the action of the Commissioner in making the assessment, we can see no reason why a decision by the Board adverse to the Commissioner’s contention does not present a ease or controversy between the taxpayer and the government within the scope of the judiciary article. We accordingly hold that the right exists in this court to review the decision of the Board upon the petition of the Commissioner. In its returns for 1916 to 1919, inclusive, the taxpayer charged off and reported certain debts as worthless. Due allowances were made for these debts by the Commissioner in the assessment of taxes for those years. Upon the payment of the debts in whole or in part in 1920 and 1921, the Commissioner treated the amounts received as a part of gross income. The Board of Tax Appeals reversed this ruling, holding to which there were dissents, that these payments were not a part of gross income for the years received because they were not in fact ascertained to be worthless for the years for which they were so reported and charged off. The opinion proceeded on the theory that the mistakes made in claiming and allowing the deductions for prior years could not be corrected by crediting the amounts collected to income in the year of collection. The Commissioner contends that the taxpayer, having asserted in its returns for the former years that the debts were ascertained to be worthless and charged off, and having received the benefit of such assertion, is now estopped to deny its truth to the prejudice of the government. The taxpayer contends, first, that the faets of the ease do not call for the application of equitable estoppel; and, second, that even if they did, the debts when collected were not income, but were return of capital. It is said that it was the duty of the Commissioner, before allowing the deductions in the former years, to exercise reasonable diligence to discover whether the debts were worthless, and if he had done so, he could have ascertained that they were not. While it may be conceded that the Commissioner may not blindly accept every statement which a taxpayer makes as to a fact, and by acting- thereon preclude the taxpayer from showing at some other time that the statement was mistakenly made, we cannot assent to the view that a taxpayer which has been allowed a deduction for a debt, on its statement under oath that the debt has been ascertained to be worthless, is not estopped thereafter from denying the truth of the statement to the prejudice of the government. The Commissioner of necessity does and must rely largely upon the representations of the taxpayer, and, in order to estop the taxpayer from assuming a contrary position, he is not compelled io look with suspicion upon all such representations and himself examine, or cause to be examined, the financial condition of all the taxpayer’s debtors. It is the duty of the taxpayer to deal fairly and truthfully with the government. The taxpayer in this case was in a better position to ascertain the facts as to the value of debts owing to it than was the government, and it cannot now say that the government, by the exercise of reasonable care, ought to have done what it failed to do. The officers of the government charged with the duty of assessing and collecting taxes have the right to assume that a taxpayer will do his duty, and we think it is to be presumed from the fact that these deductions were allowed for the years in which they were claimed that the Commissioner relied upon the taxpayer’s sworn statements that the debts were worthless. It is also to he presumed, in the absence of evidence to the contrary that the government was prejudiced by such reliance, for it is obvious that a deduction from gross income reduces the net income subject to taxation. The purpose which the statute has in view in authorizing deductions for bad debts is to permit the taxpayer to reduce his taxable income. It is fair to infer from the fact that deductions wore claimed and allowed for these debts in former years, nothing else appearing, that there was a consequent reduction in taxable income. Even if the taxpayer is not estopped from asserting that there was -no ascertainment of worthlessness for the former years, we are of opinion that the amounts received in payment of the debts were chargeable to gross income for the years in which they were received. On this point the ease is controlled, it seems to us, by the principles announced in Burnet v. Sanford & Brooks Co., 282 U. S. 359, 51 S. Ct. 150, 75 L. Ed. 383, where a taxpayer sustained losses on a contract which wore deducted from, income for the year in which they were sustained. These losses were subsequently recovered, and the court held that the recovery was a part of gross income when received, notwithstanding it “equalled, and in a loose sense was a return of, expenditures made in performing the contract.” This accords with the Department’s interpretation of the statutes. The regulations promulgated under section 213 (a) and section 233(a) of the Revenue Act of 1921 (42 Stat. 238, 254) provide tha,t bad debts, charged off because determined to be worthless, which are subsequently recovered, constitute income for the year in which recovered. Like regulations were promulgated under corresponding provisions of the Revenue Acts of 1916 and 1918 (39 Stat. 756; 40 Stat. 1057), and with these earlier regulations in effect Congress enacted sections 213(a) and 233(a) of the Revenue Act of 1921 in substantially the same language as the earlier acts. The same language was incorporated into the succeeding Revenue Acts of 1924, 1926, and 1928. It must be taken as settled that Congress was cognizant of the interpretation which the Treasury Department had put on the Revenue Acts of 1916 and 1918, and yet, with that interpretation extant, the provisions to which it applied were re-ena.cted in 1921. If such interpretation had not been consonant with the intent of Congress, it is reasonable to suppose that it would have modified this construction in the act of 1921, or in the later acts. Copper Queen Consol. Mining Co. v. Territorial Board of Equalization of Arizona, 206 U. S. 474, 27 S. Ct. 695, 51 L. Ed. 1143; Heiner v. Colonial Trust Co., 275 U. S. 232, 48 S. Ct. 65, 72 L. Ed. 256. In view of Burnet v. Sanford & Brooks Co., supra, we hold that it is permissible under the Sixteenth Amendment to credit to gross income the recoveries on debts for which deductions were allowed in former years. The orders in both cases are reversed and the causes remanded for further proceedings consistent with this opinion. The provision as to deductions for “debts ascertained to be worthless and charged off” is the same provision found in the Revenue Act of 1918, § 284 (a) (5), 40 Stat. 1078, since which such deductions have been allowed. That act, however, did not provide for addition to reserve for bad debts nor for a charge off of the unrecoverable part of a debt. Theso were first provided for in the Revenue Act of 1921. First Circuit: Commissioner v. Angier Corporation, 50 F.(2d) 887; Commissioner v. Old Colony R. Co., 50 F.(2d) 896. Second Circuit: Blair v. Dustin’s Estate, 30 F. (2d) 774; Commissioner v. Adolph Hirsch & Co., 30 F.(2d) 645; Commissioner v. City Button Works, 49 F.(2d) 705; Commissioner v. Field, 42 F.(2d) 820; Commissioner v. Godfrey, 50 F.(2d) 79; Commissioner v. Gong Bell Mfg. Co., 48 F.(2d) 205; Commissioner v. New York Trust Co., 54 F.(2d) 463; Remington Rand, Inc., v. Commissioner, 33 F.(2d) 77. Fourth Circuit: Burnet v. Hanlon, 51 F.(2d) 453. Fifth Circuit: Blair v. Stewart, 49 F.(2d) 257; Lucas v. Baucum, 50 F.(2d) 806; Lucas v. Hunt, 45 F.(2d) 781; Lucas v. Colmer-Green Lumber Co., 49 F. (2d) 234. Seventh Circuit: Commissioner v. Langwell Real Estate Corp., 47 F.(2d) 841; Commissioner v. McCormick, 43 F.(2d) 277, reversed on the merits by the Supreme Court, 283 U. S. 784, 51 S. Ct. 343, 75 L. Ed. 1413; Commissioner v. Wright, 47 F.(2d) 871. Eighth Circuit: Blair v. Byers, 35 F.(2d) 326; Burnet v. Jones, 50 F.(2d) 14; Burnet v. McDonough, 46 F.(2d) 944; Commissioner, Burnet v. Morsman, 44 F.(2d) 902 (reversed on the merits, 283 U. S. 783, 51 S. Ct. 343, 75 L. Ed. 1412); Lucas v. St. Louis National Baseball Club, 42 F.(2d) 984. Ninth Circuit: Blair v. Roth, 22 F.(2d) 932; Burnet v. Bank of Italy, 46 F.(2d) 629; Burnet v. First Nat. Bank of Fresno, 46 F.(2d) 631; Burnet v. North American Oil Consolidated, 50 F.(2d) 752; Burnet v. Pacific S. W. Trust & Savings Bank, 45 F.(2d) 773; Burnet v. San Joaquin Fruit & Investment Co., 52 F.(2d) 123; Commissioner v. Garber, 50 F.(2d) 588; Commissioner v. Hind, 52 F.(2d) 1075. Tenth Circuit: Commissioner v. Moore, 48 F.(2d) 526. Question: What is the number of judges who voted in favor of the disposition favored by the majority? Answer:
songer_state	32	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". Lester D. KING, Plaintiff-Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant-Appellee. No. 85-1666. United States Court of Appeals, Tenth Circuit. Sept. 2, 1988. Siegfried Hesse, Berkeley, Cal. (E. Elizabeth Summers, Berkeley, Cal., of counsel, and Frederick L. Nelson, Hildebrand, McLeod & Nelson, Oakland, Cal. and Arturo G. Ortega, Ortega & Snead, Albuquerque, N.M., were also on the brief), for plaintiff-appellant. Booker Kelly, White, Koch, Kelly & McCarthy, P.A., Santa Fe, N.M. (Larry White, White, Koch, Kelly & McCarthy, P.A., Santa Fe, N.M., was also on the brief), for defendant-appellee. Before HOLLOWAY, Chief Judge, and BARRETT and LOGAN, Circuit Judges. HOLLOWAY, Chief Judge. Plaintiff Lester King is a railroad brakeman for defendant Southern Pacific Transportation Co. (SP). King filed this action against SP under the Federal Employer’s Liability Act, 45 U.S.C. § 51-60 (FELA), the Boiler Inspection Act, 45 U.S.C. § 22-34 (BIA), and the Safety Appliance Act, 45 U.S.C. § 1-16 (SAA). King claims he suffered work-related injuries in two separate accidents, one in 1980 and one in 1984. As to the 1980 accident, King claims the locomotive seat in which he rode violated the BIA because it lacked armrests. Regarding the 1984 accident, King claims that SP violated the SAA because its train on which he was riding made a sudden and unexpected emergency stop, which King claims to have resulted from defective brakes on one of the railroad cars. He claims these alleged defects caused or contributed to his injuries. The district court granted summary judgment for SP on King’s BIA claim regarding the 1980 accident asserted in the original complaint (Count II), and a jury returned a verdict for SP on King’s FELA and other claims (Count I of original complaint and other counts of the amended complaint). King appeals from the adverse judgments. We affirm. I The 1980 Grade Crossing Collision On July 27, 1980, King was acting as head brakeman on a coal train operated by SP between Lordsburg, New Mexico, and El Paso, Texas. The train was operating on SP tracks with an SP crew. King was sitting in the brakeman’s chair behind the engineer in the lead locomotive, which belonged to the Santa Fe. Under its contract with the union SP was required to provide locomotive brakemen’s seats with armrests. However, King’s seat in the Santa Fe locomotive lacked armrests. En route the SP train collided with a cattle truck at a grade crossing. The crew saw the truck move onto the crossing, and King dropped to the floor of the locomotive. The engineer also dropped to the floor after throwing the train into emergency. King alleges that in the ensuing impact, he struck his neck and shoulder on an iron bar and twisted his back, ‘popping’ it. King was off work for two months but did not seek medical treatment until the fall of 1981. In 1983 King filed this action against SP under the BIA and the FELA for these injuries, claiming the locomotive was ‘unsafe’ because the brakeman’s seat lacked seatbelts and armrests for him to hold. The 1984 Emergency Stop On January 1, 1984, after this suit was filed concerning the 1980 accident, King was involved in another accident while working as rear brakeman in the caboose of an SP train. The train approached a red stop signal and the engineer, intending to slow the train, applied a low level of air to the train’s air brake line. However, instead of gradually slowing down, the train went into a sudden full emergency stop. This reaction is typically caused by a car with defective brakes (known as a “dynamiter” in railroad jargon) somewhere on the train. King claims the sudden impact threw him against the wall of the caboose, injuring his left forearm, neck and back. He was off work for four months after the accident. King did not attempt to file a supplemental complaint for the 1984 accident until after the court entered a summary judgment for SP with respect to the 1980 grade crossing collision claims. However, the court allowed King to file a supplemental complaint against SP under the FELA and the SAA for the injuries that allegedly resulted from the 1984 emergency stop. II The District Court’s Rulings A motion for summary judgment was filed by SP as to both Count I, the FELA claim, and as to Count II, the BIA claim, of the complaint concerning the 1980 grade crossing collision. After review of the motion and King’s response, the depositions and materials submitted, the court entered a Memorandum Opinion and Order granting summary judgment for SP as to Count II and denying the motion as to Count I. The district judge summarized the plaintiffs BIA claim. King contended he would not have suffered the injuries if armrests and a seatbelt had been present on the chair in which he was riding, and King claimed the lack of these devices made the chair unsafe within the meaning of the BIA. King argued that a genuine issue of fact existed whether the locomotive could be operated in a safe condition without such equipment. The court pointed out that SP argued that under applicable safety standards, the only requirement concerning engine seats was that they “be securely mounted and braced.” 49 C.F.R. § 229.119 (1980). Since the seat met this requirement, SP contended there was no violation of the BIA and that neither armrests nor seatbelts were parts or appurtenances of the engine in which King was riding so that the BIA was inapplicable. The court referred to deposition testimony that SP uniformly provides armrests on its locomotives chairs (King deposition at 92) and SP was supposed to provide armrests on brakemen’s chairs under its collective bargaining agreement. (See Pl.Exh. 38, p. 76, Sec. D, ¶ 3; King deposition at 90-95; Hanson deposition at 8-9). The contractual agreement since 1938 has required armrests in SP engines. (Hansen deposition at 8). The district court held that the fact that SP had undertaken to provide armrests on brakemen’s chairs in its own engines and had experimented with use of seatbelts on chairs did not establish that engine chairs without such devices are unsafe to operate, nor that they create “unnecessary peril to life or limb” under the BIA. The Secretary of Transportation, who was authorized to promulgate safety rules and regulations, had specifically addressed the subject of chairs in locomotives and had not seen fit to prescribe armrests as necessary to safe operation of locomotives. The court cited Southern Ry. v. Lunsford, 297 U.S. 398, 401-02, 56 S.Ct. 504, 506, 80 L.Ed. 740 (1936), and its statements that parts or attachments prescribed by order of the Interstate Commerce Commission are within the BIA, but that mere experimental devices that do not increase the peril but may prove helpful in an emergency, are not. Since the Secretary had addressed cab seats in 49 C.F.R. § 229.119 (1980) and had determined only that they must be securely mounted and braced, and the plaintiff did not allege otherwise, the SP motion for summary judgment on the BIA claim was granted. With respect to the FELA claim sounding in negligence, the court found that there were material issues of fact and denied summary judgment. A fact question was held to exist whether it was reasonably foreseeable that in the absence of armrests, harm was possible. As to the negligence claim under the FELA, the court found a fact question existed whether SP acted reasonably in allowing an engine on its line that was not equipped with armrests on locomotive chairs, in light of SP’s having provided armrests for over 40 years and brakemen’s demands for them. After ruling on SP’s motion for summary judgment, the court allowed King to file a supplemental complaint against SP asserting claims under the FELA and the Safety Appliance Act for injuries that allegedly resulted from the 1984 emergency stop. These claims were tried with King’s surviving FELA claim arising from the 1980 grade crossing collision. At trial, King abandoned his theory that SP was liable for failing to provide seatbelts, and he only argued that SP was liable for failing to provide armrests and for failing to operate its train in a careful and prudent manner at the time of the 1984 accident. At the close of all the evidence, King moved for a directed verdict on his claims arising from the 1984 accident. VIII R. at 957. The district court denied this motion and the jury returned a general verdict for SP. King appeals from the adverse judgments. Ill King’s Claims of Error On appeal, King asserts two main claims of error. First, he says the district court improperly granted summary judgment for SP on his BIA claim arising from the 1980 grade crossing collision, arguing that his locomotive seat was “unsafe” under the BIA even though it met federal regulations. Second, he claims that the district court should have directed a verdict in his favor on his SAA claim arising from the 1984 emergency stop, because there was no evidence to support a verdict in SP’s favor. King does not raise any question on appeal about his FELA claims. A. The Boiler Inspection Act and Failure to Provide Armrests The Boiler Inspection Act prohibits railroads from operating any locomotive unless the “locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service of such carrier without unnecessary peril to life or limb....” 45 U.S.C. § 28. The BIA also prohibits the operation of any locomotive that has not passed certain tests and inspections prescribed in the pertinent rules and regulations. Id. Under the BIA the Supreme Court has held that “[wjhatever in fact is an integral or essential part of a completed locomotive, and all parts or attachments definitely prescribed by lawful order of [the Secretary], are within the statute.” Southern Ry. v. Lunsford, 297 U.S. 398, 402, 56 S.Ct. 504, 506, 80 L.Ed. 740 (1936). In light of Lunsford, a carrier cannot be held liable under the BIA for failure to install equipment on a locomotive unless the omitted equipment (1) is required by federal regulations of the Secretary, or (2) constitutes an integral or essential part of a completed locomotive. Mosco v. Baltimore & O.R.R., 817 F.2d 1088, 1091 (4th Cir.), cert. denied, — U.S. -, 108 S.Ct. 152, 98 L.Ed.2d 108 (1987); see Marshall v. Burlington N., Inc., 720 F.2d 1149, 1152 (9th Cir.1983). King does not claim that the locomotive seat failed to satisfy the only pertinent federal regulation, which required that “[c]ab seats shall be securely mounted and braced.” 49 C.F.R. § 229.119(a) (1980). Instead, King argues the chair was “unsafe” because it lacked armrests. We must therefore consider whether a locomotive chair can be “unsafe” under the BIA if it conforms to pertinent regulations, but lacks additional safety features. King correctly asserts that a locomotive or its parts and appurtenances might satisfy federal regulations and still be “unsafe” under the BIA. See Mosco, 817 F.2d at 1091; Bolan v. Lehigh Valley R.R., 167 F.2d 934, 936 (2d Cir., 1948). That occurs when the railroad fails to maintain the locomotive or its parts and appurtenances so that the locomotive cannot be operated without unnecessary peril to life or limb. Such “failure to maintain” claims have been widely recognized as meritorious. However, those claims are entirely different from claims that a railroad is liable for failing to install additional safety devices which the Secretary of Transportation has not seen fit to require. Marshall, 720 F.2d at 1152. Such “failure to install” claims have been rejected. Id.; Mosco, 817 F.2d at 1091-92; Mahutga v. Minneapolis, St. P. & S.S.M.Ry., 182 Minn. 362, 234 N.W. 474, cert. denied, 283 U.S. 847, 51 S.Ct. 494, 75 L.Ed. 1456 (1931), cited with approval in Atchison, T. & S.F.Ry. v. Scarlett, 300 U.S. 471, 474, 57 S.Ct. 541, 543, 81 L.Ed. 748 (1937); cf. Herold v. Burlington N., Inc., 761 F.2d 1241, 1245 (8th Cir.), cert. denied, 474 U.S. 888, 106 S.Ct. 208, 88 L.Ed.2d 177 (1985). We agree with the conclusion reached by the district court in granting summary judgment for SP on the BIA claim. The arguments of King are essentially that the failure to provide armrests on the loeomo-tive seat was actionable because of the broad language and humanitarian purposes of the BIA; that recovery under the Act is not limited to cases of violations of specific safety standards or failure to have specified parts or attachments; that King had a valid claim under the general provision also requiring, beyond the minimal BIA requirements, that a locomotive and all its parts and appurtenances be in proper condition and safe to operate; and that SP’s uniform policy of equipping its locomotives with armrests and its agreement with the union to do so made armrests an appurtenance of SP’s locomotives and rendered SP liable for using a locomotive without armrests. Appellant’s Opening Brief 8, 12-13; Appellant’s Reply Brief 1. The arguments do not convince us that the district court’s ruling was in error. The BIA has been liberally construed by the courts, being a remedial statute. Garcia v. Burlington N.R.R., 818 F.2d 713, 715 (10th Cir.1987). Nevertheless, it is whatever “in fact is an integral or essential part of a completed locomotive, and all parts or attachments definitely prescribed by lawful order of [the Secretary]” that is within the statute’s reach. Lunsford, 297 U.S. at 402, 56 S.Ct. at 506; Mosco, 817 F.2d at 1088, 1091. There is no claim that SP’s failure to attach armrests here violated a specific regulation. As the district judge pointed out, the Secretary’s regulations addressed the cab seats, requiring only that “cab seats shall be securely mounted and braced.” 49 C.F.R. § 229.119 (Oct. 1, 1980). Thus only if the armrests omitted here were an integral or essential part of a completed locomotive would King have a viable BIA claim. Mosco, 817 F.2d at 1091. We are not persuaded that the armrests were such an integral or essential part of the locomotive. See Lunsford, 297 U.S. at 402, 56 S.Ct. at 506; Mosco, 817 F.2d at 1091. There is no showing of such character of the armrests, and when the cab chairs were considered in the regulations, armrests were not addressed at all. Nor do we think that the uniform installation of them on other SP locomotives or the railroad’s agreement to do so makes them such an integral appliance so as to come within the statute. See Lunsford, 297 U.S. at 402, 56 S.Ct. at 506. The cases that hold the railroad liable for failing to maintain or keep in place a device already placed on the locomotive are distinguishable. See, e.g., Herold v. Burlington N., Inc., 761 F.2d 1241, 1246-47 (8th Cir.), cert. denied, 474 U.S. 888, 106 S.Ct. 208, 88 L.Ed.2d 177 (1985). King’s case is strengthened by SP’s uniform installation of armrests on other locomotives and the agreement to install them. Nevertheless we do not think King’s claim under the BIA is viable, the armrest not being an integral or essential part of a completed locomotive. In sum, we hold that the summary judgment for SP on the BIA claim was not in error. B. The Safety Appliance Act Claim King’s remaining claim of error concerns the Safety Appliance Act and his claim arising from the January 1, 1984, accident when King was working as rear brakeman in the caboose of an SP train. In essence this claim of error is that the district court erred in denying King’s motion for a directed verdict on his SAA claim which was made at the close of the evidence. He says that the evidence was un-contradicted and undisputed that the cause of the sudden emergency stop of the train in 1984 was a “dynamiter,” a car with a defective brake condition; that as a result King was thrown into the wall of the caboose in which he was riding; and that he received painful and substantial injuries from this accident. There was no evidence, he says, which would justify a verdict against him on this SAA claim and he was therefore entitled to a directed verdict on it. King therefore requests a new trial on this claim. Like the BIA, the SAA is considered an amendment to the FELA. Urie v. Thompson, 337 U.S. 163, 189, 69 S.Ct. 1018, 1034, 93 L.Ed. 1282 (1949); see Metcalfe v. Atchison, T. & S.F.Ry., 491 F.2d 892, 895 (10th Cir.1974). Liability of the railroad under the SAA for injuries inflicted as a result of the Act’s violation follows from unlawful use of prohibited defective equipment. Coray v. Southern Pac. Co., 335 U.S. 520, 522-23, 69 S.Ct. 275, 276-77, 93 L.Ed. 208 (1949). King was therefore entitled to recover under the SAA if “the undisputed evidence established that the train suddenly stopped because of defective air-brake appliances ... if this defective equipment was the sole or a contributory proximate cause of the [injuries].” Id. at 523, 69 S.Ct. at 277. For a new trial to be ordered as King requests, he must demonstrate that “the verdict is clearly, decidedly, or overwhelmingly against the weight of the evidence.” Black v. Hieb’s Enter’s., 805 F.2d 360, 363 (10th Cir.1986). Here there was testimony that would support an inference that King’s injuries did not result from the 1984 emergency stop. For example, Dr. Adler, an orthopedic surgeon called by SP, testified that King’s medical records were “consistent with the concept that Mr. King has had long-standing, gradually worsening back complaints that are associated with the general activities and life style rather than there being dramatic change in relationship with any one of the specific injuries that he’s had in the past.” VI R. 587; see VII R. 609-610. Dr. Adler did state as to King’s neck problem that “his condition was clearly made worse after the accident on July 27, 1980 ...” VII R. 604. With respect to King’s lower back and neck conditions, following the Doctor’s March 1984 examination the Doctor felt that King had a spon-dylolysis condition in the lower back and disc degeneration at one level of his neck; the Doctor also said King had a spinal stenosis or narrowing of nerve spaces in the spinal canal. Id. at 603. He said whether it was from a fall on the floor of the caboose cab or in the engine, or picking up a toy off the floor, a reaction is set up; but “these things can occur in relationship to his non-work activities as well as his work activities.” VII R. 604. Moreover, King admitted there had been other occasions when he got “knocked about in a caboose or something,” VII R. 782-83, and that he saw chiropractors numerous times for several years before the 1980 accident. Id. at 784-85. We cannot say the verdict for SP on the SAA 1984 claim is clearly, decidedly or overwhelmingly against the weight of the evidence. While King points to substantial evidence in his favor, it must be remembered that King bore the burden of proof regarding causation, and the jury was entitled to judge the weight of his evidence. See 9 J. Wigmore, Evidence § 2495 (Chad-bourne rev. 1981) (p. 394-95); 9 C. Wright & A. Miller, Federal Practice & Procedure §§ 2527, 2535 (1971). Under the standard that applies we are not convinced that we should reverse the judgment and order a new trial. IV The summary judgment in favor of SP regarding King’s BIA claim and the judgment entered on the jury’s verdict regarding King’s SAA claim are accordingly AFFIRMED. . The BIA and the SAA are regarded as amendments to the FELA. Urie v. Thompson, 337 U.S. 163, 189, 69 S.Ct. 1018, 1034, 93 L.Ed. 1282 (1949). The BIA supplements the FELA to provide additional public protection and facilitate employee recovery. Id. at 189, 191, 69 S.Ct. at 1034, 1035; see Garcia v. Burlington N.R.R., 818 F.2d 713, 715 (10th Cir.1987). The BIA is to be considered together with other federal railroad safety laws, and is to be construed liberally to carry out their remedial and humanitarian purposes. Southern Ry. v. Bryan, 375 F.2d 155, 158 (5th Cir.), cert. denied, 389 U.S. 827, 88 S.Ct. 82, 19 L.Ed.2d 83 (1967). The FELA and the BIA further their humanitarian goals by imposing different types of liability. Liability under the FELA is premised on the railroad’s negligence, however small. 45 U.S.C. § 51; Rogers v. Missouri Pac. R.R., 352 U.S. 500, 508-09, 77 S.Ct. 443, 449-50, 1 L.Ed.2d 493 (1957). In contrast, the BIA imposes on the carrier an absolute duty to maintain the locomotive, and all its parts and appurtenances, in proper condition, and safe to operate without unnecessary peril to life or limb. Lilly v. Grand Trunk W.R.R., 317 U.S. 481, 485, 63 S.Ct. 347, 350, 87 L.Ed. 411 (1943). The FELA allows recovery in a broad range of situations, while liability under the BIA only occurs under narrow circumstances. As a result, claims which cannot be maintained under the BIA are often actionable under the FELA. See, e.g., Garcia, 818 F.2d at 720; McKenna v. Washington Metro. Area Transit Auth., 829 F.2d 186, 188 (D.C.Cir.1987); Mosco v. Baltimore & O.R.R., 817 F.2d 1088, 1092 (4th Cir.), cert. denied, — U.S. -, 108 S.Ct. 152, 98 L.Ed.2d 108 (1987); Steer v. Burlington N., Inc., 720 F.2d 975, 976-77 (8th Cir.1983). . The BIA, as amended by an Act of March 15, 1915, ch. 169, 38 Stat. 1192, granted the Interstate Commerce Commission the power to regulate "all parts and appurtenances” of locomotives. That power was transferred to the Secretary of Transportation in 1966 by the Department of Transportation Act, 49 U.S.C. §§ 1651— 1659 at 1655(e)(l)(E)(1976). See generally, Marshall v. Burlington N., Inc., 720 F.2d 1149, 1192 (9th Cir.1983). The regulations are the Federal Locomotive Safety Standards, 49 C.F.R. § 229.1 (1980) et seq., issued under the BIA. The Supreme Court has held, on Commerce Clause grounds, that federal regulation of locomotives under the BIA occupies the field. Napier v. Atlantic Coast L.R.R., 272 U.S. 605, 610-13, 47 S.Ct. 207, 208-10, 71 L.Ed. 432 (1926). States are thus preempted and may not prescribe requirements for locomotives, no matter how commendable or however different their purpose. Id. . These claims generally occur when a railroad has allowed a locomotive, or its parts or appurtenances to deteriorate so that the locomotive cannot be operated safely, e.g., Whelan v. Penn Cent. Co., 503 F.2d 886 (2d Cir.1974) (rear step loose and in disrepair); St. L.S.W. Ry. v. Williams, 397 F.2d 147 (5th Cir.1968) (oil on locomotive steps); Bolan v. Lehigh Valley R.R., 167 F.2d 934 (2d Cir.1948) (pilot step worn and bent); Fredericks v. Erie R.R., 36 F.2d 716.(2d Cir.1929) (drain cock, although properly located, was unsafe because it could be pulled loose), or when a railroad has allowed foreign substances to accumulate on locomotive surfaces or walkways, e.g., Lilly v. Grand Trunk W.R.R., 317 U.S. 481, 485-89, 63 S.Ct. 347, 350-53, 87 L.Ed. 411 (1943) (failure to keep ice off locomotive tender surfaces violated express I.C.C. regulation to keep surfaces clean); Whelan v. Penn Cent. Co., 503 F.2d 886 (2d Cir.1974) (rear step coated with ice); Gowins v. Pennsylvania R.R., 299 F.2d 431 (6th Cir.1962) (oil on locomotive walkways); Calabritto v. New York, N.H. & H.R.R., 287 F.2d 394 (2d Cir.) (sand and oil on locomotive platform), cert. denied, 366 U.S. 928, 81 S.Ct. 1649, 6 L.Ed.2d 387 (1961), or when a railroad has installed or placed items in a dangerous location on a locomotive, e.g., Chicago, R.I. & P.R.R. v. Speth, 404 F.2d 291 (8th Cir.1968) (explosive torpedoes improperly placed on rack inside cab); Heiselmoyer v. Pennsylvania R.R., 243 F.2d 773 (3d Cir.) (engineer’s seat and brake valve were installed too closely to each other so that they came into contact), cert. denied, 355 U.S. 833, 78 S.Ct. 47, 2 L.Ed.2d 44 (1957); Delevie v. Reading Co., 176 F.2d 496 (3d Cir.1949) (gear mechanism installed above foot-board so as to make access to cab unsafe); Louisville & N.R.R. v. Botts, 173 F.2d 164 (8th Cir.1949) (bolt heads protruding from locomotive footboard). . Section 2 of the BIA (45 U.S.C. § 23) provides: It shall be unlawful for any carrier to use or permit to be used on its line any locomotive unless said locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service of such carrier without unnecessary peril to life or limb, and unless said locomotive, its boiler, tender, and all parts and appurtenances thereof have been inspected from time to time in accordance with the provisions of sections 22 to 29 and 31 to 34 of this title and are able to withstand such test or tests as may be prescribed in the rules and regulations hereinafter provided for. . There are lengthy procedural arguments made by both sides as to whether the claim of error respecting the SAA claim is preserved for this appeal by the motion made by King below, and as to the standard of review on the issue. We need not go into all these matters. In his opening and reply briefs all King seeks on this SAA claim arising from the 1984 accident is a new trial. Viewing the record under the standard most favorable to King in arguing for a new trial, we nevertheless hold that King has not made a proper showing. 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_othcrim	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". UNITED STATES of America, Plaintiff-Appellee, v. John H. HARRIS, Defendant-Appellant. No. 74-1981. United States Court of Appeals, Seventh Circuit. Argued April 4, 1975. Decided Aug. 5, 1975. James F. Flanagan, Chicago, Ill., for defendant-appellant. James R. Thompson, U. S. Atty., Gary L. Starkman and Robert L. Herbst, Asst. U. S. Attys., Chicago, Ill., for plaintiffappellee. Before McALLISTER, Senior Circuit Judge, and SWYGERT and STEVENS, Circuit Judges. . The Honorable Thomas F. McAllister, Senior Circuit Judge for the United States Court of Appeals for the Sixth Circuit, is sitting by designation. SWYGERT, Circuit Judge. Numerous issues are raised in this appeal but the most substantial ones concern the question of what essential elements must be proved to establish a violation of 26 U.S.C. § 7212(b). As of April 30, 1973 defendant John H. Harris had a delinquent federal tax account in an amount in excess of $12,-000. Luther N. Scott, an Internal Revenue Service officer, was assigned to collect the account. On May 4, 1973 Harris supplied financial information from which Scott prepared a financial statement, which Harris signed. The statement failed to disclose that Harris owned a 1973 Chevrolet van in which he had $1500 in equity. Upon discovery of Harris’ ownership of the van, Scott and his supervisor decided to take enforcement action against Harris’ assets. On October 25, 1973 revenue officers Scott and Kenneth Schons went to Harris’ place of business. Scott presented Harris with a levy and explained that the levy authorized Scott to seize a 1968 Pontiac Firebird automobile owned outright by Harris, tow it away, store it, and eventually sell it and apply the proceeds against Harris’ tax liability. Harris responded by telling the officers that no one was going to take his car from him. The revenue officers, followed by Harris, then went out to the street where Harris’ car was parked. Officer Scott asked Harris what he would do if the car was seized and Harris replied that he would get into it and drive it away. Scott told Harris he would merely get himself into more trouble because once the warning stickers were placed on the car it would then be under federal custody. Harris replied that he did not care. Officer Schons then placed the stickers, duly signed and dated, on the car. Later that same day John W. Bedford, a criminal investigator for the Internal Revenue Service, went to Harris’ place of business. He did not see the seized automobile in the vicinity. He proceeded to Harris’ residence where he located the car, with the warning stickers removed, in the back of the driveway. On October 30, 1973 Harris was arrested. In response to the arresting officer’s question concerning the location of the automobile, Harris stated that it was in the State of Illinois. On November 12, 1973 Harris informed the federal authorities that the car was in the parking lot of the Internal Revenue Office in Skok-ie, Illinois and the car was found there without any warning stickers. Harris was then tried and convicted by a jury of forcibly rescuing his seized automobile in violation of 21 U.S.C. § 7212(b). He was sentenced to forty minutes in the custody of the United States Marshal. I Harris’ first contention is that the presentation of hearsay evidence to the grand jury effectively deprived him of his right to be charged by indictment. The only witness who testified before the grand jury was criminal investigator Bedford. It is clear in this circuit that an indictment is not improper merely because it is based on hearsay. United States v. Wilkinson, 513 F.2d 227 (7th Cir. 1975). An indictment based on hearsay might possibly be subject to dismissal if there is a high probability that no indictment would have been returned had there been eyewitness’ testimony or if the grand jury had been deceived as to the type of testimony it received. United States v. Estepa, 471 F.2d 1132, 1137 (2d Cir. 1972). We find neither of these special exceptions in this case. The grand jury heard no false information and we do not think that revenue agent Scott would have given any additional relevant testimony that might have resulted in a refusal to indict. Moreover, the transcript of the grand jury proceedings shows that Bedford plainly indicated the secondhand nature of portions of his testimony. II Harris attacks the sufficiency of the indictment on numerous grounds. First, he claims that the indictment fails to charge the necessary mental state. Harris contends that a section 7212(b) offense is a specific intent crime. We do not agree. A specific intent to permanently defeat the seizure of the property need not be shown to establish a section 7212(b) violation. The statute does not even use the term “willfully.” To satisfy the mental state requirement of section 7212(b) no more need be charged or proved other than that the defendant purposefully, as opposed to mistakenly, retook the property knowing that it had been seized by the Internal Revenue Service. Gf. Finn v. United States, 219 F.2d 894, 899-901 (9th Cir. 1955). The evidence was sufficient to support this element. The indictment, however, did not specifically charge that Harris had taken the property “knowing” that it had previously been seized. Harris argues that the failure to include at least the knowledge requirement constitutes a fatal defect in the indictment. The Government’s response is that this knowledge requirement is sufficiently set forth by use of the term “rescue,” since, as noted by the district judge, inherent in the concept of “rescue” is the notion that the defendant knew the property had been seized. While we think it would be better to allege specifically the knowledge element, we agree with the Government that the use of the term “rescue” is sufficient for purposes of the indictment. If one “rescues” property, he does not merely take it, but he takes it with the realization that he is removing it from governmental custody. Cf. United States v. Willis, 515 F.2d 798 (7th Cir. 1975). Harris also claims that the indictment is defective since it does not contain an allegation that the seizure was lawful. We find that this element is sufficiently covered in the indictment. The statute refers to property “seized under this title.” All that need be proved in this regard is that the property had been seized by persons authorized to do so by virtue of their office. Unlike a civil suit attacking a seizure, the legality of the underlying lien or assessment is not relevant in a section 7212(b) criminal prosecution. United States v. Oliver, 421 F.2d 1034, 1036 (10th Cir. 1970); United States v. Scolnick, 392 F.2d 320, 326 (3d Cir. 1968). If the rule were otherwise it would “encourage violent self-help where civil remedies are admittedly available.” United States v. Scolnick, 392 F.2d at 326. The indictment charges that the property had been “seized by the Internal Revenue Service, Department of Treasury, under Title 26, United States Code . . . ” This language is a sufficient allegation of lawfulness. Harris’ final challenge to the indictment is that it failed to sufficiently state what acts constituted the “rescue.” We see no possibility that he was prejudiced in preparing his defense or that the grand jury indicted on the basis of facts other than those relied upon by the petit jury since the indictment sets forth the date of the alleged forcible rescue. A motion for a bill of particulars could have been filed, though apparently this was not done. The indictment satisfied the requirements of Fed.R.Crim.P. 7(c)(1). Ill Harris’ next contention is that the district court incorrectly defined the term “forcibly.” The instruction given the jury stated that the term was “not limited to proof of force exerted against persons, but rather embraces any force that enables the defendant to rescue or recover [the] property . . .Harris argues that the instruction should have been limited to force exerted against persons or property protecting the seized item. The district court’s instruction was based on United States v. Scolnick, 392 F.2d 320 (3d Cir. 1968). In Scolnick the force used was the breaking of a bank window as a diversion, the removal of the Internal Revenue Service seal from a safe deposit box, and the removal of the box and its contents from the bank. This was held to be sufficient force. But Harris maintains that Scolnick at least involved force beyond that inherent in the rescue itself. The instruction given in this case did not even require that much. We hold that the instruction given was correct. One who recovers unguarded property that contains no seizure stickers, knowing that such property was seized, rescues such property, but does not do so forcibly. If any type of force is used, however, then there is a forcible rescue. The district court properly informed the jury that the force need not be directed at an individual guarding the property. The statute is intended to protect seized property and surely Congress did not envision that a guard would have to be posted to achieve that protection. In the instant case the force used was the removal or “destruction” of the warning stickers placed on the automobile. These stickers were the formal indication that the car had been seized. Their removal by force was sufficient to support a finding of forcible rescue. IV Various trial errors are also alleged. First, there is the assertion that it was a prejudicial abuse of discretion not to grant the defendant’s motion for a continuance. In light of the facts that the trial occurred almost nine months after indictment, almost a week’s notice of trial was given, the trial lasted only one day and all of the defendant’s witnesses were heard, we deem this contention frivolous. Second, Harris claims that his conviction should be reversed because of certain prosecutorial misconduct. Specifically, the complaint centers on the Government’s elicitation and attempted elicitation of an allegedly prejudicial and irrelevant threat made by the defendant. On direct examination revenue officer Scott testified that Harris had said: “Nobody takes my car, or my business or I’ll blow your fuckin’ head off.” This answer was stricken. Moreover, the district judge, out of the presence of the jury, diligently warned the prosecutor about eliciting from revenue officer Schons testimony concerning the exact threat made by Harris and there was no such testimony by that witness. On cross-examination of the defendant, however, the Government was allowed to ask about the exact language of his threat. We do not find that Harris suffered any serious prejudice from any illegitimate attempts to elicit this testimony. Scott’s answer was promptly stricken. No harmful answer was even given by Schons because of the trial court’s sensitivity to the problem. The only serious issue in this regard is the cross-examination of Harris which the trial court allowed. It was proper to question Harris about the language he used, since on direct examination he said that he had “implied” that no one would take anything from him under those circumstances. The Government was entitled to clarify this point. Finally, Harris claims that the district court abused its discretion in ordering that the entire testimony of the defendant be reread to the jury as opposed to only those portions relating to the jury’s question. The alleged prejudice is that the jurors were told, in effect, that the key to the case was ih another part of the testimony and, in addition, the part they wanted to hear was “lost” in the middle. A trial judge has wide discretion in determining whether testimony should be reread to the jury upon request. United States v. DePalma, 414 F.2d 394 (9th Cir. 1969). We find no abuse of discretion in ordering the entire testimony reread. It is important to note that it was the testimony of the defendant, not a Government witness, that was reread. The issue in which the jury was interested was covered on both direct and cross-examination and a written transcript had not yet been prepared. Moreover, the testimony took only about half an hour to read. We do not believe the jury was misled and find no abuse of discretion in ordering the entire testimony reread. Cf. United States v. Tager, 481 F.2d 97, 101 (10th Cir. 1973). The judgment of the district court is affirmed. . 26 U.S.C. § 7212(b) reads: (b) Forcible rescue of seized property.— Any person who forcibly rescues or causes to be rescued any property after it shall have been seized under this title, or shall attempt or endeavor so to do, shall, excepting in cases otherwise provided for, for every such offense, be fined not more than $500, or not more than double the value of the property so rescued, whichever is the greater, or be imprisoned not more than 2 years. . The indictment charged that: On or about October 25, 1973, at Evans-ton, in the Northern District of Illinois, Eastern Division, JOHN H. HARRIS defendant herein, did forcibly rescue and cause to be rescued property seized by the Internal Revenue Service, Department of the Treasury, under Title 26, United States Code, to wit: One (1) 1968 Pontiac Firebird, two door hardtop, vehicle identification number 223378U125246; In violation of Title 26, United States Code, Section 7212(b). . Given our interpretation of the statute, there was obviously no error committed in refusing to give a specific intent instruction. . The instructions also were adequate in this regard. The jury was instructed that it must find that the property had been “seized by the Internal Revenue Service” and had been in “the lawful custody of the Internal Revenue Service” when rescued. Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim. A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_numappel	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America v. Roosevelt SCARBOROUGH, Jr., Appellant. UNITED STATES of America v. Jose DIXON, Appellant. Nos. 24430, 24431. United States Court of Appeals, District of Columbia Circuit. Argued Sept. 15, 1971. Decided Nov. 4, 1971. Mr. Anton M. Weiss (appointed by this court) for appellant in No. 24,430. Mr. Walter W. Woodside (appointed by this court) filed a brief for appellant in No. 24,431. Mr. James F. Flanagan, Asst. U. S. Atty. with whom Messrs. Thomas A. Flannery, U. S. Atty. and John A. Terry and John G. Gill, Jr., Asst. U. S. Attys., were on the brief, for appellee. Before MacKINNON and WILKEY, Circuit Judgeg) and G0URLEY, Senior Digtrict Judge for the Western District of Pennsylvania. Sitting by designation pursuant to 28 U.S.C. § 294(d) (1964). MacKINNON, Circuit Judge: Appellant Scarborough here questions the impeachment of one of his alibi witnesses through the use of a prior forgery conviction. The witness secured her final release from probation approximately ten years and four months prior to the date the past conviction was used to impeach her testimony. At the time of the trial, there was no time limit, statutory or otherwise, on the use of prior convictions for such purposes and the admissibility of the evidence was within the sound discretion of the trial judge. Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965). Since the trial, Congress has enacted D.C.Code § 14-305(b) (2) (B) (ii) (Supp. IV, 1971), which provides that prior convictions shall not be used to impeach a witness where the expiration of the witness’s period of probation occurred more than ten years before the trial in which he is sought to be impeached. Therefore, if the instant case were retried, the forgery conviction could not be used, because the ten-year limitation has been slightly exceeded. However, since the new statutory rule was not in effect at the time of the trial, the question was within the broad diseretion of the trial judge. Luck v. United States, supra. In view of the close relevancy between a prior forgery conviction and a witness’s credibility, we do not believe that the trial judge abused his discretion here by permitting use of such conviction. See Davis v. United States, 133 U.S.App.D.C. 167, 170-171, 409 F.2d 453, 456-457 (1967). The lapse of time since the witness committed the prior offense is a matter which goes to her credibility and as such is within the domain of the jury to consider in determining the weight they would give to such evidence. Thus we find that the trial in this respect was without error. Affirmed. . We see no merit in appellants’ attack on the trial judge’s impartial references in liis jury instructions to facts which were clearly not in dispute. Quercia v. United States, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321 (1933). See Lyons v. United States, 325 F.2d 370, 375 (9th Cir.), cert. denied, 377 U.S. 969, 84 S.Ct. 1650, 12 L.Ed.2d 738 (1964) ; United States v. Jonikas, 197 F.2d 675, 679 (7th Cir.), cert. denied, 344 U.S. 877, 73 S.Ct. 171, 97 L.Ed. 679 (1952). . D.C.Code § 14-305 (b) (2) (B) (ii) provides : (B) In addition, no evidence of any conviction of a witness is admissible under this section if a period of more than ten years has elapsed since the later of * * * (ii) the expiration of the period of his parole, probation, or sentence granted or imposed with respect to his most recent conviction of any criminal offense. . Carp v. California-Western States Life Ins. Co., 252 F.2d 337, 344 (5th Cir. 1958) (Credibility of witness is for jury determination — it is peculiarly within its domain) ; Baker v. Pinkston, 314 F.2d 379, 381-382 (7th Cir. 1963), cert. denied, Baker v. Lane, 380 U.S. 958, 85 S.Ct. 1098, 13 L.Ed.2d 975 (1965) (Determination of matters of credibility of witnesses, weight to be given items of evidence, and resolution of conflicting testimony are within exclusive province of jury) ; Mascarenas v. Johnson, 280 F.2d 49, 51 (5th Cir. 1960) (Credibility is within the exclusive province of the jury) ; Hawk v. Olson, 326 U.S. 271, 279, 66 S.Ct. 116, 90 L.Ed. 61 (1945) (The determination of credibility is for the trier of fact). Question: What is the total number of appellants in the case? Answer with a number. Answer:
songer_genstand	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 agency articulate the appropriate general standard?" This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". UNITED STATES of America, Appellee, v. Angel DOMENECH, Appellant. No. 585, Docket 72-2258. United States Court of Appeals, Second Circuit. Argued Feb. 15, 1973. Decided April 12, 1973. Alfred Lawrence Toombs, New York City, for appellant. John J. Kenney, Asst. U. S. Atty., S. D.N.Y. (Whitney North Seymour, Jr., U. S. Atty., John D. Gordan III, and John W. Nields, Jr., Asst. U. S. Attys., S.D. N.Y., of counsel), for appellee. Before FRIENDLY, Chief Judge, OAKES, Circuit Judge, and DAVIS, Judge. Of the United States Court of Claims, sitting by designation. DAVIS, Judge: Appellant Angel Domenech was indicted, with co-defendants Morales and Pereira, for conspiring to distribute and possess with intent to distribute over 100 grams of heroin (count 1), and for the substantive offense of distributing and possessing the same amount of narcotics (count 2). Domenech was tried alone before a jury, acquitted of conspiracy but convicted of the substantive offense. He was sentenced as a young adult offender (18 U.S.C. § 4209) to treatment and supervision under 18 U.S.C. § 5010(b) until discharged under 18 U.S.C. § 5017(c). On this appeal he does not challenge the sufficiency of the evidence which it is unnecessary' to recite in detail. For present purposes, it is enough that there was proof that Domenech delivered in the presence of federal agents a wrapped package which turned out to contain heroin, and there was also evidence of prior separate discussions concerning a narcotics transaction between the agents and (i) Pereira and Domenech, (ii) Pereira and Morales, (iii) Pereira alone, and (iv) Domenech alone. Appellant and his wife presented exculpatory evidence to the effect that he knew nothing about any heroin transaction (he denied having had the conversations to which the agents had testified), he simply delivered the package on request as a favor, and thought it contained marijuana. The first of the appeal points is that Pereira, appellant’s brother-in-law, who was summoned by the defense, should have been compelled by the court to testify even though he made it clear when first called that he would claim his privilege against self-incrimination. The trial judge excused him without requiring any questions to be put. Pereira, whom appellant assumed would be a helpful witness (see note 3, infra), had shortly before pleaded guilty to the conspiracy count but had not yet been sentenced (see note 1, supra); the second (substantive offense) count was still outstanding against him but was fully expected to be dismissed upon senteneing. Appellant’s contention is that the witness, having already pleaded guilty and been convicted, could no longer rely with justification on the Fifth Amendment privilege (cf. United States v. Gernie, 252 F.2d 664, 670 (2d Cir.), cert. denied, 356 U.S. 968, 78 S.Ct. 1006, 2 L.Ed.2d 1073 (1958); United States v. Romero, 249 F.2d 371, 375 (2d Cir. 1957)), and should have been directed to testify. We hold, however, that the court below committed no error in excusing Pereira. There is some doubt, in the first place, whether appellant is in a position to complain since his counsel neither asked the judge to direct Pereira to answer questions or to rule that the privilege was improperly asserted. Counsel appeared to acquiesce in Pereira’s statement that he would not testify. In any event, the claim of privilege was well-taken. Count 2 still remained open against Pereira and his testimony, whether or not it helped Domenech, could very well have further incriminated himself on that offense. Though it was very likely that count 2 would be dismissed, that had not yet occurred and Pereira can hardly be faulted for taking the most cautious position. Even on the conspiracy charge to which he had pleaded guilty, evidence compelled at Domenech’s trial could well hamper a possible attempt by the witness to withdraw his plea before sentence. See State v. Tyson, 43 N.J. 411, 204 A.2d 864, 866-867 (1964), cert. denied, 380 U.S. 987, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1965). Moreover, under the existing precedents it was open to the State of New York to prosecute Pereira on the same heroin transaction (Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959)), and his Fifth Amendment privilege included a right against self-incrimination under the state penal laws. See Kastigar v. United States, 406 U.S. 441, 456-457, 92 S. Ct. 1653, 32 L.Ed.2d 212 (1972); United States v. Chandler, 380 F.2d 993, 997 (2d Cir., 1967). In short, if Pereira had refused a direct order to testify, a contempt judgment against him could not be allowed to stand since in no way would it be perfectly clear that the answers would not possibly incriminate. Hoffman v. United States, 341 U.S. 479, 488, 71 S.Ct. 814, 95 L.Ed. 1118 (1951); United States v. Chandler, supra. Appellant urges that the Government deliberately left count 2 open against Pereira in order to insure that he would not testify for appellant. There is no adequate proof of this charge; leaving the remaining counts open until sentence on the counts to which an accused has pled is the common practice — a reasonable procedure which avoids complexities where the defendant moves before sentence to set aside his guilty plea. In this instance the possible consequence of following the normal usage was to give Pereira a good excuse for refusing to take the stand, and thus of avoiding the dilemma, on the one hand, of a possible perjury charge or a feared impact on his sentence if he testified favorably to Domenech, or, on the other, of giving evidence against his close relative. But we see no escape from holding that Pereira had a constitutional right to act as he did, and, in the absence of any proof of deliberate manipulation or pre-arrangement by the United States Attorney, there is no penalty we can or should impose on the Government because the witness’s exercise of his right, for his own purposes, may have redounded to the prosecutor’s advantage. The second issue is whether the court below erred in giving the “Allen” charge when the jury reported itself in disagreement after some hours of deliberation. This court has consistently and recently upheld normal versions of the “Allen” instruction (see, e. g., United States v. Birrell, 447 F.2d 1168, 1173 (2d Cir., 1971), cert. denied, 404 U.S. 1025, 92 S.Ct. 675, 30 L.Ed. 675 (1972); United States v. Bowles, 428 F.2d 592, 595 (2d Cir.), cert. denied, 400 U.S. 928, 91 S.Ct. 193, 27 L.Ed.2d 188 (1970); United States v. Hynes, 424 F.2d 754 (2d Cir.), cert. denied, 399 U.S. 933, 90 S.Ct. 2270, 26 L.Ed.2d 804 (1970)) and we are of course bound by those rulings. There is no occasion to consider whether en banc reconsideration should now be had of this general area (see United States v. Martinez, 446 F.2d 118, 119-120 (2d Cir.) cert. denied, 404 U.S. 944, 92 S.Ct. 297, 30 L.Ed.2d 259 (1971)) since appellant did not, at the trial, challenge the “Allen” charge as such, but only a single one of the trial judge’s statements. The disputed sentences were: “This case, if the jury disagrees, will be retried. Another jury will be chosen from the same sources that you were and it will hear probably the same evidence.” Appellant attacks this remark on the ground that Pereira could be compelled to testify after his sentencing and that his evidence on a retrial would be materially different from the testimony introduced at the trial just completed. By-passing the point that Pereira might still be able to claim his privilege even after sentencing, particularly because of the possibility of state prosecution, see supra, the immediate answer is that a retrial would probably take place before Pereira’s sentencing; Morales, who failed to turn up for his joint trial with appellant but did appear later that day, was in fact tried a very few days later (see note 1, supra) and in all likelihood a retrial of Domenech would have been scheduled for the same time. In these circumstances, the challenged part of this “Allen” charge was not a misrepresentation, and though it is not to be commended for general use it does not appear in this instance to have been unfairly coercive. On the morning on which the judge was to give his charge, one of the jurors was 10 minutes late; over a defense objection, the court replaced this absent juror with an alternate and then discharged the tardy juror when she appeared shortly after the charge was begun. This episode raises the third point on appeal. Given the current conditions of transportation in the City of New York, some other presiding officers might have waited a bit longer, but we certainly cannot say that the judge abused his discretion by insisting on going ahead after 10 minutes. Nor is there any basis for finding an undue impact on the jury either in the mere act of excusing the juror or in the way it was done. We would have to strain much too far to discern any bias or prejudice against the defendant in this episode. Lastly, appellant complains of statements made by Pereira to the agents in Domenech’s absence which were admitted subject to connection. Although there was no specific later ruling by the trial court, appellant failed to move to strike the evidence at the close of the prosecution’s case, and took no exception to the charge which told the jury it could consider the testimony. This being so, we find no error. There was in fact ample independent evidence of Domenech’s connection with the conspiracy and, as the case comes to us, we must assume that the judge was satisfied of that connection, under the rule of United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir., 1969), cert. denied, 397 U.S. 1028, 90 S.Ct. 1276, 25 L.Ed.2d 539 (1970). The status of the evidence aliunde is not vitiated by the fact that it came from the same federal agents who testified to the disputed declarations. There is no such disqualifying rule of law, and, especially in the light of the conviction on count 2, we cannot accede to appellant’s broadside contention that the jury’s acquittal on the conspiracy charge shows that it must have disbelieved everything the agents said on the stand. The result is that neither singly nor in combination do the challenged acts of the trial court amount to reversible error. Affirmed. . Pereira previously pleaded guilty to the conspiracy count (see infra) and Morales did not appear for the scheduled trial. He was tried a few days later and pleaded guilty to one count after that trial began. . This language apparently followed the charge sustained in United States v. Thomas, 282 F.2d 191, 195 (2d Cir., 1960), except that that instruction did not qualify “the same evidence” by “probably”. . When Pereira was interrogated by the same trial judge on his guilty plea, shortly before Domenech’s trial, he made statements which could be understood as tending to exculpate Domenech. In particular he denied the one overt act in the conspiracy count which referred to a conversation between Pereira and Domenech. . Since the case was scheduled to go to the jury that day, the trial court may have wanted to avoid, as much as possible, a night sitting. As it turned out, the verdict was not returned until 9 p. m. Question: Did the agency articulate the appropriate general standard? This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_casetyp1_1-2	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "criminal". Bennie W. AGEE, Administrator of the Estate of M. Louise Agee, Deceased, Appellant, v. The TRAVELERS INDEMNITY COMPANY, Appellee. No. 9441. United States Court of Appeals Tenth Circuit. May 29, 1968. Carl E. Moslander, Oklahoma City, Okl., for appellant. Glenn H. Grubb, Oklahoma City, Okl. (David R. Dickey and Monnet, Hayes, Bullis, Grubb & Thompson, Oklahoma City, Okl., of counsel, on the brief), for appellee. Before MARVIN JONES Judge, Court of Claims, and LEWIS and BREITENSTEIN, Circuit Judges. Sitting by designation. BREITENSTEIN, Circuit Judge. The action in the district court was in the nature of garnishment to require appellee-defendant, The Travelers Indemnity Company, to pay a judgment for $21,632 obtained in Oklahoma state court against Chester Lee Sullivan for negligence which resulted in the death of M. Louise Agee. Appehant-plaintiff Bennie Agee is the administrator of the estate of Louise Agee. The district court denied recovery and this appeal followed. Bennie and Louise were husband and wife until a final decree of divorce was entered a few days before her death. On July 3, 1963, Travelers issued a family automobile policy to B. W. Agee, the same person as Bennie W. Agee, covering a. 1963 Chevrolet and a 1956 Buick. Bennie and Louise separated on June 21, 1964, with Bennie moving out of the family-home and taking the children with him. On the basis of a renewal statement signed by Bennie, Travelers issued a renewal policy which was mailed to Bennie on May 5, 1964, and which was to become effective on July 3, 1964. No changes were made in the policy. Divorce proceedings were begun on July 6, 1964. A divorce decree was entered on August 14, 1964. The decree awarded the 1956 Buick to Louise. On August 15, 1964, Louise traded the Buick for a 1964 Oldsmobile. On August IT she returned the Oldsmobile to the garage from which she had purchased it for repairs. She did not have another car to' drive, and the garage loaned her a 1959 Chevrolet. On August 19, Louise was a passenger in the 1959 Chevrolet which, was being driven by Sullivan with her consent. An accident occurred and Louise was killed. Bennie as administrator sued Sullivan and others for the death of Louise. Sullivan requested Travelers to defend on the ground that he was covered by the July 3 renewal policy of Travelers. Travelers refused to defend. Bennie obtained a judgment against Sullivan which was not satisfied. Bennie then brought the instant garnishment action against Travelers in federal district court. If Louise was a named insured in the policy, Sullivan was covered because the 1959 Chevrolet would come within the definition of “owned automobile” and because Sullivan was driving with the permission of Louise. The policy defines “named insured” to mean “any individual named in Item 1 of the declarations and also includes his spouse, if a resident of the same household.” Item 1 of the declarations reads that the named insured is B. W. Agee. At the end of the line provided for Item 2, which states the policy period, are two asterisks. Near the lower right-hand corner of the declarations page is a box. At the top of the box, in the same'print as the policy form appears, “ ** 12:01 A.M., standard time at the address of the named insured as stated herein.” Typed in below that are the names B. W. Agee and M. Louise. Each name is followed by numbers, which under the undisputed testimony show the birth date of each and the number of the Oklahoma driver’s license held by each. Below this is the name of the insurance agency. The claim is that the inclusion of the name of Louise in the box makes her a named insured. A witness for Travelers testified that the typed information in the box was for underwriting purposes. The dates disclosed the ages of those regularly driving the automobiles and the license numbers furnished the means for checking traffic violations. He explained that the printed phrase following the two asterisks was to call attention to the fact that the period of policy coverage was determined by standard time prevailing at the address of the named insured. Bennie argues that the inclusion of the name of Louise in the box creates a patent ambiguity which must be resolved against the insurer because it wrote the policy. We do not agree. The asterisks refer to Item 2 — not to Item 1 which clearly gives the name of the person insured. Nothing in the policy indicates any intent to expand the “named insured” by the inclusion of any names in the box. Although no explanation for the appearance of the name of Louise in the box appears in the policy, the lack of explanation does not create an ambiguity. So far as the insuring contract is concerned, the inclusion of the names in the box is surplusage and does not extend the coverage. Counsel say that Bennie asked for and received a family policy to cover both himself and his wife and both cars. The 1956 Buick *Hvas paid for from a joint bank account to which Louise had not contributed for several years. It was licensed in the name of Louise. The 1963 Chevrolet was licensed in the name of Bennie. Travelers concedes that as long as Louise was the spouse of Bennie and lived in his household she was a named insured. When Bennie moved out of the family home with the children and established another household, she was no longer a named insured but was covered because she was driving an “owned automobile” within the policy terms with the consent of Bennie. This situation changed with the divorce decree which awarded the Buick to Louise. Bennie was no longer in a situation to grant permission for the use of the Buick and did not grant any permission to Sullivan. Bennie seeks a judicial reformation of the policy to include Louise as a named insured. In Oklahoma there can be no reformation of a contract unless there is an antecedent agreement by which to make the rectification and the evidence must be sufficient to take the question out of the range of reasonable controversy because the court cannot make a new or different contract for the parties. Bennie wanted and received coverage for himself and his wife and for the two cars. When the policy came up for renewal he requested no change. The only possibility of mistake arises after the separation. Bennie testified, and the insurance agent admitted, that after the separation he called the agent and told him of the separation and of his move to another home. He did not request a policy change and the agent made none because the coverage continued. The situation changed after the divorce. Bennie testified that in a second telephone conversation with the agent he reported that he and Louise were getting a divorce and he wanted the coverage on the Buick continued. The agent testified that after the conversation relating to the separation, he had no other conversation with Bennie until after the accident. The trial judge stated specifically that he adopted the testimony of the agent and found that the agent had no notice either of the divorce or of the trade of the Buick for the Oldsmobile until after the accident. In the circumstances there was no antecedent agreement on which reformation can be based. We are not concerned with what the responsibilities of Travelers might have been if the agent had known of the divorce. In May, 1965, Travelers made a $500 medical payment under the policy to Bennie as administrator of the estate of Louise. Bennie argues that because of this payment Travelers is estopped to deny coverage. Before the payment Travelers had investigated the accident and denied liability. The agent who made the payment testified that he did so mistakenly and without reviewing the file. The district court found that the payment was made “in error and by mistake.” Counsel for Bennie rely on Security Ins. Co. of New Haven v. White, 10 Cir., 236 F.2d 215, and Cochran v. Order of United Commercial Travelers, 10 Cir., 143 F.2d 82. The cases are not in point. Neither relates to a mistake and in each there was detrimental reliance by the insured on the conduct of the insurer. The elements of equitable estoppel under Oklahoma law are set out in Antrim Lumber Co. v. Wagner, 175 Okl. 564, 54 P.2d 173, 176. They include knowledge and detrimental reliance. In St. Louis & S.F.R. Co. v. Mann, 79 Okl. 160, 192 P. 231, 233, it was said that estoppel cannot be set up against a party “whose conduct was based upon pure mistake.” Here the record shows, and the court found, that the medical payment was made by mistake. The evidence shows no reliance by Bennie on the payment which might have been a detriment to him. The district court correctly found no detrimental reliance and correctly concluded that under Oklahoma law no estoppel arose. Affirmed. . See Dennis v. American-First Title & Trust Company, Okl., 405 P.2d 993, 997, and Douglas v. Douglas, 176 Okl. 378, 56 P.2d 362, 369. . See Continental Oil Company v. Rapp, Okl., 301 P.2d 198, 203, and Fipps v. Stidham, 174 Okl. 473, 50 P.2d 680, 684. Question: What is the specific issue in the case within the general category of "criminal"? A. federal offense B. state offense C. not determined whether state or federal offense Answer:
