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songer_crmproc1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited federal rule of criminal procedure in the headnotes to this case. Answer "0" if no federal rules of criminal procedure are cited. For ties, code the first rule cited. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES LOCAL 506, Plaintiff-Appellee, v. The PRIVATE INDUSTRY COUNCIL OF TRUMBULL COUNTY, and City of Niles, Ohio, Defendants, Joseph J. Parise, Mayor, Defendant-Appellant. No. 90-3710. United States Court of Appeals, Sixth Circuit. Argued July 30, 1991. Decided Aug. 20, 1991. David L. Engler (argued), Youngstown, Ohio, for plaintiff-appellee. Joseph T. Dull (argued), Niles, Ohio, for defendant-appellant. Before MARTIN and MILBURN, Circuit Judges, and CONTIE, Senior Circuit Judge. MILBURN, Circuit Judge. Defendant Joseph J. Parise, Mayor of the City of Niles, Ohio, appeals the judgment of the district court holding that the Mayor and the City violated 29 U.S.C. § 1553(b)(3) of the Job Training Partnership Act, and enjoining defendants from placing Summer Youth Employment Training Program participants in the City’s street department. The principal issues on appeal are (1) whether the Job Training Partnership Act provides an implied private right of action, (2) whether reduction of a work force through attrition violates 29 U.S.C. § 1553(b)(3)(B), and (3) whether this action was barred by the doctrine of issue preclusion following the administrative proceedings. For the reasons that follow, the judgment of the district court is reversed, and the injunction against the defendants is vacated and dissolved. I. This case arose out of the planned participation by the City of Niles, Ohio, in the Summer Youth Employment Training Program (“SYETP”), administered by the Private Industry Council (“PIC”) of Trumbull County, Ohio. SYETP is authorized and funded by the Job Training Partnership Act of 1982 (“JTPA”), 29 U.S.C. § 1501 et seq., which replaced the Comprehensive Employment and Training Act (“CETA”), 29 U.S.C. § 801 et seq. The City of Niles requested SYETP participants to work in various city service departments for the summer of 1989. The American Federation of State, County, and Municipal Employees Local 506 (“AFSCME”) represents employees who work in the city service departments. The collective bargaining agreement between AFSCME and the City contained no provision regarding the minimum number of workers to be employed by the City. On April 18, 1989, AFSCME filed a complaint seeking a preliminary and permanent injunction to prevent PIC, the City of Niles, and the Mayor from placing SYETP participants in various city service departments including parks and recreation, street, and water. On May 4 and May 15, 1989, the district court conducted a hearing on AFSCME’s motion for a preliminary injunction. Without addressing the merits of the case, the district court denied AFSCME’s motion on the grounds that it had failed to exhaust the administrative remedies required by the JTPA, and the court transferred the case to its non-assigned docket. AFSCME pursued its administrative remedies by filing a complaint pursuant to the procedure established by the JTPA. On August 16, 1989, a local level hearing officer issued a decision denying AFSCME’s complaint, and the decision was adopted and affirmed by a state level hearing officer on September 22, 1989. On May 16, 1990, AFSCME filed a motion in the district court to transfer the case from the non-assigned to the active docket asserting that it had exhausted the grievance procedure provided by the JTPA, and it now sought review of the administrative decision pursuant to 29 U.S.C. § 1554. The district court granted the motion to reactivate the case and subsequently granted AFSCME leave to amend its complaint to seek declaratory relief. On June 25, 1990, the district court conducted a hearing on the merits, and on July 12, 1990, the court entered a judgment and memorandum opinion holding that the JTPA provided AFSCME an implied private right of action against the City for alleged violations of 29 U.S.C. § 1553(b)(3). The district court held that the City of Niles and Mayor Parise violated 29 U.S.C. § 1553(b)(3) by reducing the work force in the street department through attrition with the intention of using SYETP participants to perform the street department work. 748 F.Supp. 1232. The district court enjoined defendants from placing SYETP participants in the street department. Mayor Parise timely filed notice of appeal. II. As a preliminary matter, we must establish that AFSCME has standing to bring this action. Although neither party has raised the issue of standing, “this court can and must address the issue on its own motion.” Jaimes v. Toledo Metro. Hous. Auth., 758 F.2d 1086, 1092 (6th Cir.1985). It is well-settled that “[e]ven in the absence of injury to itself, an association may have standing solely as a representative of its members.” International Union, UAW v. Brock, 477 U.S. 274, 281, 106 S.Ct. 2523, 2528, 91 L.Ed.2d 228 (1986). In Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977), the Supreme Court stated a three-part test for determining whether an association has standing to bring an action on behalf of its members: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. We hold that the AFSCME satisfies this three-part test and has standing to bring this action on behalf of the city service department employees it represents. “The question whether a statute creates a cause of action, either expressly or by implication, is basically a matter of statutory construction_ [WJhat must ultimately be determined is whether Congress intended to create the private remedy asserted-” Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979). The issue is subject to de novo review by this court. See Cannon v. University of Chicago, 441 U.S. 677, 688-89, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979). In deciding whether a federal statute confers an implied private right of action, we consider four factors: 1) [whether] the plaintiff is of the class for whose especial benefit the statute was created; 2) whether there is any legislative intent, explicit or implicit, which either creates or denies a private remedy; 3) whether finding an implied cause of action is consistent with the underlying purposes of the legislative scheme; and 4) whether the cause of action is one that is traditionally left to state law such that it would be inappropriate to infer a cause of action based on only federal law. Kaiser v. United States Postal Service, 908 F.2d 47, 50 (6th Cir.1990) (citing Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975), cert. denied, — U.S. -, 111 S.Ct. 673, 112 L.Ed.2d 665 (1991)). The central focus of the inquiry is congressional intent. Thompson v. Thompson, 484 U.S. 174, 179, 108 S.Ct. 513, 516, 98 L.Ed.2d 512 (1988); Lamb v. Phillip Morris, Inc., 915 F.2d 1024, 1028 (6th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 961, 112 L.Ed.2d 1048 (1991). The stated purpose of the JTPA is: To establish programs to prepare youth and unskilled adults for entry into the labor force and to afford job training to those economically disadvantaged individuals and other individuals facing serious barriers to employment, who are in special need of such training to obtain productive employment. 29 U.S.C. § 1501. The JTPA was enacted primarily to benefit youth, unskilled adults, and other individuals facing serious barriers to employment. Other potential beneficiaries of the JTPA include employees who have “been treated unfairly in light of the standards imposed under § 1553 or who [have] been discriminated against in violation of § 1577.” West Virginia v. Anchor Hocking Corp., 681 F.Supp. 1175, 1176 (N.D.W.Va.1987). Section 1553(a) requires that JTPA participants be provided benefits and working conditions granted to other employees doing the same type of work. Section 1553(b) protects regular employees from being displaced by JTPA participants. Two district courts have held that section 1553 provides a cause of action for employees who are treated unequally or unfairly in light of the standards imposed under the statute. See Anchor Hocking, 681 F.Supp. at 1176; Clinch v. Montana AFL-CIO, 633 F.Supp. 872, 876 (D.Mont.1986). However, to imply a private right of action “the language of the statute in question must do more than confer benefits, for ‘[t]he question is not simply who would benefit ..., but whether Congress intended to confer federal rights upon these beneficiaries.’ ” Osborn v. American Ass’n of Retired Persons, 660 F.2d 740, 743 (9th Cir.1981) (quoting California v. Sierra Club, 451 U.S. 287, 294, 101 S.Ct. 1775, 1779, 68 L.Ed.2d 101 (1981)). The second Cort factor requires examination of the legislative history for evidence that Congress intended that a private right of action be available under the statute. AFSCME has identified no legislative history regarding a private cause of action under the JTPA. The district court found that the legislative history of the JTPA does not address whether the statute creates a private right of action, and our independent review of the legislative history confirms the district court’s finding. Since the legislative history is silent regarding a private right of action, this court could “infer that Congress intended no such result.” Lamb, 915 F.2d at 1029. “Although congressional silence is not necessarily fatal to implication of a private right of action, ‘implying a private right of action on the basis of congressional silence is a hazardous enterprise at best.’ ” Osborn, 660 F.2d at 745 (quoting Touche Ross & Co. v. Redington, 442 U.S. 560, 571, 99 S.Ct. 2479, 2486, 61 L.Ed.2d 82 (1979)). In deciding whether Congress intended to create a private right of action under the JTPA, it is helpful to consider how courts addressed this issue with regard to CETA. In CETA Workers’ Organizing Committee v. City of New York, 617 F.2d 926, 931-34 (2d Cir.1980), the court applied the four Cort factors and held that there was no implied private right of action under CETA. The court concluded that “CETA’s provision of a comprehensive administrative procedure subject to judicial review appealed] to indicate congressional intent against a private right of action.” Id. at 933 n. 5. In Brock v. Pierce Co., 476 U.S. 253, 106 S.Ct. 1834, 90 L.Ed.2d 248 (1986), the Supreme Court observed that “the federal courts have uniformly held that the statutory complaint mechanism is the sole means of redress for a private party injured by a grant recipient’s violation of CETA.” A comparison of CETA and the JTPA suggests that the rationale for finding no implied private right of action under CETA is applicable to the JTPA. CETA provided a number of administrative remedies when violations of its provisions occurred. See 29 U.S.C. § 816 (1978). “At the local level, CETA require[d] that each prime sponsor establish grievance procedures through which ‘participants, subgrantees, contractors, and other interested persons’ in the program may have complaints expeditiously resolved.” Eastern Band of Cherokee Indians v. Donovan, 739 F.2d 153, 156 (4th Cir.1984). If a complainant failed to resolve the grievance at the local level, he could file a complaint at the federal level with the Secretary of Labor. The final decision of the Secretary was subject to judicial review in the United States Court of Appeals. 29 U.S.C. § 817(a) (1978). Like CETA, the JTPA has a comprehensive administrative procedure for addressing complaints and grievances. The JTPA requires “[ejach administrative entity, contractor, and grantee” to establish and maintain a grievance procedure for complaints and grievances by “participants, subgrantees, subcontractors, and other interested persons.” 29 U.S.C. § 1554(a). Section 1554(b) requires “[ejach recipient of financial assistance under this chapter which is an employer of participants ... to operate or establish and maintain a grievance procedure relating to the terms and conditions of employment.” The district court held that the City is not a recipient of JTPA funds within the meaning of the statute. However, the terms recipient, subreci-pient, and grantee are not defined in the JTPA. On the basis of the language in section 1554(b), we conclude that the City is a recipient. The City receives financial assistance under the JTPA in the form of federally subsidized participants who work in the City service departments. Had Congress intended to limit the term “financial assistance” to cash payments from the government, it could have so defined the term in the statute, as it did the term “public assistance.” See 29 U.S.C. § 1503(20). Moreover, the City is an “employer of participants” in that it controls, directs and supervises the participants who work in the City service departments. Upon exhaustion of a recipient’s grievance procedure, the Secretary of Labor is authorized to investigate allegations that a recipient is not complying with the requirements of the JTPA. See 29 U.S.C. § 1554(c). The JTPA also provides for judicial review in the United States Court of Appeals of “any final order by the Secretary under section 1576 ... with respect to a corrective action or sanction imposed under section 1574_” 29 U.S.C. § 1578(a)(1). These provisions suggest that there is no implied private right of action under the JTPA because Congress “has established an elaborate system of administrative review, which would appear intended to be exclusive.” Uniformed Firefighters Ass’n, 676 F.2d 20, 22 (2d Cir.), cert. denied, 459 U.S. 838, 103 S.Ct. 84, 74 L.Ed.2d 79 (1982). While provision of a comprehensive administrative procedure may indicate congressional intent against implying a private right of action, another factor to consider is “whether the administrative remedies provide relief for the specific claims of the plaintiff.” CETA Workers’, 617 F.2d at 933 n. 5. In this case, it does appear that the administrative procedures of the JTPA would provide relief for the claims of AFSCME. Section 1574(g) authorizes the Secretary of Labor to take action or order corrective measures upon determining that any recipient “has discharged or in any other manner discriminated against a participant or against any individual in connection with the administration of the program involved, ... or otherwise unlawfully denied to any individual a benefit to which that individual is entitled under the [JTPAj.... ” The conduct which AFSCME complains of, the denial of protection afforded local workers by section 1553(b), seems to be conduct which the Secretary is authorized to address under section 1574(g). The final order of the Secretary would then be subject to judicial review in the court of appeals. Accordingly, the administrative procedure of the JTPA “would appear intended to be exclusive.” CETA Workers’, 617 F.2d at 934. The third inquiry under Cort is whether implying a private right of action would be consistent with the underlying purposes of the legislative scheme. If one of the purposes of section 1553(b) is to protect local workers from being displaced by JTPA participants, then implying a private right of action could be consistent with the legislative scheme. Recognizing a private right of action would provide an enforcement mechanism to secure the protections afforded local workers by section 1553(b). However, as noted earlier, the grievance procedures mandated by the JTPA provide the means for local workers to secure the protections afforded by section 1553(b). “Although it is certainly possible that Congress would grant a private right of action concurrent with a system of agency oversight, it is difficult to understand, absent language to the contrary, what benefits would be gained from such dual review, particularly when judicial review of the Secretary’s action is explicitly vested in the appellate courts.” CETA Workers’, 617 F.2d at 934 n. 7. The final Cort factor to be considered is whether the cause of action is one traditionally left to state law such that it would be inappropriate to infer a cause of action based only on federal law. This factor is easily satisfied because the protection AFSCME seeks is based on a federal statute and has no independent basis in state law. Thus, implying a private right of action under the JTPA “would not intrude upon matters of state concern.” Lamb, 915 F.2d at 1030. Accordingly, having evaluated the four Cort factors with the view toward discerning congressional intent, we hold that there is no implied private right of action under section 1553(b)(3)(B) of the JTPA. III. For the reasons stated, the judgment of the district court is REVERSED, and this case is REMANDED to the district court with instructions to dissolve its injunction and dismiss this case. . The City of Niles and PIC have not appealed the judgment of the district court. consider the remaining two factors outlined in Cort." Kaiser, 908 F.2d at 52. Nevertheless, we shall discuss the remaining factors. . In its motion to transfer the case from the inactive docket to the active docket, AFSCME asserted that it sought judicial review of a final administrative decision. However, the district court would have no jurisdiction to review a final administrative decision under the JTPA because Congress has determined that judicial review is available only in the appellate courts. See 29 U.S.C. § 1578(a)(1). . If this court concludes that “neither the language, structure, nor the legislative history of the statute shows a congressional intent to fashion an implied private remedy, [it] need not . Having determined that there is neither an express nor an implied right of action under section 1553(b)(3)(B) of the JTPA, we need not reach the other issues raised in this appeal. Question: What is the most frequently cited federal rule of criminal procedure in the headnotes to this case? Answer with a number. Answer:
songer_usc1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. Sandra LARSEN, Administratrix of the Estate of Ludwig Larsen, Deceased, Plaintiff-Appellee, v. CHICAGO AND NORTH WESTERN RAILWAY COMPANY, a corporation, Defendant-Appellant. No. 12039. United States Court of Appeals Seventh Circuit. Dec. 6, 1957. Robert W. Russell, Chicago, Ill., Edward Warden, Chicago, Ill., for defendant-appellant. Lester E. Munson, Chicago, Ill., Louis A. Smith, Simon Herr, Chicago, Ill., for appellee. Before DUFFY, Chief Judge, and MAJOR and HASTINGS, Circuit Judges. MAJOR, Circuit Judge. Plaintiff’s decedent was struck and killed by defendant’s train on November 13, 1954. This action was for the recovery of damages sustained by plaintiff as a result of decedent’s death, allegedly caused by the negligence of defendant while the decedent was in the exercise of due care and caution for his own safety. Judgment in the amount of $15,000 was awarded plaintiff. From this judgment defendant appeals. The case is unusual in many respects, particularly in that it has twice been tried by a jury and in each instance a verdict returned in favor of defendant. The same judge presided at both trials and at each the same five occurrence witnesses testified on behalf of plaintiff. Defendant introduced no evidence at either trial. The testimony offered by plaintiff was substantially the same at each trial. The first trial commenced November 26, 1956. Defendant’s motion for a directed verdict in its favor was made and denied at the close of plaintiff’s evidence. On November 30, 1956, the jury returned its verdict in open court, finding the defendant not guilty, upon which judgment was entered. Plaintiff’s oral motion for a new trial was immediately allowed. Plaintiff was permitted subsequently to file a written motion in support of the oral motion, and a further order was entered allowing the motion for a new trial. The second trial commenced February 4, 1957. At the close of plaintiff’s evidence, on February 5, 1957, defendant presented a motion for a directed verdict, which was denied the following day. Plaintiff also presented a motion for a directed verdict, which was taken under advisement. On February 7, the jury returned its verdict in open court, again finding defendant not guilty. The jury was polled, on request of plaintiff’s counsel, and each member affirmed the jury verdict. At that time the court denied defendant’s request for the entry of a judgment upon the jury verdict, Thereupon, the court allowed plaintiff’s motion for a directed verdict and instructed the jury to assess plaintiff’s damages. The jury returned its directed verdict fixing plaintiff’s damages in the sum of $15,000. Judgment was entered on the directed verdict in favor of plaintiff and against defendant in such amount. Defendant attacks the rulings of the trial court which followed both the first and second trials. As to both trials it contends that the court erred in its refusal to direct a verdict in its favor. As to the first trial it is argued that the court was without jurisdiction to enter an order for a new trial on motion of plaintiff after the entry of judgment on the jury's verdict. In any event, it is contended that the granting of a new trial under the facts presented and the applicable law of Illinois was an abuse of discretion. As to the second trial, it is contended that the court erred in directing a verdict in favor of plaintiff, thus nullifying the verdict of the jury in defendant’s favor. This argument rests upon the premise that plaintiff, under the evidence considered in a light most favorable to her, was entitled to nothing more than a submission to the jury on the critical issues of negligence and contributory negligence, and that defendant was entitled to a judgment on the verdict rendered upon such issues. It is further urged that the court was without authority under the circumstances to direct a verdict in plaintiff’s favor and that its refusal to enter judgment in favor of defendant upon the jury verdict was erroneous as depriving defendant of a jury trial. In the view which we take of the case, as subsequently disclosed, we think no useful purpose could be served in discussing or deciding the alleged erroneous rulings which followed the first trial. We shall, therefore, direct our attention to the second trial and the rulings incident thereto. A statement of the proof offered by plaintiff is thus required. As already noted, plaintiff’s decedent was killed when struck by defendant’s seven-coach passenger train, which was scheduled to leave Chicago at 1:30 p.m., terminating at Williams Bay at about 3:30. It was powered by a steam engine forty to fifty feet in length, equipped with cab, smokestack, bell and whistle. The unfortunate incident occurred at the Jefferson Park station, where the train was not scheduled to stop. At that station defendant maintained three tracks which extended substantially east and west. Westbound trains operated on the southern track, eastbound on the northern track, and trains operating in both directions used the center track. A platform was maintained between the center and southern tracks for the use and convenience of passengers. The platform was of crushed stone or gravel, twelve to eighteen feet in width and from one to two blocks in length. The platform had wooden retaining sides, three or four inches in width. Defendant’s train approached the station from the west at an estimated speed of thirty to forty miles per hour. Plaintiff’s decedent was familiar with the platform and surroundings as he had been a regular passenger of defendant from and to that station for many years. On the day in question he appeared at the station and sat on the north edge of the platform, with his feet out in the roadbed. (While we find no direct testimony, it is apparent that the decedent intended to become a passenger on a later train.) Seven or eight other persons on the platform saw the train approaching when it was a mile or more from the station. At about that time decedent got up and walked to the south side of the platform (the side next to the track on which the train was approaching). The other persons on the platform as the train approached moved in the opposite direction, that is, to the north side of the platform (away from the side on which the train was approaching). The decedent took a position close to the platform edge, with his back to the approaching train. Defendant’s engineer saw him before the engine reached the east end of the platform and blew the whistle at that time. The whistle was sounded many times and continued to be sounded up to the time of the accident. In addition, the bell was ringing, automatically and continuously. Both the bell and the whistle were heard by all of the witnesses who testified. The engineer applied the emergency brake when the engine was about one hundred feet from decedent, who did not move from his position at the edge of the platform along which the train was passing. While the engine was passing decedent turned his head to the left and was struck on the left side of the head by some part of the engine. From the injury thus received, his death occurred shortly thereafter. Plaintiff’s sole argument in support of the contention that defendant was negligent, so far as we can ascertain from her brief, is that the decedent was struck by a projection extending out from the body of the engine. As stated in her brief, “The accident could not have occurred except that something extended out from the engine of which defendant had control. The distance between decedent and the engine was too great to permit contact between it and him. The thing that extended from the train should not have been there. It would not have been there except for the failure of defendant, through its employees, to remove projecting objects from the locomotive.” This projection theory is based upon the testimony of witness Fuller, who stated, “A projection on the side of the engine struck him. It struck him in the head. On the left side of the head.” Later, the same witness stated, “I testified that something on the side of the engine struck him. It was some regular part of the train. It was one of the working parts on the side of the engine.” At the first trial this same witness testified, “As he was standing there, facing away from the train, there was a steam engine — there was a projection — I don’t know what to call it — a projection on the side of the engine, a normal part of the engine, which struck him on the side of the head as it went by him.” It is evident that the testimony of this witness is without probative value on plaintiff’s projection theory. Plaintiff also argues that it is infer-able from the distance between decedent and the engine that decedent would not have been struck if something other than its regular and ordinary parts had not been projecting from the engine. On this score plaintiff contends that viewing the evidence most favorable to defendant, decedent was standing at least one foot away from the edge of the platform. This is hardly an accurate statement. The witness Fuller testified on this point, “He was standing, at the most, a foot from the south edge of the platform. Approximately a foot.” The witness Doren Galandak testified, “The man’s foot was actually on the wooden part, one was on the wood, and one was on the stone. * * * As best I remember it the man was standing there with one foot on the wooden strip and one foot on the gravel.” This witness further testified that decedent did not look in the direction of the train but at the time of the last whistle “He turned then, just at the last second. He turned to his left.” There was a clearance of from two to five inches between the side of the passing engine and the platform edge. We doubt under these circumstances if any rational inference could be drawn that decedent was struck by a projecting object, that is, an object other than a regular part of the engine. Any inference so drawn, however, is dissipated by the direct testimony of defendant’s engineer and conductor who testified on behalf of plaintiff that the engine was inspected and examined just prior to the current trip and there was no pro-trading object on the side of the engine next to decedent other than the ordinary engine parts. More than that, the train stopped a short distance from the point of the accident and the engine was again inspected. The same witnesses testified that there was no protruding object on the engine at that time other than ordinary engine parts. The burden was upon plaintiff to prove negligence on the part of defendant which proximately caused the accident, and that deceased was free from contributory negligence which proximately contributed to cause the accident. We think the proof was insufficient in both respects. Certainly it must be held as a matter of law that plaintiff’s decedent was guilty of contributory negligence. The rule which governs has often been announced by the Illinois courts. In Live Stock National Bank of Chicago v. Richardson, 318 Ill.App. 537, 541, 48 N.E.2d 597, 598, the court stated: “The law is clear that if the decedent intended to become a passenger upon the car and was struck by the car because he stood too close to it as it approached he would be guilty of contributory negligence as a matter of law. [Citing many Illinois cases.]” This court, in Barrett v. Chicago & N. W. Ry. Co., 7 Cir., 207 F.2d 5, at page 8 reversed a judgment in favor of plaintiff under circumstances quite similar to those of the instant case. In doing so, the court made a statement so descriptive of the instant situation that we think it bears repetition. The court stated: “Plaintiff’s intestate was proceeding in a southerly direction on an adequately wide platform and, until he started on a diagonal course, was about eight feet from the nearest rail. The approaching train was plainly visible. There was no obstruction to deceased’s vision, nor were there distracting noises, and no reason is suggested why he could not and did not see and hear the approaching train. He started his diagonal course from a place of safety when the engine was about one hundred feet distant and before any air currents from the engine or train could have reached him. He persisted in his diagonal course until he was struck by the front of the engine. In our opinion plaintiff’s intestate was guilty of contributory negligence as a matter of law, which proximately caused his injuries and death.” Plaintiff attempts to distinguish those and other cases on the ground that in such cases the decedent was struck by the front of the engine, while here he was struck by the side. We think this distinction is without material significance. At any rate, if a person places himself in a position of peril without reason or excuse, we do not know what difference it makes whether that position is in front or at the side of the engine insofar as the issue of contributory negligence is concerned. Without the aid of authority, however, we would be compelled to hold that plaintiff’s decedent was guilty of contributory negligence. Common sense would command such a conclusion. The evidence is undisputed that defendant’s train as it approached was visible for more than a mile, its headlights were brightly burning, its bell was ringing and its whistle was blown eight to ten times. Other persons on the platform saw it and heard it, and moved away from the track on which it was approaching. At the same time, plaintiff’s decedent moved from a place of safety across the platform and stood at the very edge with his back to the approaching train. There is no evidence, in fact no intimation, but that he was possessed of all of his faculties. He deliberately placed himself in a position of great peril. Under such circumstances, there is no basis for the view that he was in the exercise of due care and caution for his own safety. This conclusion finds strong support in the unusual situation of a jury twice exonerating the defendant railroad from liability. Plaintiff in the court below relied heavily upon the doctrine of res ipsa loquitur. In the brief filed in this court, it is suggested that the doctrine “fairly applies,” whatever that may mean. In oral argument it was admitted, and we think properly so, that the doctrine is without application. As already noted, at the conclusion of the second trial the court denied defendant’s motion for a directed verdict and reserved its ruling upon plaintiff’s motion for a directed verdict. The case was submitted to the jury and a verdict returned in open court in favor of defendant. The court denied defendant’s request to enter judgment thereon. Instead, it allowed plaintiff’s motion for a directed verdict, and the jury was so instructed. Judgment was entered upon such directed verdict. Defendant argues with some force that the court, under Rule 50(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., was without power or authority under the circumstances to direct a verdict in favor of plaintiff after the jury had returned a verdict in favor of defendant. In our judgment, this controversy need not be resolved. Assuming arguendo that the court had the power or authority, it is our conviction that it was clearly in error in directing a verdict in favor of plaintiff. Assuming, contrary to what we have held, that plaintiff’s decedent was not guilty of contributory negligence as a matter of law, and granting to plaintiff the benefit of all doubt, the most she was entitled to was a submission of her case to the jury. As stated in Wilkerson v. McCarthy, 836 U.S. 53, 57, 69 S.Ct. 413, 415, 93 L.Ed. 497: “It is the established rule that in passing upon whether there is sufficient evidence to submit an issue to the jury we need look only to the evidence and reasonable inferences which tend to support the case of a litigant against whom a peremptory instruction has been given.” The case having been submitted, there is hardly room for argument but that the verdict of the jury finds adequate support; in fact, it is difficult to conceive how a jury could have decided differently. Upon that verdict defendant was entitled to the entry of a judgment in its favor. The jury verdict renders immaterial the question as to whether the court erred in its refusal to allow defendant’s motion for a directed verdict. The judgment appealed from is reversed, with directions that the directed verdict in favor of plaintiff and the judgment entered thereon be vacated. It is further directed that judgment be entered in favor of defendant upon the jury verdict returned in open court. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_usc1	21	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. Robert L. RAMSOUR, Appellant v. UNITED STATES of America, Appellee. No. 15335. United States Court of Appeals District of Columbia Circuit. Submitted May 6, 1960. Decided June 9, 1960. Appellant filed a brief, pro se, and his case was treated as submitted thereon. Mr. Frank Q. Nebeker, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Carl W. Belcher, Asst. U. S. Atty., were on the brief, submitted on the brief for appellee. Before Phillips, Senior United States Circuit Judge for the Tenth Circuit, and Fahy and Washington, Circuit Judges. Sitting by designation pursuant to Section 294(d), Title 28, U.S.Code. PER CURIAM. Appellant was convicted on eleven counts of an indictment under the narcotics laws. 21 U.S.C. § 174 (1958); 26 U.S.C. §§ 4704(a), 4705(a) (1958). He filed a timely application for leave to appeal in forma pauperis, which the District Court denied. Later, he moved to vacate his sentence, under 28 U.S.C. § 2255 (1958). The motion was denied, and this appeal followed. Whether this case be considered as a belated direct appeal from the judgment of conviction, cf. Blunt v. United States, 1957, 100 U.S.App.D.C. 266, 244 F.2d 355, or simply as an appeal from the order denying the motion under Section 2255, we must conclude that appellant is not entitled to relief. We have reviewed the entire record, and perceive no prejudicial error as to any of the counts of which appellant was found guilty, or in the denial of the motion under Section 2255. Affirmed. . We express no opinion as to whether on the facts here appellant is entitled to have his ease so considered. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_circuit	G	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. GRANITE STATE INSURANCE COMPANY, Plaintiff-Appellee, v. Gerald A. DEGERLIA and Linda Deerhake, Special Administrator of the Estate of Kevin Deerhake, deceased, Defendants-Appellants. Nos. 90-1843, 90-1844. United States Court of Appeals, Seventh Circuit. Argued Jan. 8, 1991. Decided Feb. 14, 1991. Terrence J. Goggin, Mark R. Misiorow-ski, Goggin, Cutler & Hull, Chicago, Ill., William J. Selinsky, Randall Phillips, Ronald Olzmann, Marilyn A. Madorsky, Marc Shaberman, Provizer, Lichtenstein, Pearl-man & Phillips, Southfield, Mich., for Granite State Ins. Co. Robert S. Forbes, Philip B. Alfeld, Phillip J. Kardis, Kardis, Forbes & Alfeld, Alton, Ill., Terry N. Brown, Belleville, Ill., for Gerald A. Degerlia. Bernard J. Ysursa, Cook, Shevlin, Keefe & Ysursa, Belleville, Ill., for Linda Deer-hake, Special Administrator of the Estate of Kevin Deerhake, deceased. Before BAUER, Chief Judge, WOOD, Jr., Circuit Judge, and ESCHBACH, Senior Circuit Judge. HARLINGTON WOOD, Jr., Circuit Judge. On July 27, 1980, patrons gathered at the DuQuoin State Fairgrounds (“Fairgrounds”) in DuQuoin, Illinois, for a motorcycle race sponsored by the American Motorcycle Association (“AMA”). The sponsored race was canceled due to inclement weather, but many of the patrons remained to either watch or participate in the un-sponsored and unauthorized “racing or stunting” of motorcycles. That activity ended tragically when a motorcycle accident injured Gerald Degerlia and cost Kevin Deerhake his life. At the time of the accident, the DuQuoin State Fair Association (“Association”), which leased the Fairgrounds to the AMA, maintained four levels of liability coverage with the following limits of liability: Limit of Lia-Insurer bility National Union Insurance Company $300,000 Lexington Insurance Company $700,000 Integrity Insurance Company $1,000,000 Granite State Insurance Company $3,000,000 The uppermost layer of coverage, an excess umbrella liability policy issued by Granite State, included the following exclusion: ■ It is agreed that with respect to operations described above or designated in the policy as subject to this endorsement, the insurance does not apply to bodily injury to any person while practicing for or participating in any contest or exhibition of an athletic or sports nature sponsored by the named insured. It is agreed that the insurance applies with respect to the operation of any fair out of doors subject to the following additional exclusions: The insurance does not apply: 1. to bodily injury or property damage arising out of (a) mechanically operated amusement devices owned or operated by the named insured. (b) automobile or motorcycle racing or stunting. (c) rodeos, or 2. to bodily injury to any person while practicing for or participating in any contest or exhibition of an athletic or sports nature sponsored by the names [sic] insured. The Association also procured an additional policy from Lincoln Insurance Company to provide coverage for the AMA-sanctioned motorcycle competition scheduled to take place on July 27, 1980. After the accident, both Degerlia and Linda Deerhake, the special administrator of Kevin Deerhake’s estate, filed suit against a number of defendants, including the Association. These actions were consolidated and produced jury verdicts of $770,000 for Degerlia and $1,757,510 for Deerhake. The only remaining obstacle was collecting the sums awarded by the jury, and the Association’s liability coverage provided an attractive means by which to accomplish this goal. Well aware of the possibility that Deger-lia and Deerhake might attempt to collect under the Association’s policies, Granite State and Lexington invoked our diversity jurisdiction and filed the present declaratory judgment action. Granite State thereafter filed a motion for summary judgment raising the argument, among others, that the injuries suffered by Degerlia and Deer-hake were expressly excluded by its policy. The district court, after examining the exclusion quoted above, agreed with Granite State, granted its motion for summary judgment, and, seeing no just reason for delay, directed entry of final judgment under Rule 54(b) of the Federal Rules of Civil Procedure. Degerlia and Deerhake subsequently filed separate notices of appeal after the district court rejected their motions for reconsideration. The question presented by this appeal is quite narrow. Both Degerlia and Deer-hake do not contest, and thereby concede, that the injuries for which they seek compensation arose out of “motorcycle racing or stunting” that occurred “with respect to the operation of any fair out of doors.” Compare Garriguenc v. Love, 67 Wis.2d 130, 226 N.W.2d 414 (1975). They also concede that the exclusion does not violate public policy. The only issue they raise is whether the district court, within the context of a motion for summary judgment, committed reversible error by failing to conclude that the exclusion applied only to “racing or stunting” sponsored by the Association. If their argument is correct, then the exclusion would be inapplicable to these facts — Degerlia’s and Deerhake’s injuries arose out of unsponsored “racing or stunting.” Under Illinois law, which the parties concede applies to this action, we interpret the language of an insurance policy as a matter of law. Sawyer Fruit & Veg. Co-op. Corp. v. Lumbermens Mut. Cas. Co., 117 Ill.App.3d 407, 408, 453 N.E.2d 826, 827, 73 Ill.Dec. 1, 2 (1st Dist.1983). On one end of a spectrum we place that policy language that is clearly and unambiguously in favor of coverage. At the other end of the spectrum we place that policy language that clearly and unambiguously excludes coverage. If the relevant language in the Granite State policy falls at either end of the spectrum — i.e., if it is subject to only one reasonable interpretation — then we apply the terms of the policy as written. See Severs v. Country Mut. Ins. Co., 89 Ill.2d 515, 521, 434 N.E.2d 290, 292, 61 Ill.Dec. 137, 139 (1982); see also National Fidelity Life Ins. Co. v. Karaganis, 811 F.2d 357, 361 (7th Cir.1987) (“an insurance policy that contains no ambiguity is to be construed according to the plain and ordinary meaning of its terms, just as would any other contract"). If the relevant language in the Granite State policy is ambiguous and falls between the two ends of the spectrum-i.e., if it is subject to more than one reasonable interpretation, at least one of which would favor coverage-then we construe the policy strictly against its drafter, the insurer. Goldblatt Bros., Inc. v. Home Indem. Co., 773 F.2d 121, 125 (7th Cir.1985). Thus, Granite State can prevail on its motion for summary judgment only if its exclusion cannot be reasonably interpreted to favor coverage. As the district court held, the language in the Granite State exclusion meets this heavy burden. The policy excludes injuries arising out of "automobile or motorcycle racing or stunting." The terms of the exclusion do not limit themselves only to injuries arising from racing or stunting sponsored by the named insured. An examination of the remainder of the exclusion confirms this conclusion; the Granite State policy is quite specific when it qualifies the scope of its clauses. The first paragraph of the exclusion limits itself to "any contest or exhibition of an athletic or sports nature sponsored by the named insured." In the paragraph under scrutiny, the portion designated "(a)" limits itself to injury arising out of "mechanically operated amusement devices owned or operated by the named insured." Last, the portion designated "2" limits itself to "any contest or exhibition of an athletic or sports nature sponsored by the names [sic] insured." These express limitations, occurring both before and after, but not within, the language under scrutiny, strongly support the determination that no coverage exists. Our analysis does not end, however, with the four corners of the insurance policy. Under Illinois law, "[a]n insurance policy is not to be interpreted in a factual vacuum; it is issued under given factual circumstances. What at first blush might appear unambiguous in the insurance contract might not be such in the factual setting in which the contract was issued." See, e.g., Glidden v. Farmers Auto. Ins. Ass'n, 57 Ill.2d 330, 336, 312 N.E.2d 247, 250 (1974). Seizing upon this language in Glidden, Degerlia and Deerhake note that the Association purchased outside coverage for the AMA-sanctioned "racing or stunting" but did not purchase outside coverage for un-sponsored motorcycle "racing or stunting." They then argue, on the basis of the Association's conduct, that it intended and believed the Granite State exclusion to apply only to activities for which outside coverage had been procured-i.e., sponsored "racing or stunting." If the Association had not intended the Granite State policy to cover unsponsored "racing or stunting," Degerlia and Deerhake argue, the Association would have procured outside coverage for those activities. While we recognize the apparent willingness of Illinois courts to look beyond the four corners of the insurance policy in determining the meaning of a particular phrase, we do not believe that the appellants’ “factual circumstances” argument would require us to change the outcome here. Illinois law recognizes that both the insurer and the insured have expectations regarding an insurance policy; it is concerned about the parties’ intent, not a party’s intent. See Squire v. Economy Fire & Cas. Co., 69 Ill.2d 167, 180, 370 N.E.2d 1044, 1049-50, 13 Ill.Dec. 17, 22-23 (1977); Reserve Ins. Co. v. General Ins. Co., 77 Ill.App.3d 272, 280, 395 N.E.2d 933, 938, 32 Ill.Dec. 552, 557 (1st Dist.1979). The Association may well have intended the policy language to exclude only sponsored “racing or stunting,” but such an intention was unreasonable in light of the policy’s clear and unambiguous language. And nothing in Glidden leads us to the conclusion that one party’s unreasonable intent may provide the basis for finding an ambiguity in an insurance policy. Indeed, the Illinois Supreme Court has held that, Glidden or no Glidden, one party’s subjective intent may be rebutted by “clear and unambiguous policy language from which it can be readily seen and understood that coverage was limited.” Menke v. Country Mut. Ins. Co., 78 Ill.2d 420, 425, 401 N.E.2d 539, 542, 36 Ill.Dec. 698, 701 (1980); see Carini v. Allstate Ins. Co., 113 Ill.App.3d 202, 205, 446 N.E.2d 1221, 1223, 68 Ill.Dec. 824, 826 (1st Dist.1983) (“the language of the [insurance] contracts tell us what was promised”); Sharples v. General Cas. Co., 85 Ill.App.3d 899, 901-02, 407 N.E.2d 674, 677, 41 Ill.Dec. 176, 179 (1st Dist.1980); see also State Farm Fire & Cas. Co. v. Moore, 103 Ill.App.3d 250, 255, 430 N.E.2d 641, 646, 58 Ill.Dec. 609, 614 (2d Dist.1981) (“Courts will not create an ambiguity where none exists.”). There being no genuine issues of material fact raised in opposition, and having demonstrated that it is entitled to judgment as a matter of law, Granite State is entitled to summary judgment in its favor. See New Process Baking Co. v. Federal Ins. Co., 923 F.2d 62 (7th Cir.1991) (per curiam). The decision of the district court is Affirmed. . The exclusion was adopted from the underlying umbrella policy issued by Integrity. . The defendants in the declaratory judgment action included the Association, Degerlia, and Deerhake, as well as First Bank and Trust Company of Mt. Vernon, Illinois (a trustee), and Saad Jabr. The record is sketchy with regard to the activities of the remaining insurers. Degerlia and Deerhake represent that National Union has made payments under its policy. Integrity has apparently been placed into receivership. And we are unable to discern Lincoln’s present status with regard to the events herein. . Lexington’s policy did not include the exclusion under scrutiny in this case. . We review de novo a district court’s decision to grant a motion for summary judgment and apply the same standard as that employed by the district court. DeBruyne v. Equitable Life Assur. Soc'y of the United States, 920 F.2d 457, 463 (7th Cir.1990); see also Fed.R.Civ.P. 56. . Deerhake's brief appears to concede this point when it states: "On its face, it appears that the policy excludes `motorcycle racing or stunting,' which seems plain enough." . Degerlia and Deerhake attempt to argue that this phrase, due to its location in the first paragraph of the exclusion, applies throughout. A more logical reading of the exclusion, however, would pay heed to similar limitations that arise in the later paragraph and would recognize that the limiting phrase in the first paragraph does not extend beyond the first paragraph. . Degerlia and Deerhake also argue that the Association intended to purchase excess coverage that was identical to its primary coverage, and point to the language in the National Union policy, which arguably provides coverage for the occurrence in question, as support for this argument. We do not address this contention, however, because it has been waived. Degerlia and Deerhake did not raise this argument until they filed their motions to reconsider, but a motion to reconsider does not "serve as the occasion to tender new legal theories [or new evidence] for the first time." Keene Corp. v. International Fidelity Ins. Co., 561 F.Supp. 656, 666 (N.D.Ill.1983), aff'd, 735 F.2d 1367 (7th Cir.1984). This argument was always available to the appellants but they waited too long before raising it; neither the district court nor this court is obliged to examine arguments that are raised in an untimely fashion. . Moreover, the "evidence" is hardly substantial; the policy issued by Lincoln does not even appear to be a part of the record in this case and, in any event, Degerlia and Deerhake have not bothered to cite its location. Without that policy before us, it is difficult to determine the extent of the additional coverage and, subsequently, to garner any real insight concerning the Association’s intentions. Whatever the exact parameters of the Illinois Supreme Court’s decision in Glidden, we have no doubt that the "factual circumstances” surrounding the issuance of an insurance policy must be presented to the court in the form of evidence, not speculation. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