songer_judgdisc	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the abuse of discretion by the trial judge favor the appellant?" This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". UNITED STATES of America, Plaintiff-Appellee, v. Patricia Campbell HEARST, Defendant-Appellant. Nos. 76-3162, 77-1759. United States Court of Appeals, Ninth Circuit. Nov. 2, 1977. Rehearing En Banc Denied Jan. 4, 1978. F. Lee Bailey and J. Albert Johnson, Boston, Mass., argued for defendant-appellant. James L. Browning, Jr., U. S. Atty., San Francisco, Cal., argued for plaintiff-appel-lee. Before BROWNING, TRASK and WALLACE, Circuit Judges. PER CURIAM: Appellant was tried under a two-count indictment charging her with armed robbery of a San Francisco bank in violation of 18 U.S.C. §§ 2113(a), (d) and 924(c)(1). The government introduced photographs and testimony descriptive of appellant’s role in the robbery. Appellant raised the defense of duress, contending her co-participants compelled her to engage in the criminal activity. The jury found appellant guilty. The district court sentenced her to seven years in prison on one count and two years on the other, the sentences to be served concurrently. Appellant argues that the trial judge erred in admitting and excluding evidence and in ruling on appellant’s privilege against self-incrimination. No novel issues are presented. We conclude on the basis of well established principles that no reversible error occurred and that the judgment must be affirmed. I. Evidence of Subsequent Crimes During its case-in-chief the government introduced evidence connecting appellant with criminal activity at a sporting goods store and with a kidnapping and theft. These incidents occurred in the Los Angeles area approximately one month after the San Francisco bank robbery. The evidence showed that appellant accompanied William and Emily Harris to Mel’s Sporting Goods Store in Los Angeles, that the Harrises entered the store and left appellant outside in a truck, that a store clerk saw William Harris shoplifting and attempted to arrest him, and that appellant discharged an automatic rifle at the store, enabling Harris to escape. The evidence further showed that on the same day appellant and the Harrises stole a van and kidnapped its owner, Thomas Matthews. Matthews testified that during this incident the Harrises were outside the van and appellant had an opportunity to escape or give Matthews a message but did not do so. Appellant objects to admission of this evidence on three grounds. She asserts the evidence was irrelevant for any purpose except the improper one of convincing the jury that appellant acted in accordance with a criminal disposition. She argues that even if the evidence were relevant to the issue of intent, as the district court held, the incidents were so dissimilar to the bank robbery that its probative value was minimal and outweighed by its prejudicial effect. Finally, appellant contends the court erred in permitting the introduction of this evidence during the government’s case-in-chief. Evidence of other criminal acts may be persuasive that the accused is by propensity a probable perpetrator of the crime charged. Nonetheless, it is excluded when offered for this purpose because it may unduly influence the jury and deny the accused a fair opportunity to defend against the particular charge. Michelson v. United States, 335 U.S. 469, 475-76, 69 S.Ct. 213, 93 L.Ed. 168 (1948). Evidence of other criminal acts may be admitted for purposes other than proving criminal predisposition, however. It may be received, for example, to prove knowledge, motive, and intent. Fed.R.Evid. 404(b). Accord, United States v. Rocha, 553 F.2d 615, 616 (9th Cir. 1977); United States v. Bums, 529 F.2d 114, 118 (9th Cir. 1976); United States v. Marshall, 526 F.2d 1349, 1360 (9th Cir. 1975). The government contends that the evidence of appellant’s criminal acts in Los Angeles a month after the bank robbery was relevant to the issue of appellant’s intent when she participated in the San Francisco bank robbery, and to whether appellant was acting under duress. Appellant raised the defense of duress at trial and offered substantial evidence to support it. To convict appellant, therefore, the government was required to show appellant was not acting under duress when she participated in the San Francisco robbery. The evidence of appellant’s involvement in the Los Angeles activity was relevant to this issue because it tended to show appellant willingly engaged in other criminal activity with persons of the same group at a time not unduly remote. Appellant correctly points out that though relevant, evidence of other criminal conduct by the accused should be excluded if its probative value is outweighed by its prejudicial impact upon the accused. Fed.R.Evid. 403. Accord, United States v. Satterfield, 548 F.2d 1341, 1346 (9th Cir. 1977); United States v. Grammer, 513 F.2d 673, 677 (9th Cir. 1975); Fernandez v. United States, 329 F.2d 899, 908 (9th Cir. 1964). This determination is largely a matter for the discretion of the district court. United States v. Rocha, supra; United States v. Riggins, 539 F.2d 682, 683 (9th Cir. 1976); United States v. Nichols, 534 F.2d 202, 204 (9th Cir. 1976). Appellant challenges the discretionary determination made by the district court in this instance. Appellant points out that the Los Angeles offenses were not similar to the San Francisco robbery with which she was charged. Because the events were so dissimilar, she contends, they offer little insight into her state of mind during the robbery. But to justify admission of evidence of other crimes, the crimes must be “similar” to the offense charged only if it is the similarity of the crimes that underlies the relevance of the evidence. United States v. Riggins, supra, 539 F.2d at 683. Here the relevance of the evidence did not depend on the similarity of the Los Angeles crimes to the bank robbery but on the circumstances surrounding the occurrence of the Los Angeles crimes, which indicated appellant had not acted under duress when she participated in the bank robbery. The tendency of the evidence regarding the Los Angeles crimes to prove appellant was not coerced when she participated in the San Francisco robbery is not diminished by the lack of similarity between the Los Angeles and San Francisco offenses. Appellant also argues that the sequence of the San Francisco and Los Angeles events undermines the relevance of the latter to her state of mind during the San Francisco robbery. Absence of duress in the later Los Angeles incidents would not be probative of her state of mind during the San Francisco robbery, she contends, because the robbery itself made her an outlaw and a fugitive. This fact may have caused her to participate willingly in the Los Ange-les events, she asserts, even if she were under duress during the earlier robbery. Appellant’s hypothesis does bear upon the probative value of the evidence, and it is an appropriate consideration in determining whether on balance the evidence should have been admitted. It is, however, only a hypothesis, and a highly speculative one. The mere assertion of this hypothesis does not so undermine the probative worth of the evidence of the Los Angeles incidents in establishing appellant’s state of mind during the San Francisco robbery as to render admission of the evidence an abuse of discretion. The jury could well reject appellant’s theory and conclude that if appellant had been forced to participate in the bank robbery against her will she would have refrained from criminal activity in Los An-geles or seized the opportunity to escape. The trial judge was called upon to balance the need for the evidence in the search for the truth against the possibility that the jury would be prejudiced against appellant because the evidence revealed she had participated in other conduct that was criminal. The district court acted well within its discretion in admitting the evidence. Appellant’s state of mind during the San Francisco robbery was the central issue in the case. State of mind is usually difficult to prove, and the evidence on the issue was sharply divided. The timing and other circumstances of the Los Angeles incidents made evidence of them highly probative on this critical issue. Though criminal, the incidents were not of a kind likely to inflame the jury. The prejudice to appellant arose primarily from the light the evidence cast on appellant’s state of mind during the San Francisco robbery and not from the incidental circumstance that it revealed appellant’s involvement in other criminal acts. Appellant contends that even if evidence of the Los Angeles incidents were admissible, the district court erred in admitting it in the government’s case-in-chief. The argument runs as follows. Bank robbery is a crime requiring a general rather than specific intent, United States v. Hartfield, 513 F.2d 254, 259 (9th Cir. 1975), and the jury could infer the requisite intent from the commission of the act. United States v. Porter, 431 F.2d 7, 10 (9th Cir. 1970). Since evidence of other criminal acts was not required to enable the government to carry its burden of proving intent, it should not have been admitted as part of the government’s case-in-chief. United States v. Adderly, 529 F.2d 1178, 1181 n. 1 (5th Cir. 1976), quoting Fallen v. United States, 220 F.2d 946, 948 (5th Cir. 1955); United States v. Ring, 513 F.2d 1001, 1007-09 (6th Cir. 1975). It was reversible error, appellant concludes, to admit to such prejudicial evidence when its only relevance was to rebut a defense of duress not yet raised. See United States v. Ring, supra; United States v. Fierson, 419 F.2d 1020, 1023 (7th Cir. 1969). The government concedes it cannot present evidence that the accused committed other crimes to prove a point not in issue. The government argues, however, it was clear that appellant would raise the defense of duress, and whether the government was to be allowed to introduce the evidence in its opening presentation or only in rebuttal was merely a question of the order in which the parties should adduce their proof at trial, a matter within the trial court’s discretion. See Geders v. United States, 425 U.S. 80, 86, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976); Fed.R.Evid. 611(a); 2 J. Wigmore, Evidence § 307 at 207 (3d ed. 1940). We are satisfied that admission of the evidence in the government’s case-in-chief does not dictate reversal in this case. It is unnecessary to decide whether the trial court’s ruling was within its discretion. The ruling, if error, was nonetheless harmless. Even before trial commenced it was appellant’s announced intention to defend on the ground of duress. No other defense was available to her. If appellant defended at all, the evidence of the Los Angeles events would have been placed before the jury in the government’s rebuttal. There is no basis for assuming appellant was prejudiced because the evidence was admitted in the government’s case-in-chief rather than in rebuttal. The prejudice arose from the substance of the evidence, not from the timing of its introduction. II. Privilege against Self-Incrimination During the trial appellant elected to testify in her own behalf. She described in exhaustive detail the events immediately following her kidnapping of February 4, 1974. These included physical and sexual abuses by members of the Symbionese Liberation Army (SLA), extensive interrogations, forced tape recordings and written communications designed to convince her family that she had become a revolutionary, and training in guerrilla welfare. She next described how the SLA compelled her under threat of death to participate in the robbery of the Hibernia Bank on April 15,1974, and to identify herself by reading a revolutionary speech. She explained that by the time the group moved to Los Angeles, the SLA had convinced her that they would kill her if she tried to escape and that the Federal Bureau of Investigation also desired to murder her. Appellant added that the SLA required her to make various post-robbery admissions about her voluntary role in the crime. Appellant’s story continued by describing her participation one month after the robbery in the disturbance at Mel’s Sporting Goods Store. She claimed that her reaction in firing at the store resulted from fear of the SLA, as did her admission to Thomas Matthews of complicity in the bank robbery. She then told how she, the Harrises, and Jack Scott traveled from Los Angeles to Berkeley, then to New York, to Pennsylvania, and finally to Las Vegas in September of 1974. Again, she emphasized that she was an unwilling companion of the group. After mentioning her arrival in Las Vegas, her testimony jumped a year to the time of her arrest in San Francisco on September 18, 1975. On cross-examination, appellant refused to answer most questions concerning the period between her arrival in Las Vegas and her arrest in San Francisco. In response to questions about her activities, residences, and association with other suspected members of the SLA during this year, she invoked the Fifth Amendment privilege against self-incrimination 42 times. Prior to government questioning, appellant had moved for an order limiting the scope of the cross-examination so as to avoid the necessity of invoking the Fifth Amendment in response to questions implicating her in other crimes for which she was not on trial. Finding that appellant had waived her privilege against self-incrimination as to all relevant matters by testifying in her own behalf, the court denied this motion and allowed the government to ask her questions which resulted in her assertion of the Fifth Amendment. United States v. Hearst, 412 F.Supp. 885 (N.D.Cal.1976). Appellant now offers five separate grounds for finding that the court committed reversible error in making this ruling. 1. The Fifth Amendment provides that “[n]o person... shall be compelled in any criminal case to be a witness against himself.” But it is also true, as the trial court stressed, that a defendant who testifies in his own behalf waives his privilege against self-incrimination with respect to the relevant matters covered by his direct testimony and subjects himself to cross-examination by the government. Brown v. United States, 356 U.S. 148, 154-55, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958). Appellant contends that she “did not voluntarily waive her Fifth Amendment privilege by testifying because her testimony was compelled by the introduction of certain evidence, i. e., post-crime conduct, which was challenged as inadmissible and highly prejudicial.” Reply Brief for Appellant at 7. She pleads that she was caught between the “rock and the whirlpool” when forced to decide whether to testify or allow the evidence to stand unrebutted. The validity of this argument depends largely on appellant’s assumption that evidence of her post-robbery behavior was admitted erroneously, and that she had no choice but to respond to this inadmissible evidence. We have concluded previously, however, that the trial court determined correctly that this evidence was relevant and admissible. Thus, appellant’s attempt to compare her situation to that involved in Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968), where the defendant had to testify in order to overcome the impact of prior confessions which had been illegally obtained and introduced, is unconvincing. In the present case, neither the trial court nor we found that any illegal, inadmissible evidence forced appellant to testify. Appellant also suggests it is sufficient that she thought she was being compelled to testify in response to the admission of evidence which she perceived as prejudicial, inadmissible, and damaging to her defense. We refuse to hold that a defendant’s subjective impressions of what he is “forced” to do during his trial are enough to render his testimony involuntary. A defendant often will view evidence as incriminating and inadmissible, and feel that he must take the witness stand in order to save his case. This is an inherent feature of our criminal justice system, however: The defendant in a criminal trial is frequently forced to testify himself and to call other witnesses in an effort to reduce the risk of conviction. When he presents his witnesses, he must reveal their identity and submit them to cross-examination which in itself may prove incriminating or which may furnish the State with leads to incriminating rebuttal evidence. That the defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination. Williams v. Florida, 399 U.S. 78, 83-84, 90 S.Ct. 1893, 1897, 26 L.Ed.2d 446 (1970). In Williams, the Supreme Court found that the defendant had a free choice between giving notice of his alibi defense, as required by a Florida statute, and refraining from presenting this defense. Similarly, in our case, we find that appellant freely elected to testify in her own behalf. 2. Appellant also argues that she did not waive her privilege against self-incrimination because her testimony was limited to the collateral issue of the voluntariness of certain statements (i. e., the admissions of willing participation in the bank robbery) made by her and introduced into evidence over her objection. She contends that since her testimony did not address the merits of the case, the government should not have been allowed to ask questions which attempted to prove her guilt. She refers us to Calloway v. Wainwright, 409 F.2d 59, 66 (5th Cir.), cert. denied, 395 U.S. 909, 89 S.Ct. 1752, 23 L.Ed.2d 222 (1969), which stated: “[t]hat appellant took the stand for the sole purpose of testifying upon the credibility of the voluntariness of his [earlier] confession should not be taken as a complete waiver of his constitutional privilege against self-incrimination.” Appellant’s assumption about the nature of her testimony is completely erroneous. The central theme of her lengthy testimony was that from the moment of her kidnapping to the time of her arrest she was an unwilling victim of the SLA who acted under continual threats of death. She tried to show, not merely that she made her admissions involuntarily, but that she acted under duress in robbing the Hibernia Bank, firing at the sporting goods store, and traveling with the Harrises for over one year. She disputed the main element of the government’s case: that she had the necessary criminal intent when she participated in the bank robbery. Thus, her reliance on Callo-way is misplaced, for that case dealt with the much narrower situation in which a defendant takes the witness stand solely to deny the voluntariness of his confession. Calloway v. Wainwright, supra, 409 F.2d at 66. 3. Appellant next claims that even if she did waive her privilege against self-incrimination by testifying in her own behalf, the waiver did not extend to the period between her arrival in Las Vegas and her arrest in San Francisco. She argues that since she did not testify concerning her activities during this “lost year,” the government had no right or reason to ask any questions about it. She would confine the proper scope of cross-examination to the events which she specifically discussed during her direct testimony. We find that appellant misinterprets the controlling case law on waiver and the permissible limits of the cross-examination of a testifying defendant. The Supreme Court has stated that when a defendant takes the witness stand, “his credibility may be impeached and his testimony assailed like that of any other witness, and the breadth of his waiver is determined by the scope of relevant cross-examination.” Brown v. United States, supra, 356 U.S. at 154- 55, 78 S.Ct. at 626. “[A] defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination.” McGautha v. California, 402 U.S. 183, 215, 91 S.Ct. 1454, 1471, 28 L.Ed.2d 711 (1971). This rule is premised on basic goals of fairness and ascertainment of the truth: The witness himself, certainly if he is a party, determines the area of disclosure and therefore of inquiry. Such witness has the choice, after weighing the advantage of the privilege against self-incrimination against the advantage of putting forward his version of the facts and his reliability as a witness, not to testify at all. He cannot reasonably claim that the Fifth Amendment gives him not only this choice but, if he elects to testify, an immunity from cross-examination on the matters he has himself put in dispute. Brown v. United States, supra, 356 U.S. at 155- 56, 78 S.Ct. at 627. Nowhere in this rule is there even a suggestion that the waiver and the permissible cross-examination are to be determined by what the defendant actually discussed during his direct testimony. Rather, the focus is on whether the government’s questions are “reasonably related” to the subjects covered by the defendant’s testimony. Applying this principle to the present case, we conclude that the trial court did not abuse its broad discretion, United States v. Higginbotham, 539 F.2d 17, 24 (9th Cir. 1976), in allowing the government to ask questions about the year which appellant failed to cover in her direct testimony. As we have already concluded, appellant’s testimony was not limited to disputing the voluntariness of her post-robbery'admissions. Instead, she attempted to show that from her kidnapping until her arrest she acted exactly as her captors directed. She tried to persuade the jury that her post-robbery conduct and feelings of fear, dependence, and obedience proved that she had also acted involuntarily and without criminal intent in robbing the Hibernia Bank. We agree with the trial court’s conclusion that appellant’s testimony placed in issue her behavior during the entire period from abduction to arrest, and gave the government a right to question her about the “lost year.” See United States v. Hearst, supra, 412 F.Supp. at 887. Although appellant did not discuss this year, the natural inference from her other testimony, if believed, was that she had acted involuntarily during this period. Having offered selective evidence of the nature of her behavior for the whole period, appellant had no valid objection to the government’s attempt to show that her conduct during the omitted year belied her story and proved that she was a willing member of the SLA. Since appellant’s direct testimony raised an issue about the nature of her conduct during the entire one and one-half years prior to her.arrest, the government’s questions about her activities, associations, and residences during the interim year were more than “reasonably related” to the subject matter of her prior testimony. That answers to these questions might have implicated appellant in crimes for which she was not on trial had no bearing on the questions’ relevancy or relationship to her direct testimony. 4. Appellant argues that even if she had no right to refuse to answer the government’s questions, the court erred in allowing the prosecution to continue to ask questions which it knew would elicit repeated assertions of the privilege against self-incrimination. We find that appellant’s authorities do not support her proposition. Her cases involve situations in which the government or the defendant questioned a witness or a co-defendant, knowing that a valid, unwaived Fifth Amendment privilege would be asserted. E. g., United States v. Roberts, 503 F.2d 598 (9th Cir. 1974), cert. denied, 419 U.S. 1113, 95 S.Ct. 791, 42 L.Ed.2d 811 (1975); United States v. Beye, 445 F.2d 1037 (9th Cir. 1971); Sanders v. United States, 373 F.2d 735 (9th Cir. 1967). She fails to offer support relating to the very different problem, present in our case, in which the government attempts to cross-examine a witness-defendant who has previously waived his privilege against self-incrimination. In determining whether it is improper for the government to ask a defendant questions which will result in an assertion of the privilege against self-incrimination, the central consideration is whether the defendant has waived his privilege as to the propounded questions. When a witness or a defendant has a valid Fifth Amendment privilege, government questions designed to elicit this privilege present to the jury information that is misleading, irrelevant to the issue of the witness’s or the defendant’s credibility, and not subject to examination by defense counsel. See Namet v. United States, 373 U.S. 179,186-87, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963). Therefore, we do not allow this form of questioning. But when a defendant has voluntarily waived his Fifth Amendment privilege by testifying in his own behalf, the rationale for prohibiting privilege-invoking queries on cross-examination does not apply. The defendant has chosen to make an issue of his credibility; he has elected to take his case to the jury in the most direct fashion. The government, accordingly, has a right to challenge the defendant’s story on cross-examination. Brown v. United States, supra, 356 U.S. at 154-56, 78 S.Ct. 622. The government may impeach the defendant by developing inconsistencies in his testimony; the government may also successfully impeach him by asking questions which he refuses to answer. If the refusals could not be put before the jury, the defendant would have the unusual and grossly unfair ability to insulate himself from challenges merely by declining to answer embarrassing questions. He alone could control the presentation of evidence to the jury. Our view finds support in decisions construing the propriety of judicial and prosecutorial comment upon a defendant’s refusal to testify. Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), held that neither the government nor the court may comment on an accused’s exercise of his Fifth Amendment privilege by refusing to testify. But it has long been established that comment is allowed when a defendant fails to explain evidence against him after first waiving his privilege by taking the witness stand. Caminetti v. United States, 242 U.S. 470, 492-95, 37 S.Ct. 192, 61 L.Ed. 442 (1917). Since the offering of questions designed to elicit invocations of the Fifth Amendment is really only a form of comment upon the defendant’s failure to testify, intended to present to the jury the government’s interpretation of his credibility, we believe that the rule of Caminetti should apply to the present case. We have concluded that appellant waived her privilege against self-incrimination with respect to her activities during the interval between her arrival in Las Vegas and her arrest in San Francisco. Therefore, it was permissible for the government to ask questions about this period, even though they led to 42 assertions of the Fifth Amendment. 5. Finally, appellant contends that the trial court committed reversible error by stating initially that her privilege against self-incrimination continued in full effect even if she testified but then ruling later in the trial that she had waived her privilege by testifying. Appellant asserts that she testified only in reliance upon the first ruling, and that she would never have spoken if she had known or thought that the court would allow the government to ask questions which resulted in her invocation of the Fifth Amendment. She concludes that the prejudicial effect of her repeated use of the privilege was great, and that her conviction must therefore be reversed. We find two flaws in appellant’s theory. First, the record does not show a firm, unequivocal ruling by the trial court which appellant justifiably could have relied upon in believing that her Fifth Amendment privilege was not subject to waiver. During a special hearing on the voluntariness of certain of appellant’s statements, the trial judge did misrepresent or ignore the controlling case law, see Brown v. United States, supra, by stating his belief that a defendant never waives his privilege against self-incrimination by taking the witness stand. Although the court’s statement was somewhat confusing and misleading, appellant could not reasonably have believed that this pronouncement, given in the very limited context of a voluntariness hearing, was a promise to her that she could testify on the merits during the trial without subjecting herself to cross-examination or comment upon her refusal to answer government questions. The only proper and truly binding decision on the issue of appellant’s waiver of her Fifth Amendment rights was the formal, specific ruling in which the court held that there had been a waiver. See United States v. Hearst, supra. “I don’t think the defendant ever waives the right of self-incrimination by taking the witness stand, and she has the right — or she has the right to assert that privilege in any proceeding at any time in any place under the Constitution of the United States. So I will have to rule she has not waived.” R.T. 473. Appellant points to another segment of the trial in which the court appeared to reaffirm its earlier statement. However, this second opinion about nonwaiver was made after appellant had testified on direct examination. Since she had already testified, this misstatement of the law was harmless. Appellant cannot claim now that she relied upon it. Second, we do not believe there is sufficient evidence that appellant relied upon the court’s initial opinion, given during the voluntariness hearing, in electing to testify. Before we may conclude that a defendant was prejudiced by an erroneous or subsequently modified ruling by a trial court, there must be some showing or reasonable inference that he did in fact rely upon the decision. See Johnson v. United States, 318 U.S. 189, 197, 63 S.Ct. 549, 87 L.Ed. 704 (1943). If the defendant ignored the ruling or did not base his actions on it, there is obviously no prejudicial error. To vacate a conviction in these circumstances would be to accord the defendant a windfall gain unrelated to any harm he suffered during the trial. It would also have the effect of locking a court into mistaken rulings made during the heat of trial and of preventing it from revising these decisions after considered reflection. As long as there is no evidence of detrimental reliance by the defendant, the course of justice is well served when a trial judge corrects his mistakes and saves an appellate court from the time-consuming task of remedying easily preventable errors. Appellant has produced no proof, other than her bare assertion, that she would not have testified but for the “promise” made by the trial court of continuous protection under the Fifth Amendment. Recognizing that such direct evidence is difficult to produce, courts do examine the entire trial transcript to determine whether it is probable that the defendant was misled by an erroneous ruling of the lower court. In Johnson v. United States, supra, for example, the trial court mistakenly granted the defendant’s claim of privilege but later permitted the prosecutor to comment adversely upon the use of the privilege. Emphasizing that the record showed the defendant almost certainty testified in reliance upon the early ruling, the Supreme Court found error in the trial court’s change of position. Id. at 197-98, 63 S.Ct. 549. In the present case, however, we do not believe the transcript shows that appellant testified only as a result of the trial court’s initial statement. The government presented a strong case against appellant. It introduced undisputed evidence that she had participated in the bank robbery. Since bank robbery is a crime requiring only a general intent, the jury could have inferred the requisite intent from the very commission of the act. United States v. Hartfield, supra, 513 F.2d at 259; United States v. Porter, supra, 431 F.2d at 10. Appellant’s only hope was to testify about her role in the robbery. She could not have relied solely on the testimony of her expert witnesses, for the government presented an impressive array of psychiatric testimony disputing appellant’s claim that she had participated involuntarily in the robbery. We believe that appellant would have testified even if the trial court had ruled at the beginning of the trial that her privilege against self-incrimination was subject to waiver. III. Admission of the Tobin Tape While in custody at the San Mateo County Jail, appellant was allowed to receive and talk with visitors. On September 20, 1975, two days after her arrest, one of her visitors was her childhood friend, Patricia Tobin. During the visit with Tobin, which took place in the jail’s visiting room, appellant and Tobin communicated over a telephone-like intercommunication system while looking at each other through a bullet-proof glass window. Most of the conversation between the two was monitored and recorded through a switchboard-type device operated by a deputy sheriff. The deputy conducted this monitoring and recording pursuant to an established jail policy. As the supervisor of the jail testified: We monitor selected cases and at random cases also, and record those plus manual monitoring to watch for security problems within our facility. Officials at the jail had previously determined to record all of appellant’s conversations with her visitors in accordance with the jail policy for “very publicized cases or high security problems.” The jail supervisor delivered the recording of the conversation with Tobin (the Tobin tape) to the FBI and the prosecution. Appellant timely moved to suppress the tape, contending that it was made and delivered to the government in violation of the Fourth, Sixth, Ninth and Fourteenth Amendments. The district court denied the motion, United States v. Hearst, 412 F.Supp. 888 (N.D.Cal.1976), and the government thereupon cross-examined both appellant and Tobin with respect to the taped conversation. In addition, portions of the transcript of the tape were read to the jury. Appellant now makes a three-pronged attack on the government’s use of the Tobin tape. First, she contends that the monitoring and recording of her conversations with visitors in the jail violated her Fourth Amendment rights. Second, she argues that, regardless of the constitutionality of the original monitoring and recording, the jail supervisor’s delivery of the tape to the government and its subsequent use of the tape constitutes an independent violation of the Fourth Amendment. Finally, she argues that the government violated her Sixth Amendment right to counsel by “surreptitiously making itself a party to [her] conversations and thereby deliberately eliciting incriminating statements made in the absence of counsel.” A. The Monitoring and Recording In Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962), the Supreme Court addressed a Fourth Amendment challenge to the electronic interception of a conversation between a jail prisoner and a visitor, Lanza. Unknown to the two, jail officials, by means of an electronic device installed in the visitors’ room at the jail, had listened to and transcribed the conversation. The transcript was then delivered to a state legislative committee investigating possible corruption in the state parole system. Lanza was called before the committee where, after receiving immunity, he refused to answer a series of questions. Because of this refusal, he was convicted of a misdemeanor. Lanza attacked the conviction, charging that the interception of the conversation was violative of Fourth Amendment principles incorporated in the Due Process clause of the Fourteenth Amendment and that the committee interrogation was based on information derived from the improper interception. Accordingly, he argued, it was a denial of due process to convict him for failing to answer the committee’s questions. Regarding Lanza’s Fourth Amendment claim, the Supreme Court observed that to say that a public jail is the equivalent of a man’s “house” or that it is a place where he can claim constitutional immunity from search or seizure of his person, his papers, or his effects, is at best a novel argument. To be sure, the Court has been far from niggardly in construing the physical scope of Fourth Amendment protection. A business office is a protected area, and so may be a store. A hotel room, in the eyes of the Fourth Amendment, may become a person’s “house,” and so, of course, may an apartment. An automobile may not be unreasonably searched. Question: Did the court's ruling on the abuse of discretion by the trial judge favor the appellant? This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_initiate	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. Fielding M. McGEHEE, III, Appellant v. CENTRAL INTELLIGENCE AGENCY. No. 82-1096. United States Court of Appeals, District of Columbia Circuit. Argued Sept. 15, 1982. Decided Jan. 4, 1983. Katherine A. Meyer, Washington, D.C., with whom Alan B. Morrison, Washington, D.C., was on the brief, for appellant. John H.E. Bayly, Jr., Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence and Michael J. Ryan, Asst. U.S. Attys., and Emilio Jaksetic, Atty., C.I.A., Washington, D.C., were on the brief, for appellee. Before WRIGHT, EDWARDS and BORK, Circuit Judges. Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS. Separate opinion concurring and dissenting in part filed by Circuit Judge BORK. TABLE OP CONTENTS Page Introduction_____________________________ 1097 I. BACKGROUND _____ 1097 II. THE USE OP A TIME-OF-REQUEST CUT-OPP DATE......—......... 1100 A. Applicable Law_________________ 1100 B. The Legality of the Agency’s Rule Adopting A Time-of-Request Cut-off Date......... 1102 C. The Reasonableness of the Agency’s Procedure in This Instance________ 1103 Page III. THE REFERRAL PROCEDURE_____ 1105 A. “Agency Records” Covered by the Act.......................... 1105 B. Treatment of Documents Obtained From Other Agencies____________ 1109 IV. INVOCATION OP THE “INTELLIGENCE SOURCE” EXEMPTION.... 1112 CONCLUSION.............. ni4 HARRY T. EDWARDS, Circuit Judge: We are asked in this case to decide several questions concerning the scope of the duties imposed on government agencies by the Freedom of Information Act (“FOIA” or “the Act”). The District Court granted appellee’s motion for summary judgment on the theories that appellee had conducted a sufficiently thorough search for documents subject to disclosure and had released to appellant all of the materials required by the Act. In reaching these conclusions, the District Court upheld as reasonable an an-publicized Central Intelligence Agency (“CIA” or “the agency”) rule which had the effect of limiting the FOIA search to materials in the agency’s possession on the date when appellant made his initial request for documents. This “time-of-request cut-off” policy was approved by the trial court even though the agency failed to disclose any documents to appellant until compelled to do so by an order of the court almost two and one-half years after the original time of request. The District Court also granted appellee’s motion to dismiss from the lawsuit all records in the possession of the CIA that had been obtained from the State Department or the Federal Bureau of Investigation (“FBI”). Finally, the District Court relied solely on affidavits submitted by the CIA in upholding the nondisclosure of a number of disputed documents under FOIA exemptions (1) and (3). Because we conclude that the District Court’s rulings were founded upon misinterpretations of applicable legal standards, we reverse and remand for further proceedings. I. Background The outcome of this case turns substantially upon nuances in its facts. Accordingly, the procedural background to this appeal will be described at some length. Appellant McGehee is a free-lance journalist and a relative of three victims of the gruesome demise of the “People’s Temple” in Jonestown, Guyana. Many of the circumstances surrounding the Jonestown Tragedy are well known, indeed notorious. In November, 1978, Congressman Leo J. Ryan and a portion of his staff traveled to Guyana to investigate allegations of mistreatment of some of his constituents in the Jonestown religious community. On November 18, as they were about to board a plane to leave, Ryan, three representatives of the media, and one apparent defector from the community were shot and killed. Within hours, almost all of the more than 900 members of the Jonestown congregation, including its founder, Jim Jones, either committed suicide or were murdered. Despite the extensive attention given the Jonestown Tragedy, the character of the People’s Temple religious community, the events leading up to the catastrophe, and the manner in which so many people died remain somewhat mysterious. Proceeding on the assumption that the CIA possesses recorded information that sheds light on these matters, McGehee, on December 6, 1978, filed the FOIA request that gives rise to this controversy. McGehee initially asked for documents relating to several aspects of the development and fate of Jim Jones’ congregation. On December 22, at the suggestion of a representative of the agency, he narrowed his request to records pertaining to the “Peoples Temple.” The treatment accorded McGehee’s request during the following month is not entirely clear from the record. It appears that the agency’s Information and Privacy Division (“IPD”), the office that coordinates responses to requests for information, determined that two other divisions—the Directorate of Operations (“DO”) and the Office of Security (“OS”)—were the offices most likely to possess documents of the sort McGehee was seeking. Accordingly, those two divisions were “tasked”—i.e., asked to search for and identify relevant records. Each division apparently was instructed to confine its attention to documents received on or before December 22, 1978, the day McGehee’s request was finalized. Soon thereafter OS informed IPD that it had found no such materials. An initial search by DO, on the other hand, revealed the existence of responsive documents, but DO at this time appears not to have informed IPD of its findings. Nor does DO seem to have made any effort at this point to review or even to retrieve the identified documents. Meanwhile, IPD learned that a third division, the National Foreign Assessment Center/Office of Central Reference (“NFAC/OCR”), had completed a computer search in response to an earlier FOIA request very similar to McGehee’s (the “Douglas request”) and had identified relevant documents in the agency’s possession. However, no immediate effort was made to retrieve those documents either. Instead, McGehee’s request (which was marked with some kind of notation of the location of records that might prove responsive) was placed at the end of a “processing queue,” the CIA’s system for dealing with FOIA requests on a “first-in-first-out basis.” This initial flurry of activity had subsided by mid-January, 1979. Between that time and December, 1980, the agency did virtually nothing about McGehee’s request. Beginning in March, 1979, McGehee periodically contacted the CIA, either directly or through counsel, to ascertain the status of his request. The agency provided him with no information regarding the steps it had taken and gave him no definite indication of when any responsive documents would be released. Never did the agency inform McGehee that it had adopted December 22, 1978 as a “cutoff date” for its searches. On November 21, 1980, McGehee filed suit in the District Court seeking to compel the CIA to respond to his pleas. On March 3, 1981, the court set a deadline of May 5,1981, by which time the agency was to complete its processing of McGehee’s request, release all nonexempt responsive material, and submit a Vaughn index cataloging any withheld documents. Soon thereafter the court granted the agency’s motion for a protective order, shielding the CIA from discovery by McGehee. On May 5, in compliance with the court’s directive, the agency revealed (for the first time) that it possessed 84 documents responsive to McGehee’s request. It disposed of those materials as follows: 12 were released in full; 18 were released with substantial portions deleted; 26 were withheld; 28 were forwarded to other government agencies, from which the CIA had originally obtained them. The last set of records is one of the hubs of this controversy. It is undisputed that, of the 28 “other agency” documents, 27 had originated with the State Department and one with the FBI. In accordance with its standard procedure, the CIA declined to undertake any kind of substantive review of the “other agency” records and instead sent them to the agencies that first compiled them to enable those agencies to determine whether any material was exempt from disclosure. McGehee has not submitted a FOIA request to either the State Department or the FBI, insisting that the CIA is required by the Act to evaluate and release the documents in question. Nevertheless, the State Department has voluntarily reviewed the 27 records that it originally created and has released a majority of them to McGehee. The fate of the FBI document does not appear from the record. In the summer of 1981, McGehee accidentally learned, from a letter written by a representative of the CIA to a third party, that the agency had been treating the time of his original request as a cut-off date for its FOIA search. Moreover, comments made in that letter raised the possibility that the agency had limited its searches to files denominated “People’s Temple” and had not sought information under any closely related headings—e.g., the Reverend James Jones or Jonestown. See App. 191. On January 19,1982, despite these revelations, the District Court issued final judgment in the case. The court denied McGehee’s motion for an in camera inspection of the withheld and edited documents to test the basis for the agency’s refusal to release them, granted the CIA’s motion to dismiss from the lawsuit the documents it had obtained from the State Department and FBI, and granted the CIA’s motion for summary judgment as to the remainder of the suit. This appeal followed. II. The Use of a Time-of-Request Cut-off Date McGehee’s first challenge concerns the CIA’s decision to limit its search to records in its possession on the date when his request was finalized. He points out that the agency did not disclose any documents to him until compelled to do so by an order of the District Court almost two and one-half years after his original request. Under these circumstances, he argues, the agency failed to discharge its statutory obligation when it retrieved and released only documents that originated with and were in the possession of the CIA during the first month following the events to which his request principally related. A. Applicable Law We begin by reviewing the legal principles that govern McGehee’s claim. First, it is well established that the adequacy of an agency’s response to a FOIA request is measured by a standard of reasonableness. As this court recently noted: [A]n agency is not “ ‘required to reorganize its [files] in response to’ ” a demand for information, but it does have a firm statutory duty to make reasonable efforts to satisfy it. Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 837 (D.C.Cir.1979) (footnotes omitted) (emphasis added). This same standard of reasonableness that has been applied to test the thoroughness and comprehensiveness of agency search procedures is equally applicable to test the legality of an agency rule establishing a temporal limit to its search effort. In other words, a temporal limit pertaining to FOIA searches (such as the “time-of-request cut-off” policy that is at issue in this case) is only valid when the limitation is consistent with the agency’s duty to take reasonable steps to ferret out requested documents. Second, we hold that the agency bears the burden of establishing that any limitations on the search it undertakes in a particular case comport with its obligation to conduct a reasonably thorough investigation. It seems to us clear that the burden of persuasion on this matter is properly imposed on the agency. The Act explicitly assigns to the agency the burden of persuasion with regard to the closely related issue of the legitimacy of the agency’s invocation of a statutory exemption to justify withholding of material. Two considerations indicate that the same rule should govern the issue before us. One is that the information bearing upon the reasonableness of any temporal or other limitation on a search effort is within the agency’s exclusive control. The other is that the Act as a whole is clearly written so as to favor the disclosure of any documents not covered by one of the enumerated exemptions. Insofar as burdens of persuasion are generally assigned to parties advancing disfavored contentions, the agency should bear the responsibility of convincing the trier of fact that its less than comprehensive search is reasonable under the circumstances Third, the fact that the subject of this appeal is the grant of appellee’s motion for summary judgment means that the agency must satisfy a significant legal standard in order to carry its burden. The standard has been stated as follows: It is well settled in Freedom of Information Act cases as in any others that “[s]ummary judgment may be granted only if the moving party proves that no substantial and material facts are in dispute and that he is entitled to judgment as a matter of law.”... [Moreover, the] “ ‘inferences to be drawn from the underlying facts... must be viewed in the light most favorable to the party opposing the motion.’ ” Church of Scientology, 610 F.2d at 836 (footnotes omitted). Thus, for the CIA to have properly prevailed in the case at bar, it must have shown that no material fact relevant to the reasonableness of its use of a time-of-request cut-off date was in dispute and that the evidence established that the procedure employed was reasonable “as a matter of law.” In deciding whether the agency had made such a showing, the District Court was entitled to rely upon affidavits submitted by the agency, describing its search procedures and explaining why a more thorough investigation would have been unduly burdensome. Id. But such affidavits would suffice only if they were relatively detailed, nonconclusory and not impugned by evidence in the record of bad faith on the part of the agency. Id. B. The Legality of the Agency’s Rule Adopting A Time-of-Request Cut-off Date In light of the foregoing principles, we must now determine whether the District Court fairly could have concluded that the CIA’s decision to limit its search to documents in its possession as of the date of McGehee’s finalized request was consistent with its statutory obligations. The agency would have us decide this question from a generic standpoint; it argues that language in the FOIA and authoritative case law interpreting the statute establish that the use of a time-of-request cut-off date is always reasonable. However, we are convinced that none of the arguments advanced by the agency to support this sweeping claim survives scrutiny. The CIA first points to the statutory provision requiring that the materials sought by a FOIA request be “reasonably describe[d].” That provision pertains to the subject matter, location and form of materials sought by a request, not to the times at which responsive documents are acquired. The CIA next directs our attention to two cases holding that an agency has no duty continuously to update its responses to a FOIA request. The doctrine tentatively established by those decisions is inapposite. The question presented in this case is whether, when an agency first releases documents to a requester, it may use as a cut-off date the time of his original demand. That an agency has no obligation, after it has once responded fully to a FOIA request, “to ‘run what might amount to a loose-leaf service’ ” for the benefit of the applicant has little bearing on the issue before us. Finally, the CIA points to case law suggesting that one cannot modify a FOIA request in mid-litigation. Those decisions establish, at most, that a requester is not permitted to alter or refine the subjects to which he originally directed attention; they have nothing to do with the legality of the use of the time of a request as a temporal limit to a FOIA search. C. The Reasonableness of the Agency’s Procedure in This Instance Having concluded that neither the terms of the statute nor the case law interpreting them supports a claim that the use of a time-of-request cut-off date is always proper, we are compelled to turn to the particular facts of the case before us to assess the reasonableness of the agency’s conduct. MeGehee directs our attention to circumstances that, on their face, east considerable doubt on the merits of the agency’s procedure. The CIA took almost two and one-half years to respond to McGehee’s request. Yet, when it finally released documents, the CIA chose to limit itself to records that originated with and were possessed by the agency during the first 35 days following the Jonestown Tragedy. Were these facts all that appeared in the record, we would be very hard pressed to sustain the agency’s actions. The CIA attempts to dispel the skepticism to which the foregoing circumstances give rise by arguing that it would be exceedingly difficult to conduct its processing of FOIA requests on any other basis. In the affidavit of John Bacon submitted to the District Court, in its brief to this court, and in oral argument, the agency has consistently maintained that uniform use of a time-of-request cut-off date is essential to avoid an “administrative nightmare.” To support this claim, the agency points to the benefits of “precispon]” (the value of having a single cut-off date that all agency divisions know in advance), the “confusion” that might be engendered by different agency components using different cutoff dates (e.g., each division using the date at which it commenced searching for documents), the alleged cost and inconvenience to the agency of conducting the successive, duplicative searches that might be necessary if the date of a final response or the date of litigation were employed as a cutoff date, and the disruption of the agency’s fee schedules that would accompany the use of anything other than its present procedure. In the absence of more detailed substantiation, these claims strike us as either unpersuasive or irrelevant. Indeed, alternative procedures, without the flaws of the time-of-request cut-off policy and without any real potential for the administrative nightmares alleged by appellee, readily come to mind. The following procedure is an example: Sample Procedure Applying a Reasonable “Cut-off” Date to a FOIA Search Soon after the CIA first receives a request, IPD “tasks” divisions of the agency it considers likely to have access to responsive documents. Those divisions determine whether they have any such materials and so inform IPD. IPD then notifies the requester that the agency possesses some relevant documents and will process his request as soon as it has completed processing all requests it received earlier. When the request nears the head of the “queue,” IPD instructs each agency division that it thinks might possess relevant records to conduct, at that time, a thorough search for all responsive documents in its possession, to retrieve identified records forthwith, and to submit them to the central office for evaluation by persons able to determine whether any material is exempt. Substantive review follows promptly and all nonexempt material is released. We do not offer the foregoing Sample as a directive to the agency, a procedure with which it is henceforth bound to comply. Nor do we mean to endorse a procedure fraught with excessive time delays. In designing the system, we have taken for granted the fact that the CIA is experiencing inordinate delays in processing FOIA requests; a different procedure might be more suitable for an agency that responds to requests on a relatively current basis. In sum, we set forth the Sample Procedure merely to indicate that one can easily imagine a system that incorporates a cut-off date much later than the time of the original request, that results in a much fuller search and disclosure than the procedure presently used by the agency, that forecloses the necessity for an excessive number of supplementary demands (see note 42 infra), and that does not appear unduly burdensome, expensive, or productive of “administrative chaos.” It is possible that circumstances unknown to us or to the District Court do indeed render unfeasible any such alternative, more responsive procedure. If so, the agency’s argument that its present practice is “reasonable” would be powerful. We therefore remand this portion of the case with instructions to afford the agency an opportunity to adduce additional relevant testimony. It should be clear, however, that to prevail on this issue, the agency will have to do better than it has thus far. One additional aspect of this general problem merits brief attention. It would be extremely difficult for the CIA to convince us that it may “reasonably” use any cut-off date without so informing the requester. Such notification would involve an insignificant expenditure of time and effort on the part of the agency. And it would enable the requester to submit supplementary demands for information if he felt so inclined. Unless on remand some extraordinary showing is forthcoming of why the agency should not be required to inform requesters of the dates it is using, the CIA’s unpublicized temporal limitation of its searches should be held invalid. III. The Referral Procedure McGehee’s second allegation of error is that the District Court improperly granted the CIA’s motion to dismiss from the lawsuit the records it had obtained from the State Department and FBI. As was true with regard to the issue just discussed, the general principles governing McGehee’s claim are well known but their application to the specific question presented has never been resolved. A. “Agency Records” Covered by the Act The Supreme Court has recently clarified the conditions under which a federal court may compel an agency to release documents. In Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980), the Court held: The FOIA represents a carefully balanced scheme of public rights and agency obligations designed to foster greater access to agency records than existed prior to its enactment. That statutory scheme authorizes federal courts to ensure private access to requested materials when three requirements have been met. Under 5 U.S.C. § 552(a)(4)(B) federal jurisdiction is dependent upon a showing that an agency has (1) “improperly”; (2) “withheld”; (3) “agency records.” Judicial authority to devise remedies and enjoin agencies can only be invoked, under the jurisdictional grant conferred by § 552, if the agency has contravened all three components of this obligation. Id. at 150, 100 S.Ct. at 968. The CIA argues vigorously that the District Court’s decision in the instant case was proper under the third branch of this test. Records that are in the possession of the agency to which a FOIA request is submitted but that were originally compiled by another agency, the CIA insists, are not “agency records” within the meaning of the Act. So stated, the argument seems rather implausible, but this was indeed the theory on which the District Court rested its ruling. Evaluation of this argument proves surprisingly difficult because of the absence of statutory or precedential guidance. As has often been remarked, the Freedom of Information Act, for all its attention to the treatment of “agency records,” never defines that crucial phrase. A reading of the legislative history yields insignificant insight into Congress’ conception of the sorts of materials the Act covers. And we gain little by ransacking the case law interpreting the FOIA; no appellate court has expressed an opinion on the question of the legal status of documents prepared by one agency in the possession of another This and other courts have, on occasion, been called upon to decide whether other materials of ambiguous form or origin fall within the category of “agency records.” It is upon some of those decisions that the District Court and the CIA principally rely in justifying the position they take in the instant ease. Unfortunately, none of the cases in question is apposite. It has been held that, under certain circumstances, records in an agency’s possession that originated with Congress do not constitute “agency records” for the purpose of the FOIA. Likewise, materials prepared by or for the judiciary that eventually find their way into the hands of an agency eovered by the Act have been held to fall outside the crucial category. The same is true of documents prepared by the President or his personal staff. But two factors distinguish all of these cases from the situation before us. First, each of the departments of government listed above is itself exempt from the coverage of the FOIA. Second, special policy considerations militate against a rule compelling disclosure of records originating in these three bodies merely because such documents happen to come into the possession of an agency. Congress, we have held, should not be forced to abandon either its long-acknowledged right to keep its records secret or its ability to oversee the activities of federal agencies (a supervisory authority it exercises partly through exchanges of documents with those agencies “to facilitate their proper functioning in accordance with Congress’ originating intent”). The courts, similarly, have an important interest in controlling the dissemination of their documents to the public, yet, to facilitate the operation of the penal system, often must make those records available to departments of government covered by the Act. Finally, the importance of the confidentiality of communications between the President and his immediate advisors, combined with the likelihood that records of those exchanges will find their way into portions of the “Executive Office of the President” covered by the Act, render undesirable a per se rule that such documents are “agency records.” In the present case, by contrast, the organs of government that first compiled the records—the State Department and FBI—clearly are covered by the Act. And no policy considerations comparabie to those requiring special protection for documents emanating from Congress, the courts or the President’s personal staff are applicable. In sum, the question whether a document in the possession of one agency that originated in another constitutes an “agency record” for the purposes of the FOIA is not governed by either the terms of the statute, the legislative history or precedent. To resolve the issue, we are thus compelled to look to the general principles that underlie the Act as a whole. It has often been observed that the central purpose of the FOIA is to “open[ ] up the workings of government to public scrutiny.” One of the premises of that objective is the belief that “an informed electorate is vital to the proper operation of a democracy.” A more specific goal implicit in the foregoing principles is to give citizens access to the information on the basis of which government agencies make their decisions, thereby equipping the populace to evaluate and criticize those decisions. Each of these objectives—and particularly the last—would be best promoted by a rule that all records in an agency’s possession, whether created by the agency itself or by other bodies covered by the Act, constitute “agency records.” This conclusion is buttressed by consideration of the probable practical effect of a different rule. If records obtained from other agencies could not be reached by a FOIA request, an agency seeking to shield documents from the public could transfer the documents for safekeeping to another government department. It could thereafter decline to afford requesters access to the materials on the ground that it lacked “custody” of or “control” over the records and had no duty to retrieve them. The agency holding the documents could likewise resist disclosure on the theory that, from its perspective, the documents were not “agency records.” The net effect could be wholly to frustrate the purposes of the Act. B. Treatment of Documents Obtained From Other Agencies Our conclusion that the documents the CIA obtained from the State Department and FBI constitute “agency records” does not settle the fate of those materials. Two branches of the test delineated by the Supreme Court remain to be satisfied. The District Court should have compelled disclosure of the documents only if they were “(1) ‘improperly’; (2) ‘withheld’” by the CIA. Kissinger v. Reporters Committee, 445 U.S. at 150, 100 S.Ct. at 968. Unfortunately, the recent vintage of the Court’s three-pronged test means that there is very little case law directly concerned with the meaning of those crucial terms. Nor does the legislative history of the Act provide us much guidance. Once again, therefore, we are cast back upon the premises and objectives of the FOIA as a whole. Those considerations suggest the following definitions: “ WithholdingCertainly a categorical refusal to release documents that are in the agency’s “custody” or “control” for any reason other than those set forth in the Act’s enumerated exemptions would constitute “withholding.” Interpretive problems arise only in the context of processing or referral procedures that are likely to result eventually, but not immediately, in the release of documents. The legal status of such procedures seems to us best determined on the basis of their consequences. We conclude, in other words, that a system adopted by an agency for dealing with documents of a particular kind constitutes “withholding” of those documents if its net effect is significantly to impair the requester’s ability to obtain the records or significantly to increase the amount of time he must wait to obtain them. “Improper’’: We are persuaded by Justice Stevens’ opinion in Kissinger that sensible explication of the term “improper” in this context requires incorporation of a standard of reasonableness. Thus, “withholding” of the sort just described will be deemed “improper” unless the agency can offer a reasonable explanation for its procedure. The form such an explanation would be most likely to take would be a showing that the procedure significantly improves the quality of the process whereby the government determines whether all or portions of responsive documents are exempt from disclosure. Naturally, the more serious the resultant impediments to obtaining records or the longer the resultant delay in their release, the more substantial must be the offsetting gains offered by the agency to establish the reasonableness of its system. At the extreme, a procedure that, in practice, imposed very large burdens on requesters (eg., by compelling them to pay huge processing costs or to submit separate requests to a number of independent bodies) or that resulted in very long delays would be highly difficult to justify. A principle implicit in the foregoing definitions is that, when an agency receives a FOIA request for “agency records” in its possession, it must take responsibility for processing the request. It cannot simply refuse to act on the ground that the documents originated elsewhere. There is insufficient evidence in the record to determine what result should be reached by applying these standards to the instant case. Neither the decision below nor the affidavits on which it was based make clear the nature of the referral procedure or exactly what advantages were gained by referring each of the documents obtained from the State Department and FBI to the originating body. Nor is the extent of the accompanying impairment of McGehee’s ability to gain access to those records apparent. We therefore remand the case with instructions to afford the parties opportunity to adduce additional relevant evidence. We recognize that the standards we adopt today are not “bright line” tests. The District Court may find it difficult, given the absence of other germane precedent, to apply our holdings to the instant case even when all the facts have been ascertained. To mitigate that uncertainty, and to provide some guidance to courts confronted with similar problems in future cases, we set forth below a model for a referral system. We do not suggest that agencies are bound to accept our plan; we describe it merely to indicate one set of practices that would comport with the general principles embodied in the Act: Sample Procedure for Processing Documents Originating with Other Agencies An agency in possession of documents, responsive to a FOIA request, that it has received from another agency would forward them to the originating body (in lieu of processing them itself) if and only if they satisfied an “intent to control” test. Specifically, an intention on the part of the originating agency that it retain the authority to decide if and when materials are released to the public would have to be made evident by either (i) explicit indications to that effect on the face of each document or (ii) the circumstances surrounding the creation and transfer of the documents. To minimize the resultant delay, the referral would have to be prompt and public. In other words, as soon as the agency retrieved responsive documents, and possibly even before it \| undertook ah examination of their contents to determine whether they were exempt from disclosure, it would identify those records that originated elsewhere and, if they passed the aforementioned “intent to control” test, would immediately (i) inform the requester of the situation, (ii) notify the originating agency and, (iii) if necessary, forward to the latter copies of the relevant documents. To minimize the burden on the requester, this notification and referral would be accorded the status of a FOIA request; the person seeking information would thereby be relieved of the duty to submit a separate demand to the originating agency. The system we outline, by promoting (i) the processing by the agencies to which requests are submitted of a substantial percentage of the “other agency” records in their possession and (ii) the rapid referral to the originating bodies of the remainder, would mitigate the two most serious hardships associated with the extant automatic referral systems: the inconvenience to requesters of being compelled to assert their rights in two or more independent administrative fora and the long delays resulting from the superimposition of two or more processing sequences. If, in a given case, the “intent to control” test were satisfied but the agency to which the request was first submitted had not followed the procedures suggested above by the time litigation commenced, the district court would still have some options at its disposal that would enable it to ensure that the petitioner’s request was processed expeditiously without sacrificing the benefits accruing from a substantive review by the originating agency. The court might, for example, allow the defendant agency to submit affidavits or present witnesses from the originating agency, explaining which documents are exempt and why. Alternatively, the court could require the originating agency to appear as a party to the suit pursuant to Fed.R.Civ.P. 19(a). But these options would be makeshift arrangements; the preferable situation would be adherence to a set of review and referral guidelines of the sort described above. IV. Invocation of the “Intelligence Source” Exemption McGehee’s final allegation of error concerns the District Court’s decision to grant summary judgment on the ground that all material withheld by the agency was properly exempt from disclosure under the Act. The CIA defends the ruling below on the ground that it has established that the material in question is covered by FOIA exemptions (1) and (3). In the context of the instant case, the agency observes, those two provisions are functionally equivalent: both shield all information whose disclosure would result in revelation of the identities of “intelligence sources.” The crucial issue, as this matter appears before us, is whether the District Court was warranted in granting the CIA’s motion for summary judgment solely on the basis of affidavits submitted by the agency. Here at last we have the benefit of a well-established body of precedent. A long line of cases, decided in this circuit and elsewhere, have prescribed the standards for reviewing claims of exemptions in this procedural context: [Sjummary judgment on the basis of such agency affidavits is warranted if the affidavits describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith. Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981) (footnote omitted). The CIA in the instant case satisfies the first and second branches of this composite test. The affidavits submitted by Louis J. Dube describe in considerable detail the grounds for the exemptions claimed by the agency and the reasons why each relevant document falls into one of the categories delineated. The agency likewise passes the third component of the test; no representation made in the Dube affidavits is controverted by other evidence in the record. On the fourth and final requirement, however, the CIA stumbles. We find that the record contains significant evidence suggesting that the agency has not processed McGehee’s request in good faith. Our conclusion is founded principally on the combination of two facts: First, it took almost two and one-half years before the CIA processed McGehee’s reasonably straightforward request; indeed, the agency made no substantive response whatsoever until compelled to do so by order of the District Court. Second, the CIA failed to disclose the fact that it was using December 22, 1978, as a cut-off date. The cumulative weight of this evidence of bad faith is enough to vitiate the credit to which agency affidavits are ordinarily entitled. Accordingly, the District Court’s grant of summary judgment was erroneous. It remains to be decided what should be the proper remedy on remand. McGehee urges two solutions on us. First, he requests an instruction to the District Court to permit him to conduct discovery to ascertain the basis of the agency’s claim that disclosure of the withheld material would reveal the identities of “intelligence sources.” Second, he seeks a directive to the District Court to conduct an in camera examination of the documents in question to determine whether the invocations of exemptions were justified. With regard to the first option, the CIA argues vigorously that an explanation for its actions any fuller than that already made would itself compromise national security. Such a claim should not be disregarded lightly. Although evidence of agency bad faith, as we have shown, undermines the credibility of many of the CIA’s allegations, we are unwilling to respond by exposing the agency to McGehee’s discovery, at least if there exists any alternative method of testing the agency’s right to rely upon the statutory exemptions. We turn, therefore, to the second proposed remedy. In a recent case, we summarized the considerations that should guide a district court in deciding whether to conduct an in camera inspection of withheld records. In Allen v. CIA, 636 F.2d 1287, 1298-99 (D.C.Cir.1980), we identified the following as relevant factors: (a) the number and length of the documents at issue; (b) whether further public justification of the invocation of exemptions is inappropriate because “such justification[ ] would reveal the very information sought to be protected”; (c) the existence and strength of “evidence of bad faith on the part of the agency”; (d) whether the contents of the documents are in dispute; (e) the agency’s acquiescence in such a proceeding; and (f) the strength of the public interest in disclosure of the withheld materials (particularly applicable when the question of whether the agency Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_appel1_7_4	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the citizenship of this litigant as indicated in the opinion. UNITED STATES of America, Plaintiff-Appellee, v. Leonard O. BOWLING, Defendant-Appellant. No. 80-3684. United States Court of Appeals, Sixth Circuit. Argued Oct. 15, 1981. Decided Dec. 17, 1981. Certiorari Denied Feb. 22,1982. See 102 S.Ct. 1475. Arnold Morelli, Cincinnati, Ohio, for defendant-appellant. James C. Cissell, U. S. Atty., Nicholas J. Pantel, Asst. U. S. Atty., Cincinnati, Ohio, for plaintiff-appellee. Before MERRITT and MARTIN, Circuit Judges, and PHILLIPS, Senior Circuit Judge. PHILLIPS, Senior Circuit Judge. Leonard Bowling appeals from his conviction for interstate transportation of stolen property having a value in excess of $5,000, in violation of 18 U.S.C. §§ 2 and 2314. Bowling was indicted along with Thomas C. Lawson on October 24, 1979. He allegedly had transported into Ohio over $5,000 worth of sterling silver taken during a burglary of the residence of Mr. and Mrs. Isaac Van Meter in Maysville, Kentucky. Bowling was convicted after a jury trial and sentenced to a prison term of ten years by District Judge S. Arthur Spiegal. We affirm. I The record contains substantial evidence from which the jury could have found the defendant guilty on all the essential elements of the crime — that Bowling and Lawson burglarized the Van Meter home on November 17, 1978, stole sterling silver with a value well over $5,000, and transported it from Kentucky to Ohio for the purpose of selling it to a “fence.” According to testimony adduced at trial, the burglars drove to Maysville, Kentucky, in defendant Bowling’s car on November 17, 1978. During the daylight hours the burglars “cased” a number of houses in Maysville and selected several, among them the Van Meter home, for robbery later that night. After dark they parked Bowling’s automobile near a hospital located at the bottom of a hill, below the houses to be robbed. The burglars then climbed up the hill and proceeded to break into the houses. Using a screwdriver, they took off a door of the Van Meter home. Defendant Bowling went upstairs to watch out the front window while the other two burglars grabbed some pillowcases from a bedroom and stuffed them with valuables. Between them they took approximately 37 pounds of sterling silver. This silver was “stashed” in the woods while they robbed another house; they then returned and loaded all the stolen goods in the trunk of Bowling’s automobile. Mr. and Mrs. Van Meter were in Florida on vacation at the time of the robbery, but Mrs. Fannie Johnson, whom they employed as their maid, entered the house on the day following the burglary. She testified that the door in the kitchen had been destroyed and that in every room drawers had been forced or thrown open and their unstolen contents tossed and scattered on the floor. The silver had been taken from the kitchen and dining room, with a few stray pieces left amidst the debris on the floor. An old desk in the study and a secretary in the living room had been rifled, and the Van Meters’ papers and records thrown on the floor. The upstairs also had been ransacked. Mrs. Johnson testified that the closet had been wrecked, a file cabinet jammed and dresser drawers overturned and emptied. Mrs. Van Meter also testified at trial, positively identifying the stolen silver as her own. Testimony also established that the value of the silver was well in excess of $5,000. After they had completed the robberies, defendant and the other burglars drove back into Ohio in defendant’s car. They carried the stolen silver to Bowling’s home, where, with the assistance of Bowling’s wife, they weighed and inventoried it and verified that it was sterling. They had arranged to sell the silver to a “fence” named “Dick Dalton” for $55 a pound. “Dick Dalton” was the alias of an undercover FBI special agent named Richard Dorton. On November 21,1978, Special Agent Dorton went to Bowling’s residence and paid Bowling $752 in cash for his share of the stolen sterling silver. Bowling left Ohio for Florida in September 1979, and the indictment against him in the present case was filed on October 24, 1979. He was arrested in Florida on May 23, 1980. On his person at the time of his arrest was a Florida driver’s license with his picture, issued in the name of Chester G. Hornbeck, as well as a social security card and an Ohio birth certificate bearing the same fictitious name. II Special Agent Dorton’s role as a “fence” in this case was part of a larger FBI investigation of an interstate burglary ring based in the Cincinnati area and operating in Ohio, Wisconsin, Virginia, Tennessee, Kentucky and Illinois. In late 1977, Robert Miller, a paid FBI informant, infiltrated the ring. This court on two prior occasions upheld convictions arising out of the investigative work of Dorton and Miller. See United States v. Reed, 647 F.2d 678 (6th Cir. 1981); United States v. Brown, 635 F.2d 1207 (6th Cir. 1980). In Reed, supra, we described the arrangement between Dorton and Miller: [T]he government’s prosecution of the substantive offenses proceeded on the theory that the defendants were participants in a burglary and fencing operation which centered in Middletown, Ohio. The operation was broken when a convicted Middletown burglar, one Robert Miller, agreed to cooperate with federal authorities in exchange for possible lenient treatment on a number of outstanding charges against him. FBI special agent Richard Dorton, using the name Dick Dalton and posing as a Floridian dealer in stolen property, was brought in as an undercover agent to work with Miller and infiltrate the Middletown burglary and fencing ring. 647 F.2d at 680. In the instant case, Miller, in cooperation with the FBI, won the confidence of Bowling and Lawson and was invited to accompany them on their burglaries. He entered the Van Meter home with Bowling and Lawson and assisted in its burglary. The record contains testimony to the effect that Miller was asked by Bowling and Lawson to suggest a place to go to on their burglarizing expedition, and Miller mentioned there were “a lot of nice houses” in Maysville, Kentucky. Bowling adopted this suggestion because he had seen the houses on top of the hill in Maysville when driving to and from his job every day. Bowling contends in his brief that Miller’s behavior and the Government’s use of his cooperation during the investigation of Bowling was conduct “so outrageous that due process principles bar his [Bowling’s] conviction for interstate transportation of stolen property.” We hold that Bowling has not shown that the challenged Government conduct amounts to “a denial of fundamental fairness, shocking to the universal sense of justice,” Betts v. Brady, 361 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595 (1942); Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 303, 4 L.Ed.2d 268 (1960), which would then be a violation of the Due Process Clause. See also United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973). Our conclusion is consistent with our previous decision, United States v. Brown, supra, involving similar alleged improper conduct of the same Government informant, Robert Miller. In that decision we said: The facts of this case involve the government’s investigation, designated by the code name HAMFAT, of an interstate burglary ring. The ring operated, with a base in the Cincinnati area, in Wisconsin, Virginia, Tennessee, Kentucky and Illinois. In late 1977, Robert Miller, a paid FBI informant, infiltrated the interstate burglary ring. His job was to identify the individuals involved in the burglary ring, and to identify the “fences” who purchased the property stolen by the ring. In addition, Miller was to help Richard Dorton, an undercover FBI agent posing as an out-of-state buyer of stolen property, to gain the confidence of the ring. Miller remained on the job, reporting to the FBI daily, for almost seventeen months. ****** Thus, we begin our analysis with the basic proposition that the use of paid informants to infiltrate criminal enterprises is a “recognized and permissible means of investigation.” Russell, supra, 411 U.S. at 432, 93 S.Ct. at 1643. See also, eg., United States v. McQuin, 612 F.2d 1193, 1195 (9th Cir.), cert. denied, 445 U.S. 954, 100 S.Ct. 1607, 63 L.Ed.2d 791 (1980) (infiltration of criminal ranks by government long recognized as permissible); United States v. Twigg, 588 F.2d 373, 380 (3rd Cir. 1978) (infiltration of criminal operations is an “accepted and necessary practice”); and United States v. Prairie, 572 F.2d 1316, 1319 (9th Cir. 1978), and cases cited therein. This proposition remains true even though the informant or government agent engages in some criminal activity or supplies something of value to the criminal enterprise. The informant or government agent must be allowed to further the interests of the criminal enterprise in some manner to gain the confidence of the criminal elements with which he must deal. See Russell, supra, at 432, 93 S.Ct. at 1643; McQuin, supra, 612 F.2d at 1196; United States v. Corcione, 592 F.2d 111, 114-15 (2d Cir.), cert. denied, 440 U.S. 975, 99 S.Ct. 1545, 59 L.Ed.2d 794 (1979). 635 F.2d at 1208-09, 1212-13. In the context of the facts of the present case, the Government did not instigate the burglary of the Van Meter home on November 17. Miller, the Government informant, did not organize the burglary trip in question or even select the date for the trip. Miller did not recruit either Bowling or Lawson to burglarize homes. His activities were consistent with the necessity of keeping his credibility established with the burglars in order to maintain his effectiveness as an informer. Applying to the present case the factors discussed in Brown, supra, 635 F.2d at 1211-14, the Government did not initiate the criminal activity here in question. To the contrary, it merely infiltrated a preexisting criminal enterprise. Robert Miller did not direct or control the activities of the criminal enterprise. To the contrary he merely acquiesced in its criminality. We adhere to our holding in Brown: On the facts presented by this record, the court finds no violation of due process. Although the individual burglars and fences might be detectable without infiltration, certainly the use of this investigative technique facilitated a more expeditious and thorough investigation. The burglary ring under investigation, like many drug rings, would have been extremely difficult to thwart without the use of Miller as an undercover agent. There is no showing of any kind that Miller, or any of the FBI agents involved in this case, instigated any criminal activity. The burglary ring was fully operative when Miller “joined” it. Even after Miller joined the ring, it appears that his participation in its criminal endeavors was limited to following the members’ instructions. Miller was instructed by the FBI to participate in criminal activity only if failure to do so would endanger his life. Nothing in the record suggests that he departed from these instructions. Further, once the government “fence” was taken into the confidence of the ring, Miller's involvement was terminated. We find that, in its use of Miller, the government in no way increased the number of burglaries, or the likelihood of their success. Miller reported to the FBI on a daily basis. He revealed the location of burglaries and sometimes provided an inventory of the things taken, thus facilitating the recovery of stolen items such as those that form the basis of Brown’s conviction. Although it did not materialize, Miller’s presence also provided the FBI with a possible source of advance notice of burglaries. Miller also could have prevented personal injury to surprised occupants if the need had arisen. The only effect Miller’s presence had on the activities of the ring was that the FBI was informed of the illegal activity in which the ring was engaged. Nothing in the facts convinces us in the least that Miller’s conduct was “shocking to the universal sense of justice.” Russell, supra, 411 U.S. at 432, 93 S.Ct. at 1643. 635 F.2d at 1213-14. III Bowling contends that the district judge erred in overruling his motion to immunize Thomas Lawson as a witness in this case.. In United States v. Lenz, 616 F.2d 960 (6th Cir.), cert. denied, 447 U.S. 929, 100 S.Ct. 3028, 65 L.Ed.2d 1124 (1980), this court held that defendants have no compulsory process right to have their favorable witnesses immunized. The decision of the district court in refusing to grant immunity to Lawson is supported fully by Lenz. IV Bowling asserts numerous other grounds for reversal of his conviction, including: (1) That the district court erred in permitting the introduction of evidence concerning Bowling’s flight and concealment in Florida; (2) That the court erred in admitting into evidence without proper foundation and permitting the jury to consider a tape recording containing material omissions and ambiguities; (3) That the district court erred in overruling defendant’s objections and his motion for a mistrial based on testimony regarding offenses not described in the indictment; and (4) That the district judge was guilty of reversible error in his charge to the jury. Upon consideration, the court concludes that all the grounds for reversal asserted by appellant are without merit. The judgment of conviction is affirmed. The court expresses appreciation to Mr. Arnold Morelli of the Cincinnati bar for his services as court-appointed counsel for Bowling in the district court and on this appeal. . 18 U.S.C. § 2314 provides as follows: Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, df the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud; * * * * * * Shall be fined not more than $10,000 or imprisoned not more than ten years, or both. 18 U.S.C. § 2 is as follows: (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces of procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal. June 25, 1948, c. 645, 62 Stat. 684; Oct. 31, 1951, c. 655, § 17b, 65 Stat. 717. 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 citizenship of this litigant as indicated in the opinion? A. not ascertained B. US citizen C. alien Answer:
songer_bank_r2	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine whether or not the second listed respondent is bankrupt. If there is no indication of whether or not the respondent is bankrupt, the respondent is presumed to be not bankrupt. SIERRA CLUB et al., Plaintiffs-Appellants, v. Robert F. FROEHLKE, Secretary of the Army, et al., Defendants-Appellees, and MUand and Doris Slayback et al., Intervenors-Appellees. No. 72-1833. United States Court of Appeals, Seventh Circuit. Argued Feb. 21, 1973. Decided Oct. 2, 1973. Frank M. Tuerkheimer, Madison, Wis., for plaintiffs-appellants. Kent Frizzell, Asst. Atty. Gen., Terrence L. O’Brien, Atty., Dept, of Justice, Washington, D. C., John O. Olson, U. S. Atty., Madison, Wis., David E. Beck-with, John S. Skilton, Milwaukee, Wis., for defendants-appellees. Before CUMMINGS, Circuit Judge, GRANT, Senior District Judge, and GORDON, District Judge. Senior District Judge Robert A. Grant of the Northern District of Indiana is sitting by designation. District Judge Myron L. Gordon of the Eastern District of Wisconsin is sitting by designation. GRANT, Senior District Judge. The primary issue raised by this appeal is whether an environmental impact statement prepared by the Corps of Engineers concerning a flood control dam project on the Kickapoo River, Wisconsin, complied with the mandates of the National Environmental Policy Act of 1969 (hereinafter NEPA). A secondary question is whether the failure of the Corps of Engineers to request and obtain local assurances of participation from two downstream^ communities voided the project. The district court answered the former question in the affirmative and the latter in the negative. We affirm. In 1962 Congress authorized the construction of a flood control dam on the Kickapoo River, a free-flowing river with a history of annual destructive floods, located in the southwestern section of Wisconsin. The final design for the dam specified a height of 103 feet with an over-all length of 3,960 feet. The dam would create a reservoir covering 1,780 acres and result in the inundation of approximately 12 miles of the river between the communities of La-Farge and Ontario. This section of the river is popular with canoeists and noted for its picturesque bluffs and sandstone ledges containing rare floral plants. The project also involved supplemental flood protection levees at two small downstream communities, for which both communities were required to make cost-sharing commitments. The Corps had initially prepared a draft environmental impact statement in November of 1970. After publication of the statement and review by state and local agencies, environmental groups, etc., a final environmental impact statement was prepared and forwarded to the Council on Environmental Quality on April 18, 1972. As correctly noted by the Court below, the statement is a voluminous document, consisting of 78 pages of text and 400-500 pages of plates and appendices. The EIS is organized under eight headings which correspond closely to the subject matter required under § 4332(2) (C), NEPA: Project Description; Environmental Setting without the Project; Environmental Impact of the Proposed Action; Adverse Environmental Effects which Cannot be Avoided Should the Project be Implemented; Alternatives to the Proposed Action; Short-Term Uses of Man’s Environment. as Compared to Maintenance and Enhancement of Long-Term Productivity; Irreversible or Irretrievable Commitments; Coordination with other Agencies; and Conclusion. Each of the above subjects is divided into numerous subdivisions. All told, fourteen alternatives for flood control, fish and wildlife management, and recreation are considered in the report. Comments on the final draft were requested from 20 federal and state agencies and officials and private organizations and individuals (including plaintiff herein, Sierra Club, John Muir Chapter). Comments were received and incorporated in the EIS from fifteen persons and organizations who responded. Sierra Club v. Froehlke, 345 F.Supp. 440, 443 (W.D.Wis.1972). Plaintiffs filed suit in the district court with four counts of their complaint alleging, in effect, that the Corps’ environmental impact statement was inadequate in violation of § 102 of the National Environmental Policy Act and, therefore, that continuation of the project was enjoinable under the Administrative Procedure Act. A fifth claim alleged that the project was enjoinable under the Administrative Procedure Act because the requests for local assurances of participation on the project had not been made and received as required by law. Plaintiffs filed a motion for a preliminary injunction with supporting affidavits and legal memoranda. Defendants and intervenors filed counter-affidavits and memoranda of law. The motion was denied by the trial court on 2 June 1972. Ibid. Defendants and inter-venors then filed a motion for summary judgment which was granted by the court on 24 July 1972, the court finding thát the “environmental statement provided adequate notice to all. concerned persons, agencies, and organizations, of the probable environmental consequences of the proposed project.” App. at 50a. Plaintiffs argue that the statement is inadequate in that the Corps failed to consider useful existing studies, misstated water quality problems, failed to conduct vegetation studies with particular reference to the unique flora of the river’s cliffs which would be inundated by the dam-lake, overstated the beneficial effects of the project, understated the detrimental effects and failed to give proper consideration to available alternatives. Plaintiffs further argue that the district court utilized the wrong test or standard in determining the sufficiency of the statement. They contend that the court’s “notice of problems” test is improper. The Corps argues that the impact statement objectively meets the requirements of NEPA noting that the statement treats the five specific subject areas set forth in § 4332(2) (C), NEPA. They contend that plaintiffs’ real point is that the agency decision-makers did not accord some factors the weight which plaintiffs would assign them. In response to plaintiffs’ contention that the' statement demonstrates bias and partiality by the Corps rather than objectivity, the Corps argues that it “is obviously not required to give the same weight to plaintiffs’ concern as plaintiffs do,” Hanly v. Mitchell, 460 F. 2d 640, 648 (2nd Cir. 1972), cert, denied, 409 U.S. 990, 93 S.Ct. 313, 34 L. Ed.2d 256, and that some bias is even to be expected, citing Environmental Defense Fund v. Corps of Eng., U.S. Army, 470 F.2d 289 (8th Cir. 1972), cert, denied, 412 U.S. 931, 93 S.Ct. 2749, 37 L.Ed.2d 160 (1973). The Eighth Circuit Court of Appeals stated in that case as follows: . NEPA assumes as inevitable an institutional bias within an agency proposing a project and erects the procedural requirements of § 102 to insure that “there is no way [the decision-maker] can fail to note the facts and understand the very serious arguments advanced by the plaintiffs if he carefully reviews the entire environmental impact statement.” [Environmental Defense Fund v. Corps of Eng., U. S. Army,] 342 F.Supp. [1211] at 1218. An institutional bias will most often be found when the project has been partially completed. Id. at 295. The court concluded that “[T]he test of compliance with § 102, then, is one of good faith objectivity rather than subjective impartiality.” Id. at 296. Federal agencies are required to demonstrate objectivity in the treatment and consideration of the environmental consequences of a particular project, Environmental Defense Fund, supra, 470 F.2d at 295; Environmental Defense Fund v. Corps of Eng., U. S. Army, 348 F.Supp. 916, 927 (N.D.Miss. 1972). The detailed statement of the environmental consequences required by § 102 “must be sufficiently detailed to allow a responsible executive to arrive at a reasonably accurate decision regarding the environmental benefits and detriments to be expected from program implementation.” Environmental Defense Fund v. Hardin, 325 F.Supp. 1401, 1403-1404 (D.D.C.1971). Stated slightly differently, the statement must provide “a record upon which a decision-maker could arrive at an informed decision.” Environmental Defense Fund v. Corps of Eng., U. S. Army, 342 F.Supp. 1211, 1217 (E.D.Ark.1972), aff’d (8th Cir.), 470 F.2d 289. In the instant case, plaintiffs argue that Judge Doyle’s finding “that the agency at least recognizes and puts interested persons on notice of problems which exist in these areas [of siltation, water quality, vegetation and identification and discussion of alternatives],” 345 F.Supp. at 444, constitutes a “notice of problems” test which is less demanding than a requirement that the environmental impact statement “be a record upon which a decision-maker could arrive at an informed decision.” 342 F. Supp. at 1217. If this were the only finding made by the district court, we might be inclined to agree with plaintiffs’ argument. However, the court also found that plaintiffs had not shown a sufficient probability of success on the merits as to their “contention that the statement in its present form does not constitute ‘full disclosure’ ” of the environmental consequences of the project “as required by NEPA.” 345 F.Supp. at 444. The court also concluded that plaintiffs had “failed to show a sufficient chance of success on the merits of a contention that the present statement is not a record upon which a decision-maker could make an informed decision.” Id. at 445. These contentions were later decided adversely to the plaintiffs upon the basis of the entire record. App. at 50a. With reference to plaintiffs’ contention that the Corps failed to conduct certain studies in addition to those which were conducted, the district court correctly noted that NEPA does not require that every conceivable study be performed and that each problem be documented from every angle to explore its every potential for good or ill. Rather, what is required is that officials and agencies take a “hard look” at environmental consequences. Id. at 444. Or as observed in Environmental Defense Fund, supra, 342 F.Supp. at 1217: It is doubtful that any agency, however objective, however sincere, however well-staffed, and however well-financed, could come up with a perfect environmental impact statement in connection with any major project. Further studies, evaluations and analyses by experts are almost certain to reveal inadequacies or deficiencies. We concede that a requirement that the agency take a “hard look” at the environmental consequences, like the “notice of problems” test, might be, in and of itself, “a singularly inappropriate test for reviewing the adequacy of an impact statement,” as suggested by the plaintiffs. Nevertheless, the various statements and findings made by the district court in the case at bar demonstrate an awareness by the court of several standards of review utilized by other courts. We are inclined to agree with the intervenors that any differences in the prescribed tests and standards are semantic and that each of them serves as a means of ensuring that an agency’s impact statement will “alert the public, other interested agencies, the Council on Environmental Quality, the President, and the Congress of possible environmental consequences of proposed agency action.” In any event, we interpret the district court’s opinions as a finding that the Corps objectively and comprehensively considered the environmental consequences of the proposed project. A second, and perhaps more important, test or standard of review contended for by the plaintiffs is that the district courts have an obligation to review substantive agency decisions on the merits to determine if they are in accord with NEPA. Several courts have recently held that such an obligation exists. As stated by the Eighth Circuit Court of Appeals, The unequivocal intent of NEPA is to require agencies to consider and give effect to the environmental goals set forth in the Act, not just to file detailed impact studies which will fill governmental archives. The application of the substantive principles of NEPA is to be made by the agency through a “careful and informed decisionmaking process.” Calvert Cliffs’ Coordinating Committee v. U. S. Atomic Energy Commission, supra [146 U.S.App.D.C. 33] 449 F.2d [1109] at 1115. The agency must give environmental factors consideration along with economic and technical factors. “To ‘consider’ the former ‘along with’ the latter must involve a balancing process.” Id. at 1113. Given an agency obligation to carry out the substantive requirements of the Act, we believe that courts have an obligation to review substantive agency decisions on the merits. Whether we look to common law or the Administrative Procedure Act, absent “legislative guidance as to re-viewability, an administrative determination affecting legal rights is reviewable unless some special reason appears for not reviewing.” K. Davis, 4 Administrative Law Treatise 18, 25 (1958). Here, important legal rights are affected. NEPA is silent as to judicial review, and no special reasons appear for not reviewing the decision of the agency. To the contrary, the prospect of substantive review should improve the quality of agency decisions and should make it more likely that the broad purposes of NEPA will be realized. Environmental Defense Fund, supra, 470 F.2d at 298-299. As to the specific standard of review to be applied, the Court held that The standard of review to be applied here and in other similar cases is set forth in Citizens to Preserve Overton Park v. Volpe, supra, 401 U. S. [402] at 416, 91 S.Ct. [814] at 824, [28 L.Ed.2d 77]. The reviewing court must first determine whether the agency acted within the scope of its authority, and next whether the decision reached was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. In making the latter determination, the court must decide if the agency failed to consider all relevant factors in reaching its decision, or if the decision itself represented a clear error in judgment. Where NEPA is involved, the reviewing court must first determine if the agency reached its decision after a full, good faith consideration and balancing of environmental factors. The court must then determine, according to the standards set forth in §§ 101(b) and 102(1) of the Act, whether “the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental values.” Calvert Cliffs’ Coordinating Committee v. U.S. Atomic Energy Commission, supra, 449 F.2d at 1115. Id. at 300. The Fourth Circuit has expressly adopted the holding of the Eighth Circuit. Conservation Council of North Carolina v. Froehlke, 473 F.2d 664, 665 (4th Cir. 1973). The Fifth Circuit and the District of Columbia Circuit appear to be in accord. Save Our Ten Acres v. Kreger, 472 F.2d 463, 466 (5th Cir. 1973); Calvert Cliffs’ Coordinating Committee v. U. S. Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1115 (1971). While this court has never considered the test or standard to be utilized in determining whether an environmental impact statement complies with NEPA and whether district courts have an obligation to review substantive agency decisions on the merits, the court has had an opportunity to discuss the importance of the National Environmental Policy Act, in particular, the requirements of Sections 101 and 102: Through the enactment of these procedural requirements the Congress has not only permitted but has compelled the responsible federal agencies to take environmental values into account. . . . Not only must the environmental consequences of a particular action be considered, but Section 102 requires also that these consequences be weighed and balanced against other considerations, such as financial or social, which may be involved. The environmental impact statement required by Section 102 is designed to insure that this balancing analysis is given its fullest effect. Pro forma compliance with the substantive guidelines of Section 101 simply will not suffice. Section 102 of NEPA provides that its procedures be implemented and carried out “to the fullest extent possible.” Scherr v. Volpe, 466 F.2d 1027, 1031 (7th Cir. 1972). In light of these statements, we feel compelled to hold that an agency’s decision should be subjected to a review on the merits to determine if it is in accord with the substantive requirements of NEPA. The review should be limited to determining whether the agency’s decision is arbitrary or capricious. “The court is not empowered to substitute its judgment for that of the agency.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 77 (1971). In the instant case, the district court did not conduct a review on the merits. Although a remand would be the normal procedure, we do not believe a remand is required. After reviewing the environmental impact statement prepared by the Corps, we are convinced that the Corps “reached its decision after a fair, good faith consideration and balancing of environmental factors,” and that its decision is neither arbitrary nor capricious. Plaintiffs also claim that continuation with the Kickapoo project is unlawful under the Flood Control Act of 1962 which initially authorized the project. Section 201 of that Act provides that “the authorization for any flood control project herein adopted requiring local cooperation shall expire five years from the date on which local interests are notified in writing ... of the requirements of local cooperation, unless said interests shall within said time furnish assurances satisfactory to the Secretary of the Army that the required cooperation will be furnished.” Section 203 authorizes a number of projects, one of which is “[T]he project for the Kickapoo River . . . substantially as recommended by the Chief of Engineers in House Document Numbered 557, Eighty-seventh Congress. . . .” Plaintiffs specifically argue that the failure of the Corps to request and obtain local assurances of participation, in the form of cost-sharing commitments, voids the project and renders it enjoinable under the Administrative Procedure Act as not “in accordance with law” [5 U.S.C. § 706(2)(A)], “in excess of statutory . . . authority” [Section 706(2)(C)], and “without observation of procedure required by law” [Section 706(2)(D)]. During oral arguments this Court raised the question as to whether plaintiffs had standing to raise the issues presented by this claim for relief. Plaintiffs and intervenors were permitted to file supplemental briefs on the standing issue. Both parties agree that the two-pronged test enunciated by the Supreme Court in Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L. Ed.2d 184 (1970), is controlling: The first question is whether the plaintiff alleges that the challenged action has caused him injury in fact, economic or otherwise. * * * * * * The question of standing concerns . . . the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. Id. at 152-153, 90 S.Ct. at 829-830. Plaintiffs argue that they satisfy both requirements. They note that their interests are two-fold: some of the individual plaintiffs, and members of the plaintiff associations, canoe on a portion of the Kickapoo River which would be inundated if the proposed project is completed; others own land which will be condemned if the project continues. Thus, they suggest the injury in fact requirement is clearly satisfied. See Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Plaintiffs stress, however, that it is the continuation and completion of the project without obtaining the necessary local assurances which is causing them injury in fact and not the per se failure of the Corps to obtain local assurances as required by statute. With reference to the zone of interests test, plaintiffs argue that their interests, though reflecting “aesthetic, con-servational, and recreational” values, are definitely within the zone of interests to be protected or regulated by the statute in question. In fact, they contend that the regulation of their interests is total since implementation of the project terminates their use of the inundated part of the river and will result in the condemnation of their land. At a minimum, we cannot accept plaintiffs’ analysis of the zone of interests test. While we recognize that “[W]here statutes are concerned, the trend is toward enlargement of the class of people who may protest administrative action,” we fail to understand how plaintiffs’ interests constitute interests protected or regulated by the statutory proviso requiring local assurances of participation for the construction of the downstream levees. The obvious interest sought to be protected or regulated by the proviso is a Congressional interest in ensuring that local communities who are to receive a direct benefit from the local protection levees, share in the cost of such works. As noted by the interve-nors, the interests of neither group of plaintiffs coincide, geographically or otherwise, with the local protection levees and the interest expressed in the statutory proviso. Both the interests of the canoeing plaintiffs and the property-owning plaintiffs arose because of the proposed construction of the dam rather than the downstream local protection levees. Nor does the fact that plaintiffs have standing to raise the NEPA claims obviate any standing requirement for their “local assurances” claim under § 201 of the Flood Control Act of 1962. Plaintiffs interpret the following statement in Sierra Club v. Morton, supra, 405 U. S. at 737, 92 S.Ct. at 1367, as dispensing with the necessity of demonstrating standing as to the additional issue: [T]he fact of economic injury is what gives a person standing to seek judicial review under the statute, but once review is properly invoked, that person may argue the public interest in support of his claim that the agency has failed to comply with its statutory mandate. Although we- believe that plaintiffs are misinterpreting the statement, suffice to say that it is clear that they cannot establish any economic injury attributable to the construction of the local protection levees, with or without the required local assurances. Plaintiffs’ injury in fact, like the interests they seek to protect, relates to the construction of the dam and not to the local protection levees. We realize that by our treatment of the standing issue, we have inadvertently decided, adversely to plaintiffs’ claim that the failure of the Corps to obtain the local assurances voids the entire project. Indeed, even if we were to assume plaintiffs had standing to assert the claim, we are convinced that the receipt of the local assurances from the communities of Gays Mills and Soldiers Grove to participate in the cost of construction and operation of the local protection levees was not intended by Congress as a condition precedent to the construction of the dam and reservoir. The judgment of the district court is affirmed. . 42 U.S.C. § 4321 et seq. . 76 Stat. 1180, 1190 (1962). . The basic policies and goals of NEPA are contained in Section 101. (42 U.S.C. § 4331). Section 102 (42 U.S.C. § 4332) provides the methods by which the environmental goals -will hopefully be achieved. The latter section provides, in pertinent part, as follows: The Congress authorizes and directs that, to the fullest extent possible: ... (2) all agencies of the Federal Government shall (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, [United States Code] and shall accompany the proposal through the existing agency review processes; . Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 838 (1972). . Sierra Club, supra, 345 F.Supp. 444. . Environmental Defense Fund, supra, 470 F.2d at 301. . Id. at 300. . The interest protected or regulated by the statute “at times, may reflect ‘aesthetic, conservational and recreational’ as well as economic values.” Data Processing Service, supra, 397 U.S. at 154, 90 S.Ct. at 830. . Iiid. Question: Is the second listed respondent bankrupt? A. Yes B. No Answer:
sc_certreason	J	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. IN RE MURCHISON et al. No. 405. Argued April 20, 1955. Decided May 16, 1955. William, L. Colden argued the cause for petitioners. With him on the brief were James A. Cobb, George E. C. Hayes and Charles W. Jones. Edmund E. Shepherd, Solicitor General, argued the cause for the State of Michigan, respondent. With him on the brief were Thomas M. Kavanagh, Attorney General, and Daniel J. O’Hara, Assistant Attorney General. Mr. Justice Black delivered the opinion of the Court. Michigan law authorizes any judge of its courts of record to act as a so-called “one-man grand jury.” He can compel witnesses to appear before him in secret to testify about suspected crimes. We have previously held that such a Michigan “judge-grand jury” cannot consistently with the Due Process Clause of the Fourteenth Amendment summarily convict a witness of contempt for conduct in the secret hearings. In re Oliver, 333 U. S. 257. We held that before such a conviction could stand, due process requires as a minimum that an accused be given a public trial after reasonable notice of the charges, have a right to examine witnesses against him, call witnesses on his own behalf, and be represented by counsel. The question now before us is whether a contempt proceeding conducted in accordance with these standards complies with the due process requirement of an impartial tribunal where the same judge presiding at the contempt hearing had also served as the “one-man grand jury” out of which the contempt charges arose. This does not involve, of course, the long-exercised power of courts summarily to punish certain conduct occurring in open court. The petitioners, Murchison and White, were called as witnesses before a “one-man judge-grand jury.” Murchison, a Detroit policeman, was interrogated at length in the judge’s secret hearings where questions were asked him about suspected gambling in Detroit and bribery of policemen. His answers left the judge persuaded that he had committed perjury, particularly in view of other evidence before the “judge-grand jury.” The judge then charged Murchison with perjury and ordered him to appear and show cause why he should not be punished for criminal contempt. White, the other petitioner, was also summoned to appear as a witness in the same “one-man grand jury” hearing. Asked numerous questions about gambling and bribery, he refused to answer on the ground that he was entitled under Michigan law to have counsel present with him. The “judge-grand jury” charged White with contempt and ordered him to appear and show cause. The judge who had been the “grand jury” then tried both petitioners in open court, convicted and sentenced them for contempt. Petitioners objected to being tried for contempt by this particular judge for a number of reasons including: (1) Michigan law expressly provides that a judge conducting a “one-man grand jury” inquiry will be disqualified from hearing or trying any case arising from his inquiry or from hearing any motion to dismiss or quash any complaint or indictment growing out of it, or from hearing any charge of contempt “except alleged contempt for neglect or refusal to appear in response to a summons or subpoena”; (2) trial before the judge who was at the same time the complainant, indicter and prosecutor, constituted a denial of the fair and impartial trial required by the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. The trial judge answered the first challenge by holding that the state statute barring him from trying the contempt cases violated the Michigan Constitution on the ground that it would deprive a judge of inherent power to punish contempt. This interpretation of the Michigan Constitution is binding here. As to the second challenge the trial judge held that due process did not forbid him to try the contempt charges. He also rejected other constitutional contentions made by petitioners. The State Supreme Court sustained all the trial judge’s holdings and affirmed. Importance of the federal constitutional questions raised caused us to grant certiorari. The view we take makes it unnecessary for us to consider or decide any of those questions except the due process challenge to trial by the judge who had conducted the secret “one-man grand jury” proceedings. A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered. This Court has said, however, that “every procedure which would offer a possible temptation to the average man as a judge . . . not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.” Tumey v. Ohio, 273 U. S. 510, 532. Such a stringent rule may sometimes bar tria] by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way “justice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 14. It would be very strange if our system of law permitted a judge to act as a grand jury and then try the very persons accused as a result of his investigations. Perhaps no State has ever forced a defendant to accept grand jurors as proper trial jurors to pass on charges growing out of their hearings. A single “judge-grand jury” is even more a part of the accusatory process than an ordinary lay grand juror. Having been a part of that process a judge cannot be, in the very nature of things, wholly disinterested in the conviction or acquittal of those accused. While he would not likely have all the zeal of a prosecutor, it can certainly not be said that he would have none of that zeal. Fair trials are too important a part of our free society to let prosecuting judges be trial judges of the charges they prefer. It is true that contempt committed in a trial courtroom can under some circumstances be punished summarily by the trial judge. See Cooke v. United States, 267 U. S. 517, 539. But adjudication by a trial judge of a contempt committed in his immediate presence in open court cannot be likened to the proceedings here. For we held in the Oliver case that a person charged with contempt before a “one-man grand jury” could not be summarily tried. As a practical matter it is difficult if not impossible for a judge to free himself from the influence of what took place in his “grand-jury” secret session. His recollection of that is likely to weigh far more heavily with him than any testimony given in the open hearings. That it sometimes does is illustrated by an incident which occurred in White’s case. In finding White guilty of contempt the trial judge said, “there is one thing the record does not show, and that was Mr. White’s attitude, and I must say that his attitude was almost insolent in the manner in which he answered questions and his attitude upon the witness stand. . . . Not only was the personal attitude insolent, but it was defiant, and I want to put that on the record.” In answer to defense counsel’s motion to strike these statements because they were not part of the original record the judge said, “That is something . . . that wouldn’t appear on the record, but it would be very evident to the court.” Thus the judge whom due process requires to be impartial in weighing the evidence presented before him, called on his own personal knowledge and impression of what had occurred in the grand jury room and his judgment was based in part on this impression, the accuracy of which could not be tested by adequate cross-examination. This incident also shows that the judge was doubtless more familiar with the facts and circumstances in which the charges were rooted than was any other witness. There were no public witnesses upon whom petitioners could call to give disinterested testimony concerning what took place in the secret chambers of the judge. If there had been they might have been able to refute the judge’s statement about White’s insolence. Moreover, as shown by the judge’s statement here, a “judge-grand jury” might himself many times be a very material witness in a later trial for contempt. If the charge should be heard before that judge, the result would be either that the defendant must be deprived of examining or cross-examining him or else there would be the spectacle of the trial judge presenting testimony upon which he must finally pass in determining the guilt or innocence of the defendant. In either event the State would have the benefit of the judge’s personal knowledge while the accused would be denied an effective opportunity to cross-examine. The right of a defendant to examine and cross-examine witnesses is too essential to a fair trial to have that right jeopardized in such way. We hold that it was a violation of due process for the “judge-grand jury” to try these petitioners, and it was therefore error for the Supreme Court of Michigan to uphold the convictions. The judgments are reversed and the causes are remanded for proceedings not inconsistent with this opinion. „ , * „ , Reversed. Mich. Stat. Ann., 1954, §§ 28.943, 28.944. Sacher v. United States, 343 U. S. 1; Cooke v. United States, 267 U. S. 517, 539; Ex parte Savin, 131 U. S. 267. See also In re Oliver, 333 U. S. 257, 273-278. The contempt charge signed by the judge reads in part as follows: “It therefore appearing . . . that the said Patrolman Lee Roy Murchinson [sic] has been guilty of wilfull and corrupt perjury, which perjury has an obstructive effect upon the judicial inquiry being conducted by this court and the said Patrolman Lee Roy Murchinson [sic] obstructed the judicial function of the court by wilfully giving false answers as aforesaid, and did also tend to impair the respect for the authority of the court, all of which perjury and false answers given by the said witness aforesaid was committed during the sitting of, in the presence and view of this court and constitutes criminal contempt; “It is therefore ordered that the said Patrolman Lee Roy Murchin-son [sic] appear before this court on the tenth day of May, 1954, at 10:00 o’clock in the forenoon and show cause why he should not be punished for criminal contempt of this court because of his aforesaid acts.” In re White, 340 Mich. 140, 65 N. W. 2d 296; In re Murchison, 340 Mich. 151, 65 N. W. 2d 301. 348 U. S. 894. That we lay aside certain other federal constitutional challenges by petitioners is not to be taken as any intimation that we have passed on them one way or another. See, e. g., Note, 50 L. R. A. (N. S.) 933, 953-954, 970-971. Apparently the trial judge here did consider himself a part of the prosecution. In passing on a request by Murchison’s counsel for a two-day postponement of the contempt trial the judge said, “There are two points that suggest themselves to me. “One is that if the respondent is going to claim that he was in Shrewsberry, Ontario, Canada, on March 9, 1954, that we ought to be furnished with information so that we could between now and two days from now, which I am going to give you, we could do some checking and investigating ourselves.” (Emphasis supplied.) Because of the judge’s dual position the view he took of his function is not at all surprising. See, e. g., Queen v. London County Council, [1892] 1 Q. B. 190; Wisconsin ex rel. Getchel v. Bradish, 95 Wis. 205, 70 N. W. 172. See Hale v. Wyatt, 78 N. H. 214, 98 A. 379. See also, Witnesses— Competency — Competency of a Presiding Judge as Witness, 28 Harv. L. Rev. 115. 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_state	56	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". STEVENS BROS. FOUNDATION, INC., Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 17332. United States Court oí Appeals Eighth Circuit. Nov. 15, 1963. Frank J. Hammond, of Briggs & Morgan, St. Paul, Minn., John M. Sullivan and John J. King, St. Paul, Minn., on the brief, for petitioner. Ralph A. Muoio, Attorney, Dept, of Justice, Washington, D. C., Louis F. Oberdorfer, Asst. Atty. Gen., Washington, D. C., and Meyer Rothwacks, Attorney, Dept, of Justice, Wash., D. C., on the brief, for respondent. Before SANBORN and MATTHES, Circuit Judges, and ROBINSON, District Judge. MATTHES, Circuit Judge. 