songer_procedur	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. George Raymond DEVINE, Appellant, v. Tracy A. HAND, Warden, Kansas State Penitentiary, Appellee. No. 6565. United States Court of Appeals Tenth Circuit. Jan. 24, 1961. Sheldon E. Friedman, Denver, Colo., for appellant. J. Richard Foth,- Topeka, Kan. (John Anderson, Jr., Topeka, Kan., on brief), for appellee. Before MURRAH, Chief Judge, and BRATTON and BREITENSTEIN, Circuit Judges. MURRAH, Chief Judge. This is an appeal from the District Court’s denial of Devine’s petition for a writ of habeas corpus, filed after having exhausted his state remedies. He was convicted of burglary and larceny in a Kansas state court, upon a plea of guilty, and is presently in that State’s penitentiary. His first contention is that he was forcibly brought from Missouri for trial in Kansas, without being properly extradited, in violation of due process under the Fourteenth Amendment; and that his conviction was therefore a nullity. But, “ * * * the pow«r of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a ‘forcible abduction.’ * * * There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.” Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541. Due process under the Fourteenth Amendment is satisfied when one charged with a state offense is tried in a state court of competent jurisdiction “in accordance with constitutional procedural safeguards,” i. e., established modes of procedure. Id. See Odell v. Hudspeth, 10 Cir., 189 F.2d 300; Alexander v. Daugherty, 10 Cir., 1960, 286 F.2d 645. The petitioner contends, however, that he was not accorded constitutional procedural safeguards under applicable Kansas law, particularly G.S.Kansas 1949, Sec. 62-1304, which provides in material part that “If any person about to be arraigned upon an indictment or information for any offense against the laws of this state be without counsel to conduct his defense, it shall be the duty of the court to inform him that he is entitled to counsel, and give him an opportunity to employ counsel of his own choosing, if he states that he is able and willing to do so. * * * If he is not able and willing to employ counsel, and does not ask to consult counsel of his own choosing, the court shall appoint counsel to represent him unless he states in writing that he does not want counsel to represent him and the court shall find that the appointment of counsel over his objection will not be to his advantage.” The manifest and laudable purpose of this statute is to provide a procedural safeguard for due process by imposing, upon a Kansas sentencing court, the inescapable duty to ensure the substantive right of an accused to the effective assistance of counsel at every step of the proceedings against him, unless he voluntarily and competently waives such right, and the court finds that the assistance of counsel would not be advantageous. Compliance with these “primary rights of an accused” is jurisdictional to the acceptance of a guilty plea. Ramsey v. Hand, 185 Kan. 350, 343 P.2d 225. And, compliance is therefore requisite to due process. Alexander v. Daugherty, supra; Odell v. Hudspeth, supra; Amrine v. Tines, 10 Cir., 131 F.2d 827. Cf. the duty of federal sentencing courts under the Sixth Amendment to the Constitution in Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309; Snell v. United States, 10 Cir., 174 F.2d 580; Cherrie v. United States, 10 Cir., 179 F.2d 94. The record shows that upon arraignment the court carefully read and explained the charges and penalties therefor to the petitioner and then said to him: “Now the Court has discussed with you the crimes with which you are charged, and the penalties, in the event of a plea of guilty or a conviction of said crimes, and the court now inquires of you as to whether or not you have an attorney — a lawyer — to represent you, or if you want the court to appoint an attorney for you.” Whereupon petitioner replied, “I will waive counsel, your Honor.” He then signed a written waiver in which he stated: “ * * * I have been advised by the court as to the nature of the offenses with which I stand charged, and the penalties prescribed by law in the event of a conviction thereof or a plea of guilty thereto, and the further fact that by reason of my financial inability to employ counsel that I have the right to be represented in this action by counsel to be appointed by the court, and with full knowledge of these facts I do hereby give the court to understand and be informed that I do not desire to be represented by counsel, and request the court to accept my plea * * *.” The court then addressed the accused saying, “Mr. Devine, there has just been presented to me — handed to the court, here, a waiver of appointment of counsel in writing. Do you know the contents of the instrument?” The accused replied, “Yes, sir.”' The court continued, “And do you think you are familiar with its contents ?” The accused answered “Yes, sir” and the court then said “Very well. Let the record show that the court finds that the appointment of counsel for the defendant would not be to his advantage.”' It may be that the state trial court did not specifically, and in so many words, inform the accused of his statutory right to the assistance of counsel. But the written waiver did emphatically so inform the petitioner and it is manifestly plain that the accused did know and understand his rights to the assistance of counsel and with such knowledge did understandingly enter his plea of guilty to the charges against him. It is plain, therefore, that the accused was accorded a fair hearing in a court of competent jurisdiction in accordance .with constitutional procedural safeguards. The judgment is affirmed. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_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 DOMAREK v. BATES MOTOR TRANSPORT LINES, Inc. No. 6262. Circuit Court of Appeals, Seventh Circuit. Dec. 3, 1937. • Charles C. Spencer and Richard M. Spencer, both of Chicago, 111., for appellant. Emil C. Wetten, Charles H. Pegler, and Paul N. Dale, all of Chicago, 111., for appellee. Before SPARKS, Circuit Judge, and LINDLEY and BALTZELL, District Judges. BALTZELL, District Judge. On January 9, 1936, appellant filed an amended complaint in the District Court, wherein he sought to recover damages from appellee and one Mike Cartin for personal injuries which are alleged to have been sustained by him on January 16, 1934. It is alleged that the injuries so sustained were the result of the negligent acts of appellee and Cartin in the operation of a certain motortruck upon Paulina street, near its intersection with Monroe street, in the city of Chicago, Ill. The trial of the case was begun on January 19, 1937, at which time Greydon L. Walker, attorney of record for Cartin, suggested to the court the death of Cartin, which he said had occurred on April 23, 1936. A jury was impaneled and, by order of court, the trial proceeded against appellee. At the close of all the evidence appellee entered its motion for a directed verdict in its favor, upon which motion the court reserved its ruling. On January 25, the case was submitted to the jury upon proper instructions of the court. The jury continued its deliberation until some time the following day, at which time it reported that it was unable to agree upon a verdict and was discharged. At the time of the discharge of the jury, the court assigned for hearing on February 13, the motion of appellee for a directed verdict which had theretofore been entered and ruling thereon reserved. On February 25, the District Court entered an order in which it found, as a matter of law, that there was no evidence introduced which would support or justify a verdict in favor of the plaintiff (appellant). It also found, as a matter of law, that the motion of appellee for a directed verdict, which was entered at the close of all the evidence, “should have been granted and that the jury should have been instructed to find the defendant (appellee) not guilty.” A final judgment was entered in favor of appellee, from which judgment appellant is prosecuting this appeal. It is the contention of appellant that the District Court had no authority, under either the Illinois statute or the federal authorities, to enter judgment in favor of appellee after the jury had disagreed and failed to return a verdict. It is his further contention that, even though such authority exists, the evidence required the case to be submitted to the jury for determination. On the other hand, appellee contends that it was within the power of the District Court, and within its jurisdiction, to enter judgment in favor of appellee under the Illinois statute and the federal authorities, even though the jury had disagreed and failed to return a verdict. It further contends that there was no competent evidence supporting the claims of appellant and, therefore, no question of fact for submission to the jury. Two quéstions are here presented for determination. First. Did the District Court have authority to enter judgment for appellee upon its motion for a directed verdict in its favor entered at the close of all the evidence, even though the jury failed to agree and was discharged without returning a verdict? If the first question is answered in the affirmative, the second question necessarily follows ; namely, Was there any substantial evidence to support appellant’s claim, thus requiring the case to be submitted to the jury? In determining the first question, it is necessary to consider both the Illinois statute and the federal authorities bearing thereon. There was enacted by the Legislature of the state of Illinois, in the year 1933, a statute known as the “Illinois Practice Act.” Following is one of the provisions of that act: “Hereafter in all civil actions at law, in courts of record, if either party shall at the close of the testimony, and before the case is submitted to the jury, request the court for a directed verdict in his favor, the court may reserve his decision thereon, and submit the case to the jury under proper instructions as to the law applicable to such case. After the case is thus submitted to the jury, or after receiving and recording the verdict of the jury and before judgment is entered in said case, the court may hear arguments of counsel for and against said request, but in all cases shall receive and record the verdict of the jury as rendered. If the court shall then decide as a matter of law, that the party requesting the directed verdict was entitled thereto, the court shall enter its decision on the record and order judgment in accordance with such decision notwithstanding the verdict entered, and the party against whom such judgment is entered shall have an exception to such action of the court as a matter of course. If such request is denied an exception in favor of the party making such request shall follow as a matter of course.” Subdivision 3 (a), section 192, c. 110, Smith-Hurd Ill.Stats. Subdivision 3 (a), paragraph 196, c. 110, Illinois Revised Statutes, 1935. The Supreme Court of Illinois has promulgated certain rules governing the practice under this statute, among which is rule 22, as follows: “The power of the Court to enter judgment notwithstanding the verdict may be exercised in all cases where, under the evidence in the case, it would have been the duty of the Court to direct a verdict without submitting the case to the jury.” Section 259.22, c. 110, Smith-Hurd Ill.Stats, paragraph 245, c. 110, Illinois Revised Statutes, 1935. It is conceded by appellant that, if a verdict had been returned by the jury in the instant case, the District Court would then have had authority, under the Illinois statute and the rules of the Supreme Court of that state, to hear argument upon the motion for a directed verdict, ruling upon which had been reserved, and to enter a judgment in accordance with the law, notwithstanding the verdict. He contends, however, that since the jury failed to return a verdict, no such authority exists. It is apparent that the question presented for determination requires an interpretation of the section of the Illinois Practice Act, above quoted. It was admittedly the intention of the Legislature, in enacting the statute, to simplify procedure and to expedite litigation. The procedure, as outlined in the statute, is not new, as similar statutes have been in force in oth.er states for several years. It recognizes a well-established practice of permitting the court to reserve its ruling upon questions of law arising during the trial. In discussing this subject, the Supreme Court of the United States, in the case of Baltimore & Carolina Line, Inc., v. Redman, 295 U.S. 654, 55 S.Ct. 890, 892, 79 L.Ed. 1636, said: “At common law there was a well-established practice of reserving questions of law arising during trials by jury and of taking verdicts subject to the ultimate ruling on the questions reserved; and under this practice the. reservation carried with it authority to make such ultimate disposition of the case as might be made essential by the ruling under the reservation, such as nonsuiting the plaintiff where he had obtained a verdict, entering a verdict or judgment for one party where the jury had given a verdict to the other, or making other essential adjustments. “Fragmentary references to the origin and basis of the practice indicate that it came to be supported on the theory that it gave better opportunity for considered rulings, made new trials less frequent, and commanded such general approval that parties litigant assented to its application as a matter of course. But, whatever may have been its origin or theoretical basis, it undoubtedly was well established when the Seventh Amendment was adopted, and therefore must be regarded as a part of the common-law rules to which resort must be had in testing and measuring the right of trial by jury as preserved and protected by that amendment. “This Court has distinctly recognized that a federal court may take a verdict subject to the opinion of the court on a question of law.” At the time of the submission of the instant case to the jury, the court had reserved its ruling upon the motion of appellee for a directed verdict in its favor. The motion presented to the court a legal question which must have been determined by it, and not by the jury. The court had the motion under advisem.ent at the time the jury reported its inability to arrive at a verdict. Furthermore, the order of the court discharging the jury also fixed a time for argument and hearing upon the motion, to which there was no objection by appellant. The statute in question afforded the court an opportunity to study the record and to determine, before making its ruling, whether or not, as a matter of law, there was substantial evidence to support the claim of appellant. It would be a strained construction to say that, had the jury agreed upon a verdict after nineteen hours of deliberation, the court could then have entertained the motion upon which ruling had been reserved, but, since it failed to so agree, it had no such authority. We do not believe that the Legislature so intended. It was no doubt the intention of the Legislature, in enacting the statute, to preserve to the court the authority to rule upon such a motion after the jury had been discharged, regardless of whether or not it had returned a verdict. It cannot be said that such authority is in violation of the Seventh Amendment. Baltimore & Carolina Line, Inc., v. Red-man, supra. The court has ample authority to give a directed verdict .without submitting the case to the jury in the first instance, and it would seem that the fact that it was submitted and not decided by the jury would not deprive the court of after-wards ruling upon a motion which presented solely a question of law upon which its ruling had theretofore been reserved. Appellant, in his reply brief, has called attention to the fact that the Legislature amended the statute in question in July of 1937 specifically empowering the court to act upon a motion for a directed verdict seasonably entered and ruling thereon reserved “if no verdict is returned.” Laws 1937, p. 991, Smith-Hurd Ill.Stats. c. 110, § 192, subd. (3) a. It is the contention of appellant that the amendment indicates clearly that the Legislature did not intend, in the original statute, to thus empower the court. We cannot agree with this contention. It was doubtless the intention of the Legislature, in enacting the amendment, to clarify the original act and to make it declaratory of its original intention. “An amendment to an act may be resorted to for the discovery of the legislative intention in the enactment amended.” 25 R.C.L., Statutes, § 288, p. 1064; In re Hurle, 217 Mass. 223, 104 N.E. 336, L.R.A.1916A, 279, Ann.Cas.1915C, 919. The District Court had authority, under the Illinois statute and the federal authorities, to determine the motion upon which it had reserved its ruling, even though the jury had failed to agree and had been discharged prior to its ruling upon such motion. The next question for determination is whether or not there was any substantial evidence to sustain the claim of appellant, thus requiring the submission of the case to the jury. On January 16, 1934, one Mike Cartin was a resident of the state of Missouri, and was the owner of a truck registered in that state under his1 name. License plates were, issued to him by that state and were attached to the truck at all times in question. Appellee was a corporation engaged in the trucking business, with its headquarters at 3812-24 South Normal avenue, Chicago, 111. It transported a large quantity of freight for others for hire. It owned several trucks and some equipment, but was compelled to engage the services of other truck owners to transport freight for it because its equipment was insufficient to meet its requirements. It owned and operated a garage where supplies were kept and repairs were made of its own equipment. Early in the month of January, 1934, it was contacted by Mike Cartin, at its terminal in Chicago, and inquiry made of it as to whether or not it wanted to hire any extra help and equipment. Inquiry was also made by him at that time as to the amount of compensation to be paid for his services and for the use of his equipment, in the event his services and equipment were needed. He was advised that at times appellee was required to employ extra help and equipment and that the compensation paid for such help and equipment depended upon the size of the cargo and the amount paid by the shipper for transportation. He was also advised that he would be free to haul for anybody else whom he might desire, if he was employed, and that he would not be paid a salary, but would be paid only for the trips made by him. No written contract was entered into between him and appellee, but he did make a few trips for appellee during the first half of January of that year, and a few trips thereafter, using his own truck and providing his own supplies for same. During the time in which he did some hauling for appellee he never kept his truck in its garage, never had any repairs done there, never received any supplies from there, and never purchased any supplies there. Cartin had made a trip to Dayton, Ohio, for appellee, returning on January 16, 1937. After making a delivery immediately following his return from Dayton, he was advised by appellee chat there was nothing further for him to do. He then left its terminal station with his truck empty, and was no longer in its employ during that day. Upon his road home, he stopped at a restaurant at Harrison and Halsted streets, Chicago, where he met an acquaintance by the name of Nick Darrus. He and Darrus left the restaurant together, entered the truck and started for Cartin’s home. En route they drove north on Paulina street to its intersection with Monroe street, where Car-tin reduced his speed before attempting to cross that street. A street car at that time was going south on Paulina street and stopped to permit some passengers to alight before entering Monroe street. A woman who had alighted from the street car passed behind it and attempted to cross to the east side of Paulina street. While in the street, the truck driven by Cartin approached from the south at a moderate rate of speed and struck and injured her. In his effort to avoid striking her, Cartin drove his truck to the extreme right of the street, ran over the curb, upon the sidewalk, and struck a building. Appellant was walking south upon the sidewalk on the east side of Paulina street when he first saw the truck coming toward him. The truck was then about four feet from the building. Appellant jumped in an effort to avoid being struck, but was unable to prevent it. He was struck by the bumper of the truck, pinned against the building, and severely injured. Several persons were near the scene of the accident and later testified as witnesses at the trial of the case. One witness testified that the truck which was being driven by Cartin had painted on its sides the words “Bates Motor Transport,” “Bates Motor Transportation,” or “something like that.” Another witness testified substantially to the same effect. This was all the evidence introduced by appellant in his case in chief which shed any light upon the ownership or control of the truck. Each of these two witnesses was rather vague in his testimony in attempting to describe either the color of the painted words or their size. . Appellee filed a motion for a directed verdict in its favor at the close of appellant’s case, upon the ground that no substantial evidence was introduced in behalf of appellant to support his charges. This motion was denied by the court upon the theory that a presumption of ownership and control of the truck had arisen by virtue of the testimony of the two witnesses as to the words painted on the sides of the truck. The evidence of appellee, which was introduced following the denial of its motion, was uncontradicted upon the question of the ownership and control of the truck at the time of the accident. It showed that the truck was owned by Cartin and was in his exclusive possession and control at that time. . He was engaged in his own business and was transacting no business of any kind or character for appellee. Thus, it will be seen that the evidence of facts introduced by appellee as to the ownership, possession, and control of the truck at the time of the accident was contrary to the presumption which arose from the testimony of the two witnesses. The presumption, which was rebutted by facts, vanished and ceased upon the introduction of evidence of such facts. See Del Vecchio et al. v. Bowers, 296 U.S. 280, 56 S.Ct. 190, 80 L.Ed. 229; Falstaff Brewing Corporation v. Thompson, (C.C.A.8) 89 F.2d 557; Curry v. Stevenson, 58 App.D.C. 162, 26 F.2d 534; Osborne v. Osborne, 325 Ill. 229, 156 N.E. 306. At the close of appellee’s evidence, the District Court permitted appellant to introduce in evidence a letter from appellee, under date of January 27, 1934, addressed to Joseph Steller, the lawyer who then represented appellant, acknowledging receipt of a letter from him under date of January 22, 1934, concerning the accident. This letter in no manner admits liability and cannot possibly be so construed, or have any bearing upon the facts in this case. The District Court also permitted certain exhibits to be introduced in evidence at the same time, which show the filing of a complaint against appellee and Cartin in a state court by the woman who was injured in the accident in question, service of appellee, removal to federal court, etc. One of the exhibits contains a stipulatiofi showing the cause dismissed, “all costs having been paid, and the matters and things in controversy having been settled.” It cannot be seriously contended that this evidence shows any admission upon the part of appellee of any liability, sheds any light upon the ownership, possession, or control of the truck at the time of the accident, or has any connection whatsoever with the instant case. Cartin was not in the employ of appellee at the time of the accident in question, nor was the truck in its possession or control at that time. It, therefore, was not responsible for his acts. Duke Power Co. v. Greenwood County et al. (C.C.A.4) 91 F.2d 665; White v. Firestone Tire & Rubber Co. (C.C.A.4) 90 F.2d 637. There being no substantial evidence in support of appellant’s claim, the court, having authority so to do, properly entered a finding and judgment in favor of appellee. The judgment of the District Court 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	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. UNITED STATES of America, Appellee, v. Calvin L. FLETT, Appellant. No. 86-5121. United States Court of Appeals, Eighth Circuit. Submitted Oct. 14, 1986. Decided Dec. 8, 1986. William L. Thomas, Lake City, Minn., for appellant. John M. Lee, Asst. U.S. Atty., Minneapolis, Minn., for appellee. Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and NICHOL, Senior District Judge. The Honorable Fred J. Nichol, Senior United States District Judge, District of South Dakota, sitting by designation. NICHOL, Senior District Judge. Appellant Calvin L. Flett pled guilty to a two-count indictment charging a violation of 18 U.S.C. App. section 1202(a)(1), possession of a firearm after having been convicted of a felony, and a violation of 18 U.S.C. section 922(g)(1), transportation of a firearm in interstate commerce after having been convicted of a felony. The plea was entered after the district court denied the appellant’s motion to suppress and to dismiss the charges. The appellant’s guilty plea was a conditional plea entered pursuant to Fed.R.Crim.P. 11(a)(2), thus reserving the right of the appellant to appeal the adverse determination of the pretrial suppression motion. The appellant now asserts that the district court erred in denying his motion to suppress the evidence seized during a pat-down search of the appellant. We affirm. I. BACKGROUND This case involves the events surrounding the execution of an arrest warrant that had been issued for a man by the name of Steven Jacobson. Jacobson had been under investigation by the Minnesota Bureau of Criminal Apprehension (BCA) for possible narcotic violations. After the arrest warrant had been issued, three law enforcement officers, one BCA agent and two members of the local sheriff’s department, were assigned the execution of the warrant. The officers met prior to the execution of this warrant to discuss the procedure that was to be followed. During this meeting, the officers shared information among themselves concerning Jacobson and his involvement with a motorcycle gang calling themselves the Sons of Silence. The gang is a national organization and Jacobson was known as the “enforcer” of the local chapter. The two local officers, Deputy Adams and Deputy Holton, were personally acquainted with Jacobson, who owned a local bar where gang members often gathered. These officers were also familiar with the local chapter of the Sons of Silence and although personally unaware of any felonious behavior on the part of the members of the local chapter, had learned that in general the members of the Sons of Silence had access to and had used weapons in the past. Gang members were also known to have been charged with assault and resisting arrest in the past. Specific to the local chapter, Jacobson had been charged with the use of a firearm (shot a neighbor’s dog) and one gang member, Mr. Robert Mann, was currently under investigation for a homicide committed in another state. There is some confusion as to the exact source of this information among the officers. Some of the information was provided by the BCA and some had been gathered from police seminars. The officers did not establish the sources before acting on the information. Prior to leaving to execute the warrant, the officers determined that all males present at the arrest scene were to be subjected to a cursory pat-down search. The officers proceeded to the Jacobson home, a trailer home, arriving there shortly after 8:00 a.m. Outside the trailer, the officers observed Jacobson’s truck, a motorcycle, and an unfamiliar truck with Iowa license plates. As planned, Deputy Holton approached the door with the arrest warrant, BCA agent Comer went to the rear of the trailer and Deputy Adams stood some 15 feet behind Deputy Holton, armed with the squad shotgun. The officers could hear noises from within the trailer. After the second knock, Jacobson answered the door and was told by Deputy Holton that a warrant for his arrest had been issued. There is conflicting testimony on whether Jacobson offered to come outside to discuss the warrant or whether the officers demanded to be let in the residence, but Jacobson did allow Deputy Holton into his trailer home. There was no force used by the officers; Jacobson was not touched in any way and did not object to the entrance of the officers. The appellant and his wife had arrived at the Jacobson home approximately 15 minutes before the officers. The appellant and his wife were friends of Jacobson and were there to visit and to look at antiques. The appellant, his wife, another woman and two small children were seated in the living room area of the trailer when the officers entered. Deputy Holton stayed with Jacobson and went into the dining room area while Deputy Adams entered and remained near the door. The appellant was seated with his back to the door although he did turn to look at Deputy Adams when he entered the trailer. Almost immediately upon entry Deputy Adams asked the appellant to stand and a pat-down search of the appellant was conducted by Deputy Adams. Deputy Adams was not personally acquainted with the appellant. He testified that the appellant, from what he could observe, was not involved in any criminal activity. The appellant did not do anything unusual to arouse the suspicion of the officer. The appellant was dressed in similar attire to that of Jacobson, blue jeans and a T-shirt. The officer also testified that the appellant had long hair and a long beard which was again similar to that of Jacobson and other members of the Sons of Silence. In conducting the search, the officer first felt a hard object in the appellant’s right front pants pocket and a buck knife with a four-inch blade was removed. The appellant was then told to stand with his hands against the wall and the pat-down was continued. Another hard object was felt in the appellant’s rear pocket from which the officer removed a derringer pistol containing live ammunition. The appellant’s first contention is that the law enforcement officers involved in this incident illegally entered the Jacobson trailer and thus any evidence seized while there was in violation of his Fourth Amendment rights. Secondly, the appellant asserts that the pat-down search conducted by Deputy Adams was not based on probable cause and was not justified at its inception and thus was in violation of his Fourth Amendment rights. II. DISCUSSION In the context of a motion to suppress, the general rule of this circuit is that the district court’s determination will be affirmed unless it is clearly erroneous. United States v. Sadosky, 732 F.2d 1388, 1391 (8th Cir.), cert. denied, 469 U.S. 884, 105 S.Ct. 254, 83 L.Ed.2d 191 (1984); United States v. McGlynn, 671 F.2d 1140, 1143 (8th Cir.1982). Under this standard of review, a finding is clearly erroneous when the reviewing court, on the entire record, is left with the definite and firm conviction that a mistake has been committed. Anderson v. City of Beesmer City, 470 U.S. 564, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985), citing United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948). With this standard in mind, each of the appellant’s contentions shall be examined. A. Consent of Entry A search that is conducted pursuant to a valid consent is constitutionally permissible. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973). The validity and voluntary nature of the consent is to be determined from the totality of the circumstances. Id. at 227, 249, 93 S.Ct. at 2047-48, 2059. There is conflicting testimony as to whether Jacobson offered to come outside to discuss the warrant or whether or not he agreed to allow the officers to enter his home. Even with this conflict, it is clear that there is sufficient evidence in the record to support the district court’s factual determination that Jacobson consented to the entry. No physical force was applied to Jacobson prior to entry or during entry; in fact, Jacobson was not even touched. Jacobson himself testified that he did not refuse entry into his home. The district court’s finding that the entry was voluntary and lawful is not clearly erroneous. B. Pat-down Search of the Appellant The appellant’s second contention is that the pat-down search conducted by Deputy Adams was in violation of his Fourth Amendment rights. He claims that the officer did not have probable cause nor did the officer base his suspicion of the appellant on any objective facts from which one could reasonably conclude that the appellant was involved in any criminal activity. The government’s assertion is that the search was a valid protective search under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The government is correct in that, if this search is to be upheld, it must comply with the standards established by the Supreme Court in Terry v. Ohio. In Terry, the Court stated that: in determining whether the seizure and search were “unreasonable” our inquiry is a dual one — whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place. Id. at 19, 88 S.Ct. at 1879. The Court further noted that in order to justify the intrusion, “the police officer must be able to point to specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. at 21, 88 S.Ct. at 1880. Due to the unique nature of this type of search, each case is to be decided on its own facts. Id. at 30, 88 S.Ct. at 1884-85. The Supreme Court has never directly addressed the applicability of the Terry exception to a search of the companion of an arrestee. In Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), the Court refused to uphold the search of patron of a bar who happened to be present when the police arrived to conduct a search of the bar pursuant to a valid search warrant. The Court noted that a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable came to search that person. Id. at 91, 100 S.Ct. at 342 (emphasis added). The Court also refused to find that the search of the person was permissible as a protective search under Terry. The state was unable to articulate any specific facts that would justify the police officer at the scene suspecting that the patron was armed and dangerous. Id. at 93, 100 S.Ct. at 343. Lastly, the Court in Ybarra noted that: [T]he “narrow scope” of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on the premises where an authorized narcotics search is taking place. Id. at 94, 100 S.Ct. at 343. Several circuits have addressed the question of a limited search of the companion of an arrestee. These circuits have upheld such a search finding that: [A]ll companions of the arrestee within the immediate vicinity, capable of accomplishing a harmful assault on the officer, are constitutionally subjected to the cursory “pat-down” reasonably necessary to give assurance that they are unarmed. United States v. Berryhill, 445 F.2d 1189, 1193 (9th Cir.1971). See also, United States v. Poms, 484 F.2d 919, 922 (4th Cir.1973) (per curiam); United States v. Simmons, 567 F.2d 314 (7th Cir.1977). The Sixth Circuit has explicitly rejected this “automatic companion” rule in United States v. Bell, 762 F.2d 495, 498 (6th Cir.1985). The court in Bell found that the “automatic companion” rule extended the Terry requirement of a reasonable suspicion too far. Id. at 499. This rule allows officers the freedom to conduct a cursory pat-down search regardless of the individual circumstances presented in each case. This appears to be in direct opposition to the Supreme Court’s directions in both Terry and Ybarra that the officers articulate specific facts justifying the suspicion that an individual is armed and dangerous. We decline to adopt the “automatic companion” rule. Rather than adopt the “automatic companion” rule, the court in Bell examined the totality of the circumstances in an effort to determine whether the pat-down search of the companion of an arrestee was reasonable. United States v. Bell, 762 F.2d at 499. Following closely the dictates of Terry, the court looked to the specific articulable facts that were known to the officer at the time of the search as well as the reasonable inferences which could be drawn therefrom. Id. at 499, 502. Although the fact of companionship alone could not justify a frisk, the court noted that this fact certainly was one to be considered in determining the overall reasonableness of the officer’s actions. Id. at 500-01. Applying this totality of the circumstances analysis to the facts before us, the record supports the finding that the actions taken by Deputy Adams fall within the guidelines established in Terry. First, the officer knew that an arrest warrant had been issued for Jacobson following an investigation by the BCA. The charges involved narcotic violations. The officer had been involved in law enforcement for eighteen years and testified that situations involving narcotics are treated differently. This court must give due weight to the inferences that can be drawn from the officer’s general experience. Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883; United States v. Bell, 762 F.2d at 500. Second, the officer knew that the subject of the arrest warrant was a known member of a national motorcycle gang which had violent propensities, including charges of using firearms, assault and resisting arrest. In fact, Jacobson was known as the “enforcer” of the local chapter of this gang. Jacobson also had a previous charge filed against him involving the use of a firearm. Third, the officer, upon arriving at the Jacobson residence, was confronted with an unfamiliar automobile with out-of-state license plates. Upon entering the residence, the officer saw the appellant who was dressed in attire similar to that of gang members and whose physical appearance matched that of known gang members (based on the officer’s own personal experience). Again, the factor of similarity of appearance taken alone could not justify a stop and frisk and should be viewed with caution. United States v. Bell, 762 F.2d at 501. However, the factor of similarity of appearance and attire taken together with the location of the appellant in the home of a known gang member charged with a narcotic violation support a reasonable inference that the appellant may be a gang member and may be armed and dangerous. The fact that the appellant made no threatening moves toward the officer or that the officer did not notice any bulge does not lessen the reasonableness of the officer’s actions. The focus of the judicial inquiry is not whether the officer had an indication that the person armed was dangerous, but rather, whether the officer reasonably perceived the subject of the frisk as potentially dangerous. United States v. Tharpe, 536 F.2d 1098, 1100-01 (5th Cir.1976) (upholding the search of the automobile companions following the arrest of the driver. The court held that “where there was a good reason for the officer to apprehend that he was in a position of danger from the companions of an arrestee, that officer’s pat-down search is compatible with Terry ”). The issue is “whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883. This court is not unmindful of its decision in United States v. Clay, 640 F.2d 157 (8th Cir.1981). Although not articulated as such, the court in Clay also applied a totality of the circumstances analysis before it arrived at the conclusion that the pat-down search in Clay was not justified. In Clay, the defendant arrived at the door of a residence that was being searched pursuant to a valid search warrant. The police officer who confronted the defendant at the door immediately asked the defendant to enter and upon entry subjected the defendant to a pat-down search. Id. at 158. This court noted that in order to justify the search, two inquiries had to be made: whether the officer was rightfully in the presence of the party frisked so as to be endangered if that person was armed, and whether the officer had a sufficient degree of suspicion that the party to be frisked was armed and dangerous, (citations omitted). Id. at 159. In Clay, the answers to these inquiries demonstrated that the search of the defendant was in fact unreasonable. Not so in the case at bar. Here Deputy Adams did not have the opportunity to exclude the appellant from the residence and thus avoid contact with him. Rather, the appellant was already present in the trailer and the officer had no choice but to be confronted with the appellant. Although the officers were present on the premises for the execution of an arrest warrant only, this court has already established that the entry into the home was consensual and thus the officer was rightfully in the presence of the appellant. In addition, all of the factors discussed above support the district court’s determination that the officer had a sufficient degree of suspicion that the appellant was armed and dangerous. Thus, by answering the Clay inquiries under the facts of this case, the search was justified. The officers articulated specific facts which along with the reasonable inferences drawn therefrom and the officer’s personal experience, support the district court’s findings. Having found that the district court’s findings are supported by the record, this court is not left with a definite and firm conviction that a mistake has been made and the order denying the motion to suppress is hereby affirmed. . The Honorable Paul A. Magnuson, United States District Judge, District of Minnesota. . A hearing on the motion to suppress was held before the Honorable Floyd E. Boline, United States Magistrate, District of Minnesota, who issued a report and recommendation complete with findings of fact and conclusions of law. Portions of this report and recommendation were objected to by the appellant; however, the district court, after conducting a de novo review of these portions, accepted the magistrate's report and recommendation and denied the appellant’s motion. . Fed.R.Crim.P. 11(a)(2) provides: Conditional pleas. With the approval of the court and the consent of the government, a defendant may enter a conditional plea of guilty or nolo con-tendere, reserving in writing, on appeal from the judgment, to review of the adverse determination of any specific pretrial motion. If the defendant prevails on appeal, he shall be allowed to withdraw his plea. . In fact, it was the policy of the sheriffs department to search all males present at an arrest scene such as this. . The question of the voluntary nature of a consent is a question of fact again subjecting this court to the clearly erroneous standard of review. United States v. Allison, 619 F.2d 1254, 1262 (8th Cir.1980). . Since we have found that the entry was consensual, the question of the appellant’s standing to challenge the constitutionality of search need not be addressed. . This court did cite to United States v. Berryhill in United States v. Clark, 754 F.2d 789 (8th Cir.1985). The court in Clark upheld the search of a companion in an automobile based on a finding of probable cause. The reference to the Berryhill decision was not related to the holding of the Clark case and does not represent this court’s adoption of the Berryhill “automatic companion” rule. . The magistrate did in fact apply this same totality of the circumstances test in his report and recommendation. . It should be noted that this court in no way condones the policy of the sheriffs officer which provides that all males present at arrests such as these are to be subjected to a cursory pat-down search. However, the evidence in this case demonstrates an informed decision to search made on the basis of the information known to the officers as well as the experience of the officer involved. Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
sc_adminactionstate	55	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the state agency associated with the administrative action that occurred prior to the onset of litigation. SCHOOL BOARD OF CITY OF RICHMOND, VIRGINIA, et al. v. STATE BOARD OF EDUCATION OF VIRGINIA et al. No. 72-549. Argued April 23, 1973 Decided May 21, 1973 George B. Little argued the cause for petitioners in No. 72-549. With him on the briefs was Conrad B. Mattox, Jr. William T. Coleman, Jr., argued the cause for petitioners in No. 72-550. With him on the briefs were Jack Greenberg, James M. Nabrit III, Norman J. Chachkin, Louis B. Lucas, William L. Taylor, and Anthony G. Amsterdam. Philip B. Kurland argued the cause for respondents in both cases. With him on the brief were Edward I. Rothschild, Andrew P. Miller, Attorney General of Virginia, William G. Broaddus and D. Patrick Lacy, Jr., Assistant Attorneys General, Frederick T. Gray, Walter E. Rogers, J. Segar Gravatt, R. D. Mcllwaine III, L. Paul Byrne, and J. Mercer White, Jr. Solicitor General Griswold argued the cause for the United States as amicus curiae urging affirmance in both cases. With him on the brief were Assistant Attorney General Pottinger, A. Raymond Randolph, Jr., Brian K. Landsberg, and John C. Hoyle Together with No. 72-550, Bradley et al. v. State Board of Education of Virginia et al., also on certiorari to the same court. Briefs of amici curiae urging reversal in both cases were filed by Stephen J. Poliak, Richard M. Sharp, and David Rubin for the National Education Association, and by Melvin L. Wvlf, Sanford Jay Rosen, and Philip Hirschkop for the American Civil Liberties Union et al. Margie Pitts Hames filed a brief for the Black Parents of Atlanta, Georgia, as amicus curiae urging reversal in No. 72-550. Briefs of amici curiae urging affirmance in both cases were filed by David I. Carpían for the Jewish Rights Council, and by Harold H. Fuhrman for the National Suburban League, Ltd. Charles S. Conley and Floyd B. McKissick filed a brief for the Congress of Racial Equality as amicus curiae urging affirmance in No. 72-549. Per Curiam. The judgment is affirmed by an equally divided Court. Mr. Justice Powell took no part in the consideration or decision of these cases. Question: What is the state of the state agency associated with the administrative action? 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:
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. ILLINOIS v. SOMERVILLE No. 71-692. Argued November 13, 1972 Decided February 27, 1973 Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Blackmun, and Powell, JJ., joined. White, J., filed a dissenting opinion, in which Douglas and Brennan, JJ., joined, post, p. 471. Marshall, J., filed a dissenting opinion, post, p. 477. E. James Oildea, Assistant Attorney General of Illinois, argued the cause for petitioner. With him on the brief were William J. Scott, Attorney General, and James B. Zagel, Assistant Attorney General. Ronald P. Alwin argued the cause for respondent. With him on the brief was Martin S. Gerber. Mr. Justice Rehnquist delivered the opinion of the Court. We must here decide whether declaration of a mistrial over the defendant’s objection, because the trial court concluded that the indictment was insufficient to charge a crime, necessarily prevents a State from subsequently trying the defendant under a valid indictment. We hold that the mistrial met the “manifest necessity” requirement of our cases, since the trial court could reasonably have concluded that the “ends of public justice” would be defeated by having allowed the trial to continue. Therefore, the Double Jeopardy Clause of the Fifth Amendment, made applicable to the States through the Due Process Clause of the Fourteenth Amendment, Benton v. Maryland, 395 U. S. 784 (1969), did not bar retrial under a valid indictment. I On March 19, 1964, respondent was indicted by an Illinois grand jury for the crime of theft. The case was called for trial and a jury impaneled and sworn on November 1, 1965. The following day, before any evidence had been presented, the prosecuting attorney realized that the indictment was fatally deficient under Illinois law because it did not allege that respondent intended to permanently deprive the owner of his property. Under the applicable Illinois criminal statute, such intent is a necessary element of the crime of theft, and failure to allege intent renders the indictment insufficient to charge a crime. But under the Illinois Constitution at that time, an indictment was the sole means by which a criminal proceeding such as this might be commenced against a defendant. Illinois further provides that only formal defects, of which this was not one, may be cured by amendment. The combined operation of these rules of Illinois procedure and substantive law meant that the defect in the indictment was “jurisdictional”; it could not be waived by the defendant’s failure to object, and could be asserted on appeal or in a post-conviction proceeding to overturn a final judgment of conviction. Faced with this situation, the Illinois trial court concluded that further proceedings under this defective indictment would be useless and granted the State’s motion for a mistrial. On November 3, the grand jury handed down a second indictment alleging the requisite intent. Respondent was arraigned two weeks after the first trial was aborted, raised a claim of double jeopardy which was overruled, and the second trial commenced shortly thereafter. The jury returned a verdict of guilty, sentence was imposed, and the Illinois courts upheld the conviction. Respondent then sought federal habeas corpus, alleging that the conviction constituted double jeopardy contrary to the prohibition of the Fifth and Fourteenth Amendments. The Seventh Circuit affirmed the denial of habeas corpus prior to our decision in United States v. Jorn, 400 U. S. 470 (1971). The respondent’s petition for certiorari was granted, and the case remanded for reconsideration in light of Jorn and Downum v. United States, 372 U. S. 734 (1963). On remand, the Seventh Circuit held that respondent’s petition for habeas corpus should have been granted because, although he had not been tried and acquitted as in United States v. Ball, 163 U. S. 662 (1896), and Benton v. Maryland,, 395 U. S. 784 (1969), jeopardy had attached when the jury was impaneled and sworn, and a declaration of mistrial over respondent’s objection precluded a retrial under a valid indictment. 447 F. 2d 733 (1971). For the reasons stated below, we reverse that judgment. II The fountainhead decision construing the Double Jeopardy Clause in the context of a declaration of a mistrial over a defendant’s objection is United States v. Perez, 9 Wheat. 579 (1824). Mr. Justice Story, writing for a unanimous Court, set forth the standards for determining whether a retrial, following a declaration of a mistrial over a defendant’s objection, constitutes double jeopardy within the meaning of the Fifth Amendment. In holding that the failure of the jury to agree on a verdict of either acquittal or conviction did not bar retrial of the defendant, Mr. Justice Story wrote: “We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.” Id., at 580. This formulation, consistently adhered to by this Court in subsequent decisions, abjures the application of any mechanical formula by which to judge the propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial. The broad discretion reserved to the trial judge in such circumstances has been consistently reiterated in decisions of this Court. In Wade v. Hunter, 336 U. S. 684 (1949), the Court, in reaffirming this flexible standard, wrote: “We are asked to adopt the Cornero [v. United States, 48 F. 2d 69,] rule under which petitioner contends the absence of witnesses can never justify discontinuance of a trial. Such a rigid formula is inconsistent with the guiding principles of the Perez decision to which we adhere. Those principles command courts in considering whether a trial should be terminated without judgment to take 'all circumstances into account’ and thereby forbid the mechanical application of an abstract formula. The value of the Perez principles thus lies in their capacity for informed application under widely different circumstances without injury to defendants or to the public interest.” Id., at 691. Similarly, in Gori v. United States, 367 U. S. 364 (1961), the Court again underscored the breadth of a trial judge’s discretion, and the reasons therefor, to declare a mistrial. “Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant’s consent and even over his objection, and he may be retried consistently with the Fifth Amendment.” Id., at 368. In reviewing the propriety of the trial judge’s exercise of his discretion, this Court, following the counsel of Mr. Justice Story, has scrutinized the action to determine whether, in the context of that particular trial, the declaration of a mistrial was dictated by “manifest necessity” or the “ends of public justice.” The interests of the public in seeing that a criminal prosecution proceed to verdict, either of acquittal or conviction, need not be forsaken by the formulation or application of rigid rules that necessarily preclude the vindication of that interest. This consideration, whether termed the “ends of public justice,” United States v. Perez, supra, at 580, or, more precisely, “the public’s interest in fair trials designed to end in just judgments,” Wade v. Hunter, supra, at 689, has not been disregarded by this Court. In United States v. Perez, supra, and Logan v. United States, 144 U. S. 263 (1892), this Court held that “manifest necessity” justified the discharge of juries unable to reach verdicts, and, therefore, the Double Jeopardy Clause did not bar retrial. Cf. Keerl v. Montana, 213 U. S. 135 (1909); Dreyer v. Illinois, 187 U. S. 71 (1902). In Simmons v. United States, 142 U. S. 148 (1891), a trial judge dismissed the jury, over defendant’s objection, because one of the jurors had been acquainted with the defendant, and, therefore, was probably prejudiced against the Government; this Court held that the trial judge properly exercised his power “to prevent the defeat of the ends of public justice.” Id., at 154. In Thompson v. United States, 155 U. S. 271 (1894), a mistrial was declared after the trial judge learned that one of the jurors was disqualified, he having been a member of the grand jury that indicted the defendant. Similarly, in Lovato v. New Mexico, 242 U. S. 199 (1916), the defendant demurred to the indictment, his demurrer was overruled, and a jury sworn. The district attorney, realizing that the defendant had not pleaded to the indictment after the demurrer had been overruled, moved for the discharge of the jury and arraignment of the defendant for pleading; the jury was discharged, the defendant pleaded not guilty, the same jury was again impaneled, and a verdict of guilty rendered. In both of those cases this Court held that the Double Jeopardy Clause did not bar reprosecution. While virtually all of the cases turn on the particular facts and thus escape meaningful categorization, see Gori v. United States, supra; Wade v. Hunter, supra, it is possible to distill from them a general approach, premised on the “public justice” policy enunciated in United States v. Perez, to situations such as that presented by this case. A trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial. If an error would make reversal on appeal a certainty, it would not serve “the ends of public justice” to require that the Government proceed with its proof when, if it succeeded before the jury, it would automatically be stripped of that success by an appellate court. This was substantially the situation in both Thompson v. United States, supra, and Lovato v. New Mexico, supra. While the declaration of a mistrial on the basis of a rule or a defective procedure that would lend itself to prosecutorial manipulation would involve an entirely different question, cf. Downum v. United States, supra, such was not the situation in the above cases or in the instant case. In Downum v. United States, the defendant was charged with six counts of mail theft, and forging and uttering stolen checks. A jury was selected and sworn in the morning, and instructed to return that afternoon. When the jury returned, the Government moved for the discharge of the jury on the ground that a key prosecution witness, for two of the six counts against defendant, was not present. The prosecution knew, prior to the selection and swearing of the jury, that this witness could not be found and had not been served with a subpoena. The trial judge discharged the jury over the defendant’s motions to dismiss two counts for failure to prosecute and to continue the other four. This Court, in reversing the convictions on the ground of double jeopardy, emphasized that “[e]ach case must turn on its facts,” 372 U. S., at 737, and held that the second prosecution constituted double jeopardy, because the absence of the witness and the reason therefor did not there justify, in terms of “manifest necessity,” the declaration of a mistrial. In United States v. Jorn, supra, the Government called a taxpayer witness in a prosecution for willfully assisting in the preparation of fraudulent income tax returns. Prior to his testimony, defense counsel suggested he be warned of his constitutional right against compulsory self-incrimination. The trial judge warned him of his rights, and the witness stated that he was willing to testify and that the Internal Revenue Service agent who first contacted him warned him of his rights. The trial judge, however, did not believe the witness’ declaration that the IRS had so warned him, and refused to allow him to testify until after he had consulted with an attorney. After learning from the Government that the remaining four witnesses were “similarly situated,” and after surmising that they, too, had not been properly informed of their rights, the trial judge declared a mistrial to give the witnesses the opportunity to consult with attorneys. In sustaining a plea in bar of double jeopardy to an attempted second trial of the defendant, the plurality opinion of the Court, emphasizing the importance to the defendant of proceeding before the first jury sworn, concluded: “It is apparent from the record that no consideration was given to the possibility of a trial continuance; indeed, the trial judge acted so abruptly in discharging the jury that, had the prosecutor been disposed to suggest a continuance, or the defendant to object to the discharge of the jury, there would have been no opportunity to do so. When one examines the circumstances surrounding the discharge of this jury, it seems abundantly apparent that the trial judge made no effort to exercise a sound discretion to assure that, taking all the circumstances into account, there was a manifest necessity for the sua sponte declaration of this mistrial. United States v. Perez, 9 Wheat., at 580. Therefore, we must conclude that in the circumstances of this case, appellee’s reprosecution would violate the double jeopardy provision of the Fifth Amendment.” 400 U. S., at 487. III Respondent advances two arguments to support the conclusion that the Double Jeopardy Clause precluded the second trial in the instant case. The first is that since United States v. Ball, 163 U. S. 662 (1896), held that jeopardy obtained even though the indictment upon which the defendant was first acquitted had been defective, and since Downurn v. United States, supra, held that jeopardy “attaches” when a jury has been selected and sworn, the Double Jeopardy Clause precluded the State from instituting the second proceeding that resulted in respondent’s conviction. Alternatively, respondent argues that our decision in United States v. Jorn, supra, which respondent interprets as narrowly limiting the circumstances in which a mistrial is manifestly necessary, requires affirmance. Emphasizing the “ ‘valued right to have his trial completed by a particular tribunal,’ ” United States v. Jorn, supra, at 484, quoting Wade v. Hunter, 336 U. S., at 689, respondent contends that the circumstances did not justify depriving him of that right. Respondent’s first contention is precisely the type of rigid, mechanical rule which the Court had eschewed since the seminal decision in Perez. The major premise of the syllogism — that trial on a defective indictment precludes retrial — is not applicable to the instant case because it overlooks a crucial element of the Court’s reasoning in United States v. Ball, supra. There, three men were indicted and tried for murder; two were convicted by a jury and one acquitted. This Court reversed the convictions on the ground that the indictment was fatally deficient in failing to allege that the victim died within a year and a day of the assault. Ball v. United States, 140 U. S. 118 (1891). A proper indictment was returned and the Government retried all three of the original defendants; that trial resulted in the conviction of all. This Court reversed the conviction of the one defendant who originally had been acquitted, sustaining his plea of double jeopardy. But the Court was obviously and properly influenced by the fact that the first trial had proceeded to verdict. This focus of the Court is reflected in the opinion: “[W]e are unable to resist the conclusion that a general verdict of acquittal upon the issue of not guilty to an indictment undertaking to charge murder, and not objected to before the verdict as insufficient in that respect, is a bar to a second indictment for the same killing. “. . . [T]he accused, whether convicted or acquitted, is equally put in jeopardy at the first trial. . . .” 163 U. S., at 669 (emphasis added). In Downum, the Court held, as respondent argues, that jeopardy “attached” when the first jury was selected and sworn. But in cases in which a mistrial has been declared prior to verdict, the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial. That, indeed, was precisely the rationale of Perez and subsequent cases. Only if jeopardy has attached is a court called upon to determine whether the declaration of a mistrial was required by “manifest necessity” or the “ends of public justice.” We believe that in light of the State’s established rules of criminal procedure, the trial judge’s declaration of a mistrial was not an abuse of discretion. Since this Court’s decision in Benton v. Maryland, supra, federal courts will be confronted with such claims that arise in large measure from the often diverse procedural rules existing in the 50 States. Federal courts should not be quick to conclude that simply because a state procedure does not conform to the corresponding federal statute or rule, it does not serve a legitimate state policy. Last Term, recognizing this fact, we dismissed a writ of certiorari as improvidently granted in a case involving a claim of double jeopardy stemming from the dismissal of an indictment under the “rules of criminal pleading peculiar to” an individual State followed by a retrial under a proper indictment. Duncan v. Tennessee, 405 U. S. 127 (1972). In the instant case, the trial judge terminated the proceeding because a defect was found to exist in the indictment that was, as a matter of Illinois law, not curable by amendment. The Illinois courts have held that even after a judgment of conviction has become final, the defendant may be released on habeas corpus, because the defect in the indictment deprives the trial court of “jurisdiction.” The rule prohibiting the amendment of all but formal defects in indictments is designed to implement the State’s policy of preserving the right of each defendant to insist that a criminal prosecution against him be commenced by the action of a grand jury. The trial judge was faced with a situation similar to those in Simmons, Lovato, and Thompson, in which a procedural defect might or would preclude the public from either obtaining an impartial verdict or keeping a verdict of conviction if its evidence persuaded the jury. If a mistrial were constitutionally unavailable in situations such as this, the State’s policy could only be implemented by conducting a second trial after verdict and reversal on appeal, thus wasting time, energy, and money for all concerned. Here, the trial judge’s action was a rational determination designed to implement a legitimate state policy, with no suggestion that the implementation of that policy in this manner could be manipulated so as to prejudice the defendant. This situation is thus unlike Downum, where the mistrial entailed not only a delay for the defendant, but also operated as a post-jeopardy continuance to allow the prosecution an opportunity to strengthen its case. Here, the delay was minimal, and' the mistrial was, under Illinois law, the only way in which a defect in the indictment could be corrected. Given the established standard of discretion set forth in. Perez, Gori, and Hunter, we cannot say that the declaration of a mistrial was not required by “manifest necessity” or the “ends of public justice.” Our decision in Jorn, relied upon by the court below and respondent, does not support the opposite conclusion. While it is possible to excise various portions of the plurality opinion to support the result reached below, divorcing the language from the facts of the case serves only to distort its holdings. That opinion dealt with action by a trial judge that can fairly be described as erratic. The Court held that the lack of apparent harm to the defendant from the declaration of a mistrial did not itself justify the mistrial, and concluded that there was no “manifest necessity” for the mistrial, as opposed to less drastic alternatives. The Court emphasized that the absence of any manifest need for the mistrial had deprived the defendant of his right to proceed before the first jury, but it did not hold that that right may never be forced to yield, as in this case, to “the public's interest in fair trials designed to end in just judgments.” The Court’s opinion in Jorn is replete with approving references to Wade v. Hunter, supra, which latter case stated: “The double-jeopardy provision of the Fifth Amendment, however, does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed. There may be unforeseeable circumstances that arise during a trial making its completion impossible, such as the failure of a jury to agree on a verdict. In such event the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again. And there have been instances where a trial judge has discovered facts during a trial which indicated that one or more members of the jury might be biased against the Government or the defendant. It is settled that the duty of the judge in this event is to discharge the jury and direct a retrial. What has been said is enough to show that a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.” Wade v. Hunter, 336 U. S., at 688-689 (footnote omitted; emphasis added). The determination by the trial court to abort a criminal proceeding where jeopardy has attached is not one to be lightly undertaken, since the interest of the defendant in having his fate determined by the jury first impaneled is itself a weighty one. United States v. Jorn, supra. Nor will the lack of demonstrable additional prejudice preclude the defendant’s invocation of the double jeopardy bar in the absence of some important countervailing interest of proper judicial administration. Ibid. But where the declaration of a mistrial implements a reasonable state policy and aborts a proceeding that at best would have produced a verdict that could have been upset at will by one of the parties, the defendant’s interest in proceeding to verdict is outweighed by the competing and equally legitimate demand for public justice. Wade v. Hunter, supra. Reversed. Ill. Rev. Stat., c. 38, §16-1 (d)(1) (1963). See Constitution of Illinois, Art. II, § 8 (1967). When the State Constitution was amended in 1970, this provision was retained as the first paragraph of Art. I, § 7. Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
songer_usc1	28	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 v. Jerome A. STEVENS, Appellant. No. 11519. United States Court of Appeals Third Circuit. Submitted May 20, 1955. Decided Aug. 4, 1955. Jerome A. Stevens, pro se. Raymond Del Tufo, Jr., U. S. Atty., Newark, N. J., for appellee. Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges. KALODNER, Circuit Judge. Two relatively simple issues are presented for our determination but their disposition inescapably entails the tedious unravelling of a tangled skein of procedure both in the court below and here. It appears that on May 14, 1954, the appellant, Jerome A. Stevens, following a jury verdict of guilty, was sentenced by the United States District Court for the District of New Jersey to imprisonment for twenty-five years on two counts of an indictment charging bank robbery, based on 18 U.S.C. § 2113(a, d). Stevens had been represented at his trial by a court-appointed attorney, William D. McGlynn, Esq. Subsequent to his sentencing, Stevens pro se, on August 23, 1954, filed an “Affidavit in forma pauperis, in support of Motion requesting Authorization for records * * * to be furnished without cost.” The “records” sought included a transcript of the trial. On September 8, 1954, before disposition of this motion, Joseph F. Walsh, Esq. (who apparently had been designated by the District Court as Stevens’ counsel in place of McGlynn), filed “Notice of Motion” stating that he would, on September 27th, move the court for the setting of a date to hear a motion to vacate and set aside Stevens’ sentence, under 28 U.S.C. § 2255. On September 20th, Stevens interposed another “Motion and Supporting Affidavit to Furnish Defendant Certain Records at Expense of the United States” stating therein that he required the trial-transcript in order to prepare and file a motion to vacate sentence. In this paper Stevens stated that his motion to vacate would be based on these contentions: he had not been adequately represented by his court-appointed trial counsel; he had not been properly arraigned; he had not been present at every stage of the proceeding, etc. etc. On October 11th, Stevens filed “Notice of Election to Act as Own Attorney, etc.” In it he stated that he had notified Walsh that he did not desire to have him as his counsel; that he had not been notified by the Court that it had appointed Walsh to act as his counsel; that he repudiated Walsh’s representation and particularly Walsh’s “Notice of Motion” (to vacate sentence) of September 8th. The docket of the District Court discloses that on October 25th there was “Hearing on motion to vacate sentence. Ordered Mr. Walsh relieved of his assignment as counsel, Decision reserved.” The docket further discloses that on October 27th the District Court “Ordered minutes of 10-25-54 amended to reflect that only proceeding before the Court on that date was application by Joseph F. Walsh to be relieved as counsel for defendant, which application was granted.” On October 28th, the District Court filed “Opinion and Order” which purported to dispose of a motion by Stevens to vacate sentence and another motion for a transcript of the record without cost. On November 15, 1954, Stevens filed “Motion to Amend Order of October 28, 1954” asserting that the court had “erroneously” stated therein that he had filed a motion to vacate sentence and, declaring that the only motion before the court has been his motion for a transcript of the record without cost. On November 17, 1954, the District Court filed “Memorandum and Order” specifically “denying the application of the defendant * * * for a copy of the transcript of the record of his trial, at the expense of the United States.” The Court however, made no disposition of Stevens’ application to amend its Order of October 28th by striking from it all reference to a motion to vacate sentence. This was the posture of the record below when, on December 10th the District Court ordered that leave be granted to Stevens “to file a notice of appeal from the orders of October 28th, 1954 and November 17th, 1954” without payment of costs. On the same day the Deputy Clerk of the District Court filed “Notice of Appeal” from the Orders of October 28th and November 17th, of his own accord, as a protective measure. To add filip to this situation, Stevens on December 20th filed his own “Notice of Appeal” limiting it to the District Court’s order of November 17th, which related only to the denial of his request for a trial transcript, and further, on December 28th, Stevens filed “Motion to Amend Notice of Appeal filed December 10, 1954, etc.” (the Deputy Clerk’s Appeal) by deleting that part of the Notice relating to the Order of October 28th which had denied motion to vacate sentence. On January 3rd, 1955, the District Court entered an order denying Stevens’ “Motion to Amend Notice of Appeal filed December 10th.” First, as to the denial of the 'motion for a transcript of the trial: The District Court premiséd its denial of this motion, in its October 28th “Opinion and Order”' (unreported), on the limited ground that “nothing in-the applicant’s moving papers- indicates the necessity for same.” This premise, however, falls of its own weight because Stevens had urged several grounds for relief whose existence or non-existence could have been established only by the transcript of the record— such as failure of his counsel to object to a “patently erroneous charge” — and the record transmitted-to this court fails to demonstrate that a transcript was ever made of the trial proceedings. While the District Court did not do so we must, however, direct our consideration to the fundamental question as to whether statutory authority exists' for the furnishing of a transcript' at government expense under the circumstances here- presented. The relevant statutory provision is 28 U.S.C. 753(f) which provides: “* * * Fees for transcripts furnished in criminal or habeas corpus proceedings to persons .allowed to sue, defend, or appeal in forma pauperis shall be paid by the United' States out of money appropriated for that purpose.” (Emphasis supplied.) We are of the opinion that the language of section 753(f) makes it clear that a transcript may be furnished at government expense to one authorized to appeal in forma pauperis only with respect to the proceedings involved in the judgment or order appealed from. In other words, the government is authorized to pay for a transcript only to prosecute an appeal in forma pauperis from a proceeding of which the transcript is a record. Stevens has moved for a transcript for the purpose, not of making an appeal, but of instituting a collateral attack. It is clear that under section 753(f) a transcript of Stevens’ original trial could have been furnished him at government expense for the purpose of taking an appeal to this court from his conviction, if he had been authorized to take the appeal in forma pauperis. It is equally clear that a motion under section 2255, being a collateral attack, is the beginning of an new proceeding, Bruno v. United States, 1950, 86 U.S.App.D.C. 118, 180 F.2d 393, and see United States v. Hayman, 1952, 342 U.S. 205, 222, 72 S.Ct. 263, 96 L.Ed. 232, and therefore a transcript of the trial may not be obtained at government expense for the purpose of its preparation. 28 U.S.C. § 1915(b) prior to October 31, 1951, contained a provision similar to but not identical with that of section 753(f) authorizing the court to direct that a transcript Of the testimony be furnished at the expense of the United States to a litigant allowed to proceed in forma pauperis. By the Act of October 31,1951, 65 Stat. 727, this particular provision was deleted from section 1915(b). The cases under the subsection as it originally stood are therefore no longer authoritative but they nonetheless are persuasive in support of the government’s position. United States v. Carter, D.C. D.C.1950, 88 F.Supp. 88; United States v. Bernett, D.C.Md.1950, 92 F.Supp. 26, affirmed per curiam without discussion of this point, 4 Cir., 1950, 183 F.2d 1024; Cohen v. United States, D.C.E.D.Mich. 1954, 123 F.Supp. 717; and see United States v. Nystrom, D.C.W.D.Pa.1953,115 F.Supp. 500, 503. We conclude that no statutory authority exists for the preparation of a transcript at the expense of the United States in this case. Coming now to the mooted “motion to vacate sentence”; Section 2255 provides: “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” The District Court premised its denial of this motion on the ground “The motion, files and records of the case render a hearing unnecessary and indicate conclusively that the defendant is not entitled to the relief for which he prays in his moving papers”. The “motions, files and records” available here, far from showing conclusively that Stevens is entitled to no relief, are not in any way informative on the issues raised by Stevens. The District Court apparently did not make use of the provisions of 28 U.S.C. 753(b) allowing the District Judge to require the official reporter to transcribe his notes and deliver them to him. And even had this course been pursued the case could not have been disposed of without a hearing because the transcript could not have supplied any information on many of Stevens’ contentions. It was error, therefore, not to provide a hearing as set out in Section 2255. James v. United States, 5 Cir., 1949, 175 F.2d 769; Davis v. United States, 8 Cir., 1954, 210 F.2d 118, 122; Martin v. United States, 8 Cir., 1952, 199 F.2d 279. For the reasons stated the order of November 17, 1954 will be affirmed; the order of October 28, 1954 insofar as it relates to the denial of the motion to vacate sentence will be reversed and the cause remanded with directions to proceed in accordance with this opinion. . Tn the interest of justice and to “clear the decks” we deem it desirable and necessary to deal with the District Court’s denial of the motion to vacate although Stevens did not, in the appeal which he filed pro se, advert to such denial. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_counsel2	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party Gloria F. ANDERBERG, as Conservatrix of the Estate of Steven B. Stichler; and Gloria F. Anderberg, individually, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. No. 82-2014. United States Court of Appeals, Tenth Circuit. Oct. 14, 1983. Charles T. Trowbridge, Denver, Colo., for plaintiffs-appellants. Janis E. Chapman, Asst. U.S. Atty., Denver, Colo. (Robert N. Miller, U.S. Atty., Denver, Colo., was on the brief), for defendant-appellee. Before SETH, Chief Judge, and DOYLE and MILLER, Circuit Judges. Of the United States Court of Appeals for the Federal Circuit, sitting by designation. JACK R. MILLER, Circuit Judge. This appeal is from an order of the district court, entered on the Government’s motion for summary judgment, dismissing, for lack of jurisdiction, appellant’s action under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680. Her administrative claim for damages was presented to the Veterans Administration in Denver, Colorado, which denied the claim by registered letter dated and mailed on October 30,1980, and received on November 3. She sought reconsideration by a letter dated and sent by regular mail on April 30, 1981, and received in the Office of District Counsel on May 1. The district court held that the request for reconsideration was not timely-filed, so that the court did not have jurisdiction. We affirm. The Government points out that if appellant had chosen to file her claim in the district court after the initial denial she was required to do so “within six months after the date of mailing ... of notice of denial of the claim by the agency to which it was presented,” citing 28 U.S.C. § 2401(b); and that 28 C.F.R. § 14.9(b) provides that a request for reconsideration shall be filed “prior to the expiration of the 6-month period provided in 28 U.S.C. 2401(b) ...” It is the Government’s position that “filing” means receipt by the agency and, accordingly, appellant’s request for reconsideration was not timely filed. Appellant argues that “filing” means mailing, so that her request was timely; further, that since the statute provides that mailing of notice of denial begins the six-month limitation period and since this is made applicable by 28 C.F.R. § 14.9(b) to requests for reconsideration, mailing of a request for reconsideration, rather than receipt by the agency, should determine the end of the six-month limitation period, so that her request was timely; otherwise, there was no full six-month period, and the Government would have its cake and eat it too. Thus, the issue is whether mailing of a request for reconsideration or receipt of the request by the agency constitutes “filing” for purposes of 28 C.F.R. § 14.9(b). We are satisfied that the Government’s position must prevail. The statute, 28 U.S.C. § 2401(b), refers to “denial of the claim by the agency to which it was presented.” (Emphasis added.) 28 C.F.R. § 14.2(a) provides: For purposes of the provisions of 28 U.S.C. § 2401(b) ... a claim shall be deemed to have been presented when a Federal agency receives from a claimant ... an executed Standard Form 95 or other written notification of an incident ... accompanied by a claim for money damages in a sum certain .... [Emphasis added.] Nowhere is there any indication that what constitutes presentment of a request for reconsideration is different from presentment of the claim itself. Moreover, appellant’s approach would tend to violate the principle that “limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.” Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957). The limitation period in 28 U.S.C. § 2401(b) is not to be extended for equitable considerations. Childers v. United States, 442 F.2d 1299, 1303 (5th Cir. 1971), cert. denied, 404 U.S. 857, 92 S.Ct. 104, 30 L.Ed.2d 99 (1971). See also Frey v. Woodard, 481 F.Supp. 1152, 1153 (E.D.Pa. 1979). The order of the district court is affirmed. . A second letter requesting reconsideration and also dated April 30, 1981, was sent by certified mail and received in the Office of District Counsel on May 4, 1981. As will appear, it is unnecessary to consider this letter for purposes of this appeal. . We note that 39 C.F.R. § 912.5 provides: “For purposes of this part, a claim [against the Postal Service] shall be deemed to have been presented when the U.S. Postal Service receives from a claimant ... an executed Standard Form 95, Claim for Damage or Injury ... accompanied by a claim for money damages in a sum certain .... ” It would seem desirable that 28 C.F.R. § 14.9(b) be amended to contain similar language to expressly reflect the Government’s practice. . We are not unmindful of possible hardship arising from strict construction of a period of limitations, but remedial action lies with the Congress through statutory change or a private bill for relief. Compare Steele v. United States, 390 F.Supp. 1109, 1112 (S.D.Cal.1975). 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_othadmis	A	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile, (or did ruling on appropriateness of evidentary hearing benefit the defendant)?" 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. George S. CARTER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee v. CITY PRODUCTS CORPORATION, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee v. The PILSENER BREWING COMPANY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee v. John J. FELICE, Defendant-Appellant. Nos. 14721-14724. United States Court of Appeals Sixth Circuit. Jan. 9, 1963. William F. Snyder and Edwin Knachel, Cleveland, Ohio (Edwin Knachel, William F. Snyder, Marshman, Hornbeck, Hollington, Steadman & McLaughlin, Cleveland, Ohio, on the brief), for defendant-appellant Carter. Benjamin C. Boer, Cleveland, Ohio (Benj. C. Boer, Boer, Mierke, McClelland & Caldwell, Cleveland, Ohio, Sidney De Lamar Jackson, Jr., Baker, Hostetler & Patterson, Cleveland, Ohio, on the brief), for defendants-appellants City Products and Pilsener Brewing Co. Moses Krislov Cleveland, Ohio, P. D. Maktos, Washington, D. C. (Protagoras Dimitidos Maktos, C. Thomas Zinni, Boston, Mass., on the brief; Harry Weinstock, New York City, of counsel), for defendant-appellant John J. Felice. Philip Wilens, Washington, D. C. (Merle M. McCurdy, U. S. Atty., Cleveland, Ohio, John F. Lally, Atty., Criminal Division, Dept. of Justice, Washington, D. C., on the brief), for plaintiff-appellee. Before CECIL, Chief Judge, and MILLER and O’SULLIVAN, Circuit Judges. O’SULLIVAN, Circuit Judge. This matter involves the appeals of two corporations and two individuals from judgments of conviction for violating § 302(a) and (b) of the Taft-Hartley Act (Title 29, U.S.C.A., § 186(a) and (b)). These sections make it a crime, in industries affecting commerce, for an employer to pay any money to an official of a union representing its employees and for such union official to accept the money. (§ 186(a) (b), Title 29, U.S.C.A.). Exclusions from the Act’s applicability are not relevant here. Defendant-appellant Pilsener Brewing Company operated a brewery in Cleveland, Ohio. It was a wholly-owned subsidiary of defendant-appellant City Products Corporation, whose main offices were in Chicago. Defendant-appellant George S. Carter was, at the time of the alleged offense, president and chief executive officer of Pilsener, as well as a member of its board of directors. He was also a vice-president of City Products. Defend" ant-appellant John J. Felice was, at the time involved, the president and general manager of Teamsters Union Local Nov 293, which was the bargaining representative of some of Pilsener's employees. City Products and Pilsener were engaged in an industry affecting commerce. An indictment returned December 16, 1960, in its first count, charged that on April 17, 1956, City Products, Pilsener, and George S. Carter unlawfully, wilfully and knowingly paid $4,500.00 to defendant Felice and, in its second count, that Felice unlawfully, wilfully and knowingly received such money from City Products, Pilsener and George S. Carter, all in violation of the mentioned statute. All defendants waived jury trial and the cause was tried to a United States District Judge sitting in Cleveland, Ohio. The District Judge found all defendants guilty as charged and imposed the following sentences: City Products and Pilsener were fined $10,000.00 and $4,500.00, respectively; George S. Carter was sentenced to 90 days in jail; and John J. Felice was sentenced to 90 days in jail and fined the sum of $4,500.00. The respective appellants assert varying grounds for reversal, but common to all is a claim that the evidence was not sufficient to support a finding of guilt. The factual story of this case, which for the most part is undisputed, is as follows. For some years prior to April, 1956, Carter, as president of Pilsener and Felice as head of the Teamster Local, participated in the labor negotiations between Pilsener and the Teamsters Union. Each signed the resulting bargaining agreements in their respective capacities for Pilsener and Teamsters. While Carter and Felice described their relationship as that of intimate and social friends, their association and acquaintance had beginning in labor negotiations in which they had both pai'ticipated. Sometime prior to April 17, 1956, Felice arranged to purchase two homes, one for himself and one for his son, who was vice-president of the Teamster local. The price to be paid for these houses was $79,000.00. Felice expected to finance such purchase by a mortgage on the houses being purchased as well as a mortgage on the home then owned by him. In addition to the proceeds of such mortgages, Felice was required to put up some cash. Felice told Carter of his contemplated acquisition of the new homes and said that he would likely need some cash to close the purchase. As testified by Felice, Carter replied, “If you do, see me.” Later Felice told Carter that he needed $4,500.00. Carter according to Felice, replied, “Give me a few days. See me at the office.” (Pilsener office) Carter’s account of these preliminary talks was that in telling Carter of his planned purchase, Felice said that “he might need a few thousand dollars for a short period of time” and “I said ‘all right’ or something to that effect.” Carter’s further testimony was that when later he was told of the amount needed, he stated to Felice, “All right. Will you give me a couple of days and I will see what I can do about it.” We mention these details because they bear on Felice’s claim, later discussed, that he did not know the source of the money he took, other than his claimed assumption that it came from Carter’s personal funds. Following the above talks, Carter, according to his testimony, called one William Zeidler at the Chicago office of City Products and told Zeidler that Felice wanted to borrow some money and asked whether “we should loan him the money.” The next day, again as stated by Carter, Zeidler called him back and said, “Go ahead, make the loan.” Zeidler, who was vice-president and treasurer of City Products, as well as secretary and director of Pilsener, denied approving the transaction as claimed by Carter. There was evidence that many transactions by Pilsener were cleared in advance with City Products. On April 16, 1956, Carter advised the controller of Pilsener, one Nero, that Pilsener was making a loan to Felice of $4,000.00. He advised Nero that a company check should not be used to transfer the funds, but that payment was to be made with an official bank check or in cash. Pursuant to such instructions, Nero issued Pilsener’s check for $4,000.00 to the Cleveland Trust Company and with it purchased a Cleveland Trust Company “official check” payable to the order of John Felice. On April 17, 1956, Nero delivered the above check and a blank promissory note to Carter who then advised that the amount should be $4,-500.00. Five hundred dollars was withdrawn from petty cash and given to Carter. Later that day, Felice arrived at the Pilsener office and was given the $4,000.00 check and $500.00 in cash. He signed a promissory note, which had been prepared by Carter. The note was payable to Carter and called for repayment of $4,500 ninety days after date, with interest at the rate of three percent per annum. Felice said there was no discussion as to when he was to repay the loan or the interest to be charged. He only - was aware of the amount of the note and that Carter’s name was on it. He said, “Our understanding was that when I got it I would pay him,” and that, “I told him that whatever interest he would charge, that I would take care of it.” In directing and completing the transaction, Carter told Pilsener’s controller, Nero, that the transaction was to be kept “confidential” and that no attempt should be made to collect the note; that he, Carter, “would handle it.”- The note to Carter was not endorsed by him to Pilsener, but was delivered to its controller, retained by it and entered on the company’s books under notes receivable. The $4,500 received by Felice was, as a part of the, cash required, delivered to the bank at which his purchase of the two houses was completed. Although carried as a note receivable on the company s books and appearing as past due after its maturity, no effort was ever made to collect it and in 1959 it was charged off. This was done by direction of the then officials of the Pilsener division of City Products, the Pilsener corporation having in June, 1956, been dissolved and its business thereafter carried on as the Pilsener Brewing Division of City Products. Notwithstanding such charge-off, it was not claimed as a bad debt deduction on the income tax return of City Products. Pilsener Brewing Division of City Products will also be referred to herein as Pilsener. Carter left the employ of Pilsener in 1958 and became associated with another brewery in Cleveland. Prior to his leaving Pilsener, and at the request of its auditors, Carter signed a paper reciting that although “not endorsed to the company for bona fide business reasons” the Felice note was the property of Pilsener. In 1959, when his 1956 tax return was under review, Felice advised Internal Revenue agents that the $4,500.00 received by him in 1956 was a loan obtained from Carter. In 1960, however, under advice of counsel, he consented to such amount being added to his 1956 income and paid the resulting tax deficiency. He testified that he argued the point with his attorney, but followed his advice in allowing its inclusion in his 1956 income. In 1960, when first asked by FBI agents about the transaction of 1956, Carter denied giving or making a loan of $4,500.00 to Felice. As a witness before the Grand Jury, he recanted such denial and told of making the payment to Felice, claiming that it was a bona fide loan to Felice from Pilsener. Felice testified that he assumed that the claimed loan was made to him from Carter’s own funds. Carter testified that he did not tell Felice that the money came from Pilsener and that Felice never made any inquiry as to its source. There was no direct evidence that Felice knew that the money paid to him came from Pilsener and a finding of such knowledge'had to rest upon circumstantial evidence. At no time in the intervening years between April, 1956, and 1960, did Felice do anything about paying the principal or the1 interest due on the money which he claimed he borrowed. There was no evidence that the interest payable on the note was ever reported as accrued income by Pilsener. Felice testified that on one occasion, the time and place of which he could not recall, he mentioned to Carter that he “would like to make some arrangement to pay back that money” and that Carter replied, “What are you worrying about? Have I asked you for it?” Carter could recollect no such conversation. Aside from this last mentioned conversation, neither Carter, Felice, nor anyone connected with City Products or Pilsener gave any explanation as to why no effort to collect or offer to repay this alleged loan was ever made. In the District Judge’s opinion finding all defendants guilty, he found as a factual conclusion that the payment of $4„-500.00 to Felice was not a loan, stating' “That the defendants from the very beginning of this transaction did not look upon or intend this transaction to be a loan; that Felice never intended to repay the money received or any interest thereon; and that the defendants did not expect to be repaid.” The District Judge expressed his further opinion that even if the transaction were assumed to be a loan “the transaction constituted the payment and receipt of a thing of value and a violation of Section 186, Title 29, USCA.” We will discuss such of the asserted grounds for reversal as we consider require discussion under the subject headings and in the order following: 1. Would a bona fide loan violate the statute? The government asserts that even if the involved transaction was, in truth, a loan, the statute was violated. We cannot agree. The conduct proscribed by such statute (§ 302, Labor-Management Relations Act of 1947, § 186 U.S.C.A. Title 29) is for an employer “to pay or deliver, or to agree to pay or deliver, any money or other thing of value” to a representative of its employees’ union and for such a union representative “to receive or accept, or to agree to receive or accept, from the employer * * * any money or other thing of vahee.” Were we here construing a statute relating to civil rights or remedies, it might be permissible to spend time considering whether, by construction, the word “loan” could be added to actual words employed. Such a meaning, however, does not emerge with the clarity which should be found in criminal statutes. Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840, 849. We think it sufficient to refer to the language of Judge Martin, writing for this court in North American Van Lines, Inc. v. United States, 243 F.2d 693, 696, 697 (C.A.6, 1957). Citing decisions of the United States Supreme Court, we there said “Impossible standards of specificity are not required, but the language of the statute (charging a criminal offense) must convey sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” The statute here involved created a new offense not theretofore known to statute oy common law. The coverage of such a statute may not be extended beyond what clearly appears from its explicit language. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322; McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816. We do not find, in the language employed, a Congressional intent to make a bona fide loan between parties described in the statute a crime. Congress, itself, recognized that it had not clearly expressed such intent when, in 1959, it amended the involved sections of the Act to specifically cover loans and lending (Sec. 505 of the Labor-Management Reporting and Disclosure Act of 1959). Such amendment was Congressional recognition that loans had not theretofore been covered. United States v. Chase, 135 U.S. 255, 262, 10 S.Ct. 756, 34 L.Ed. 117; United States V. Curtis, 107 U.S. 671, 676, 2 S.Ct. 507. 27 L.Ed. 534; Fisher Flouring Mills Co v. United States, 270 F.2d 27, 28 (C.A.9, 1959). Unless there was evidence from which the trier of the facts, the District Judge, could find, beyond a reasonable doubt, that the clothing of the alleged loan was a sham to hide an outright payment, the convictions must be set aside. 2. Was the alleged loan, in true fact, an outright payment? We have, in some detail, recited the facts disclosed by the evidence because we believe such recital provides the answer to the question raised. Proof of criminal conduct may be made out by circumstantial evidence. United States v. Comer, 288 F.2d 174, 175 (C.A.6, 1961); Holland v. United States, 348 U.S. 121, 139-140, 75 S.Ct. 127, 99 L.Ed. 150. While the circumstantial proof, with the inferences drawn therefrom, must be sufficient to warrant a finding of guilt beyond a reasonable doubt, such proof need not, as claimed by appellant, be such as to exclude every reasonable hypothesis other than that of guilt. Holland v. United States, supra, p. 139, 75 S.Ct. 137; United States v. Thomas, 6 Cir., 303 F.2d 561, 562, 563. In determining whether the evidence was sufficient to withstand a motion for acquittal, the evidence must be viewed in the light most favorable to the prosecution. This rule applies to a case tried to a District Judge as well as to a case tried to a jury. Battjes v. United States, 172 F.2d 1, 5 (C.A.6, 1949). While there was some disagreement between the witnesses on some details, the facts which we recite could be found to be true. These facts, plus justifiable inferences drawn therefrom, were, in our opinion, sufficient to justify the District Judge’s finding that, as a matter of fact and beyond a reasonable doubt, the alleged loan was in reality an outright payment to Felice, known and intended to be such by the defendants Pilsener Brewing Co., Carter and Felice. This was so at the close of the government’s case, as well as at the close of proofs. The motions for acquittal, made at these times by defendants Carter, Felice and Pilsener Brewing Company, on the ground that the government’s proof was insufficient to permit a finding that the payment to Felice was not a loan, were properly denied. We exclude defendant City Products from our holding in this regard because, for reasons later discussed, we find it necessary to reverse the conviction of that corporation. 3. Guilt of City Products Corporation. City Products owned all of the stock of its subsidiary, Pilsener Brewing Company. It had no employees, however, who were members of Teamsters Local 239. The indictment, in effect, charged that on or about April 17, 1956, City Products, an employer of employees, paid the sum of $4,500.00 to a union representative of “the aforesaid employees.” No such case was proved against City Products. City Products had no employees who could be said to be “the aforesaid employees” described in the indictment. City Products acquired the assets of Pilsener Brewing at the time the latter was merged with the parent. Such acquisition would not make it chargeable, as a principal, for a crime previously committed by Pilsener or Carter. Neither does the conduct of City Products subsequent to April 17, 1956, in failing to press for repayment of the spurious loan made to Felice, or its act in charging off the Felice note, render it guilty of the charged offense. Whether such conduct would render City Products guilty of being an accessory after the fact to Carter, Felice and Pilsener, is not before us. No such charge under Section 3, Title 18, U.S.C.A., was made in the indictment. The government urges, however, that we should hold that City Products was an employer of Pilsener’s union member employees, citing our decision in N. L. R. B. v. Swift & Co., 127 F.2d 30 (C.A.6, 1942) and other cases involving the enforcement of various provisions of the National Labor Relations Act. We find none of these cases apposite here. It is further argued that because of testimony by Carter that he got the permission of Zeidler, secretary of City Products, to make the alleged loan to Felice and because the District Judge, despite Zeidler’s denial, found as a fact that Carter “was authorized and directed by William Zeidler, a proper official of the City Products, to engage in the tram-action here in dispute, prior to the delivery of the money to Felice,” City Products is guilty as a principal. It is clear, however, that the only evidence of Zeidler’s participation in the events occurring prior to and at the time of the alleged offense was his consent to Pilsener Brewing Company making a loan to Felice. We have held that a bona fide loan to a union representative was not proscribed by the statute, as it read in 1956. We do not believe the evidence would justify an inference that Zeidler, at the time he gave his consent, knew that such loan was but a cover for an illegal payment to Felice. City Products’ motions for acquittal should have been granted. This disposition of City Products’ appeal makes it unnecessary to discuss other errors assigned by it. 4. Criminal responsibility of the corporation, Pilsener Brewing Company. The indictment was brought under Section 186(d), Title 29, U.S.C.A., which provides that “any person who wilfully violates any of the provisions of this Section, etc., * * * ” shall be guilty of a crime. Defendant Pilsener urges that under the facts of this case it, a corporation, cannot be held criminally responsible for the single criminal act of its president, George S. Carter. We will not here enter into extended discussion of the interesting subject of criminal responsibility of corporations. While concise and dogmatic rules cannot be distilled from the decisions, the uncertainties that long attended this subject have been cleared away to the extent that in this day we know that a corporation, through the conduct of its agents and employees, may be convicted of a crime, including a crime involving knowledge and wilfulness. New York Central & Hudson River Railroad Company v. United States, 212 U.S. 481, 29 S.Ct. 304, 53 L.Ed. 613; United States v. Union Supply Company, 215 U.S. 50, 55, 30 S.Ct. 15, 54 L.Ed. 87; United States v. Illinois Central R. Co., 303 U.S. 239, 244, 58 S.Ct. 533, 82 L.Ed. 773; United States v. Nearing et al., 252 F. 223, 231 (S.D.N.Y.1918); Continental Baking Company v. United States, 281 F.2d 137, 149, 150, 151 (C.A.6, 1960); 10 Fletcher Cyc. Corporations, § 4944, p. 873 (1961 Edition). It is essential, however, to corporate guilt, that its officer’s or agent’s illegal conduct be related to and done within the course of his employment and have some connection with the furtherance of the business of such corporation. Writing for this court in Continental Baking Company v. United States, supra, Judge Weick said: “This question of corporate responsibility for the acts of an agent is a most troublesome one. It involves issues of ‘authority’ and ‘acts within the scope of employment.’ The language of the decided cases varies in many instances, and seemingly different theories of corporate responsibilities can be rationalized. However, when the decisions are viewed as an entirety, a common denominator appears. “There is an officer or agent of a corporation with broad express authority, generally holding a position of some responsibility, who performs a criminal act related to the corporate principal’s business. Under such circumstances, the courts have held that so long as the criminal act is directly related to the performance of the duties which the officer or agent has the broad authority to perform, the corporate principal is liable for the criminal act also, and must be deemed to have ‘authorized’ the criminal act.” (citing cases) 281 F.2d 149. In the case at bar, we believe that the authority of George S. Carter and the activity in which he was engaged at the time of the offense involved, brought criminal responsibility to the corporation of which he was president. As president, he was Pilsener’s chief executive officer with the general supervisory authority that attends such office. Aside from his implied authority as president, he was, in fact, the one who ran the company. He was described by the company’s controller as the one who issued the orders and directions and was “the sole official, boss of the Pilsener Brewing Company.” While Pilsener’s labor negotiations were carried on through a brewer’s association, Carter participated in such negotiations and customarily signed collective bargaining agreements with the Teamsters union for Pilsener. It is apparent that his association with Felice grew out of such labor negotiations. In today’s economy, it is a large and important part of the business: of any employer to carry on negotiations, with a union representing its employees. We think that it can be fairly inferred that in acceding to Felice’s request for money and providing such money out of the corporation’s funds, Carter, however illegal and misguided his actions were, did so in the course of his employment, with, and in furtherance of the business interests of, his company. Egan v. United States, 137 F.2d 369, 380 (C.A.8, 1943); Mininsohn v. United States, 101 F.2d 477, 478 (C.A.3, 1939). Proof of an actual benefit to the corporation in such circumstances is not essential to its. responsibility. Old Monastery Co. v. United States, 147 F.2d 905, 908 (C.A.4, 1945); cert. denied, 326 U.S. 734, 66 S.Ct. 44, 90 L.Ed. 437; United States v. Empire Packing Co., 174 F.2d 16, 20 (C.A.7, 1949). In the recent case of Standard Oil Company of Texas v. United States, 307 F.2d 120 (C.A.5, 1962), a. corporate defendant’s conviction was reversed because there the illegal conduct of its agents was shown to be solely for the personal gain of such agents, directly contrary to the interests of their corporate employers. Such is not the case-before us. We are of the opinion, too, that Carter’s knowledge and wilfulness must be charged to Pilsener. The corporate person can only act and know through its officers, and the guilty knowledge and wilful conduct of its chief executive officer will be charged to the corporate person. United States v. Armour & Co., 168 F.2d 342, 344 (C.A.3, 1948); United States v. George F. Fish, Inc., 154 F.2d 798, 801 (C.A.2, 1946); CIT Corporation v. United States, 150 F.2d 85, 89, 90 (C.A.9, 1945); Zito v. United States, 64 F.2d 772, 775 (C.A.7, 1933). In Magnolia Motor & Logging Company v. United States, 264 F.2d 950, 953 (C.A.9, 1959), the wilful and knowing criminal act of a corporation’s president was held imputable to the corporation. We have considered the authorities relied upon by appellant Pilsener and are of the opinion that they are neither apposite nor controlling. 5. Was there a wilful violation of the statute? Under Subsection (d) of § 302 of the Act (§ 186(d) U.S.C.A. Title 29) wilfulness is a necessary ingredient of the crime charged. Felice said that he knew that the Taft-Hartley Act forbade his acceptance of money from an employer whose employees were members of the union of which he was president. Claiming that what he did was but a borrowing, he disclaims wilfulness. The District Judge found that what was done was not a loan, but was an outright payment and was so understood. Felice knew what he was doing and so his wilfulness is apparent. Carter disclaimed any knowledge of the relevant proscription of the Act in question. We do not think it necessary to a finding of wilfulness that it be shown that the one so charged had read the statute which makes his conduct illegal. As stated by Judge Learned Hand in American Surety Co. of New York v. Sullivan, 7 F.2d 605, 606 (C.A.2, 1925): “The word ‘willful,’ even in criminal statutes, means no more than that the person charged with the duty knows what he is doing. It does not mean that, in addition, he must suppose that he is breaking the law.” Such language was quoted with approval by Judge Allen of' this court in Schmeller v. United States, 143 F.2d 544, 553 (C.A.6, 1944). In United States v. Ryan, 232 F.2d 481, the Second Circuit was considering, on remand from the United States Supreme Court, (350 U.S. 299, 76 S.Ct. 400, 100 L.Ed. 335) the meaning of “wilfulness” as that word is used in the specific statute here involved (§ 186(d) U.S.C.A. Title 29). A payment by a corporate officer to the president of a union, of which the corporation employees were members, was involved. The court upheld the conviction of the union official by a District Judge who had, on the question of wilfulness, said, “In my opinion a wilful violation of section 186(b) is proved if it is shown that a ‘representative of any employees who are employed in an industry affecting commerce’ received or accepted money from the employer of such employees with knowledge (1) that he was receiving or accepting money, and (2) that the person who was giving him the money was an employer of employees that he represented.” United States v. Ryan, 128 F.Supp. 128, 133 (S.D.N.Y.1955). Felice argues that he did not know that the money came from Pilsener and therefore he did not wilfully receive it from an employer of members of his union. Aside from the fact that he knew that Carter, as its president, was the agent of Pilsener, (§ 2 of the Act provides that the term “employer” includes any person acting as an agent of the employer), we are satisfied that the District Judge, as trier of the facts, could find from the evidence that Felice knew from whence came his money. When he asked Carter for it, Carter replied, “Give me a few days, see me at the office.” It was at the Pilsener office that Felice received the bank check (which obscured the source of the money) and the cash. Just why Carter would, from his own funds, give Felice $4,500 is difficult to understand. The District Judge could find that Felice knew what was going on. Any viewer of the conduct of Carter and Felice would, indeed, be on plausible grounds in believing that both of them knew that they were “about some shady business” in this transaction. We have stated above that the wilfulness of Carter is properly imputable to the Pilsener corporation and, therefore, hold that there was sufficient evidence from which wilfulness of the corporation could be found. 6. Did the District Judge err in denying Garter a separate trial? Carter’s motion for a separate trial was denied. He claims to have been prejudiced thereby. The granting or denial of such a motion, made pursuant to Rule 14, F.R.Cr.P. is within the discretion of the District Judge. In the absence of an affirmative showing of abuse of such discretion, a refusal of severance is not assignable as error. Stilson v. United States, 250 U.S. 583, 40 S.Ct. 28, 63 L.Ed. 1154; Bullock v. United States, 265 F.2d 683, 689 (C.A.6, 1959). We find no abuse of discretion in this regard. 7. Constitutionality of § 302(a) of the Act. Defendant Felice now asserts that subsection (a) of § 302 (§ 186(a) U.S.C.A. Title 29) is unconstitutional. We are not sure that we fully understand the basis of such claim. His brief on this point says: “The Congressional intention of Sections 302(a) and 302(b), prior to the 1959 amendment, was clearly to prohibit payments by an employer to a union representative. It was not intended that the prohibition reach sources other than the employer.” Such statement does not expose any constitutional infirmity, but rather confirms that the statute makes clear the conduct interdicted thereby. We read Felice’s argument which follows the above quoted statement as a contention that the statute’s constitutional infirmity is its alleged failure to adequately make known what persons would be considered agents or representatives of an employer. We find no such vice in the statute. In today’s industry, the majority of employers engaged in commerce are corporations who can act only through individuals who are their agents. Section 2 of the Act (§ 152 U.S.C.A. Title 29) provides that “the term ‘employer’ includes any person acting as an agent of an employer, directly or indirectly.” It appears to us that a union representative would have little difficulty in recognizing the president of a corporation, whose employees are members of his union, as the corporation’s agent. In Ryan v. United States, 350 U.S. 299, 76 S.Ct. 400, 100 L.Ed. 335, the Supreme Court held that the president of a union came within the term “representative of any employees.” We think that, conversely, the president and labor negotiator of a corporate employer would easily be known to a union representative as one from whom he should not accept the forbidden payment of money. Upon the remand to it of the Ryan case, the Second Circuit held that the statute here involved was not so-vague in its identification of a representative of employees as to be unconstitutional. United States v. Ryan, 232 F.2d 481, 482, 483 (C.A.2, 1956). The statute is not unconstitutional. 8. The District Judge’s ruling on evidence. We have considered errors claimed to have been made by the District Judge in admitting some evidence and exhibits offered by the government. For the most part, the admission of such evidence was within the discretion of the District Judge. There may have been one or two places where defense objections should have been sustained, but our consideration thereof persuades us that no prejudice came to the defendants by such rulings. None of the evidence so admitted established any essential links to the proof of the crime involved; it was but cumulative and corroborative. We hold that no such rulings affected any substantial rights of the defendants. (Rule 52(a) F.R.Cr.P.) Complaint is further made that during the presentation of the government’s case the District Judge reserved his rulings on various objections made by defense counsel. A typical instance of such situation was where a ruling was reserved as to whether evidence received would be admitted as to all defendants, or only one of them. At the close of the government’s case, the District Judge was asked to make rulings on such objections. He did not do so. On this appeal, however, counsel do not point to any instance where such failure to rule prejudiced any defendant. We have held that there was sufficient admissible evidence to sustain the convictions which we affirm. We find no reversible error in the District Judge’s rulings, or failure to rule, on evidentiary matters. This disposition of appellants’ complaint in the above regard does not indicate our approval of a trial judge’s practice of repeated postponing of decisions on evidentiary matters by reserving a ruling thereon. (Not the situation here.) The burden of trial counsel should not be made heavier by such practice. Counsel should, with reasonable promptness, be informed by the judge’s ruling as Question: Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile (or did ruling on appropriateness of evidentary hearing benefit the defendant)? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_appbus	99	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Edward BARTSCH, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 204, Docket 22442. United States Court of Appeals Second Circuit. Argued April 15, 1953. Decided May 5, 1953. Edward J. Behrens, New York City, Charles H. Lawson, New York City, of counsel, for petitioner. H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack and Louise Foster, Sp. Assts. to Atty. Gen., for respondent. Before SWAN, Chief Judge, and AUGUSTUS N. HAND and FRANK, Circuit Judges. PER CURIAM. Decision affirmed on the opinion of the Tax Court, 18 T.C. 65. Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_genapel1	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 is to determine the nature of the first listed appellant. ANDERSON v. BIGELOW. No. 9886. Circuit Court of Appeals, Ninth Circuit. July 23, 1942. As Modified on Denial of Rehearing Aug. 25, 1942. Lloyd V. Smith and John S. Field, of Reno, Nev., for appellant. Duncan A. McLeod, of San Francisco, Cal., and Walter Rowson, of Reno, Nev., for appellee. Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges. DENMAN, Circuit Judge. Appellant, individually and as president and business agent of the International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local #533 of Reno, Nevada, (hereinafter called the Union,) appeals from a decree enjoining appellant and the Union from interfering with the business of the Virginia & Truckee Railway, engaged in interstate carriage by truck, (hereinafter called the Carrier,) “and/or” Virginia-Truckee Transit Company, both being corporations in receivership in the district court, “by boycotting and/or by partolling and/or picketing and/or loitering in the streets, roads, highways, or in front of the places of business of said corporations in receivership, or either of them.” The evidence shows that the Union’s members were drivers of trucks. The receiver of the Carrier was engaged in interstate transport of merchandise by two separate methods. One was by rail and the other by motor carriers on the highways of Nevada. There is no evidence and no finding of the district court that the motor carriage of the corporation was in any way connected with its rail carriage. Obviously, the receiver’s truck carriage does not become connected with his rail carriage because the word “Railway” appears in the title of the Carrier corporation. Neither evidence nor finding showed that the Carrier’s trucks even operated in such a “pickup” function for and incidental to the rail carriage as was considered in Circuit Judge Groner’s opinion in American Trucking Ass’ns v. United States, D.C., 17 F.Supp. 655. The receiver’s description of this separate line highway interstate trucking appears in the footnote. The “pick up” truck there listed, serves the over the highway trucking. It was not proved or contended that it also served the railroad traffic of the receiver. The appellant, acting on behalf of the Union, presented to the receiver two proposed written contracts, one respecting terms of employment of the motor operating employees of the receiver, and the other respecting wages. There were some weeks of delay by the receiver and finally, as the court found on supporting evidence, the appellant notified the receiver that unless the contracts were accepted by him by a certain day his Union would cause a strike, a picketing and a boycott against the business conducted by the receiver. There was no evidence and no finding that any violence against any men or property was threatened. The receiver petitioned the district court and injunctions, preliminary and pendente lite, were ordered, followed by the decree appealed from. The district court held that so far as concerns labor disputes of the truck drivers and their Union with the receiver they are controlled bv the Railway Labor Act, 45 U.S.C.A. § 155, 44 Stat. 580. There is no question that the injunctive decree is valid if the Railway Labor Act controls, for none of the requirements which are conditions precedent to the right of rail carrier employees to strike were satisfied. The district court, In re Virginia & Truckee Ry., 36 F.Supp. 119, 121, arrived at its conclusion that the Railway Labor Act is applicable in the following language: “The ‘Motor Carrier Act,’ Title 49 U.S. C.A., Chapter 8, § 301 et seq., deals with motor carriers engaged in interstate commerce ‘including such motor vehicle operations of carriers by rail or water, and of express or forwarding companies, except to the extent that these operations are subject to the provisions of chapter 1 of this title.’ Tit. 49 U.S.C.A. § 303(a) (14), § 313(b). Chapter 1, so referred to, is the ‘Interstate Commerce Act, 49 U.S.C.A. § 1 et seq.’ American Trucking Ass’ns v. United States, D.C., 17 F.Supp. 655. By the provisions of this Act, the Interstate Commerce Commission has conferred upon it the powers and duties: ‘To regulate common carriers by motor vehicle * * * qualifications and maximum hours of service of employees, and safety of operation and equipment.’ 49 U.S.C.A. § 304(a) (1). United States v. American Trucking Ass’ns, 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345.” We are unable to follow the district court’s reasoning based on this extract from section 303(a) (14) of the Motor Carrier’s Act, 49 U.S.C.A. 301 et seq. The sentence from which the extracted phrase is taken is the definition of the term “common carrier by motor vehicle,” and reads as follows: “The term ‘common carrier by motor vehicle’ means any person who or which undertakes, whether directly or by a lease or any other arrangement,, to transport passengers or property, or any class or classes of property, for the general public in interstate or foreign commerce by motor vehicle for compensation, whether over regular or irregular routes, including such motor vehicle operations of carriers by rail or water, and of express or forwarding companies, except to the extent that these operations are subject to the provisions of part I.” 49 Stat. 544 § 203(a) (14), 49 U.S.C.A. 303(a) (14). None of the “motor vehicle operations of carriers by rail or water, and of express or forwarding companies” “are subject to the provisions of part I,” except the terminal pick-up service incidental to rail carriage. The Interstate Commerce Commission draws the distinction between truck line haul and pick-up trucking for a rail haul. As was stated in Judge Groner’s opinion in a three judge district court decision, “We are, therefore, in full agreement with the statement of the Commission that in adding the proviso in section 203(a) (14)— except to the extent that these operations are subject to the provisions of part 1— ‘Congress may be presumed to have legislated with knowledge of the court decisions previously mentioned, holding that pick-up and delivery service is within the meaning of “transportation” as defined in section 1 (3) of the Interstate Commerce Act (49 U. S.C.A. § 1(3) ) as well as with knowledge of our own administrative findings to the effect that while railroad terminal service by motortruck was subject to regulation under the Interstate Commerce Act, the use of motortrucks by railroads in line-haul service was not subject to that act.’” American Trucking Ass’ns v. United States, D.C., 17 F.Supp. 655, 657. Here, as stated above, no evidence was introduced to support the burden of proof of appellee, petitioner below, .that any of the truckmen enjoined were engaged in any service, terminal pick-up or otherwise, incidental to rail traffic. The defendants were employed by a “common carrier by motor vehicle” on the “highways” of Nevada. They are hence governed by the Motor Carriers Act, though their employer is a receiver. That is to say, that so far as concerns the general regulations applying to the receiver’s truck drivers, he was under the control of the Interstate Commerce Commission and not of the district court. The district court did not rely on any contention that the Norris-LaGuardia Act does not apply where employers, other than carriers under the Railway Labor Act, have brought or had their companies brought into a federal receivership and transferred the employer status to a receiver. Nor is there any contention that the Norris-LaGuardia Act would not prevent an injunction against the employees because of violence or any other of the exceptions of the Act. However, it has been suggested elsewhere that employers can escape the provisions against enjoining peaceful striking or picketing if their enterprises can be brought within a federal receivership. We can find no case supporting such an interpretation of the Norris-LaGuardia Act. It prohibits injunctions “in any case involving or growing out of cmy labor dispute.” It provides that “No court of the United States shall have jurisdiction to issue” such injunctions. There is no exception of “any case” or “any labor dispute” in receivership proceedings. It applies to the injunctions of every court. Its more recently enacted particular provisions control and limit the prior general power of federal courts to issue injunctions of Section 262 of the Judicial Code, 28 U.S.C.A. 377. The Norris-LaGuardia Act was passed seven years after the Railway Labor Act, recognizing an existing right to strike by employees of railroad receivers, if its arbitral provisions have failed to produce an agreement. It was followed in 1935 by the Motor Carriers Act, also, as shown above, recognizing receiver employees as within its provisions. Apart from the clear provisions of the Norris-LaGuardia Act, we see no reason why Congress should deprive the federal courts of the right of enjoining striking and picketing in industrial disputes, where the enterprise is brought before the court for its general equity protection and should allow the injunction where the enterprise already has been brought there for equitable relief with regard to the company’s creditors. In the latter case it is nonetheless an industrial dispute. The receiver’s truckmen are engaged in an interstate industry and the community as a whole is as much benefited by the freedom of labor to organize effectively for collective bargaining for better wages or elimination of grievances in dealing with an employing receiver as any other employer. Cf. United States v. Hutcheson, 312 U.S. 219, 235, 61 S.Ct. 463, 85 L.Ed. 788. Certainly the history of federal injunctions does not warrant the inference that Congress regarded federal receivers to be less potent to resist employee bargaining pressure than are the owners of the enterprises. A receiver’s employee may ask for higher wages or shorter hours and resign if he does not obtain them. There seems no reason why several of them may not agree to do so, that is to strike. Having struck it is proper to appeal for public support against claimed unfairness of the receiver, just as against unfair treatment of any employer,—that is, to picket and ask the public not to patronize one who is unfair. The Supreme Court has held that such a labor leader as Mr. Harry Bridges may publicly claim unfair treatment by a decision of a court rendered in a labor dispute, as an exercise of his constitutional right of free speech. Bridges v. State of California, 314 U.S. 252, 278, 62 S.Ct. 190, 86 L.Ed. 192. The receiver here is no more immune from a public statement of a claimed act of unfair treatment of his employees than was the court sentencing Bridges. True, a strike may stop the running of the trucks, but this is no more an inconvenience to the public with the trucking in receivership than in private operation. The judgment is reversed. The district court was deprived of jurisdiction to issue the injunction by the Norris-LaGuardia Act and is ordered to dismiss the receiver’s petition. Reversed. The Transit Company had ceased its trucking carriage prior to the filing of the petition for injunction in the district court. “That since September 21, 1939 the Railway Co. operated an over-the-highway service in handling freight, and in this service handled practically all classes of freight less than carload lots; that at present the operations of the over-tHe-highway service is— “One truck that operates between Reno and Virginia City, leaving Reno in the morning and returning in the afternoon ; “Another truck that operates between Reno and Carson City, leaving Reno in the morning and returning in the afternoon ; “Another truck that leaves Gardnerville in the morning for Reno and returns in the afternoon; “A pick-up truck that takes care of pick-ups in Reno. “Together with what are called the light trucks; “That they also have a standby truck that is used in case of emergency for extra work. “That in connection with the over-the-highway service of the Railway Co., they had 16 or 17 employees, there being 4 regular and 1 extra truck drivers, 4 agents, a helper, and 5 employees in the auditing force ; that these employees were all carried on the payroll of the Railway Co.; * * .” Nothing in the case of United States v. American Trucking Ass’ns, supra, cited by the district court even suggest that line trucking is subject to the Railway Labor Act. The contrary inference seems logically necessary. This case is not an appeal from 17 F.Supp. 655, but from 31 F.Supp. 35. “(12) The term ‘highway’ means the roads, highways, streets, and ways in any State.” 49 U.S.C.A. 303 (a) (12). “(13) The term ‘motor vehicle’ means any vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used upon the highways in the transportation of passengers or property, or any combination thereof determined by the Commission, but does not include any vehicle, locomotive, or ear operated exclusively on a rail or rails.” 52 Stat. 1237, 303 (a) (13). “(a) The provisions of this chapter apply to the transportation of passengers or property by motor carriers engaged in interstate or foreign commerce and to the procurement of and the provision of facilities for such transportation, and the regulation of such transportation, and of the- procurement thereof, and the provisions of facilities therefor, is hereby vested in the Interstate Commerce Commission.” 49 U.S.C.A. 302(a). “(1) The term ‘person’ means any individual, firm, copartnership, corporation, company, association, or joint-stock association; and includes any trustee, receiver, assignee, or personal representative thereof.” (Emphasis supplied.) 49 Stat. part 2, 544, 49 U.S.C.A. § 303 (a) (1). 29 U.S.C.A. § 104, 47 Stat. 70. 29 U.S.C.A. § 107, 47 Stat. 71. “The term ‘carrier’ includes any express company, sleeping-car company, and any carrier by railroad, subject to the Interstate Commerce Act, including all floating equipment such as boats, barges, tugs, bridges and ferries; and other transportation facilities used by or operated in connection with any such carrier by railroad, and any receiver or any other individual or body, judicial or otherwise, when in the possession of the business of employers or carriers covered by this Act: * 44 Stat. 577, 45 U.S.C.A. § 151. (Emphasis supplied.) 29 U.S.C.A. 102, 47 Stat. 70. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
sc_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. CROSS v. PELICAN BAY STATE PRISON et al. No. 98-8486. Decided May 24, 1999 Together with No. 98-8487, Cross v. Wieking, Clerk, United States District Court for the Northern, District of California, also on motion for leave to proceed informa pauperis. Per Curiam. Pro se petitioner Cross seeks leave to proceed in forma pauperis under Rule 39 of this Court. We deny these requests as frivolous pursuant to Rule 39.8. Cross is allowed until June 14,1999, within which to pay the docketing fees required by Rule 38 and to submit his petitions in compliance with this Court’s Rule 33.1. We also direct the Clerk not to accept any further petitions for certiorari from Cross in noncriminal matters unless he first pays the docketing fee required by Rule 38 and submits his petitions in compliance with Rule 33.1. Cross has repeatedly abused this Court’s certiorari process. On March 8, 1999, we invoked Rule 39.8 to deny Cross informa pauperis status with respect to four petitions for certiorari. See Cross v. Pelican Bay State Prison, post, p. 1003 (three eases); Cross v. Cambra, post, p. 1003. Before that time, Cross had filed six petitions for certiorari, all of which were both patently frivolous and had been denied without recorded dissent. The 2 instant petitions bring Cross’ total number of frivolous filings to 12, and he has 4 additional filings — all of them patently frivolous — pending before this Court. We enter the order barring prospective filings reasons discussed in Martin v. District of Columbia Court of Appeals, 506 U. S. 1 (1992) (per curiam). Cross’ abuse of the writ of certiorari has been in noncriminal cases, and we limit our sanction accordingly. The order therefore will not prevent Cross from petitioning to challenge criminal sanctions which might be imposed on him. Similarly, because Cross has not abused this Court’s extraordinary writs procedures, the order will not prevent him from filing nonfrivolous petitions for extraordinary writs. The order will, however, allow this Court to devote its limited resources to the claims of petitioners who have not abused our certiorari process. It is so ordered. 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_fedlaw	C	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. Donald L. BLACK, Plaintiff-Appellee, Plaintiff-Appellant (90-6278), v. RYDER/P.I.E. NATIONWIDE, INC.; Southern Conference of Teamsters; International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Defendants, Teamsters Local # 519; Joint Council # 87 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Defendants-Appellants (90-6219), Ryder/P.I.E. Nationwide, Inc.; Teamsters Local # 519; Joint Council # 87 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & and Helpers of America, Defendants-Appellees. Nos. 90-6219, 90-6278. United States Court of Appeals, Sixth Circuit. Argued March 26, 1992. Decided July 14, 1992. Rehearing and Rehearing En Banc Denied Sept. 22, 1992. Paul A. Levy (argued and briefed), Public Citizen Litigation Group, Washington, D.C., Peter Alliman, Lee, Alliman & Carson, Madisonville, Tenn., and Authur L. Fox, II, Kator, Scott & Heller, Washington, D.C., for plaintiff. Cecil D. Branstetter (briefed), Jane B. Stranch (argued and briefed), Branstetter, Kilgore, Stranch & Jennings, Nashville, Tenn., Howard H. Vogel, O’Neil, Parker & Williamson, Knoxville, Tenn., Peter Reed Corbin, Corbin & Dickinson, Jacksonville, Fla., John Paul Jones, Clearwater, Fla., and G. William Baab, Mullinax, Wells, Baab & Cloutman, Dallas, Tex., for defendants. Before: NELSON and BOGGS, Circuit Judges; and WELLFORD, Senior Circuit Judge. BOGGS, Circuit Judge. This appeal involves a claim brought by Donald Black against Teamsters Local 519 and Teamsters Joint Council 87, pursuant to the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 411. Black organized and participated in protesting against the leadership of Local 519 at the local union hall. Some of the picketers engaged in violent and threatening behavior at the hall. Local 519 ultimately brought charges against Black for violating the Teamsters Constitution. Teamsters Joint Council 87 convicted Black of those charges and punished him accordingly- Black then filed this suit, alleging that various union bodies had retaliated against him for exercising his free speech rights, in violation of § 411. The jury found in favor of Black, and rendered a verdict of $40,000 against Local 519 and of $25,000 against Joint Council 87. The district court then denied the defendants’ motion for Judgment Notwithstanding the Verdict. The court also denied Black’s motion for attorney’s fees. Joint Council 87 and Local 519 appeal the merits of Black’s § 411 claim. Black appeals the denial of his motion for attorney’s fees. The appeals have been consolidated. For the reasons given below, we affirm the court’s denial of Black’s motion for attorney’s fees. We also affirm the court’s judgment with respect to the $40,000 verdict against Local 519. However, we reverse the district court’s judgment with respect to the $25,000 verdict against Joint Council 87. I Prior to November 26, 1984, plaintiff Black was a truck driver for Ryder/P.I.E. Nationwide, Inc., and a member of Teamsters Local 519 in Knoxville, Tennessee. Black had been an active leader in a movement against the leadership of Local 519 by some members of the union. Black and his cohorts were attempting to make Local 519 more democratic in its dealings with the membership and, to end corruption within the Local. They were also involved in several other contentious problems involving Local 519. This dissension within Local 519 culminated in the establishment of a picket line around the local union hall on July 30-31 and August 13-14, 1984. Black’s § 411 claim arose from the union’s response to that picketing. More precisely, the action centers on the union’s punishment of Black for leading and participating in the picketing. Black and others testified that their reason for picketing the union hall was to bring the corruption of the Local 519 leadership to the attention of the International Union. The picketers contended that the incumbent local union officials misused union funds, used a scheduling device for laid-off union members, known as the out-of-work book, to reward their political friends and punish their political enemies, and were guilty of a variety of other types of misconduct and illegal activities. Black’s active participation put him in conflict with the local leadership and with other Teamsters bodies. Black’s decision to run for President of Local 519 only made matters worse. On the morning of July 30, 1984, Black and other protesters gathered at the union hall and established a picket line and a protest group outside the hall. Many of the protesters parked their cars directly in front of the union hall. Jimmy Metts, the business agent for Local 519, was the first union official to come to work that day. As Metts drove up, several picketers, including Black, approached his car. The picketers told Metts that he was part of the problem in the local union. Metts left immediately and no other official returned to the hall that day. The picket line continued through the day and overnight. On the morning of July 31, Alan Sharp, a union member, went to the hall to turn in some insurance papers. As he approached the hall, some unidentified picketers knocked him down. While Sharp was on the ground, several of the picketers kicked him and slapped him. That morning, local union officials went to court to obtain a restraining order against the picketers. Local 519 officers filed a complaint against the picketers, alleging that they had engaged in concerted action to prevent the officers and others from coming to the union business office and did so in a manner calculated to place the officers in fear for their personal safety. The Tennessee Chancery Court issued the restraining order and the picketers were required to leave the union hall. Black was not mentioned by name in the restraining order. When the officers later tried to enter the union office, they found that some sort of glue or liquid metal had been poured into the locks on every door, making it impossible to enter the union hall. A locksmith had to be called to open the doors. At a later hearing, the Chancery Court made the temporary restraining order permanent. The order restrained the protestors from coming to the union hall for the purpose of blocking access to the union office or harassing members or officers. After the TRO was made permanent, Black posted a notice calling for another protest at the union hall to begin on August 13. The picketers asked people not to cross their picket line. The local union officials claim that on the first day of the picket, protestors threatened a mother and her young son. Allegedly, an unidentified man with a knife and a whittling stick told the woman that it would be better if she did not enter the union hall, obviously attempting to intimidate her by prominently displaying his knife. The woman left without entering the hall. The defendants also allege that the protestors threatened other people and kept them from entering the union hall. For instance, an attorney, Phillip Lawson, came to transact business with the local union on August 14. Lawson testified that the following exchange with a picketer took place when he tried to enter the hall: Angry picketer: “Don’t you recognize a fucking picket line?” Lawson: “I’ve got some business to conduct with the local.” Picketer: “Well, I’ve got some fucking business to conduct with you.” The protestors were also allegedly carrying sticks and congregating around the cars of those who attempted to enter the union hall. Following these events, the Executive Board of Local 519 brought charges against Black and the other protestors for their conduct during the four days of picketing, which allegedly interfered with union business. The Executive Board charged the group with violating the Teamsters Constitution by engaging in conduct that is “disruptive of, or interferes with, or induces others to disrupt or interfere with the performance of any union’s legal or contractual obligations.” Teamsters Constitution, Article XIX, 6(b)(5). The protestors were also charged with “[disruption of union meetings, or assaulting or provoking assault on fellow members or officers, or failing to follow the rules of order or rulings of the presiding officer at meetings' of the local Union or any similar conduct in, or about, the union premises or places used to conduct union business.” Article XIX, 6(b)(6). Since the entire Executive Board of the Local Union wanted to bring charges against the picketers, the hearing on the charges was held before the next higher Teamster body, Joint Council 87. The hearing was held on September 14 and October 4, 1984, and a full transcript of the hearing was made. Black and the other picketers were convicted of both violations. They were suspended from the union for six months and fined $150. Black’s fine was subsequently waived and he was reinstated to membership in Local 519 without making payment. (The year after this action was filed, the local union officers were voted out of office and the new leadership rescinded all formal discipline that had been imposed on Black.) Black appealed the Joint Council’s ruling to the Teamster’s General Executive Board. The only issue raised on appeal was the protestors’ contention that they were simply disseminating information in front of the local union hall and that their activity was therefore protected by § 101(a)(2) of the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 411(a)(2). The General Executive Board, however, affirmed the findings of the Joint Council. In addition to this disciplinary action taken by the local union officials and the Joint Council, Black claims that the local officials also took other retaliatory action against him because of his participation in the picketing. Black was discharged from his job at Ryder in November 1984. The discharge was unrelated to Black’s union activity. Black signed the out-of-work book at the local union hall approximately one month after his discharge from Ryder. The out-of-work book was a listing of all laid-off or discharged union workers kept by Local 519. The book listed union members in order of priority for job referrals by the union as jobs became available. The local leadership called Black and sent him to work at a new job in 1985. The new job involved heavy physical labor, and Black ultimately injured his back and was forced to remain out of work for some time. Black claims that the union leadership sent him on the job knowing that he was in poor physical condition and unable to do the heavy lifting and other strenuous activity required by the position. When Black asked about the job before he took it, the local union president assured him that it would involve no heavy labor. Also, both Black and his son received calls for these same jobs within ten minutes of each other, even though there were fifty to seventy names between them on the ordered referral list in the out-of-work book. Black argues that the local officials used the referral to get back at him and his son for their outspoken opposition. As a result of his injury, Black filed for workers’ compensation and received a settlement of approximately $10,000. Black originally filed this action against Ryder/P.I.E., Local 519, Joint Council 87, and the Southern Conference of Teamsters. Black had several different causes of action. He brought a hybrid § 301 unfair labor practice/fair representation claim against Ryder and Local 519. He brought another claim against Local 519 and Joint Council 87 pursuant to 29 U.S.C. § 411. On December 22, 1988, the district court severed the two causes of action. The § 301 claim proceeded to a non-jury trial. At the close of evidence, the district court granted the defendant’s motion for dismissal. That case is not involved in this appeal. This appeal involves only the § 411 claim brought against Local 519 and Joint Council 87. Black brought this lawsuit claiming that all of his picketing activity is protected by § 411. He contends that he peacefully picketed the union hall for the sole purpose of informing other union members of the corrupt local leadership. Black claims that the local officials' brought disciplinary charges against him only after he decided to run for President of Local 519. Black’s union conviction on the two charges made it impossible for him to run for union office, to speak out at meetings, or to participate fully in the movement to rid the local union of corruption. Black denies that he personally engaged in any violence or that he made threats or. forcibly kept anyone from entering the union hall. The first trial in this matter resulted in a jury verdict for Black. However, after the verdict, the district court granted the defendants’ motion for a new trial. At the second trial, a jury once again rendered a verdict in favor of Black. The jury awarded Black $30,000 in compensatory damages and $10,000 in punitive damages against Local 519, and $20,000 in compensatory damages and $5,000 in punitive damages against Joint Council 87. The district court denied the defendants’ motion for JNOV. The district court also denied Black’s motion for attorney’s fees, holding that the fees were precluded by Shimman v. International Union of Operating Engineers, Local 18, 744 F.2d 1226 (6th Cir.1984), cert. denied, 469 U.S. 1215, 105 S.Ct. 1191, 84 L.Ed.2d 337 (1985). Local 519 and Joint Council 87 argue that the district court erred in refusing to grant their motion for JNOV. The defendants contend that the district court applied improper legal standards and misled the jury. Black responds that the court applied the proper standard under § 411. He further argues that the jury simply chose to credit his version of the facts in this case. He claims that the evidence presented by the union failed to show his active participation in unprotected activity. At best, claims Black, the evidence shows that he sponsored a picket during which some others may have engaged in inappropriate activity, for which they could have been punished. Further, Black contends that the district court erred when it refused to award him attorney’s fees. We discuss the various objections to the rulings of the district court in turn. II The Labor-Management Reporting and Disclosure Act grew out of the McClellan Committee’s investigations of autocracy and corruption in the labor movement in the late 1950s. The Congressional committee uncovered many ways in which corrupt leaders had dominated unions and remained unaccountable to their members. S.Rep. No. 187, 86th Cong., 1st Sess. 2 (1959), reprinted in U.S.Code Cong. & Admin.News 1959, p. 2318. Congress passed Title I of the LMRDA in order to ensure truly democratic unions, in which policies were formulated and adopted after open debate and criticism. The legislation was also intended to make previously-insulated union leaders accountable to the membership. “The pervading premise... is that there should be full and active participation of the rank and file in the affairs of the union.” American Federation of Musicians v. Wittstein, 379 U.S. 171, 182-83, 85 S.Ct. 300, 306-07, 13 L.Ed.2d 214 (1964). “Title I of the Act therefore establishes a ‘Bill of Rights’ that ensures, for example, a union member’s right of free speech and right to sue or otherwise participate in legal proceedings against the union. A union official may not be dismissed for exercising these rights.” Lamb v. Miller, 660 F.2d 792, 794 (D.C.Cir.1981) (footnote omitted). At issue in this case is 29 U.S.C. § 411(a)(2), which provides as follows: Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization’s established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations. The jury found that the actions taken by Local 519 and Joint Council 87 against Black violated this provision. Black’s § 411 claim presented the jury with a question of fact concerning whether the union’s action against Black was proper or if it was in retaliation for his exercise of his right to free speech. The district court ruled that under the LMRDA, this question should be decided by the trier of fact de novo, rather than under a standard of review that is deferential to the union charged with the misconduct. The defendants now challenge the de novo standard of review applied by the district court in this case. In addition, the district court allowed the jury to employ a burden-shifting analysis much like the standard used in Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), in deciding whether the union’s disciplinary action was motivated by a desire to suppress protected speech. The defendants also challenge the district court’s use of this standard. Black argued that the local union violated § 411(a)(2) by bringing charges against him for participating in the picket line; that Joint Council 87 violated § 411 by finding him guilty of the charges and punishing him; and that the local violated the statute when it retaliated against him through its use of the out-of-work book. The defendants argue that Black improperly presented this case as a first amendment case. They contend that Congress intended § 411 to grant the specified rights only when such rights are exercised in accordance with the reasonable rules of the union. As stated, the union’s first argument is that the district court should not have allowed the jury to conduct a de novo review of the union’s determination in this case. Local 519 and Joint Council 87 argue that when a union member is disciplined for violating a reasonable rule, the discipline is proper if it simply complies with the specific due process rights listed in § 411. Section 411(a)(5) specifies that a union member must be served with specific charges, given a reasonable time to prepare a defense, and afforded a full and fair hearing. The defendants rely on International Bhd.. of Boilermakers v. Hardeman, 401 U.S. 233, 91 S.Ct. 609, 28 L.Ed.2d 10 (1971), which dealt with the proper standard for determining whether a union has afforded the accused member a full and fair hearing on the charges against him. The Boilermakers court held that in reviewing the procedural sufficiency of such a case under § 411, a court should not substitute its judgment for that of the union, but only examine whether the union provided “some evidence at the disciplinary hearing to support the charges made.” Id. at 246, 91 S.Ct. at 617 (footnote omitted). Local 519 and Joint Council 87 argue that this “some evidence” standard was the appropriate one in this case, and the district court should not have conducted a de novo review of the union’s action against Black. Black argues that the standard rule followed by courts when evaluating a union member’s claim that he has been subjected to discipline or other adverse action because of free speech activities is to evaluate the evidence of the union’s motivation de novo, based on a preponderance of the evidence presented at trial. See, e.g., Petramale v. Local 17 of Laborers Int’l Union of N. Am., 736 F.2d 13, 18 (2d Cir.), cert. denied, 469 U.S. 1087, 105 S.Ct. 593, 83 L.Ed.2d 702 (1984). Black contends that the defendants’ reliance on the Boilermakers case is misplaced. In that case, the union member had been charged with punching a union officer, and the question was whether, in imposing discipline for this action, the union had violated the due process provision of the LMRDA, 29 U.S.C. § 411(a)(5). The Boilermakers court held that although the due process provisions required some judicial review, such review would be limited to deciding whether there was “some evidence” supporting the charges. In Boilermakers, however, no claim was raised under the free speech provision of the LMRDA. As the Supreme Court has repeatedly made clear, the free speech and due process provisions of the Act are separate and independent. Sheet Metal Workers’ International Ass’n v. Lynn, 488 U.S. 347, 354-55, 109 S.Ct. 639, 644-45, 102 L.Ed.2d 700 (1989). A union may not infringe on free speech rights under § 411(a)(2), even if it abides by all of the due process provisions when disciplining a member for protected activity. 