'This case is before us on petition to review a decision of the Tax Court which sustained, to a large extent, the Commissioner’s assessment of deficiencies in corporate income and personal holding company taxes, and penalties against Stevens Bros. Foundation, Inc. (Foundation). The questions on review are whether the Tax Court erred in holding that: (1) Foundation had — - (a) not been operated exclusively for charitable purposes during its taxable years 1948 through 1955; (b) unreasonably accumulated income during its taxable years 1952 through 1958; and therefore that Foundation was not exempt from taxation as a charitable organization during its taxable years 1948 through 1958. (2) The Commissioner did not abuse.his discretion in retroactively revoking a 1947 ruling exempting Foundation from •taxation as a charitable organization. (3) Foundation was a personal holding company for the taxable years 1952 through 1954, and 1956 through 1958. (4) Foundation was subject to additions to tax for failure to file corporation income tax returns for its taxable years 1948 through 1954, and for failure to file personal holding company tax returns for its taxable years 1952, 1953, and 1954. (5). Foundation failed to prove that it incurred capital losses of $9,849.40 due to the worthlessness of certain securities it held. (6) Foundation received ordinary income of $25,778.24 from the Cheatham Lock project in 1955, rather than a long-term capital gain of $48,306.44 and an ordinary loss of $22,528.20. The basic facts, in the main stipulated and undisputed, are set forth at length in the Tax Court’s opinion, 39 T.C. IT' (1962). Certain background features of this controversy are stated in Stevens Brothers & Miller-Hutchinson Co. v. Commissioner, 24 T.C. 953 (1955). Rather than reiterate the facts in detail, we need only restate those necessary to highlight the nature of the issues now before us. Foundation was incorporated under the laws of Delaware on December 31, 1942, by Edward Fenton Stevens (Stevens), his wife, and two of his brothers, and maintains its principal office in St. Paul, Minnesota. Six other persons — related to Stevens either by blood or marriage— were subsequently admitted to membership in Foundation. In 1943, Foundation applied for exemption from federal income taxes as a charitable corporation, and by letter of May 1, 1947, was granted exempt status by the Commissioner, subject to redetermination if Foundation should change its character or purpose or its method of operation. There is no doubt that Foundation was organized for charitable purposes and that its charter so provided. The four founders of Foundation were also partners in Stevens Bros. Contractors (Partnership), and shared equally in Partnership’s profits until the death of one partner in 1955; thereafter, the remaining three persons shared equally. During the years here involved, Partnership owned two-thirds of the stock of a construction company known as Stevens Bros. & Miller-Hutchinson Company, Inc. (Corporation). Stevens was president of Corporation and R. C. Hutchinson— who had no interest in Foundation or Partnership — was its secretary-treasurer. In 1947, Hutchinson, who was then in active charge of Corporation, consulted with Stevens about bidding on a contract to build the floor at the Algiers Locks in Louisiana. The Government required a bid bond, and the surety company had informed Hutchinson that it would not issue a bond on Corporation’s bid unless an additional $50,000 in cash was absolutely subordinated to the contract. “[Corporation's funds were pretty well tied up” at that time in other jobs, and the bank with which Corporation normally did its business refused to lend it the additional money. On May 29, 1947, Foundation’s board of directors agreed to advance $50,000 to Corporation in return for one-third of the profits from the job, plus repayment of the advance. Shortly thereafter, Hutchinson advised Foundation that the surety company now insisted on having $75,000 subordinated to the contract instead of the previous $50,000 requirement. On July 1, 1947, the earlier agreement was cancelled, and Foundation agreed to advance the larger amount to Corporation in return for one-half of the profits from the contract, plus repayment of the advance. Corporation’s bid was accepted, and Foundation advanced the $75,000. In 1948, Foundation advanced an additional $40,000 to Corporation to pay for certain material required before further work could be done on the project. No additional consideration was received by Foundation for this $40,000, but the sum was ultimately returned. Before the Algiers Lock floor contract was completed, Corporation bid on the contract for erection of the walls at the same lock, received the award, and unsuccessfully attempted to secure a bond for the contract bid without being required to furnish additional funds. After Corporation’s bank once again would not advance the funds, the agreement between Foundation and Corporation covering the floor contract was extended to the wall contract, and the $75,000 previously advanced was left with Corporation. Before the wall contract was completed, Corporation was invited by T. L. James & Company, Inc. (James) to bid on the contract for the Cheatham Lock project in Tennessee. James and Corporation were awarded the contract and agreed to divide the profits from the project equally. Since Foundation then extended the financial terms of the Algiers Lock project agreement to cover the Cheatham Lock project, half of Corporation’s share of the profits under the Cheatham contract was to go to Foundation. In addition to the $75,000 covered by the extended agreement, Foundation also advanced $25,000 on August 20, 1951, and $50,000 on October 4, 1951 for use on the Cheatham Lock project. The $75,000 original advance and the $75,000 additional investment in the Cheatham Lock project in 1951 were returned to Foundation about 1953, and its construction project relationship with Corporation was terminated in 1954. Foundation was adequately compensated for its involvement in the construction projects, and no part of the profits it derived from them was diverted to its members. Sometime in 1947 or 1948, Stevens secured a patent for a therapeutic heating device for Foundation. The costs of developing and manufacturing the heaters were incurred by Partnership and treated as a gift by it to Foundation. Foundation distributed free of charge to hospitals, old folks’ homes, and individuals about 100 heaters worth approximately $4,510.25. About 1952, Foundation began making educational loans to college students. Repayment was waived in the case of most or all of the 32 loans, totaling $4,605, made during Foundation’s taxable years 1953 through 1955. For its taxable years 1956 through 1958, Foundation made 36 loans, totaling $7,496, which are extended without question when a student advances a good reason for delay in payment. Foundation’s books indicate receipts, disbursements and student loans as foilows: Contribu-Contribu- tions retions, Fiscal ceived and Gifts, Year other in-Grants, Student Surplus Through come Expenses Etc. Loans Balance 1947 $105,611.75 139.87 4,227.50 -0-101,244.38 1948 87,810.98 27.00 1,245.25 -0-187,783.11 1949 35,024.83 19,315.75 235.00 -0-203,257.19 1950 181,471.85 24,715.33 1,825.00 -0-358,188.71 1951 94,967.41 19,237.00 1,000.00 -0-432,919.12 1952 73,782.91 19,230.00 1,250.00 -0-486,222.03 1953 38,317.89 19,295.00 2,090.00 -0-503,154.92 1954 19,741.79 9,630.00 3,931.64 -0-509,335.07 1955 20,680.41 1,450.00 2,015.00 -0-526,550.48 1956 14,331.00 1,392.20 2,150.00 770.00 537,339.28 1957 24,278.26 3,571.00 1,600.00 1,725.00 556,446.54 1958 49,014.52 2,050:55 1,725.00 5,001.00 601,685.51 Total $745,033.60 $120,053.70 $23,294.39 $7,496.00 Partnership loaned certain sums of money to Foundation from February, 1946, to October, 1953. The total outstanding on the first day of any month during that period ranged from $496,-973.71 to $969,211.62, and averaged $783,266.59 for that period. Foundation paid no interest on these loans through 1948, and thereafter until 1954 paid various rates of interest. Since 1954 Foundation has not borrowed funds from Partnership or from any other source and has not paid any interest to Partnership. At the time of trial herein, Foundation’s investments had a total value of $950,000. On or before August 20, 1953, Foundation’s members determined a plan to accumulate $1,000,000 in Foundation, from which they calculated an annual income of $50,000 could be derived. They deemed this income sufficient to meet expenses and still carry out Foundation’s charitable purposes. On information returns for each of its taxable years 1948 through 1954, Foundation answered “No” to the following questions: “Have you had any sources of income or engaged in any activities which have not previously been reported to the Bureau?.......... (Yes or No) If so, attach detailed statement.” By letter dated August 24, 1954, Commissioner notified Foundation that its tax exempt status was revoked. By letter dated September 8, 1954, the District Director at St. Paul notified Foundation that it was liable for federal corporation income tax returns and enclosed forms for the years 1948 to 1953, inclusive. After audit, various conferences and other negotiations, Commissioner notified Foundation of specific deficiences by letter of June 14, 1960. 1 — Exemption Issue (a) — Non-Charitable Operation Under § 101(6) of the Internal Revenue Code of 1939 and § 501(e) (3) of the 1954 Code, an organization is entitled to be exempt from taxation if it satisfies the following conditions: (1) it must be ■organized and operated exclusively for religious, charitable * * * or educational purposes; (2) no part of its net ■earnings can inure to the benefit of any private shareholder or individual; (3) it cannot engage in substantial political er lobbying activity. The crucial question here is whether Foundation’s participation in the Algiers and Cheatham Lock projects supports the Tax Court’s finding that it was not operated “exclusively” for charitable purposes and that such involvement was “to a substantial extent an effort to benefit its founders.” In our view, this is largely a fact issue and, being so, the finding of the Tax Court must stand unless it is clearly erroneous or was induced by an erroneous view of the law. See and compare Samuel Friedland Foundation v. United States, D.N.J., 144 F.Supp. 74, 85 (1956); Cleveland Chiropractic College v. C. I. R., 8 Cir., 312 F.2d 203, 204 (1963). The meaning of the term “exclusively” as used in the statutes is no longer open to debate. In Better Business Bureau of Wash., D. C. v. United States, 326 U.S. 279, 66 S.Ct. 112, 90 L. Ed. 67 (1945), the Supreme Court, in giving effect to § 811(b) (8) of the Social Security Act (in terms substantially the same as § 501(c) (3) of Int.Rev.Code), made this pronouncement: “In this instance, in order to fall within the claimed exemption, an organization must be devoted to educational purposes exclusively. This plainly means that the presence of a single noneducational purpose, if substantial in nature, will destroy the exemption regardless of the number or importance of truly educational purposes.” 326 U.S. at 283, 66 S.Ct. at 114, 90 L.Ed. 67. See also, Duffy v. Birmingham, 8 Cir., 190 F.2d 738 (1951); American Institute for Economic Research v. United States, Ct.Cl., 302 F.2d 934 (1962), cert. denied, 372 U.S. 976, 83 S.Ct. 1109, 10 L.Ed.2d 141 (1963); Scripture Press Foundation v. United States, Ct.Cl., 285 F.2d 800 (1961), cert. denied, 368 U.S. 985, 82 S. Ct. 597, 7 L.Ed.2d 523 (1962); Leon A. Beeghly Fund v. Commissioner of Internal Revenue, 35 T.C. 490, 523 (1960), affirmed 310 F.2d 756 (6 Cir. 1962). So here, in order for Foundation to occupy exempt status, it must be devoted to charitable purposes exclusively, and if there is present in its operations a single noncharitable purpose substantial in nature, though it may have other truly and important charitable purposes, it is not entitled to be exempt. Foundation insists that its participation in the Algiers and Cheatham Lock projects was incidental to its tax exempt purposes, was not in furtherance of substantial nonqualified purposes, and that the benefits derived by its founders from such transactions were of an incidental nature. Additionally, Foundation emphasizes that it benefited from the business ventures to the extent of $178,387.-55. From the foregoing, Foundation reasons that it was in fact operated exclusively for charitable purposes within the concept of the teachings of the Supreme Court in Better Business Bureau v. United States, supra, 326 U.S. 279, 66 S.Ct. 112, 90 L.Ed. 67. We have accorded these and other arguments advanced by Foundation due and careful consideration and are not persuaded that the finding of the Tax Court on this issue is clearly erroneous. To the contrary, we are convinced that such finding is supported by substantial evidence and that in reaching its conclusion the Tax Court applied the proper legal standards. In the final analysis, it cannot be denied that the funds of Foundation were used in an appreciable amount and in a manner which, while beneficial to Foundation, also resulted in a substantial benefit to its founders. It was hardly a coincidence that Foundation was contacted by Mr. Hutchinson and asked to give financial support to Corporation’s construction ventures. Upon a reasonable assessment of the undisputed facts, a logical inference is that Foundation came to the rescue of Corporation at a time when the latter was unable to procure additional financing from its bank and other sources and when it was hard put for the requisite amount of cash necessary to satisfy the bonding company, and that Foundation made it possible for Corporation to bid on the projects. And, of course, it is of prime significance that the controlling interest in Corporation was owned by the individuals who constituted Partnership and who also were the creators of Foundation. The amount involved in the construction projects belies the assertion that these business ventures were merely incidental, or that the profit, as channeled through Corporation to Partnership and ultimately realized by Foundation’s creators, was of an incidental nature. In our view, the questioned activities and the use made of Foundation funds in connection with such activities closely parallel, in principle, the situation in Leon A. Beeghly Fund, supra, 35 T.C. 490, where, as here, the organization forfeited its tax exempt status because of such activities. We are likewise of the view that Samuel Friedland Foundation v. United States, supra, 144 F. Supp. 74, upon which Foundation places strong reliance, is readily distinguishable and not controlling herein. On the noncharitable operation issue we sustain the Tax Court. (b) — Unreasonable Accumulations Encompassed within the exemption issue, the Tax Court also found that Foundation had unreasonably accumulated income during its taxable years 1952 through 1958. We affirm this finding. ■ Under § 3814 of the Internal Revenue Code of 1939 and § 504 of the 1954 Code (the successor to § 3814), tax exempt status is denied to any organization described in § 501(c) (3) of the 1954 Code, “if the amounts accumulated out of income during the taxable year or any prior taxable year and not actually paid out by the end of the taxable year— “(1) are unreasonable in amount or duration in order to carry out the charitable, educational, or other purpose or function constituting the basis for such organization’s exemption * * * ” In the Friedland case, supra, 144 F. Supp. at 92, the court, in considering the yardstick to be applied in determining whether accumulations were unreasonable, stated, “What the true test appears to be is this, — Does the charitable organization have a concrete program for the accumulation of income which will be devoted to a charitable purpose and in the light of existing circumstances is the program a reasonable one?” While realizing that no formula is devisable for determining reasonableness in all cases, the court pointed to four significant factors to be considered, applied them to the facts, and found that Friedland Foundation had a definite and' reasonable program and a charitable object for accumulation. These factors were: (a) Purpose of accumulation and dollar goal — $500,000 for construction of medical research center at Brandéis University; (b) Funds available at starting point to be devoted to accumulation— $50,000; (c) Likelihood of further contributions — $50,000 per year; and (d) Extent of time required to reach dollar goal — 6, 7 or 8 years. In Erie Endowment v. United States, 3 Cir., 316 F.2d 151 (1963), the Third Circuit, confronted with the same problem, affirmed the district court’s holding that the accumulations were unreasonable. In so doing, the court took note of the ruling of the Tax Court in this case, see Note 16, 316 F.2d at 155, stated that the factual situations in the two cases were comparable, see Note 19, 316 F.2d at 155, 156, and also made the following general pronouncement: “ ‘Reasonableness,’ that hobgoblin of judicial minds, can only be divined on the basis of all relevant facts. The standard to be applied is whether the taxpayer can justify the total accumulation of income at the end of the taxable year, in terms of both time and amount, on the basis of a rational total program of charitable intent. The plan must be viewed in its entirety. An eight year plan of accumulation to provide a medical research center for a university costing $500,000 may be reasonable; so may a ten year period of accumulation to build up sufficient funds to pay retirement benefits to employees where that is the sole purpose of the foundation; so may accumulation for the purpose of obtaining sufficient funds to construct and maintain a civic building where the charitable organization was formed for that specific purpose.” 316 F.2d at 155. Mindful of these principles, we are impelled to conclude that the Tax Court here correctly decided that the accumulations were unreasonable within the meaning of the statute. Several salient facts stand out. Foundation did not have a concrete or definite charitable program requiring the accumulation of a large percentage of its income. Under its corporate charter, Foundation possessed broad charitable powers, but the fact remains that it failed to formulate and design a meaningful charitable program, one having a definite functional objective. We recognize that at some time during the years in question- — the Tax Court found that it was on or before August 20, 1953 — - Foundation determined that its dollar goal value would be $1,000,000, and that based upon a 5% return, its annual investment income would be $50,000. We have also considered that in 1951 or 1952 Foundation began making educational loans to students attending colleges. However, these loans and grants were not made as the result of any formulated or definite plan and such aid was not geared to the amount of Foundation’s income. In the absence of a concrete program no reasonable justification appears for the large accumulations for the years in question. Neither are we impressed with Foundation’s argument that the Tax Court improperly. considered accumulations prior to the enactment of the unreasonable accumulations statute in 1950. As demonstrated, this Act operated prospectively to deny tax exempt status. However, it is clear from the wording of the statute that accumulations of the taxable year and preceding years are to be considered in resolving the question whether the accumulations were unreasonable. See Erie Endowment v. United States, supra, 316 F.2d at 156, fn. 20. 2 — Retroactive Revocation Issue By letter dated May 1, 1947, the Commissioner informed Foundation that it was exempt from federal income tax under the provisions of § 101(6) of the Internal Revenue Code and that “accordingly) you will not be required to file income tax returns unless you change the character of your organization, the purposes for which you were organized, or your method of operation. Any such changes should be reported immediately to the collector of internal revenue for your district in order that their effect upon your exempt status may be determined.” As previously stated, the Commissioner revoked this tax exemption ruling by letter to Foundation dated August 24, 1954. Thereafter, the Commissioner applied the revocation ruling retroactively. The Commissioner is empowered to prescribe the extent to which any ruling made by him shall be applied retroactively. Section 7805(b) of the 1954 Code provides: “The Secretary or his delegate may prescribe the extent, if any, to which any ruling or regulation, relating to the internal revenue laws, shall be applied without retroactive effect.” This section is substantially the same as its predecessor — § 3791(b) of the 1939 Code. In Automobile Club of Mich. v. Commissioner, 353 U.S. 180, 184, 77 S. Ct. 707, 1 L.Ed.2d 746 (1957), the Supreme Court stated that it is clear from the language of the foregoing statute and its legislative history that Congress thereby confirmed the authority of the Commissioner to correct any ruling, regulation or treasury decision retroactively, but empowered him, in his discretion, “to limit retroactive application to the extent necessary to avoid inequitable re-É suits.” “The Commissioner’s action may not be disturbed unless, in the circumstances of this case, the Commissioner abused the discretion vested in him by § 3791(b) of the 1939 Code.” 353 U.S. at 184, 77 S.Ct. at 710, 1 L.Ed.2d 746. See and compare, Birmingham Business College, Inc. v. C. I. R., 5 Cir., 276 F.2d 476 (1960); Lesavoy Foundation v. Commissioner of Internal Revenue, 3 Cir., 238 F.2d 589 (1956); Cleveland Chiropractic College v. C. I. R., supra, 8 Cir., 312 F.2d 203. Thus, the question for decision here is whether the Commissioner acted arbitrarily in directing that the ruling be applied retroactively. Foundation’s efforts to demonstrate that its information reports were adequate and sufficient to apprise the Commissioner of its entry into the business activities which led to denial of its tax exempt status are far from convincing. By way of summary, it appears that on July 1, 1947, shortly after the tax exempt ruling, Foundation became involved with Corporation in the Algiers Lock project, but failed to disclose this fact to the Commissioner in its information return filed for its taxable year which ended March 31, 1948. To the contrary, Foundation answered “No” to the question: “9. Have you had any sources of income or engaged in any activities which have not previously been reported to the Bureau?.......... (Yes or No) If so, attach detailed statement.” Foundation also failed to disclose its assets and liabilities as required on “Schedule A — Balance Sheets” of the information return. Likewise, Foundation in its returns filed for taxable years ending March 31, 1949, March 31, 1950, and March 31, 1951, disclosed no information of its activities with Corporation, although as previously shown, it became further involved in the lock projects. The first hint of the transactions appeared in Foundation’s information return filed for the year ending March 31, 1950, when under heading “10 — Other Income,” Foundation reported “Algiers Lock Investment — $128,410.60.” This amount was more than 10%. of the total income reported for that year, but Foundation failed to attach an itemized schedule in accordance with the instructions. Again in its 1951 return, Foundation reported under “Other Income — Algiers Lock Investment — $24,198.71,” and again also failed to attach the required itemized schedule. Apparently, examination of the 1951 return and discovery of the $24,198.71 item of income caused the Commissioner to begin the investigation which resulted in his revocation of the 1947 ruling. The foregoing events and the ensuing correspondence between Commissioner and Foundation negate arbitrary action or an abuse of discretion by Commissioner. Foundation seeks to draw an analogy between this case and Lesavoy Foundation v. Commissioner, supra, 238 F.2d 589, where the Third Circuit reversed the Tax Court, 25 T.C. 924, which had sustained the Commissioner’s retroactive revocation of a certificate of exemption from taxation issued to a charitable organization. In our view, Lesavoy is readily distinguishable. There, unlike the present situation, the Foundation reported on its information return that it had engaged in “activities which have not previously been reported to the Bureau,” revealed that it had purchased a spinning mill company, and attached a balance sheet listing assets, inventory, liabilities, and gross receipts which reflected substantial sales of yarn and cloth. On this issue we affirm the Tax Court. 3 — Personal Holding Company Issue Sustaining the Commissioner in part, the Tax Court held that Foundation qualified as a personal holding company for its taxable years 1952 through 1954 and 1956 through 1958. We reverse the Tax Court on this issue. Under the Personal Holding Company statute, § 501(a) of the 1939 Code and § 542(a) of the 1954 Code, the term “personal holding company” means any corporation (with certain exceptions not pertinent here) if — (1) at least 80 percent of its gross income for the taxable year is personal holding company income as defined in another section (502 of 1939 Code, 543 of 1954 Code), and (2) at any time during the last half of the taxable year more than 50 percent in value of its outstanding stock is owned, directly or indirectly, by or for not more than five individuals. As in the Tax Court, Foundation here concedes that it meets test (1) — i. e., it had the requisite kind of income to be a personal holding company. The crucial question is whether the requirements of test (2) are present — i. e., whether Foundation’s “members” are of the general equivalence of stockholders in stock corporations so as to satisfy the stock ownership test. The provisions of Foundation’s corporate charter pertinent to this issue provide that: the corporation does not have authority to issue capital stock; the four incorporators shall be members upon payment of $1 each to the corporation; no part of the corporation’s net income shall inure to the benefit of any member; and the corporation has broad powers to amend any provision of the charter. The charter does not provide for distribution of assets upon dissolution. Although Foundation never issued capital stock or amended its charter, Commissioner contended in the Tax Court that because of the reserved power to amend the charter, Foundation’s members had the right to share in its property upon dissolution and therefore were equivalent to stockholders in stock corporations. The Tax Court held that for the taxable year 1948 Foundation’s memberships did not correspond to stock holdings for personal holding company-tax purposes, but on a theory of its own, sustained the Commissioner on this issue as to other taxable years. In 1951 the Delaware legislature amended its Revised Code of 1935 to permit consolidation of or merger between stock and non-stock corporations. This amendment added a new section to the Delaware Revised Code of 1935, now appearing as § 257, Title 8, of Delaware Code Annotated, and reading in pertinent part as follows: “ § 257. (a) Any one or more non-stock corporations, whether organized for profit or not organized for profit, organized under the provisions of this chapter, or existing under the laws of this State, may consolidate or merge with one or more stock corporations, whether organized for profit or not organized for profit, organized under the provisions of this chapter, or existing under the laws of this State, into a single corporation which may be any one of the constituent corporations or a new corporation to be formed by means of such consolidation or merger as shall be specified in the agreement provided for in subsection (b) of this section. The new corporation or the surviving constituent corporation may be organized for profit or not organized for profit and may be a stock corporation or a membership corporation. “* * In such consolidation or merger the interests of members of a constituent non-stock corporation may be treated in various ways so as to convert such interests into interests of value, other than shares of stock, in the proposed new or resulting stock corporation or into shares of stock in the proposed new or resulting stock corporation, voting or non-voting, or into creditor interests or any other interests of value equivalent to their membership interests in their non-stock corporation.” Without supporting authority, the Tax Court concluded that “despite the fact that the predecessors of Del.Code Ann. tit. 8, secs. 102(a) (4), 242(a), and 281, set forth supra, were not amended by this 1951 Act, we conclude that the Delaware Legislature intended to and did change the law to give to members in nonstock corporations the right to share in the current or accumulated profits of those corporations,” and that for the taxable years 1952 through 1958 Foundation’s memberships constitute “stock” within the meaning of the Personal Holding Company statute. Although we sustain the determination that Foundation was not an exempt organization for federal income tax purposes, the present issue posits the question whether under state law the property of a charitable organization can be distributed or paid to its members by way of dividends or ultimately on dissolution. The Commissioner recognizes that we look to the state law in resolving this question, and in his brief, states: “Taxpayer is a nonstock, nonprofit corporation organized under the General Corporation Law of Delaware * * * and its certificate of incorporation makes no provision for the disposition of assets in the event of dissolution. However, on the basis of the relevant state law, the Tax Court determined that, prior to 1951, members of a Delaware non-stock nonprofit corporation could not share in the assets of the corporation on liquidation * * . Accordingly, it found that prior to that time taxpayer’s memberships were not equivalent to stock for personal holding company purposes because they lacked the necessary beneficial interest in the assets of the corporation.” Specifically, then, we must decide whether the 1951 amendment was intended to cover charitable non-stock, nonprofit corporations so as to permit Foundation to merge with a profit, stock corporation and to give Foundation’s members — as held by the Tax Court — the right to share in the current or accumulated profits of Foundation, even though there was no actual merger. Foundation states that the Tax Court’s interpretation of the amendment — now Title 8 Del.Code Ann. § 257 — endangers the status of existing charitable corporations under Delaware law, and, in effect, prohibits the formation of new ones. Commissioner, in support of the Tax Court’s self-spun theory, argues that for state law purposes, a charitable corporation is not endangered in Delaware, for it will remain charitable in nature until merged with a stock company. Opposed to Foundation’s contention that the doctrine of cy pres would prevent its funds from being diverted to its members, Commissioner further asserts that the doctrine, although applied in Delaware as to charitable trusts, has not yet been applied as to charitable corporations “and would appear to be foreclosed by the 1951 amendment. * * ” Commissioner points to the general liberality of Delaware corporation law, asserts that “the legislature apparently saw fit to allow” such mergers, and on oral argument, revealed that perhaps the Delaware statute “would permit a church to merge with a large profit corporation.” In our view, the Tax Court’s interpretation of § 257 is diametrically opposed to prevailing principles of law dealing with charitable corporations. Generally, on the dissolution of a charitable corporation, the doctrine of cy pres is applicable, and a gift to the corporation does not revert to the donor — and, to be sure, cannot be distributed to the members of the charitable corporation. See IV Scott, Trusts § 397.3, at 2797-2798 (2d ed. 1956). Ordinarily, the principles which are applicable to charitable trusts are applicable to charitable corporations —certainly the doctrine of cy pres pertains to both, and “it is probably more misleading to say that a charitable corporation is not a trustee than to say that it is....” IV Scott, Trusts § 348.-1, at 2559, 2553-2554 (2d ed. 1956); National Foundation v. First National Bank of Catawba County, 4 Cir., 288 F. 2d 831, 836 (1961); Miller v. Mercantile-Safe Deposit & Trust Company, 224 Md. 380, 168 A.2d 184, 188 (1961); Trustees of Rutger’s College in N. J. v. Richman, 41 N.J.Super. 259, 125 A.2d 10, 26 (1956). It has been held that the legislature has no power to destroy or to vary the terms of a valid charitable trust. IV Scott, Trusts § 348, at 2552 (2d ed. 1956). Additionally, the power of amending a corporate charter cannot be exercised to entirely change the nature of a corporation, or to change substantially its objects and purposes. Fletcher, Cyclopedia Corporations, Vol. 7, Ch. 43, § 3718, at 886 (Perm. ed.). With these general rules in mind, we turn to Delaware law to determine whether its legislature and its courts have adhered to the prevailing principles. We, like the Tax Court and the parties to this action, recognize that the Delaware statutory law here involved has not been construed by the courts of that state insofar as it applies to non-stock, nonprofit corporations. Nevertheless, upon careful scrutiny of Delaware statutory and decisional law, we are firmly convinced that the Tax Court’s interpretation of that law is erroneous. The Delaware courts have recognized that “[generally speaking, the law favors charitable trusts, and they will not be declared void if they can by any possibility, consistent with law, be considered as good.” Union Methodist Episcopal Church v. Equitable Trust Company, 32 Del.Ch. 197, 83 A.2d 111, Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
sc_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 NEEDELMAN v. UNITED STATES. No. 278. Argued April 25-26, 1960. Decided May 16, 1960. Herbert A. Warren, Jr. argued the cause for petitioner. With him on the brief were Hilton R. Carr, Jr. and A. C. Dressier. Osear H. Davis argued the cause for the United States. On the brief were Solicitor General Rankin, Assistant Attorney General Wilkey, Beatrice Rosenberg and Jerome M. Feit. Per Curiam. After hearing oral argument, and further study of the record, we conclude that the record does not adequately present the questions tendered in the petition. Accordingly the writ is dismissed as improvidently granted. Mr. Justice Frankfurter, whom Mr. Justice Clark and Mr. Justice Harlan join. Considering the volume of cases which invoke the Court's discretionary jurisdiction — as of today 1,091 such cases have been passed on during this Term — it would be indeed surprising if in each Term there were not two or three instances of petitions which, after passing through the preliminary sifting process, did not survive the scrutiny of oral argument. See the cases collected in Rice v. Sioux City Cemetery, 349 U. S. 70, 77-78, and, more recently, Triplett v. Iowa, 357 U. S. 217, Joseph v. Indiana, 359 U. S. 117, and Phillips v. New York, ante, p. 456. But this is not one of them. The specific questions which were presented by the petition for certiorari are not now found to be frivolous nor do they raise disputed questions of fact, nor does the record otherwise appropriately preclude answers to them. In my view they call for answers against the claims of the petitioner and I would therefore affirm the judgment. In view of the disposition of the case elaboration is not called for. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_appel1_7_5	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). UNITED STATES of America, Plaintiff-Appellee, v. Robert James NOGUEIRA, Defendant-Appellant. No. 78-1171. United States Court of Appeals, First Circuit. Argued Sept. 6, 1978. Decided Oct. 26, 1978. Charles A. Clifford, Charlestown, Mass., for appellant. Robert B. Codings, First Asst. U. S. Atty., Chief, Crim. Div., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee. Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges. BOWNES, Circuit Judge. March 15, 1978, defendant Robert No-gueira was convicted on a one count indictment of armed bank robbery, in violation of 18 U.S.C. § 2113(d). Nogueira complains that the trial court erred in several of its evidentiary rulings, thereby depriving him of rights guaranteed under the sixth amendment. Nogueira and two accomplices were charged with armed robbery of the Hancock Bank and Trust Company on February 14,1977. According to the testimony of the major prosecution witness, Michael McDo-nough, the three had arrived at his apartment the morning of the robbery asking to borrow his car. McDonough refused the request. At about 2:00 P.M. that same day, the three returned to his apartment, changed-their clothes, displayed their booty, described the robbery and subsequent eluding of the police road block, gave about $100 to McDonough, and left in a cab. Approximately two months following the robbery, McDonough contacted the F.B.I. and informed them of the incident. At some point, the F.B.I. gave McDonough $200. Approximately two and one-half months prior to trial, McDonough began receiving $450 per month from the Witness Protection Program. He was also told that he would not be prosecuted for any part he played in the February 14, 1977, bank robbery (presumably as an accessory after the fact). All these facts were brought out on cross-examination. Defendant Nogueira alleges constitutional error on the part of the trial court in excluding two lines of inquiry. He claims that he should have been permitted further inquiry of witness McDonough on certain issues. Nogueira attempted to elicit from McDonough the fact that, two years earlier, when responding to an employment questionnaire, McDonough had said that he had never been arrested when, in fact, he had a juvenile record. The prosecution explained to the court that McDonough would testify, in reference to this incident, that his probation officer had told him that, for purposes of job applications, his juvenile adjudications did not constitute a criminal record. The court ruled that the alleged false statement on the job application was inadmissible as being too remote, but also ruled that McDonough’s juvenile adjudication of attempted larceny of an automobile could be explored by the defense. In determining the proper scope of cross-examination for purposes of attacking credibility, the trial court is accorded broad discretion, see e. g., Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 75 L.Ed. 624 (1931); Lewis v. Baker, 526 F.2d 470, 475 (2d Cir. 1975), with the mandate of an accused’s right to confront his accusers a necessary counterweight. U.S.Const. amend. VI. The Federal Rules of Evidence have codified this broad grant of discretion. See Fed.R.Evid. 403, 608(b), 609(d). The trial court must balance the probative value of such evidence against the dangers of unduly extending the trial or misleading the jury. When excursions into issues collateral to the trial are not tethered to the likelihood of assisting the jury in weighing a witness’s credibility, the court correctly excludes them. In this case, given the questionable materiality or probative value of the forbidden line of questioning, we cannot find any abuse of the court’s admittedly broad discretion. See United States v. DeVincent, 546 F.2d 452, 457 (1st Cir. 1976), cert. denied, 431 U.S. 903,. 97 S.Ct. 1634, 52 L.Ed.2d 387 (1977); Fed.R.Evid. 403, 608(b). The court otherwise permitted generous inquiry by defense of witness McDonough, including his juvenile adjudication for attempted car larceny, the fact that he owed restitution to his former employer for a leather jacket, that he had accepted money from the three indicted bank robbers, and that he was now a paid witness participating in the Witness Protection Program. Nogueira also complains of the court’s refusal to admit evidence relating to McDonough’s alleged enmity toward his former employer. The court correctly ruled this evidence inadmissible. The former employer was in no way connected with the trial or with the defendants in this case. Any prejudice or bias against the employer was entirely irrelevant and immaterial to the trial of these defendants. Forays into’ such collateral matters cannot be justified merely by invoking the talisman of the right to cross-examination. See United States v. Poulack, 556 F.2d 83, 89 (1st Cir.), cert. denied, 434 U.S. 986, 98 S.Ct. 613, 54 L.Ed.2d 480 (1977). Defense counsel energetically cross-examined McDonough on possible bias against Nogueira and on possible motives McDonough might have in testifying against Nogueira. While we are not unsympathetic to defendant’s plea that defense counsel should be allowed broad-ranging cross-examination of the principal prosecution witness, particularly when that witness has been largely unavailable to the defense due to his participation in the Witness Protection Program, we do not feel that the defendant’s legitimate interests were in any way curtailed by the trial court here. The court did not abuse its discretion in foreclosing questioning of McDonough as to possible bias against his former employer. The extrinsic evidence (photographs of graffiti allegedly scrawled by McDonough, insinuating that he would “get” the former employer) was, of course, inadmissible. Fed.R.Evid. 608(b). The judgment is affirmed. . Unless, of course, they are admissible for some other permissible purpose, e. g., showing bias or prejudice. See, e. g., United States v. Honneus, 508 F.2d 566, 572 (1st Cir. 1974), cert. denied, 421 U.S. 948, 95 S.Ct. 1677, 44 L.Ed.2d 101 (1975). . “(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence.” 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_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. BAGGALEY v. AETNA INS. CO. No. 7029, Circuit Court of Appeals, Seventh Circuit. April 4, 1940. Benjamin V. Becker and Don M. Peebles, both of Chicago, 111., for appellant. Robert Branand, Jr., and Edward B. Hayes, both of Chicago, 111., for appellee. Before SPARKS, MAJOR, and TREA-NOR, Circuit Judges. TREANOR, Circuit Judge. This is an appeal from a decree in admiralty dismissing libelant’s libel by which he sought to recover under a policy of marine insurance issued by the respondent. The policy contained a clause insuring against loss or damage to the hull or machinery of the yacht “Barbara” “through the negligence of master, mariners, engineers, and pilots, * * * provided such loss or damage has not resulted from want of due diligence by the owners of the Vessel, or any of them, or by the manager.” In the year 1932, and for several years prior thereto, the libelant was the owner of the yacht “Barbara.” At the end of the summer of 1931 the yacht was laid up for the winter 1931-32. In April or May, 1932, the libelant made-an agreement with one Mattson to overhaul the engines, Matt-son’s principal work being to regrind or recondition the fuel injector valves of the Diesel engines. Libelant testified that he instructed Mattson to complete the work on the engines and to lay the boat up for the winter. This occurred about the first of July, 1932. In laying up a boat for the winter the engines must be drained of water, the seacocks which are attached to the pipes leading from the engines to the outside water must be closed and packed with oily waste, and a winter housing must be placed upon the boat covering it from the top to deck. For libelant to establish his claim it was necessary to show that Mattson had failed to drain the water out of the water jackets surrounding the Diesel engines and also had failed to close the seacocks attached to the pipes leading from the engines to the outside water of the Chicago River where the boat was moored; and it was necessary for libelant further to show that during the month of November, 1932, the water in the engines had frozen, causing portions of the engines to crack. It is not questioned that the damage, if chargeable to Mattson’s negligence, was the result of his failure to perform the usual acts required to “lay up” libelant’s yacht. Consequently, libelant’s case depended ultimately upon libelant’s being able to establish that Mattson’s negligence caused the damage and that Mattson was acting as engineer of libelant’s yacht “Barbara” at the time that he negligently performed the work entrusted to him by libelant. The District Court found that Mattson was working on libelant’s boat in 1932 as a mechanic while the “Barbara” lay tied to the dock under winter housing; that the boat had no crew on her at any time in 1932; that when, in a prior year, libelant employed Mattson in the capacity of engineer he paid him $300 a month, and, in addition, furnished. quarters for himself and family on the boat; and that in respect to the work in 1932 Mattson was answerable to libelant only for completed results and was paid by the job, the price for his work being the sum of $100. The evidence introduced by libelant establishes beyond question that Mattson had been employed as engineer on the yacht “Barbara” prior to the time that the boat had been laid up for the winter of 1931-32. Libelant testified that when the boat was laid up for the winter of 1931-32 the Diesel engines and the generator engine were drained of water; the seacocks were closed and packed with oily waste and that the winter housings were placed bn the boat by the Keith Boat and Engine Company. The boat remained in that condition until Mattson was engaged in April or May of 1932 to overhaul the engines. In connection with the overhauling it was necessary to run the engines in order to test them and this required the use of the water circulating system. To use the circulating system it was necessary to open up the seacocks and remove the oily waste therefrom. After Mattson had overhauled the engines and had tested them he was told by libelant to lay the boat up for the winter since “it would not go out that year.” The libelant testified that he made financial advancements to Mr. Mattson during the winter of 1931-32, but it appears from his testimony that Mattson was not employed during that period in any capacity for services connected with the boat. It is clear that Mattson was free to seek employment elsewhere since libelant testified that “he (Mattson) wag unable to secure employment and had been practically supported by me throughout the following winter.” Plaintiff-appellant cites the dictionary definition of the word “engineer” which defines the word as follows: “One who manages or runs any stationary or locomotive engine; an engine driver; — in British usage restricted to a certificated man who has a ‘watch’ in the engine room and stokehole of a steamship.” On the basis of the foregoing the plaintiff urges that “in completing the work upon the Yacht ‘Barbara’ when the negligent acts were committed, Mattson was managing or running the engines and was an ‘engine driver.’ ” Plaintiff further urges that the foregoing is the common meaning of the term and is controlling in the instant case. But granting that the foregoing definition of engineer would satisfy the term “engineers” as used in the marine policy in suit, we cannot conclude that the kind of “managing or running” of the boat engines which Mattson engaged in made him an “engine driver” within even the definition relied upon by plaintiff. The" “managing or running” in the instant case was merely incidental to the repair work and was for the purpose of testing the work. Considering the type of service which Mattson was rendering it is impossible to avoid the conclusion that he was performing the ' work of an engine mechanic. Considering the circumstances of his employment, we are forced to the conclusion that his relation to the libelant was that of an employee to repair the engines of the boat as a mechanic. The foregoing conclusion must be reached, we think, even if we should adopt the definition of “engineer” contended for by plaintiff. But we are of the opinion that in construing the word “engineers” we must consider the special type of policy, involved and must not isolate the term from its context. The particular peril insured against is “the negligence of master, mariners, engineers, and pilots * * * In view of the context the term “engineers” obviously refers to persons performing the function of engineers on boats engaged in seafaring activities, and the peril insured against is the negligence of masters, mariners, engineers or pilots in their respective capacities as seamen employees. It would not follow from what we are saying that one who is in fact acting as a boat engineer would cease to be such if he were to engage in the work performed by Matt-son, if such work could be said to be reasonably related to the normal functions of a boat engineer. But the converse is not true, that one who is engaged to perform purely mechanical work on the engines of a boat becomes an engineer within the meaning of the policy while performing such work. For example, if at the end of the season in 1931 Mattson, while still act- ' ing in the capacity of the yacht’s engineer, and as incident to his duties as such en- ■ gineer, had been negligent in laying up the boat for the winter and as a result had caused damage thereto, there would be substantial ground for contending that any damage resulting from his negligence would come within the protection of the policy. But under the evidence presented by libel-ant it is clear that Mattson was not employed by libelant as the yacht’s engineer at the time that libelant authorized him to overhaul and repair the engines. It is also clear that the agreement between libel-ant and Mattson respecting the work was not intended to be a contract of employment as engineer of the boat. Consequently, unless we can say that the employment of Mattson for the particular work which he performed establishes, as a matter of law, an employment as engineer of the yacht, we must conclude that he was not an engineer within the meaning of the term “engineers” as used in the policy. We cannot say that; but on the contrary we are of the opinion that the District Court correctly stated as a conclusion of law that libelant had “failed to prove that at any time during 1932 Matt-son was employed on the yacht Barbara as an engineer so as to bring him within the meaning of the policy * * * sued on.” In view of our foregoing conclusion it is unnecessary to discuss other questions which are urged in the briefs. The judgment of the District Court is affirmed. 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_counsel2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party RENAUD SALES CO., Inc., v. DAVIS. DAVIS v. RENAUD SALES CO., Inc. Nos. 3425, 3426. Circuit Court of Appeals, First Circuit. June 13, 1939. John H., Glaccum, of New York City (Arthur D. Thomson, of Boston, Mass., and Munn, Anderson & Liddy, of New York City, on the brief), for Renaud Sales Company, Inc. John W. Walsh, of Boston, Mass., (Harry Ehrlich and David S. Grant, both of Boston, Mass., on the brief), for John H. Davis, etc. Before WILSON, Circuit Judge, and PETERS and BREWSTER, District Judges. BREWSTER, District Judge. These are cross-appeals from a decree of the District Court dismissing the bill of complaint. In this opinion the Renaud Sales Company, Inc., will be referred to as the plaintiff, and John H. Davis as defendant. The District Court granted a temporary injunction upon condition that the plaintiff give a bond as ordered. A bond was given in the sum of $4,000 upon condition that “if the said Renaud Sales Co., Inc., is successful on the hearing on the merits and the said injunction is made permanent, this bond shall be null and void, but if it should turn out after the hearing on the merits that the temporary injunction about to issue ought not to have issued,” the plaintiff would pay the defendant as liquidating damages the sum of $2,-000 and such further sum up to $4,000 as should be adequately proved to be the costs and damages of the defendant. It appears from the record that in 1924 the defendant caused to be organized, under the laws of Massachusetts, a corporation with the corporate name of “Renaud et Cie of America”. This corporation obtained the rights to sell and did sell in the United States the so-called Renaud perfumes and extensively advertised them, featuring “Renaud-Paris-1817”. The corporation also registered as a trademark the word <l:Renaud” and represented that it had been in use since 1817. The word, in this and other countries, had come to symbolize perfume of high quality of French origin. By mesne conveyance the plaintiff secured the rights as successor to the business and goodwill of Renaud et Cie of America, including the right to use the trademark. The plaintiff also, by a new contract, procured the exclusive right to sell in the United States and other countries the Renaud perfumes. The defendant was doing business under the name of Renaud et Cie, and the trial court held that it was unlawfully using the word “Renaud” and the words “Renaud-Paris-1817” in violation of plaintiff’s rights, and was perpetrating a fraud upon the public. The court held that the complaint should be dismissed because the plaintiff did not come into equity with clean hands. It concluded, nevertheless, that the temporary injunction was properly issued and that the defendant could not recover upon the bond. The question raised by plaintiff’s assignment -of error is whether on the facts the complaint should have been dismissed. The issue presented by defendant’s assignment is whether the District Judge properly denied recovery of the liquidated damages, as provided in the bond given by the plaintiff to the defendant. First, as to the plaintiff’s assignment: The court found that Renaud et Cie of America, as sole representative in the United States selling the products of Renaud-Paris-1817, S. A., had succeeded in establishing for Renaud perfumes a well-defined reputation. The essences were purchased in Paris in bulk and bottled in America with little or no change and sold at prices which would entitle the purchaser to high-grade perfume. After the plaintiff had succeeded to the business, it began to put on the market Ren-aud perfumes at greatly reduced prices. This was made possible by ré-mixing the essence obtained from France with suitable oils and alcohol, whereby a much greater volume was obtained with the same amount of floral essence. The trial court found that a comparison of the perfume sold by the plaintiff with that sold formerly'by Renaud et Cie disclosed a marked difference, that the same trademark and labels were used as were used with respect to the old Renaud perfume, and in no way was the attention of the public called to the fact that there had been any change in the place of origin or the ownership of the concern manufacturing the perfume. Any member of the purchasing public buying the plaintiff’s perfume with the markings appearing on the bottle and on the package would have no reason to suspect that the perfume bought was of a lower quality than the old Renaud perfume. The trial judge further held and ruled that the conduct on the part of the plaintiff constituted -a fraud upon the public which defeated its rights to equitable relief. The numerous authorities, both in this country and in England, reviewed by Mr. Justice Shiras in the case of Clinton E. Worden & Co. v. California Fig Syrup Company, 187 U.S. 516, 23 S.Ct. 161, 47 L.Ed. 282, leave no doubt that the conclusion reached by Judge Sweeney was the correct conclusion. The English case of Pidding v. How, 8 Simon, 477, and the case of Krauss v. Peebles’ Sons Co., C.C., 58 F. 585, 594, were both cases dealing with a new mixture sold under an old name without notice to the public of the change. In the latter case Mr. Justice Taft, as Circuit Judge, said: “To bottle such a mixture, and sell it under the trade label and caution notices above referred to, is a false representation, and a fraud upon, the purchasing public. A court of equity cannot protect property in a trade-mark thus fraudulently used.” In Clinton E. Worden & Co. v. California Fig Syrup Co., supra [187 U.S. 516, 23 S.Ct. 164], the court cited with approval the case of Prince Mfg. Co. v. Prince’s Metallic Paint Co., 135 N.Y. 24, 31 N.E. 990, 17 L.R.A. 129, where the Court of Appeals of New York used the following language : “ ‘Any material misrepresentation in a label or trade-mark as to the person by whom the article is manufactured, or as to the place where manufactured, or as to the materials composing it, or any other material false representation, deprives the party of the right to relief in equity. The courts do- not, in such cases, take into consideration the attitude of the defendant. * * * And, although the false article is as good as the true one, “the privilege of deceiving the public, even for their own benefit, is not a legitimate subject of commerce.”. ’ ” Respecting the defendant’s assignments of error, we are unable to follow the District Judge in his ruling that the injunction was properly issued. As already appears, the theory upon which the -courts have proceeded in denying equitable relief is that the trademark which the proprietor sought to protect has been used as a means of misrepresentation or fraud .upon the public. Therefore, at the time the stiit was brought, the plaintiff had no standing in equity to ask for an injunction against the defendant. It is settled that the equitable maxim of unclean hands may be invoked even though the matter is not set up as a defense. Celluloid Mfg. Co. v. Read, C.C., 47. F. 712; Memphis Keeley Inst. v. Leslie E. Keeley Co., 6 Cir., 155 F. 964, 974, 16 L.R.A.,N.S., 921; Gynex Corp. v. Dilex Inst., 2 Cir., 85 F.2d 103. The plaintiff was not refused relief because of any acts committed after the temporary injunction was issued. Furthermore, it seems to be equally well settled on the authorities that a decree dismissing a bill in equity will be regarded as a judicial determination that the injunction should not have been granted. High on Injunctions, Vol. 2, page 1597; Mica Insulator Co. v. Commercial Mica Co., C.C., 157 F. 92; Robinson v. Fidelity & Deposit Co. of Md., 5 Cal.App.2d 241, 42 P.2d 653; Mitchell v. Sullivan, 30 Kan. 231, 1 P. 518. It is to be noted that the bond was to become void only in the event that the plaintiff was successful in the hearing on the merits, and the injunction made permanent. That condition has not been met, and it would seem to inevitably follow that the bond had not become null and void. And since the obligation is not void, we fail to discover any way of escaping the liability arising from the undertaking. The provisions for liquidated damages may, in the circumstances of the case, be somewhat harsh, but the appellate court cannot now intervene to relieve the plaintiff from the hardship. The interlocutory decree is not before us for review. The final decree of the District Court is reversed, so far as it orders that the temporary injunction issued in the case was properly issued and that the bond, filed by the plaintiff, in support of the temporary injunction, be canceled and annulled. In all other respects the final decree is 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_typeiss	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. BARCELO et al. v. SALDANA, Executive Secretary of Porto Rico. No. 2610. Circuit Court of Appeals, First Circuit. Dec. 23, 1931. O. B. Frazer, of New York City (Antonio R. Bareelo, Miguel Guerra Mondragon, Manuel A. Martinez-Davila, and Angel Arroyo Rivera, all of San Juan, Porto Rieo, on the brief), for appellants. William C. Rigby and Fred W. Llewellyn, both of Washington, D. C. (James R. Beverley, Atty. Gen., of Porto Rico-, and Blanton Winship, Judge Advocate General, of Washington, D. C., of counsel), for appellee. Before BINGHAM and WILSON, Circuit Judges, and MORRIS, District Judge. WILSON, Circuit Judge. This is an appeal from a decree of the Supreme Court of Porto Rico denying the petition of the appellants for a writ of mandamus to compel the defendant, who is the Executive Secretary of Porto Rico, to register the names of the appellants as nominees of the Union Party of Porto Rieo, respectively, for the office of Resident Commissioner of Porto Rieo at Washington, and as a member of the Board of Review and Equalization of Porto Rieo. The first issue raised before this court is on a motion to dismiss the appeal for lack of jurisdiction under paragraph 4, § 128 (a), of the Judicial Code, 28 USCA § 225 (a), on the ground that no federal question was involved in the decision of the Supreme Court, and that the value in controversy, exclusive of interests and costs, does not exceed the sum of $5,000. It is not urged by counsel for the appellants that jurisdiction exists on the second ground. They rest their case on the question of jurisdiction on the ground that a federal question is involved, in that, if the decision of the Supreme Court is permitted to stand, it would, in violation of the Constitution of the United States and section 2 of the Organic Act of Porto Rieo, impair the validity of a .contract entered into between two political parties, and would deprive the people of Porto Rieo of equal rights under the law, and would unreasonably deprive them of the privilege of suffrage, which was extended to them under section 35 of the Organic Act, as well as under sections 25, 2.6, 27, 28, and 36. The main facts out of which the issues arise in this case, both as to jurisdiction, and on the merits, are as follows: Since 1904 -the Partido Union de Puerto Rico, or the Union Party of Porto Rieo, which will hereinafter he referred to as the Unionist Party> has been the majority party in Porto Rieo. From 1904 to 1924 another political party designated as the Partido Republicano Puertorriqueño, or the Republican Party of Porto Rico, which will hereinafter be referred to as the Republican party, has contested the elections with the Unionist Party. In 1906 a third party appeared, which, without printing its Spanish title, may be referred to as the Socialist Party, but which had few followers until 1917. In 1920 it polled nearly 60,000 votes. For some reason, which does not appear in the record, the Unionist Party and the Republican Party decided to form an alliance in the election of 1924, which they did by calling conventions of their respective parties in May of that year, each of which adopted a resolution to the effect that the said parties should form a political alliance or coalition under the name of the Porto Rican Alliance, which “shall assume and exercise all the powers and prerogatives appertaining to the two historical parties of Porto Rieo called the Porto Rieo Union Party and the Porto Rican Republican Party.” Arrangements were agreed upon for the management of the affairs of the Alliance, the Central Committees of the two parties to remain in recess “for the duration of the coalition.” As a result of this coalition, there was a split in the Republican Party and a new or fourth party was organized, which styled itself the Constitucional Historice Party, which will hereinafter be referred to as the Constitutional Party. In the general election of 1924, as a result of the coalition, the Unionist party and the Republican Party agreed on candidates and each party nominated the same persons for the several offices to be filled, but they were grouped under the separate party names and insignia on the ballot in that election, which they could do under the Election and Registration Law of Porto Rieo as it then stood, which provided for a form of the Australian ballot. The Socialist Party and the new Constitutional Party also took a leaf out of the book of the Alliance and nominated the same candidate for Resident Commissioner at Washington. The result of this arrangement was that the Unionist Party in the election of 1924 still remained the majority parfy and the Aliianee elected their candidates by a substantial majority. In May, 1927 (Laws 1927, p. 394, No. 1), sections 40 and 42 of the Election and Registration Law of Porto Rico were both amended, as counsel for appellants claim, as a result of complaints, that, since the Unionist Party and the Republican Party each cast more votes in prior elections than the Socialist Party, they had all the important election officials at the polls under the law. Whether the reason advanced by counsel was the real reason for the amendments, it is unnecessary to determine. The returns from the 1924 election, however, disclose that the Repute lican Party has lost its standing as the second party numerically, owing to the split in its ranks due to the Alliance, and the Socialist Party has assumed that position. In any event, the Legislature in 1927, Aet No. 1, adopted as an amendment to section 40, a provision common in many of the states, preventing two or more parties from fusing by each nominating the same person for the same office. Section 40 as amended now reads as follows: “Section 40. No person shall be a candidate for more than one office, nor for the same office on two or more different tickets. If he has been nominated for two or more offices on one or more tickets or for the same office on two or more tickets, he must select the office and tieket on which he prefers his name to appear as a candidate. In the event of a candidate failing to make such selection prior to twelve o’clock noon on September 30th, his name shall be certified on the ticket and for the office for which he was first nominated. Should it be impossible to determine the office or tieket for which he was first chosen, then his name shall be certified for the office or tickets first named in the petition or certificate nominating him.” (The essential parts of the amendment are indicated by the italics.) To section 42, which regulates the use of party names and insignia on the ballots and how they may be changed, the amendment of 1927 added a provision, with the evident purpose of permitting the alliance entered into between the Unionist Party and the Republican Party in 1924 to continue, if they so elected, but under a new arrangement as to the grouping of candidates, viz. instead of each member of the allianee grouping the candidate of both parties under its own party name, which could no longer be done under section 40 as amended, an allianee or coalition of parties was permitted to adopt a new general name and insigne, containing the insignia of each party of the allianee and register the candidates of the allianee in one group under the general name and insigne so adopted. The amendment to section 42 reads as follows: “Provided, That such parties as at the previous election went to the polls as an allianee or coalition and registered separate tickets in which the same candidates either totally or in part appeared for the same offices, may file in the office of the Executive Secretary of Porto Rico on petition of the central directing organization of said alliance or coalition, a general name and an insigne for said alliance or coalition containing the insigne of each of the allied or coalition parties, and underneath it one sole tieket shall be registered under the prescriptions of section 40 of the Election and Registration Law as hereby amended; Provided, further, That any alliance or coalition, going to the polls under one name or insigne as determined in the foregoing proviso, shall be considered as one single party with the same prerogatives, rights and duties as under the law pertained to the parties composing it, and hereafter it shall be considered as a principal or organized party according to the number of votes obtained thereby at the election, as herein provided.” In March, 1928, the Directive Committee of the Allianee, claiming to represent both members of the Alliance, voted to continue the allianee and coalition and proceeded to nominate candidates for the several offices, and certified the list to the Executive Secretary, together with the party name to be placed at the head of their group of candidates on the ballot and the insigne, which also included the insignia of the members of the Allianee. The name adopted was the Alianza Puertorriqueño, or the Porto Rican Allianee, and the insignia adopted was “an evenly balanced pair of scales bearing the name Alianza Puertorriqueño and embodying also the names of the two historical parties: ‘Union de Puerto Rico’ and ‘Republicano Puertorriqueño’ and their, respective insignia: the two hands and the eagle.” Under date of August 28, 1928, a certificate was also forwarded to the Executive Secretary, stating that in a General Assembly of the Alianza Puertorriqueño held in the Municipal Theatre of San Juan on August 26,1928, it was resolved as f ollows: “B. To ratify the resolution of the Directive Committee of the Porto Riean Aliianee of March 13, 1928, communicated to the Executive Secretary of Porto Rico and by virtue thereof the Porto Riean Alliance will go to the polls under a single ticket and insigne already adopted and registered with the official name of the Porto Rican Alliance of the Porto Rican Union party and the Porto Riean Republican party, the historical names of the two allied parties together with their symbols, personalities, rights and prerogatives thus remaining as the patrimony of The Allianee. “That the Directive Committee of the Porto Rican Alliance, at its meeting of August 28, 1928, resolved to use as the abbreviated name of its collectivity that of Porto Riean Alliance and under that abbreviated name shall file in the office of the Executive Secretary of Porto Rico all of the certificates of conventions.” Nominations for the several offices were thereafter sent in by the Allianee. The two other parties, the Socialist and the Constitutional Party, were not to be outdone, and they also entered into an allianee, as they were permitted to do under the amendment to section 42, having voted for the same candidate for one office in 1924, and they too nominated a single ticket, with the result that there was, apparently, more defection from either the old Union or Republican Party, or both, and the result was not satisfactory to some of the leaders of the old Unionist Party, as the Porto Riean Alliance only won the election by less than 10,000 votes, over the Socialist-Constitutional Allianee. The extent of this dissatisfaction and alarm was exposed by one of the appellants in a fervent speech delivered in a convention in 1929, purporting to be held by the old Unionist Party, in which he said of the political situation, among other things: “And if this situation is to continue, it may be foretold that the nearly fatal result attained by us in the last election, would be duplicated and centuplicated until the Union de Puerto Rico should suffer the greatest of defeats, thus disappearing, with her from Porto Rico, the highest exponent of patriotism, dignity and pride.” It was natural, in the face of possible defeat at the next election, that disagreements among the leaders should arise, and the leaders of the old Unionist Party then took action to effect a withdrawal from the Alliance, in which they were apparently supported by a very considerable majority of the active members of the old Union Party, though there were those who insisted on preserving the Allianee and fighting out the battles under its name and insigne. However, a majority of the members of the old Central Committee of the Unionist Party met and discussed the question and voted to call a convention of the Unionist Party. A convention was held and a resolution passed to withdraw from the Alliance. While this convention was being held, notices were sent out for an assemblage of the Porto Riean Allianee. A meeting was held at which some of those formerly belonging to the Unionist Party were present, and it was voted by this assemblage to continue the alliance, and retain the party name and insigne adopted in 1928. Each party, however, claims that the convention held by the other party, at which these actions were taken, was a pseudo convention. Under these circumstances and under section 42 as interpreted by the Attorney General of Porto Rico, the Executive Secretary refused to register the names of the appellants as candidates under the name of the old Union .Party with its former insigne of the clasped hands, for the election to be held in 1932, on the ground that the word “Union” and the insigne of the clasped hands were a part of the name and insigne of the Porto Riean Allianee. A petition for writ of mandamus was therefore filed by the appellants to compel the Executive Secretary to so register their names. A majority of the Supreme Court of Porto Rico sustained the action of the Executive Secretary and held that the allianee of the two old parties formed in 1924, having voluntarily acted under the amendment to section 42 in 1928, became a new political party with a distinct name and insigne; and that the appellants, while they and their followers, if they chose, could adopt a new name and new insigne, could not use any part of the name or insigne of the Porto Riean Allianee which still claimed it and the right to use it. Erom the decree of the Supreme Court the petitioners appealed to this court, and as reasons of appeal have set forth fourteen assignments of error. An analysis of the assignments, however, will disclose that with one exception they either assert findings and rulings by the court below, which are not substantiated by the record, or relate to rulings of general law or interpretations of a local statute as applied to local affairs, or involve political rights that are not protected either under the Federal Constitution or the Organic Act of Porto Rico, and hence involve no federal question. The only real ground on which the appellants can base their claim that a federal question is involved in the rulings of the court below is set out in the eleventh assignment as follows: “That the construction given by the court below to the aforesaid sections 49 and 42, and specially to section 49 of the Election and Registration Law as amended in 1927, renders the said statutes in conflict with the Organic Act of Porto Rico, sections 25, 26, 34, 35, 36 and 37 thereof, in connection with the right of suffrage, inasmuch as it impairs and defeats the free combination of voters through political coalition or fusion tickets.” We think the inclusion here of section 34 of the Organic Act must have been an inadvertence. No question was raised below under this section; the court below made no ruling under it; and there immediately follows in the assignment, after the enumeration of the several sections referred to, these significant words, “in connection with the right of suffrage.” Section 34 has no relation to suffrage as have each of the other sections enumerated. Counsel, however, have, urged in their brief here that the amendments to sections 49 and 42 in 1927 are invalid for want of proper specifications in the title of the act, but we think without merit, as the title was sufficient under the rulings of the Supreme court and of this court. Posados v. Warner, Barnes & Co., 279 U. S. 349, 344, 49 S. Ct. 333, 73 L. Ed. 729; Martinez v. People of Porto Rico (C. C. A.) 46 F.(2d) 427. As to whether this assignment raises a substantial federal question may be a debatable one. As counsel for appellee point out, the mere reference to an article of the United States Constitution or a federal statute does not raise a federal question; and a federal question essential to give jurisdiction to an appellate federal court must be substantial and necessarily involved in the opinion of the court below. New Orleans Waterworks Co. v. Louisiana, 185 U. S. 336, 344-346, 22 S. Ct. 691, 46 L. Ed. 936; Heitler v. United States, 260 U. S. 438, 439, 43 S. Ct. 185, 67 L. Ed. 338; Equitable Life Assurance Society v. Brown, 187 U. S. 398, 311, 23 S. Ct. 123, 47 L. Ed. 190. However, we are inclined to the view that the court below in its opinion ruled on the question of whether section 42 contravened , any of the sections of the Organic Act relating to suffrage, and since the Organic Act; unlike a State Constitution, is a federal statute, the appellants are entitled to be heard here on that issue. Counsel for appellants persistently refer to section 49 as being unconstitutional, and insist it is so linked with section 42 that, if section 49 violates the Organic Act, section 42 must also be held to do so, or at least be rendered invalid because both were included in the same act. The connection betweeln the two sections, however, is not sufficiently clear, we think, to require them to stand or fall together. Nor do we think section 49 was involved in the question of whether the Union Party could or did withdraw from the Alliance in 1929, and retain its old prerogatives as to name and insigne. The two sections relate to entirely different subjects — one to the grouping of candidates; the other to the adoption of party names and party insignia to be placed on the ballot over the party nominations and the effect of joining in an alliance or coalition. The reference in the amendment to section 42 to the prescriptions in section 49 does not necessarily render section 42 dependent on section 49. The reference was entirely superfluous. Every party, whether formed by the coalition of two parties or not, was subject to the provisions of section 49, as well as to the other provisions of the Election Act. Neither is the fact that they were coupled together in one act conclusive of their interdependence. They are two separate sections of one general act which govern registrations, nominations and elections in Porto Rico. Counsel for the appellants have assumed that the Supreme Court in its majority opinion held that section 49 was constitutional, but a careful examination of the opinion discloses no ruling on this section either one way or the other. In 'fact, the court expressly states that it does not rule upon it. The court evidently did not consider section 49 as involved in the issues before it. However, the amendment to section 49 has now been so often held to be a proper regulation of the privilege of suffrage under the Australian ballot system of voting that we think the Supreme Court might well have held it did not violate any of the provisions of the Organic Act. See People v. Czarnecki, 266 Ill. 372, 107 N. E. 625; People v. Czarnecki, 256 Ill. 320, 100 N. E. 283; Todd v. Kalamazoo, etc., Election Com’rs, 104 Mich. 474, 62 N. W. 564, 64 N. W. 496, 29 L. R. A. 330; Helme v. Lenawee County Election Com’rs, 149 Mich. 390, 113 N. W. 6, 119 Am. St. Rep. 681, 12 Ann. Cas. 473; State v. Coburn, 260 Mo. 177, 168 S. W. 956; State v. Wileman, 49 Mont. 436, 143 P. 565; State v. Porter, 13 N. D. 406, 100 N. W. 1080, 67 L. R. A. 473, 3 Ann. Cas. 794; State v. Bode, 55 Ohio St. 224, 45 N. E. 195, 34 L. R. A. 498, 60 Am. St. Rep. 696; Hayes v. Ross, 41 Utah, 580, 127 P. 340; Payne v. Hodgson, 34 Utah, 269, 97 P. 132; State v. King County Superior Ct., 60 Wash. 370, 111 P. 233, 140 Am. St. Rep. 925; State v. Anderson, 100 Wis. 523, 76 N. W. 482, 42 L. R. A. 239. The only state courts holding to the contrary are California in a divided opinion, which state has since rendered the opinion of the court ineffective by a constitutional amendment; and New York, which has followed the practice of years standing of electing judges by the same nominations by the two leading parties. By the same token we think there is nothing in the court’s interpretation of section 42 that is in contravention of any provision of the Organic Act, even if it were erroneous. It relates solely to the rights of political parties and in no way unreasonably interferes with the right of the electors voting for any candidate they see fit, whose name appears on the ballot, any more than the election law did before the amendment was made. The free expression of the right of suffrage is no more interfered with as to an elector who cannot read or write finder a law allowing his party to join with another party and group their candidates under one name and insigne, than it is under a law permitting two parties to group the same candidates under two party names and insigne. The illiterate elector votes for the same candidates in either case, and exercises just as much intelligence and freedom of choice in voting. It may interfere with the plans of political leaders, but it does not interfere with the organization of as many political parties as the people of Porto Rico see fit to establish, or the exercise of the rights of suffrage by inserting the name or names of any candidate an elector desires to vote for in his party column. The only other question raised by the assignments of error is whether the Supreme Court of Porto Rico in its majority opinion correctly interpreted section 42 as applied to the alliance of the Union and Republican Party. Unless section 42 is held to contravene the Organic Act, this is purely a local issue. While this section may be susceptible of the interpretation placed on it by the appellants, it is not so clear that it is the only construction as to warrant this court in rejecting the construction by the Supreme Court of Porto Rico, which is not without foundation, even though we might even 'adopt the other as a court of first instance. Cardona v. Quinones, 240 U. S. 83, 88, 36 S. Ct. 346, 60 L. Ed. 538; Graham v. O’Ferral (C. C. A.) 248 F. 10; Trujillo & Mercado v. Succession of Rodriguez (C. C. A.) 233 F. 208, 212; Succession of Garcia v. Hernandez (C. C. A.) 270 F. 455, 458. The suggestion may also be pertinent as bearing on the correctness of the result arrived at by the court below, that, while the sponsors of the amendment provided in detail for the method of joining two parties in an alliance, it made no provision for any method of disentangling an alliance of political parties once made under section 42. A partnership is hardly an analogous organization. In any event, the organization and control of political parties in Porto Rico, in so far as any justiciable questions are involved, that do not concern the Organic Act, present questions which are of a purely local nature, of which this court has no jurisdiction on this appeal. The judgment of the Supreme Court of Porto Rico is affirmed with costs. 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_usc1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. ELECTRIC APPLIANCE CO. v. ELLIS. In re GRAEBING DRUG & DISTRIBUTING CO. (Circuit Court of Appeals. Third Circuit. February 9, 1925.) No. 3213. Bankruptcy <®==>255 — Landlord cannot, without consent of tenant, resume possession of part of premises and recover rent for the remaining part. The landlord of bankrupt, under a lease providing that on bankruptcy rent for the remainder of the term. should become due ancT payable, on tender of the premises by the trustee, and without further agreement witli him, took possession of and occupied a part of- the premises. Heldh that it, could not split the lease, and, having taken possession of part, could not recover rent for the remainder thereafter. Appeal from the District Court of the United States for the Western District of Pennsylvania; Frederic P. Schoonmaker, Judge. In the matter of the Graebing Drug & Distributing Company, bankrupt; A. C. Ellis, trustee. The Electric Appliance Com-: pany appeals from an order of the District Court. Affirmed. For opinion below, see 1 F.(2d) 397. Calvert, Thompson & Wilson, of Pittsburgh, Pa., for appellant. Mcllvain, Murphy & Mohn and Ben Paul Brasley, all of Pittsburgh, Pa., for appellee. Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges. BUFFINGTON, Circuit Judge. The case concerns a claim for reñí for an entire term, which by the lease became due in advance by reason of bankruptcy. Instead of standing on his rights, the landlord, after the bankruptcy, took possession of; the premises under the following circumstances: Following bankruptcy, the trustee notified the landlord he elected not to continue in possession, and tendered possession. The landlord thereupon wrote the trustee that he “will accept the surrender of the premises upon the express condition that he will care for the building and rent it, if possible, for the benefit of the estate.” To this the trustee replied, by adhering to his unqualified surrender and tender of the premises, and adding: “I beg to say I could not bind the estate for future rent, as I have no authority to do so.” Subsequently the landlord himself entered into possession, used the premises himself, and placed it in the hands of a real estate agent for rent, but under condition that, if rented, he was himself to have a certain number of days in which to vacate. Thereafter he claimed to recover the rent for the full term, giving due credit for a fair monthly rental for the time he used it while the real estate agent was trying to rent. This claim the referee refused, holding: “The landlord, who claims i-ent in advance to the end of the term, must permit the tenant’s trustee in bankruptcy to have the use of the premises,to the end of the term. The landlord cannot have both the rent and the possession, nor can he, in the absence of any agreement, split the tona, and have rent for part of it, and possession for the rest. Wilson v. Pennsylvania Trust Co., 114 F. 742, 52 C. C. A. 374, 8 Am. Bankr. Rep. 169. A lease is an entire contract. MeClurg v. Price & Simms, 59 Pa. 420, 98 Am. Dee. 356. The landlord, having resumed the occupancy of part of the premises without the consent of the tenant, cannot claim an apportioned- rent for the rest.” On certificate, the court followed the holding of the referee, and such action is here assigned as error. We hold the referee and court were right. In the adjustment of rent questions, the courts of the Pennsylvania districts have followed Wilson v. Pennsylvania Trust Co., 114 F. 742, 52 C. C. A. 374, in holding that if, without agreement, the landlord split the term, he could not claim it as though unsplit. It is urged that the present case is ruled by Rosenblum v. Uber, 256 F. 590, 167 C. C. A. 614; but the facts of the present case are essentially different. The parties in the Eosenblum Case acted under an agreement, in that the qualified offer of the landlord in taking possession was accepted by the trustee. Here the qualified offer of the landlord was unqualifiedly rejected by the trustee, and the subsequent taking of possession and occupation of the premises by the landlord was his own independent aet. When the differing facts in the Wilson and Eosenblum Cases are noted, it will he seen the latter ease is in no way a departure from the former. The judgment below is affirmed. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
sc_respondent	240	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. CALIFORNIA v. FEDERAL POWER COMMISSION et al. No. 187. Argued March 1, 1962. Decided April 30, 1962. William, M. Bennett argued the cause and filed briefs for petitioner. Solicitor General Cox argued the cause for the Federal Power Commission, respondent. With him on the briefs were Assistant Attorney General Orrick, John G. Laughlin, Jr., John C. Mason, Ralph S. Spritzer, Howard E. Wahren-brock, Robert L. Russell and Arthur H. Fribourg. Arthur H. Dean argued the cause for the El Paso Natural Gas Co., respondent. With him on the briefs were Charles V. Shannon, Stanley M. Morley and Stephen Rackow Kaye. Opinion of the Court by Mr. Justice Douglas, announced by Mr. Justice Brennan. El Paso Natural Gas Company first acquired the stock of the Pacific Northwest Pipeline Corp. and then applied to the Federal Power Commission for authority to acquire the assets pursuant to § 7 of the Natural Gas Act, 52 Stat. 825, 15 U. S. C. § 717f (c). This application was dated August 7, 1957. Prior thereto, on July 22, 1957, the Federal Government commenced an action against El Paso and Pacific Northwest, alleging that El Paso's acquisition of the stock of Pacific Northwest violated § 7 of the Clayton Act, 38 Stat. 731, as amended, 64 Stat. 1125, 15 U. S. C. § 18. On September 30,1957, El Paso and Pacific Northwest filed a motion to dismiss the antitrust suit or to stay it, pending completion of the proceedings before the Commission. On October 21, 1957, that motion was denied after hearing; and we denied certiorari. 355 U. S. 950. In May and June 1958, the Department of Justice wrote four letters to the Commission, asking that the proceeding be stayed pending the outcome of the antitrust suit. On July 29, 1958, the Department of Justice was advised by the Commission that it would not stay its proceedings. The Commission invited the Antitrust Division of the Department to participate in the administrative proceedings; but it did not do so. The hearings before the Commission started September 17,1958. On October 2,1958, El Paso and Pacific Northwest moved in the District Court for a continuance of the antitrust suit. On October 6, 1958, the Department of Justice asked the Commission to postpone its hearing, pending final outcome of the antitrust suit which had then been set for trial November 17,1958. On October 7, 1958, the Commission wrote the District Court that if the court denied El Paso and Pacific Northwest’s motion for a continuance and proceeded with the antitrust trial, the Commission would continue its merger hearings to a date that would not conflict with the trial date of the antitrust case, but that if the court granted the motion for continuance, the Commission would proceed with its hearing. On October 13, 1958, the District Court continued the antitrust suit until the final decision in the administrative proceedings. The latter proceedings were concluded, the Commission authorizing the merger on December 23, 1959. 22 F. P. C. 1091, 23 F. P. C. 350. The merger was consummated December 31, 1959. Petitioner intervened in the administrative proceedings August 27, 1957, and obtained review by the Court of Appeals, which affirmed the Commission (111 U. S. App. D. C. 226, 296 F. 2d 348), Judge Fahy dissenting. We granted certiorari, 368 U. S. 810. Evidence of antitrust violations is plainly relevant in merger applications, for part of the content of “public convenience and necessity” as used in § 7 of the Natural Gas Act is found in the laws of the United States. City of Pittsburgh v. Federal Power Commission, 99 U. S. App. D. C. 113, 237 F. 2d 741. Immunity from the antitrust laws is not lightly implied. The exemption of agricultural cooperatives from the antitrust laws granted by § 6 of the Clayton Act and § 1 and § 2 of the Capper-Volstead Act of 1922 became relevant in Milk Producers Assn. v. United States, 362 U. S. 458. While § 7 of the Clayton Act gave immunity to “transactions duly consummated pursuant to authority given by . . . the Secretary of Agriculture under any statutory provision vesting such power in such . . . Secretary,” we held that the only authority of the Secretary was to approve “marketing agreements” (id., 469-470) and not other types of agreements or restraints, typically covered by the antitrust laws. Accordingly, we held that the District Court was authorized to direct the cooperative to dispose as a unit of the assets of an independent producer that had been acquired to stifle competition and restrain trade. We could not assume that Congress, having granted Only a limited exemption from the antitrust laws, nonetheless granted an overall inclusive one. See United States v. Borden Co., 308 U. S. 188, 198-202. “When there are two acts upon the same subject, the rule is to give effect to both if possible.” Id., at 198. Here, as in United States v. R. C. A., 358 U. S. 334, while “antitrust considerations” are relevant to the issue of “public interest, convenience, and necessity” (id., at 351), there is no “pervasive regulatory scheme” (ibid.) including the antitrust laws that has been entrusted to the Commission. And see National Broadcasting Co. v. United States, 319 U. S. 190, 223. Under the Interstate Commerce Act, mergers of carriers that are approved have an antitrust immunity, as §5(11) of that Act specifically provides that the carriers involved “shall be and they are hereby relieved from the operation of the antitrust laws . . . .” See McLean Trucking Co. v. United States, 321 U. S. 67. There is no comparable provision under the Natural Gas Act. Section 7 of the Clayton Act — -which prohibits stock acquisitions “where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly” — contains a proviso that “Nothing contained in this section shall apply to transactions duly consummated pursuant to authority given by the . . . Federal Power Commission . . . under any statutory provision vesting such power in such Commission . . . .” The words “transactions duly consummated pursuant to authority” given the Commission “under any statutory provision vesting such power” in it are plainly not a grant of power to adjudicate antitrust issues. Congress made clear that by this proviso in § 7 of the Clayton Act “. . . it is not intended that . . . any . . . agency” mentioned “shall be granted any authority or powers which it does not already possess.” S. Rep. No. 1775, 81st Cong., 2d Sess., p. 7. The Commission’s standard, set forth in § 7 of the Natural Gas Act, is that the acquisition, merger, etc., will serve the “public convenience and necessity.” If existing natural gas companies violate the antitrust laws, the Commission is advised by § 20 (a) to “transmit such evidence” to the Attorney General “who, in his discretion, may institute the necessary criminal proceedings.” Other administrative agencies are authorized to enforce § 7 of the Clayton Act when it comes to certain classes of companies or persons; but the Federal Power Commission is not included in the list. We do not decide whether in this case there were any violations of the antitrust laws. We rule only on one select issue and that is: should the Commission proceed to a decision on the merits of a merger application when there is pending in the courts a suit challenging the validity of that transaction under the antitrust laws? We think not. We think the Commission in those circumstances should await the decision of the courts. The Commission considered the interplay between § 7 of the Clayton Act and § 7 of the Natural Gas Act and said: “Section 7 of the Clayton Act, under which the antitrust suit was brought, prohibits the acquisition by one corporation of the stock or assets of another corporation where 'the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.’ Exempt, however, are transactions consummated pursuant to Commission authority. This shows, reasons the presiding examiner, that Congress placed reliance on the Commission not to approve an acquisition of assets in violation of the injunction of the Clayton Act, unless in the carefully exercised judgement of the Commission, the acquisition would nevertheless be in the public interest. What we are attempting to arrive at is the public convenience and necessity. In reaching our determination, we do not have authority to determine whether a given transaction is in violation of the Clayton Act, but we are required to consider the bearing of the policy of the antitrust laws on the public convenience and necessity. City of Pittsburgh v. F. P. C., 237 F. 2d 741, 754 (CADC). With the presiding examiner, we find that any lessening of competition whether in the consumer markets or the producing fields, does not prevent our approving the merger because there are other factors which outweigh the elimination of Pacific as a competitor. In any case, it appears that any lessening of competition is not substantial.” 22 F. P. C. 1091, 1095. Apart from the fact that the Commission did undertake to make a finding reserved to the courts by § 7 of the Clayton Act, there are practical reasons why it should have held its hand until the courts had acted. One is that if the Commission approves the transaction and the courts in the antitrust suit later hold it to be illegal, an unscrambling is necessary. Milk Producers Assn. v. United States, supra. Thus a needless waste of time and money may be involved. Also these unscrambling processes often raise complicated and perplexing problems on tax matters and otherwise, as our recent decision in United States v. du Pont & Co., 353 U. S. 586; 366 U. S. 316, shows. Such complexities are inherent in the situation, as approval of the transaction by the Commission would be no bar to the antitrust suit. See United States v. R. C. A., supra. Another practical reason is that a transaction consummated under the aegis of the Commission as being a matter of “public convenience and necessity” is bound to carry momentum into the antitrust suit. The very prospect of undoing what was done raises a powerful influence in the antitrust litigation, as United States v. du Pont & Co., supra, illustrates. The orderly procedure is for the Commission to await decision in the antitrust suit before taking action. Section 7 of the Clayton Act, so far as material here, prohibits stock acquisitions having a prescribed effect. Section 7 of the Natural Gas Act confers jurisdiction on the Commission over the acquisition of assets of natural gas companies, not over stock acquisitions in them. Had the Commission stayed its hand and had the courts found the stock acquisition unlawful, the entire transaction would have been set aside in limine. Had the courts found the stock acquisition lawful, presumably no problems under § 7 of the Clayton Act would have remained. When the Commission proceeds in the face of a pending but undecided antitrust suit and approves a merger that has been preceded, as this one was, by a stock acquisition, it in substance treats the entire relation of the companies — from the acquisition of stock to the merger — as an integrated transaction. If that administrative action were approved, the Commission would be allowed to do by indirection what it has no jurisdiction to do directly. It is not for us to say that the complementary legislative policies reflected in § 7 of the Clayton Act on the one hand and in § 7 of the Natural Gas Act on the other should be better accommodated. Our function is to see that the policy entrusted to the courts is not frustrated by an administrative agency. Where the primary jurisdiction is in the agency, courts withhold action until the agency has acted. Texas & Pac. R. Co. v. Abilene Oil Co., 204 U. S. 426. The converse should also be true, lest the antitrust policy whose enforcement Congress in this situation has entrusted to the courts is in practical effect taken over by the Federal Power Commission. Moreover, as noted, the Commission in holding that “any lessening of competition is not substantial” was in the domain of the Clayton Act, a domain which is entrusted to the court in which the antitrust suit was pending. The judgment of the Court of Appeals is reversed and the case is remanded for proceedings in conformity with this opinion. It is so ordered. Mr. Justice Frankfurter took no part in the decision of this case. Mr. Justice White took no part in the consideration or decision of this case. Section 7 of the Clayton Act provides in relevant part: “No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly. “No corporation shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of one or more corporations engaged in commerce, where in any line of commerce in any section of the country, the effect of such acquisition, of such stocks or assets, or of the use of such stock by the voting or granting of proxies or otherwise, may be substantially to lessen competition, or to tend to create a monopoly.” Section 11 of the Clayton Act, 15 U. S. C. § 21, vests authority to enforce compliance with § 7 by the persons subject thereto: “. . .in the Interstate Commerce Commission where applicable to common carriers subject to the Interstate Commerce Act, as amended; in the Federal Communications Commission where applicable to common carriers engaged in wire or radio communication or radio transmission of energy; in the Civil Aeronautics Board where applicable to air carriers and foreign air carriers subject to the Civil Aeronautics Act of 1938; in the Federal Reserve Board where applicable to banks, banking associations, and trust companies; and in the Federal Trade Commission where applicable to all other character of commerce to be exercised as follows: . . .” Where “the effect of such acquisition may be substantially to lessen competition.” Section 7, supra, note 1. In that case, which also was under § 7 of the Clayton Act, we said: “Section 7 is designed to arrest in its incipiency not only the substantial lessening of competition from the acquisition by one cor-poraton of the whole or any part of the stock of a competing corporation, but also to arrest in their incipiency restraints or monopolies in a relevant market which, as a reasonable probability, appear at the time of suit likely to result from the acquisition by one corporation of all or any part of the stock of any other corporation.” 353 U. S., at 589. As to the remedy we stated in United States v. du Pont & Co., 366 U. S., at 334: “We think the public is entitled to the surer, cleaner remedy of divestiture. The same result would follow even if we were in doubt. For it is well settled that once the Government has successfully borne the considerable burden of establishing a violation of law, all doubts as to the remedy are to be resolved in its favor.” Section 7 (c) provides in relevant part: “No natural-gas company or person which will be a natural-gas company upon completion of any proposed construction or extension shall engage in the transportation or sale of natural gas, subject to the jurisdiction of the Commission, or undertake the construction or extension of any facilities therefor, or acquire or operate any such facilities or extensions thereof, unless there is in force with respect to such natural-gas company a certificate of public convenience and necessity issued by the Commission authorizing such acts or operations.” 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	56	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". FLOWERS v. COMMISSIONER OF INTERNAL REVENUE. No. 11242. Circuit Court of Appeals, Fifth Circuit. March 23, 1945. James N. Ogden, of Mobile, Ala., for petitioner. Helen Goodner, Sewall Key, Mamie S. Price, and Robert N. Anderson, Sp. Assts. to Atty. Gen., Samuel O. Clark, Jr., Asst. Atty. Gen., and J. P. Wenchel, Chief Counsel, Bureau of Internal Revenue, and C. R. Marshall, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., for respondent. Before HUTCHESON, HOLMES, and McCORD, Circuit Judges. HOLMES, Circuit Judge. This appeal involves income taxes for the calendar years 1939 and 1940. The question presented is whether deductions taken by the taxpayer for traveling expenses between Jackson, Mississippi, his place of- residence, and Mobile, Alabama, his principal place of employment, and living expenses while in Mobile, are allowable, under the provisions of Section 23 (a) (1) of the Internal Revenue Code, 26 U.S.C.A. Int. Rev. Code, § 23(a) (1), as traveling expenses while away from home in the pursuit of a trade or business. The Tax Court sustained the Commissioner’s disallowance of the deductions. The taxpayer was born in Mississippi, and has been a citizen of that state all of his life. Early in his career as a lawyer, he moved to Jackson, and has lived there with liis family since 1903. The house that constitutes his present residence is on the same plot of ground where he has lived since 1912. He built that house and, in the usual and ordinary meaning of the word, it is his home. In a broader sense, Jackson may be called his home. His church and club affiliations are there; he has been a qualified voter in Jackson since 1903; there he pays all of his taxes; there, each year since 1903, he has duly paid his license fee to practice law, the only business or profession he has ever had. Since he entered private practice, he has always been a member of a law firm in Jackson, and he is now the senior member of the firm of Flowers, Brown, and Hester, which firm he organized in 1922. During the years 1939 and 1940, the taxpayer was general counsel and vice-president of the Gulf, Mobile & Ohio Railroad Company, and was in charge of the law business of that company. His duties were •of a purely legal nature, and his principal office was in Mobile, Alabama. As an attorney, he had been connected with this company and its predecessors for many years, but had continued to reside in Jackson and do retain his law office there. This was satisfactory to the company, provided he paid his own traveling expenses to and from Mobile and his living expenses while in each of the two cities. During 1939 he spent 203 days in Jackson and 66 in Mobile, making 33 trips between the two places; during 1940 he spent 168 days in Jackson and 102 in Mobile, making 40 trips. In his income tax returns, he deducted his traveling expenses incurred on those trips. He received no professional income in those years except from the railroad company. In addition to social reasons, the petitioner had a substantial business purpose in maintaining his home and law office in Jackson. It takes time to acquire a general law practice, and the good will of clients is the most valuable asset a lawyer can have. While his present position with the railroad company seems permanent, he must be elected each year; and there is inherently an element of uncertainty in such a situation. He wanted to keep his professional connections as far as he could, so that he would have a place to go and something to do if he should resign or not be reelected at any time. He could not afford to sever all connections with his clients and acquaintances of many years. He was willing to undergo the hardships of travel and to pay his own expenses, but he declined to move his home or to surrender the good will of his business. There is no dispute in this case about the facts; the question before us is one of law; the decision turns at last upon the meaning of the word home in Section 23(a) (1) of the Internal Revenue Code. The Tax Court held that home, as used in this section, means the post, station, or place of business, where the taxpayer is employed; and that on these trips the petitioner was not away from home in the pursuit of a trade or calling. We find no basis for this interpretation. There is no indication in the statute of a legislative intention to give the word an unusual or extraordinary meaning. For the court to do so would be an invasion of the legislative domain. We think the word home as used in the statute means that place where one in fact resides. Home is the fundamental idea of domicile, and yet there is a difference in the legal conception of the two words. Domicile expresses tile legal relation existing between a person and the place where he has his permanent home in contemplation of law. Home denotes the principal place of abode of one who has the intention to live there permanently. A commuter is not deemed away from home while going to and from his work in a nearby town or city; but the petitioner was not a commuter; the cheapest and most convenient means of transportation for him was by way of New Orleans, which was a long and arduous trip, where one often missed connections and had to spend the night in a hotel. If Mobile was the taxpayer’s home because his principal post of duty was there, then he either had two homes or he was away from home when he was in Jackson on railroad business. If he had only one home, then with his domicile and citizenship in Mississippi, his home would be in Alabama; at his office in Mobile, he would be at home; at his domicile in Jackson on company business, he would be away from home; but in our view it is unnecessary to indulge in these speculations. The Government contends that the principal place of employment is a question of fact in each case. Conceding as a matter of fact that the taxpayer’s principal office was in Alabama, and that his principal duties were performed there, nevertheless a question of law is presented as to the statutory meaning of the word home. The undisputed facts show that petitioner’s home was in Mississippi unless the statute fixes it at the place of employment. There are no facts in this record sufficient to support a finding that the petitioner’s home followed his vocation to another state; there is no legal requirement to induce this conclusion; the income-tax statutes envisage a home in which the producer lives with his dependents. When at home, he is allowed to deduct sums estimated to be sufficient to provide him and his dependents with the necessaries of life. While away from home in pursuit of a trade or business, he is allowed to deduct traveling expenses, including the entire amounts expended for meals and lodging. The decision of the Tax Court is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. Coburn v. Commissioner of Internal Revenue, 2 Cir., 138 F.2d 763; Wallace v. Commissioner of Internal Revenue, 9 Cir., 144 F.2d 407. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
sc_adminaction_is	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. MOYA et ux. v. DeBACA, dba DeBACA & CO. CREDIT & COLLECTION AGENCY, et al. No. 996, Misc. Decided June 23, 1969. William G. Fitzpatrick, Jr., for appellants. Claud S. Mann for DeBaca et al., and Boston E. Witt, Attorney General, and James V. Noble, Assistant Attorney General, for the State of New Mexico, appellees. Per Curiam. The motion for leave to proceed in forma pauperis is granted. The motion to dismiss is granted and the appeal is dismissed. Mr. Justice Harlan and Mr. Justice Brennan would vacate the judgment and remand the case in light of Sniadach v. Family Finance Corp. of Bay View, ante, p. 337. Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
sc_casesource	158	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. HYNES et al. v. MAYOR AND COUNCIL OF BOROUGH OF ORADELL et al. No. 74-1329. Argued December 10, 1975 Decided May 19, 1976 Burger, C. J., delivered the opinion of the Court, in which Stewart, White, Blackmun, and Powell, JJ., joined and in Part 3 of which Brennan, J., joined. Brennan, J., filed an opinion concurring in part, in which Marshall, J., joined, post, p. 623. Rehn-qtjist, J., filed a dissenting opinion, post, p. 630. Stevens, J., took no part in the consideration or decision of the case. Telford Taylor argued the cause for appellants. With him on the brief were Kenneth Simon and Robert Funicello. James A. Major argued the cause for appellees. On the brief was Everett I. Smith. Mr. Chief Justice Burger delivered the opinion of the Court. The question presented in this case is whether a municipal ordinance requiring advance notice to be given to the local police department by “[a]ny person desiring to canvass, solicit or call from house to house ... for a recognized charitable cause . . . or . . . political campaign or cause ... in writing, for identification only” violates the guarantees of freedom of speech and due process of law embodied in the Fourteenth Amendment. (1) The Borough of Oradell, N. J., has enacted two ordinances that together regulate most forms of door-to-door canvassing and solicitation. A broad ordinance, No. 573, requires all solicitors to obtain a permit from the borough clerk, by making a formal application, accompanied by a description and photograph of the applicant, the description and license number of any automobile to be used in soliciting, a driver’s license, and other data. The ordinance apparently requires that the chief of police approve issuance of the permit. The ordinance at issue here, Ordinance No. 598A, is an amendment to this broader scheme, and imposes no permit requirement; it covers persons soliciting for “a recognized charitable cause, or any person desiring to canvass, solicit or call from house, to house for a Federal, State, County or Municipal political campaign or cause.” Ordinance No. 598A also applies to “representatives of Borough Civic Groups and Organizations and any veterans honorably discharged or released under honorable circumstances” from the Armed Forces. Those covered by this ordinance are required only to “notify the Police Department, in writing, for identification only.” Once given, the notice is “good for the duration of the campaign or cause.” Appellants are Edward Hynes, a New Jersey state assemblyman whose district was redrawn in 1973 to include the Borough of Oradell, and three Oradell registered voters. They brought suit in the Superior Court of Bergen County, N. J., seeking a declaration that Ordinance No. 598A was unconstitutional and an injunction against its enforcement. Appellant Hynes alleged that he wished to campaign for re-election in Oradell. The other appellants alleged either that they wished to canvass door to door in the borough for political causes or that they wished to speak with candidates who campaigned in Oradell. Each appellant claimed that the ordinance would unconstitutionally restrict such activity. The Superior Court held the ordinance invalid for three reasons. First, the court noted that it contained no penalty clause, and hence was unenforceable under New Jersey law; second, the court held that the ordinance was not related to its announced purpose — the prevention of crime — since it required only candidates and canvassers to register. Finally, the court concluded that the ordinance was vague and overbroad — unclear “as to what is, and what isn’t required” of those who wished to canvass for political causes. The Appellate Division of the Superior Court affirmed, reaching and accepting only the first ground for the trial court’s decision. The Supreme Court of New Jersey reversed. 66 N. J. 376, 331 A. 2d 277 (1975). It noted that a penalty clause, enacted during the pendency of the appeal, cured the defect that had concerned the Appellate Division. Relying largely on a decision in a case dealing with a similar ordinance, Collingswood v. Ringgold, 66 N. J. 350, 331 A. 2d 262 (1975), appeal docketed, No. 74-1335, the court held that Ordinance No. 598A was a legitimate exercise of the borough’s police power, enacted to prevent crime and to reduce residents’ fears about strangers wandering door to door. The ordinance regulated conduct— door-to-door canvassing — as well as speech, and in doing so “it could hardly be more clear.” 66 N. J., at 380, 331 A. 2d, at 279. The ordinance, the court thought, imposed minimal requirements which did not offend free speech interests: “It may be satisfied in writing, suggesting that resort may be had to the mails. It need be fulfilled only once for each campaign. There is no fee. The applicant does not have to obtain or carry a card or license. And perhaps most importantly, no discretion reposes in any municipal official to deny the privilege of calling door to door. The ordinance is plainly an identification device in its most basic form.” Ibid. Two of the court’s seven members dissented. One justice thought the ordinance “plain silly” as a crime-prevention measure, for the reasons given by the trial court. Id., at 382, 331 A. 2d, at 280; another justice thought that the “ordinance has the potential to have a significant chilling effect on the exercise of first amendment rights and thus infringes on these rights.” Id., at 389, 331 A. 2d, at 284. (2) We are not without guideposts in considering appellants’ First Amendment challenge to Ordinance No. 598A. “Adjustment of the inevitable conflict between free speech and other interests is a problem as persistent as it is perplexing,” Niemotko v. Maryland, 340 U. S. 268, 275 (1951) (Frankfurter, J., concurring in result), and this Court has in several cases reviewed attempts by municipalities to regulate activities like canvassing and soliciting. Regulation in this area “must be done, and the restriction applied, in such a manner as not to intrude upon the rights of free speech and free assembly,” Thomas v. Collins, 323 U. S. 516, 540-541 (1945). But in these very cases the Court has consistently recognized a municipality’s power to protect its citizens from crime and undue annoyance by regulating soliciting and canvassing. A narrowly drawn ordinance, that does not vest in municipal officials the undefined power to determine what messages residents will hear, may serve these important interests without running afoul of the First Amendment. In Lovell v. Griffin, 303 U. S. 444 (1938), the Court held invalid an ordinance that prohibited the distribution of “literature of any kind . . . without first obtaining written permission from the City Manager,” id., at 447. The ordinance contained “no restriction in its application with respect to time or place,” and was “not limited to ways which might be regarded as inconsistent with the maintenance of public order or as involving disorderly conduct, the molestation of the inhabitants, or the misuse or littering of the streets.” Id., at 451. A year later, in Schneider v. State, 308 U. S. 147 (1939), the Court held unconstitutional an Irvington, N. J., ordinance that dealt specifically with house-to-house canvassers and solicitors. The ordinance required them to obtain a permit, which would not issue if the chief of police decided that “the canvasser is not of good character or is canvassing for a project not free from fraud.” Id., at 158. Because the Court concluded that the canvasser’s “liberty to communicate with the residents of the town at their homes depends upon the exercise of the officer’s discretion,” id., at 164, the Court held the ordinance invalid. In Cantwell v. Connecticut, 310 U. S. 296 (1940), the Court held that a similar permit ordinance, as applied to prevent Jehovah’s Witnesses from soliciting door to door, infringed upon the right to free exercise of religion, guaranteed by the First and Fourteenth Amendments. And in Martin v. Struthers, 319 U. S. 141 (1943), the Court struck down a municipal ordinance that made it a crime for a solicitor or canvasser to knock on the front door of a resident’s home or ring the doorbell. See also Staub v. City of Baxley, 355 U. S. 313 (1958). In reaching these results, the Court acknowledged the valid and important interests these ordinances sought to serve. In Martin, supra, at 144, Mr. Justice Black writing for the Court stated: “Ordinances of the sort now before us may be aimed at the protection of the householders from annoyance, including intrusion upon the hours of rest, and at the prevention of crime. Constant callers, whether selling pots or distributing leaflets, may lessen the peaceful enjoyment of a home as much as a neighborhood glue factory or railroad yard which zoning ordinances may prohibit. . . . In addition, burglars frequently pose as canvassers, either in order that they may have a pretense to discover whether a house is empty and hence ripe for burglary, or for the purpose of spying out the premises in order that they may return later. Crime prevention may thus be the purpose of regulatory ordinances.” As Mr. Justice Black suggested, the lone housewife has no way of knowing whether the purposes of the putative solicitor are benign or malignant, and even an innocuous caller “may lessen the peaceful enjoyment of a home.” Ibid. In his view a municipality “can by identification devices” regulate canvassers in order to deter criminal conduct by persons “posing as canvassers,” id., at 148, relying on. the Court’s statement in Cantwell, supra, at 306: “Without doubt a State may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent.” These opinions of the Court and the dissenting opinions found common ground as to the important municipal interests at stake. See Martin v. Struthers, supra, at 152 (Frankfurter, J., dissenting); id., at 154 (Reed, J., dissenting); Douglas v. Jeannette, 319 U. S. 157, 166 (1943) (Jackson, J., dissenting in Martin v. Struthers). Professor Zechariah Chafee articulated something of the householder's right to be let alone, saying: “Of all the methods of spreading unpopular ideas, [house-to-house canvassing] seems the least entitled to extensive protection. The possibilities of persuasion are slight compared with the certainties of annoyance. Great as is the value of exposing citizens to novel views, home is one place where a man ought to be able to shut himself up in his own ideas if he desires.” Free Speech in the United States 406 (1954). Professor Chafee went on to note: “[These cases] do not invalidate all ordinances that include within their scope . . . doorway dissemination of thought. Several sentences in the opinions state that ordinances suitably designed to take care of legitimate social interests are not void.” Id., at 407. There is, of course, no absolute right under the Federal Constitution to enter on the private premises of another and knock on a door for any purpose, and the police power permits reasonable regulation for public safety. We cannot say, and indeed appellants do not argue, that door-to-door canvassing and solicitation are immune from regulation under the State’s police power, whether the purpose of the regulation is to protect from danger or to protect the peaceful enjoyment of the home. See Rowan v. Post Office Dept., 397 U. S. 728, 735-738 (1970). (3) There remains the question whether the challenged ordinance meets the test that in the First Amendment area “government may regulate . . . only with narrow specificity.” NAACP v. Button, 371 U. S. 415, 433 (1963). As a matter of due process, “[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939). The general test of vagueness applies with particular force in review of laws dealing with speech. “[S] tricter standards of permissible statutory vagueness may be applied to a statute having a potentially inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser.” Smith v. California, 361 U. S. 147, 151 (1959). See also Buckley v. Valeo, 424 U. S. 1, 76-82 (1976); Broadrick v. Oklahoma, 413 U. S. 601, 611-612 (1973). Notwithstanding the undoubted power of a municipality to enforce reasonable regulations to meet the needs recognized by the Court in the cases discussed, we conclude that Ordinance No. 598A must fall because in certain respects “men of common intelligence must necessarily guess at its meaning.” Connally v. General Constr. Co., 269 U. S. 385, 391 (1926). Since we conclude that the ordinance is invalid because of vagueness, we need not reach the other arguments appellants advance. First, the coverage of the ordinance is unclear; it does not explain, for example, whether a “recognized charitable cause” means one recognized by the Internal Revenue Service as tax exempt, one recognized by some community agency, or one approved by some municipal official. While it is fairly clear what the phrase “political campaign” comprehends, it is not clear what is meant by a “Federal, State, County or Municipal... cause.” Finally, it is not clear what groups fall into the class of “Borough Civic Groups and Organizations” that the ordinance also covers. Second, the ordinance does not sufficiently specify what those within its reach must do in order to comply. The citizen is informed that before soliciting he must “notify the Police Department, in writing, for identification only.” But he is not told what must be set forth in the notice, or what the police will consider sufficient as “identification.” This is in marked contrast to Ordinance No. 573 which sets out specifically what is required of commercial solicitors; it is not clear that the provisions of Ordinance 573 extend to Ordinance 598A. See n. 1, supra. Ordinance No. 598A does not have comparable precision. The New Jersey Supreme Court construed the ordinance to permit one to send the required identification by mail; a canvasser who used the mail might well find — too late — that the identification he provided by mail was inadequate. In this respect, as well as with respect to the coverage of the ordinance, this law “may trap the innocent by not providing fair warning.” Grayned v. City of Rockford, 408 U. S. 104, 108 (1972). Nor does the ordinance “provide explicit standards for those who apply” it. Ibid. To the extent that these ambiguities and the failure to explain what “identification” is required give police the effective power to grant or deny permission to canvass for political causes, the ordinance suffers in its practical effect from the vice condemned in Lovell, Schneider, Cantwell, and Staub. See also Papachristou v. City of Jacksonville, 405 U. S. 156, 162 (1972); Coates v. City of Cincinnati, 402 U. S. 611, 614 (1971); Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67, 75-85 (1960). The New Jersey Supreme Court undertook to give the ordinance a limiting construction by suggesting that since the identification requirement “may be satisfied in writing, . . . resort may be had to the mails,” 66 N. J., at 380, 331 A. 2d, at 279, but this construction of the ordinance does not explain either what the law covers or what it requires; for example, it provides no clue as to what is a “recognized charity”; nor is political “cause” defined. Cf. Colten v. Kentucky, 407 U. S. 104, 110-111 (1972); Chaplinsky v. New Hampshire, 315 U. S. 568 (1942); Cox v. New Hampshire, 312 U. S. 569 (1941). Even assuming that a more explicit limiting interpretation of the ordinance could remedy the flaws we have pointed out— a matter on which we intimate no view — we are without power to remedy the defects by giving the ordinance constitutionally precise content. Smith v. Goguen, 415 U. S. 566, 575 (1974). Accordingly, the judgment is reversed, and the case is remanded to the Supreme Court of New Jersey for further proceedings not inconsistent with this opinion. It is so ordered. Mr. Justice Stevens took no part in the consideration or decision of this case. Ordinance No. 573 provides in relevant part: “Section 1. Permit Required “No person shall canvass or solicit or call from house to house in the Borough to sell or attempt to sell goods by sample or to take or attempt to take orders for the future delivery of goods, merchandise, wares, or any personal property of any nature whatsoever, or take or attempt to take orders for services to be furnished or performed in the future, without first having received a written permit therefor. “Sections. Application for Permit: Contents Thereof “a) Any person desiring a permit to canvass or solicit in the Borough shall file, on a form to be supplied by the Borough Clerk, an application with the Borough Clerk stating: "(1) Name of applicant; “(2) Permanent home address; "(3) Name and address of employer or firm represented; "(4) Place or places of residence of the applicant for the preceding three years; “(5) Date on which he desires to commence canvassing or soliciting; “(6) Nature of merchandise to be sold or offered for sale or the nature of the services to be furnished; “(7) Whether or not the applicant has ever been convicted of a crime, misdemeanor, or violation of any ordinance concerning canvassing or soliciting, and if so, when, where and the nature of the offense; “(8) Names of other communities in New Jersey in which applicant has worked as a solicitor or canvasser in the past 2 years. “b) Said application shall also be accompanied by a letter or other written statement from the individual, firm or corporation employing the applicant, certifying that the applicant is authorized to act as the employer’s representative. “c) No such application shall be filed more than 3 months prior to the time such canvassing or soliciting shall commence. “Section 4- Investigation: Issuance of Permit “The Borough Clerk shall give a copy of the application to the Chief of Police who shall cause such investigation to be made of the applicant’s business and moral character as he deems necessary for the protection of the public good. He shall use any information available in other New Jersey cities, towns or boroughs, where the applicant has canvassed or solicited within 2 years last past. “Section 6. Penalty “Any person, firm or corporation violating any provision of this ordinance shall, upon conviction thereof, be fined in an amount not exceeding $500.00 or be imprisoned in the County Jail for a period not exceeding ninety (90) days, or be both fined and imprisoned. Each day said violation is permitted or is permitted to continue, shall constitute a separate offense and shall be subject to a penalty hereunder.” In Collingswood v. Ringgold, 66 N. J. 350, 331 A. 2d 262 (1975), appeal docketed, No. 74-1335, decided the same day as the ease reviewed here, the New Jersey Supreme Court held that an ordinance quite similar to Ordinance No. 573 was invalid insofar as it vested in the chief of police too much discretion in deciding whether or not to grant a canvassing permit. The court in Collingswood accordingly struck that provision of the ordinance, but let the remainder stand. Ordinance No. 598A provides in relevant part: “Whereas, The Borough of Oradell is primarily a one family residential town whose citizens are employed elsewhere, resulting in the wives of the wage earner being left alone during the day; and “Whereas, because of the geographical location of most of the homes it is impossible to police all areas at the same time, resulting in a number of break and entries and larceny in the home; and “Whereas, it is in the public interest and the public safety that persons not be permitted to call from house to house on the pretext of soliciting votes for a designated candidate or signatures for a nominating petition, or to solicit for a recognized charitable cause or borough activity, without such persons being first identified by the Police Department; and “Whereas, the Mayor and Borough Council of The Borough of Oradell feel that it is in the public interest and for the protection of The Borough of Oradell that such persons be required to notify the Police Department for the purpose of identification. “Now, therefore, be it ordained by the Borough Council of The Borough of Oradell, in the County of Bergen and State of New Jersey, that an ordinance entitled ‘An ordinance to regulate and prohibit canvassing and soliciting in The Borough of Oradell and establish fees and provide penalties for the violation thereof be amended and supplemented as follows: “(1) That Section 1 be amended and supplemented by the addition of Section 1 (a) to be entitled ‘Exceptions to Permit' as hereinafter set forth: “Section 1 (a): Exceptions to Permit “Any person desiring to canvass, solicit or call from house to house in the Borough for a recognized charitable cause, or any person desiring to canvass, solicit or call from house to house for a Federal, State, County or Municipal political campaign or cause, shall be required to notify the Police Department, in writing, for identification only. Said notification shall be good for the duration of the campaign or cause. The provisions of this section shall also apply to representatives of Borough Civic Groups and Organizations and any veterans honorably discharged or released under honorable circumstances from active service in any branch of the Armed Forces of the United States. All other Sections of Ordinance No. 573, with the exception of the penalty clause designated as Section 7 [sic], shall not be applicable to such persons or groups as designated herein. “(2) All ordinances or parts of ordinances inconsistent with this ordinance are hereby repealed." The trial court’s opinion in this regard appears to ignore the provisions of Ordinance No. 573, which covers other forms of door-to-door solicitation, and to which Ordinance No. 598A is an amendment. Appellants also argue that the ordinance bears no rational relationship to its announced purpose of crime prevention, that it is overbroad because it covers Oradell residents casually soliciting the votes of neighbors, and that it violates the Privileges and Immunities Clause of the Fourteenth Amendment by infringing on the right to meet and discuss national candidates. We intimate no view as to these contentions. The flaw we find in this ordinance is vagueness, not the over-breadth at issue in Broadrick v. Oklahoma, 413 U. S. 601 (1973), on which the dissent relies. Several appellants alleged that their right to receive information would be infringed because persons canvassing for political causes would be uncertain whether the ordinance covered them. In the circumstances of this case these allegations are enough to put in issue the precision or lack of precision with which the ordinance defines the categories of “causes” it covers. The agency charged with enforcement, the police department, has not adopted any regulations that would give more precise meaning to the ordinance — if indeed it has the legal power to do so. Cf. Broadrick, 413 U. S., at 616-617; CSC v. Letter Carriers, 413 U. S. 548, 575 (1973); Law Students Research Council v. Wadmond, 401 U. S. 154, 162-163 (1971). The chief of police suggested in an affidavit that neither a photograph nor fingerprints are required, and that the canvasser must simply “let us know who he is.” To the extent that this explanation adds any specificity to the ordinance, it does not purport to be binding on the enforcement authorities. Cf. ibid. Nor has the ordinance a history of “less formalized custom and usage” that might remedy the vagueness problems. Parker v. Levy, 417 U. S. 733, 754 (1974). Question: What is the court whose decision the Supreme Court reviewed? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims Answer:
songer_casetyp1_1-2	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 "criminal". In re WITNESS BEFORE the GRAND JURY. UNITED STATES of America, Plaintiff-Appellant, v. WITNESS BEFORE the GRAND JURY, Defendant-Appellee. No. 1038, Docket 86-6012. United States Court of Appeals, Second Circuit. Argued April 4, 1986. Decided May 22, 1986. Stanley A. Twardy, Jr., U.S. Atty., D.Conn., Bridgeport, Conn. (James T. Cow-dery, Asst. U.S. Atty., D.Conn., Bridgeport, Conn., of counsel), for plaintiff-appellant. Robert M. Siméis, P.C., New York City, for defendant-appellee. Before LUMBARD, OAKES and NEWMAN, Circuit Judges. LUMBARD, Circuit Judge: The government appeals from an order of the District of Connecticut, Warren W. Eginton, J., allowing Geneva Carter, a witness before the federal grand jury, to refuse to answer questions that allegedly violate the “confidential communications” marital privilege she purports to share with her estranged husband, Robert Carter. Although the district court accepted Mrs. Carter’s assertion of the confidential communications privilege, the court rejected her assertion in the alternative of the “adverse testimony” marital privilege; the court noted that the Carters have now been separated for twelve years, that Robert Carter has in that time lived with another woman whom he has represented as his wife and by whom has has fathered a child, and thus that the couple does not have the kind of “vital” marriage that the latter privilege is meant to protect. The appeal is taken pursuant to 18 U.S.C. § 3731 and 28 U.S.C. § 1291. The government argues (1) that the confidential communications privilege does not shield the Carters from inquiries into the dealings at issue, which occurred at least four years after their permanent separation; (2) that, in any event, the questions concern acts and not “communications”; and (3) that, even if the dealings were considered communications, they were not confidential. The government urges, further, that the district court correctly viewed the adverse testimony privilege as inapplicable to the Carters’ “moribund” marriage. We agree. Accordingly, we reverse and remand for further proceedings. On October 4, 1985, the government served Geneva Carter with a subpoena duc-es tecum to appear and produce documents before a federal grand jury in Bridgeport, Connecticut, which was investigating allegations of federal narcotics and tax violations by Robert Carter. Although Mrs. Carter failed to appear on her first scheduled date, October 9, because of illness, she did appear on November 14, when the grand jury next sat. Mrs. Carter was accompanied by Robert Carter’s counsel, and was advised that she could consult with counsel outside the grand jury room. She indicated to the government her understanding that she was neither a subject nor a target of the grand jury’s investigation. Mrs. Carter testified before the grand jury that she had been married to Robert Carter for 23 years, but had not lived with him for the past eleven. Nevertheless, she refused to answer questions, most on the basis of a vague “husband and wife” privilege. Mrs. Carter was asked to consult with her attorney to determine whether she had any other basis for refusing to answer, and after this consultation she reiterated: “[Bjased on the fact that I am married to Robert Carter I do not have to answer any questions.” She did not claim any other privileges at that time. The Assistant U.S. Attorney then asked Mrs. Carter a series of questions, primarily regarding the Carters’ business and financial affairs during the period from January, 1979, to March, 1984 (see Appendix A). The questions concerned, among other subjects, joint bank accounts, jointly owned real estate, loans and gifts between the couple, and whether Robert Carter had contributed to Mrs. Carter’s support or to the support of her dependents. Mrs. Carter responded only that this was “privileged information.” The government requested that the witness clarify which of the marital privileges she was asserting, and, after consultation with her attorney, Mrs. Carter stated that she was claiming both “the husband and wife and ... the communication privilege.” She also stated that, upon her attorney’s advice, she had not brought with her the documents requested in the subpoena duces tecum. Near the end of the proceedings, Mrs. Carter said that she was not going to answer any questions, regardless of her basis for refusal; she was at this point excused from the grand jury room. On November 25, 1985, the government moved in the district court for an order compelling testimony, which Mrs. Carter opposed solely on the basis of the marital privileges. The district court conducted a hearing on December 9. Terrence Spran-kle, a Drug Enforcement Agency Special Agent, testified that he had been told by an Internal Revenue Service agent that Robert Carter, together with a woman known as Sharon Spruel Carter, had filed joint tax returns as husband and wife for 1981, 1982, and 1983. Sprankle also testified that the I.R.S. agent had told him that Robert and Sharon Spruel Carter had appeared in April, 1984, at the I.R.S. office in Fayetteville, North Carolina, and identified themselves as husband and wife; they claimed to have been married in New York City in 1970. They also told the I.R.S. that they had a twelve-year-old son, whom they claimed as a dependent on their joint federal tax returns. At the conclusion of the evidence, Judge Eginton denied the government’s motion to compel. He found that, because of the “moribund” state of the Carters’ marriage, the “adverse testimony” marital privilege was not available as an absolute shield to Geneva Carter’s testimony against Robert Carter. Accordingly, he directed Mrs. Carter to answer the grand jury’s general questions identifying herself and Mr. Carter. Judge Eginton also found, however, that Geneva Carter could refuse to answer a large portion of the grand jury’s questions on the basis of the “broader and more abstract” confidential communications privilege, which he found shielded the Carters’ dealings no matter how long the couple had been separated. Judge Eginton rejected the government’s argument that this latter privilege should protect from disclosure only those communications made during a marriage that exists in fact, stating that as long as no “legal separation” has occurred, the privilege still applies. He noted his view that a contrary holding would require the district courts to engage in burdensome evaluations of whether a legally married couple were still “intimate,” or whether they were permanently separated. An opinion was filed expressing the district court’s views on February 13, 1986. The government appeals, arguing that the district court erred in allowing Geneva Carter to invoke the confidential communications privilege, and that she should be compelled to answer all of the grand jury’s questions about Robert Carter. We agree. The Marital Privileges In trials under federal law, the federal courts interpret testimonial privileges by reference to the common law and “in light of reason and experience.” Fed.R. Evid. 501. At common law, the marital testimonial privileges have developed along two lines. The first to develop, the adverse testimony privilege, has generally been thought to have “flowed from two tenets of medieval jurisprudence: first, that a wife had no legal identity independent of her husband’s, and second, that an accused could not testify on his own behalf.” Note, Develpments in the Law — Privileged Communications, 98 Harv.L.Rev. 1450, 1564 (1985) (citing Trammel v. United States, 445 U.S. 40, 44, 100 S.Ct. 906, 909, 63 L.Ed.2d 186 (1980)); but see Note, supra, at 1564-65 (discussing Wigmore’s contrary view that the privilege arose from the sixteenth-century English law prohibiting petit treason against the head of the household). When it applies, the adverse testimony privilege protects spouses from being compelled to testify against each other, on any subject, while they are validly married. Trammel, supra, at 44, 100 S.Ct. at 909. The confidential communications privilege, by contrast, shields only communications made in confidence during a valid marriage but, unlike the adverse testimony privilege, it may be asserted even after the marriage has been terminated. See Pereira v. United States, 347 U.S. 1, 6, 74 S.Ct. 358, 361, 98 L.Ed. 435 (1954). The privilege, which first appeared in the 1850's as a reaction to the shrinking scope of the adverse testimony privilege, see Note, supra, at 1565, stemmed from many state legislatures’ recognition of the need for explicit protection of confidential marital communications. See 8 J. Wigmore, Evidence in Trials at Common Law, § 2333, at 645 (J. MeNaughton rev. ed. 1961). Consequently, this privilege can be successfully asserted only when there exists a marriage valid at the time the communication is made. Note, supra, at 1565 & n. 16. The burden of showing the existence of such a valid marriage rests on the person seeking to invoke the privilege. See United States v. Snyder, 707 F.2d 139, 147 (5th Cir.1983); Note, supra, at 1565 n. 16. The two privileges have related but distinct purposes. The adverse testimony privilege embodies society’s desire to protect viable marriages from the potentially irreparable rifts that may result from compelled disclosure or commentary before a tribunal. The confidential communications privilege, by contrast, provides assurance that all private statements between spouses — aptly called the “ ‘best solace of human existence,’ ” Trammel, 445 U.S. at 51, 100 S.Ct. at 913 (quoting Stein v. Bowman, 13 U.S. (Pet.) 209, 223 (1839)) — will be forever free from public exposure. We now turn to the district court’s consideration of the two privileges in the case of Robert and Geneva Carter. Adverse Testimony Privilege —Because the purpose of this privilege is to protect vital marriages from the possible harmful effect of compelled testimony, the privilege logically has no relevance to marriages that are over or damaged beyond repair. As Judge Eginton noted, two circuits have refused to apply the privilege to “legally married” couples whose marriages were either sham or moribund. See United States v. Brown, 605 F.2d 389, 396 (8th Cir.), cert. denied, 444 U.S. 972, 100 S.Ct. 466, 62 L.Ed.2d 387 (1979); United States v. Cameron, 556 F.2d 752, 756 (5th Cir.1977). At the time of the grand jury investigation, the Carters had lived apart for eleven years, in which time Robert Carter had lived with, sired a child by, and represented himself as married to, another woman. Although Carter maintained cordial relations with Geneva Carter and the couple made joint decisions regarding certain finances and regarding their son, they did not have the kind of vital marriage for which the privilege was created and in protection of which it is commonly deployed. This reasoning comports with the Trammel case, supra, in which the Supreme Court held that the adverse testimony privilege could not be invoked by one spouse seeking to block the voluntary testimony of another spouse. The Court reasoned that if one spouse was willing to testify against the other, then the marriage was obviously beyond repair and the protections of the adverse testimony privilege had no relevance. Similarly, in United States v. Fisher, 518 F.2d 836, 840 (2d Cir.), cert. denied, 423 U.S. 1033, 96 S.Ct. 565, 46 L.Ed.2d 407 (1975), we rejected Fisher’s attempt to invoke the adverse testimony privilege against his wife, who had appealed from a Nevada divorce decree that Fisher had obtained. Although Fisher claimed that because of his ‘wife’s’ appeal he was still legally married, we held that the privilege would not apply in any event because the marriage was moribund — Fisher had been living with another woman by whom he had had two children. See 518 F.2d at 840. The court noted that “the [adverse testimony] privilege does not extend to a ‘marriage’ so obviously destroyed as the one here.” Id. at 841. Trammel and Fisher demonstrate that courts may properly inquire into whether a marriage is vital enough to justify recognition of the adverse testimony privilege in each case. In light of this inquiry, we agree with the district court’s holding that the adverse testimony privilege is not available to the Carters. Confidential Communications Privilege — As we have noted, this privilege applies only to communications made in confidence during a valid marriage. We think that the district court’s finding that Mrs. Carter could refuse to answer many of the grand jury's questions on the basis of the privilege is flawed in several respects. First, it is undisputed that the Carters had lived apart for at least four years by the time the first “communications” at issue occurred. Robert Carter had during that time been living with Sharon Spruel Carter, by whom he had fathered a child. The Carters thus present less of a case for a “valid marriage” than did the couple in United States v. Byrd, 750 F.2d 585 (7th Cir.1984), where the court denied the privilege to shield communications that had occurred one year after the spouses had separated. The Byrd court noted that permanent — and not necessarily “legal” — separation eliminated the availability of the privilege, stating that “society’s interest in protecting the confidentiality of the relationships of permanently separated spouses is outweighed by the need to secure evidence in the search for truth....” Id. at 594; see Trammel, supra, 445 U.S. at 51, 100 S.Ct. at 913 (mandating strict construction of the marital privileges). We agree with the Byrd court’s limitation of the communications privilege, and find the restriction particularly appropriate in the Carters’ case. See also United States v. Nixon, 418 U.S. 683, 709-10, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974) (calling for strict construction of all evidentiary privileges because they impede the truth-seeking process). The district court found the Byrd court’s reasoning “persuasive,” but nonetheless declined to follow it, believing that a permanent separation should displace the communications privilege only where the separation was confirmed by a judicial decree. The district court noted its concern that, if Byrd were applied in the absence of “legal separation,” the district courts would be forced into burdensome analyses of whether particular marriages were or were not “moribund.” We disagree. We do not share the district court’s concern regarding the difficulty of the “separation” inquiry. In the rare case that even presents this question, we believe that a court may rely primarily on the duration of the couple’s physical estrangement, which is the guiding factor in determining “permanent separation” and which is usually clear from the record. The longer the period of estrangement at the time of the subject “communications,” the easier it will be for the government to show that the couple, though still legally wed, had been in fact permanently separated and thus could not invoke the privilege. Of course, either party may bring forward special circumstances that render more or less likely the objective possibility of reconciliation at the time of the communications, upon which the couple may have relied. The Carters have shown no such possibility, and it is indeed clear that they have long maintained separate lives. Accordingly, we reverse the district court’s holding that Mrs. Carter may assert the confidential communications privilege against the grand jury questions at issue. We also believe that the communications privilege is unavailable to Mrs. Carter because most of the evidence sought by the grand jury does not involve marital “communications,” that is, utterances or expressions intended to convey information between spouses. See Pereira, supra, 347 U.S. at 6, 74 S.Ct. at 361. Whereas the paradigmatic case would be the marital bed confidence, the government’s questions to Geneva Carter concern, for example, whether the couple had a joint checking account, whether they jointly owned real estate, and whether they loaned money to each other. For the most part, the grand jury is not inquiring into the Carters’ marital communications, but rather into actions that are not communicative and that may be described without divulgence of privileged communications. Such inquiries are not barred by the privilege. See id.; United States v. Klayer, 707 F.2d 892, 894 (6th Cir.) (question whether married couple owned a silver tray involved acts, not communications), cert. denied, 464 U.S. 858, 104 S.Ct. 180, 78 L.Ed.2d 161 (1983); United States v. Smith, 533 F.2d 1077, 1079 (8th Cir.1976) (husband’s hiding heroin on his spouse’s person was action, not communication). Finally, we have serious doubts as to whether most of the dealings at issue between Robert and Geneva Carter were, in any event, sufficiently “confidential” to justify applying the confidential communications privilege. Although “communications” between spouses are presumed to be confidential, see Blau v. United States, 340 U.S. 332, 333, 71 S.Ct. 301, 302, 95 L.Ed. 306 (1951), this presumption is rebutted when the communicant knew that the information was or would be disclosed to third parties or to the public. See Wolfle v. United States, 291 U.S. 7, 14, 54 S.Ct. 279, 280, 78 L.Ed. 617 (1934) (husband’s letter to wife not “confidential” because it had been dictated to stenographer); 8 J. Wigmore, supra, § 2336, at 648-51 (discussing strict federal view of “confidentiality” requirement). Those questions posed to Geneva Carter that concerned, inter alia, bank accounts, real estate transactions, credit cards, car registration, and payment of insurance premiums, see Appendix A, therefore appear not to be “confidential” as the federal courts have defined that term. We affirm the district court’s holding that Geneva Carter may not validly assert the “adverse testimony” marital privilege, on the ground that the Carters’ marriage has long ceased to exist as a going concern. We reverse, however, the court’s holding that Mrs. Carter may refuse to answer a large part of the grand jury’s questions on the basis of the confidential communications privilege. We think the record clearly shows that the Carters were permanently separated, with no possibility of reconciliation, at the time the dealings at issue occurred; further, the grand jury is inquiring mostly into the Carters’ actions, not their “communications.” Finally, we have serious doubts that many of the dealings at issue here were “confidential” as that term has been defined in the federal courts. Reversed and remanded for further proceedings. APPENDIX A Q. During the period of time from January 1979 through March of 1984 do you know how Robert Carter was employed? Q. During the period of time from January 1979 through March of 1984, did you ever work for Robert Carter or for any of his businesses? Q. During the period of time from January 1979 through March of 1984, did Robert Carter ever pay you a salary? Q. During the period of time from January 1979 to March of 1984, did you ever have a bank account joint with Robert Carter? Q. Did you ever have during the same period of time, January 1979 through March of 1984, did you ever have a savings account jointly with Robert Carter? Q. Did you ever have a checking account jointly with Robert Carter from January 1979 through March of 1984? Q. Did you ever have a certificate of deposit jointly with Robert Carter between January 1979 and March of then 1984? Q. Did you ever have a retirement account between January of 1979 and March of 1984 that you held jointly with Robert Carter? Q. Between January of 1979 and March of 1984, did you ever obtain any loans from a bank or any lending institution jointly with Robert Carter for any purposes such as a personal loan, an automobile loan, a home improvement loan or a mortgage loan? Q. In 1985 did you and Robert Carter jointly purchase a home in Elmont, New York? Q. Between January 1979 and March of 1984, did you own any real estate with Robert Carter? Q. Between January of 1979 and March of 1984, did you own any business with Robert Carter? Q. Between January of 1979 and March of 1984, did you own any motor vehicles, motorcycles, boats, airplanes or motor homes or any other motorized vehicle jointly with Robert Carter? Q. Between January of 1979 and March of 1984, did Robert Carter ever lend you any money? Q. Between January of 1979 and March of 1984, did you lend Robert Carter any money? Q. Between January of 1979 and March of 1984, did Robert Carter ever give you any money? Q. Between January of 1979 and March of 1984, did you ever give Robert Carter any money? Q. Between January of 1979 and March of 1984, did Robert Carter ever give you any gifts whose value exceeded $50? Q. Between January of 1979 and March of 1984, did you ever give Robert Carter any gifts whose value exceeded $50? Q. Between January of 1979 and March of 1984, did Robert Carter ever pay any insurance premiums on your behalf or on behalf of any of your dependents for life insurance, health insurance, auto insurance or homeowner’s insurance? Q. Did you ever pay any insurance premiums on Mr. Carter’s behalf during the same time period for the same kinds of policies? Q. Between January of 1979 and March of 1984, did you ever have any credit card accounts with Robert Carter? Q. Between January of 1979 and March of 1984, did you ever use any credit cards belonging to Robert Carter? Q. Between January of 1979 and March of 1984, did Robert Carter ever use any credit card accounts belonging to you? Q. Between January of 1979 and March of 1984, did you ever pay any rent to Robert Carter? Q. Between January of 1979 and March of 1984, did Robert Carter ever pay any rent to you? Q. Between January of 1979 and March of 1984, did Robert Carter ever contribute to your support or the support of any of your dependents? Q. Between January of 1979 and March 1984, did Robert Carter use your address as a mailing address? Q. For the same period of time, January 1979 through March of 1984, did Robert Carter use your address to register a motor vehicle? Q. When was the last time you saw Robert Carter? . On October 8, 1985, Robert Carter moved to quash the subpoena directed to Geneva Carter, arguing that the Connecticut grand jury was being used improperly to gather evidence in a separate case pending against Mr. Carter in the Eastern District of New York. Judge Eginton denied the motion on October 9. . The district court’s concerns would be more compelling in a case where the couple still regularly or occasionally cohabited, but where the government contended that the marital relationship had irrevocably deteriorated. It might well be burdensome for a district court to consider such a dilemma — more properly brought to the family court — and indeed most of the cases the Carters have cited arose in this context. See United States v. Sims, 755 F.2d 1239, 1243 n. 3 (6th Cir.1985) (eschewing inquiry into the relations of cohabiting spouses); In Re Malfitano, 633 F.2d 276, 279 (3d Cir.1980) (same); see generally Note, supra, at 1566 (discussing the courts’ avoidance of such analyses). This dilemma does not arise in the case of the Carters, however, who had lived apart for some time and whose permanent and irrevocable separation is clear from the record. . We need not consider any fifth amendment privilege that Geneva Carter may have, as she asserted it neither before the grand jury nor before the district court. Question: What is the specific issue in the case within the general category of "criminal"? A. federal offense B. state offense C. not determined whether state or federal offense Answer:
songer_treat	C	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. Murray H. INGALLS, Appellant, v. Eugene M. ZUCKERT, Secretary of the Air Force, Appellee. No. 16788. United States Court of Appeals District of Columbia Circuit. Argued Oct. 11, 1962. Decided Oct. 25, 1962. Mr. Donald H. Dalton, Washington, D. C., for appellant. Mr. Daniel A. Rezneck, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Nathan J. Paulson, Asst. U. S. Atty. at the time the brief was filed, were on the brief, for appellee. Mr. Frank Q. Nebeker, Asst. U. S. Atty., also entered an appearance for appellee. Before Edgerton, Burger and Wright, Circuit Judges. PER CURIAM. Appellant, an Air Force major with 14 years’ service and an outstanding war record, was given the choice under Air Force Regulation 35-66 of resigning for the good of the service or facing a general court martial. Acting without counsel in the 72 hours allowed him, he chose to resign. Alleging failure on the part of the Air Force to afford him “the opportunity of consulting legal counsel regarding the advisability of submitting [his] resignation,” he asks this court to reverse the summary judgment granted below denying him reinstatement. Air Force Regulation 35-66, at least by implication, required that appellant be afforded the opportunity to consult with legal counsel before making his decision. Failure to comply with its own regulation would render appellant’s resignation void. On this question, the «evidence now of record presents a factual issue Consequently, summary judgment was improvidently granted. In view of this disposition, we do not jeach the other issues raised by appellant. Respondent’s laches defense is without merit. Reversed. . Including 40 combat missions and numerous medals. . This language is in the form letter (Attachment 3, AFR 36-12) required by AFR 35-66 (July 23, 1956) to be used in submitting a resignation under that regulation. Appellant signed this form letter including the statement that he had “been afforded the opportunity.” An amendment to AFR 35-66 requiring the appointment of counsel, though promulgated before appellant’s resignation was accepted, did not become effective until five days later. . It is not necessary to determine whether appellant was entitled to consult counsel as a matter of right since “the Secretary * * * was bound by the regulations which he himself had promulgated for dealing with such cases * * Vitarelli v. Seaton, 359 U.S. 535, 540, 79 S.Ct. 968, 3 L.Ed.2d 1012. See also Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403; McKay v. Wahlenmaier, 96 U.S.App.D.C. 313, 226 F.2d 35. . See Paroczay v. Hodges, 111 U.S.App.D.C. 362, 297 F.2d 439. . F.R.Civ.P., Rule 56; Runkle v. Nong Kimny, 105 U.S.App.D.C. 285, 266 F.2d 689; Evers v. Buxbaum, 102 U.S.App.D.C. 334, 253 F.2d 356. 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_8_2	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous". Your task is to determine which of the following categories best describes the litigant. Effie Roy STANSBURY, Personal Representative of the Estate of Larry R. Stansbury, Plaintiff-Appellant, v. SIKORSKI AIRCRAFT, Defendant, Chevron USA, Defendant-Appellee. No. 81-3270. United States Court of Appeals, Fifth Circuit. July 22, 1982. Gary E. Theall, Abbeville, La., for plaintiff-appellant. Lloyd C. Melancon, New Orleans, La., for defendant-appellee. Before GEE, RUBIN and GARZA, Circuit Judges. GEE, Circuit Judge: Appellant Effie Roy Stansbury is the personal representative of the Estate of Larry R. Stansbury, her deceased husband. On July 18, 1980, the decedent was employed by Chevron as a chemical and process foreman. His office was in LaFayette, Louisiana, but his duties included traveling three to four times per week to drilling sites both offshore and on land to supervise and inspect painting projects. The offshore drilling rigs were “fixed” rigs. He was not permanently attached to any platform or land rig and normally returned home at the conclusion of each work day. On July 18, 1980, Stansbury inspected a paint job on a platform in the Gulf of Mexico. After he finished his duties, he boarded a Sikorski helicopter owned by Chevron. While flying over Eugene Island Block 296, Gulf of Mexico, the helicopter crashed into the sea, causing the death of Stansbury. In September 1980, Mrs. Stansbury filed suit on behalf of herself as surviving spouse and her daughter under Death on the High Seas Act (DOHSA), the Jones Act, and general maritime law against Chevron and Si-korski Aircraft. Chevron filed a motion for summary judgment, alleging that Stans-bury was not a Jones Act seaman and that, therefore, Longshoremen’s and Harbor Workers’ Compensation was the exclusive remedy under the Outer Continental Shelf Lands Act, 43 U.S.C.A. § 1331 et seq. (OCS-LA). The district court granted the motion and Mrs. Stansbury appealed, claiming that her husband was a Jones Act seaman and that she has a cause of action under DOH-SA and general maritime law. We hold that the Longshoremen’s and Harbor Workers’ Compensation is the exclusive remedy against Chevron and affirm the judgment of the district court. The Outer Continental Shelf Lands Act incorporates the remedies of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. §§ 901 et seq. (LHWCA), for employees injured while involved in drilling operations in the Outer Continental Shelf (OCS): (b) Longshoremen’s and Harbor Workers’ Compensation Act applicable; definitions. With respect to disability or death of an employee resulting from any injury occurring as a result of operations, conducted on the outer Continental Shelf for purpose of exploring for, developing, removing, or transporting by pipeline the natural resources, or involving rights to the natural resources, of the subsoil and seabed of the outer Continental Shelf compensation shall be payable under the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act (33 U.S.C. §§ 901 et seq.). For the purposes of the extension of the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act under this section— (1) the term “employee” does not include a master or member of a crew of any vessel, or any officer or employee of the United States or any agency thereof or of any state or foreign government, or of any political subdivision thereof; (2) the term “employer” means an employer any of whose employees are employed in such operation; and (3) the term “United States” when used in a geographical sense includes the outer Continental Shelf, and artificial islands and fixed structures thereon. 43 U.S.C. § 1333(3)(b). We have construed this section to apply to injuries occurring as a result of the operations described without regard to the physical situs of the injury. Nations v. Morris, 483 F.2d 577, 584 (5th Cir. 1973), cert. denied, 414 U.S. 1071, 94 S.Ct. 584, 38 L.Ed.2d 477 (1973). Because OCSLA provides its own status requirement — “employed in operations for purpose of exploring for, developing, removing, or transporting by pipeline the natural resources, or involving rights to natural resources, of the subsoil and seabed of the Outer Continental Shelf” — Stansbury need not be engaged in “maritime employment” as is required under the LHWCA. Thus, there is no need for an employee to whom OCSLA applies to satisfy independently the two-fold situs and status test for LHWCA coverage. Longmire v. Sea Drilling Corp., 610 F.2d 1342 (5th Cir. 1980). The OCSLA incorporated only the remedies, not the criteria, of the LHWCA. This includes 33 U.S.C. § 933(i), which provides that the workers’ compensation is the exclusive remedy of an injured employee. Stansbury meets the status criteria set out in OCSLA. Chevron is engaged in OCS extractive operations and thus meets the definition of employer. Stansbury was inspecting work done under his supervision on a fixed rig located on the OCS. His work furthered the rig’s operations and was in the regular course of the extractive operations on the OCS. But for those operations, he would not have been in the helicopter. His death, therefore, occurred “as a result of operations” as required by the OCSLA. The only exemptions from OCS-LA-LHWCA coverage are for government employees and Jones Act seamen. See Higginbotham v. Mobil Oil Corp., 545 F.2d 422, 432 n.11 (5th Cir. 1977), cert. denied, 434 U.S. 830, 98 S.Ct. 110, 54 L.Ed.2d 89 (1977). Stansbury was not a government employee. At trial, Mrs. Stansbury argued that her husband was a Jones Act seaman. At oral argument, however, appellant’s counsel conceded that there was no evidence that Stansbury had seaman status. The criteria to establish seaman status was set out in Watkins v. Pentzien, Inc., 660 F.2d 604, 606 (5th Cir. 1981), cert. denied, - U.S. -, 102 S.Ct. 2010, 72 L.Ed.2d 467 (1982): (1) He must have a more or less permanent connection with (2) a vessel in navigation and (3) the capacity in which he is employed or the duties which he performs must contribute to the function of the vessel, the accomplishment of its mission or its operation or welfare in terms of its maintenance during its movement or during anchorage for its future trips. Whether a person is a seaman under these criteria is normally a question for the jury. Id. The issue may be resolved by summary judgment, however, where the undisputed material facts establish as a matter of law that an individual is not a Jones Act seaman. Id. Stansbury’s inspection work was on land rigs and fixed drilling rigs in the OCS. A fixed platform in the OCS is not a vessel in navigation for purposes of the Jones Act. Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 355, 89 S.Ct. 1835, 1837, 23 L.Ed.2d 360 (1969); Callahan v. Fluor Ocean Services, Inc., 482 F.2d 1350, 1351 (5th Cir. 1973). Therefore, summary judgment was properly granted. Because Longshoremen’s and Harbor Workers’ Compensation is the exclusive remedy under the Outer Continental Shelf Lands Act, Mrs. Stansbury may not bring an action under DOHSA or general maritime law. The judgment of the district court is AFFIRMED. . OCSLA does not exclude supervisory personnel from its definition of employee. Since the definition of employees did exclude government employees and Jones Act seamen, it follows that supervisory workers would also have been excluded in this section if Congress so intended. Further, this court has held that a construction site foreman was covered by the LHWCA. Gilliam v. Wiley N. Jackson Co., 659 F.2d 54, 57-58 (5th Cir. 1981). . Nothing said in Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), or Rodrigue, supra, weakens our conclusion. OCSLA adopted Longshoremen’s and Harbor Workers’ Compensation to cover “maritime, non-maritime or ambiguous amphibious” claims for injuries to persons employed in natural resource operations on the OCS. See Nations v. Morris, 483 F.2d at 585. OCSLA has no situs requirement, and the status requirement relates to OCS extractive operations rather than to traditional maritime employment. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous". Which of the following categories best describes the litigant? A. fiduciary, executor, or trustee B. other C. nature of the litigant not ascertained Answer:
songer_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for 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. 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: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_numappel	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. LONG v. DAVIS et al. No. 12024. United States Court of Appeals Ninth Circuit. Sept. 21, 1948. Hunter & Liljestrom, of Los Angeles, Cal., for appellant. Milton V. Backman, of Salt Lake City, Utah, for appellees. Before MATHEWS, STEPHENS and BONE, Circuit Judges. PER CURIAM. This appeal is from a motion granting a new trial. The appeal was taken on July 9, 1948. Appellees moved to dismiss it on the ground that the order was not a final decision, within the meaning of § 128(a) of the Judicial Code, 28 U.S.C.A. § 225(a), 1946 Edition, then in effect, and hence was not appealable. The motion is well founded. Sentinel v. Dinwiddie, 7 Cir., 41 F.2d 57; Hunt v. United States, 10 Cir., 53 F.2d 333; East Erie Commercial Co. v. Denial, 3 Cir., 66 F.2d 555; Frank Mercantile Corp. v. Prudential Ins. Co., 3 Cir., 115 F.2d 496. Accordingly, it is granted and the appeal is dismissed. Now 28 U.S.C.A. § 1291. Question: What is the total number of appellants in the case? Answer with a number. Answer:
songer_source	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals. CADY et al. v. MURPHY. No. 3570. Circuit Court of Appeals, First Circuit. Aug. 15, 1940. McLELLAN, District Judge, dissenting. Richard Wait, of Boston, Mass., and Robert Hale, of Portland, Me., for appellants. Richard S. Chapman, of Portland, Me. (Nathan W. Thompson, of Portland, Me., on the brief), for appellee. Withington, Cross, Proctor & Park, Lothrop Withington, and Edward C. Park, all of Boston, Mass., amici curi® for Boston Association of Stock Exchange Firms. Before MAGRUDER and MAHONEY, Circuit Judges, and McLELLAN, District Judge. MAGRUDER, Circuit Judge. This appeal requires for its disposition an interpretation of § 12(2) of the Securities Act of 1933, 48 Stat. 74. The challenged judgment for plaintiff-appellee cannot stand if, as the defendants maintain, the liability imposed by § 12(2) applies only to owners of securities, selling their own property as principals. The plaintiff is a small securities broker and dealer doing business in Portland, Maine, under the name of Clifford J. Murphy Co. For many years he had extensive dealings with the defendants, a firm of stock brokers carrying on a general brokerage business under the name of Rhoades & Company with offices in New York and Boston. Negotiation of the transaction out of which the present lawsuit arose was conducted by Murphy and Frank Lynch, the head trader of Rhoades & Company, by means of numerous telephone conversations between Boston and Portland. Early in March, 1937, Lynch persuaded Murphy to purchase voting trust certificates representing 1,700 common shares of South American Utilities Corporation (incorporated in Delaware), part of a block of 1,970 shares which had been held by E. E. Smith & Company, a small unlisted dealer in New York. The court below found that Lynch had effected the sale by misrepresentation of material facts, and further found that the defendants had not sustained the burden of proof that Lynch did not know, nor in the exercise of reasonable care could have known, of the untruth of the misrepresentations. These findings are amply sustained by the testimony and indeed are not assailed by appellants. The stock was actually without substantial value at any time. When Murphy learned the facts, he tendered back the securities to Rhoades & Company. Upon the refusal of the latter to take them back, Murphy sold the securities at a loss, and brought the present action. He has recovered a judgment for the amount he paid for the stock, with interest, less the amount realized upon the subsequent sale, with interest. At the trial the plaintiff sought to prove that Rhoades & Company had acted as principal in’ the transaction; that Rhoades & Company on its own account had bought from E. E. Smith & Company the' block of 1,970 shares of South American Utilities common a day or two before Lynch sold 1,700 of these shares to the plaintiff. Murphy testified that he had never heard of E. E. Smith & Company prior to his purchase of the securities. On the other hand Lynch, who was the main witness for the defendants, offered quite a different version. He testified on direct examination, as follows: “Q. Now will you relate what your conversation was with Mr. Murphy on the first of March? A. It was after four o’clock, March 1st, that E. E. Smith & Company called me and said he had a block of 1970 shares of South American Utilities common. He wanted to know if— “Q. Who is he ? A. E. E. Smith. “Q. E. E. Smith.was E. E. Smith and Company? A. Yes. He wanted to know if I could find a buyer for the stock. I told him I had one possibility and to hold on the line until I talked with him. I called Mr. Murphy through our Portland wire and told Mr. Murphy about this block nf South American Utilities common— “Q. Just a minute. What block did Mr. Smith speak of to you? A. A block of 1970 shares of stock. “Q. And did you mention the number of shares to Murphy? A. I did, sir. “Q. All right. What else did you say? A. I told Mr. Murphy that Mr. Smith had this block of stock and wanted to know if he was interested' in the stock. I quoted the market to Mr. Murphy, 4-1/4 to 4-3/4. Mr. Murphy wanted to know if it possibly could be bought cheaper. I said I would be glad to try. He gave me a bid ’for 1700 shares of stock at 4-1/2. Before I had actually purchased that stock from Mr. Smith on the wire I told Mr. Murphy I had a long position in the stock which I wasn’t going to sell and if I was going to buy this block of stock for Mr. Murphy I would act as agent in the transaction. He asked me what commission I would charge and I said I would charge a fair commission. We agreed on four cents a share — ” The District Court did not find it necessary to resolve the conflicting versions. It found, upon sufficient evidence, that the stock was “sold to the plaintiff by the defendants, acting either as brokers or owners”. Though the evidence did not satisfy the court that Rhoades & Company acted as principals, it concluded that this was immaterial since “Section 12 of the Securities Act of 1933 applies to brokers when selling securities owned by other persons”. The court found, as clearly warranted by the evidence, that Rhoades & Company, whether acting as brokers or owners, “solicited from the plaintiff an offer to buy the stock mentioned, and as a result of Lynch’s solicitations and 'representations, the plaintiff bought the stock, paying the price named and a brokerage commission of four cents a share”. This, the court thought, brought Rhoades & Company-within the meaning of § 12(2) as a “person who sells a security”, in view of the broad definition of “sell” in § 2(3) of the Act, which includes within the meaning of the word the “solicitation of an offer to buy”. If Rhoades & Company, though not selling its own property, is a “person who sells a security” then it follows that Murphy is “the person purchasing such security from him” within the meaning of the corresponding phrase in § 12(2). We agree with the court below that § 12(2) imposes a liability for misrepresentations not only upon principals, but- also upon brokers when selling securities owned by other persons. This is not a strained interpretation of the statute, for a selling agent in common parlance would describe himself as a “person who sells”, though title passes from his principal, not from him. This broader interpretation of § 12 (2) is warranted by the definition of “sell” in § 2(3) and is also supported by comparison with other sections of the statute. If the security in question had been a security required by law to be registered, but as to which no registration statement was in effect, Rhoades & Company under the facts of the present case would certainly have been guilty of selling a security in violation of § 5(a) (1), and would not have come within the exemption provided in § 4(2). As a person who “sells a security in violation of section 5”, Rhoades & Company would haver been under a civil liability to Murphy under § 12(1). But the phrase “any person who sells a security” occurs both in § 12(1) and in § 12(2), and would seem to mean the same thing in both subsections, one of which deals with selling an unregistered security and the other of which deals with selling a security by means of misrepresentation of material facts. It is argued that the remedy provided in § 12(2) is basically rescission, which contemplates a restoration of the status quo as between the principals to the transaction; and that Congress could hardly have intended to give this remedy to the buyer as against an agent of the seller. But the section does not use the word “rescission” nor indicate that the remedy provided is limited to rescission in the narrower sense as between the principals to the transaction. The remedy provided can be applied without difficulty to an agent of a vendor; the agent, by misrepresentations having effected a sale, is required to take over the securities from the defrauded buyer and to restore to the latter the price he paid. Even apart from statute this remedy of “rescission” in its wider sense, against the agent of a vendor, is not unknown. See Peterson v. McManus, 187 Iowa 522, 545, 172 N.W. 460 ff.; 3 Neb.L.Bull. 436, note. At one point in its opinion the court below makes a statement of law which is broader than necessary to support the judgment rendered. It says [30 F.Supp. 466, 469]: “Whether the seller, being a broker, himself owns the security, or whether he is acting as the agent for the owner, or for the purchaser, or for both, is immaterial. If, in the course of an attempt to dispose of, or solicitation of an offer to buy a security, he makes false statements under circumstances referred to in section 12, the purchaser is given a right of action to recover any damages he has suffered on account of the false representations.” We need not decide whether § 12(2) applies to the case of a broker acting solely for a purchaser, where the broker makes misrepresentations in the course of soliciting from the purchaser an order to buy. Even if the version of the defendants’ witness Lynch is accepted, Rhoades & Company was acting either as agent for the seller or in a dual capacity as agent for both parties, in either of which cases § 12(2) is applicable. See Douglas & Bates, The Federal Securities Act of 1933, 43 Yale L.J. 171, 206, 207. The plaintiff’s declaration contained a count for deceit at common law. The court below held that recovery could not be allowed on this count because the plaintiff had failed to exercise reasonable care to ascertain the falsity of the representations. In view of our conclusion that the judgment for the plaintiff may be sustained under the statute, we do not consider the correctness of the trial court’s ruling on the common law count. The judgment of the District Court is affirmed, with costs to the appellee. “Sec. 2 [§ 77b], When used in this title [subehapter], unless the context otherwise requires * * * “(3) The term ‘sale’, ‘sell’, ‘offer to sell’, or ‘offer for sale’ shall include every contract of sale or disposition of, attempt or offer to dispose of, or solicitation of an offer to buy, a security or interest in a security, for value; * * * “(12) The term ‘dealer’ means any person who engages either for all or part of his time, directly or indirectly, as agent, broker, or principal, in the business of offering, buying, selling, or otherwise dealing or trading in securities issued by another person. * * * “Sec. 4 [§ 77d]. The provisions of section 5 [77e] shall not apply to any of the following transactions: “(1) Transactions by any person other than an issuer, underwriter, or dealer; * * * “(2) Brokers’ transactions, executed upon customers’ orders on any exchange or in the open or counter market, but not the solicitation of such orders. * * * “Sec. 5 [§ 77e]. (a) Unless a registration statement is in effect as to a security, it shall be unlawful for any person, directly or indirectly— “(1) to make nse of any means or instruments of transportation or communication in interstate commerce or of the mails to sell or offer to buy sueh security through the use or medium of any prospectus or otherwise; * * * “Sec. 12 [§ 77!j. Any person who— “(3) sells a security in violation of section 5 [77e], or “(2) sells a security (whether or not exempted by the provisions of section 3 L77c], other than paragraph (2) of subsection (a) thereof), by the use of any means or instruments of transportation or communication in interstate commerce or of the mails, by means of a prospectus or oral communication, which includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading (the purchaser not knowing of such untruth or omission), and who shall not sustain tho burden of proof that he did not know, and in the exercise of reasonable care could not have known, of such untruth or omission, shall be liable to the person purchasing such security from him, who may sue either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if ho no longer owns the security.” 15 TJ.S.C.A. §§ 77b(3,12), 77d, 77e(a)(l), 771 Question: What forum heard this case immediately before the case came to the court of appeals? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Court of Customs & Patent Appeals H. Court of Claims I. Court of Military Appeals J. Tax Court or Tax Board K. Administrative law judge L. U.S. Supreme Court (remand) M. Special DC court (not the US District Court for DC) N. Earlier appeals court panel O. Other P. Not ascertained Answer:
songer_district	A	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". DIXIE PINE PRODUCTS CO. v. COMMISSIONER OF INTERNAL REVENUE. No. 10270. Circuit Court of Appeals, Fifth Circuit. March 5, 1943. T. J. Wills, of Hattiesburg, ¡tóiss., for petitioner. j Samuel O. Clark, Jr., Asst. Atty. Gen., Maryhelen Wigle, Sewall Key, and J. Louis Monarch, Sp. Assts. to Atty. Gen., and J. P. Wenchel, Chief Counsel, Bureau of Internal Revenue, and Bernard D. Daniels, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., for respondent. Before HUTCHESON, HOLMES, and McCORD, Circuit Judges. McCORD, Circuit Judge. The Petition for Review involves deficiencies in income and excess profits taxes of $3,600.09 and $1,169.95 determined against Dixie Pine Products Company for ■the calendar year 1937. The issue is whether the taxpayer’s 1937 tax return may be corrected by disallowing deduction of an accrued item for Mississippi gasoline taxes which the taxpayer contested and refused to pay, and which, as the result of successful litigation in the State Courts, it never had to pay. Dixie Pine Products Company' was engaged in Mississippi in the business of extracting turpentine, pine oil, and resin from stumps and other waste wood. A, quantity of solvent made from petroleum ¡products was used in the process. In 1936,the taxing authorities of Mississippi, contending that the solvent was usable in the operation of automobiles, assessed a State gasoline tax on the solvent received and used by Dixie in that year. The tax was levied under Sections 5(a) and 8(a) of Chapter 162, Laws of Mississippi, 1936, wherein gasoline is defined. The taxpayer paid the gasoline tax assessed in 1936, and in the same year filed suit in the State Court against the Motor Vehicle Commissioner of Mississippi, alleging that the nature of the solvent and the use to which it was put did not fall within the ambit of the taxing statute, and asking for temporary and permanent injunctions against future collections of the tax. A demurrer filed by the Motor Vehicle Commissioner was sustained by the lower court. An appeal was taken and on January 25, 1937, the Supreme Court of Mississippi handed down its decision holding that on the pleadings the solvent did not fall “within the definition of gasoline upon which a taj£ is imposed by section 8(a) of the act”. Dixie Pine Products Company v. Dyer, 175 Miss. 227, 172 So. 145, 148. After this decision came down, the taxpayer at all times denied that it owed, and ceased and refused to pay, gasoline tax on the solvent used by it. On .December 8, 1938, the taxpayer and the Attorney General of Mississippi filed an agreed statement of facts in the State Court action, and on December 21, 1938, the Chancery Court of the First Judicial District of Hinds County, Mississippi, entered its final decree perpetually enjoining the Motor Vehicle Commissioner from assessing gasoline tax on the solvent used by Dixie. The final decree was affirmed by the Supreme Court of Mississippi, Dyer v. Dixie Pine Products Company, Miss., 191 So. 429. Dixie Pine Products Company kept its books and filed its income tax return on the accrual basis for the year in question. By letter dated in December, 1937, the attorney for the taxpayer directed that book entries be made accruing the gasoline tax assessed by the Motor Vehicle Commissioner in 1937. In the course of auditing and closing the 1937 books, the actual accrual entries were made by an auditor sometime between January 1, and March 15, 1938, as of December 31, 1937. . The amount of tax thus accrued on the books for 1937 was $20,839.38, and this amount was deducted from income in making the 1937 income tax return. The taxpayer never paid the State gasoline taxes, and by way of compensating entry (he amount of $20,839.38 was included in income in Dixie’s 1938 income tax return as a recovery in view of the Mississippi Chancery Court’s decree of December, 1938. The petitioner contends that its 1937 accrual and deduction of the tax item of $20,839.38 was proper, and that the Board of Tax Appeals erred in holding that this amount was not deductible from gross income for that year. The decision of the Board is without error. During the whole of the tax year for which the right of deduction is asserted, Dixie Pine Products Company was denying liability for the State gasoline taxes, and was affirmatively litigating the applicability of the taxing statute to the solvent used by it. Indeed, when it stopped paying the taxes assessed against it by the Motor Vehicle Commissioner, it had won the first round of litigation in the Supreme Court of Mississippi. Returns of taxpayers, whether upon the cash or accrual basis, must clearly reflect the income of the tax year; and the great weight of authority is to the effect that where, as here, a taxpayer is on the accrual basis, it may not deduct as an expense an item on which it is denying or contesting liability. “A mere contingent claim, especially a contested one, whether of loss or gain, may never be sustained or realized; it is too uncertain to be considered in making up an income tax return”. Commissioner v. Southeastern Express Co., 5 Cir., 56 F.2d 600; Lucas v. American Code Co., 280 U.S. 445, 50 S.Ct. 202, 74 L.Ed. 538, 67 A.L.R. 1010; Brown v. Helvering, 291 U.S. 193, 54 S.Ct. 356, 78 L.Ed. 725; Pharr & Sons v. Commissioner, 5 Cir., 56 F.2d 832. Cf. J. A. Dougherty’s Sons v. Commissioner, 3 Cir., 121 F.2d 700; Ben Bimberg & Co. v. Helvering, 2 Cir., 126 F.2d 412. The compensating entry made in 1938 by the petitioner does not preclude correction of the erroneous return for 1937. The correction, coming well within the limitation period, may be made so that the true income may be reflected for 1937. The taxpayer will, of course, have a claim for refund of any tax overpayment resulting from inclusion of the compensating entry in income of 1938. Ben Bimberg & Co. v. Helvering, 2 Cir., 126 F.2d 412; Leach v. Commissioner, 1 Cir., 50 F.2d 371; Bergan v. Commissioner, 2 Cir., 80 F.2d 89; Inland Products Co. v. Blair, 4 Cir., 31 F.2d 867. The decision of the Board 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_respondent	028	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them. Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. COLONIAL PIPELINE CO. v. TRAIGLE, COLLECTOR OF REVENUE OF LOUISIANA No. 73-1595. Argued January 13, 1975 Decided April 28, 1975 Brennan, J., delivered the opinion of the Court, in which Burger, C. J., and White, Marshall, and Powell, JJ., joined. Blackmun, J., filed an opinion concurring in the judgment, in which Rehnquist, J., joined, post, p. 114. Stewart, J., filed a dissenting opinion, post, p. 116. Douglas, J., took no part in the consideration or decision of the case. R. Gordon Kean, Jr., argued the cause for appellant. With him on the briefs was John V. Parker. Whit M. Cook II argued the cause for appellee pro hoc vice. With him on the brief was Chapman L. Sanford. Mb. Justice Brennan delivered the opinion of the Court. We have once again a case that presents “the perennial problem of the validity of a state tax for the privilege of carrying on, within a state, certain activities” related to a corporation’s operation of an interstate business. Memphis Gas Co. v. Stone, 335 U. S. 80, 85 (1948). The issue is whether Louisiana, consistent with the Commerce Clause, Art. I, § 8, cl. 3, may impose a fairly apportioned and nondiscriminatory corporation franchise tax on appellant, Colonial Pipeline Co., a corporation engaged exclusively in interstate business, upon the “incident” of its “qualification to carry on or do business in this state or the actual doing of business within this state in a corporate form.” No question is raised as to the reasonableness of the apportionment of appellant’s capital deemed to have been employed in Louisiana, and it is not claimed that the tax is discriminatory. The Supreme Court of Louisiana sustained the validity of the tax. 289 So. 2d 93 (1974). We noted probable jurisdiction, 417 U. S. 966 (1974). We affirm. I Appellant is a Delaware corporation with its principal place of business in Atlanta, Ga. It is a common carrier of liquefied petroleum products and owns and operates a pipeline system extending from Houston, Tex., to the New York City area. This 3,400-mile pipeline links the oil refining complexes of Texas and Louisiana with the population centers of the Southeast and Northeast. Appellant daily delivers more than one million gallons of petroleum products to 14 States and the District of Columbia. Approximately 258 miles of the pipeline are located in Louisiana. Over this distance within Louisiana, appellant owns and operates several pumping stations which keep the petroleum products flowing at a sustained rate, and various tank storage facilities used to inject or withdraw petroleum products into or from the line. A work force of 25 to 30 employees — mechanics, electricians, and other workers — inspect and maintain the line within the State. During the tax years in question, 1970 and 1971, appellant maintained no administrative offices or personnel in. Louisiana, although it had once maintained a division office in Baton Rouge. Appellant does no intrastate business in petroleum products in Louisiana. On May 9, 1962, appellant voluntarily qualified to do business in Louisiana, although it could have carried on its interstate business without doing so. La. Rev. Stat. Ann. § 12:302 H (1969); see n. 8, infra. Thereupon, the Collector of Revenue imposed the Louisiana franchise tax on appellant's activities in the State during 1962. At that time La. Rev. Stat. Ann. §47:601, the Louisiana Franchise Tax Act, expressly provided: “The tax levied herein is due and payable for the privilege of carrying on or doing business, the exercising of its charter or the continuance of its charter within this state, or owning or using any part or all of its capital or plant in this state.” (Emphasis supplied.) Appellant paid the tax and sued for a refund. The Louisiana Court of Appeal, First Circuit, held that, in that form, § 601 was unconstitutional as applied to appellant because, being imposed directly upon “the privilege of carrying on or doing [interstate] business,” it violated the Commerce Clause, Art. I, § 8, cl. 3. Colonial Pipeline Co. v. Mouton, 228 So. 2d 718 (1969). The Supreme Court of Louisiana refused review. 255 La. 474, 231 So. 2d 393 (1970). Following this decision, the Louisiana Legislature amended La. Rev. Stat. Ann. § 47:601 by Act 325 of 1970. The amendment excised from § 601 the words: “The tax levied herein is due and payable for the privilege of carrying on or doing business,” and substituted: “The qualification to carry on or do business in this state or the actual doing of business within this state in a corporate form,” as one of three “alternative incidents” upon which the tax might be imposed. The other two “incidents”— the exercise of the corporate charter in the State, and the employment there of its capital, plant, or other property— were carried forward from the earlier version of the statute. See n. 2, supra. The Collector of Revenue then renewed his efforts to impose a tax on appellant, this time for doing business “in a corporate form” during 1970 and 1971. Again, appellant paid the tax and sued for a refund. The Louisiana District Court and the Court of Appeal, First Circuit, concluded that the 1970 amendment made no substantive change in § 601, which it construed as still imposing the tax directly upon the privilege of carrying on or doing an interstate business, and held that amended § 601 was therefore unconstitutional as applied to appellant. 275 So. 2d 834 (1973). The Supreme Court of Louisiana reversed. The court recognized that “[t]he pertinent Constitutional question is whether, as applied to a corporation whose exclusive business carried on within the State is interstate, this statute violates the Commerce Clause of the United States Constitution.” 289 So. 2d, at 97. But the court attached controlling significance to the omission from the amended statute of the “primary operating incident [of the former version], i. e., ‘the privilege of carrying on or doing business/ ” id., at 96, and the substitution for that incident of doing business in the corporate form. The court held: “The thrust of the [amended] statute is to tax not the interstate business done in Louisiana by a foreign corporation, but the doing of business in Louisiana in a corporate form, including ‘each and every act, power, right, privilege or immunity exercised or enjoyed in this state, as an incident to or by virtue of the powers and privileges acquired by the nature of such organizations....”’ Id., at 97. Accordingly, the court concluded that amended § 601 applied the franchise tax to foreign corporations doing only an interstate business in Louisiana not as a tax upon “the general privilege of doing interstate business but simply [as a tax upon] the corporation’s privilege of enjoying in a corporate capacity the ownership or use of its capital, plant or other property in this state, the corporation’s privilege of exercising and continuing its corporate character in the State of Louisiana, and the corporation’s use of its corporate form to do business in the State.” Id., at 100. Upon that premise, the court validated the levy as a constitutional exaction for privileges enjoyed by corporations in Louisiana and for benefits furnished by the State to enterprises carrying on business, interstate or local, in the corporate form, whether as domestic or foreign corporations. The court reasoned: “The corporation, including the foreign corporation doing only interstate business in Louisiana, enjoys under our laws many privileges separate and apart from simply doing business, such for instance as the legal status to sue and be sued in the Courts of our State, continuity of business without interruption by death or dissolution, transfer of property interests by the disposition of shares of stock, advantages of business controlled and managed by corporate directors, and the general absence of individual liability, among others. “The fact that the corporate form of doing business is inextricably interwoven in a foreign corporation’s doing interstate business in the State, does not in our view detract from the fact that the local incident taxed is the form' of doing business rather than the business done by that corporation. And it is our view that the local incident is real and sufficiently distinguishable, so that taxation thereof does not, under the controlling decisions of the United States Supreme Court, violate the Commerce Clause. “The statute does not discriminate between foreign and local corporations, being applicable, as it is, to both. Nor do we believe that the State’s exercise of its power by this taxing statute is out of proportion to Colonial’s activities within the state and their consequent enjoyment of the opportunities and protection which the state has afforded them. “Furthermore we believe that the State has given something for which it can ask return. The return, tax levy in this case, is an exaction which the State of Louisiana requires as a recompense for its protection of lawful activities carried on in this state by Colonial, activities which are incidental to the powers and privileges possessed by it by the nature of its organization, here,... the local activities in maintaining, keeping in repair, and otherwise in manning the facilities of their pipeline system throughout the 258 miles of its pipeline in the State of Louisiana.” Id., at 100-101. This Court is, of course, not bound by the state court’s determination that the challenged tax is not a tax on interstate commerce. “The State may determine for itself the operating incidence of its tax. But it is for this Court to determine whether the tax, as construed by the highest court of the State, is or is not ‘a tax on interstate commerce.’ ” Memphis Steam Laundry v. Stone, 342 U. S. 389, 392 (1952). We therefore turn to the question whether the tax imposed upon appellant under amended § 601, as construed by the Louisiana Supreme Court, is or is not a tax on interstate commerce. II It is a truism that the mere act of carrying on business in interstate commerce does not exempt a corporation from state taxation. “It was not the purpose of the commerce clause to relieve those engaged in interstate commerce from their just share of state tax burden even though it increases the cost of doing the business.” Western Live Stock v. Bureau of Revenue, 303 U. S. 250, 254 (1938). Accordingly, decisions of this Court, particularly during recent decades, have sustained nondiscriminatory, properly apportioned state corporate taxes upon foreign corporations doing an exclusively interstate business when the tax is related to a corporation’s local activities and the State has provided benefits and protections for those activities for which it is justified in asking a fair and reasonable return. General Motors Corp. v. Washington, 377 U. S. 436 (1964); Memphis Gas Co. v. Stone, 335 U. S. 80 (1948). Cf. Spector Motor Service v. O’Connor, 340 U. S. 602 (1951). General Motors Corp., supra, states the controlling test: “[T]he validity of the tax rests upon whether the State is exacting a constitutionally fair demand for that aspect of interstate commerce to which it bears a special relation. For our purposes the decisive issue turns on the operating incidence of the tax. In other words, the question is whether the State has exerted its power in proper proportion to appellant’s activities within the State and to appellant’s consequent enjoyment of the opportunities and protections which the State has afforded.... As was said in Wisconsin v. J. C. Penney Co., 311 U. S. 435, 444 (1940), ‘[t]he simple but controlling question is whether the state has given anything for which it can ask return.’ ” 377 U. S., at 440-441. Amended § 601 as applied to appellant satisfies this test. First, the Supreme Court of Louisiana held that the operating incidences of the franchise tax are the three localized alternative incidences provided in §601: (1) doing business in Louisiana in the corporate form; (2) the exercise of a corporation’s charter or the continuance of its charter within the State; and (3) the owning or using any part of its capital, plant, or other property in Louisiana in a corporate capacity. We necessarily accept this construction of amended § 601 by Louisiana’s highest court. 289 So. 2d, at 97. Second, the court found that the powers, privileges, and benefits Louisiana bestows incident to these activities were sufficient to support a tax on doing business in the corporate form in that State. We perceive no basis upon which we can say that this is not in fact the case. Our pertinent precedents therefore require affirmance of the State Supreme Court’s judgment. Memphis Gas Co. v. Stone, supra, sustained a similar franchise tax imposed by Mississippi on a foreign pipeline corporation engaged exclusively in an interstate business even though the company had not qualified in Mississippi. Memphis Natural Gas Co., a Delaware corporation, owned and operated a natural gas pipeline extending from Louisiana, through Arkansas and Mississippi, to Memphis and other parts of Tennessee. Approximately 135 miles of the pipeline were located in Mississippi, and two of the corporation’s compressing stations were located in that State. The corporation engaged in no intrastate commerce in Mississippi, and had only one customer there. It had not qualified under the corporation laws of Mississippi. It had neither an agent for the service of process nor an office in that State, and its only employees there were those necessary for the maintenance of the pipeline. The corporation paid all ad valorem taxes assessed against its property in Mississippi. In addition to these taxes, however, Mississippi imposed a “franchise or excise tax” upon all corporations “doing business” within the State. The statute defined “doing business” in terms that suggest it may have been the model for § 601, that is, “[to] mean and [to] include each and every act, power or privilege exercised or enjoyed in this State, as an incident to, or by virtue of the powers and privileges acquired by the nature of such organization.” 335 U. S., at 82. The Supreme Court of Mississippi held, as did the Supreme Court of Louisiana here, 289 So. 2d, at 101, that the tax was “ 'an exaction... as a recompense for... protection of'... the local activities in maintaining, keeping in repair, and otherwise manning the facilities of the system throughout the 135 miles of its line in this State.’ ” 335 U. S., at 84. In affirming the judgment of that court, Mr. Justice Reed, in a plurality opinion, said: “We think that the state is within its constitutional rights in exacting compensation under this statute for the protection it affords the activities within its borders. Of course, the interstate commerce could not be conducted without these local activities. But that fact is not conclusive. These are events apart from the flow of commerce. This is a tax on activities for which the state, not the United States, gives protection and the state is entitled to compensation when its tax cannot be said to be an unreasonable burden or a toll on the interstate business.” Id., at 96. This conclusion is even more compelled in the instant case since appellant voluntarily qualified under Louisiana law and therefore enjoys the same rights and privileges as a domestic corporation. La. Rev. Stat. Ann. § 12:306 (2) (Supp. 1975). The Louisiana Supreme Court defined appellant’s powers and privileges as including “the legal status to sue and be sued in the Courts of our State, continuity of business without interruption by death or dissolution, transfer of property interests by the disposition of shares of stock,, advantages of business controlled and managed by corporate directors, and the general absence of individual liability... 