29 U.S.C. § 411. Boilermakers does not apply here because that case did not involve a free speech issue. Other courts have also rejected the claim that the “some evidence” standard applies in cases such as this. In Bise v. IBEW Local 1969, 618 F.2d 1299 (9th Cir.1979), cert. denied, 449 U.S. 904, 101 S.Ct. 279, 66 L.Ed.2d 136 (1980), for example, the court expressly rejected the argument that the “some evidence” standard applied to cases involving discipline for activity protected under § 411(a)(2). The court stated: We are unimpressed by the Union’s argument that judicial review of the intra-union proceedings is precluded since the disciplinary actions taken against the plaintiffs were supported by “some evidence” of guilt. The Union’s reliance on International Brotherhood of Boilermakers v. Hardeman, 401 U.S. 233, 91 S.Ct. 609, 28 L.Ed.2d 10 (1971), is misplaced. Unlike the question presented in Hardeman, the infirmity is not in the procedure used or the method of discipline, but in the fact that the discipline is being imposed for an improper purpose. To adopt the Union’s reading of Harde-man would have the effect of “insulating] any Union discipline of a member, so long as the charges brought against him are supported by ‘some evidence’, no matter how insubstantial or suspicious that evidence might be.” NLRB v. Local 294, International Brotherhood of Teamsters, [] 470 F.2d [57, 62 (2nd Cir.1972) ]. We will not adopt such a reading. ..... ... Hardeman did not involve freedom of speech or assembly. While we must respect the congressional judgment of judicial noninterference in the internal affairs of unions, we must also not forget the special need to protect individual members against the danger of overreaching by entrenched union leadership. Bise, 618 F.2d at 1304-05 n. 5. We accept and adopt the same reasoning in this case. Hardeman involved the due process provisions of the LMRDA, and this case deals with the free speech and assembly guarantees of the act. See Kuebler v. Cleveland Lithographers & Photoengravers Union Local 24-P, 473 F.2d 359, 362 (6th Cir.1973). While the “some evidence” standard applies when reviewing a union’s decision for procedural sufficiency, this deferential standard cannot apply to cases concerning the free speech guarantees of the LMRDA if those protections are to mean anything. See also Petramale, 736 F.2d at 18; Bradford v. Textile Workers Local 1093, 563 F.2d 1138 (4th Cir.1977). Local 519 and Joint Council 87 also cite Mayle v. Laborers Int’l Union, Local 1015, 866 F.2d 144 (6th Cir.1988), to support their argument that the “some evidence” standard should apply here. However, the Mayle case involved a “dual union” issue. In that case, Mayle sought the protection of § 411(a)(2) for statements that he had made in forming a rival union. The court held, correctly, that the statements were not protected by § 411(a)(2), since the statute “permits the expulsion of any member who attempts to threaten the union as an institution.” Id. at 146. In this case, however, Black was not attempting to destroy his union nor was he threatening the existence of his local. On the contrary, he was seeking to expose, and ultimately to expel democratically, the current leadership of his local, in an effort to improve his union. This activity is at the heart of the purpose of § 411(a)(2), and Black’s speech, if peaceful, is protected by that section. Mayle is inapposite. We therefore affirm the district court’s use of a de novo standard of review of the union’s action in this case. Ill The next argument advanced by the defendants is that the district court erred when it instructed the jury that once the plaintiff had proven that his exercise of protected speech played a substantial role in the actions taken against him, the burden then shifted to the defendants to prove that their actions were “a result of the adoption and enforcement of reasonable rules regarding the responsibilities of every member toward the union.” Local 519 and Joint Council 87 now argue that, while this Mt. Healthy instruction may have been proper in a first amendment case, it should not have been given in a § 411 case. Black counters that the district court was correct in looking to analogous Mt. Healthy principles to frame its jury instructions in this case. We review jury instructions as a whole to determine whether they adequately inform the jury of the relevant considerations and provide a basis in law for aiding the jury in reaching its decision. Kitchen v. Chippewa Valley Schools, 825 F.2d 1004, 1010-11 (6th Cir.1987). A judgment can be reversed if the instructions, viewed as a whole, were confusing, misleading, or prejudicial. Beard v. Norwegian Caribbean Lines, 900 F.2d 71, 72-73 (6th Cir.1990). In this case, the district court gave the following instruction: ... Plaintiff must prove each of the following propositions. Number one, that his conduct was an exercise of free speech as defined and protected by the [LMRDA]. Number two, that he must prove that defendant took actions against him in substantial part because of this exercise of his rights under the [LMRDA], Number three, he must prove that he was damaged and suffered an injury, as a proximate result of the actions of the defendant. Now, the Defendant raises the Defense that its actions in question were the result of adopting an enforcement of reasonable rules which they had a right to promulgate under the [LMRDA], The reasonable rules regarding the responsibility of every member toward the organization, as an institution, and to his refraining from conduct that would interfere with the performance of the union’s legal and contractual obligations. Now, it’s lawful for a union to discipline a member for a violation of a union’s reasonable rules. A union may reasonably regulate speech and assembly which is part of the pattern of conduct designed to destroy the union and interfere with the performance of its legal obligations. If you find that the defendant was reasonably justified in taking these actions that the union took, your verdict must be for the defendant. That is an affirmative defense on which the defendant must bear the burden of proof in this case. The defendant had to prove by a preponderance of the evidence that what they [sic] did was a result of the adoption and enforcement of reasonable rules regarding responsibilities of every member toward the union. This instruction clearly sets out the plaintiff’s burden of proving his prima facie case and also ably describes the defendants’ duty regarding the establishment of their affirmative defense. More importantly, the instruction correctly describes the respective burdens of proof under § 411(a)(2). In Kuebler v. Cleveland Lithographers & Photoengravers Union Local 24-P, 473 F.2d 359 (6th Cir.1973), the court considered an action brought by a union member against the union for disciplining the member for conduct that the member claimed was protected by § 411(a)(2). In ruling for the union member, the court stated: It is our conclusion that Appellant [the union member] made out a prima facie case of unlawful acts by the Union and that the Union failed in its burden to go forward with proof to justify its disciplinary actions against its member as being within the limiting provisions of Section 411(a)(2) concerning the continuing right of a union to have reasonable rules with respect to the responsibility of union members toward the organization as an institution; and to members not engaging in conduct that would interfere with the union’s performance of its legal or contractual obligations. Id. at 363. In this Circuit, we have long recognized the allocation of burdens of proof set out in the district court’s instruction in this case. In addition, other circuits considering this issue have adopted a burden-shifting approach even less favorable to the defendants. For instance, in Bradford v. Textile Workers Local 1093, 563 F.2d 1138, 1143 (4th Cir.1977), the court stated that under § 411(a)(2) a plaintiff need only prove that protected speech was “a” cause of adverse union action against him, and is not required to prove that it was a “primary” cause. In Petramale, 736 F.2d at 18, the Second Circuit held that it is enough that protected speech be one of the reasons for the discipline imposed, even if the union can prove that it would have imposed discipline in absence of the speech. In short, we find that the district court’s instruction was proper, and we affirm its use. IV Next, we address the issue of whether the district court erred in denying the defendants’ motion for JNOV, despite its proper employment of a de novo standard of review and its proper jury instructions. Local 519 and Joint Council 87 both argue that there was not enough evidence to support the jury’s verdict against them in this case. They further contend that the evidence was insufficient to support the jury’s damage award. We review a motion for JNOV under the same standard used by the district court. Marsh v. Am, 937 F.2d 1056, 1060 (6th Cir.1991). The standard of review is as follows: In determining whether the evidence is sufficient, the trial court may neither weigh the evidence, pass on the credibility of witnesses nor substitute its judgment for that of the jury. Rather, the evidence must be viewed in the light most favorable to the party against whom the motion is made, drawing from that evidence all reasonable inferences in his favor. If, after thus viewing the evidence, the trial court is of the opinion that it points so strongly in favor of the movant that reasonable minds could not come to a different conclusion, then the motion should be granted. Morelock v. NCR Corp., 586 F.2d 1096, 1104-05 (6th Cir.1978), cert. denied, 441 U.S. 906, 99 S.Ct. 1995, 60 L.Ed.2d 375 (1979) (citations omitted). See also Agristor Leasing v. A.O. Smith Harvestore Products, 869 F.2d 264, 268 (6th Cir.1989). Further, this court will not overturn a jury verdict as excessive if the verdict is within the range of proof and the jury was properly instructed. American Anodco, Inc. v. Reynolds Metals Co., 743 F.2d 417, 424 (6th Cir.1984). A damage award should not be overturned unless a court is left with the definite and firm conviction that a mistake resulting in plain injustice has been committed, or unless the award is contrary to all reason. Neyer v. United States, 845 F.2d 641, 645 (6th Cir. 1988); In re Lewis, 845 F.2d 624, 635 (6th Cir.1988). A damage award may also be overturned if it is so disproportionately large as to shock the conscience. Matulin v. Village of Lodi, 862 F.2d 609, 614-15 (6th Cir.1988). We will review the contentions of each defendant separately, because we hold that the verdict and the damage award against Local 519 should be affirmed, but that the judgment against Joint Council 87 must be reversed. We find that the evidence presented in this case, most of which is outlined in detail above, is more than sufficient to support the jury’s verdict against Local 519. It is certainly true that reasonable minds could differ over whether the local’s actions violated § 411(a)(2). Therefore, we cannot disturb the jury’s finding. Local 519 makes a specific argument that the jury could not have found that its use of the out-of-work book violated § 411(a)(2). First, the union argues that, as a matter of law, Black’s allegations regarding the out-of-work book are not actionable under § 411(a)(2). However, such employment-related reprisals against a union member for exercising his statutory free speech rights are actionable under § 411. Murphy v. International Union of Operating Engineers, Local 18, 774 F.2d 114, 121-23 (6th Cir.1985), cert. denied, 475 U.S. 1017, 106 S.Ct. 1201, 89 L.Ed.2d 315 (1986). Second, Local 519 contends that even if this claim is actionable, Black did not present evidence sufficient to support it. Again, we reject this contention and hold that the jury’s verdict against Local 519 was supported by sufficient evidence. There was testimony by Black and his son that they were both called to the heavy labor job within ten minutes of each other despite the fact that their names were far apart on the priority list in the out-of-work book. In addition, there was testimony that the union president who made the referral knew of Black’s physical condition and misrepresented the nature of the job to Black. While.the defendants submitted contrary evidence, the jury chose to credit Black’s evidence. We cannot disturb on appeal a jury verdict supported by sufficient evidence. Further, we hold that the jury’s damage award against Local 519 cannot be overturned. In addition to the other evidence in the case, the jury was presented with two opposing expert medical opinions regarding the extent of Black’s damages. The jury’s decision to credit the testimony of Black’s witnesses cannot be disturbed on appeal. The damage award was within the range of the proof and the jury was properly instructed in this case. Further, this jury award does not shock the conscience nor is it contrary to all reason. No mistake resulting in plain injustice has been made. We affirm the damage award against Local 519. However, the jury’s verdict against Joint Council 87 is not supported by sufficient evidence and it cannot stand. Joint Council 87 is an intermediate Teamster governing body one step above the local union in the Teamsters hierarchy. The Joint Council is composed of seven delegates from each of thirteen local unions throughout Tennessee, Mississippi and Northern Alabama. The executive Board of Joint Council 87 is composed of seven individuals elected by the full Joint Council. At the time of Black’s hearing, none of the members of the Joint Council 87 Executive Board was a member of Local 519. The Joint Council Board was charged with the responsibility of hearing and deciding the charges brought against Black and the other picketers by Local 519. The Joint Council found that Black had violated two provisions of the Teamsters Constitution. There were no allegations that the Joint Council’s decision was biased or that its decision violated the due process guarantees of the LMRDA. The Council’s decision against Black is not so facially unreasonable on the facts as to suggest that the Council was clearly biased against Black. In fact, the Joint Council’s decision was affirmed by the Teamsters’ General Executive Board. In addition, the district court found it necessary to hold a trial on the truth of Black’s claims, indicating that their validity might legitimately be disputed by a union reviewing body. There appears to be no evidence against the Joint Council other than its decision in this matter. The mere fact that the Council rendered a decision adverse to Black is not in itself sufficient evidence to support a § 411(a)(2) claim. Since the verdict against Joint Council 87 is not supported by sufficient evidence, we reverse the judgment rendered against the Joint Council. V Finally, we address Black’s contention that the district court erred when it denied his motion for attorney’s fees. We review a district court’s denial of attorney’s fees for abuse of discretion. Tarter v. Raybuck, 742 F.2d 977, 986- (6th Cir.1984), cert. denied, 470 U.S. 1051, 105 S.Ct. 1749, 84 L.Ed.2d 814 (1985). The district court began by stating the general rule that in the United States a prevailing party may not ordinarily recover attorney’s fees in the absence of a statute or an enforceable contract providing for a fee award. Shimman v. International Union of Operating Engineers, Inc., 744 F.2d 1226, 1229 (6th Cir.1984), cert. denied, 469 U.S. 1215 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_appsubst	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Major D.M. EDWARDS, Plaintiff-Appellee, Cross-Appellant, v. Lee P. BROWN, individually, and in his official capacity as Commissioner of Public Safety of the City of Atlanta, Georgia, Defendant-Appellant, Cross-Appellee. No. 81-7841. United States Court of Appeals, Eleventh Circuit. March 7, 1983. Marva Jones Brooks, W. Roy Mays, III, Irmina Rivero Owens, Atlanta, Ga., for defendant-appellant, cross-appellee. Robert E. Price, Atlanta, Ga., for plaintiff-appellee, cross-appellant. Before RONEY and CLARK, Circuit Judges, and TUTTLE, Senior Circuit Judge. TUTTLE, Senior Circuit Judge: This is an appeal from a grant of summary judgment by the trial court in favor of the plaintiff, a former officer in the Bureau of Police Services of the City of Atlanta against the Commissioner of Public Safety. The judgment was based on a determination by the trial court that, although the Commissioner had legal authority to hire and fire officers of the Bureau of Police Services of the city, his right to fire the plaintiff Edwards could not be exercised by him until “after trial” by virtue of Section 11-2031 of the Code of Ordinances of the City of Atlanta. A brief statement of the case enables us to focus on the only issue before us: Does Section 2031 or the due process clause of the Constitution give every officer of the Bureau the right to a trial before he may be discharged by the Commissioner? There is no dispute that Edwards was a Major in the Bureau on December 10. He had become an employee of the Bureau in 1961, but resigned from the force in 1968 to take a job in the Department of Finance of the City. In 1971, he returned to the Bureau in the civilian, non-swom position of criminal justice planner. That position was later reclassified by the City Council to the position of police major in 1972, a “sworn” position. Appellee took that position and was later promoted to deputy director in 1978. In August 1979, he was transferred back to the rank of major and remained in that rank until the time of his termination. On December 10, 1979, Edwards delivered to Commissioner Brown a letter resigning or taking early retirement to be effective December 31, 1979. The letter contained twelve paragraphs highly critical of the operation of the Bureau of Police Services and Department of Public Safety. Considering that the letter contained unwarranted accusations of wrongdoing and that Edwards had lost his effectiveness as an officer in the department, Brown sent Edwards a copy of the following “personnel action:” Pursuant to the authority invested in me under Section 11-2001 of the Code of Ordinances of the City of Atlanta, Major D.M. Edwards is removed from the rank of major, effective immediately. December 10, 1979 is his last working day. s/ Lee P. Brown Commissioner, Department of Public Safety Effective date 12/10/79 Thereafter, Edwards wrote a letter purporting to withdraw his December 10 letter of resignation and subsequently filed a grievance in which he treated the notice to him of December 10 as a notice of discharge. The grievance procedure was not followed in accordance with the requirements of the City Code and Brown notified the officer that, as final arbiter, he ruled against the grievance. The cited Section 11-2001 in the December 10 notice to Edwards provides as follows: The commissioner of public safety, referred to in this chapter as “commissioner,” or his designee, is hereby authorized, in his discretion, to make assignments to the positions of detective, major and deputy director within the bureau of police services, without reference to competitive examinations or eligible lists. Any detective, major or deputy director so designated may be removed or transferred at the pleasure of the commissioner. Such person so removed or transferred shall thereupon reassume the rank or title in the bureau of police services held immediately prior to his or her assignment under this section. Although this provision does not speak in terms of discharging an employee from the department or bureau completely, but only in terms of a removal or transfer at the pleasure of the commissioner, it is apparent that the commissioner thought that under this provision he had the power to discharge Edwards from the service. The district court concluded that since Edwards had held the position of deputy director immediately before his appointment to the position of major in the Bureau the absolute power of the Commissioner to “remove” Edwards automatically entitled him to reassume the rank of deputy director and that the action of the Commissioner in actually terminating Edwards’ service in the Bureau amounted to a “discharge” which could be accomplished only under Section 11-2031 of the City Code. That section provides: The director, and other officers of the bureau shall be appointed by the Commissioner to serve without any fixed term of employment and subject to the terms of these provisions and other applicable laws and regulations. They shall serve during good behavior and efficient service, to be judged by the Commissioner or a designee. They may be discharged, after trial as provided by law or regulation. The trial court construed this statute to provide that Edwards could be discharged only after a trial. The appellant contends that Section 11-2031 limits the power of the Commissioner to discharge such an employee only to the extent that where appropriate law or regulation provides for a trial for such employee he can be discharged only after such a trial. Appellant asserts that there is no law or regulation that makes provision for a trial before discharge of an officer in the position of deputy director of the Bureau of Police Services. In order for the appellant’s construction of the code section to be acceptable to us, it seems necessary for us to find some provision in the applicable law or regulations that makes provision for a trial for some employees covered by the City’s personnel regulations. Brown points to such a regulation. He points to Section 11-1010, the section setting out the grievance procedures for the Bureau of Police Services, as answering the question whether pre-discharge trial proceedings are provided for any employee of the Bureau. That section prescribes narrowly constructed day-by-day progression of a grievance from the employee to his or her immediate supervisor and thence, unless, as in this case, the supervisor is himself the bureau chief, to that official, and thence to the Commissioner as a final arbiter for resolution of the grievance. This section then contains the following significant provision: The final paragraph of the commissioner’s letter will differ significantly depending upon the grieving employee’s sworn/non-swom status: 1. If the grieving employee is sworn, the last paragraph will advise the grievant that the commissioner’s decision is not subject to any further administrative appeal, but that the grievant could seek redress in the civil courts on his/her own initiative and expense. Copies of this letter will be distributed to the bureau director/chief, the immediate supervisor, the employee’s personnel files, the DP’s legal advisor, and the city attorney’s office. 2. If the grieving employee is non-sworn, the last paragraph will advise the grievant that the commissioner’s decision could be appealed to the civil service board as per civil service rules and regulations. Copies of this letter will be distributed to the commissioner, the bureau director/chief, the deputy director, the immediate supervisor, the employee’s personnel file, the DPS legal advisor, the city attorney’s office, and the civil service board. In this case, the grieving employee is sworn. Thus, his rights are “significantly” different from the rights of a non-sworn employee who is given the right to appeal to the civil service board. Such an appeal, under personnel regulations of the city, as found in Chapter XIX, Grievance and Appeal Procedures, gives to the employee the “right to be represented before such board by any individual of such employee’s choice.” This then, Brown contends, is the situation contemplated under Section 11— 2031 where such an employee cannot be discharged without a trial. It applies only to non-sworn officers. The need to construe this section is apparent, since all parties agree that this action under 42 U.S.C. § 1983 can be sustained only by showing that Edwards was discharged by state action in a manner that denied him a right to due process under the Fourteenth Amendment to the Constitution of the United States. The parties also agree that in order to prevail Edwards must show that he had what amounts to tenure in his job, that is an individual property interest in his continued employment. The parties also agree that it is necessary to look to state law to define such individual’s property interest. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). See also Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). If the trial court correctly interpreted Section 11-2031 as requiring a trial before any employee of the Bureau of Police Services could be discharged, then we would agree that the ordinance did create such property interest in Edwards’ continued employment until he had been given the opportunity to have a trial. However, we accept the position stated by the appellant to the effect that a trial is guaranteed only to those persons as to whom “trial [is] provided by law or regulation.” We conclude therefore that nothing in the ordinance or regulations requires any trial by virtue of the provisions of Section 11-2031. We must still consider, however, whether under the terms of his employment that he “shall serve during good behavior and efficient service, to be judged by the commissioner or a designee,” Edwards had a reasonable expectation of continued employment until there had been a determination after notice and hearing that he had not measured up to the objective standards of “good behavior and efficient service.” The Court of Appeals for the Fifth Circuit, by whose opinions we are bound has held that “the Georgia Supreme Court has held that the civil employment which allows termination only ‘for cause’ creates an expectation of continued employment that is constitutionally protected.” Glenn v. Newman, 5 Cir., 614 F.2d 467, 471, citing Brown-lee v. Williams, 233 Ga. 548, 212 S.E.2d 359, and the court then stated that where a discharge could be effected only for certain named grounds “the specified reasons listed in the regulations are meant to be analogous to allowing termination only ‘for cause.’ ” Id. at 471. See also Thurston v. Dekle, 5 Cir., 531 F.2d 1264 at 1273. We conclude, therefore, that Edwards could be discharged only for cause. Here, however, there is something more than the right of the commissioner to discharge for cause, since following the statement of the standards of “good behavior and efficient service” in the ordinance are the words “to be judged by the commissioner or a designee.” Such language seems clearly to indicate the purpose of the city in its ordinance to give directions to the commissioner that, although he could discharge only for the stated reasons, he was the person in whom was placed the power to determine whether the reasons existed. It would have been a simple matter for the sentence to have continued after the words “to be judged by the commissioner or a designee” by such words as “after notice and hearing” or “after trial” if that had been the purpose of the ordinance. Since, under Georgia law, a person holding such a position as that filled by Major Edwards could be discharged “at the will” of the commissioner if so provided by ordinance, Bailey v. Dobbs, 227 Ga. 838, 183 S.E.2d 461 (1971), we conclude that Edwards could be discharged under the peculiar language of this ordinance when the latter “judged” him not to have acted consistent with “good behavior and efficient service.” Instead of providing for a discharge for cause, we equate this provision with a discharge “at the will” of the commissioner. Under such circumstances, as stated by the Georgia court in Wright v. Gamble, 136 Ga. 376, 378, 71 S.E. 795 (1911), “in such a case no formality such as the preferring of charges against, or the grant of a hearing to the incumbent, are necessary to the lawful exercise of the discretionary power of removal.” We are compelled, therefore, to conclude that Edwards held no property interest in his position as major or as deputy director of the Bureau of Police in the Department of Public Safety at the time of his discharge. The trial court’s decision that he was entitled to a trial under the ordinance must be reversed. There being no property right in the position otherwise, the judgment must be reversed. JUDGMENT REVERSED. Remanded with directions to dismiss the complaint. . We are at a loss to understand what kind of a trial the trial court may have thought Edwards was entitled to, unless it was to be equated with an appeal to the city’s civil service board which is provided for a non-sworn officer. But clearly Edwards was not entitled to that trial, for he was a sworn employee and under the provisions of paragraph 1 of the quoted text above, he is not entitled to that kind of a proceeding. . This Court looks to the decisions of the Court of Appeals for the Fifth Circuit as binding precedent unless and until overruled or modified by this Court en banc. Bonner v. City of Pritchard, Alabama, et al., 661 F.2d 1206 (11th Cir.1981). Question: What is the total number of appellants in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number. Answer:
songer_r_bus	2	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. David MACKEY, et al., Plaintiffs-Appellants, v. JUDY’S FOODS, INC., et al., Defendants-Appellees. No. 87-5391. United States Court of Appeals, Sixth Circuit. Argued July 29, 1988. Decided Feb. 10, 1989. Thomas P. Malone (argued), Minneapolis, Minn., Raymond G. Prince, Nashville, Tenn., Alan Mark Turk, for plaintiffs-appellants. Tyree B. Harris, Nashville, Tenn., Mark H. Lynch (argued), Covington & Burling, Washington, D.C., for defendants-appel-lees. Before: MILBURN and BOGGS, Circuit Judges; and CONTIE, Senior Circuit Judge. BOGGS, Circuit Judge. Mackey and other franchisees sued franchisors, Judy’s Foods and its parent companies, claiming fraud, breach of contract, violation of the Tennessee Consumer Protection Act and intentional infliction of emotional distress. The district court granted summary judgment for the franchisors based on its determination that the statutes of limitations and a validly executed release signed by the franchisees and Judy’s Foods barred all of the claims brought by the franchisees. 654 F.Supp. 1465 (M.D.Tenn.1987). We agree with the district court that all of the franchisees’ claims are barred by either the applicable statute of limitations or the release. Therefore, we affirm the decision granting summary judgment to the franchisors. I Judy’s Foods, originally formed by General Care Corporation and later sold to the Hospital Corporation of America, was a franchise operation selling fast food. When it first began selling franchises, Judy’s Foods was illegally appropriating the format of Wendy’s International. In 1979, the franchisees in this action signed a Prospective Licensing Agreement, creating the option for them to own and operate two restaurants in Alabama. The contract specified that Tennessee law would apply to its interpretation. At this time, Judy’s Foods knew that it would have to change its format to avoid litigation by Wendy’s, but did not tell the franchisees about this or any other problems relating to the operation of the franchises. The franchisees built their restaurants according to the original format, unaware that they would have to change that format shortly thereafter. When the franchisees finally learned of the suit which was ultimately filed by Wendy’s, the franchisors told them that the suit was without merit. The franchisors gave the franchisees $12,-000 to change the format of the two restaurants, but denied that the change was related to problems with Wendy’s. Dyer, one of the franchisees, began contacting the franchisors with complaints in June 1979, alleging that Judy’s Foods was not living up to its agreement. The franchisees claim to have relied on promises in the licensing agreement that the franchisors would open over 500 restaurants nationwide, and would advertise nationally. However, in January 1980, the franchisors suspended the offer and sale of franchises. In 1980, there were two meetings of franchisees. Dyer attended both of those meetings. He claims that there was no mention of litigation at either meeting, but his notes from the first meeting include the phrase “legal action,” and a legal committee was established at this meeting. Dyer was not on the legal committee, but did chair a committee which included a plaintiff in another suit against the franchisors. In addition, attorneys who would later represent other franchisees in their suits against the franchisors were also present at this first meeting. The second meeting was held in November 1980, after other franchisees had filed suits against the franchisors in May, August and September of 1980. The plaintiffs in those suits, and their attorneys, were present at this meeting. Again, Dyer claims that there was no mention of litigation at this meeting. On May 20, 1981, Mr. Grammer, a franchisee and plaintiff in one of the other suits against the franchisors, sent a letter and questionnaire to all franchisees asking for help with his suit and suggesting that other franchisees initiate their own suits. However, the franchisees claim that this letter was followed by a letter from the franchisors alleging that Grammer’s suit was “unfounded.” The franchisees contend that they believed the franchisors rather than Grammer, and they thus thought Grammer’s suit was baseless. On November 9, 1981, the franchisees and Judy’s Foods, but not Judy’s Foods’ parent corporations, General Care Corporation and Hospital Corporation of America, signed a termination and cross-release agreement. An employee of the franchisors explained that the document was like a divorce, and also informed the franchisees that there were other suits pending against Judy’s Foods at the time. Judy’s Foods paid the franchisees $20,000 in consideration for signing the release and the franchisees paid Judy’s Foods $2,900 in royalties and equipment costs which were in arrears. Almost a year later, the jury in one of the other suits against the franchisors awarded a large sum to the franchisees. Other large awards followed in the other suits. Dyer’s brother sent him a newspaper clipping reporting one of the verdicts. This is when Dyer claims he first knew of the existence of the franchisees’ cause of action against the franchisors. Both a magistrate and the district court found that the franchisees had actual notice of the existence of their claims by the first meeting of the franchisees in November 1980. Thus, their claims accrued at that time. The court held that various statutes of limitations barred all claims except the contract claim. The district court, unlike the magistrate, applied Alabama’s substantive contract law to the interpretation of the release. Because Alabama law requires the tendering back of consideration (which the franchisees failed to do) before one can challenge the validity of a release, the court ruled that the release barred the remaining contract claim. II Summary judgment is appropriate when the moving party can show that “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In deciding what substantive law applies, one must first look to the forum state’s choice of law statute. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3, 96 S.Ct. 167, 46 L.Ed.2d 3 (1975). However, we must apply the procedural law, including statutes of limitations, of the forum state, Tennessee. Whitfield v. City of Knoxville, 756 F.2d 455, 461 (6th Cir.1985). Clearly, Tennessee law governs the claim under the Tennessee Consumer Protection Act. Tenn.Code Ann. § 47-18-101 et seq. (1980). We must then determine, by reference to the Tennessee choice of laws statutes, what law applies to the tort claims, the contract claim, and the release. Tennessee choice of law rules indicate that the law of the state in which the tort claim arises controls. Winters v. Maxey, 481 S.W.2d 755 (Tenn.1972); Parsons v. American Trust & Banking Co., 168 Tenn. 49, 73 S.W.2d 698 (1934). Thus, Alabama law provides the substantive law for resolution of the plaintiffs’ tort claims. As regards the contract claims, under Tennessee law, the validity of a contract and the substantive rights of the parties to the contract are governed by the law of the state contemplated by the parties; in the absence of evidence to the contrary, the parties are presumed to have intended to contract pursuant to the laws of the state in which the contract was entered into. Boatland, Inc. v. Brunswick Corp., 558 F.2d 818, 821 (6th Cir.1977). Here, the parties entered into the contract in Tennessee, and the licensing agreement provided that Tennessee law would govern any disputes arising from the contract. Thus, the contract claim must be analyzed under Tennessee law. A release is treated differently from other contracts for choice of laws purposes when considering the effect of the release on tort claims involving nonparties to the release. State ex rel. Neff v. Cotton Belt Insurance Co., Inc., No. 87-101-11, slip op. (Tenn.Ct.App., December 2, 1987) [1987 WL 28386]; Restatement, Conflict of Laws § 389; Wharton, Conflicts of Laws (3rd ed.) § 475(b); 76 C.J.S. Release § 39; Western Newspaper Union v. Woodward, 133 F.Supp. 17 (W.D.Mo.1955). However, when the effect of the release on the contract claims between the parties to the release is considered, it is to'be treated as a standard contract. Restatement (2d) of Conflicts of Laws, § 170, Comment b. Thus, just as Tennessee law applies to the licensing agreement, so too does Tennessee law apply to the effect of the release on the contract claim. Neff, slip. op. No. 87-101-11 (Tenn.Ct.App., December 2, 1987). Thus, the tort claims are governed by Alabama substantive law; the contract claim is governed by Tennessee substantive law; and the release, as it affects the parties to the release, is governed by Tennessee substantive law, also. Tennessee statutes of limitations apply to all claims in that those statutes are procedural. Ill Before turning to an analysis of how the various statutes of limitations affect the plaintiffs’ claims, we must first determine when those claims accrued. A claim accrues when the plaintiffs discover their injury or “through the exercise of reasonable care and diligence [it] should have been discovered.” McCroskey v. Bryant Air Conditioning Co., 524 S.W.2d 487, 491 (Tenn.1975). Both the magistrate and the trial judge found as fact that the plaintiffs knew or should have known, through the exercise of reasonable diligence, of their injury and its source by November 4, 1980, three years and two months before they filed suit. We agree. Plaintiff Dyer complained to Judy’s Foods on June 19, 1979 in a letter. The plaintiffs in the other suits had enough information to file their suits in May, August, and September 1980. All of those plaintiffs were present at the February 1980 meeting, and one of them was on the committee that Dyer chaired. Plaintiff Dyer’s own notes from that meeting contain the phrase “legal action.” In addition, the plaintiffs were aware that General Care Corp. had sold Judy’s Foods to the Hospital Corporation of America by November 9,1979. Any one of these facts taken alone might not have alerted the plaintiffs to the defendants’ questionable conduct; however, taken together, with the use of reasonable diligence they should have alerted the plaintiffs to the existence of their causes of action. Further, even when, as here, plaintiffs argue that a statute of limitations should be tolled for equitable reasons by the fraudulent concealment of the causes of action, the statute is tolled “only during the period when the plaintiff has no knowledge that a wrong has occurred, and, as a reasonable person is not put on inquiry.” Security Bank & Trust Co. v. Fabricating, Inc., 673 S.W.2d 860, 865 (Tenn.1983) (citation omitted). Because we agree with the district judge that no reasonable juror could find that the plaintiffs were not put on notice by November 1980 of their claims against the defendants, we must agree with the trial judge that the claims accrued no later than that date. A In that the Tennessee Consumer Protection Act claim is governed by the Act’s one-year statute of limitations, Tenn.Code Ann. § 47-18-110, the plaintiffs’ claims under that statute obviously.are time-barred. We must determine the effects of the applicable statutes of limitations on the other claims raised by the plaintiffs. B In Tennessee, the appropriate statute of limitations is determined by the type of injuries claimed and the damages sought. The gravamen of most of the tort claims sounds in fraud. The appropriate statute of limitations in fraud actions is three years. Tenn.Code Ann. § 28-3-105. The claim for intentional infliction of emotional distress is most closely analogous to an action for injury to the person, and thus the one-year statue of limitations applies. Tenn.Code Ann. § 28-3-204. Because we agree with the district court that the claims accrued no later than November 1980, and because this suit was filed three years and two months after that time, we agree with the district judge that all of the tort claims are barred by the applicable statute of limitations. IV The only remaining claim is the claim for breach of contract. That claim is only against Judy’s, Inc., and not the other defendants. Tennessee’s statute of limitations for contract claims is six years. Tenn.Code Ann. § 28-3-109. Thus, this claim is not time-barred. However, because this claim involves only the parties who signed the release, and because we agree with the district judge that the release remains in full effect, we affirm the holding of the district court that the release barred the claim for breach of contract. Both Tennessee and Alabama law require the tender back of the consideration for the release within a reasonable time after discovering the alleged fraud if a party wishes to rescind and repudiate the release. Boles v. Blackstock, 484 So.2d 1077 (Ala.1986) (citing Jehle-Slauson Construction Co. v. Hood-Rich Architects and Consulting Engineers, 435 So.2d 716, 719 (Ala.1983)) and Edmondson v. Dressman, 469 So.2d 571 (Ala.1985); Cordell v. Sky Rides of America, Inc., 404 S.W.2d 488, 489 (Tenn.1966). The district judge found that the franchisees had not even attempted to return the consideration they received for signing the release. The franchisees do not contest this finding. Thus, the franchisees cannot challenge the validity of the release; the release remains in full effect. The terms of the release are very clear. It released Judy’s Foods from “all claims for damages arising out of any agreement with Judy’s.” Dyer testified in his deposition that he understood that he would not be able to sue Judy’s once he signed the release. It is clear that the franchisees knew what the release said as well as the consequences of signing it. Since it remains in full effect, it bars the franchisees’ contract claims. Thus, although we hold that Tennessee law applies to this claim, under either Alabama or Tennessee law, the result would be the same: the release bars the breach of contract claim. V Thus, we find that the trial judge was correct in holding that the relevant statutes of limitations bar all claims except the breach of contract claim. Further, we agree that the release bars the breach of contract claim. Thus, all of the claims alleged by the franchisees are barred by either the applicable statute of limitations or the release. The judgment of the district court is AFFIRMED. . The franchisees claim that the franchisors did not raise this claim before this appeal, and, thus, they are barred from raising it here. They are mistaken. In the franchisors' answer to the original complaint in this action, the franchisees’ Twelfth Defense states: "Any and all claims made by plaintiffs have been discharged by appropriate releases.” 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_const2	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the second most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if fewer than two constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the second greatest number of headnotes. In case of a tie, code the second mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. CONCRETE ENGINEERING CO. v. COMMISSIONER OF INTERNAL REVENUE. No. 9124. Circuit Court of Appeals, Eighth Circuit. April 13, 1932. George E. H. Goodner, of Washington, D. C., for petitioner. Norman D. Keller, Sp. Asst, to the Atty. Gen. (G. A. Youngquist, Asst. Atty. Gen., Sewall Key, Sp. Asst, to the Atty. Gen., and G. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and John D. Foley, Sp. Atty., Bureau of Internal Revenue, both of Kansas City, Mo., on the brief), for respondent. Before STONE and KENYON, Circuit Judges, and CANT, District Judge. STONE, Circuit Judge. This is a petition by a taxpayer to review an order of the Board of Tax Appeals redetermining income and excess profits taxes for the year 1920. Before the Board of Tax Appeals petitioner urged four errors in the assessment-of this tax. One of these had to do with the failure of the Commissioner to allow a depreciation deduction on two patents which formed the foundation of petitioner’s business. The Board found the values of the patents, and allowed a depreciation deduction equivalent to one-seventeenth of the value thereof. The petitioner acquiesces in this finding, and that question is not presented here [however, see Burnet v. National Electrie Ticket Register Co., 55 F.(2d) 587, this court, opinion filed January 23, 1932]. Another error has to do with the contention that this assessment is barred by limitations. A third error is the failure of the Commissioner to include the value of the above patents as invested capital for the taxable year. The final error is that the Commissioner refused to allow petitioner the benefit of a “special assessment” in accordance with sections 327 and 328 of the Revenue Act of 1918 (40 Stat. 1093). As to this last error, the Board found that petitioner was entitled to this special assessment, and this finding of the Board is acquiesced in by the petitioner, except that it here contends that the Board erred in failing to hold that petitioner is entitled to have its tax liability computed both by special assessment and by the regular statutory basis with allowance of the patents as invested capital, and that whichever of these two methods results in the least tax is the proper one to apply. I. Limitations. The tax return of the petitioner for the year 1920 was filed on March 15,1921. Under section 277 (a) (3) of the Revenue Act of 1926 (44 Stat. 9, 58, 26 USCA § 1057 (a) (3), taxes were required to be assessed within five years after the return for taxation was filed. Section 278 (c) of the same act (44 Stat. 9, 59, 26 USCA § 1060 note) provided that “where both the commissioner and the taxpayer have consented in writing to the assessment of the tax after the time prescribed in Section 277 for its assessment the tax may be assessed at any time prior to the expiration of the period agreed upon.” Under the above statutes, the limitation for the assessment of this tax would (without such consent) have expired on March 15, 1926. On February 2, 1926, a waiver, in the departmental form, was executed by the taxpayer and the Commissioner, expiring December 31,1926. Upon June 14, 1926, the Commissioner notified petitioner of the deficiency assessment here involved. Petitioner concedes that, if this waiver is valid, the assessment is not barred, but it attacks the validity of this waiver. This attack is upon two grounds, which are: First, that this waiver was signed on the part of the Commissioner, “D. H. Blair, Commissioner, L. G.,” which reveals that it was not signed by the Commissioner in person, and there was no showing as to who signed his name to this document; seeond, that the other signature is “Concrete Engineering Company, by A. P. Jessen, See’y-Treas., Taxpayer,” and that, under the laws of Nebraska, the secretary of a corporation is not authorized to bind the corporation in the absence of specific authority. In Stem Brothers & Co. v. Burnet, 51 F. (2d) 1042, 1046, a similar contention was made regarding a waiver signed “D. H. Blair, Commissioner, M. B.,” and this court said: “The contention as to the proper signature is met by the waiver itself, which eontains the signature ‘D. H. Blair, Commissioner/ and the presumption of the verity of the acts of public' officials. United Thacker Coal Co. v. Commissioner, 46 F. (2d) 231, 233 (C. C. A. 1); Trustees for Ohio & Big Sandy Coal Co. v. Commissioner, 43 F.(2d) 782, 784 (C. C. A. 4). “In general, it may be said as to this controversy and those of a related character that a waiver of this kind is ‘essentially a voluntary, unilateral waiver of a defense by the taxpayer/ as stated in Stange v. United States, 282 U. S. 270, 276, 51 S. Ct. 145, 75 L. Ed. 335; also see Florsheim Bros. Drygoods Co. v. U. S., 280 U. S. 453, 466, 50 S. Ct. 215, 74 L. Ed. 542; that the signature by the Commissioner is a statutory requirement made, not for contract purposes, but ‘to meet exigencies of administration/ as said in Aiken v. Burnet, 282 U. S. 277, 281, 51 S. Ct. 148, 75 L. Ed. 339; also see Stange v. United States, 282 U. S. 270, 276, 51 S. Ct. 145, 75 L. Ed. 335; Burnet v. [Chicago] Railway Equipment Co., 282 U. S. 295, 298, 51 S. Ct. 137, 75 L. Ed. 349; Elorsheim Bros. Co. v. U. S., 280 U. S. 453, 466, 50 S. Ct. 215, 74 L. Ed. 542; Greylock Mills v. Commissioner, 31 F.(2d) 655, 657 (C. C. A. 2); and where the taxpayer, by the execution of the waiver, has obtained delay in the assessment of additional taxes, and a more deliberate and thorough consideration of the questions involved, and where the waiver is regular in form and in the possession of the proper governmental bureau, every presumption should be taken in favor of its validity and binding effect, and the burden is upon the taxpayer to show such invalidity or ineffectiveness, see Trustees for Ohio & Big Sandy Coal Co. v. Commissioner, 43 F.(2d) 782, 784 (C. C. A. 4).” Where a waiver of this character bears a purported signature of the Commissioner, and comes from the files of his office, the presumption is that it has been properly executed, and the burden is upon the taxpayer to prove otherwise, and is not upon the Commissioner to prove the verity or authority of his signature. That burden on the taxpayer has not been here sustained. As to the sufficiency of the signature of the taxpayer: There is no -question that the secretary of the taxpayer executed the above signature and affixed to the waiver the corporate seal of petitioner. From the record it is obvious that petitioner secured the advantage of this extension in so far as the Commissioner in reliance thereon was prevented by this waiver from making a deficiency assessment before the expiration of the period of limitation. It may, well be that, under the laws of Nebraska, there are many things which a secretary of a corporation cannot alone do so as to bind the corporation, but an act of this sort is of a character which is rather clerical in its, character, and a corporate officer cannot be permitted, under the taxing statutes, to sign-, a waiver and affix the corporate seal in a; manner which would naturally induce the-Commissioner to act thereon, and, after it has secured the advantage thereof, repudiate the transaction to the harm of the government. There is no claim here that this-action of the secretary was in violation or opposition to any action' of the board of directors or other governing officers. The-waiver must be held good against the objections here urged. II. Patents as Capital Investment. This contention is that the value of the patents should be included as invested capital, and thus results in a reduction of the tax. If such an inclusion is allowable; permission therefor must be found in provisions of the act. The petitioner relies upon section 326 (a) (3) of the Revenue Act of 1918 (40 Stat. 1057, 1092). That section defines the term “invested capital” as used in the act. Petitioner claims that the value of the patents should be regarded as “paid-in * * * surplus,” as set forth in subparagraph (a) (3), which is as follows : “Paid-in or earned surplus and undivided profits; not ineluding surplus and undivided profits earned during the year.” Invested capital for the purposes of taxation under this act is expressly defined and limited in section 326, and the matters which are included within that definition must be found in the clear expression of that section. Patents are defined as intangible property for the purposes of the act in section 325 (a), 40 Stat. 1057, 1091. Section 326 (a) has five numbered paragraphs. The division of those paragraphs as to character of property is that the first three refer to tangible property, while the fourth and fifth refer to intangible property. In those definitions, intangible property is included as invested capital only when it is “paid in for stock or shares.” Paragraph (3) has no reference to intangible property. In fact, it seems narrowly limited even as to tangible property to money, since the expressions therein are such as properly apply only to money. Those expressions refer to “surplus” and “undivided profits,” and the expression regarding such surplus and profits is that they shall be “paid in or earned.” Nor can these patents be allowable under paragraphs (4) or (5), which refer to intangible property because the requirement there is that such property may form a part ■of invested capital only where paid in for •stock or shares. The record here is undisputed that all of the shares of this corporation were paid for by tangible property, and that the patents came to the corporation from the inventor in the form of pure gifts. While these patents added very substantially to the property and assets of the •corporation, they do not come within the statutory definition; therefore they cannot be regarded, for taxation, as any part of the invested capital of the company. The above view is supported by La Belle Iron Works v. U. S., 256 U. S. 377, 388-391, 41 S. Ct. 528, 65 L. Ed. 998, and see Lewis A. Crossett Co. v. U. S., 50 F.(2d) 292, 295 (Ct. Cl.); (Revenue Act 1918) Landesman-Hirschheimer Co. v. Commissioner, 44. F. (2d) 521, 523 (C. C. A. 6); (Revenue Acts 1918 and 1921) Daily Pantagraph v. U. S., 37 F.(2d) 783, 789 (Ct. Cl.); (Revenue Acts 1917, 1918, and 1921) Baker & Taylor Co. v. U. S., 26 F.(2d) 187, 188 (C. C. A. 2), certiorari denied 278 U. S. 615, 49 S. Ct. 19, 73 L. Ed. 538. In view of the above determination of the second point, there is no place for consideration of the third point, involving special assessments, here urged. The order of the Board is affirmed, and the petition for review ordered to be dismissed. Question: What is the second most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Answer:
songer_r_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. UNITED STATES of America ex rel. Alex BIRNBAUM, Appellant, v. Edward J. DOLAN et al. No. 19406. United States Court of Appeals, Third Circuit. Submitted Nov. 8, 1971. Decided Dec. 21, 1971. Alex Birnbaum, pro se. Lewis N. White, III, Asst. Prosecutor, New Brunswick, N. J. (John S. Kuhlthau, Prosecutor, Middlesex County, New Brunswick, N. J., on the brief), for Edward J. Dolan. John S. Fitzpatrick, Deputy Atty. Gen., Trenton, N. J. (George F. Kugler, Jr., Atty. Gen. of N. J., Stephen Skillman, Asst. Atty. Gen., Trenton, N. J., on the brief), for Dale G. Cordy. Before VAN DUSEN and ROSEN, Circuit Judges and LAYTON, Senior District Judge. OPINION OF THE COURT PER CURIAM: Appellant has appealed from the Order of the District Court dismissing his civil rights complaint as demonstratively frivolous and insufficient on its face. In January of 1967, an assault and battery, and a robbery occurred in Jamesburg, New Jersey. On March 20, 1969, a robbery occurred in Point Pleasant, New Jersey. Birnbaum was arrested in connection with the Point Pleasant robbery. Detective Cordy of the New Jersey State Police interviewed Birnbaum at his place of confinement because there were similarities between the crimes. At the August 28, 1969, interview, Birnbaum said he would appear at a lineup if counsel were provided. At the September 4, 1969, lineup, Birnbaum was identified as the perpetrator of the February offenses. Birnbaum claims that the lineup was unconstitutional. Defendant Dolan, the county prosecutor, handled the resulting litigation for the government. On January 12, 1971, the New Jersey Superior Court granted a motion dismissing the charges of atrocious assault and battery, which took place in January, 1967. On January 13, 1971, the same court ruled that the lineup identification was inadmissible against Birnbaum in any state criminal proceeding. Birnbaum was acquitted of the January 1967 charges two days later. During this entire period, he was incarcerated in connection with the March robbery. Birnbaum brought a civil rights action on October 20, 1970, based on 42 U. S.C. § 1983 in the District Court against Dolan and Cordy for damages due to his being subjected to an unusually long confinement prior to trial and an improper lineup. The complaint was dismissed in November of 1970 because it was not only too general, but also because it sought to enjoin a state criminal prosecution. Birnbaum has filed a timely appeal. Section 1983 actions are often brought by persons who have had little or no legal assistance in preparing their petitions, but who may be suffering from the infringement of an important civil right, with the result that such complaints are liberally construed by reviewing courts. At some point, however, a complaint may be so vague that, despite a liberal reading, it must be dismissed for failure to state a claim upon which relief could be granted. First, appellant claimed that he wanted his trial transferred to federal court because the slow pace of the state prosecution was depriving him of his right to a speedy trial. The enjoining of a criminal proceeding in a state court is an extreme measure designed only for those rare situations in which irreparable injury would result to the defendant. The language of 28 U.S.C. § 2283 clearly intends that an injunction to stay criminal proceedings in a state court would be rarely issued by a federal court. Only last term, the Supreme Court reaffirmed that concept when it held that only under extraordinary circumstances where the likelihood of irreparable loss to the defendant is both great and immediate, and he is unable to defend himself in one prosecution, should a federal court enjoin a pending state criminal prosecution. Appellant has not alleged bad faith either in his arrest or the manner of the prosecution of his case. It follows that appellant has not set forth sufficient reasons which might have justified his request for enjoining the state criminal action, and the District Court properly denied such a request. Second, appellant claims that defendants’ actions in furtherance of the prosecution of his case gave rise to damages compensable under Section 1983. This contention is without merit in the instant case. State officers, such as defendant Dolan, acting in good faith in the pursuance of their official duties, are shielded from Section 1983 damage suits, as long as their actions are not clearly outside their jurisdictions. Therefore, appellant’s second contention must be dismissed. Third, appellant argues that because he was subjected to illegal lineup, he should be compensated in damages. However, since the lineup identifications were not used against him, and we are presented actually with the question whether an abstract violation of a constitutional right which has no harmful consequences to the defendant entitles him to money damages under Section 1983, there is no merit to this argument. In the light of the foregoing, the decision of the District Court will be affirmed. . In Negrich v. Hohn, 379 F.2d 213, 215 (3rd Cir. 1967), while determining that a pro-se complaint would be dismissed, the Court held that “The complaint is insufficient because it is broad and conclusory. Its insufficiency lies in its failure to state facts in support of its conclusions.” . Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Appellant has not attempted to set forth special fact situations which might prove bad faith on the part of the prosecution, as a possible basis for assessment of damages. See, Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). Also, we cannot overlook the termination of the charges against plaintiff arising from the 1967 occurrences making moot much of the relief sought. See Caldwell v. Craighead, 432 F.2d 213, 218 (6th Cir. 1970). . Pierson v. Kay, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) ; Bauers v. Heisel, 361 F.2d 581 (3rd Cir. 1966). . Negrich v. Hohn, 246 F.Supp. 173 (W.D.Penn.1965), aff’d, 379 F.2d 213 (3rd Cir. 1967). 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_genresp2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. INVESTMENT COMPANY INSTITUTE, Plaintiff-Appellee, v. Robert L. CLARKE, as Comptroller of the Currency; the Office of the Comptroller of the Currency, an agency of the United States; and the United States of America, Defendants-Appellants, and Wells Fargo Bank, N.A.; and the Bank of California, N.A., Defendants-Intervenors/Appellants. Nos. 84-2622, 84-2623. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 12, 1985. Decided June 30, 1986. Norris, Circuit Judge, filed opinion concurring especially. Coughenour, District Judge, sitting by designation, filed dissenting opinion. Harvey L. Pitt, Henry A. Hubschman, David M. Miles, Fried, Frank, Harris, Shri-ver & Jacobson, Washington, D.C., David J. Romanski, Steinhart & Falconer, San Francisco, Cal., for plaintiff-appellee. Brobeck, Phleger & Harrison, William F. Sullivan, San Francisco, Cal., for Wells Fargo Bank, et al. Richard K. Willard, Acting Asst. Atty. Gen., Richard V. Fitzgerald, Chief Counsel, Eugene M. Katz, L. Robert Griffin, Washington, D.C., for Clarke, et al. Before NORRIS and REINHARDT, Circuit Judges, and COUGHENOUR, District Judge. Comptroller of the Currency Robert L. Clarke has been substituted for his predecessor C.T. Conover, pursuant to Fed.R.App.P. 43(c)(1). Honorable John C. Coughenour, United States District Judge for the Western District of Washington, sitting by designation. REINHARDT, Circuit Judge: The Comptroller of the Currency, Wells Fargo Bank, and the Bank of California appeal from the district court’s grant of summary judgment in favor of the Investment Company Institute. The district court ruled that the operation by the two banks of common funds consisting of commingled individual retirement accounts violated the Glass-Steagall Act, 48 Stat. 162, as amended, and that the Comptroller could not properly authorize the operation of such funds. See Investment Company Institute v. Conover, 593 F.Supp. 846 (N.D. Cal.1984). Two circuit courts have ruled that the operation of such commingled funds does not violate Glass-Steagall and that the Comptroller could properly authorize their operation. See Investment Company Institute v. Conover, 790 F.2d 925 (D.C.Cir. 1986); Investment Company Institute v. Clarke, 789 F.2d 175 (2d Cir.1986) (per curiam). While the Second Circuit’s opinion consisted of only a summary affirmance of the district court, the District of Columbia Circuit engaged in an extensive analysis, applying the principle recently restated in Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837,104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), that interpretations of statutes by the agency charged with administering them may not be overturned unless they are unreasonable. The court found that the Comptroller's interpretation of Glass-Steagall was not unreasonable and thus that his authorization of the commingling of individual retirement accounts was proper. See Investment Company Institute v. Conover, 790 F.2d at 931-38. The Supreme Court has specifically held that “[t]he Comptroller of the Currency is charged with the enforcement of the banking laws to an extent that warrants” judicial deference to his interpretations of Glass-Steagall unless they are unreasonable. Investment Company Institute v. Camp, 401 U.S. 617, 626-27, 91 S.Ct. 1091, 1097, 28 L.Ed.2d 367 (1971). In Camp the Court reversed the Comptroller, saying that he had not offered a reasoned explanation for his conclusion. Such is not the case here, however. In his decisions authorizing Wells Fargo Bank and the Bank of California to operate their commingled funds, the Comptroller applied the mode of analysis that Camp held to be appropriate for determining whether Glass-Steagall has been violated. The district court found the Comptroller’s decisions to be “somewhat coneluso-ry” and to “simply disagree with congressional determinations enumerated in Camp.” 593 F.Supp. at 856. It is easy to understand the district court’s view. The Comptroller’s analysis appears to be superficial, and in some respects to come perilously close to disregarding the spirit of Camp while purporting to adhere to its letter. It also comes perilously close to rejecting the division between commercial banking and investment banking that Congress sought to mandate in Glass-Stegall. Nevertheless, in the end, the Comptroller did apply, however inadequately, the Camp test. In the case before us, the issue the Comptroller was required to decide essentially involved questions of expert judgment regarding the practical operation of the banking industry and the results that might be anticipated if particular business practices were instituted. Congress has delegated responsibility for such business judgments to the Comptroller. Whether he performs his task wisely or well is not for us to decide. Moreover, the practice the Comptroller approved is not prohibited by the plain words of the statute, and in most part, he has not relied on arguments that are inconsistent with or different from those set forth in his decision. Compare Securities Industry Association v. Board of Governors, 468 U.S. 137, 104 S.Ct. 2979, 82 L.Ed.2d 107 (1984). While the question is a close one, and certainly not free from doubt, we conclude ultimately, on balance, that we cannot say that the analysis and conclusions set forth in the Comptroller’s decisions are unreasonable. For the above reasons, we join with the Second and District of Columbia Circuits and hold that Wells Fargo and the Bank of California may lawfully commingle individual retirement accounts in the manner authorized by the Comptroller. The district court’s decision is reversed. REVERSED. . We review the grant of summary judgment de novo, Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983); because there are no contested issues of fact, we need decide only whether the district court correctly applied the substantive law, Lane v. Goren, 743 F.2d 1337, 1339 (9th Cir. 1984). . We also agree with the District of Columbia Circuit that the Employee Retirement Income Security Act of 1974 (ERISA) and its legislative history are not relevant in the decision before us. See Investment Company v. Conover, 790 F.2d at 932-33. Like the District of Columbia Circuit, we base our decision entirely on the portion of the Comptroller’s ruling that relates directly to Glass-Steagall. 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_casetyp1_7-2	D	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". PETITION OF SHORTRIDGE et al. In re A. C. WAGY & CO. Circuit Court of Appeals, Ninth Circuit. July 1, 1927. No. 5189. 1. Bankruptcy <§=1.81/2. 20(1) — Jurisdiction of bankruptcy courts is exclusive of ail other courts (Bankruptcy Act [Comp. St. § 9585 et seq.]). It is well settled that jurisdiction of courts of bankruptcy, established by the Bankruptcy Act (Comp. St. § 9585 et seq.), is exclusive of all other courts, whether state or federal. 2. Bankruptcy <§=>181/2 — Equity receivers held not entitled to corporation’s books and papers as against receivers in bankruptcy appointed in another division of district. Equity receivers of corporation held not entitled to custody of its books and papers, held by commissioner of corporations, as against bankruptcy receivers appointed in another division of district, in view of exclusive jurisdiction of bankruptcy court under ■ Bankruptcy Act (Comp. St. § 9585 et seq.). 3. Bankruptcy <§=I00(I), 114(1) — Orders of adjudication in bankruptcy, or appointing receivers, fair on their face, are not subject to collateral attack. Order of adjudication in bankruptcy, and order appointing receivers, fair on their face, are not subject to collateral attack, in appellate court or elsewhere. 4. Bankruptcy <8=114(1) — Court’s finding of necessity for appointment of receivers held conclusive until set aside on direct appeal. Finding of bankruptcy court that appointment of the receivers was absolutely necessary for the preservation of the estate held conclusive, until set aside on direct appeal. Petition for Certiorari to the District Court- of the United States for the Southern District of California. Petition by S. M. Shortridge, Jr., and another, as equity receivers of A. C. Wagy & Co., for certiorari to review order appointing receivers in bankruptcy and directing Commissioner of Corporations to deliver hooks and records and other documents to receivers so appointed. Petition denied. Arnold C. Lackenbach, of San Francisco, Cal., for petitioners. Louis W. Myers, of Los Angeles, Cal., for District Judge. Shaw & McDaniel and Louis W. Myers, all of Los Angeles, Cal., for respondents Carnahan and Scott. Before HUNT and EUDKIN, Circuit Judges. HUNT and EUDKIN, Circuit Judges. May 23, 1927, one Eobert Van Norden filed his bill of complaint in the District Court of the United States for the Southern Division of the Northern District of California against A. O. Wagy & Co., a corporation, for the recovery of upwards of $4,000, and for the appointment of a receiver. Upon the filing of the bill of complaint, and with the consent of the defendant therein named, S. M- Short-ridge, Jr., and E. H. Cochran were appointed receivers of the property and assets of the defendant corporation, and have duly qualified and entered upon the discharge of their duties as such. May 25, 1927, the receivers thus appointed petitioned the District Court of the United States for the Southern Division of the Southern District of California, praying that they might be appointed as ancillary receivers in that district. May 28, 1927’, the last-mentioned court denied the petition for the appointment of Shortridge and Cochran as ancillary receivers, and appointed Joseph Scott and H. L. Carnahan as such. June 1, 1927, three creditors filed an involuntary petition in bankruptcy against Wagy & Co., in the Southern District, and on the same day Scott and Carnahan were appointed receivers in bankruptcy, with the usual rights and powers of such receivers. June 16, 1927, Wagy & Co. filed a voluntary petition'in bankruptcy in the Southern District and was thereupon adjudged a bankrupt. On the same day Scott and Carnahan were reappointed receivers in bankruptcy on petition of the bankrupt. June 22, 1927, a second adjudication in bankruptcy was made upon the involuntary petition theretofore filed. June 13, 1927, the District Court for the Northern District made and entered an order in the suit there pending, directing and commanding the commissioner of corporations of the state of California to forthwith deliver and turn over to the receivers appointed by that court all records, books of account, correspondence, and other documents of every kind and character theretofore taken, seized, or received by the commissioner and belonging to the corporation. June 14, 1927, the District Court for the Southern District issued a restraining order in the bankruptcy proceeding, on petition of the receivers appointed by that court, enjoining and restraining the commissioner of corporations from delivering or turning over the books of account, records, correspondence, and other documents belonging to the corporation, as directed by the order made and entered in the Northern District. The receivers appointed in the Northern District thereupon petitioned this court for an order directing the judge of the District Court of the Southern District to show cause why the order appointing the receivers in bankruptcy, and the order directed against the commissioner of corporations should not be annulled and canceled. We issued a show cause order as prayed, and from the returns made by the judge against whom the order was directed, and the receivers appointed by him, and from the original petition filed in this court, the foregoing facts appear. Many important questions have been raised or suggested by the respective parties on the argument before this court, such as a want of jurisdiction in the District Court of the Northern District to appoint the receivers; invalidity of the order appointing the ancillary receivers in. the Southern District, such order having been made on the petition of the receivers appointed in the Northern District, without the institution of any other suit or proceeding there; want of jurisdiction in the bankruptcy court to appoint the receivers, and a want of jurisdiction in this court to review the orders complained of; but the necessity for an early decision is such that we will simply direct our attention to what we deem the controlling question in the case. It is well settled that the jurisdiction of the courts of bankruptcy established by the national Bankruptcy Act (Comp. St. § 9585 et seq.) is exclusive of all other courts, whether state or federal. As said by the Supreme Court in Re Watts and Sachs, 190 U. S. 1, 23 S. Ct. 718, 47 L. Ed. 933: “And the operation of the bankruptcy laws of the United States cannot be defeated by insolvent commercial corporations applying to be wound up under state statutes. The Bankruptcy Law is paramount, and the jurisdiction of the federal courts in bankruptcy, when properly invoked, in the administration of the affairs of insolvent persons and corporations, is essentially exclusive. * * * rpjjg generai as between courts of concurrent jurisdiction is that property already in possession of the receiver of one court cannot rightfully be taken from him without the court’s consent, by the receiver of another court appointed in a subsequent suit, but that rule can have only a qualified application where winding up proceedings are superseded by those in bankruptcy as to which the jurisdiction is not concurrent.” Again, in United States Fidelity & Guaranty Co. v. Bray, 225 U. S. 205, 32 S. Ct. 620, 56 L. Ed. 1055, the same court said: “We think it is a necessary conclusion from these and other provisions of the act that the jurisdiction of the bankruptcy courts in all ‘proceedings in bankruptcy’ is intended to be exclusive of all other courts, and that such proceedings include, among others, all matters of administration. * * * A distinct purpose of the Bankruptcy Act is to subject the administration of the estates of bankrupts to the control of tribunals clothed with authority and charged with the duty of proceeding to final settlement and distribution in a summary way, as are the courts of bankruptcy. Creditors are entitled to have this authority exercised, and justly may complain when, as here, an important part of the administration is sought to be effected through the slower and less appropriate processes of a plenary suit in equity in another court, involving collateral and extraneous matters with which they have no concern, such as the controversy between the complainant and the indemnitor banks. Of the fact that the suit was begun in the Circuit Court with the express leave of the court of bankruptcy, it suffices to say that the latter was not at liberty to surrender its exclusive control over matters of administration or to confide them to another tribunal.” See, also, United States v. Wood (C. C. A.) 290 F. 109; In re Yaryan Naval Stores Co. (C. C. A.) 214 F. 563; In re American & British Mfg. Corporation (D. C.) 300 F. 839. Such being the exclusive nature of the jurisdiction conferred on the bankruptcy courts, the solution of the question before us is not difficult. Nor need we concern ourselves with the validity or propriety of the different orders, when made by the different courts, because tbe disposition of tbe case must rest on facts and conditions as they exist at present. Tbe order of adjudication in bankruptcy and tbe order appointing receivers in that proceeding are fair upon their face, and are not subject to collateral attaek in this court or elsewhere. It is contended that there was no necessity for the appointment of the receivers in bankruptcy, inasmuch as the assets of the bankruptcy, corporation were already in the custody of receivers appointed by the two courts; but the court below found that the appointment of such receivers was- absolutely necessary for the preservation of the estate, and that finding is conclusive unless or until set aside on a direct appeal. The question, therefore, is this: As between the equity receivers appointed in the Northern District and the bankruptcy, receivers appointed in the Southern District, which has the superior right to the custody of books and papers belonging to the bankrupt and not now in the possession or custody of the receivers appointed by either court? If the jurisdiction of the bankruptcy court is paramount and exclusive, it seems to us that this question admits of but one. answer. Should the equity receivers gain possession of the books and documents in question, it would become their duty to immediately surrender them to the receivers appointed by the bankruptcy court, on a proper demand tberefor, and why. should they, reach their proper custody in this roundabout way. Any attempt at a double administration of this estate by two sets of receivers can only result in needless .expense, delay, confusion, and ■unseeming conflict. To prevent just such things, bankruptcy courts were established, and endowed with full and complete jurisdiction to enforce a- single and simple administration. The petition is denied. Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:
sc_certreason	K	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. ROCK v. ARKANSAS No. 86-130. Argued March 23, 1987 Decided June 22, 1987 Blackmun, J., delivered the opinion of the Court, in which Brennan, Marshall, Powell, and Stevens, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which White, O’Connor, and Scalia, JJ., joined, post, p. 62. James M. Luffman argued the cause and filed briefs for petitioner. J. Steven Clark, Attorney General of Arkansas, argued the cause for respondent. With him on the brief was Clint Miller, Assistant Attorney General. John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, and Shirley A. Nelson and Garrett Beaumont, Deputy Attorneys General, filed a brief for the State of California as amicus curiae urging affirmance. David M. Heilbron and Christopher Berka filed a brief for the Product Liability Advisory Council et al. as amici curiae. Justice Blackmun delivered the opinion of the Court. The issue presented in this case is whether Arkansas’ evidentiary rule prohibiting the admission of hypnotically refreshed testimony violated petitioner’s constitutional right to testify on her own behalf as a defendant in a criminal case. I Petitioner Vickie Lorene Rock was charged with manslaughter in the death of her husband, Frank Rock, on July 2, 1983. A dispute had been simmering about Frank’s wish to move from the couple’s small apartment adjacent to Vickie’s beauty parlor to a trailer she owned outside town. That night a fight erupted when Frank refused to let petitioner eat some pizza and prevented her from leaving the apartment to get something else to eat. App. 98, 103-104. When police arrived on the scene they found Frank on the floor with a bullet wound in his chest. Petitioner urged the officers to help her husband, Tr. 230, and cried to a sergeant who took her in charge, “please save him” and “don’t let him die.” Id., at 268. The police removed her from the building because she was upset and because she interfered with their investigation by her repeated attempts to use the telephone to call her husband’s parents. Id., at 263-264, 267-268. According to the testimony of one of the investigating officers, petitioner told him that “she stood up to leave the room and [her husband] grabbed her by the throat and choked her and threw her against the wall and... at that time she walked over and picked up the weapon and pointed it toward the floor and he hit her again and she shot him.” Id., at 281. Because petitioner could not remember the precise details of the shooting, her attorney suggested that she submit to hypnosis in order to refresh her memory. Petitioner was hypnotized twice by Doctor Bettye Back, a licensed neuropsychologist with training in the field of hypnosis. Id., at 901-903. Doctor Back interviewed petitioner for an hour prior to the first hypnosis session, taking notes on petitioner’s general history and her recollections of the shooting. App. 46-47. Both hypnosis sessions were recorded on tape. Id., at 53. Petitioner did not relate any new information during either of the sessions, id., at 78, 83, but, after the hypnosis, she was able to remember that at the time of the incident she had her thumb on the hammer of the gun, but had not held her finger on the trigger. She also recalled that the gun had discharged when her husband grabbed her arm during the scuffle. Id., at 29, 38. As a result of the details that petitioner was able to remember about the shooting, her counsel arranged for a gun expert to examine the handgun, a single-action Hawes.22 Deputy Marshal. That inspection revealed that the gun was defective and prone to fire, when hit or dropped, without the trigger’s being pulled. Tr. 662-663, 711. When the prosecutor learned of the hypnosis sessions, he filed a motion to exclude petitioner’s testimony. The trial judge held a pretrial hearing on the motion and concluded that no hypnotically refreshed testimony would be admitted. The court issued an order limiting petitioner’s testimony to “matters remembered and stated to the examiner prior to being placed under hypnosis.” App. to Pet. for Cert, xvii. At trial, petitioner introduced testimony by the gun expert, Tr. 647-712, but the court limited petitioner’s own description of the events on the day of the shooting to a reiteration of the sketchy information in Doctor Back’s notes. See App. 96-104. The jury convicted petitioner on the manslaughter charge and she was sentenced to 10 years’ imprisonment and a $10,000 fine. On appeal, the Supreme Court of Arkansas rejected petitioner’s claim that the limitations on her testimony violated her right to present her defense. The court concluded that “the dangers of admitting this kind of testimony outweigh whatever probative value it may have,” and decided to follow the approach of States that have held hypnotically refreshed testimony of witnesses inadmissible per se. 288 Ark. 566, 573, 708 S. W. 2d 78, 81 (1986). Although the court acknowledged that “a defendant’s right to testify is fundamental,” id., at 578, 708 S. W. 2d, at 84, it ruled that the exclusion of petitioner’s testimony did not violate her constitutional rights. Any “prejudice or deprivation” she suffered “was minimal and resulted from her own actions and not by any erroneous ruling of the court.” Id., at 580, 708 S. W. 2d, at 86. We granted certiorari, 479 U. S. 947 (1986), to consider the constitutionality of Arkansas’ per se rule excluding a criminal defendant’s hypnotically refreshed testimony. II Petitioner’s claim that her testimony was impermissibly excluded is bottomed on her constitutional right to testify in her own defense. At this point in the development of our adversary system, it cannot be doubted that a defendant in a criminal case has the right to take the witness stand and to testify in his or her own defense. This, of course, is a change from the historic common-law view, which was that all parties to litigation, including criminal defendants, were disqualified from testifying because of their interest in the outcome of the trial. See generally 2 J. Wigmore, Evidence §§576, 579 (J. Chadbourn rev. 1979). The principal rationale for this rule was the possible untrustworthiness of a party’s testimony. Under the common law, the practice did develop of permitting criminal defendants to tell their side of the story, but they were limited to making an unsworn statement that could not be elicited through direct examination by counsel and was not subject to cross-examination. Id., at §579, p. 827. This Court in Ferguson v. Georgia, 365 U. S. 570, 573-582 (1961), detailed the history of the transition from a rule of a defendant’s incompetency to a rule of competency. As the Court there recounted, it came to be recognized that permitting a defendant to testify advances both the “ ‘detection of guilt’” and “‘the protection of innocence,’” id., at 581, quoting 1 Am. L. Rev. 396 (1867), and by the end of the second half of the 19th century, all States except Georgia had enacted statutes that declared criminal defendants competent to testify. See 365 U. S., at 577 and n. 6, 596-598. Congress enacted a general competency statute in the Act of Mar. 16, 1878, 20 Stat. 30, as amended, 18 U. S. C. § 3481, and similar developments followed in other common-law countries. Thus, more than 25 years ago this Court was able to state: “In sum, decades ago the considered consensus of the English-speaking world came to be that there was no rational justification for prohibiting the sworn testimony of the accused, who above all others may be in a position to meet the prosecution’s case.” Ferguson v. Georgia, 365 U. S., at 582. The right to testify on one’s own behalf at a criminal trial has sources in several provisions of the Constitution. It is one of the rights that “are essential to due process of law in a fair adversary process.” Faretta v. California, 422 U. S. 806, 819, n. 15 (1975). The necessary ingredients of the Fourteenth Amendment’s guarantee that no one shall be deprived of liberty without due process of law include a right to be heard and to offer testimony: “A person’s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense — a right to his day in court — are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.” (Emphasis added.) In re Oliver, 333 U. S. 257, 273 (1948). See also Ferguson v. Georgia, 365 U. S., at 602 (Clark, J., concurring) (Fourteenth Amendment secures “right of a criminal defendant to choose between silence and testifying in his own behalf”). The right to testify is also found in the Compulsory Process Clause of the Sixth Amendment, which grants a defendant the right to call “witnesses in his favor,” a right that is guaranteed in the criminal courts of the States by the Fourteenth Amendment. Washington v. Texas, 388 U. S. 14, 17-19 (1967). Logically included in the accused’s right to call witnesses whose testimony is “material and favorable to his defense,” United States v. Valenzuela-Bernal, 458 U. S. 858, 867 (1982), is a right to testify himself, should he decide it is in his favor to do so. In fact, the most important witness for the defense in many criminal cases is the defendant himself. There is no justification today for a rule that denies an accused the opportunity to offer his own testimony. Like the truthfulness of other witnesses, the defendant’s veracity, which was the concern behind the original common-law rule, can be tested adequately by cross-examination. See generally Westen, The Compulsory Process Clause, 73 Mich. L. Rev. 71, 119-120 (1974). Moreover, in Faretta v. California, 422 U. S., at 819, the Court recognized that the Sixth Amendment “grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be ‘informed of the nature and cause of the accusation,’ who must be ‘confronted with the witnesses against him,’ and who must be accorded ‘compulsory process for obtaining witnesses in his favor.’” (Emphasis added.) Even more fundamental to a personal defense than the right of self-representation, which was found to be “necessarily implied by the structure of the Amendment,” ibid., is an accused’s right to present his own version of events in his own words. A defendant’s opportunity to conduct his own defense by calling witnesses is incomplete if he may not present himself as a witness. The opportunity to testify is also a necessary corollary to the Fifth Amendment’s guarantee against compelled testimony. In Harris v. New York, 401 U. S. 222, 230 (1971), the Court stated: “Every criminal defendant is privileged to testify in his own defense, or to refuse to do so.” Id., at 225. Three of the dissenting Justices in that case agreed that the Fifth Amendment encompasses this right: “[The Fifth-Amendment’s privilege against self-incrimination] is fulfilled only when an accused is guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered exercise of his own will.’... The choice of whether to testify in one’s own defense... is an exercise of the constitutional privilege.” Id., at 230, quoting Malloy v. Hogan, 378 U. S. 1, 8 (1964). (Emphasis removed.) Ill The question now before the Court is whether a criminal defendant’s right to testify may be restricted by a state rule that excludes her posthypnosis testimony. This is not the first time this Court has faced a constitutional challenge to a state rule, designed to ensure trustworthy evidence, that interfered with the ability of a defendant to offer testimony. In Washington v. Texas, 388 U. S. 14 (1967), the Court was confronted with a state statute that prevented persons charged as principals, accomplices, or accessories in the same crime from being introduced as witnesses for one another. The statute, like the original common-law prohibition on testimony by the accused, was grounded in a concern for the reliability of evidence presented by an interested party: “It was thought that if two'persons charged with the same crime were allowed to testify on behalf of each other, ‘each would try to swear the other out of the charge.’ This rule, as well as the other disqualifications for interest, rested on the unstated premises that the right to present witnesses was subordinate to the court’s interest in preventing perjury, and that erroneous decisions were best avoided by preventing the jury from hearing any testimony that might be perjured, even if it were the only testimony available on a crucial issue.” (Footnote omitted.) Id., at 21, quoting Benson v. United States, 146 U. S. 325, 335 (1892). As the Court recognized, the incompetency of a codefendant to testify had been rejected on nonconstitutional grounds in 1918, when the Court, refusing to be bound by “the dead hand of the common-law rule of 1789,” stated: “ ‘[T]he conviction of our time [is] that the truth is more likely to be arrived at by hearing the testimony of all persons of competent understanding who may seem to have knowledge of the facts involved in a case, leaving the credit and weight of such testimony to be determined by the jury or by the court....’” 388 U. S., at 22, quoting Rosen v. United States, 245 U. S. 467, 471 (1918). The Court concluded that this reasoning was compelled by the Sixth Amendment’s protections for the accused. In particular, the Court reasoned that the Sixth Amendment was designed in part “to make the testimony of a defendant’s witnesses admissible on his behalf in court.” 388 U. S., at 22. With the rationale for the common-law incompetency rule thus rejected on constitutional grounds, the Court found that the mere presence of the witness in the courtroom was not enough to satisfy the Constitution’s Compulsory Process Clause. By preventing the defendant from having the benefit of his accomplice’s testimony, “the State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.” (Emphasis added.) Id., at 23. Just as a State may not apply an arbitrary rule of competence to exclude a material defense witness from taking the stand, it also may not apply a rule of evidence that permits a witness to take the stand, but arbitrarily excludes material portions of his testimony. In Chambers v. Mississippi, 410 U. S. 284 (1973), the Court invalidated a State’s hearsay rule on the ground that it abridged the defendant’s right to “present witnesses in his own defense.” Id., at 302. Chambers was tried for a murder to which another person repeatedly had confessed in the presence of acquaintances. The State’s hearsay rule, coupled with a “voucher” rule that did not allow the defendant to cross-examine the confessed murderer directly, prevented Chambers from introducing testimony concerning these confessions, which were critical to his defense. This Court reversed the judgment of conviction, holding that when a state rule of evidence conflicts with the right to present witnesses, the rule may “not be applied mechanistically to defeat the ends of justice,” but must meet the fundamental standards of due process. Ibid. In the Court’s view, the State in Chambers did not demonstrate that the hearsay testimony in that case, which bore “assurances of trustworthiness” including corroboration by other evidence, would be unreliable, and thus the defendant should have been able to introduce the exculpatory testimony. Ibid. Of course, the right to present relevant testimony is not without limitation. The right “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Id., at 295. But restrictions of a defendant’s right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve. In applying its evidentiary rules a State must evaluate whether the interests served by a rule justify the limitation imposed on the defendant’s constitutional right to testify. IV The Arkansas rule enunciated by the state courts does not allow a trial court to consider whether posthypnosis testimony may be admissible in a particular case; it is a per se rule prohibiting the admission at trial of any defendant’s hypnotically refreshed testimony on the ground that such testimony is always unreliable. Thus, in Arkansas, an accused’s testimony is limited to matters that he or she can prove were remembered before hypnosis. This rule operates to the detriment of any defendant who undergoes hypnosis, without regard to the reasons for it, the circumstances under which it took place, or any independent verification of the information it produced. In this case, the application of that rule had a significant adverse effect on petitioner’s ability to testify. It virtually prevented her from describing any of the events that occurred on the day of the shooting, despite corroboration of many of those events by other witnesses. Even more importantly, under the court’s rule petitioner was not permitted to describe the actual shooting except in the words contained in Doctor Back’s notes. The expert’s description of the gun’s tendency to misfire would have taken on greater significance if the jury had heard petitioner testify that she did not have her finger on the trigger and that the gun went off when her husband hit her arm. In establishing its per se rule, the Arkansas Supreme Court simply followed the approach taken by a number of States that have decided that hypnotically enhanced testimony should be excluded at trial on the ground that it tends to be unreliable. Other States that have adopted an exclusionary rule, however, have done so for the testimony of witnesses, not for the testimony of a defendant. The Arkansas Supreme Court failed to perform the constitutional analysis that is necessary when a defendant’s right to testify is at stake. Although the Arkansas court concluded that any testimony that cannot be proved to be the product of prehypnosis memory is unreliable, many courts have eschewed a per se rule and permit the admission of hypnotically refreshed testimony. Hypnosis by trained physicians or psychologists has been recognized as a valid therapeutic technique since 1958, although there is no generally accepted theory to explain the phenomenon, or even a consensus on a single definition of hypnosis. See Council on Scientific Affairs, Scientific Status of Refreshing Recollection by the Use of Hypnosis, 253 J. A. M. A. 1918, 1918-1919 (1985) (Council Report). The use of hypnosis in criminal investigations, however, is controversial, and the current medical and legal view of its appropriate role is unsettled. Responses of individuals to hypnosis vary greatly. The popular belief that hypnosis guarantees the accuracy of recall is as yet without established foundation and, in fact, hypnosis often has no effect at all on memory. The most common response to hypnosis, however, appears to be an increase in both correct and incorrect recollections. Three general characteristics of hypnosis may lead to the introduction of inaccurate memories: the subject becomes “suggestible” and may try to please the hypnotist with answers the subject thinks will be met with approval; the subject is likely to “confabulate,” that is, to fill in details from the imagination in order to make an answer more coherent and complete; and, the subject experiences “memory hardening,” which gives him great confidence in both true and false memories, making effective cross-examination more difficult. See generally M. Orne et al., Hypnotically Induced Testimony, in Eyewitness Testimony: Psychological Perspectives 171 (G. Wells & E. Loftus, eds., 1984); Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Calif. L. Rev. 313, 333-342 (1980). Despite the unreliability that hypnosis concededly may introduce, however, the procedure has been credited as instrumental in obtaining investigative leads or identifications that were later confirmed by independent evidence. See, e. g., People v. Hughes, 59 N. Y. 2d 523, 533, 453 N. E. 2d 484, 488 (1983); see generally R. Udolf, Forensic Hypnosis 11-16 (1983). The inaccuracies the process introduces can be reduced, although perhaps not eliminated, by the use of procedural safeguards. One set of suggested guidelines calls for hypnosis to be performed only by a psychologist or psychiatrist with special training in its use and who is independent of the investigation. See Orne, The Use and Misuse of Hypnosis in Court, 27 Int’l J. Clinical and Experimental Hypnosis 311, 335-336 (1979). These procedures reduce the possibility that biases will be communicated to the hypersuggestive subject by the hypnotist. Suggestion will be less likely also if the hypnosis is conducted in a neutral setting with no one present but the hypnotist and the subject. Tape or video recording of all interrogations, before, during, and after hypnosis, can help reveal if leading questions were asked. Id., at 336. Such guidelines do not guarantee the accuracy of the testimony, because they cannot control the subject’s own motivations or any tendency to confabulate, but they do provide a means of controlling overt suggestions. The more traditional means of assessing accuracy of testimony also remain applicable in the case of a previously hypnotized defendant. Certain information recalled as a result of hypnosis may be verified as highly accurate by corroborating evidence. Cross-examination, even in the face of a confident defendant, is an effective tool for revealing inconsistencies. Moreover, a jury can be educated to the risks of hypnosis through expert testimony and cautionary instructions. Indeed, it is probably to a defendant’s advantage to establish carefully the extent of his memory prior to hypnosis, in order to minimize the decrease in credibility the procedure might introduce. We are not now prepared to endorse without qualifications the use of hypnosis as an investigative tool; scientific understanding of the phenomenon and of the means to control the effects of hypnosis is still in its infancy. Arkansas, however, has not justified the exclusion of all of a defendant’s testimony that the defendant is unable to prove to be the product of prehypnosis memory. A State’s legitimate interest in barring unreliable evidence does not extend to per se exclusions that may be reliable in an individual case. Wholesale inadmissibility of a defendant’s testimony is an arbitrary restriction on the right to testify in the absence of clear evidence by the State repudiating the validity of all post-hypnosis recollections. The State would be well within its powers if it established guidelines to aid trial courts in the evaluation of posthypnosis testimony and it may be able to show that testimony in a particular case is so unreliable that exclusion is justified. But it has not shown that hypnotically enhanced testimony is always so untrustworthy and so immune to the traditional means of evaluating credibility that it should disable a defendant from presenting her version of the events for which she is on trial. In this case, the defective condition of the gun corroborated the details petitioner remembered about the shooting. The tape recordings provided some means to evaluate the hypnosis and the trial judge concluded that Doctor Back did not suggest responses with leading questions. See n. 3, supra. Those circumstances present an argument for admissibility of petitioner’s testimony in this particular case, an argument that must be considered by the trial court. Arkansas’ per se rule excluding all posthypnosis testimony infringes impermissibly on the right of a defendant to testify on his own behalf. The judgment of the Supreme Court of Arkansas is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion. It is so ordered. Another officer reported a slightly different version of the events: “She stated that she had told her husband that she was going to go outside. He refused to let her leave and grabbed her by the throat and began choking her. They struggled for a moment and she grabbed a gun. She told him to leave her alone and he hit her at which time the gun went off. She stated that it was an accident and she didn’t mean to shoot him. She said she had to get to the hospital and talk to him.” Tr. 388. See also id., at 301-304, 337-338; App. 3-10. Doctor Back’s handwritten notes regarding petitioner’s memory of the day of the shooting read as follows: “Pt states she & husb. were discussing moving out to a trailer she had prev. owned. He was ‘set on’ moving out to the trailer — she felt they should discuss. She becfame] upset & went to another room to lay down. Bro. came & left. She came out to eat some of the pizza, he wouldn’t allow her to have any. She said she would go out and get [something] to eat he wouldn’t allow her — He pushed her against a wall an end table in the corner [with] a gun on it. They were the night watchmen for business that sets behind them. She picked gun up stated she didn’t want him hitting her anymore. He wouldn’t let her out door, slammed door & ‘gun went off & he fell & he died’ [pt looked misty eyed here — near tears]” (additions by Doctor Back). App. 40. The full pretrial order reads as follows: “NOW on this 26th day of November, 1984, comes on the captioned matter for pre-trial hearing, and the Court finds: “1. On September 27 and 28,1984, Defendant was placed under hypnotic trance by Dr. Bettye Back, PhD, Fayetteville, Arkansas, for the express purpose of enhancing her memory of the events of July 2, 1983, involving the death of Frank Rock. “2. Dr. Back was professionally qualified to administer hypnosis. She was objective in the application of the technique and did not suggest by leading questions the responses expected to be made by Defendant. She was employed on an independent, professional basis. She made written notes of facts related to her by Defendant during the pre-hypnotic interview. She did employ post-hypnotic suggestion with Defendant. No one else was present during any phase of the hypnosis sessions except Dr. Back and Defendant. “3. Defendant cannot be prevented by the Court from testifying at her trial on criminal charges under the Arkansas Constitution, but testimony of matters recalled by Defendant due to hypnosis will be excluded because of inherent unreliability and the effect of hypnosis in eliminating any meaningful cross-examination on those matters. Defendant may testify to matters remembered and stated to the examiner prior to being placed under hypnosis. Testimony resulting from post-hypnotic suggestion will be excluded.” App. to Pet. for Cert. xvii. When petitioner began to testify, she was repeatedly interrupted by the prosecutor, who objected that her statements fell outside the scope of the pretrial order. Each time she attempted to describe an event on the day of the shooting, she was unable to proceed for more than a few words before her testimony was ruled inadmissible. For example, she was unable to testify without objection about her husband’s activities on the morning of the shooting, App. 11, about their discussion and disagreement concerning the move to her trailer, id., at 12, 14, about her husband’s and his brother’s replacing the shock absorbers on a van, id., at 16, and about her brother-in-law’s return to eat pizza, id., at 19-20. She then made a proffer, outside the hearing of the jury, of testimony about the fight in an attempt to show that she could adhere to the court’s order. The prosecution objected to every detail not expressly described in Doctor Back’s notes or in the testimony the doctor gave at the pretrial hearing. Id., at 32-35. The court agreed with the prosecutor’s statement that “ninety-nine percent of everything [petitioner] testified to in the proffer” was inadmissible. Id., at 35. The removal of the disqualifications for accused persons occurred later than the establishment of the competence to testify of civil parties. 2 J. Wigmore, Evidence § 579, p. 826 (J. Chadbourn rev. 1979). This was not due to concern that criminal defendants were more likely to be unreliable than other witnesses, but to a concern for the accused: “If, being competent, he failed to testify, that (it was believed) would damage his cause more seriously than if he were able to claim that his silence were enforced by law. Moreover, if he did testify, that (it was believed) would injure more than assist his cause, since by undergoing the ordeal of cross-examination, he would appear at a disadvantage dangerous even to an innocent man.” Id., at 828. The Arkansas Constitution guarantees an accused the right “to be heard by himself and his counsel.” Art. 2, § 10. Rule 601 of the Arkansas Rules of Evidence provides a general rule of competency: “Every person is competent to be a witness except as otherwise provided in these rules.” Ferguson v. Georgia struck down as unconstitutional under the Fourteenth Amendment a Georgia statute that limited a defendant’s presentation at trial to an unsworn statement, insofar as it denied the accused “the right to have his counsel question him to elicit his statement.” 