289 So. 2d, at 100. These privileges obviously enhance the value to appellant of its activities within Louisiana. See Southern Gas Corp. v. Alabama, 301 U. S. 148, 153 (1937); Stone v. Interstate Natural Gas Co., 103 F. 2d 544 (CA5), aff’d, 308 U. S. 522 (1939). Cf. Railway Express Agency v. Virginia (Railway Express II), 358 U. S. 434 (1959). Ill Nevertheless, appellant contends that Spector Motor Service v. O’Connor, 340 U. S. 602 (1951), and Railway Express Agency v. Virginia (Railway Express I), 347 U. S. 359 (1954), require the conclusion that § 601 is unconstitutional as applied to appellant. The argument is without merit. Spector held invalid under the Commerce Clause a Connecticut tax based expressly “upon [the corporation’s] franchise for the privilege of carrying on or doing business within the state....” Similarly, Railway Express I invalidated Virginia’s “annual license tax” imposed on express companies expressly “for the privilege of doing business” in the State. Thus both taxes, as express imposts upon the privilege of carrying on an exclusively interstate business, contained the same fatal constitutional flaw that led the Louisiana Court of Appeal to strike down the levy against appellant under § 601 before its amendment in 1970. “A tax is [an unconstitutional] direct burden, if laid upon the operation or act of interstate commerce.” Ozark Pipe Line v. Monier, 266 U S 555, 569 (1925 ) ( Brandéis, J.. dissenting). The 1970 amendment however repealed that unconstitutional basis for the tax, and made § 601 constitutional by limiting its application to operating incidences of activities within Louisiana for which the State affords privileges and protections that constitutionally entitle Louisiana to exact a fairly apportioned and nondiscriminatory tax. Spector expressly recognized: "The incidence of the tax provides the answer.. The State is not precluded from imposing taxes upon other activities or aspects of this business which, unlike the privilege of doing interstate business, are subject to the sovereign power of the State.” 340 L S., at 608-609. Of course, an otherwise unconstitutional tax is not made the less so by masking it in words cloaking its actual thrust. Railway Express II, supra, at 441; Railway Express I, supra, at 363; Galveston, H & S. A. R. Co. v. Texas, 210 U. S. 217, 227 (1908). “Tt is not a matter of labels.” Spector, supra, at 608. Here, however, the Louisiana Legislature amended § 601 purposefully to remove any basis of a levy upon the privilege of carrying on an interstate business and narrowly to confine the impost to one related to appellant’s activities within the State in the corporate form. Since appellant, a foreign corporation qualified to carry on its business in corporate form, and doing business in Louisiana in the corporate form, thereby gained benefits and protections from Louisiana of value and importance to its business, the application of that State’s fairly apportioned and nondiscriminatory levy to appellant does not offend the Commerce Clause. The tax cannot be said to be imposed upon appellant merely or solely for the privilege of doing interstate business in Louisiana. It is, rather, a fairly apportioned and nondiscriminatory means of requiring appellant to pay its just share of the cost of state government upon which appellant necessarily relies and by which it is furnished protection and benefits. Affirmed. Mb. Justice Douglas took no part in the consideration or decision of this case. “This Court alone has handed down some three hundred full-dress opinions spread through slightly more than that number of our reports.... [T]he decisions have been ‘not always clear... consistent or reconcilable.’ ” Northwestern Cement Co. v. Minnesota, 358 U. S. 450, 457-458 (1959). Louisiana Rev. Stat. Ann. §47:601 provided in 1963: “Every domestic corporation and every foreign corporation, exercising its charter, authorized to do or doing business in this state, or owning or using any part or all of its capital or plant in this state, subject to compliance with all other provisions of law, except as otherwise provided for in this chapter, shall pay a tax at the rate of one dollar and 50/100 ($1.50) for each one thousand dollars ($1,000.00), or major fraction thereof on the amount of its capital stock, surplus, undivided profits, and borrowed capital, determined as hereinafter provided; the minimum tax shall not be less than ten dollars ($10.00) in any case. The tax levied herein is due and payable for the privilege of carrying on or doing business, the exercising of its charter or the continuance of its charter within this state, or owning or using any part or all of its capital or plant in this state,” Refusal of review was not tantamount to an affirmance. The Louisiana Supreme Court stated in its opinion in the instant case: “This Court’s refusal in 1969 to grant writs upon application by the State in that earlier case, while normally persuasive, does not carry the same weight as a precedent as it would, had that case been decided by this Court after the granting of a writ.... This Court is not bound by its refusal of writs, to adopt law expressed in appellate court opinions.” 289 So. 2d 93, 96 (1974). Section 601 (Supp. 1975) provides in pertinent part: “§601. Imposition of tax “Every domestic corporation and every foreign corporation, exercising its charter, or qualified to do business or actually doing business in this state, or owning or using any part or all of its capital, plant or any other property in this state, subject to compliance with all other provisions of law, except as otherwise provided for in this Chapter shall pay an annual tax at the rate of $1.50 for each $1,000.00, or major fraction thereof on the amount of its capital stock, surplus, undivided profits, and borrowed capital, determined as hereinafter provided; the minimum tax shall not be less than $10.00 per year in any case. The tax levied herein is due and payable on any one or all of the following alternative incidents: “(1) The qualification to carry on or do business in this state or the actual doing of business within this state in a corporate form. The term ‘doing business’ as used herein shall mean and include each and every act, power, right, privilege, or immunity exercised or enjoyed in this state, as an incident to or by virtue of the powers and privileges acquired by the nature of such organizations, as well as, the buying, selling or procuring of services or property. "(2) The exercising of a corporation’s charter or the continuance of its charter within this state. “(3) The owning or using any part or all of its capital, plant or other property in this state in a corporate capacity. “It being the purpose of this section to require the payment of this tax to the State of Louisiana by domestic corporations for the right granted by the laws of this state to exist as such an organization, and by both domestic and foreign corporations for the enjoyment, under the protection of the laws of this state, of the powers, rights, privileges and immunities derived by reason of the corporate form of existence and operation. The tax hereby imposed 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_circuit	D	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. Charles F. PARLATO; Jackie Parlato, his wife, Plaintiffs-Appellants, v. ABBOTT LABORATORIES, a body corporate, Defendant-Appellee. No. 87-1762. United States Court of Appeals, Fourth Circuit. Argued May 5, 1988. Decided June 30, 1988. Benjamin Lipsitz, Baltimore, Md., for plaintiffs-appellants. Harold D. Murry, Jr. (Robert P. Reznick, Clifford & Wamke, Washington, D.C., Paul Mark Sandler, Freishtat & Sandler, Baltimore, Md., Catherine A. Sazdanoff, Office of General Counsel, Abbott Laboratories, North Chicago, Ill., on brief) for defendant-appellee. Before PHILLIPS and SPROUSE, Circuit Judges, and KAUFMAN, Senior United States District Judge for the District of Maryland, sitting by designation. PER CURIAM. Appellants, Charles and Jackie Parlato (the Parlatos), seek reversal of the district court’s grant of summary judgment in favor of defendant-appellee, Abbott Laboratories (Abbott). For the reasons stated in this opinion, we affirm. I. This case involves a wrongful discharge suit filed by Charles Parlato against his former employer, Abbott, a manufacturer of pharmaceutical products. From December 1960 until October 1982, Parlato was employed by Abbott in an at will capacity, and had held the position of field sales representative for Abbott from 1969 until his termination. In early October 1982, Abbott fired Parlato, giving as its reasons Parlato’s violation of company procedures, insubordination, and unsatisfactory performance on the job. Parlato, a white male, was fifty-five years old at the time he was discharged, and was replaced by a black male several years his junior. On February 17, 1983, Parlato filed a complaint with the Maryland Commission on Human Relations (Commission), claiming that Abbott had fired him because of his age and race, and had thereby violated Article 49B of the Annotated Code of Maryland. Md.Ann.Code art. 49B, § 16(a) (1986). On October 11, 1983, after the Commission had investigated the matter, it issued its written determination that there was no probable cause to believe that Abbott’s discharge of Parlato was discriminatory in nature. On October 3, 1985, Parlato and his wife filed suit against Abbott in the Circuit Court for Anne Arundel County, Maryland, asserting a claim for wrongful discharge on two grounds: (1) the discharge violated Maryland and federal public policy against age and race discrimination; and (2) the discharge resulted from Parlato’s knowledge of Abbott’s alleged antitrust violations and Abbott’s fear that Parlato would “blow the whistle” on those activities. The Parlatos also claimed a loss of consortium stemming from the wrongful discharge. On November 13, 1985, Abbott appropriately removed this case to the United States District Court for the District of Maryland. On May 5, 1987, the district court dismissed Parlato’s claim for common law wrongful discharge based upon allegations of race and age discrimination because Article 49B provides an exclusive statutory remedy for those alleged injuries. At that time, the district court denied Abbott’s motion for summary judgment with respect to the remainder of the Parlatos’ claims. Subsequently, however, on October 27, 1987, the district court granted summary judgment on the Parla-tos’ remaining claims because there was no evidence that Abbott had violated any antitrust laws, or that Charles Parlato’s discharge was motivated by knowledge of such alleged violations. In this appeal, the Parlatos challenge only the district court’s May 5, 1987 dismissal of the race and age discrimination claims. II. In a ground-breaking decision in 1981, the Court of Appeals of Maryland “recognize[d] a cause of action for abusive [or wrongful] discharge by an employer of an at will employee when the motivation for the discharge contravenes some clear mandate of public policy.” Adler v. American Standard Corp., 291 Md. 31, 47, 432 A.2d 464, 473 (1981). There is no question that Parlato’s allegations of race and age discrimination, when taken as true, violate the public policy of Maryland as expressed in Md.Ann.Code art. 49B, § 16(a)(1) (1986), which explicitly prohibits discrimination based on age and race. However, Article 49B itself does not create a private cause of action. Furthermore, Article 49B’s administrative remedy has been held to preclude quests for declaratory relief and monetary damages, albeit in cases which preceded Adler and did not discuss the possibility of a wrongful discharge claim by an at will employee. See Soley v. State of Maryland Commission on Human Relations, 277 Md. 521, 526-28, 356 A.2d 254, 257-58 (1976); Dillon v. Great Atlantic and Pacific Tea Co., Inc., 43 Md.App. 161, 166-67, 403 A.2d 406, 409 (1979). In this appeal, the issue presented is whether, in the wake of Adler, a plaintiff proceeding under Maryland law can base a common law claim of wrongful discharge on the violation of a public policy embodied in Article 49B, given that Article 49B itself creates a specific procedure and remedy for the redress of the alleged wrongs. Even though the Court of Appeals of Maryland has not decided the precise question before us, the Court of Special Appeals of Maryland has recently held that a common law claim of wrongful discharge cannot be premised solely on a violation of Article 49B. In Makovi v. Sherwin-Williams Co., 75 Md.App. 58, 540 A.2d 494 (1988), plaintiff, an at will employee of the defendant paint company, was fired approximately two months after she learned that she was pregnant. Plaintiff sued the company for wrongful discharge, claiming that her termination violated the policy against sex discrimination found in Md. Ann.Code art. 49B, § 16(a), and Title VII, 42 U.S.C. § 2000e-2. Makovi, 75 Md.App. at 59-60, 540 A.2d at 494-95. Writing for the Court of Special Appeals, Judge Wilner framed the issue as “whether a common law tort action for wrongful discharge, founded on an allegation that the discharge was prompted by and amounted to unlawful employment discrimination by reason of sex, will lie when there is a specific statutory procedure and remedy for the redress of that kind of conduct.” Makovi, 75 Md.App. at 60, 540 A.2d at 495. In concluding that no cause of action “lie[s] under that circumstance,” id., Judge Wil-ner reviewed the provisions of both Title VII and Article 49B, and also traced the development of the tort of wrongful discharge under Maryland law. Id. at 60-65, 540 A.2d at 495-97. He then noted: In point of fact, as Ms. Makovi candidly acknowledges, most of the courts that have considered the question have come to the view that a wrongful discharge action will not lie where a remedy is available under 42 U.S.C. § 2000e-5 or its State counterparts, including art. 49B, §§ 11 and 12. Four judges of the U.S. District Court for the District of Maryland have so held. See Glezos v. Amalfi Ristorante Italiano, Inc., 651 F.Supp. 1271 (D.Md.1987, J. Young) (sex discrimination); Chekey v. BTR Realty, Inc., 575 F.Supp. 715 (D.Md.1983, J. Miller) (age discrimination); MacGill v. Johns Hopkins Univ., 33 F.E.P. Cases 1254 (D.Md. 1983, J. Ramsey) (age discrimination); Vasques v. National Geographic Society, 34 F.E.P. Cases 295 (D.Md.1982, J. Jones) [available on WESTLAW, 1982 WL 1728] (national origin). Although we do not necessarily subscribe to all of the reasons cited in these cases, we do believe that the end conclusion is a correct one. Id. at 65-66, 540 A.2d at 497-98 (footnotes omitted). We believe that Makovi is on all fours with the case before us, and that under its holding the Parlatos’ claims against Abbott cannot succeed. While we are not required to follow decisions of intermediate appellate courts like the Court of Special Appeals of Maryland, such decisions are “dat[a] for ascertaining state law which [are] not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.” West v. American Telephone & Telegraph Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940); see also Commissioner of Internal Revenue v. Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782 18 L.Ed.2d 886 (1967); Sanderson v. Rice, 777 F.2d 902, 905 (4th Cir.1985), cert. denied, 475 U.S. 1027, 106 S.Ct. 1226, 89 L.Ed.2d 336 (1986). In the light of the great number of cases, including those from the District of Maryland, which accord with the decision in Ma-kovi, we do not believe that the Court of Appeals of Maryland “would decide otherwise.” Accordingly, we hereby affirm the district court’s dismissal of the Parlatos’ claims. AFFIRMED. . The exact date in October 1982 upon which Parlato was terminated is in dispute. For the purpose of calculating the application of the statute of limitations, the district court adopted October 4,1982 as the date upon which Parlato's employment relationship with Abbott ended. However, the date is not material at this time because the issue involved in this appeal does not relate to the question of limitations. . On November 10, 1983, Parlato filed an Application for Reconsideration by the Commission. Abbott asserts that the application was subsequently denied. Appellee’s Br. at 3. However, the record does not affirmatively indicate that any action has yet been taken. See J.A. 22 note; Appellant’s Br. at 7. . The Parlatos are citizens of Maryland, Abbott is an Illinois corporation with its principal place of business in that state, and the amount in controversy exceeds $10,000. Accordingly, diversity jurisdiction exists. . In so doing, the district court acted upon Abbott’s alternative motions for dismissal and for summary judgment. With regard to Parlato’s allegations of race and sex discrimination, no appropriate Fed.R.Civ.P. 56 material was filed either in support of, or in opposition to, Abbott’s motion. Therefore, the district court’s May 5, 1987 decision involving those portions of Parla-to’s complaint was technically a grant of Abbott’s motion to dismiss pursuant to Fed.R.Civ. P. 12(b)(6) rather than a grant of summary judgment pursuant to Fed.R.Civ.P. 56. However, that technical distinction has no material impact on the outcome of this appeal, for even if Parlato’s allegations of race and age discrimination are taken as true, they do not sustain his tort action for wrongful discharge under Maryland law. . The terms "abusive discharge” and "wrongful discharge” are synonymous. Adler, 291 Md. at 36 n. 2, 432 A.2d at 467 n. 2. . In his complaint, Parlato alleges that Abbott’s actions violate federal as well as state public policy, specifically the policy against age discrimination embodied in the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-34 (1982 & Supp. Ill 1985), and the policy against race discrimination expressed in Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-20003-l7 (1982). Although the ADEA and Title VII permit a plaintiff to pursue a private cause of action under certain circumstances, see 29 U.S.C. §§ 626(cMd); 42 U.S.C. § 2000e-5(f)(l), Parlato has not filed any claim under either of those two statutes. Furthermore, despite the complaint’s reference to federal public policy, in their presentations to the district court and to this court Parlato and Abbott focused exclusively on the relationship under Maryland law between Article 49B and a common law claim for wrongful discharge. Accordingly, we do not dwell in this opinion on the federal statutory remedies available to Par-lato. In any event, however, the public policies expressed in Article 49B are in substance dupli-cative of the policies expressed in its federal counterparts. See, e.g., Glezos v. Amalfi Ristorante Italiano, Inc., 651 F.Supp. 1271, 1275-76 (D.Md.1987). .Before filing her wrongful discharge claim, the plaintiff in Makovi had filed a claim with the EEOC, which later found "no reasonable cause to believe that her allegation was true.” Makovi, 75 Md.App. at 60, 540 A.2d at 495. Although the EEOC issued plaintiff a right-to-sue letter, plaintiff had apparently "declined to pursue that remedy." Id. Substantively, the same scenario has occurred in this case. But see note 9, infra. . While Judge Wilner agreed with the holdings in Glezos, Chekey, MacGill, and Vasques, he differed with the views expressed in certain of those opinions as to the meaning of Soley v. State of Maryland Commission on Human Relations, 277 Md. 521, 356 A.2d 254 (1976). See Makovi, 75 Md.App. at 66 n. 3, 540 A.2d at 498 n. 3. . While it is true that Makovi involves allegations of sex discrimination rather than the claims of age and race discrimination present in this case, that difference is immaterial. Indeed, Makovi’s reliance on cases involving age discrimination, including those from the District of Maryland, see 75 Md.App. at 65-66 & n. 2, 540 A.2d at 497-98 & n. 2, suggests that Makovi applies to all wrongful discharge claims which are based solely on the violation of public policies expressed in Article 49B and/or analogous federal statutes, so long as those statutes provide for remedies independent of any common law action. 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_adminrev	M	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". AMERICAN POWER & LIGHT CO. v. SECURITIES AND EXCHANGE COMMISSION. No. 3966. Circuit Court of Appeals, First Circuit. June 19, 1944. R. A. Henderson, A. J. G. Priest, James S. Regan, and Reid & Priest, all of New York City, for petitioner for review. Homer Kripke, Asst. Sol., Roger S. Foster, Sol., and Morton E. Yohalem, Counsel, Public Utilities Division and Alfred Hill, all of Philadelphia, Pa., for respondent. Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges. MAGRUDER, Circuit Judge. This case is now before us on respondent’s motion to dismiss a petition filed in this court by American Power & Light Company under § 24(a) of the Public Utility Holding Company Act of 1935, 49 Stat. 834, 15 U.S.C.A. § 79x(a), to review portions of an order of the Securities and Exchange Commission. The Commission on July 10, 1941, instituted proceedings under §§ 11(b)(2), 12(b) (c) and (C) and 15(f) of the Act, 15 U.S.C.A. §§ 79k(b)(2), 79Z(b, c, f), 79» (f), against Florida Power & Light Company, American Power & Light Company (the present petitioner) and Electric Bond & Share Company. Florida is a public utility company incorporated in the state of Florida and is engaged in the business of supplying electricity and gas to a large number of communities in that state. All the common stock of Florida is held by American, a registered holding company incorporated in the state of Maine. American in turn is controlled by Bond & Share as the top holding company. The proceedings raised issues as to the existence of substantial write-ups in the plant account of Florida; the adequacy of its depreciation reserve; the necessity for stopping dividends on preferred and common stocks held by American and interest on the debentures owned by American; the existence of an unfair and inequitable distribution of voting power among Florida’s various classes of securities and security holders; the steps necessary to cure such inequities, if found to exist, including subordination to publicly held securities of holdings by American of Florida’s preferred stock and debentures-; and'the treatment to be accorded certain sums received by American from Florida on or about July 1, 1941, as dividends on preferred stocks. By way of partial answer to the matters complained of by the Commission, Florida and American filed joint applications, and subsequent amendments thereto, seeking approval of proposals for recapitalization and refinancing of Florida involving, among other things, certain alterations in the securities of Florida held' by American. By order of the Commission these applications were consolidated for hearing with the aforesaid proceedings which had been instituted by the Commission. On December 28, 1943, the Commission filed its findings, opinion and order in the consolidated proceedings. The order granted the applications of Florida and American for approval of their proposals for the recapitalization and refinancing of Florida. Except in so far as it granted such applications, the order required no changes in Florida’s capital structure or in American’s holdings of Florida’s securities. The order did, however, in paragraphs 2 and 4, direct Florida to make certain accounting entries relating to matters not covered by the proposals contained in the applications which had been filed by Florida and American. These two paragraphs of the order are the only ones which American seeks now to have us review in the pending petition. These paragraphs of the order read as follows: “(2) It is further ordered that Florida Power & Light Company shall classify in Account 107 and eliminate from the plant account by charge to earned surplus not later than December 31, 1944, an amount of $1,815,655 consisting of capitalized intra-system profits paid to affiliated companies as construction and engineering fees; * * * “(4) It is further ordered that pending final determination of the amount and disposition to be made of Account 100.5 items presently in the plant account of Florida, Florida shall annually beginning with the calendar year 1944 appropriate out of earned-surplus to a contingency reserve at least $700,000, such act of appropriation to be without prejudice, however, to respondents’ right to contest the validity of any definitive order with respect to such items as may ultimately be issued; * * Paragraph 2 of the order, above quoted, relates to certain engineering and construction fees capitalized by Florida in its plant account and paid to Phoenix Utility Company, a wholly owned construction subsidiary of Bond & Share, in connection with the construction of interconnections and additional generating facilities. Paragraph 4 of the order, above quoted, was based on the fact that American had paid a greater sum for the properties transferred by it to Florida at the latter’s organization than the original cost of those properties to the persons who had first devoted them to public service. The object of the Commission’s order was to require Florida ultimately to value the properties transferred to it by American on the basis of the original cost of those properties to such persons. The same object was sought by the Commission with respect to those properties purchased by Florida itself after organization. It was indicated that the adjustment on account of these two items might exceed $10,000,000. With reference to this matter, the Commission stated in its opinion: “We are cognizant, however, of the fact that the exact amount includible in Account 100.5 has not been finally established and will not be until the original cost study of the company is completed and has been reviewed by us. We believe that in the interests of orderly procedure, the company should be afforded an opportunity to complete its study and to have that study reviewed by us before we take definitive action either with respect to classification in the appropriate account or with respect to a formal program of disposition. However, since all present indications are that there will be approximately $10,500,000 of such acquisition adjustments ultimately to be disposed of, conservative accounting requires that the company should begin now to make provision for such disposition. We will therefore order (subject to further order of the Commission in connection with the company’s original cost study or otherwise) that commencing in 1944, the company annually appropriate out of earned surplus to a contingency reserve, the sum of at least $700,000, such act of appropriation, however, to be without prejudice to its right to contest the validity of such definitive order with respect to the matter as may ultimately be issued.” Section 24 of the Act, under which American seeks to have this court review paragraphs 2 and 4 of the Commission’s order, reads as follows: “Sec. 24. (a) Any person or party aggrieved by an order issued by the Commission under this title may obtain a review of such order in the circuit court of appeals of the United States within any circuit wherein such person resides or has his principal place of business, or in the United States Court of Appeals for the District of Columbia, by filing in such court, within sixty days after the entry of such order, a written petition praying that the order of the Commission be modified or set aside in whole or in part. A copy of such petition shall be forthwith served upon any member of the Commission, or upon any officer thereof designated by the Commission for that purpose, and thereupon the Commission shall certify and file in the court a transcript of the record upon which the order complained of was entered. Upon the filing of such transcript such court shall have exclusive jurisdiction to affirm, modify, or set aside such order, in whole or in part. * * * ” Paragraphs 2 and 4 of the order are directed only to Florida; American is not mentioned therein nor required to do anything or refrain from doing anything. No doubt Florida is a “party aggrieved”, entitled to have the order reviewed in the appropriate circuit court of appeals, in fact, after the Commission filed its motion to dismiss American’s petition at bar, Florida filed in the Circuit Court of Appeals for the Fifth Circuit a petition in substantially identical terms seeking review of paragraphs 2 and 4 of the Commission’s order. The Commission contends, in support of its motion to dismiss, that Florida is the only “party aggrieved” by the order, and that American, whose only interest in the matter is derived through its holding of the common stock of Florida, has no independent standing to seek a review of the order pursuant to § 24(a). On the other hand, American contends: “While some of the grounds of objection to the Orders complained of are available to both Florida and American, American is the party entitled to urge that the appropriations from earned surplus required by the Orders will deprive American of dividends from the money so appropriated. Undoubtedly the Commission will contend that Florida cannot complain that American is being deprived of dividends as a result of the Orders.” The Commission denies that its motion to dismiss is a procedural manoeuvre designed to block the Florida-American interests out of arguments which should be available to them. In its brief the Commission states that it does not contend that “Florida lacks standing to seek judicial review of an order directing the manner in which it shall keep its accounts, and we recognize that among the matters which may properly be considered on such review is the question whether the order improperly interferes with any right of the corporation to pay dividends and of its stockholders to receive them, and with the value of its outstanding securities.” This position counsel for the Commission reaffirmed in a most explicit manner at the oral argument before us. Upon familiar principles of corporation law, whether a corporation shall institute litigation to enforce a corporate right, like other business questions, is ordinarily a matter of internal management left to the discretion of the directors in the absence of instruction by vote of the stockholders. “Courts interfere seldom to control such discretion iutra vires the corporation, except where the directors are guilty of misconduct equivalent to a breach of trust, or where they stand in a dual relation which prevents an unprejudiced exercise of judgment; and, as a rule, only after application to the stockholders, unless it appears that there was no opportunity for such application, that such application would be futile (as where the wrongdoers control the corporation), or that the delay involved would defeat recovery.” United Copper Securities Co. v. Amalgamated Copper Co., 1917, 244 U.S. 261, 263, 264, 37 S.Ct 509, 510, 61 L.Ed. 1119. The mere fact that the refusal of a corporation, through its management, to engage in litigation, may result in a diminution of dividends to stockholders, does not give a stockholder standing to invoke the aid of a court of equity in overriding the judgment of the management. Hawes v. Oakland, 1881, 104 U.S. 450, 462, 26 L.Ed. 827. Consistently with these principles, if the board of directors of Florida had on their own initiative, in good faith and in the exercise of their business judgment, made the accounting changes which paragraphs 2 and 4 of the Commission’s order directed Florida to make, a minority stockholder would not have been heard to complain, even though such change resulted in some temporary curtailment of dividends. Whether to contest the Commission’s order to this effect is equally a matter of internal corporate management committed in the first instance to the discretion of Florida’s board of directors. And, of course, in circumstances like the present, American does not need the aid of a court to compel the assertion of a corporate right, because as controlling stock-, holder in Florida, American can cause Florida to file a petition for review of the Commission’s order. In Pittsburgh & West Virginia Ry. Co. v. United States, 1930, 281 U.S. 479, 50 S.Ct. 378, 74 L.Ed. 980, the Interstate Commerce Commission had authorized the New York Central Railroad and other rail carriers to join in establishing a union station at Cleveland through a jointly owned subsidiary. The Wheeling & Lake Erie Railroad had for some years owned and maintained its independent station at Cleveland on the approach to the union terminal. Wheeling was persuaded to sell its site and become a tenant of the new station at a comparatively low rental, and filed with the Commission an application for authorization to do so. The Pittsburgh & West Virginia Railway, a minority stockholder in Wheeling, intervened and was heard before the Commission in opposition to the plan on various grounds, one of which was that it might imperil Wheeling’s financial condition. The Commission, however, approved the plan, and Pittsburgh brought suit in a three-judge district court under the Urgent Deficiencies Act of October 22, 1913, 38 Stat. 219, 220, 28 U.S.C.A. § 47, to suspend and set aside the Commission’s order. The District Court denied relief on the merits; upon appeal the Supreme Court held that Pittsburgh had no standing to sue and that the bill should have been dismissed without inquiry into the merits. Justice Brandeis, speaking for the court, said, 281 U.S. at page 487, 50 S.Ct. 381, 74 L.Ed. 980: “Finally, the claim that the order threatens the Wheeling’s financial stability, and consequently appellant’s financial interest as a minority stockholder, is not sufficient to show a threat of the legal injury necessary to entitle it to bring a suit to set aside the order. This financial interest does not differ from that of every investor in Wheeling securities or from an investor’s interest in any business transaction or lawsuit of his corporation. Unlike orders entered in cases of reorganization, and in some cases of acquisition of control of one carrier by another, the order under attack does not deal' with the interests of investors. The injury feared is the indirect harm which may result to every stockholder from harm to the corporation. Such stockholder’s interest is clearly insufficient to give the Pittsburgh a standing independently to institute suit to annul this order.” Pittsburgh & West Virginia Ry. Co. v. United States was recently cited with approval in Boston Tow-Boat Co. v. United States, 321 U.S. 632, 64 S.Ct. 776, decided by the Supreme Court April 3, 1944. See also United Copper Securities Co. v. Amalgamated Copper Co., 1917, 244 U.S. 261, 37 S.Ct. 509, 61 L.Ed. 1119; Westmoreland Asbestos Co., Inc., v. Johns-Manville Corp., D.C.S.D.N. Y., 1939, 30 F.Supp. 389, affirmed on opinion below, 2 Cir., 1940, 113 F.2d 114; NY Pa NJ Utilities Co. v. Public Service Commission, D.C.S.D.N.Y., 1938, 23 F. Supp. 313. It is true that the Urgent Deficiencies Act, under which review of the order of the Interstate Commerce Commission was sought in Pittsburgh & West Virginia Ry. Co. v. United States, does not provide, as does § 24 (a) of the Public Utility Holding Company Act, that “any person or party aggrieved” may seek a review of the administrative order, but leaves the moving party’s standing to seek review to be determined upon general principles. But the phrase “any person or party aggrieved” is not one of exact meaning; and we have no reason to think that Congress thereby intended to confer upon a stockholder the independent right to seek a review of the type of administrative order, directed only against the corporation, involved in the case at bar. It may be that so far as concerns the constitutional requirement of “case” or “controversy” Congress might have power to disregard the “corporate veil”, to treat the controversy as one subsisting between the Commission and the stockholders of the corporation which has been ordered by the Commission to make the accounting changes here involved, and to confer upon such stockholders the independent right, in their own names, to seek review of the Commission’s order. But we think it is clear that if Congress had intended any such departure from the ordinary principles of corporation law, it would have expressed such intention in explicit language. In applying to the case at bar the phrase “any person or party aggrieved”, it is immaterial that American was a party to the administrative proceedings before the Commission. Pittsburgh & West Virginia Ry. Co. v. United States, 1930, 281 U.S. 479, 486, 50 S.Ct. 378, 74 L.Ed. 980; Alexander Sprunt & Son, Inc., v. United States, 1930, 281 U.S. 249, 254, 255, 50 S.Ct. 315, 74 L.Ed. 832. Under § 19 of the Public Utility Holding Company Act, 49 Stat. 832, 15 U.S.C.A. § 79s, the Commission has broad discretion in admitting interested persons as parties to the administrative proceedings, but it by no means follows that all persons who properly participate as interested parties in the administrative proceedings are “parties aggrieved” within the meaning of the review provisions in § 24(a). As a matter of fact, in view of the inclusive nature of the issues projected in the proceedings initiated by the Commission in the present case, American was necessarily made a party respondent, because, among other things, one of the issues raised was whether it was necessary to subordinate to publicly held securities of Florida the holdings by American of Florida’s preferred stock and debentures. But so far as concerns paragraphs 2 and 4 of the Commission’s order, which are the only portions of the order now sought to be reviewed, proceedings to that end could have been instituted by the Commission against Florida alone, without joining American as a party respondent. We shall refer briefly to some of the cases relied upon by petitioner. In Northwestern Electric Co. v. Federal Power Commission, 1944, 321 U.S. 119 64 S.Ct. 451, the Commission made an accounting order against Northwestern Electric Company, an operating utility all of whose common shares are owned by American Power & Light Company. Northwestern filed in the proper circuit court of appeals a petition to review the order. American joined in the application for court review. Since the particular circuit court of appeals undoubtedly had jurisdiction to review the order there was no point in challenging American’s standing to join in the petition, and the Commission made no such challenge. Neither in the opinion of the circuit court of appeals nor in that of the Supreme Court was there any discussion of the question whether American had an independent standing to seek review of the accounting order against the corporation of which it was the controlling stockholder. In Federal Communications Commission v. Sanders Bros. Radio Station, 1940, 309 U.S. 470, 642, 60 S.Ct. 693, 84 L.Ed. 869, 1037, one holding a license to operate a broadcasting station, over whose objection the Commission had granted a permit for the erection of a rival station, was held to be a “person aggrieved or whose interests are adversely affected” by the decision of the Commission, within the meaning of § 402(b)(2) of the Communications Act of 1934, 48 Stat. 1064, 1093, 47 U.S.C.A. § 402(b)(2), and hence entitled to appeal from the Commission’s decision to the Court of Appeals of the District of Columbia. The private economic injury which the said licensee suffered as a result of the Commission’s decision was deemed sufficient to give the licensee a standing, as a sort of “private attorney general,” to present questions of public interest and convenience on appeal from the order of the Commission. The court pointed out, 309 U.S. 470, at page 477, 60 S.Ct. 693, 698, 84 L.Ed. 869, that it ascribed this meaning to the flexible phrase “person aggrieved or whose interests are adversely affected” in order to effectuate the purposes of the particular statute and because, otherwise, § 402(b)(2) would be deprived of any substantial effect. No comparable situation is presented in the case at bar. Neither in the Sanders case, supra, nor in Federal Communications Commission v. National Broadcasting Co., Inc., 1943, 319 U.S. 239, 63 S.Ct. 1035, 87 L.Ed. 1374, nor in Associated Industries, Inc., v. Ickes, 2 Cir., 1943, 134 F.2d 694, was the question presented whether a stockholder is a “person or party aggrieved” by an accounting order directed solely against the corporation, an order which the corporation is fully empowered to bring for review before the appropriate circuit court of appeals. In Todd v. Securities and Exchange Commission, 6 Cir., 1943, 137 F.2d 475, the standing of a stockholder to seek review of a dissolution order pursuant to § 11(b)(2) of the Public Utility Holding Company Act was not challenged by the Commission, and the court’s decision makes no allusion to the point. In Okin v. Securities and Exchange Commission, 2 Cir., 1943, 137 F.2d 398, 400, a stockholder sought review of an order of the Commission granting an application by the corporation for authority to sell the securities of a wholly owned subsidiary. The stockholder had appeared before the Commission in opposition to the application, charging fraud, and after being allowed a limited participation in the hearing, he was eventually ordered by the examiner to leave the room, and upon his refusal the examiner closed the hearing. The court stated that the only question before it was “whether, as petitioner so strenuously asserts, he was denied the essentials of a fair hearing.” If the stockholder was entitled to be heard before the Commission on his charges of fraud, and had been denied the essentials of a fair hearing, it may well be that he should be deemed a person aggrieved by the ensuing order of the Commission. - The court after examination of the record of the administrative proceedings concluded “that no error which could possibly affect the result occurred” and affirmed the Commission’s order. Finally, the petitioner relies heavily on our decision in Lawless v. Securities and Exchange Commission, 1 Cir., 1939, 105 F. 2d 574. In that case, as this court understood the Commission’s order, its effect was to cast doubt upon the validity of the new common stock and common stock purchase warrants which would be issued to petitioner in pursuance of a proposed recapitalization. In such a case a minority stockholder whose rights are affected is a person aggrieved by the Commission’s order within the meaning of § 24(a), and has an independent standing to seek judicial review. In so far as the language of the Lawless opinion may intimate that the petitioner was a “person or party1 aggrieved” merely by virtue of the fact that he had been admitted to participation in the proceedings before the Commission, we do not think that it is correct. Respondent’s motion to dismiss the petition for review is granted, and the petition is dismissed for lack of jurisdiction. See Kripke, A Case Study in the Relationship of Law and Accounting: Uniform Accounts 100.5 and 107, 57 Harv. L.Rev. 433 (April, 1944); see also Pacifie Power & Light Co. v. Federal Power Commission, 9 Cir., 1944, 141 F.2d 602. This principle is embodied now in Rule 23(b) of the Federal Rules of Givil Procedure, 28 U.S.C.A. following section 723c. White Rule 23(b) is applicable only to district courts, we see no reason why the accepted principle, which antedated Rule 23(b), should not be applicable to review in the circuit courts of appeals under § 24(a) of the Public Utility Holding Company Act. gee Douglas, J., dissenting, in Federal Communications Commission v. National Broadcasting Co., Inc., 1043, 319 U.S. 239, 265, note 1, 63 S.Ct. 1035, 87 L.Ed. 1374. Question: 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_summary	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment 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". Robert LECHMAN, David Harris and 3-S Board Brokers, Inc., Plaintiffs-Appellants, v. ASHKENAZY ENTERPRISES, INC., Arnold Ashkenazy, Severyn Ashkenazy, Alexis Hrundis, Gary Nielson, Albert Kallis and Mark Sussman, Defendants-Appellees. No. 82-2823. United States Court of Appeals, Seventh Circuit. Sept. 30, 1983. Before PELL and CUDAHY, Circuit Judges, and FLOYD R. GIBSON, Senior Circuit Judge. The Honorable Floyd R. Gibson, Senior Circuit Judge for the Eighth Circuit, is sitting by designation. ORDER On consideration of the petition for rehearing filed in the above-captioned case by appellants, all of the judges on the original panel have voted to deny a rehearing. It is ORDERED, therefore, that the petition for rehearing is DENIED. The appellees have filed a motion for an award of additional attorneys’ fees incurred in defending this appeal. They appear to advance two grounds in support of this motion. The first, the claim that a party awarded attorneys’ fees at trial is entitled to fees incurred in defending that award on appeal, is not convincing. While such may be the law when fees are awarded under the Civil Rights Attorney’s Fees Awards Act, see e.g. Bond v. Stanton, 630 F.2d 1231 (7th Cir.1980), cert. denied sub nom. Blinzinger v. Bond, 454 U.S. 1063, 102 S.Ct. 614, 70 L.Ed.2d 601 (1981), it is not the law when attorneys’ fees have been awarded on some other basis. Rather, in a case such as this the “American” rule applies, and each side must bear its own attorneys’ fees. See McCandless v. Great Atlantic and Pacific Tea Co., Inc., 697 F.2d 198 (7th Cir.1983). The second argument is equally unconvincing. The court below awarded fees because appellees had been subject to wrongful attachment by appellants, and Illinois law treats wrongful attachment as a tort. One element of the damages recoverable in a claim based on wrongful attachment is the attorneys’ fees incurred in setting aside the attachment. Baird v. Liepelt, 62 Ill.App.2d 154, 210 N.E.2d 1 (1965). Similarly, fees incurred in an appeal involving whether the attachment was proper may be recovered. Id. Appellees cite Baird v. Liepeit, supra, as if the case allows an award of fees whenever an appeal involves an award of fees incurred as a result of wrongful attachment. Baird, however, involved an appeal concerning the merits of the attachment, and Illinois law clearly contemplates that fees incurred during litigation over the attachment are a proper element of damages. The appeal before us did not involve whether the attachment had been proper, but whether the district court erred in awarding fees. As with any other tort action, fees incurred in defending the trial court’s award are not considered a part of the damages caused by the tort, although they undoubtedly diminish the recovery. For the foregoing reasons, the petition for an award of attorneys’ fees incurred in this appeal is DENIED. Question: Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_respond1_7_5	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. 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). Bruce R. COUNCILMAN, Appellee, v. Melvin R. LAIRD, Secretary of Defense, et al., Appellants. No. 72-1812. United States Court of Appeals, Tenth Circuit. Argued and Submitted May 25, 1973. Decided July 19, 1973. Anthony J. Steinmeyer, Atty., Dept, of Justice (Harlington Wood, Jr., Asst. Atty. Gen., William R. Burkett, U. S. Atty., Walter H. Fleischer and Michael H. Stein, Attys., Dept, of Justice, with him on the brief), for appellants. Nicholas D. Garrett and Orin Christopher Meyers, Lawton, Okl., for appellee. Before SETH, HOLLOWAY and McWILLIAMS, Circuit Judges. SETH, Circuit Judge. Appellants, defendants below, appeal from an order of the United States District Court for the Western District of Oklahoma, permanently enjoining the defendants from continuing with court-martial proceedings against appellee. As a basis of its order, the trial court found that the offenses with which appellee was charged by the military were not “service connected” within the meaning of that term as developed in the decisions of the Supreme Court of the United States in O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L. Ed.2d 291, and Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102. Appellee Councilman, a Captain in the United States Army stationed at Fort Sill, Oklahoma, was charged under the Uniform Code of Military Justice with the wrongful sale and transfer of marijuana to an enlisted man, Army Specialist Four Glenn D. Skaggs. He was also charged with the wrongful possession of marijuana which took place on another occasion. Although Captain Councilman was charged under Article 134, the general article, the constitutionality of which has been questioned, see Avrech v. Secretary of the Navy, 477 F.2d 1237 (D.C.Cir. 1973); Levy v. Parker, 478 F.2d 772 (3d Cir. 1973), that issue is not presented to us, and it is unnecessary to decide it in the context of this case. Councilman sought to have the court-martial proceedings dismissed for lack of jurisdiction, but his motion was denied by the presiding judge of the court-martial. This suit was then commenced. The facts, which are not in dispute, are as follows: The Army authorities were advised by a confidential informant that Councilman was using marijuana in his off-post apartment. Thereafter, at a party to which he was invited for that purpose, Captain Councilman was introduced to an undercover agent of the Army’s Criminal Investigation Division, Specialist Four Glenn D. Skaggs. Skaggs was using the name Danny Drees, and was introduced to Councilman as an Army clerk-typist, also stationed at Fort Sill. Thereafter it is alleged that Councilman on one occasion transferred, and on another sold, small amounts of marijuana to Skaggs, alias Drees. Based on Skaggs’ investigation, Councilman was apprehended by civilian authorities, and a search of his apartment turned up a small quantity of marijuana. Skaggs from" time to time also acted on behalf of the civilian authorities. Councilman was subsequently turned over to military authorities, and the court-martial proceedings here in issue were commenced. During all times relevant to the issues in this case, it is stipulated that Councilman was off-post, off-duty, and out of uniform, and that Skaggs was off-post and out of uniform, and although ostensibly off-duty, was in fact on duty in his capacity as an undercover agent. In Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102, referred to by the trial court, the Supreme Court set forth twelve tests which it considered to be implicit from the holding in O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291. These standards are to be used in determining if offenses are “service connected.” A review of the facts in the present case in the light of Relford reveals that only one of the standards or factors need be here considered. This one concerns whether the “victim” is engaged in a duty relating to the military. As to this element, we do not consider that Skaggs, alias Drees, was a “victim” in the ordinary sense. Also if the time of the offense is considered, Skaggs was not then engaged outwardly in the performance of any duty relating to the military. The opinion in Relford does not indicate that the Supreme Court had in mind this type of situation when it referred to a person performing military duties or to a “victim.” The Relford Court also added nine other factors that should be taken into consideration in arriving at a determination of whether a crime is sufficiently “service connected” so as to confer jurisdiction on a military court. These factors are enumerated at 401 U.S. 367, 369, 91 S.Ct. 649. As to these factors, the Government argues that because the alleged sale and transfer of marijuana was between two servicemen, and particularly here between an officer and an enlisted man, they have shown sufficient “service connection” to enable the military courts to assume jurisdiction over appellee. Of the nine factors, only one might be present here. This factor relates to the rank of the persons involved in the incident or the fact that both were servicemen. It has been held that the off-base possession of marijuana by a serviceman is not “service connected.” Moylan v. Laird, 305 F.Supp. 551 (D.R.I.). Neither is off-base use of marijuana. Cole v. Laird, 468 F.2d 829 (5th Cir.). Nor is the off-base sale by a serviceman to a civilian. United States v. Morley, 20 USCMA 179. It has also been held that there is no “service connection” when a serviceman commits an off-duty, off-base, out of uniform offense against the dependents of another serviceman, United States v. Henderson, 18 USCMA 601, although the Court of Military Appeals has held that any offense by one serviceman against another, even if committed off-base, off-duty, and while the offender is in civilian attire and unaware that his victim is the person or property of another serviceman, is sufficiently “service connected” to confer court-martial jurisdiction. United States v. Camacho, 19 USCMA 11. We cannot agree that this sale or transfer of marijuana, as we previously said, involved any “victim,” and it appears that “service connection” based on this theory is so remote as to be not at all within the meaning of that term as used by the Supreme Court in O’Callahan and Relford. See United States v. Cook, 19 USCMA 13; Silvero v. Chief of Naval Air Basic Training, 428 F.2d 1009 (5th Cir.). The requirement of indictment by a grand jury and the right to a jury trial are not forfeited by a person simply because he chooses, or is in some cases required, to serve his country as a member of the Armed Forces. These rights should be preserved to a serviceman insofar as possible without interfering with military discipline. In the instant case, there is no military connection with the crime other than the fact that Councilman and Skaggs were members of the Armed Forces. The commission of the crimes that appellee stands accused of affects military discipline no more than commission of any crime by any serviceman. The trial court was correct in its determination that the military was without jurisdiction to proceed with the court-martial of Captain Councilman and in issuing the injunction. Affirmed. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:
songer_district	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". Erna YAFFE and James Hornsby, Plaintiffs-Appellants, v. James E. POWERS, as Chief of Police of the Fall River Police Department and Ronald Andrade, as a Police Officer in the Fall River Police Department, Defendants-Appellees. No. 71-1269. United States Court of Appeals, First Circuit. Heard Dec. 8, 1971. Decided Jan. 26, 1972. Matthew H. Feinberg, Boston, Mass., with whom John Reinstein, Cambridge, Mass., Ronald F. Kehoe, C. Michael Malm, and Hausserman, Davison & Shattuck, Boston, Mass., were on brief, for appellants. James P. McGuire, Fall River, Mass., with whom McGuire & Collias, Fall River, Mass., was on brief, for appellees. Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges. COFFIN, Circuit Judge. On May 5, 1970, some two hundred citizens attended a memorial service, commencing at the campus of Bristol Community College and terminating at the post office in Fall River, Massachusetts, to protest United States military action in Cambodia and Ohio National Guard action at Kent State University. Prior to this gathering, Fall River authorities had been concerned over the activities of a “Regional Action Group” which they feared to be organizing a violent demonstration along with activists who had taken part in recent riots in other Massachusetts cities. In order to keep track of “the extent of infiltration and participation by known violent activists of the Regional Action Group into the conduct of the memorial services”, the Fall River police department sent a police photographer, not in uniform, to take pictures of the activities at the campus and post office. Plaintiff Yaffe, invited by the sponsors to speak as a substitute for her husband who was then running for Congress, and plaintiff Hornsby, a clergyman and member of the Fall River school committee, were among those present who were included in one or more photographs taken. One or more photographs of Hornsby was purportedly displayed in a public area of the Fall River police station for several weeks. A police photograph of a speaker, an alleged member of the Regional Action Group, at the memorial service, and three onlookers, including plaintiff Yaffe, was allegedly given to the Providence Journal and published in connection with a story on “Fall River Radicals”, based on defendant Andrade’s testimony before the Senate Subcommittee on Internal Security. The testimony related to surveillance of the Regional Action Group prior to a planned march on May 1, 1970 — which was called off at the last minute. The plaintiffs brought suit against the Fall River police chief and Sergeant Andrade, alleging that surreptitious police photography, surveillance, the keeping of notes, and the maintaining and circulating of photographs and dossiers on participants at meetings such as that held on May 5, 1970, harass the plaintiffs and deter others from participating in public meetings held to express unconventional views. Plaintiffs seek a declaratory judgment that such surveillance, photographing, maintaining files, and circulating the contents thereof have violated their constitutional rights, and an injunction restraining defendants from taking such actions except “where such actions are necessary for the apprehension of persons who will be charged with specifically defined crimes.” The present appeal follows plaintiffs’ unsuccessful attempt before the district court to represent as a class “all other individuals who wish to ... engage, in the City of Fall River, in peaceful political discussion without surveillance and photographing by defendants . . . without becoming the subject of dossiers, reports and files maintained by the defendants, and without any publication by defendants to other persons of the contents of any such dossiers . . . .” Plaintiffs, so conceiving their class, immediately sought to initiate extremely broad discovery, encompassing not only any police department file item relating to them as individuals and all notes relating to the May 5, 1970, meeting, but all files, memoranda, notes, etc. “relating in any manner to political protests, demonstrations, rallies or meetings and other so-called ‘subversive activities’ carried on in the Fall River area during 1969 and 1970 . . . excepting therefrom matter relating directly to the prosecution of any person who has been charged with a crime [,] which charge has resulted in a criminal conviction or is still pending.” Both the determination of the class and the scope of the discovery order were the subject of a memorandum and order, prepared by the magistrate and approved by the district-court. The court found that the requirements of Rule 23, F.R.Civ.P., had not been fulfilled and ordered discovery accordingly limited to matters directly relating to the named plaintiffs. We have asked for and received briefing on the issue of the appealability of a district court’s refusal to recognize a class. Plaintiffs concede that the order was not “final” within the meaning of 28 U.S.C. § 1291 and that there was no certification by the court under 28 U.S.C. § 1292(b), but assert that the district court’s action is nonetheless appealable under 28 U.S.C. § 1292(a) (1) as an order “granting, continuing, modifying, refusing or dissolving injunctions . .” Although the district court did not specifically act with reference to the injunctive relief claimed in the complaint, the substantial effect of its order denying leave to proceed as a class is • to narrow considerably the scope of any possible injunctive relief in the event plaintiffs ultimately prevail on the merits. Even if defendants are prohibited from recording, collecting and disseminating information on the named plaintiffs, as well as on others who may be persuaded to intervene, the assumed chilling effect of the continued surveillance of non-parties would reduce the class of persons willing to engage in public exchange of views on controversial subjects to those named in the complaint. Had the district court declined to determine a class provisionally, reserving final decision until more facts were presented, see Rule 23(c) (1), the case would be in a different posture insofar as appealability is concerned. As it is, we hold the district court’s order appealable as a denial of the broad injunctive relief sought and proceed to a review of the order on its merits. Brunson v. Board of Trustees, 311 F.2d 107 (4th Cir. 1962), cert, denied, 373 U. S. 933, 83 S.Ct. 1538, 10 L.Ed.2d 690 (1963). Cf. Spangler v. United States, 415 F.2d 1242, 1246-1247 (9th Cir. 1969); Stewart-Warner Corp. v. Westinghouse Electric Corp., 325 F.2d 822, 825-826 (2d Cir.), cert. denied, 376 U.S. 944, 84 S.Ct. 800, 11 L.Ed.2d 767 (1964). See also Note, Interlocutory Appeal from Orders Striking Class Action Allegations, 70 Col.L.Rev. 1292 (1970). In passing on plaintiffs’’ application for certification of a class, the district .court assumed that “all of the requires ments of Rule 23 of the Federal Rules of Civil Procedure must be met before an action can be classified as a class action.” From this erroneous premise, the court then proceeded to identify three requirements which it felt had not been sufficiently satisfied. First, the court stated that the class which plaintiffs hoped to represent had not been adequately defined. In reaching this conclusion the court compared the class allegation in the complaint, where the relevant class was defined as those “who wish ... to engage, in the City of Fall River” in various forms of public protest, with that in plaintiffs’ supporting memorandum of law, where the putative class we defined as those persons “in the Fall River community who have been similarly subject to police surveillance . . . .” This variance, according to the court, left the class inadequately defined since “it is not uncommon” for “the majority of the people attending rallies, indeed if not all” to come from outside the host community. Second, the court felt that as to such an amorphous group of persons there was no assurance of predominating questions of law or fact. The court took judicial notice that “professional demon-trators”, variously described as “persons who engage in the business of promoting demonstrations or who attend demonstrations for the sake of creating disturbances”, often attend mass rallies and as to those persons there would be different questions of fact and different defenses available to the police. Finally, and as a consequence of the two difficulties noted above, the court doubted that a class action was superior to other available methods for the fair and efficient adjudication of the controversy. It is quite understandable that courts, when called on as here to order wide-open discovery in the name of recently refurbished class actions in the relatively new civil rights field, might well take a jaundiced look at the nature and scope of injuries asserted. Yet for a court to refuse to certify a class on the basis of speculation as to the merits of the cause or because of vaguely-perceived management problems is counter to the policy which originally led to the rule, and more especially, to its thoughtful revision, and also to discount too much the power of the court to deal with a class suit flexibly, in response to difficulties as they arise. See Committee’s Criticism and Notes to Revised Rule 23, 3B Moore’s Federal Practice f[ 23.01 [8] — [13] (2d ed. 1969). Had the discretion lodged in the trial court by Rule 23(c) and (d) as to determination of classes and subclasses, conditional orders, imposing conditions, prescribing measures to prevent undue complication, etc., been properly exercised, we would have given its decision weighty deference. Cypress v. Newport News General and Nonseetarian Hosp. Ass’n, 375 F.2d 648, 653 (4th Cir. 1967). See also 3B Moore’s Federal Practice 23.50, at 1105 (2d ed. 1969). But because of several fundamental legal misconceptions which significantly affected the court’s receptiveness to plaintiff’s application, much of the available discretion was not exercised and considerations both of judicial efficiency and of ultimate fairness to the parties therefore require us to engage in a rather full review of the proceedings below. The most basic error committed by the district court was in applying the criteria set out in subdivision (b) of Rule 23 cumulatively rather than alternatively. In holding that a class should not be certified because its members had not been sufficiently identified, for example, the court applied standards applicable to a subdivision (b) (3) class rather than to a subdivision (b) (2) class. Although notice to and therefore precise definition of the members of the suggested class are important to certification of a subdivision (b) (3) class, notice to the members of a (b) (2) class is not required and the actual membership of the class need not therefore be precisely delimited. In fact, the conduct complained of is the benchmark for determining whether a subdivision (b) (2) class exists, making it uniquely suited to civil rights actions in which the members of the class are often “incapable of specific enumeration”. Committee’s Notes to Revised Rule 23, 3B Moore’s Federal Practice j[ 23.01 [10-2] (2d ed. 1969). Similarly, the existence of “predominating” questions and the availability of other methods of resolution which might be superior to a class action are not criteria of a subdivision (b) (2) class, but again of a (b) (3) class, which was not suggested. It may be, as the court indicated, that several questions of law or of pertinent fact are involved here, or as the court did not indicate, that there are no questions of law or of fact common to the class, but only the latter would be grounds for denying class status and even it may — require__pxeli.mi-nar^ — discovery. To pronounce finally, prior to allowing any discovery, the non-existence of a class or set of subclasses, when their existence may depend on information wholly within defendants’ ken, seems precipitate and contrary to the pragmatic spirit of Rule 23. ******Evidence which might be forthcoming might well shed light on a final decision on this issue. Tatum v. Laird, 444 F.2d 947, 957 n. 21 (D.C. Cir. 1971). The danger of passing on the merits of a claim at the stage when only the existence of a class is at issue, as well as the confusion resulting from the court’s speculation as to the status of the members of the putative class rather than its focusing on the effect of the conduct complained of, is made real for us by the court’s equating as “professional demonstrators” “those who engage in the business of promoting demonstrations” and those “who attend demonstrations for the sake of creating disturbances”. Whatever justification for advance surveillance could rightly apply to the latter, see Anderson v. Sills, 56 N.J. 210, 265 A.2d 678 (1970), might not be at all appropriate for the former, which would include Quakers planning gentle anti-war vigils. We have said enough to reveal our conviction that the court’s refusal to recognize a class action was based in significant part upon its failure to recognize both the obligations and opportunities of Rule 23. This, however, is not to say that we have enough grasp of the interests of the putative class as they may be defined by the actions of the defendants to declare and define the class ourselves and, as plaintiffs pray, order discovery proceedings to commence in accordance with such determination. Such a declaration and the attendant consequences should not ordinarily stem from a reviewing court. The genius of Rule 23 is that the trial judge is invested with both obligations and a wide spectrum of means to meet those obligations. See, e. g., Baxter v. Savannah Sugar Refining Corporation, 46 F.R.D. 56, 60 (S.D.Ga.1969). An appellate court is not well situated to umpire an entire ball game. We therefore conclude that the issue of the existence of a class must be reopened by the district court. A decision to declare the existence or non-existence of a class (or subclass) need not necessarily be made at this stage of the proceedings. But progress toward re-, solving the class definition issue would seem to require some discovery, under such terms as the court may see fit to impose, of the extent of, say, the practice of the police photographing and making such photographs available to others. Since a rule 23(b) (2) class is defined by the actions which a defendant has taken toward the class, and which should arguably be enjoined, it may appear sensible to ascertain the nature of the actions taken with more precision than reference to pleadings and affidavits permits. While what we have) said implies somewhat more initial discovery than that limited to information concerning the two plaintiffs, we do not imply that, prior at least to a definitive determination of a class, the entire police files over a substantial period be produced for adversary examination. Not only may there be sensible limits as to time and type of occasion, but as to materials said to be irrelevant or to involve potential harm to others the court may undertake an in camera inspection. Cf. Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); Palermo v. United States, 360 U.S. 343, 354, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959); Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Prom our entire discussion it should also be apparent that, if a class action is to be managed with sensitivity both to plaintiffs’ reasonable demands and to defendants’ responsibilities, the district judge must keep close to the heart of the litigation. Delegations of discrete chores to a magistrate must not be permitted to cause the judge to lose the feel of the pulse of the proceedings. Our purpose is not to chart the future of this litigation, but to indicate that there are certain standards governing the recognition of a class; that the burden of administering this kind of a class suit should not be pessimistically estimated; and that in the wise use of the power to determine when, how, and for how long, and subject to what conditions in the interest of minimizing eviden-tiary complexities a class should be recognized the special responsibility and opportunity of a federal trial court. At this juncture, unless a claim is patently frivolous, that court should ask itself: assuming there are important rights at stake, what is the most sensible approach to the class determination issue which can enable the litigation to go forward with maximum effectiveness from the viewpoint of judicial administration ? Reversed and remanded for further proceedings consistent with this opinion. . That a viable class is not beyond conjecture is illustrated by a somewhat analogous situation in Broughton v. Brewer, 298 F.Supp. 260, 267 (N.D.Ala.1969) [“persons whose poverty or lack of apparent means of livelihood renders them susceptible to arrest under the present Alabama vagrancy laws, and against whom the vagrancy laws have been or may be applied to repress constitutionally protected rights of free expression”], and in Hairston v. Hutzler, 334 F.Supp. 251 (W.D.Pa.1971) [all black persons living in or visiting Pittsburgh who have been or may be injured by a pattern of police harassment and intimidation]. We add that our conjecture does not necessarily imply our endorsement, particularly when such would be premature. . Wo are mindful of Judge Weinstein’s approach in Dolgow v. Anderson, 43 F. R.D. 472, 501-503 (E.D.N.Y.1968), rev’d on other grounds, 438 F.2d 825 (2d Cir. 1971), in requiring, prior to determining a class, tliat there be a substantial possibility of prevailing on the merits, but are dissuaded from adding this requirement, particularly in civil rights cases, by the observations of Judge Tyler in Fogel v. Wolfgang, 47 F.R.D. 213, 215 n. 4 (S.D.N.Y.1969). See also Katz v. Carte Blanche Corporation, 52 F.R.D. 510, 513-514 (W.D.Pa.1971). Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_origin	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. UNITED STATES of America and Mortimer Todel, as Receiver of the funds, assets and property of Roosevelt Capital Corporation, Plaintiffs-Appellees, v. FRANKLIN NATIONAL BANK, Defendant-Appellant. Nos. 241, 487, Dockets 74-1062, 74-1816. United States Court of Appeals, Second Circuit. Argued Nov. 12, 1974. Decided Feb. 24, 1975. Julius Berman, New York City (Kaye, Scholer, Fierman, Hays & Handler, Sidney Kwestel, New York City, on the brief), for defendant-appellant. Henry A. Brachtl, Asst. U. S. Atty. (David G. Trager, U. S. Atty., E. D. New York, on the brief), for plaintiffs-appellees. Before FRIENDLY, FEINBERG and TIMBERS, Circuit Judges. FEINBERG, Circuit Judge: Franklin National Bank (Franklin) appeals from a decision of the United States District Court for the Eastern District of New York, Leonard P. Moore, Senior Circuit Judge, awarding the United States and Mortimer Todel, the Receiver of Roosevelt Capital Corporation (Roosevelt), summary judgment for approximately $160,000 plus interest. On the present record, as will be seen below, there was no proper basis for jurisdiction in the Eastern District, although appellees Todel and the United States have suggested that this defect can be remedied in the district court. Therefore, we remand the case to the district court for further proceedings consistent with this opinion. I Roosevelt went into receivership because an unsavory group took it over and proceeded to dissipate its assets. In May 1964, the first step in the process began. The looters met with the then owners of Roosevelt in a meeting room at a Franklin branch office, which the Bank had offered as an accommodation to Roosevelt, a Franklin depositor. During the course of the meeting, arranged to effect the sale of the corporation, one of the buyers asked a Franklin official if he would draw two checks totalling $160,000 on the Roosevelt account, payable to the attorney and representative of the then owners of the stock of Roosevelt, so that the sale could be completed. Assuming that everything was proper, Franklin provided the checks and the sale was completed. The looters had managed to buy the corporation with its own money. The interest of the United States stems from the fact that Roosevelt was a “small business investment company” under 15 U.S.C. § 681 et seq., indebted to the United States for approximately $150,000. When it became clear that Roosevelt had breached the conditions of its loan, the United States brought suit against Roosevelt in the United States District Court for the Southern District of New York to recover on its loan, and also asked that a receiver for Roosevelt be appointed pendente lite under 15 U.S.C. § 687c(b). Mortimer Todel was so appointed in March 1965, and given broad powers to collect and preserve the assets of Roosevelt. In August 1966, the United States recovered a default judgment in the action against Roosevelt. Since the dispersion of assets was thorough, the judgment remains unsatisfied. In his effort to collect assets of Roosevelt, the Receiver brought this action against Franklin in May 1967 to recover the money paid out by Franklin to the former owners of Roosevelt at the looters’ behest. The United States joined as co-plaintiff. The suit was filed in the Eastern District of New York and alleged as jurisdictional grounds 28 U.S.C. § 1345 and 15 U.S.C. § 687c for plaintiff United States and 28 U.S.C. § 1331 and the federal receivership appointment for plaintiff Todel. The complaint prayed alternatively for $160,000 for Todel as Receiver of the assets of Roosevelt or for $150,000 for the United States and $10,-000 for Todel. After pre-trial discovery, including the deposition of the bank officer who approved drawing the checks, plaintiffs moved for summary judgment. Judge Moore granted the motion, and it is from this decision that Franklin appeals. II The parties did not raise the issue of jurisdiction in the district court, or in this appeal. Franklin did question the presence of the United States as a co-plaintiff since the Receiver had already been appointed, but Judge Moore found that problem unnecessary to decide because the Receiver was a party to the suit and “his power to bring this action has not been challenged. . . . ” It was not until oral argument before us, when Judge Friendly raised the question in open court, that the parties focused on the jurisdictional issue. They also furnished us with post-argument briefs on the subject. Based on these submissions and our own research, we have come to the conclusion that on this record there was no jurisdiction over this action in the Eastern District of New York. If the United States were a proper party plaintiff, then there would be no question that jurisdiction would' lie. 28 U.S.C. § 1345. But we believe that the United States is not properly in this action. While we have found no cases raising this issue in which a receiver had been appointed under 15 U.S.C. § 687c(b), there are sufficiently analogous situations from which we may draw. For example, in a suit by minority stockholders against a corporation’s officers to recover money fraudulently converted, the Supreme Court stated: If the corporation becomes insolvent, and a receiver of all its estate and effects is appointed by a court of competent jurisdiction, the right to enforce this and all other rights of property of the corporation vests in the receiver and he is the proper party to bring suit, and, if he does not himself sue, should properly be made a defendant to any suit by stockholders in the right of the corporation. Porter v. Sabin, 149 U.S. 473, 478, 13 S.Ct. 1008, 1010, 38 L.Ed. 815 (1893). See also Schmidt v. Esquire, Inc., 210 F.2d 908, 912 — 13 (7th Cir.), cert. denied, 348 U.S. 819, 75 S.Ct. 31, 99 L.Ed. 646 (1954); Coyle v. Skirvin, 124 F.2d 934, 938 (10th Cir.), cert. denied, 316 U.S. 673, 62 S.Ct. 1044, 86 L.Ed. 1748 (1942); Klein v. Peter, 284 F. 797, 799 (8th Cir. 1922); 3 R. Clark, The Law and Practice of Receivers § 786.1 (3d ed. 1959) (hereafter Clark). But see Hanna v. Brictson Mfg. Co., 62 F.2d 139, 143 (8th Cir. 1932). A similar rule prevails in bankruptcy proceedings. 2A Collier, Bankruptcy H 47.05 at 1745 (14th ed. 1968). The original purpose of the receivership here was to collect assets to pay creditors, including the United States. Even the complaint in this action against Franklin impliedly recognizes this in its prayer for relief which calls for, at a minimum, a separate $10,000 recovery for Todel. To collect the assets, Todel was directed to take possession, control and custody of ' all funds, assets, and property of Roosevelt Capital Corporation, wherever located, including but not limited to claims and choses in action, and . . . take all such action as may be deemed necessary or advisable to collect, preserve and protect such assets and to enforce and recover upon any such claims and choses in action by the institution of appropriate legal proceedings or otherwise. Thus, to hold that the creditor United States could still prosecute Roosevelt’s action against Franklin would be inconsistent with the terms of Todel’s original appointment in March 1965. If we allowed the United States as a creditor of the corporation to join as a co-plaintiff then there would be no reason to refuse other creditors in other actions the right to join receivers’ suits until the resulting confusion brought chaos to the administration of receiverships. Cf. In re American Fidelity Corp., 28 F.Supp. 462, 471-72 (S.D.Cal.1939), and the cases cited therein. It is true that the default judgment obtained in August 1966 by the United States against Roosevelt directed the Receiver to continue his efforts to recover assets “for the purpose of satisfying the judgment entered herewith.” From this, the United States argues that Todel was merely a “receiver-in-aid-of-judgment,” so that the cases cited above do not apply. We need not consider whether this argument would be persuasive if Todel’s powers were so limited. They were not; the default judgment relied upon by the United States also continued “in full force and effect” the original order appointing the Receiver with the "broad powers specified therein. Ill Since the United States is not properly a party, any jurisdictional support for bringing the action must be furnished by the Receiver alone. The complaint alleged that such jurisdiction was based on Todel’s status as a receiver appointed by the federal courts and on 28 U.S.C. § 1331, the federal question statute. We will first discuss the federal receivership appointment as a basis for jurisdiction. Prior to the amendment of Fed.R. Civ.P. 66 in 1946 (carried forward as an amendment to 28 U.S.C. § 754 in 1948), a receiver appointed in one federal district could not even bring suit in another district without undergoing the bothersome procedure of preliminary ancillary appointment. See 7 J. Moore, Federal Practice H66.07[l] at 1983-34 (2d ed. 1948) (hereafter Moore). But 28 U.S.C. § 754 now provides that a federal receiver “shall have capacity to sue in any district without ancillary appointment ..” The comments of the Advisory Committee on Rules for Civil Procedure on the then new Rule 66 make clear that giving the receiver automatic capacity to sue was only intended to streamline federal practice, and do not mention any change in the law with respect to jurisdiction. U.S.Code Cong.Serv., 79th Cong., 2d Sess., 1946 at 2365. Thus, the earlier learning with respect to jurisdiction over actions brought by receivers is still relevant. Whether a receiver appointed in one federal district need allege an independent jurisdictional basis to maintain a suit in another federal district remains a question that has not been decided authoritatively. Had Todel been able to maintain this action in the Southern District where he had been appointed receiver, however, no independent jurisdictional ground would have been needed for such action or suit is regarded as ancillary so far as the jurisdiction . is concerned; and we have repeatedly held that jurisdiction of these subordinate actions or suits is to be attributed to the jurisdiction on which the main suit rested . Pope v. Louisville, N. A. & C. Ry., 173 U.S. 573, 577, 19 S.Ct. 500, 501, 43 L.Ed. 814 (1899). See also Esbitt v. Dutch-American Mercantile Corp., 335 F.2d 141, 142-43 (2d Cir. 1964); Roof v. Conway, 133 F.2d 819, 823 (6th Cir. 1943); 7 Moore, If 66.07[3] at 1938. This rule is well settled, and the reasons for it are clear. The ancillary suit is cognizable in the court of the main suit regardless of the citizenship of the parties or the amount in controversy because the res over which the receiver took control is already before the court. Murphy v. John Hofman Co., 211 U.S. 562, 569, 29 S.Ct. 154, 53 L.Ed. 327 (1909); White v. Ewing, 159 U.S. 36, 38-39, 15 S.Ct. 1018, 40 L.Ed. 67 (1895). Thus, since the receivership was already before the Southern District, there would have been jurisdiction in that court. But this reasoning does not apply to this suit brought in the Eastern District. The treatise writers seem to agree. Discussing this analysis, Professor Moore states “Whether these theories of ancillary jurisdiction will support an action by or against the receiver in a federal court other than the receivership court is doubtful.” 7 Moore 166.07 [3] at 1940. Similarly, Professors Wright and Miller state that “a federal receiver appointed under Rule 66 may sue in any district court without any need for the appointment of an ancillary receiver, provided, of course, that the court has subject matter jurisdiction,” and that “It is uncertain whether ancillary jurisdiction only exists in the appointing court, although this probably is the case.” 12 C. Wright and A. Miller, Federal Practice and Procedure § 2984 at 31, § 2985 at 45 (1973) (footnotes omitted). To the same effect, see 1 Clark § 320(h). What case analysis we have found also supports this result. The Supreme Court has not spoken directly on the issue but has hinted that an independent jurisdictional basis is necessary. In Gableman v. Peoria, D. & E. Ry., 179 U.S. 335, 21 S.Ct. 171, 45 L.Ed. 220 (1900), a receiver appointed in the Southern District of Illinois tried to remove a suit brought against him in the Indiana state courts to the Circuit Court for the District of Indiana. The Supreme Court denied removal, holding that the case was not one that arose under the laws or Constitution of the United States merely because of the presence of a federally appointed receiver. In Raphael v. Trask, 194 U.S. 272, 24 S.Ct. 647, 48 L.Ed. 973 (1904), the question presented was whether an action could be maintained in the Southern District of New York without diversity on the theory that it was ancillary to a pending suit in the Utah Circuit Court. The Court said that: [W]e are unable to find any precedent in the reported cases or text books which will maintain this bill in that aspect. Ancillary bills are ordinarily maintained in the same court as the original bill is filed, with a view to protecting the rights adjudicated by the court in reference to the subject-matter of the litigation, and in aid of the jurisdiction of the court, with a purpose of carrying out its decree and rendering effectual rights to be secured or already adjudicated. 194 U.S. at 278, 24 S.Ct. at 649. In Mitchell v. Maurer, 293 U.S. 237, 55 S.Ct. 162, 79 L.Ed. 338 (1934), the Court held that where the primary receivership was in a state court there must be independent jurisdictional grounds for an action for appointment of an ancillary federal receiver. It also posed the question whether the same rule applied when the primary receivership was in the federal court. While the Court did not answer, it noted in a footnote that Raphael v. Trask “intimated that the jurisdiction of a federal court cannot be based upon an original suit in another federal court,” 293 U.S. at 243 n. 3, 55 S.Ct. at 165, and that the lower courts were divided on the question. Since Mitchell, the lower courts are less divided. The most recent case we have found that directly treats the issue is Kelley v. Queeney, 41 F.Supp. 1015 (W.D.N.Y.1941). Plaintiffs in that case, who were trustees appointed in the Eastern District of Pennsylvania, sued in New York to remove defendants as voting trustees of the corporation. In the face of defendants’ motion to dismiss for lack of diversity, plaintiffs asserted that the district court in New York had “jurisdiction over this action as ancillary” to the district court in Pennsylvania, and thus there need not be diversity of citizenship. The district judge disagreed: Without showing diversity of citizenship, ancillary action can be brought only in the court in which the main action was brought wherein the plaintiffs were appointed trustees, and this was the Eastern District of Pennsylvania. In Sullivan v. Swain, C.C., 96 F. 259, it was said: “Where a receiver * * * brings an action in the court which appointed him, such court has jurisdiction of the action * * ; but in such a case the jurisdiction is upheld on the ground that the action is but auxiliary to * * the original suit * * *. This ground of jurisdiction, however, manifestly does not exist where the receiver sues in a jurisdiction other than that of his appointment.” 41 F.Supp. at 1018. While this court has not decided the point, in United States ex rel. Sutton v. Mulcahy, 169 F.2d 94 (2d Cir. 1948), cert. denied, 337 U.S. 956, 69 S.Ct. 1526, 93 L.Ed. 1755 (1949), a habeas action attacking a contempt order on the ground that the charging court was without jurisdiction, we strongly indicated that an independent jurisdictional ground would be necessary. The lower court, in Menashe v. Sutton, 71 F.Supp. 103, 105 (S.D.N.Y.1947), an action ancillary to a Hawaii receivership, had held that the presence of a federally appointed receiver was sufficient grounds for jurisdiction, and later held Sutton in civil contempt. In the habeas action, we held that jurisdiction, once litigated, was ordinarily immune from collateral attack and affirmed the denial of the writ. 169 F.2d at 96. In two separate opinions, however, Judge Clark, concurring, and Judge Frank, dissenting, both stated that they believed the district court had been incorrect in allowing the suit without an independent basis for jurisdiction. 169 F.2d at 96, 97 n.l. Apparently, Judge Rif kind agreed, for when the case was thereafter assigned to him for defendants’ motion to dismiss for lack of jurisdiction, he allowed the complaint to be corrected nunc pro tunc to show diversity. Menashe v. Sutton, 90 F.Supp. 531, 533 (S.D.N.Y.1950). Even if the Eastern District court did not have general ancillary jurisdiction over the claim of this federally appointed Receiver, the United States argues that this case “is so imbued with the interest of the Government” that it arises under the laws of the United States and therefore jurisdiction is available under 28 U.S.C. § 1331. We do not agree. As we noted above, Gableman v. Peoria, D. & E. Ry., supra, makes clear that the presence of a federally appointed receiver does not make the case one arising under the laws of the United States. See also 7 Moore If 66.07[3] at 1940 n.9, H66.07[4] at 1942. Nor does Todel’s claim against Franklin for an “improper and unlawful” payment from Roosevelt’s account raise any issues of federal law. The statute under which Todel was appointed, see note 5 supra, does not seem to expand his rights beyond those of other equity receivers. 15 U.S.C. § 687c(a) gives the Small Business Administration authority to apply to the district court for an injunction or other relief for violation of the provisions of the small business investment program and it states that “such courts shall have jurisdiction of such actions . . ..” Subsection (b), on the other hand, only permits the court “as a court of equity” in such proceedings to take jurisdiction of the small business investment company and its assets and to “appoint a trustee or receiver to hold or administer under the direction of the court the assets so possessed.” The section says nothing about the power of the receiver to invoke the jurisdiction of the federal courts in general. The legislative history of subsection (b), added in 1961, does not indicate the contrary. See 2 U.S. Code Cong. & Admin.News, 87th Cong., 1st Sess. 1961 at p. 3064 (S.Rep. No. 801). The drafters noted that subsection (a) continued “the existing authority of the Administration to apply to Federal district courts for injunctions . . ..” They said that the new subsection (b) provided “specific authority (not contained in the present act) for the court in such a proceeding to appoint a trustee or receiver to take control of the small business investment company where the court deems it necessary.” There was not a word about the jurisdiction of other federal courts to entertain receivers’ suits. Thus, we hold that Todel's second ground for jurisdiction, 28 U.S.C. § 1331, must also fail. Apparently recognizing that we might find no jurisdictional basis for a suit in the Eastern District, appellees have urged that we not order outright dismissal. Instead they ask us only to remand to the district court for possible dismissal there so that the pleadings might be amended to cure the jurisdictional defect. They suggest that the receivership might be discontinued, thus leaving the United States as the sole plaintiff and the suit properly in the Eastern District. Or, they note that under 15 U.S.C. § 687c(c), enacted in 1966 (after Todel was appointed as receiver) and reproduced in the margin, the Small Business Administration can act as a receiver for a small business investment company. They claim that the Administration could now be appointed nunc pro tunc to replace Todel as receiver and the action then continued in the Eastern District under 28 U.S.C. § 1345. We express no view on these suggestions or on others appellees may offer, leaving them for the district court to consider. At this time we hold only that on the record before us the United States District Court for the Eastern District of New York did not have jurisdiction over this suit, and we remand for further action consistent with our opinion. . Sitting by designation as a district judge in the Eastern District of New York. . Some of the culprits have been convicted of criminally misapplying Roosevelt’s funds. United States v. Crosby, 69 Cr. 404 (S.D.N.Y., judgments of conviction Mar. 26, 1971), aff’d in open court, 71-1516 (2d Cir. Sept. 16, 1971), cert. denied, 405 U.S. 917, 92 S.Ct. 938, 30 L.Ed.2d 786 (1972). . This official is no longer employed by Franklin. . United States v. Roosevelt Capital Corp., 65 Civ. 162 (S.D.N.Y. Aug. 3, 1966). . At the time of Todel’s appointment, § 687c provided: (a) Whenever, in the judgment of the Administration, a licensee or any other person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of this chapter, or of any rule or regulation under this chapter, or of any order issued under this chapter, the Administration may make application to the proper district court of the United States or a United States court of any place subject to the jurisdiction of the United States for an order enjoining such acts or practices, or for an order enforcing compliance with such provision, rule, regulation, or order, and such courts shall have jurisdiction of such actions and, upon a showing by the Administration that such licensee or other person has engaged or is about to engage in any such acts or practices, a permanent or temporary injunction, restraining order, or other order, shall be granted without bond. The proceedings in such a case shall be made a preferred cause and shall be expedited in every way. (b) In any such proceeding the court as a court of equity may, to such extent as it deems necessary, take exclusive jurisdiction of the licensee or licensees and the assets thereof, wherever located; and the court shall have jurisdiction in any such proceeding to appoint a trustee or receiver to hold or administer under the direction of the court the assets so possessed. . There had been a prior civil suit by the Receiver and the United States against several defendants, Franklin among them, attempting to recover the monies looted from Roosevelt. Franklin successfully moved to dismiss the claim against it because of improper venue in the Southern District. See United States v. Crosby, Memorandum of Jan. 23, 1967, 66 Civ. 2026 (S.D.N.Y.). . Cf. United States v. D’Amato, 507 F.2d 26 (2d Cir. 1974). . Todel tried to but was blocked because of venue problems. See note 6 supra. . The cases cited for the proposition that the receiver needed an independent jurisdictional basis included Winter v. Swinburne, 8 F. 49 (C.C.E.D.Wis.1881), and Sullivan v. Swain, 96 F. 259 (C.C.S.D.Cal.1899). A case cited for the contrary conclusion was Bluefields S.S. Co. v. Steele, 184 F. 584, 587 (3d Cir. 1911). There, plaintiff sought the appointment of an ancillary receiver to prosecute Bluefield’s antitrust suit. While the court stated that it had the power to appoint the receiver regardless of a showing of diversity, the language was purely dictum since the parties were of diverse citizenship and the court refused to make the appointment anyway on the basis that the grounds for the appointment were insufficient. . Section 687c(c) provides: The Administration shall have authority to act as trustee or receiver of the licensee. Upon request by the Administration, the court may appoint the Administration to act in such capacity unless the court deems such appointment inequitable or otherwise inappropriate by reason of the special circumstances involved. . Weinmann, Receiverships Under the Small Business Investment Act, 25 Bus. Law. 237 (1969). . We note that even if the district court must dismiss this action plaintiffs are not without a remedy in the state courts. Even if the statute of limitations has otherwise run, N.Y.C.P.L.R. § 205(a) (McKinney 1972) allows the parties six months to begin anew. See Brown v. Bullock, 17 A.D.2d 424, 235 N.Y. S.2d 837, 840 (1962). Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
songer_treat	C	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. GRAHAM et al. v. UNITED STATES. VINSON et al. v. SAME. WHITE v. SAME. Nos. 8801-8803. United States Court of Appeals District of Columbia. Argued Oct 16, 1945. Decided March 25, 1946. Mr. Levi H. David, of Washington, D. C., with whom Mr. M. Edward Buckley, Jr., of Washington, D. C., was on the brief, for appellants Graham, Parr, Stevens and Henley in No. 8801. Mr. Saul G. Lichtenberg, of Washington, D. C., for appellants Ferreola and Vinson in No. 8802. Mr. T. Emmett McKenzie, of Washington, D. C., with whom Mr. James K. Hughes, of Washington, D. C., was on the brief, for appellant White in No. 8803. Mr. Charles B. Murray, Assistant United States Attorney, of Washington, D. C., with whom Messrs. Edward M. Curran, United States Attorney, and John W. Fihelly, Assistant United States Attorney, both of Washington, D. C., were on the brief, for appellee. Before GRONER, Chief Justice, ALBERT LEE STEPHENS, Circuit Judge sitting by designation, and EDGERTON, Associate Justice. EDGERTON, Associate Justice. These appeals are from convictions of conspiracy to violate the White Slave Traffic Act, commonly called the Mann Act. The indictment charges that the defendants conspired “to transport and cause to be transported * * * divers, women”, in interstate commerce and in the District of Columbia, for the purpose of prostitution. The substantive offense is the one described in § 2 of the Act. It was proved at the trial that appellants repeatedly took part, either as principals or as procurers, in prostitution in Washington, D. C.; that for this purpose some of them went and some induced others to-go from one point to another in the central part of the city; and that much of this travel was done, as everyone knew, by taxicab. But there was no evidence that anyone asked anyone else to use a taxicab or other vehicle, or asked anyone to transport anyone else, or paid the fare of anyone else. As far as the record shows, appellants’ only connection with the transportation of women other than themselves individually was that they induced women to keep appointments a few city blocks from their quarters and would have known from past, experience, if they had thought about the matter, that these women would probably get transportation. As far as the record shows, appellants exerted no influence and expressed no preference in favor of any particular kind of transportation, or even in favor of some kind of transportation as against walking. There is no evidence that they conspired to do more than they actually did. In our opinion they did not .conspire to “transport or cause to be transported”. The quoted words, like most others, have no precise and invariable meáning. They might be used in so broad a sense as to cover what the appellants did. But they were not so used in § 2 of the Mann Act. This becomes clear when § 2 is compared with § 3. Section 3 makes it a crime to “induce * * * any woman or girl to go from one place to another” and “thereby knowingly cause [her] to be carried or transported as a passenger upon the line or route of any common carrier”, in interstate commerce or in the District of Columbia, etc., for the purpose of prostitution. We think Congress had a purpose in enacting § 3. But if, as the government in effect contends, § 2 covers mere inducement to travel for the purpose of prostitution when the prostitute, is likely to and does get transportation for herself, then § 3 serves no purpose because § 2 covers every case to which § 3 could possibly apply. If, as we think, § 3 adds something to the meaning of the Act, the facts of the present case are not within § 2. For several reasons, the convictions cannot be sustained on the theory that appellants conspired to violate § 3. (1) The indictment does not allege, in terms or in effect, that appellants conspired to cause anyone to be transported “upon the line or route of any common carrier.” It does not mention any sort of vehicle or any means of transportation. (2) Since a taxicab does not operate upon a definite line or route, there is no evidence of actflal or intended transportation upon “the line or route” of any carrier. (3) The record shows that the case was tried and the jury were instructed with reference to § 2 only. The judgments must therefore be reversed. Appellants violated local legislation of the District of Columbia, but it does not appear that they conspired to violate the Mann Act. Reversed. 35 Stat. 1096, § 37, 18 U.S.C.A. § 88. 36 Stat. 825, § 2, 18 U.S.C.A. § 398. The points of departure and destination were the so-called Hopkins Institute, two other houses of prostitution, and various hotels. Causing oneself to be transported is not an offense under the Mann Act. Gebardi v. United States, 287 U.S. 112, 53 S.Ct. 35, 77 L.Ed. 208, 84 A.L.R. 370. 36 Stat. 825, § 3, 18 U.S.C.A. § 399. La Page v. United States, 8 Cir., 146 F.2d 536; Hill v. United States, 8 Cir., 150 F.2d 760. Cf. United States v. Reed, 2 Cir., 96 F.2d 785. 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_counsel2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party FASH, School District Treasurer, et al. v. FIRST NAT. BANK OF ALVA, OKL., et al. No. 1455. Circuit Court of Appeals, Tenth Circuit. March 30, 1937. W. L. Houts and H. C. Crandall, both of Alva, Okl., for appellants. C. H. Mauntel and F. B. H. Spellman, both of Alva, Okl., for appellees. Before LEWIS, PHILLIPS, and BRATTON, Circuit Judges. BRATTON, Circuit Judge. The First National Bank of Alva, Okl., was the designated and acting depository of school district No. 1 in that city. The bank was declared insolvent and suspended business on March 14, 1932, having $6,258.-61 of school money on deposit at that time. Following our decision in Kavanaugh v. Fash, 74 F.(2d) 435, sustaining the pledge of certain assets to secure the deposit, the treasurer of the school district and the treasurer of the county instituted this action in the state court against the bank and the receiver to foreclose the lien. A decree of foreclosure was sought for the amount of the deposit with interest thereon at the rate provided by law, costs and expenses of preserving the securities and making sale of them, and reasonable attorneys’ fees. After the cause had been removed to the United States District Court the bank and the receiver answered that at all times since receipt of the mandate in the former case, the receiver had been ready, willing, and anxious to pay the amount of the deposit, but that plaintiffs had demanded ’ interest, expenses, and attorneys’ fees in addition. The court sustained the lien for the amount of the deposit, but denied interest after insolvency and attorneys’ fees. Plaintiffs appealed. It is urged that the court should have remanded the cause t'o the state court. The action is against a national bank and its receiver. It relates to the winding up of the affairs of the bank and arises under the laws of the United States. It was, therefore, removable. Judicial Code § 24 par. (16), 28 U.S.C.A. § 41(16); International Trust Co. v. Weeks, 203 U.S. 364, 27 S.Ct. 69, 51 L.Ed. 224; Larabee Flour Mills v. First Nat. Bank (C.C.A.) 13 F.(2d) 330; Fleming v. Gamble (C.C.A.) 37 F.(2d) 72; Guarantee Co. of North Dakota v. Hanway (C.C.A.) 104 F. 369. The comptroller is required in liquidating the affairs of an insolvent national bank to make ratable distribution of all money coming from the receiver on all claims which have been proved to his satisfaction or adjudicated in a court of competent jurisdiction. 12 U.S.C.A. § 194. And for the purpose of making such distribution claims of creditors are to be determined as of the date on which insolvency was declared. Their value at that time is the basis of apportionment in paying dividends. White v. Knox, Ill U.S. 784, 4 S.Ct. 686, 28 L.Ed. 603; Merrill v. National Bank of Jacksonville, 173 U.S. 131, 19 S.Ct. 360, 43 L.Ed. 640; Kershaw v. Jenkins (C.C.A.) 71 F. (2d) 647; American Surety Co. v. De Carle (C.C.A.) 25 F.(2d) 18; Kennedy v. Boston-Continental Nat. Bank (C.C.A.) 84 F.(2d) 592. It is well settled that interest accruing on a claim after insolvency cannot be paid unless the assets are sufficient to pay all claims in full, because to pay interest on one while others are .unpaid in whole or in part would violate the exaction of ratable distribution of assets. White v. Knox, supra; Kershaw v. Jenkins, supra; Anderson v. Missouri State Life Ins. Co. (C.C.A.) 69 F.(2d) 794; Richman v. Firs.t Methodist Episcopal Church (C.C.A.) 76 F. (2d) 344; Pinckney v. Wylie (C.C.A.) 86 F.(2d) 541; American Nat. Bank v. Williams (C.C.A.) 101 F. 943. And that rule applies to a claim for a deposit secured by pledged collateral. Interest cannot be paid on such a claim whether it be public money deposited pursuant to the provisions of law, Douglass v. Thurston County (C.C.A.) 86 F.(2d) 899; In re American Bank & Trust Co. of Ardmore, 176 Okl. 202, 55 P.(2d) 470; or money of an individual deposited voluntarily, Gamble v. Wimberly (C.C.A.) 44 F.(2d) 329. Some courts have suggested that where a receiver is unreasonable or vexatious in resisting a claim, interest may be allowed during the delay thus occasioned. Leach v. Sanborn State Bank, 210 Iowa, 613, 231 N.W. 497, 69 A.L.R. 1206; Bank of America Nat. T. & S. Ass’n v. California S. & C. Bank, 218 Cal. 261, 22 P.(2d) 704. It likewise has been intimated that interest may be awarded if the receiver is otherwise at fault in administering the trust. Richardson v. Louisville Banking Co. (C. C.A.) 94 F. 442. But there is no need to explore that field, as it is not contended that the receiver acted in that manner in the institution of the action in which he failed, the sole contention being that interest should be allowed from the date on which insolvency was declared to the date of payment.' It is urged that the employment of attorneys to represent the school district in the former action which involved the validity of the pledge was necessary; that the attorneys rendered valuable services in causing the pledge to be sustained; that the treasurer of the school district did not have any fund upon which he could draw to pay the attorneys; and that reasonable attorneys’ fees should have been allowed. That the employment of attorneys was necessary and that they rendered valuable services may be freely conceded. But that is not the test. The National Bank Act (12 U.S. C.A. § 21 et seq.) provides a complete and exclusive code for the liquidation of the affairs of an insolvent national bank. Cook County Nat. Bank v. United States, 107 W.S. 445, 2 S.Ct. 561, 27 L.Ed. 537. And the allowance of attorneys’ fees here would constitute a plain impingement upon the provision which requires ratable distribution of the assets among creditors having approved or adjudicated claims. Citizens’ Bank & Trust Co. v, Thornton (C.C.A.) 174 F. 752; Dunnagan v. Best (D.C.) 59 F. (2d) 795. Concluding that the court was right in disallowing interest after insolvency and attorneys’ fees, the decree is 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_district	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". Leighton BEARD v. ELLERMAN LINES, LTD., and The City Line, Ltd., Appellants, v. ATLANTIC AND GULF STEVEDORES, INC. No. 13278. United States Court of Appeals Third Circuit. Argued Oct. 18, 1960. Decided April 7, 1961. Rehearing Denied May 31, 1961. T. E. Byrne, Jr., Philadelphia, Pa., (Krusen, Evans & Shaw, Philadelphia, Pa. (Kirlin, Campbell & Keating, New York City, of counsel, on the brief), for appellants. Milton M. Borowsky, Philadelphia, Pa. (Abraham E. Freedman, Freedman, Landy & Lorry, Philadelphia, Pa., on the brief), for appellee, Leighton Beard. Francis E. Marshall, Philadelphia, Pa. (Davis, Marshall & Crumlish, Philadelphia, Pa., on the brief), for appellee, Atlantic and Gulf Stevedores, Inc. Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges. KALODNER, Circuit Judge. The plaintiff, Leighton Beard, brought this civil action, founded upon the diversity jurisdiction of the District Court, against the defendants, Ellerman Lines, Ltd. and The City Line, Ltd. (“Ellerman”), to recover damages for personal injuries sustained in the course of discharging cargo from the latter’s vessel, S.S. “City of Calcutta”. Beard was a longshoreman in the employ of Atlantic and Gulf Stevedores, Inc. (“Atlantic”), a concern performing stevedoring services for the vessel. Beard’s complaint alleged unseaworthiness and negligence. Ellerman joined Atlantic as third-party defendant, alleging in its third-party complaint that Beard’s injuries were the result of Atlantic’s negligence in discharging the cargo and in using devices which were “dangerous and improper” in doing so. Ellerman sought indemnity from Atlantic, under their contract, in the event it was held liable to Beard. The case was tried before a jury, terrogatories, in favor of Beard in his action against Ellerman, and against Ellerman in its third-party action against Atlantic. In its answers to the interrogatories the jury found the “City of Calcutta” was unseaworthy and negligent, and Atlantic without fault with respect to the accident which resulted in Beard’s injuries. The District Court entered judgment in accordance with the jury’s special findings in favor of Beard against Ellerman and in favor of Atlantic against Ellerman in the third-party proceedings. It later denied Ellerman’s alternative motions to set aside the "verdict in Beard’s favor or for a new trial. Ellerman has appealed, asserting in sum that the evidence failed to establish unseaworthiness or negligence on its part; that the jury’s finding that Atlantic was not negligent is inconsistent with its finding of negligence against Ellerman since if there was any negligence it was that of Atlantic; and that Ellerman is entitled to indemnity from Atlantic as “a matter of law”, if we find that the record sustains a finding of negligence in the discharge of the cargo. The District Court did not file an opinion and it is necessary for that reason to set forth the facts in some detail: On July 1, 1955, the “City of Calcutta” docked at a pier in. Philadelphia. In its cargo were bales of burlap which had been loaded aboard in India. The bales each contained 30 to 40 bolts of burlap, enclosed in a burlap covering. Each bale, weighing between 1,000 to 1,200 pounds, had been compressed under tremendous pressure and circled with four parallel one-inch steel bands fastened together with a patented clip or buckle. Sixty-three tons of the bales, consigned to New York, were stowed in the forward end of the hold, which, by reason of the shear of the vessel, extended out halfway into the square of the hatch; and 100 tons of the bales, consigned to Philadelphia, were stowed toward the after end of the deck. The bales were stowed on their flat in tiers to the same height, and there was no separation between them except for their markings. Atlantic’s longshoremen started discharging the cargo at about 1:30 P.M. They used what are known as bale or burlap hooks which consist of a metal ring to which six lengths of manila rope are attached. At the opposite end of each rope there was a special flat metal hook. Two of these hooks were inserted under two bands of each of three bales by four longshoremen, two on ■each side of the bales, and a fifth man put the ring on the cargo hook at the joined ends of the runners from the cargo winches and .gave the signal for the draft to be hoisted. The draft was then moved out into the square of the hatch under the hammer of the boom, which was positioned over Philadelphia bales, and hoisted out of the hold, across the ship and then lowered onto the pier. The first of the bales were removed from the center of the hatch and then the bales were moved out from the wings one row or tier at a time. The New York bales were not touched. There was enough space between the top tier of bales and the underside of the ’tween deck for the longshoremen to walk into the wings, and as a draft was hoisted they retreated into them. At about 4:30 P.M. (three hours after the unloading had begun) when two tiers of the Philadelphia cargo had been discharged, a draft of three bales was attached to a set of burlap hooks by the longshoremen. These bales were in a row in the offshore wing under the coaming with approximately 12 feet of space above. As the draft, in the course of its hoisting, neared the coaming of the main deck hatch the middle bands of one of the bales broke and when the entire weight of the bale was placed upon the other band it too broke, and the bale dropped onto the New York bales, bounced off, bounded across one-half of the hatch, then some 20 to 25 feet astern of the after coaming, and struck Beard, pinning him against the after bulkhead. Beard was taken to the hospital where his right leg was amputated, first below the knee and shortly thereafter above the knee. He was 41 years old at the time. The facts, as stated, are not in dispute, nor is there any question presented here with respect to the amount of the jury’s award of damages to Beard. There was considerable testimony at the trial, expert and otherwise, that it was the custom in Philadelphia to use bale hooks in discharging bales similar to the type here involved, known as “gunnies”; that the Safety Rules for the safe handling of cargo, prepared by the Philadelphia Marine Trade Association, and used by stevedore personnel in Philadelphia, approved this procedure. There was also testimony, by way of deposition of Donald Quinn chief officer of the “City of Calcutta” that Quinn had observed the manner in which the vessel’s cargo of bales of wool as well as the bales of burlap were being discharged by Atlantic’s men and that “they were going very quickly”; that Quinn had told one of Atlantic’s men “with a bit of authority” that he thought the use of bale hooks in discharging the bales of wool “was a dangerous way of discharging” and that he was informed “it was the custom of the port”. Quinn also said that he had “explained” to Atlantic’s men that “in India they get wire slings and put them around the bales so that each individual bale has a wire around it, and as they hold it tight, the wire tightens around it.” Quinn, however, did not direct Atlantic’s men to discontinue their method of discharging the bales. There was expert testimony that the chief mate is responsible for the safety of personnel engaged in cargo operations and that his authority outranks the stevedore boss. An expert metallurgist who had tested steel bands similar to those used here testified that in his opinion the particular bands on the bale that broke and struck Beard had “something wrong with the materials”. The foregoing presents the factual situation as presented to the jury. . On this appeal Beard contends that the jury’s finding of unseaworthiness is amply supported for these reasons; ■ “Ellerman had actual and constructive knowledge that the burlap bales would be hoisted out of the hold by use of hooks inserted under the bands of the bales”, and, “It was therefore charged with the absolute duty of supplying bands to permit that activity to be accomplished in reasonable safety”; in the instant ease “the bands were inadequate”, and the burlap bales created an unseaworthy condition because they were not capable of “being handled for the purpose of loading and discharge” by the bale hook method customary in Philadelphia. Beard further contends that the jury’s finding of negligence on Ellerman’s part was supported by the testimony that El- • lerman had failed to provide him with a “safe place to work” in that (1) Ellerman breached its duty “to use reasonable care to ascertain the methods and manner in which the work was done and to forbid the use of a method which was hazardous to his [Beard’s] safety” and the failure of the chief mate to take effective measures to prevent an unsafe method of discharging the burlap bales constituted negligence; further (2) Ellerman’s “failure to discharge the New York bales in that port rendered the place of work unsafe and the defendant negligent”, inasmuch as had the New York bales been dischargd in New York the bale which had dropped would “normally strike a flat surface and roll or bounce but a few feet”, while here the dropped bale “bounced off and rolled all the way to the after bulkhead of the No. 1 hold, one-half the distance of the square of the hatch, and in addition, 20 to 25 feet underneath the after ’tween deck.” Atlantic’s position is that the jury’s finding, in answer to Interrogatory No. 4, that the “fault” of Ellerman did not “arise out of any failure” on its part, was supported by the evidence that its use of the bale hook method was customary and not negligent; that the jury’s finding that Ellerman was negligent could properly have been premised on its failure to provide Beard with a “safe place to work” in that it had not discharged the New York bales at that port and they were so stowed that Beard was exposed in the discharging operation to the catapulting of the dropped bale which caused his injuries. Atlantic contends that, for the reasons stated, the jury’s finding with respect to it is not inconsistent with its finding that Ellerman was negligent. The District Court, in its charge, dealt with the theories of Ellerman’s negligence advanced by Beard. On the score of the jury’s finding, in answer to Interrogatory No. 2, that Ellerman was negligent, Ellerman and Atlantic both urge that the answer fails to disclose whether it was based on (1) use of the bale hook method in discharging the burlap bales; or, (2) failure of Quinn, Ellerman’s chief mate, to stop Atlantic from pursuing the bale hook method of discharge which he had characterized as “dangerous”; or, (3) failing to provide Beard with a safe place to work in view of Ellerman’s failure to discharge the New York bales at that port and their position with relation to the bales which were being discharged at the time of the accident. Interrogatory No. 2 which presented to the jury the issue as to whether Ellerman was negligent reads as follows: “Was there negligence on the part of Ellerman Lines, Ltd., which was a substantial factor in causing injuries to the plaintiff?” The jury’s answer to the interrogatory was “Yes”. In disposing of Ellerman’s appeal from the jury’s finding that its negligence “was a substantial factor in causing injuries to the plaintiff”, we are required only to determine whether there was substantial evidence adduced at the trial with respect to any one of the three theories of negligence on Ellerman’s part which measured up to the applicable standard of legal proof and thus permitted the jury’s fact-finding that Ellerman was negligent. On the score of whether the record affords a substantial basis for a finding that Beard’s injuries were caused by somebody’s negligence in the discharge of the burlap bales this extraordinary situation presents itself: Both Ellerman and Atlantic do not really question that sufficient evidence was adduced in the record to establish that Beard was injured as a result of negligent conduct of the discharging operation; indeed they virtually concede that the record establishes such negligence — they only differ as to the nature of the negligent acts and with respect as to who was guilty of the negligent conduct. Says Ellerman, in its brief: “We dispute that Ellerman was negligent and assert rather that the negligence here was solely that of the stevedore [Atlantic].” (Ellerman’s emphasis.) That statement was made in consonance with Ellerman’s position that Atlantic was in full control of the discharging of the cargo; it was an “expert in the field”; “It was Atlantic’s method of pulling out the cargo, not Ellerman’s”; “Ellerman would not be negligent for failing to either supervise or take over and itself perform the details of the work”; and, while Atlantic’s negligence would make Ellerman liable to Beard, Ellerman was thereby entitled to indemnity from Atlantic under their contract for stevedoring services because of Atlantic’s “sub-standard” performance. Atlantic, replying to Ellerman’s contention here that the jury’s finding of negligence on its part was inconsistent with its finding, in answer to Interrogatories Nos. 4 and 5, that Atlantic was free of. fault, made this statement in its brief: “Appellant [Ellerman] conveniently fails to acknowledge that other issues were submitted, upon which the Jury could properly have found negligence on the part of the shipowner. Plaintiff, through his counsel, contended that Ellerman was negligent in failing to provide Plaintiff with a safe place to work. Evidence was offered which established that certain New York cargo was not removed at that port, was stowed in a position exposed to this unloading operation and was the very means by which the falling bale was catapulted against Beard. * * * “ * * * The Jury could properly find and by its verdict undoubtedly did find that Ellerman was guilty of negligence in stowing the New York cargo with the Philadelphia cargo in the center of the hatch opening. “From the description of the accident by all the eyewitnesses, it is clear that the accident would not have occurred had the falling bale not struck the New York cargo and rolled under the coaming against Beard.’’ (Emphasis supplied.) In view of what has been said it is unnecessary for us to discuss in detail all the evidence relating to the issue of negligence. We have but to say that the record affords ample basis for the jury’s finding that Ellerman was negligent. For example, there was evidence that bands of bales “broke” in “roughly between 3 and 5 percent of the bales” during discharging operations. It is true that there was considerable testimony, as earlier stated, that it was the custom in Philadelphia to use bale hooks in discharging burlap bales and that the method was approved by the Philadelphia Marine Trade Association, but as we held in Curtis v. A. Garcia Y Cia., Ltda., 1959, 272 F.2d 235, 237 “such custom, though it may be evidence of reasonableness, is not conclusive,” and the jury may find, if there is sufficient basis in the testimony, that the customary method does “not satisfy the standard of reasonable care.” Further, there was testimony by Ellerman’s own chief mate, Quinn, earlier referred to, that in his opinion the use of bale hooks “was a dangerous way of discharging”, and that he had “explained” to Atlantic’s man that in India, in handling burlap bales they used the sling method. On the score of Quinn’s testimony it must be said that his failure to take effective measures to stop the use of the discharge method which he condemned as “dangerous”, would constitute negligent conduct for which Ellerman was liable in the event of a jury finding that the discharging procedure was in fact “dangerous”, as he deemed it to be. Also, there was testimony that those engaged in the task of discharging the bales were exposed to a hazardous situation, by virtue of the stowage of the New York bales with respect to the bales which were being unloaded, and thus were not afforded a “safe place to work”, which is, of course, negligence on the part of those responsible. The testimony on this score, as earlier stated, was deemed ample by Atlantic, an expert in the field, to sustain a finding that Ellerman had failed to provide “a safe place to work”. It is settled law that Ellerman owed to Beard the obligation to provide him with a safe place to work, and its failure to do so constituted negligence. It is equally settled that Ellerman was under a duty to use methods which complied with the standard of reasonable care in the discharge of its cargo, and to forbid the use of a discharge method by the stevedore of its selection which did not conform to a standard of reasonable care. “The work of loading and unloading is historically ‘the work of the ship’s service’ ”, as the Supreme Court said in Crumady v. The Joachim Hendrik Fisser, 1959, 358 U.S. 423, 79 S.Ct. 445, 447, 3 L.Ed.2d 413. Whatever inconsistency Ellerman sees in the jury’s answers to Interrogatories Nos. 2 (in which it was held negligent) and 4 (in which Atlantic was absolved from liability over to Ellerman), it is not one which aids Ellerman in Beard’s action against it. In answering Interrogatory No. 2, the jury was determining the issue of negligence between Beard and Ellerman. In answering Interrogatory No. 4, the jury was determining, necessarily, the contractual obligation of Atlantic to Ellerman. The issue, for us on appeal with respect to this Interrogatory is whether as a matter of law Atlantic can be relieved of its contractual obligation in any circumstance of this case. The fact, that the jury believed either that the contractual obligation of Atlantic to Ellerman did not coincide with the duty of Ellerman to the plaintiff, or that Atlantic properly discharged its contractual obligations, if erroneous, would not require that we reverse the finding of liability as between the plaintiff and Ellerman, if that finding is supported by the evidence, as we have found that it is. What has been said brings us to Ellerman’s contention that if it “is liable to Beard upon a theory of negligence * * * the undisputed evidence required the District Court to enter * * * judgment in Ellerman’s favor [against Atlantic] because it was clearly Atlantic’s action which brought about the result and clearly it constituted a breach of a warranty of workmanlike service.” Our consideration of Ellerman’s contention is controlled by the principles recently summarized in Waterman S. S. Corp. v. Dugan & McNamara, Inc., 1960, 364 U.S. 421, 423, 81 S.Ct. 200, 201, 5 L.Ed.2d 169, as follows: “In Ryan [Stevedoring] Co. v. Pan-Atlantic [S.S.] Corp., 350 U.S. 124 [76 S.Ct. 232, 100 L.Ed. 133], it was established that a stevedoring contractor who enters into-a service agreement with a shipowner is liable to indemnify the owner for damages sustained as a result - of -the- -stevedore’s breach of his warranty to perform the obligations of the contract with reasonable safety. This warranty of workmanlike service extends to the handling of cargo, as in Ryan, as well as to the use of equipment incidental to cargo handling, as in Weyerhaeuser S.S. Co. v. Nacirema [Operating] Co., 355 U.S. 563 [78 S. Ct. 438, 2 L.Ed.2d 491]. The warranty may be breached when the stevedore’s negligence does no more than call into play the vessel’s unseaworthiness. Crumady v. The J. H. Fisser, 358 U.S. 423, 429 [79 S. Ct. 445, 448, 3 L.Ed.2d 413] * * * ” (Emphasis supplied). Application of the principles stated to the indemnity action compels the determination, under the particular facts here and the jury’s finding with respect to Ellerman’s negligence, that Ellerman is entitled to indemnity from Atlantic as a matter of law. As already pointed out, the record affords ample basis for a jury fact-finding that (1) use of the bale hook method in the discharge of the burlap bales constituted negligence, and (2) that the injured longshoreman was not afforded a safe place to work. Atlantic suggests that the jury’s finding that Ellerman was negligent was based on its failure to provide a safe place to work in view of the fact that the New York cargo “was stowed in a position exposed to this unloading operation and was the very means by which the falling bale was catapulted against Beard”, and says that “the jury could properly have found negligence on the part of the shipowner” in this situation, and “it is clear that the accident would not have occurred had the falling bale not struck the New York cargo and rolled under the coaming against Beard.” (Emphasis supplied.) Atlantic hoists itself on its own petard in stating that the evidence established that the New York stow, as positioned when the Philadelphia bales were being discharged, created an unsafe place to work. Under the principles above stated, the “warranty of workmanlike service to perform the obligations of the contract with reasonable safety”, extends to the handling of the cargo, and thus if it was negligence on Ellerman’s part to permit Beard to work in an unsafe place, it was equally negligent for Atlantic to “handle” the cargo in the unsafe place to. work. It was Atlantic’s conduct in proceeding to unload cargo in an unsafe place to work which “called into play” the unsafe condition which prevailed, and under Crumady v. The Joachim Hendrik Fisser, supra, it breached its warranty to Ellerman. What was said in American President Lines, Limited v. Marine Terminals Corp., 9 Cir., 1956, 234 F.2d 753, 759, 760, certiorari denied 352 U.S. 926, 77 S.Ct. 222, 1 L.Ed.2d 161, is significantly applicable here: “ * * * We are not concerned here with a situation in which the stevedore’s breach of duty brings about the injuries by operation upon a prior condition caused by the shipowner’s negligence which is unknown to the stevedore. Here the stevedore was fully informed of the fact and of the possible consequences of the shipowner’s negligence * * * and in face of all that proceeded to breach its duty so as to make that negligence an immediately dangerous force * * * [I]t was the stevedore’s breach of duty that created the danger and made it an active condition with immediately foreseeable consequences of personal injury.” The “expertise” of Atlantic in the handling of cargoes should have made it aware of the dangers inherent in the discharge of the Philadelphia bales in view of the presence of the New York stow. If a jury could “properly find”, as Atlantic urges, that Ellerman was negligent in permitting the discharge under the circumstances which prevailed, because of their obvious dangers, it certainly follows that Atlantic, an expert in the field of handling cargo, should have shown an awareness of the situation and taken steps to avoid that which happened or refused to proceed with the discharge of the cargo until the site of discharge was made “a safe place to work.” It must here be noted that the District Court in its charge to the jury with respect to the indemnity action failed to instruct it that if Atlantic carried on the discharge of the Philadelphia bales in a place unsafe to work that it was guilty of a breach of its “warranty [to Ellerman] to perform the obligations of the contract with reasonable safety.” The District Court erred in this respect and to its error may be attributed the fact that the jury, in its answer to Interrogatory No. 4 acquitted Atlantic of “any failure * * * to do its work in accordance with its contractual obligation.” Further, in its charge to the jury the District Court prescribed the “criterion”, as it put it, of Atlantic’s performance of its contract, as follows: “You will have to decide whether or not there was an unreasonable discharge of this cargo, an unsafe method used in the discharge of this cargo, in the placing of the hook.” The phrasing of this instruction was such that it made the sole “criterion” of the jury’s test as to whether Atlantic had breached its contract of “workmanlike service” in the use of the bale hook method in discharging the cargo. The error of this instruction, as well as the error committed when the District Court failed to instruct the jury that it was a breach of Atlantic’s contract to carry on the discharging operation in an unsafe place to work, was further compounded by a last-minute instruction to the jury, following conclusion of the charge in chief, and just before the jury retired. The instruction referred to follows: “If you find that Atlantic & Gulf Stevedores, Mr. Marshall’s client, was unloading the bales in a proper and safe manner, using a method that was in accordance with the practice, customs, and usage in the Port of Philadelphia, and that that was not in violation of their breach of contract which obtained between them, then your verdict must be in favor of the Atlantic & Gulf Stevedores.” (Emphasis supplied.) It may be noted that exception was taken to this instruction by Ellerman. In summary, we are of the opinion that the testimony adduced afforded ample basis (as Atlantic itself says) for a jury finding that the discharge of the Philadelphia bales was carried on in an unsafe place to work and while that finding made Ellerman liable to Beard it also made Atlantic liable, as a matter of law, to Ellerman for indemnity for its breach of warranty as previously detailed. The opinion stated makes it unnecessary for us to consider the issue of unseaworthiness which was premised on Beard’s view that the doctrine of unseaworthiness extends to the packaging of the ship’s cargo ; and that the cargo in the instant case was “unseaworthy” by reason of the “inadequacy” of the steel bands used to bind the burlap bales. For the reasons stated the judgment of the District Court in favor of the plaintiff Leighton Beard and against the defendants, Ellerman Lines, Ltd. and The City Line, Ltd. will be affirmed, and the judgment in favor of the third-party defendant, Atlantic & Gulf Stevedores, Inc. and against the third-party plaintiff, Ellerman Lines, Ltd. and The City Line, Ltd. will be reversed, and the cause remanded with directions to the District Court to proceed in accordance with this opinion. . Plaintiff is a citizen and resident of Pennsylvania; defendants Ellerman Lines, Ltd. and The City Line, Ltd. are British corporations. . Ellerman’s motions were filed May 7, 1958 and orally argued on June 24, 1959. The District Court’s Order denying the •motions was filed April 4, 1960. . Ellerman says: “It is impossible to tell what conduct by Ellerman was found to constitute the conclusion ‘negligence’ ”. . Page 22 “Brief for Appellant”. . In its third-party complaint against Atlantic, Ellerman averred that if it should be held liable to the plaintiff “then the third party is liable over” to it “by reason of” Atlantic’s failure “to properly perform the work of unloading”; Atlantic “was negligent in the manner in which it undertook to unload cargo”; Atlantic “supplied and used devices in connection with the unloading * * * which were dangerous, improper and, in addition, violated the terms of the [stevedoring] agreement.” (Emphasis supplied) . . Pages 8-9 “Brief for Atlantic and Gulf Stevedores, Inc., Appellee”. . Testimony of Captain William Wheeler, associated with a firm of marine consultants. . Hudgins v. Gregory, 4 Cir., 1955, 219 F. 2d 255. . It may be noted that plaintiff relies in this respect on the holding of the Second Circuit in Reddick v. McAllister Lighter-age Line, Inc.., 1958, 258 F.2d 297, at page 299, certiorari denied 358 U.S. 908, 79 S.Ct. 235, 3 L.Ed.2d 229, where it was said: “ * * * the holding of unseawortliiness may also be predicated on the latent defect in the cargo-crate”. But see Carabellese v. Naviera Aznar, S.A., 1960, 285 F.2d 355, 360 where the Second Circuit limited Reddick to its particular facts and said it was “not disposed” to extend the doctrine of unseawortliiness to include “cargo * * * safe to handle”. 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:

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