365 U. S., at 596. The Court declined to reach the question of a defendant’s constitutional right to testify, because the case did not involve a challenge to the particular Georgia statute that rendered a defendant incompetent to testify. Id., at 572, n. 1. Two Justices, however, urged that such a right be recognized explicitly. Id., at 600-601, 602 (concurring opinions). Before Ferguson v. Georgia, it might have been argued that a defendant’s ability to present an unsworn statement would satisfy this right. Once that procedure was eliminated, however, there was no longer any doubt that the right to be heard, which is so essential to due process in an adversary system of adjudication, could be vindicated only by affording a defendant an opportunity to testify before the factfinder. This right reaches beyond the criminal trial: the procedural due process constitutionally required in some extrajudicial proceedings includes the right of the affected person to testify. See, e. g., Gagnon v. Scarpelli, 411 U. S. 778, 782, 786 (1973) (probation revocation); Morrissey v. Brewer, 408 U. S. 471, 489 (1972) (parole revocation); Goldberg v. Kelly, 397 U. S. 254, 269 (1970) (termination of welfare benefits). On numerous occasions the Court has proceeded on the premise that the right to testify on one’s own behalf in defense to a criminal charge is a fundamental constitutional right. See, e. g., Nix v. Whiteside, 475 U. S. 157, 164 (1986); id., at 186, n. 5 (Blackmun, J., concurring in judgment); Jones v. Barnes, 463 U. S. 745, 751 (1983) (defendant has the “ultimate authority to make certain fundamental decisions regarding the case, as to whether to... testify in his or her own behalf”); Brooks v. Tennessee, 406 U. S. 605, 612 (1972) (“Whether the defendant is to testify is an important tactical decision as well as a matter of constitutional right”). Numerous state procedural and evidentiary rules control the presentation of evidence and do not offend the defendant’s right to testify. See, e. g., Chambers v. Mississippi, 410 U. S., at 302 (“In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence”); Washington v. Texas, 388 U. S. 14, 23, n. 21 (1967) (opinion should not be construed as disapproving testimonial privileges or nonarbitrary rules that disqualify those incapable of observing events due to mental infirmity or infancy from being witnesses). The rule leaves a trial judge no discretion to admit this testimony, even if the judge is persuaded of its reliability by testimony at a pretrial hearing. Tr. of Oral Arg. 36 (statement of the Attorney General of Arkansas). The Arkansas Supreme Court took the position that petitioner was fully responsible for any prejudice that resulted from the restriction on her testimony because it was she who chose to resort to the technique of hypnosis. 288 Ark. 566, 580, 708 S. W. 2d 78, 86 (1986). The prosecution and the trial court each expressed a similar view and the theme was renewed repeatedly at trial as a justification for limiting petitioner’s testimony. See App. 15, 20, 21-22, 24, 36. It should be noted, however, that Arkansas had given no previous indication that it looked with disfavor on the use of hypnosis to assist in the preparation for trial and there were no previous state-court rulings on the issue. See, e. g., Contreras v. State, 718 P. 2d 129 (Alaska 1986); State ex rel. Collins v. Superior Court, County of Maricopa, 132 Ariz. 180, 207-208, 644 P. 2d 1266, 1293-1294 (1982); People v. Quintanar, 659 P. 2d 710, 711 (Colo. App. 1982); State v. Davis, 490 A. 2d 601 (Del. Super. 1985); Bundy v. State, 471 So. 2d 9, 18-19 (Fla. 1985), cert. denied, 479 U. S. 894 (1986); State v. Moreno, 68 Haw. 233, 709 P. 2d 103 (1985); State v. Haislip, 237 Kan. 461, 482, 701 P. 2d 909, 925-926, cert. denied, 474 U. S. 1022 (1985); State v. Collins, 296 Md. 670, 464 A. 2d 1028 (1983); Commonwealth v. Kater, 388 Mass. 519, 447 N. E. 2d 1190 (1983); People v. Gonzales, 415 Mich. 615, 329 N. W. 2d 743 (1982), opinion added to, 417 Mich. 1129, 336 N. W. 2d 751 (1983); Alsbach v. Bader, 700 S. W. 2d 823 (Mo. 1985); State v. Palmer, 210 Neb. 206, 218, 313 N. W. 2d 648, 655 (1981); People v. Hughes, 59 N. Y. 2d 523, 453 N. E. 2d 484 (1983); Robison v. State, 677 P. 2d 1080, 1085 (Okla. Crim. App.), cert. denied, 467 U. S. 1246 (1984); Commonwealth v. Nazarovitch, 496 Pa. 97, 110, 436 A. 2d 170, 177 (1981); State v. Martin, 101 Wash. 2d 713, 684 P. 2d 651 (1984). See State v. Ture, 353 N. W. 2d 502, 513-514 (Minn. 1984). The Arkansas court relied on a California case, People v. Shirley, 31 Cal. 3d 18, 723 P. 2d 1354, cert. denied, 459 U. S. 860 (1982), for much of its reasoning as to the unreliability of hypnosis. 288 Ark., at 575-578, 708 S. W. 2d, at 83-84. But while the California court adopted a far stricter general rule — barring entirely testimony by any witness who has been hypnotized — it explicitly excepted testimony by an accused: “[W]hen it is the defendant himself — not merely a defense witness — who submits to pretrial hypnosis, the experience will not render his testimony inadmissible if he elects to take the stand. In that case, the rule we adopt herein is subject to a necessary exception to avoid impairing the fundamental right of an accused to 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_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. ÆTNA LIFE INS. CO. v. DUNN et al. No. 6030. Circuit Court of Appeals, Third Circuit. June 19, 1936. Charles W. Broadhurst, of Jersey City, N. J., for appellant. ' John W. Palmer, of Newark, N. J., for appellees. Before BUFFINGTON, Circuit Judge, and DICKINSON and FORMAN, District Judges. BUFFINGTON, Circuit Judge. In the court below Phyllis Dunn and Katherine Van Wagoner, citizens of New Jersey, brought suit and recovered verdicts against the ¿Etna Life Insurance Company, a corporate citizen of Connecticut, to recover damages for injuries suffered by them through the alleged negligence of Whitcomb Rummell, the driver of a car owned by Miss Mona K. Noble, a nurse employed at a hospital, who had an indemnity policy of said company. On entry of judgment, the insurance company took this appeal. The policy provided: “IV. Additional Interests. While any automobile covered hereby is being used with the consent of the assured * * , the provisions of this policy with respect to claims on account of damage to property of others or injury to the person and/or death of others, shall inure to the benefit of any person operating or riding in * * said .automobile * * The basic question involved, as stated in appellant’s brief, is: “1. Was the automobile insured, as a matter of law, at the time of the accident being used with the express or implied consent of the owner for the particular use to which it was being put?” From the proofs it appears that Miss Noble and Rummell used her car when driving together on Friday. When they parted, Rummell, who lived some distance away, was allowed by her to take the car to his house and return with it on Sunday, when they arranged to take another drive. On Saturday Rummell drove the plaintiffs, two young ladies, to see a ball game, and on returning therefrom they were injured in a collision caused by Rummell’s negligence. The court in its charge left to the jury the question whether, as provided by the policy, the automobile was at the time of the accident “being used with the consent of the owner,” charging as follows: “The policy, according to its provisions, protected the driver Rummell only while the automobile covered by the policy was being used with the consent of the owner, Mona Noble. “For the- use of the automobile to. be with the consent of Mona Noble within the meaning and effect of the policy, the consent must have been given, impliedly at least, not only to the taking and use of the car in the first instance, but also to the particular use being made of the car at the time of the accident in question. “If the plaintiffs, therefore, have failed to prove by the greater weight of the evidence that the particular use of the car at the time of the accident by the driver Rummell was with the consent, impliedly at least, of the owner Mona Noble, they cannot recover, and your verdict must be for the defendant. “Now, the plaintiffs contend that that consent existed by implication. The defendant denies it. “You have heard the testimony of the witnesses and it is my view that there is an issue of fact on that question of implied consent for this particular purpose, and that issue, therefore, I am leaving to you. If you resolve it in favor of the plaintiffs, of course, you will award them the damages agreed upon, which are $3431.31 and $846.57.” The case, therefore, resolves itself into the question whether the trial judge should have given binding instructions for the defendant. In that regard the case turned on the testimony of Miss Noble and Rummell. The testimony of Rummell was as follows: “Q. Between the time she got that automobile and up until the night of October 28 of 1933, how many times, about, if any, had she loaned you that automobile? A. I don’t remember definitely. I would say fifteen, at least. “By the Court: Q. Where was the car kept? A. She had a garage across the street from the hospital where she kept the car. “Q. Just tell us some of the occasions that she would come to loan you the car at previous times. How would that come about? A. During the time that I knew her I didn’t have a car, and when I went' out with her at night, why, I would go home with it. We would stay in front of the hospital and she would ask me if I would like to take the car and call for her the next time. “Q. Where did you take the car when you took it? A. I went home. “Q. Did you leave it in front of your house? A. In the driveway or garage. “O. You had a garage with your house? A. Yes. * * * “Q. You say you put Miss Noble’s car in your garage? A. No. “Q. In your driveway? A. Yes. ' “Q. What was the longest period of time that you had ever kept that car previous to this accident? A. Well, one time we had some trouble with it. The connecting rods were broken and it took about a week to fix it. “Q. At her garage? A. No, at my mechanic’s place of business, and after that time and during the time it was fixed I had the car about approximately five days. “Q. Where was it, in your garage? A. In the mechanic’s place. “Q. In your service station? A. No, at the mechanic’s. You see, I took the car to the mechanic to have it fixed and he kept it at his place a day or so, and during that time the car was away from her. She left it with me to see that it was fixed, and immediately after that, there were other little things. I would have a date with her and would get the car and then go home with the car after I saw her. “Q. Did you ever use it previously, to take other people about in? A. I don’t remember definitely. “Q. You must remember. Had you ever gone to football games in it before? A. No. “Q. Had you ever had other guests in it before? A. Yes, I think so. “Q. Who? A. Members of my family. “Q. Members of your own family? A. Yes. “Q. Where did you take them? A. Down to the village, shopping. “Q. In South Orange? A. Yes. * * * “Q. Who paid for the gasoline? A. Well, I put some in and she would put some in. “Q. There was no established custom? A. No. “By Mr. Palmer: Q. What Judge Clark asked you and what I would like to clear up, too, Mr. Rummell, is, before the night of this accident when she had loaned you the car, how long would you keep it? I know it would be different lengths of time. How long was the greatest time you had it? A. Five days. “Q. I mean when she would loan you the car, how long would you keep it at home? A. Two or three days. * * * “Q. Now, when you would return the car and in the course of conversation did you ever tell her the uses to which you were putting the car? A. Yes, sir. * * * “Q. Now, before you separated that evening, you and she, what, if anything, did she say to you about using the automobile? A. She asked me if I wanted to take the car and keep it over the week-end. “By the Court: Q. Did you tell her you were going over to take a couple of other girls out to a football game? ' A. I had no plans at that time. * * * “By Mr. Palmer: Q. What I want you to tell us, Mr. Rummell, any of those ten or fifteen times that she had ever loaned you the car, did she ever restrict you in its use? Did she tell you you could do certain things or not to do certain things? A. No. “Q. She just loaned it to you? A. Yes. “Q. In return for her leaving the car for you to use, did you do anything for her? “Mr. Broadhurst: I object to ‘in return ford ■ “Q. At times when she was loaning you the car this way, did you ever do anything for the benefit of the car without her asking you to do it? A. Yes. “Q. Such as what? Á. Well, I kept it greased and oiled. I changed the oil and put in gasoline. I worked at the service station and sometimes I would have free time on my hands and the car would be standing there and I would tighten up on things. “Q. What did you say when she said you could have the loan of the car over the week-end? A. I said yes. “Q. Then what did she then do? A. She gave me the registration card, and the keys were already in the car, and, as she was getting out of the car, it stalled, and she asked me to see if I couldn’t do anything to prevent stalling? “Q. She said the car had been stalling? A. Yes, I noticed it that day, in fact, myself. “Q. The next day, or later on that day, because it was early Saturday morning, did you make any efforts to overcome the stalling of the car, to fix it? A. Yes, in the morning I took out the plugs and cleaned them and fooled around with the carburetor and adjusted the carburetor and I think I cleaned the points. * * * • “Q. Let me ask you this question again, so there will be no possible confusion: .Will you state to me what Miss Noble said to you between 2:30 and 3 A. M. on the night that you left her at the hospital, just tell me what she said to you and you said to her about the use or possession of the car. A. She said, as far as I remember definitely now, she asked me if I wanted to take it and use it. I don’t know whether she said the week-end, or bring it back Sunday. I knew definitely I was to bring it back Sunday.” In contradiction, Miss Noble testified she had not told Rummell he could use the car. In that respect her testimony was: “Q. It has been testified in this case that previous to this occurrence Mr. Rummell had used your car — had the use of your car — -some ten or fifteen times, I think he testified. What, according to your recollection is the number of times that you had let him use the car? A. I would say not more than three or four times. * * * “Q. Without going into all the niceties of a young man saying good-night to his girl friend, and limiting myself particularly to the conversation that was had as to his leaving you and taking the car with him that Friday night, will you tell me what in substance, as near as you can remember, was said by you to him and he to you about his using the car? A. Well, I told him he could take the car home and he could bring it back to me Sunday when he came. “Q. How did you know he was coming back Sunday? A. Well, we had made a previous date for Sunday. “Q. And was there any time fixed for that previous date? A. No. “Q. Well, how was the time to be arrived at? A. He was supposed to call me Sunday and I could tell him what time I was off duty. “Q. That is, your hours of duty at the hospital are not fixed every day the same ? A. No, they are not.' “Q. I must not lead you and I must not suggest anything to you, so what else was said, what was said if anything in regard to repairs to the car? A. Nothing that I can recall. “Q. Did you say to Mr. Rummell that he could use the car over the week-end? A. I did not. * * * “Q. Now, when Mr. Rummell left you that night and you gave him your car, you gave him also your registration? A. I gave him my registration, yes. “Q. You always did that, didnt you? A. I loaned it to him three or four times and at those times I did that. “Q. Did you give him the keys to the car? A. Well, you would have to have them. “Q. You gave them to him, didn’t you? A. Yes.” After argument and due consideration of this and the other questions raised in the case, we are of opinion the court committed no error in refusing to take the case from the jury, and so holding, the judgments below are affirmed. Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_direct1	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. FEDCO, INC. and the Travelers Indemnity Company, Appellants, v. UNITED STATES of America ex rel. Fred O. JONES, Appellee. No. 19031. United States Court of Appeals Ninth Circuit. Oct. 26, 1964. Eugene I. Annis, Shields, Reiley & Annis, Leo H. Fredrickson, Fredrickson, Maxey & Bell, Spokane, Wash., for appellants. George R. Nethercutt, Spokane, Wash., for appellee. Before ORR, HAMLEY, and BROWNING, Circuit Judges. ORR, Circuit Judge. The government of the United States installed an underground missile facility at Larsen Air Force Base in the state of Washington. Shortly after its completion many leales in the tunnel complex developed. The government employed welding in an effort to stop the leaks. This proved unsuccessful. At the time there was in existence a comparatively new chemical “grouting-” process which offered some promise in stopping the leaks. The Army Corps of Engineers decided to employ this process and entered into a contract with appellant, Fedco, Inc., to perform some “grouting” work. The contract price was $87,537.98. Said contract contemplated that a qualified chemical grouting engineer should be provided by Fedco to supervise the entire grouting operation. Pursuant thereto, Fedco employed appellee, Fred O. Jones, acknowledged to be qualified. Under the terms of his employment Jones was to perform “all services required of Chemical Grouting Engineer” under Fedco’s contract with the government. He was to receive a fixed sum of $12,500 for his services. On May 10, 1962, the grouting operation commenced. It proceeded effectively and smoothly. During the time that the work was in progress several modifications of the contract were made, the first on July 27, 1962. This provided for acceleration of the work under the contract, moving the final completion date up to August 15,1962. For this modification Fedco was to receive an estimated additional $12,000 compensation. On August 1, August 16, and August 24, 1962, changes comprising a second modification were made. This provided for additional grouting work, and provided that the grouting operation be put upon an “around the clock” basis. The second modification increased the contract price by another estimated $25,391.40. A third modification was made August 29, 1962; this increased the contract price by an estimated $20,983.85. On July 16,1962, Jones — having knowledge that further grouting work would be required — sent a letter to Fedco, wherein he offered his services in the performance of additional work at his standard fee of $18.75 per hour plus expenses. The grouting work on the corrugated tunnels, contemplated by the original contract, was completed about August 21, 1962. Prior to that time, however, there was some grouting done on several neoprene seals in the missile complex. Subsequent to August 21 work continued on other neoprene seals, and on other repairs provided for in the modifications. Work under the contract between the government and Fedco, including the modifications, was completed on September 12,1962. Subsequently, an additional contract was entered into by Fedco and the government whereby Fedco was to sell the grouting machinery to the government and was to conduct a^ “school” relating to the use of this equipment. The school was to be conducted by Fred O. Jones. This contract terminated September 30, 1962. During the course of his employment Jones furnished all reports required of him under the original contract, as modified. Weekly reports were furnished until Jones was notified that the government no longer desired them. At the conclusion of his employment, Jones delivered to Felco a detailed final report- — apparently not required by the government — ■ with a summary and recommendations. Some time after the grouting work and the school instruction had been completed, the government requested of Fedco a final compilation of “reproducible weekly reports.” These were compiled by Fedco from daily reports kept by the grouting engineer and his assistant on the job, at a cost, according to Fedco, of $1300. The evidence as to whether these reports were required by the government to be made by the grouting engineer, and as to whether Fedco requested Jones to complete said reports, is conflicting. On September 15, 1962, in a letter to Fedco, Jones requested payment of amounts still due him. On October 18, 1962, Fedco sent a letter to Jones denying that it was indebted to Jones in any amount for work done before August 30, 1962, the final termination date of the original contract. The letter also stated that Fedco would deduct from the amount due Jones the amount paid to an assistant hired by Fedco to assist Jones. On November 13, 1962, Jones entered into a contract with the government to prepare a complete report on the chemical grouting at the missile site. This job-history report was made partly from knowledge he had acquired while on the grouting job; but the evidence discloses that it was compiled mainly from reports made to the government by Fedco relating to the grouting job. These latter reports were the property of the United States Government. Jones received $4925 for said job-history report. Pursuant to the refusal of Fedco to pay Jones the balance claimed by him, the United States, for the use of Jones, brought suit in the United States District Court for the Eastern District of Washington under the Miller Act, 40 U.S.C. :§ 270b, seeking to recover the amounts claimed under the original contract of employment, and for extra work done. The trial court rendered judgment in Javor of Jones in the sum of $11,759.21, plus interest and costs. 1) Appellant contends on appeal, first, that a charge of $4925 should have been allowed against Jones’ claim, because the compensation paid Jones by the Corps of Engineers for compilation of a final job-history report should have been credited to Fedco. This contention is predicated upon the claim that Jones’ contract with the government was a breach of his professional services agreement with Fedco. Appellant contends further that this was a violation of appellee’s fiduciary duty to his employer. We find these contentions to be without merit; the trial court properly denied the claimed offset of $4925. We conclude that Jones was in a position to enter into, and properly did enter into, the contract with the government to furnish the reports which he made after termination of his contract with Fedco. We find nothing in the original agreement which either expressly or impliedly prohibits appellee from so doing. The trial court’s finding that the “obligations of Fred O. Jones under said professional services contract terminated upon completion of the job” is substantially supported by the evidence. Appellant contends that both Jones and Fedco had anticipated, at the time of entering into the professional services agreement, that Fedco would enter into a later contract with the government for a job-history report. Further, appellant contends that a part of the consideration for appellee’s $12,500 fee was that he refrain from entering into any such contract with the government. Some testimony of the President of Fedco to this effect appears in the record. There is, however, substantial evidence contra, which the trial court evidently acted upon. Appellant points to the following provision contained in the professional services agreement and asserts that it is “direct and unambiguous” in support of its contentions: “Any records or reports made or required to be made by the mentioned contract, or any modifications thereof, shall be made over the title of Fedco, Inc. * * * ” We agree that the clause is direct and unambiguous; but it does not support appellant’s contention. The clause can only reasonably be read to mean that records required to be made by the contract shall carry the name of Fedco. Appellant’s argument that Jones violated his agency by entering into a subsequent contract with the government has no validity. Here the employment relationship had terminated at the time Jones made his contract with the government. There is no express provision in the professional services agreement creating in Jones a fiduciary duty extending beyond the termination of employment. And to hold that an implied duty not to enter into a later contract exists would, under the facts of this ease, be unreasonable. A duty will be imposed upon an ex-employee, in some cases, where the employee in some way uses, to his advantage and to the disadvantage of his ex-employer, information of a special nature that is gained during the course of employment. This is not such a ease. The information which Jones used was obtained mainly from records which were the property of the government. It is true that some information gained by Jones while acting as a grouting engineer in the employ of Fedeo was useful in making the imports. But this is not determinative. Any expert knowledge that Fedeo possessed in the field of grouting was provided by Jones; indeed, Fed-co’s obtaining the original contract was dependent upon securing the services of someone with the qualifications Jones possessed. The record discloses that only three people in the country were certified as chemical grouting engineers by the manufacturer of the grout used. Hence, when Jones drew upon his experience as a grouting engineer — including experience gained while working for Fedeo on the missile site — this did not constitute a use of special or of inside information by an ex-employee of a type that the law forbids. Furthermore, the trial court found that no damage to Fedeo was shown. This finding is supported by substantial evidence. 2) Prejudicial error is charged in that the trial court failed to offset against Jones’ claim $2100 paid to Jones’ assistant, Gary Biley. Appellant’s contention is that Jones had contracted to “perform all services required of Chemical Grouting Engineer,” that Jones later persuaded appellant to engage Gary Biley to assist him, that the work done by Biley was work that Jones had contracted to perform himself, and that, therefore, the amount paid Biley should be deducted from Jones’ award. The trial court found that there was no understanding or contract between Jones and Fedeo requiring Jones to pay the salary of Gary Biley. This finding is amply supported by substantial evidence. 3) Appellant urges that $1300 be deducted from appellee’s compensation for the reason that “appellant was required to expend $1300 to produce reports which were the obligation of the appellee to make.” The court below found that the appellee, Fred O. Jones, made all reports required under the contract between Fedeo and the government, and that the obligations under the professional services contract terminated upon completion of the job. Again, the record discloses that these findings are supported by substantial evidence. 4) Finally, appellant contends that the trial court awarded too large an amount on appellee’s claim for compensation for extra work — that is, work not included in the original professional services agreement. The trial court found, in effect, that the professional services agreement did not encompass work on the neoprene seals. The agreement is tied to the original contract between Fedeo and the government, and we conclude from an examination of the specifications of that contract that the neoprene seals were not to be grouted. The contract provides in part: “This section covers chemical grouting of the laps of steel plates in the tunnels, exclusive of those which are located under the concrete fill at invert of the Type ‘A’ tunnels, Utility Tunnels, and chemical grouting of the joint between the rolled steel sections and concrete base slab in the LOX Tank Bays, complete.” The specification sheet gives no indication that there are to be drill holes made or grouting done in the seals. Further, subsequent contract modifications, made before any of the alleged extra work began, specifically included grouting of the seals, indicating that they were not included in the original contract. Other evidence of substance in the record supports this conclusion, as well. Jones testified that he spent 158 hours between the dates of August 1, 1962, and August 30, 1962, grouting several neoprene seals. It is clear that this was work that he was not obligated by his original contract to perform. The trial court so found when it awarded appellee $18.75 per hour for the 158 hours. It appears, however, that some confusion exists in Finding of Fact No. 6, relating to this question. Finding No. 6 states that the extra work of Jones was accepted by Fedco “from August 22, 1962, to August 30, 1962, totaling 158 hours.” Of the 158 hours of work in question, however, 36 hours represented work done on three neoprene seals from August 1 to August 22, 1962. We are convinced from a reading of the record that the use of the date of August 22 was error; the finding should have read; in part: “from August 1, 1962, to August 30, 1962, totaling 158 hours.” Since all work done on the neoprene seals during the month of August, 1962, was outside the scope of the professional services agreement, it is of no consequence that some of the work on the seals was performed before the work required under the agreement was completed on August 21,1962; and it follows that it is of no consequence that the entire 158 hours of work in question were performed before the “not later than August 30, 1962” job completion date incorporated by reference into the professional services agreement. Fedco had a claim only to Jones’ services in regard to the specific grouting work mentioned in the original contract, and not an exclusive right to all of Jones’ services up until the completion of that contract. The judgment is affirmed. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained 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. COLORADO INTERSTATE GAS COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. NATURAL GAS PIPELINE COMPANY OF AMERICA, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. PANHANDLE EASTERN PIPE LINE COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. Nos. 8892, 9081, 9082. United States Court of Appeals Tenth Circuit. Jan. 9, 1967. Raymond Shibley, Washington, D. C., for petitioners. Israel Convisser, Washington, D. C., for respondent. Before LEWIS, HICKEY, Circuit Judges. ALDRICH and Of the First Circuit sitting by designation. LEWIS, Circuit Judge. Invoking the jurisdiction of this court under section 19 of the Natural Gas Act, 15 U.S.C. § 717r and section 10 of the Administrative Procedure Act, 5 U.S.C. § 1009, Colorado Interstate Gas Company petitioned for review of an order of the Federal Power Commission entered April 13, 1966. Similar petitions by Natural Gas Pipeline Company and Panhandle Eastern Pipe Line Company were later filed in the Seventh and Eighth Circuits respectively, were subsequently transferred to this court and by our order were consolidated for the purpose of these proceedings. The subject order affects the scope of the so-called Hugoton-Anadarko Area Rate Proceeding which was initiated in November 1963 under sections 4, 5 and 15 of the Natural Gas Act to determine just and reasonable rates for interstate sales by producers of natural gas within the designated geographic area. Petitioners, while principally in the business of transporting natural gas by pipeline, are among the largest producers of gas in the Hugoton-Anadarko area. The specific effect of the order upon them is to terminate their participation as producers in the Hugoton-Anadarko Area Rate Proceeding and place them, along with all other pipeline producers, in an exclusive Pipeline Production Area Rate Proceeding. The stated objectives of the order are to establish a separate forum for determination of “whether the Commission may or should depart from the cost-of-service method in fixing the price of pipeline produced gas” and, by so doing, to expedite the determination of area rates for independent producers in the Hugoton-Anadarko area. The case is before us on respondent Commission’s motion to dismiss for want of jurisdiction. The basis for the motion is that the subject order is “purely interlocutory and procedural” and that petitioners have not demonstrated present aggrievement as required by section 19(b) of the Natural Gas Act, 15 U.S.C. § 717r(b). The Commission also requests that the time for filing the certification of record be enlarged pending disposition of the motion to dismiss. Petitioners oppose the motion to dismiss on the ground that their present aggrievement from the order is demonstrated by the Commission’s denial, or at least postponement, of their asserted right to a parity of treatment with those in the area with whom they as pipeline producers must compete. Petitioners also object to further enlargement of the time for filing a certified record on the ground that such record will demonstrate that petitioners are presently suffering economic loss through the delay and uncertainty occasioned by initiation of a new proceeding. Although both sides have attempted to bolster their respective positions with extensive argument from the record on the merits, our consideration of the case at this juncture is limited to the issue of whether a jurisdictional defect appears in the allegations of the several petitions. Petitioners’ participation as pipeline producers in the Hugoton-Anadarko Area Rate Proceeding has been premised upon an order of the Commission dated June 29, 1964, which provided for an enlargement of the proceeding to include “consideration of the extent to which, if any, the rates or cost allowances for pipeline gas production should be regulated on an area basis.” Thereafter petitioners actively participated in the proceedings under the guidelines of the June 1964 order until, upon motion of staff counsel, the subject order of severance was issued ex parte by the Commission. The order recited that it is now the considered opinion of the Commission that the area rate proceeding does not provide “an appropriate vehicle for evaluating the general pipeline production issue” and concludes, from experience gained in the proceeding and from analysis of the present evidentiary record of the area rate proceeding, that the public good will best be served by severance of the issues and consideration of such issues in separate proceedings. Petitioners deny that the record indicates or dictates that the public good will be served by the severance of the issues and assert that the order constitutes a complete denial of due process, procedurally and substantively. It is immediately apparent that consideration cannot be given to the motion to dismiss these actions if the jurisdiction of the Commission to issue the April 1966 order is dependent on the present record in the area rate proceeding. See Amerada Petroleum Corp. v. Federal Power Commission, 10 Cir., 338 F.2d 808; Sunray DX Oil Co. v. Federal Power Commission, 10 Cir., 351 F.2d 395. The administrative record is not before us and the legal impact of that record cannot be now considered on the merits. However we do not consider the jurisdiction of the Commission to issue the subject order to be dependent on specifics that may be revealed by the particulars of evidence contained in the record. Rather we think the dispositive question to be whether under the circumstances of this case the Commission has the unreviewable power to limit the scope of its investigation after once having set the guidelines and having required and allowed petitioners to proceed accordingly for a prolonged period of time. In other words, -the Commission under the shelter of its administrative expertise cannot expose petitioners to a denial of due process. And in this regard petitioners contend that the order violates the mandate of section 6(a) of the Administrative Procedure Act, 5 U.S.C. § 1005(a), to “proceed with reasonable dispatch to conclude any matter presented to it; ” exposes petitioners to great expense, delay and uncertainty; denies to them area rate treatment constituting a disparity of treatment in violation of section 8(b) of the Administrative Procedure Act, 5 U.S.C. § 1007(b); and, in totality, denies to them the compulsion of the Fifth Amendment. Although this court, as well as others, might term the order of severance to be “procedurally abhorrent,” we think it clear that each contention of petitioners has earlier been negated by the decisions of this court in Amax Petroleum Corp. v. Federal Power Commission, 10 Cir., 350 F.2d 92, and Frontier Airlines, Inc. v. Civil Aeronautics Board, 10 Cir., 349 F.2d 587. In Amax we stated and it is applicable here: “It is true, as petitioners point out with understandable emphasis, that the subject order is premised upon a finding of the Commission that makes reference to ‘inadequate records of many small producers’ and uncertainty of representative responses. Petitioners assert such phraseology to constitute a prejudgment of their proposed claims. We cannot agree that such conclusion follows as a matter of law nor as an inference of fact affecting the merits. The Commission, as a matter of expertise, may draw upon their experience in determining the ground rules for their own investigation and may divert their general efforts in accord with their specialized knowledge; the Commission cannot, of course, under the guise of expertise, deny a specific right. But this latter they have not done by the subject order.” No claim is made that the Commission order of June 1964 expanding the proceedings to include the issue of pipeline production was not jurisdictionally sound. Indeed that order premises the petitioners’ present claims to the right to continued participation. The Commission now states, in effect, that the order of expansion was a mistake and that it has recognized the mistake, at least in part, through knowledge and experience obtained in the proceeding itself. By expanding or limiting the scope of its investigation the Commission is exercising its expertise by determining where best it can employ its administrative function. Neither the fact of administrative expertise nor the sources of its conception are proper subjects for judicial review. And the fact that petitioners are now exposed or subjected to some expense, uncertainty and delay because the ground rules were changed in the middle of the game is but an unfortunate side effect springing from the frailty of the administrative decisional process. But no constitutional nor statutory right is infringed and it has long been recognized that judicial review of the preliminary procedural processes of the Commission would only serve to increase the inherent difficulties of the process. Petitioners’ claims that the order of severance denies to them area rate treatment resulting in an unlawful disparity of rate are comparable to the contentions advanced, considered and rejected by this court in Frontier. If we assume, without deciding, that petitioners are, as they allege, entitled to a parity of rate treatment with the independent producers such right is not denied to them by the instant order. Petitioners’ rights are not presently barred by indirection and their apprehensive claims do not constitute an aggrievement. We conclude that the order of April 13, 1966, is interlocutory in nature, that petitioners are not presently aggrieved thereby as defined by section 19(b) of the Natural Gas Act and that the petitions fail to state a jurisdictional subject for review. The petitions are severally dismissed. . The “Hugoton-Anadarko Area” consists of contiguous natural gas producing areas in Kansas, Oklahoma and Texas. . 15 U.S.C. §§ 717c, 717d, 717n. . Petitioners remain as parties to the Area Rate Proceedings, . See concurring: opinion of Commissioner Bagge. Question: What is the total number of respondents in the case? Answer with a number. 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. PICKETT v. UNITED STATES. No. 11229. Circuit Court of Appeals, Eighth Circuit. Dec. 27, 1938. Elmer B. Hodges, of Kansas City, Mo. (Albert F. Hillix and Gage, Hillix, Hodges & Cowherd, all of Kansas City, Mo., on the brief), for appellant. Paul S. McMahon, Sp, Asst, to the Atty. Gen. (James W. Morris, Asst. Atty. Gen., J. Louis Monarch and Milford S. Zimmerman, Sp. Assts. to the Atty. Gen., and Maurice M. Milligan, U. S. Atty., and Sam C. Blair, Asst. U. S. Atty., both of Kansas City, Mo., on the brief), for the United States. Before SANBORN, WOODROUGH, and THOMAS, Circuit Judges. Writ of certiorari denied 59 S.Ct. 587, 83 L.Ed. —. WOODROUGH, Circuit Judge. James F. Pickett, the plaintiff in the court below, is an attorney who was employed by the Collector of the Revenue for Jackson County, Missouri, to collect delinquent taxes. He appeals from a judgment against him holding that the fees received for this work were subject to federal income tax. It appears that appellant acted'as attorney for the Collector of Jackson County during the years 1932 and 1933, pursuant to a written agreement which provided that the collector, “in accordance with and by virtue of Section 9952, R.S.Missouri 1929, as amended [Mo.St.Ann. § 9952, p. 7993] * * , does hereby employ James F. Pickett * * as attorney to institute and prosecute all suits for the collection of taxes which are now and shall become delinquent during his present term of office against land or real property located in Range 33, Jackson County, Missouri, said James F. Pickett as such attorney, to receive as compensation for his services 10 per cent (10%) of the amount of taxes actually collected and paid into the treasury on suits instituted by him, and an additional sum of Three ($3.00) Dollars for each suit where publication is necessary.” * * * “Said John R. Ranson, as Collector, deems it necessary to employ said James F. Pickett, as such attorney, and the said James F. Pickett does hereby accept the above employment and agrees to institute and prosecute all of such suits and to perform all services necessary as such attorney for the compensation named aforesaid.” It was agreed in the contract that it might be revoked at any time by the Collector. Judge Truman, Presiding Judge of the County Court of Jackson County, approved the contract, but refused to administer, an oath of office to Mr. Pickett, which was requested on the theory that the contract made him a state officer. Mr. Pickett petitioned for mandamus to the Supreme Court of Missouri to compel Judge Truman to administer the oath of office, but that court, sitting en banc, denied the petition. State ex rel. Pickett v. Truman, 333 Mo. 1018, 64 S.W.2d 105. At the time the contract was entered into appellant had a law office in a suburban community of Kansas City at some distance from the downtown or business district. The Collector advised him that in order to, properly discharge his duties as attorney it would be necessary for him to be more accessible to the general public, and appellant accordingly moved his office to one of the better known downtown office buildings where he shared a suite with some other attorneys. Appellant also observed the Collector’s notice that a proper discharge of the duties required the attorney to keep regular office hours so that he would be available to taxpayers without unduly burdening them. The duties did not, however, prevent appellant from continuing his private practice, except as performance of these duties might diminish the time he would have available for such' private practice. He did some legal work connected with his former practice and at least one or two suits were filed by a young man in his office in his name. There was no proof that appellant turned away any clients who came to him for advice or professional services. The routine of appellant’s service was described by appellant and the chief clerk in the Collector’s office. Their testimony was that the Collector’s office prepared the statements of various pieces of property upon which the taxes were delinquent and sent the statements to plaintiff’s office. Plaintiff left blank petitions with the Collector’s office which the employees filled in with the names of the property owners and a description of the property and the amount of the taxes, and the employees of the Collector’s office took the petitions to the office of the Clerk of the Circuit Court .and filed them. The Collector selected the property upon which suit was to be filed. The Collector told plaintiff not to have service issued on these suits, but to send notices to the property owners that their taxes were delinquent and that suit had been filed thereon. The petitions which were filed were upon a printed form. In preparing these, appellant used as his guide an old form theretofore in use, changing it “to meet certain requirements.” The Collector would transmit a stack of notices (copied in multiple) to plaintiff to send out to delinquent taxpayers, and plaintiff would have them sent, and at the end of about a month’s time he would send the remaining copies of the notices back to the Collector’s office. There the employees of that office would check the ones which had been paid and send the remaining ones back for second notices, continuing this procedure until a total of five notices had been sent, three to the property, owners and two to the mortgagee. The Collector selected the' parties to whom the notices were to be .sent, and appellant never sent notices to any one else. The Collector determined the time when suits should be filed.. During all the time that plaintiff was employed .as delinquent tax attorney no suits were reduced to judgment and no property was -sold. Appellant spent a lot of time talking in his office to the people who were delinquent in their taxes. Appellant stated that the Collector retained control of the procedure followed .after suit had been filed, at least as to ■preparing and selecting the notices to be sent and the time for sending them. No .authority was given appellant to abate or settle taxes upon which suit had been ■filed. Appellant testified that in all of his -activities in the institution of the suit, computation of taxes, notices to the taxpayers, and the final disposition of the suit, he was acting at all times under the instruction of the Collector and was subject to his direction and control. The compensation of an attorney retain■ed to collect delinquent taxes is fixed by the .statute of Missouri referred to in the contract at an amount not to exceed 10 per cent of the amount collected, and this amount, when suit is prosecuted to judgment, is to be collected as costs. Appellant testified that he received his compensation from the Collector who made. the payments as “he understood, from the general fund.” He received some $49,000 for his services in 1932 and some $26,000 in 1933. He did not return these amounts as taxable, although he did in his returns claim as deductions for expenses some $6,000 for 1932 and $2,000 for 1933, representing largely sums paid to individuals in the Collector’s office for assistance rendered and for making his work easier and more pleasant. The Income Tax Commissioner assessed the tax against appellant computed on the basis that the amounts of $49,000 and $26,000 received by him constituted taxable income. Appellant paid the taxes under protest and brought this action to recover the alleged wrongful exaction. A jury was waived in the District Court and the Court found, after trial, that in view of the Missouri statute, appellant’s work was not that of a mere employee of the Collector, but was that of an attorney. Relying upon the decision of this court in Burnet v. Jones, 8 Cir., 50 F.2d 14, the Court concluded that appellant had not made an overpayment of taxes and judgment of dismissal was entered. Appellant’s contention here is that the amounts he earned for legal services to the Collector were tax exempt as compensation paid to an employee of a state official for services rendered in performance of an essential governmental function of the state. It is not disputed that taxation and the collection of taxes are essential governmental functions. The issue in the present case is as to the nature of plaintiff’s participation in the performance of the function. As was said by the Supreme Court in Helvering v. Gerhardt, 304 U.S. 405, loc. cit. 420, 58 S.Ct. 969, loc. cit. 975, 82 L.Ed. 1427, “even though the function be thought important enoug-h to demand immunity from a tax upon the state itself, it is not necessarily protected from a tax which well may be substantially or entirely absorbed by private persons. Metcalf & Eddy v. Mitchell [269 U.S. 514, 46 S.Ct. 172, 70 L.Ed. 384], Willcuts v. Bunn, 282 U.S. 216, 51 S.Ct. 125, 75 L.Ed. 304, 71 A.L.R. 1260.” The argument has centered upon the question whether Mr. Pickett’s employment by the Collector ought to be distinguished from the employment of those attorneys whose incomes have been held taxable in Helvering v. Therrell, 303 U.S. 218, 58 S.Ct. 539, 82 L.Ed. 758; Burnet v. Jones, 8 Cir., 50 F.2d 14; Burnet v. McDonough, 8 Cir., 46 F.2d 944, and cases therein cited. The rights and duties of an attorney retained hy a Collector to collect back taxes have been defined by the Supreme Court of Missouri. In State ex rel. McKittrick v. Bair, 333 Mo. 1, 63 S.W.2d 64, the Collector resisted as unconstitutional an act remitting the statutory penalty which attached to delinquent taxes and out of which the attorney was to be paid. The court said, page 14, 63 S.W.2d page 65, “The attorney’s fees are provided for by section 9952 of the Revised Statutes of 1929 [Mo.St.Ann. § 9952, p. 7993], which, after providing that the collector shall proceed to enforce the payment of delinquent taxes charged on any lot or tract, by suit to enforce the lien thereon, further provides in substance that for such purpose the collector shall have power, with the approval of. the county court, to employ such attorneys as he may deem necessary, who shall receive as fees such sum, not to exceed 10 per cent, of the taxes, actually collected and paid into the treasury, and an additional sum, not to exceed $3 for each suit instituted for the collection of such taxes; which said sum shall be taxed as costs in the suit and collected- as other costs, and no attorney shall receive any fee or compensation for such services except as in this section provided. From the statute itself it is obvious that the attorney’s right to fees does not accrue pari passu with the rendering of each act of service in a given case, but accrues as a whole after collection made or judgment rendéred. * * " And, contrary to an argument pressed, the Legislature having fixed one definite and certain mode of payment, no other is permissible, and there can be no application of the doctrine of quantum meruit. * * ' “The contract entered into between the collector and his attorney, and approved by the county court, imposes no liability upon either the state, county, or the collector. It only fixes the status of the attorney as .to his right to compensation and the amount thereof when in the tax suit the liability therefor becomes fixed upon the taxpayer’s property by the final judgment in the case.” As the Missouri court construes the statute, it contemplates the employment, with the approval of-the county court, of such number of attorneys as the collector may deem necessary, and that the attorneys so retained must look for their compensation to the funds collected from the taxpayer. The appellant’s situation is different from that of an attorney elected or appointed for a fixed term at a definite salary or for compensation payable on a quantum meruit basis. , . The nature of the employment was further explained in the mandamus action-brought by . Mr. Pickett to compel ' the County Court to administer to him the oath; of office which is to be subscribed by a State Officer of Missouri. State ex rel. Pickett v. Truman, supra. In that case the court, after distinguishing Mr. Pickett’s position from that of various public officers, said, 64 S.W.2d 107: “In fact, none of the statutes relating to the attorney so employed or appointed by the collector invest him with any of the usual indicia of an office. They do not require the giving of a bond, they provide for no salary or fixed term o.f service, and it is evident that the emolument of' a successor is dependent upon the execution of a new contract by the collector. Nor does such attorney in the discharge of his duties, exercise any of the sovereign functions'of the government. He has no public duties independent of the collector’s duty to enforce payment of taxes, and-for the faithful - performance of his. duty the collector alone is responsible to the state. * ■ [Referring to Sec. 9952, of the R.S.1929, Mo.St.Ann. § 9952, p. 7993.] This and other sections provide how these suits shall be commenced and prosecuted and judgments rendered therein- enforced, but •- there 'is no mention of independent public duties- of the attorney so appointed. The suits are commenced and prosecuted at the relation of the collector who .is the sole agent and representative of the state in the collection of taxes and to whom alone this function of government is entrusted. * * * . > ' “The fact that in such suits the state is the real party in interest * * * does ■not alter the status of the collector as the sole agent of the state in the enforcement of the payment of taxes, or suggest that his attorney is-an independent agent of the state invested with governmental functions. The clear implication of the statute providing for the appointment of such attorney is to the contrary. A person so engaged is an employee and not a public officer, and it matters not that such employment is under the direction of or in aid of the performance of some duties intrusted to one who is a public officer.” Appellant contends that while the decision established that he was not a State officer, it nevertheless established that he was the employee of the Collector, and hence that the income of this employment should not be taxed by the federal government. He stresses elements of his employment which he thinks should justify the conclusion that he was employed as an assistant or mere subordinate to the Collector, rather than as an independent attorney. In Helvering v. Therrell, 303 U.S. 218, 58 S.Ct. 539, 82 L.Ed. 758, the Supreme Court held that income tax was properly assessed upon the remuneration of legal counsel employed in one case by the Insurance Department of New York, and in the other by the Department of Justice of Pennsylvania, and assigned respectively to serve in liquidating insolvent insurance companies and banks. The court noted that no one of the individuals was an officer of the State in the strict sense of the term, that the business of their employment was “not one utilized by the State in the discharge of her essential governmental duties” and that the compensation of the individuals derived from corporate assets, not funds belonging to the State. In the present case we note that appellant was not an officer of the State, that his pompensation did not derive from the State but from a penalty assessed upon the taxpayer as costs, (see Saxe v. Shea, 2 Cir, 98 F.2d 83), and that the service rendered was not necessarily fulfilling an essential governmental operation. The function of collecting taxes, taken as a whole, is undoubtedly a governmental function and essential, but the services of independent agencies may be utilized. Tax collection systems have historically made use of the independent agency of tax “farmers” who collected taxes as a private business or undertaking, rather than as a state function or under state control. Tax ferrets have been defined as persons “engaged in the business of searching for property omitted from taxation.” Simpson v. Silver Bow County, 87 Mont. 83, 285 P. 195, 198. And their activities, when permitted, are usually regarded as private rather than as part of a state agency. Simpson v. Silver Bow County, supra; Murphy v. Swanson, 50 N.D. 788, 198 N.W. 116, 32 A.L.R. 82, note. See also King v. Maries County, 297 Mo. 488, 249 S.W. 418. If appellant’s services were private in character, his remuneration was not tax exempt as an instrumentality of state government. Burnet v. McDonough, 8 Cir, 46 F.2d 944; Burnet v. Jones, 8 Cir, 50 F.2d 14. In Burnet v. McDonough, supra, this court considered the claim of an attorney for an Arkansas Bridge District who received $500 salary and $2,500 fees from the district and claimed this remuneration was exempt from federal income tax. We reviewed the authorities and held that he was not a state officer or employee, but came rather under the classification of independent contractor, and that the fees were taxable. We relied upon Metcalf & Eddy v. Mitchell, 269 U.S. 514, 46 S.Ct. 172, 70 L.Ed. 384, and Lucas v. Howard, 280 U.S. 526, 50 S.Ct. 87, 74 L.Ed. 593, and other-cases where attorneys’ fees derived from services to a State or subdivision thereof were held not tax exempt. In Roberts v. Commissioner, 44 F.2d 168, the Fifth Circuit Court of Appeals, in a short opinion, disposed of the claim to exemption brought forward by an attorney who was employed under contracts with the State Tax Commissioner of Georgia and with boards of county commissioners to collect delinquent state and county taxes. In Lucas v. Reed, 281 U.S. 699, 50 S.Ct. 352, 74 L.Ed. 1125, the Supreme Court reversed, per curiam, a decision of the Court of Appeals, Reed v. Commissioner, 3 Cir, 34 F.2d 263, holding that income received by an attorney for services as special counsel in representing the commonwealth in collecting state inheritance taxes was not subject to the federal income tax. In Blair v. Byers, 8 Cir., 35 F.2d 326, this court held that the attorney for the water works for the City of Des Moines was not a municipal employee. These cases are obviously in point upon the present situation. In Burnet v. Jones, 8 Cir., 50 F.2d 14, we relied upon the McDonough Case in holding that the salary income of an attorney for a drainage district was taxable. Other cases illustrate the established principle. The appellant attempts to distinguish his case by showing that he was so much under the control of the Collector that no independent action was left to him, and that his work’ was not typically legal. We think the fact that appellant moved his office and kept regular office hours at the suggestion of the Collector did not reflect control by the Collector over -appellant. Those were requirements which any attorney who wanted the contract to collect the taxes must conform to, and appellant chose to conform. None of the so called “control” which the Collector reserved was incompatible with the existence of the relation of a responsible official client towards his attorney employed for a particular and limited legal service. -The statute authorizing appellant’s fees certainly contemplated legal services, and he is bound thereby. While the statute and cases construing it speak of “employment” and “appointment”, these terms are not used without qualification, but refer to the employment or appointment “as attorney”. An attorney’s work is contemplated both in the statute and'contract, of retainer. See Adams v. Murphy, 8 Cir., 165 F. 304; Pickett v. Truman, 333 Mo. 1018, loc. cit. 1030, 64 S.W.2d 105. Appellant was not a mere clerk, subordinate .or errand boy. He earned his attorney’s fees by serving as an attorney. He earned most of his income from cases brought to him by the Collector, because the Collector did not choose to appoint other attorneys to perform parts of the services; the County in ■ winch appellant was appointed was a large county and times were bad so that many delinquent tax cases accrued. It must be remembered that tax immunity is granted to States, and when allowed to individuals is only derivative. In Helvering v. Gerhardt, 304 U.S. 405, loc. cit. 421, 58 S.Ct. 969, loc. cit. 976, 82 L.Ed. 1427, the Supreme Court said, “When immunity is claimed from a tax laid on private persons, it must clearly appear that the burden upon the state function is actual and substantial, not conjectural. Willcuts v. Bunn [282 U.S. 216, 231, 51 S.Ct. 125, 75 L.Ed. 304, 71 A.L.R. 1260]. The extent to which salaries in business or professions whose standards of compensation are otherwise fixed by competitive conditions may be affected by the immunity of state employees from income tax is to a high degree conjectural.” Appellant urges particularly the decision of the Court of Appeals of the District of Columbia in Brown v. Helvering, 68 App.D.C. 332, 97 F.2d 189. In that case the court held the remuneration of a statutory attorney for the collection of delinquent land taxes in the state of Tennessee to be exempt from federal income tax. It appears from the opinion that under the Tennessee law the entire delinquent tax lists were turned over to the attorney after a certain stage of .the tax collection process was reached, and the county treasurer was thereafter released from all liability and had no further authority as to any subsequent collection of taxes. The taxpayers thereafter dealt with the attorney. The court said as to the attorney [page 190] : “Petitioner has been reappointed annually during the entire period in question. He devotes all his time to the discharge of his duties, has an office in the county courthouse, and has assigned to him two' assistants paid.by the county out of county funds. Hence, as we have seen, his appointment is statutory, his duties are fixed by law, his compensation is made a lien upon the land as a part of the tax when the suit is filed, and is paid only out of the tax collected.” We think the case at bar may be distinguished upon its facts. Affirmed. Saxe v. Shea, 2 Cir., 98 F.2d 83; Ewart v. Commissioner, 3 Cir, 98 F.2d 649; Childers v. Commissioner, 9 Cir, 80 F.2d 27; Buckner v. Commissioner, 2 Cir, 77 F.2d 297; Register v. Commissioner, 5 Cir., 69 F.2d 607, 93 A.L.R. 186. 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_adminrev	O	What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable". ALGOMA CENTRAL & HUDSON BAY RY. CO. v. GREAT LAKES TRANSIT CORPORATION et al. No. 77. Oireuit Court of Appeals, Second Circuit. Dec. 14, 1936. See, also, The Edward E. Loomis, 86 F. (2d) 705. Duncan, Leckie, McCreary, Schlitz & Hinslea and Robert G. McCreary, all of Cleveland, Ohio, for appellant. Brown, Ely & Richards, of Buffalo, N. Y. (John B. Richards, Laurence E. Coffey, and David S. Jackson, all of Buffalo, N. Y., of counsel), for appellee. Stanley & Gidley, of Buffalo, N. Y. (Ray M. Stanley, of Buffalo, N. Y., of counsel), for certain claimants. Before L. HAND, SWAN, and CHASE, Circuit Judges. L. HAND, Circuit Judge. This is an appeal from a decree in the admiralty, dismissing a shipowner’s petition to limit its liability, filed under the Fifty-first Admiralty Rule (28 U.S.C.A. following section 723). The petitioner is a Canadian railway company, the owner of the steamer, “W. C. Franz,” which on the night of November 14, 1934, collided with the steamer, “Edward E. Loomis,” of the Great Lakes Transit Company, on Lake Huron, and sank in twenty-five fathoms of water. The railway filed a libel in personam against the Great Lakes company in the Northern District of Ohio, which the Great Lakes Company countered with a petition in the Western District of New York to limit its liability as owner of the “Loomis.” The railwáy appeared in that suit, answered and made claim, as did certain other persons, members of the “Franz’s” crew, who were injured, or whose decedents had been killed. While that suit was pending, the railway filed this petition in the Western District of New York to limit its own liability as owner of the “Franz”; since that vessel was a total loss and there was no pending freight, if it succeeds it will escape all liability; in Canada, on the other hand, it is said to be liable, as in England, at a specified rate per ton. This is the issue here at stake. The judge concluded that the petition would not lie in the Western District of New York, and dismissed it. The railway appealed. The Fifty-fourth Admiralty Rule (28 U.S.C.A. following section 723) enacts that a petition for limitation may be filed where the “ship * * * may be libeled to answer ; * * * or, if the said ship * * * be not libeled, then in * * * any district in which the said owner * * * may be sued; * * * when the said ship * * * has n'ot been libeled * * * and suit has not been commenced against the said owner * * , or has been commenced in a district other than that in which the said ship * * may be, the said proceedings may be had in * * * the district in which the said ship * * * may be, and where it may be subject to the control of such court.” Rule 57 of 1872 (13 Wall, xiii, xiv), allowed the suit to be brought when and where the ship had been arrested (“libelled”), or the owner sued; but Judge Benedict decided in The John Bramall, Fed.Cas.No.7,334, 10 Ben. 495, that it would also lie wherever the ship, its wreck, or its strippings were surrendered into court, provided neither ship nor owner had been sued; and this the Supreme Court confirmed in Re Slayton (1881) 105 U.S. 451, 26 L.Ed. 1066. The statute (section 184, title 46 U.S.Code [46 U.S.C.A. § 184]), uses the phrase, “in any court,” and for this reason Rule Fifty-seven was not thought to be exhaustive as it then stood. But it was amended in 1889 (130 U.S. 705), so as to include the case dealt with in Re Slayton, supra, and it seems to us that it must now be regarded as filling out the whole scope of the statute. It was indeed almost inevitable that the owner should be allowed to choose the forum where the ship or her salvage was which he must surrender; at times it might be impossible for him to move it elsewhere, and in any case that would be the place for its sale. On the other hand it would be extremely burdensome and unfair, when there was nothing to surrender, to allow him to choose any court he wished, regardless of the convenience of everybody else concerned. The railway answers that, even though this be the right reading of the rule— which it denies — when the Great Lakes Company filed its petition under the Fifty-first Rule, it “sued” the railway within the meaning of the Fifty-fourth, and that that suit justified a counter petition of the same kind. Conceivably a proceeding under the Fifty-first Rule ' might be turned into a “suit.” Suppose the petitioner were to interpose a counterclaim to a claimant’s claim; that that counterclaim were for a greater amount; and that the petitioner wished to use it, not only as a set-off, but as the basis for an affirmative recovery against the claimant. If this were permissible in the limitation suit, it would pro tanto become an offensive suit. We can assume arguendo, that it would be permissible, because the Great Lakes Company has not filed such a counterclaim. It is true ■ that in its answer to the railway’s claim it has alleged that if both vessels are held at fault, it wishes to bring its loss together with any payments for which it will be liable to others, into hotchpot with the loss of the railway recoverable against itself. It gives notice that it will then ask to make the case one of “average or contribution”; but it is not clear that by this it means that, if its aggregate losses are greater than those of the railway, it will seek to recover half the difference. As matters stand, it is claiming nothing offensively ■ against the railway, and, that possibility aside, the suit is purely defensive; it is merely to establish a concourse to which all must resort who would recover from it. The initiative does indeed always ‘ rest with the owner in such cases, but that cannot conceal the substance of the matter. When there is only one claim the suit, though permissible, (Larsen v. Northland Transportation Co., 292 U.S. 20, 54 S.Ct. 584, 78 L.Ed. 1096), is merely an alternative to a plea in bar to the claimant’s action. The Scotland, 105 U.S. 24, 33, 34, 26 L.Ed. 1001. When there are more claims than one, a concourse is the only way to secure the owner’s immunity, except at the greatest inconvenience and expense, if even these would avail. At no time can the owner recover a dollar by means of it from anybody. It is quite true that a decree may have some of the effects of a decree in an offensive suit; it will be res judicata in our courts, and possibly also in Canada. If so, in the case at bar the Great Lakes Company can use it as an estoppel, if ever it sues the railway in that country. But the fact that matters decided in an action will be conclusively established elsewhere does not make the action offensive; that result always follows wherever the doctrine of res judicata obtains. It would just as little have determined the character of this limitation suit, though the railway could not have extricated itgelf. In fact, however, it could have done so; it could have discontinued the libel in Ohio; it could have withdrawn its claim in the Great Lakes limitation suit. The Titanic, 225 F. 747 (C.C.A.2). This would have freed its hands effectually, and it can scarcely complain that, having pressed its own claim, it must abide the consequences which follow any adjudication. Decree affirmed. 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_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. NATIONAL LABOR RELATIONS BOARD v. REED & PRINCE MFG. CO. No. 3549. Circuit Court of Appeals, First Circuit. Sept. 16, 1942. Robert B. Watts, Gen. Counsel, and Ernest A. Gross, Associate Gen. Counsel, both of Washington, D. C., for petitioner. Jay Clark, Jr., and George H. Mason, both of Worcester, Mass., for respondent. Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges. MAHONEY, Circuit Judge. The National Labor Relations Board has petitioned this court to adjudge Reed .& Prince Manufacturing Company, its officers and agents, and in particular its President, Chester T. Reed, its Treasurer, Alden Reed, and its Manager of Industrial Relations, George H. Taylor, in contempt for failure to comply with our decree entered April 2, 1941. 118 F.2d 874. Respondent in its sworn answer denies that George H. Taylor is in any way responsible for its corporate policy or the carrying out of the decree and since the Board has not pressed this point upon us, we consider him to be withdrawn from the scope of this opinion. The order of the Board as affirmed by this court, insofar as it is pertinent to this cause, is as follows: That respondent “2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: * * * * ❖ * “(b) Offer to Roy Harold Stevens, Jr., Clifford A. Gallant, Michael C. Sullivan, and Mary P. Sullivan immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges; “(c) Make whole Roy Harold Stevens, Jr., Clifford A. Gallant, Michael C. Sullivan,'and Mary P. Sullivan for any loss of pay they may have suffered by reason of the respondent’s refusal to reinstate them, by payment to each of them of a sum of money equal to that which he would normally have earned as wages from the date of the respondent’s refusal to reinstate him, to the date of such offer of reinstatement, less his net earnings during said period. * * *» While the name of Mary P. Sullivan appears in the decree as one of the employees to be reinstated and made whole, there is no dispute as to her. The parties are in agreement as to the periods of employment and earnings of Roy Harold Stevens, Jr., and Clifford A. Gallant and have filed a stipulation to this effect. They have, however, been unable to agree upon the sums which Michael Sullivan would have earned and the period of his employment. A stipulation with reference to these issues covering certain undisputed facts has been entered into by the parties. Certain records of the company showing the employment, lay off, and earnings of its employees have been presented to us. Memoranda and reply memoranda analyzing these records have also been filed. The only issue upon which the parties disagree as to the sums due Clifford A. Gallant and Roy Harold Stevens, Jr., is the proper interpretation of 2(c) of the Board’s order as affirmed by our decree. We defer a consideration of this question until we have disposed of the controversial issues concerning the period of Michael Sullivan’s employment. The Board contends that the position which Michael Sullivan filled as an annealer in Department 5 was continuously in existence from the time of his discriminatory discharge on July 26, 1937, until the date on which he was offered reinstatement, June 10, 1941, and that had Sullivan not been wrongfully discharged he would have had employment for the full four year period. His earnings as an employee of the respondent would then have totaled $6,303.-61 and according to the Board’s figures the respondent owes him $1,885.33. The respondent denies that Sullivan would have worked for the full four year period and sets up in its answer certain hypothetical dates on which he would have been laid off and reemployed in regular course of business had there been no discriminatory discharge. In determining when Sullivan would have been laid off respondent selects a date upon which it laid off a man in his department with next greater seniority. In order to determine when Sullivan would have been reemployed it selects a date on which the first man with less seniority than Sullivan was taken on in the same department. According to its contention, Sullivan would have been laid off February-14, 1938, and reemployed January 20, 1941, and would have earned as an employee of the respondent the sum of $1,808.38. Since he earned in outside employment the sum of $4,418.28 respondent claims it owes him nothing. It is contended by the respondent that the burden of proof in a contempt proceeding is upon the petitioner and that the Board in this case has failed to prove by a preponderance of the evidence that Sullivan would have been employed for the full four year period and that even if the Board has satisfactorily proved that Sullivan would have been employed for part of this period, it has not shown that the amount which he would have earned as an employee of the company is larger than the amount that he earned in outside employment. Since the issue in this case is the determination of the sums due him, respondent claims that the Board has failed to prove that it is in contempt as regards this employee. While the Board does not categorically deny that it has the burden of proving respondent’s contempt, nevertheless, it states that the respondent has set up an affirmative defense, that is, the hypothetical dates chosen by it to indicate the period of normal employment and unemployment of Sullivan. Petitioner contends that respondent has failed to sustain its burden as regards these dates. We agree that the burden of proof in a contempt proceeding is upon the petitioner, National Labor Relations Board v. Rath Packing Co., 8 Cir., 1941, 123 F.2d 684; National Labor Relations Board v. Little Rock Furniture Mfg. Co., 8 Cir., 1941, 123 F.2d 868; National Labor Relations Board v. Tupelo Garment Co., 5 Cir., 1941, 122 F.2d 603 but we cannot lose sight of the fact that all of these issues arise from the discriminatory discharge of this employee. Because of his labor activities, Sullivan was unlawfully deprived of his position for the full four year period. What respondent would have actually done as regards Sullivan’s employment is, of course, a matter of hindsight. Certainly it is in a better position to come forward with evidence that Sullivan would not have worked for the full four year period, as the Board contends. If the respondent pursued a particular employment policy in relation to its employees, that knowledge is peculiarly within its possession. Cf. Montgomery Ward & Co. v. National Labor Relations Board, 7 Cir., 1939, 107 F.2d 555, 560; National Labor Relations Board v. Remington Rand Company, 2d Cir., 1938, 94 F.2d 862, 872, certiorari denied 304 U.S. 576, 58 S.Ct. 1046, 82 L.Ed. 1540, rehearing denied Remington Rand v. United States, 304 U.S. 590, 58 S.Ct. 1054, 82 L.Ed. 1549. It is not enough for it to deny that Sullivan would have worked for the full period. The respondent by its statement of its employment policy and its selection of certain hypothetical dates upon which it would have laid off and reemployed Sullivan has recognized the burden upon it. From what we shall say hereafter, however, it is clear that we do not believe that the respondent has come forward with adequate evidence. Its failure to do so adds force to the position of the Board. The respondent asserts that it pursued consistently its lay off policy which is based upon factory seniority without prejudice to Sullivan and had he not been discriminatorily discharged it would have laid him off in the normal course of events because of a severe depression which caused a curtailment in the number of its employees. A good statement of what this employment policy is may be found in the answer of the respondent. “During periods of depression, lack of business, lack of work, it had long been the policy of the company in making lay offs to make interdepartmental transfers, transfers within the department, stagger work, or lay off, all for the purpose of retaining key men, valuable men and efficient men with longer service records in preference to men of less seniority and no greater efficiency, and that the respondent company has never had a policy of job seniority.” Assuming that this is respondent’s policy, we believe that the Board is entitled to hold respondent strictly to it insofar as it affects the lay off of Sullivan. It is admitted by the parties that work in department 5 (Sullivan’s department) is essentially unskilled. The most important single factor in determining whether a man in this department would be retained or laid off in a period of depression is his length of service in the company’s employ. Respondent argues that no man in department 5 who succeeded Sullivan had less factory seniority and, therefore, it cannot be said that the company failed to apply consistently its lay off policy. Respondent does not establish its impartiality as regards Sullivan merely by introducing evidence which shows that none of the employees who succeeded him had less seniority. . It is uncontroverted that certain employees with less factory seniority were retained throughout the plant for the full four year period. Moreover, as the Board points out, among the entire production force in respondent’s employ in February, 1938, there were about SO employees with less than four years five months seniority, Sullivan’s seniority record, who were retained and that on the basis of the rate of pay as an index of relative value, he should have superseded any one of 44 employees with less factory service on jobs which required less or no more skill than did the work of an annealer in department 5. There is evidence in the records before us that had the respondent pursued its policy of interdepartmental transfers, Sullivan would have been' retained at his position or would have been transferred to another department to succeed an employee with less seniority. As an example of respondent’s failure to follow consistently its policy of interdepartmental transfers, there is evidence that during the period from February 14, 1938, to January 20, 1941, 53 men were employed at some time in department 23, all of whom had less seniority and were paid lower rates than Sullivan. Another example of respondent’s inconsistent application of its policy of transfers is to be found in the lay off of certain men employed in department 5 with less factory seniority than Sullivan who were later reemployed in other departments at dates much earlier than that set for his reemployment. Further the Board contends that some 282 employees were hired in all departments subsequent to February 14, 1938, and prior to January 20, 1941, and of this number 266 positions required no greater experience and none of these employees received a higher rate of pay than Sullivan. While this fact does not prove that Sullivan would have been employed for the full four year period, it does demonstrate that respondent’s hypothetical reemployment date upon which it places great stress is erroneous. In reply to the contention that it did not pursue consistently its policy of lay offs and that a lay off of Sullivan on February 14, 1938, would have been discriminatory, respondent asserts that some. 150 employees with equal or greater seniority than Sullivan were laid off during 1938. It also argues that the Board has not introduced any evidence showing that Sullivan was able to perform any of the jobs to which it says he might have been transferred. It is conceded by respondent that it retained for the full four year period some employees with less seniority than Sullivan but states that it did this only because it sought to keep a nucleus so that when the depression passed it would have an organization to commence work on a normal scale. It is true that the records indicate the aforementioned 150 employees were laid off during 1938 but it is also true that a number of these employees returned to work prior to the hypothetical date selected by respondent for Sullivan’s return. It cannot be said that because 150 employees were laid off during the period which respondent contends Sullivan would have been laid off, it necessarily follows that Sullivan would have been forced out of work. Nor is the argument that the Board has failed to prove that Sullivan was qualified to work in other departments of great force. It seems perfectly proper to assume that an employee who had worked in the plant for a considerable length of time and who had three years of college training was able to perform unskilled work at the same rate of pay which he received as an employee in department 5. Particularly is this true when we consider that this employee had no opportunity to demonstrate to his employers his ability to perform other tasks because of his discriminatory discharge. We know as a fact that Sullivan’s position was in existence for the full four year period; that certain employees of the respondent whose work was of no greater skill remained in the employ of the company for the full four year-period; that the company made transfers inconsistent with its so called policy of interdepartmental transfers and that the company reemployed or employed for the first time a good many employees at dates much earlier than that set for the hypothetical return of Sullivan. Viewing this case in its proper context, we believe that the inference is warranted that had Sullivan not been discriminatorily discharged he would have been employed for the full four year period in department 5, or transferred to another department at an equal rate of pay. We, therefore, hold that the respondent owes Michael Sullivan the difference between what he would have earned as an employee of the company for the full four year period and the sum which he earned in outside employment. We come now to a consideration of the proper interpretation of 2(c) of our decree. Respondent contends that it is entitled to deduct from the amounts that Gallant and Stevens would normally have earned from it, but for their discriminatory discharge, amounts they respectively earned elsewhere during the period in question, despite the fact that these employees would normally have been unemployed for a part of this time. The petitioner asserts that such an interpretation of our decree is violative of the purpose of the Board’s order in that it fails to make these employees whole. The following is a chart taken from the stipulation entered into by the parties, illustrating graphically the alternative positions urged upon us. - CLIFFORD A. GALLANT I. II. Net Earnings Amount Gallant would Normally From 7-26-37 to 6-10-41 Have Earned at Respondent’s Plant From 7-26-37 to 6-10-41 From 7-26-37 to 3-25-38 124.05 From 7-26-37 to 3-25-38 $1,129.61 B. B. From 3-27-38 to 3-30-40 947.28 From 3-27-38 to 3-30-40 none C. C. From 4-1-40 to 6-10-41 1,578.19 From 4-1-40 to 6-10-41 1,868.85 Total $2,649.52 Total $2,998.46 1. Total net earnings of Gallant from July 26, 1937 to June 10, 1941 (total of Column 1, above) 2,649.52 2. Total amount Gallant would normally have earned from respondent during the period from July 26, 1937 to June 10, 1941 2,998.46 3. Less his net earnings during said period 2,649.52 4. Amount respondent was required to pay Gallant if respondent’s position is upheld. 348.94 (already paid $376.70) 5. Total amount Gallant would normally have earned from respondent during periods A and C noted in Column II, above 2,998.46 6. Total amount of Gallant’s net earnings during periods A and C noted in Column I, above 1,702.24 7. Amount respondent would be required to pay Gallant if board’s position is upheld $1,296.22 (already paid $376.70) ROY H. STEVENS, JR. II. Net Earnings From 7-26-37 to 6-10-41 Amount Stevens would Normally Have Earned at Respondent’s Plant From 7-26-37 to 6-10-41 A. From 7-26-37 to 1-28-38 $155.20 From 7-26-37 to 1-28-38 667.65 B. B. From 1-31-38 to 7-29-39 '1,199.47 From 1-31-38 to 7-29-39 none C. C. From 8-1-39 to 6-10-41 3,107.98 From 8-1-39 to 6-10-41 2,705.45 Total $4,462.65 Total $3,373.10 1. Total net earnings of Stevens from July 26, 1937 to June 10, 1941 (total of Column 1, above) $4,462.65 2. Total amount Stevens would normally have earned from respondent during the period from July 26, 1937 to June 10, 1941 3,373.10 3. Less his net earnings during said period 4,462.65 4. Amount respondent was required to pay Stevens if respondent’s position is upheld. none 5. Total amount Stevens would normally have earned from respondent during periods A and C noted in Column II, above 3,373.10 6. Total amount of Stevens’ net earnings during periods A and C noted in Column 1, above 3,263.18 7. Amount respondent would be required to pay Stevens if board’s position is upheld , $109.92 This is a civil proceeding rather than a criminal one and our main purpose is to determine the correct amounts due to these employees. Waterman S. S. Co. v. National Labor Relations Board, 5 Cir., 1941, 119 F.2d 760; National Labor Relations Board v. Carlisle Lumber Co., 9 Cir., 1939, 108 F.2d 188; National Labor Relations Board v. Hopwood Retinning Co., 2 Cir., 1939, 104 F.2d 302. As is well stated in Waterman S. S. Co. v. National Labor Relations Board, supra, at page 762 of 119 F.2d: “Punition is not sought so much as clarification as to the principles on which the wage losses should be computed.” The all-pervading purpose of the Board’s orders regardless of their difference in language based on different circumstances in each case, is that the employees discriminatorily discharged for labor activities shall not suffer any loss because of their employer’s unfair labor practice. See National Labor Relations Board v. Phelps Dodge Corporation, 313 U.S. 177, 197, 198, 61 S.Ct. 845, 85 L.Ed. 1271, 133 A.L.R. 1217. It is clear from the Board’s decision that this was its purpose in framing its order in this case. The Board in the matter of Reed & Prince Mfg. Co., 12 N.L.R.B. 944, 977, Footnote 18, in discussing the meaning of net earnings states: “By net earnings is meant earnings less expenses, such as for transportation, room and board incurred by an employee in connection with obtaining work and working elsewhere than, for respondent, which would not have been incurred but for his unlawful discharge and consequent necessity of seeking employment elsewhere.” We do not believe that the Board intended to frame an order compensating these employees for expenses incurred in seeking employment elsewhere and at the same time allow this respondent to deduct amounts earned in outside employment during periods they would normally have been unemployed. It is urged upon us by the respondent that the decree is unambiguous and that the literal interpretation of the Board’s order compels us to read the decree in such a manner that the respondent despite its unlawful discharge of these employees, derives benefit from the fact that they were employed elsewhere during the period of respondent’s depression. It is argued that the words in our decree “by payments to each of them of a sum or sums equal to that which he would normally have earned as wages from the date of respondent’s refusal to reinstate him to the date of such offer of reinstatement less his net earnings during said period” qualifies that part of our decree which states respondent “shall make whole Roy Harold Stevens, Jr., Clifford A. Gallant and Michael C. Sullivan for any loss of pay they might have suffered by reason of respondent’s refusal to reinstate them, and that the words “said period” refer to the full four year period in question. While the order might have been framed more clearly, it cannot be said that the respondent will suffer any damage from a proper interpretation of this decree. Respondent has not relied to its detriment upon the interpretation which it presently urges. In a letter written to the Regional Director of the petitioner, as set forth in respondent’s answer, it makes the following statement: “‘We are sending these checks to you so you will know that we have complied with the Decree according to our understanding and you may assure the employees that they may cash the checks without prejudice to any right which you may have to persuade the court that our computation and interpretation of the Decree is incorrect’ and further suggested that the respondent join said Director in requesting the Clerk to ask the Court to see the parties ‘informally in Chambers to discuss the legal meaning of Section 2(c) of this Decree.’ ” The interpretation urged upon us by the respondent under the circumstances of this case is unreasonable. Had there been no discriminatory discharge of these employees and had respondent suffered a depression they would have sought and undoubtedly obtained employment elsewhere. Their total income for the full four year period would have been the sums earned from respondent added to the sums earned in outside employment. If respondent’s argument prevails the explicit purpose of the decree is vitiated. These employees suffer loss from their discriminatory discharge unless they receive in the aggregate the same amounts that they would have earned had there been no discharge. If we read the order, realizing its purpose, the only sensible interpretation is the one urged upon us by the Board. A similar interpretation concerning an order exactly phrased as this one was entered in National Labor Relations Board v. J. Greenebaum Tanning Co. decided November 19, 1941 (C.C.A.7th). We, therefore, order that Reed & Prince Manufacturing Company, Chester T. Reed and Alden Reed forthwith purge themselves of contempt by fully complying with and obeying Section 2(c) of our decree by paying Michael Sullivan, Clifford A. Gallant and Roy Harold Stevens, Jr., the sums due them in conformance with this opinion. Stipulations as to earnings of Gallant and Stevens, Exhibits 1 and 2. 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_r_natpr	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 "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. ECONOMY FUSE & MFG. CO. v. CHICAGO FUSE MFG. CO. (Circuit Court of Appeals, Seventh Circuit. April 9, 1926. Rehearing Denied June 4, 1926.) No. 3557. Patents <§=>328. Patent No. 1,129,459, for cartridge fuse, held not infringed. Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois. Suit in equity by the Economy Fuse & Manufacturing Company against the Chicago Fuse Manufacturing Company. Decree for defendant, and complainant appeals. Affirmed. Henry M. Huxley, of Chicago, 111., for appellant. Lincoln B. Smith, of Chicago,' 111., for appellee. Before ALSCHULER, PAGE, and ANDERSON, Circuit Judges. PAGE, Circuit Judge. The District Court found noninfringement of claims 2 and 4 of plaintiff’s (appellants) patent No. 1,-129,459. We will consider the broader claim 4: . “4. In a cartridge fuse, the combination of a shell, and end cap fitting over each end of said shell, and a helically disposed venting passage cut in the exterior surface of said shell at each end thereof, whereby the gases formed by the blowing of the fuse will escape through said passages to the atmosphere.” The sole reference to a “helically disposed venting passage” in the specification follows the statement of the pbjects and the description of the invention, and is as follows: “In order to allow the gases generated by a violent blowing of the fuse to gradually escape, I preferably employ, near each end of the shell 10, the helical venting passage 23, which causes the gases to become materially cooled before reaching the atmosphere.” From 23 in Figure 2 is a line to a dot, among the cross-hatching and on the outer side of a longitudinal cross-section of the shell 10. This is the only reference to or description of any “helically disposed venting passage.” These claims were rejected on McCarthy, No. 745,969, dated December 1, 1903, in view of Sargent, No. 1,001,694, dated August 29,1911. After some further argument, the Patent Office allowed the claims. We do not determine the validity of the claims. Plaintiff never made the device of the patent, but fastened the cap to the shell, or a-ferrule on the shell, by means of a shallow thread on the inside of the cap, which screwed into the slightly deeper thread on the shell, or ferrule. The evidence clearly establishes the manufacture and sale of many such renewable cartridge fuses by Gehrke more than two years prior to application for plaintiff’s patent, except that Gehrke got his vent by loose-fitting threads. More than two years before plaintiff’s patent was applied for, plaintiff and others manufactured and sold a similar cartridge fuse, in which there was more or less looseness of the threads — however, with no intent to provide a vent. One of the main objects in making such cartridge fuses is that they may be readily assembled and disassembled without tools, merely by using the fingers, which requires a looseness in the threads. It is a matter of common knowledge that the joints between such threads cannot, practically or economically, be made either water or air tight, and, if so made, would not admit of finger adjustments. The evidence does not show that the threads in the cap and on the ferrule of defendant’s fuses were looser than necessary or usual in such construction to permit of finger adjustment. We are of opinion that there was no infringement, and the decree is affirmed. Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_usc2sect	174	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 21. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". UNITED STATES of America, Appellee, v. James ARTERBRIDGE, Appellant. No. 347, Docket 30973. United States Court of Appeals Second Circuit. Argued March 13, 1967. Decided March 14, 1967. Roger J. Hawke, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty., for Southern Dist. of New York, Pierre N. Leval, Asst. U. S. Atty., on the brief), for appellee. Kevin T. Duffy, New York City, for appellant. Before KAUFMAN, ANDERSON and FEINBERG, Circuit Judges. PER CURIAM: After a trial without jury, Judge MeGohey found appellant guilty of trafficking in narcotic drugs in violation of 21 U.S.C. §§ 173 and 174, and sentenced him to five years’ imprisonment. In open court we have affirmed the conviction. It is undisputed that on the evening of July 11, 1963, appellant delivered a package containing heroin to an agent of the Federal Bureau of Narcotics. Appellant testified at his trial, however, that an acquaintance, Abe Montgomery (who unknown to appellant was a government informer), had told him that he had a buyer for narcotics but did not have any drugs to deliver. According to Arterbridge, Montgomery then offered him $5.00 to deliver a package to the buyer. Appellant testified that Montgomery stated that the package contained only milk sugar. Montgomery, on the other hand, denied having made any arrangement whatsoever with the appellant. Appellant’s sole contention on appeal is that there was insufficient evidence to sustain his conviction because there was no proof that he knew that the package contained narcotics. However, 21 U.S. C. § 174 provides: Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury. From the evidence presented, Judge MeGohey could properly have concluded that appellant had not satisfactorily explained his possession of the narcotics. Arterbridge’s testimony as to the alleged arrangement with Montgomery was wholly contradicted by Montgomery. The trial judge observed both witnesses and therefore was able to assess their credibility. Conclusions as to the credibility of witnesses should not be disturbed on appeal. United States v. Brown, 335 F.2d 170, 172 (2d Cir. 1964). Moreover, statements made by appellant at the time he delivered the narcotics to Federal Agent Coursey indicate that he was aware of another transaction in narcotics that had occurred the previous evening. Appellant’s statements and furtiveness, coupled with his delivery of the heroin and Montgomery’s testimony, constituted sufficient evidence from which to infer that appellant had knowledge of the contents of the package. See United States v. Palmiotto, 347 F.2d 223 (2d Cir. 1965); United States v. Davis, 328 F.2d 864 (2d Cir. 1964). Affirmed. 21 U.S.C. § 174 provides in part: Whoever fraudulently or knowingly * * * facilitates the * * * sale of any such narcotic drug [as described in 21 U.S.C. § 173] * * * shall be imprisoned for not less than five years or more than twenty years * * *. (Emphasis added.) Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 21? Answer with a number. Answer:
songer_counsel2	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party UNITED STATES of America, Plaintiff-Appellee, v. Grover C. JONES, Jr., Defendant-Appellant. No. 87-5126. United States Court of Appeals, Fourth Circuit. Argued July 28, 1989. Decided Oct. 17, 1989. Rehearing and Rehearing In Banc Denied Nov. 15, 1989. See also 811 F.2d 1505 (unpublished opinion). Dennis William Dohnal (Bremner, Baber & Janus, Richmond, Va., on brief) for defendant-appellant. John P. Rowley, III, Asst. U.S. Atty., Fairfax, Va. (Michael W. Carey, U.S. Atty., Nancy C. Hill, Asst. U;S. Atty., Charleston, W.Va., on brief), for plaintiff-appellee. Before RUSSELL, WIDENER, and HALL, Circuit Judges. K.K. HALL, Circuit Judge: Grover C. Jones, Jr. appeals from his conviction on five counts of mail fraud in violation of 18 U.S.C. §§ 1341, 2. He challenges his conviction on several grounds. After a thorough review of the record, we find those grounds without merit and affirm. I. Jones was arrested on charges of mail fraud on October 17, 1984. The same day he was committed by a magistrate to the Federal Correctional Institution in Butner, North Carolina for an evaluation to determine his mental competency. On November 20, 1984, he was indicted with three other individuals on five counts of mail fraud. A superseding indictment was returned on December 14, 1984 on the same charges against the same individuals, including Jones. Jones remained at Butner until December 21, 1984, when he was released on bond. He subsequently moved to dismiss the indictment. The district court granted the motion to dismiss finding that Jones’ rights under the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq., had been violated. The court found that only thirty of the sixty-six days Jones spent at Butner for psychiatric evaluation were excludable under section 3161(h)(1)(A) of the Act. Consequently, the original trial date of February 20, 1985 exceeded the seventy day limit of the Act by twenty-six days. Although the district court granted the motion to dismiss, its dismissal of the indictment was without prejudice. The government appealed from the court’s dismissal order, but on June 25, 1985, a grand jury returned a new indictment against Jones, charging the same offenses as those charged in the two previous indictments and the government withdrew its appeal. Jones moved to dismiss the 1985 indictment on various grounds including error in dismissing the previous indictment without prejudice. The district court denied the motion and the case proceeded to trial. The charges which led to Jones’ indictment stemmed from a fire that occurred in Matoaka, West Virginia on October 29, 1981. The government presented evidence at trial that Jones, Richard Lewis, John Whitlow, and his son, Joseph Whitlow, devised a scheme to defraud Aetna Casualty and Surety Company, the insurer of a building owned by Lewis, by burning the building and submitting a false claim to the insurance company for the resulting damage. The scheme began in the fall of 1981 when Jones approached Lewis, who was having business and financial problems, and suggested burning the building to collect the insurance proceeds. Lewis agreed and agreed to pay Jones $10,000 from the insurance funds. Jones arranged for the Whitlows to burn the building. He paid them $1,500 to commit the arson. The Whitlows were arrested as they were leaving the burning building and were tried on arson charges in West Virginia state court. Lewis filed a claim with the insurance company for damage to the building due to the fire. The company retained counsel to investigate the fire and the claim was eventually denied. The facts surrounding the charges against Jones came to light when the Whitlows agreed to cooperate with authorities during the course of the state prosecution. The correspondence between Lewis and the insurance company formed the basis for the mail fraud charges. A jury convicted Jones on all five counts of mail fraud. He was sentenced to consecutive terms of five years imprisonment on each of the first three counts and concurrent suspended terms of five years on counts four and five. He was also fined $5,000 and placed on five years probation. Jones appeals. II. The appellant’s principal contention on appeal is that the district court failed to comply with the Speedy Trial Act when it dismissed the December 1984 indictment without prejudice. The Act provides that in determining whether to dismiss a case with or without prejudice the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a re-prosecution on the administration of this chapter and on the administration of justice. 18 U.S.C. § 3162(a)(2). The district court in this case addressed the “facts and circumstances” leading to the dismissal in its original order but did not address the “seriousness of the offense” or the “impact of a reprosecution.” In a subsequent order, however, entered after the appellant moved to dismiss the 1985 indictment on the ground that the court failed to address all three statutory factors in its dismissal order, the same court stated that it “did mentally consider” all the factors outlined in 18 U.S.C. § 3162(a)(2) during the process of dismissing the indictment. The court found that appellant was not prejudiced by the omission of a written analysis of the two factors that were not committed to writing. The decision to dismiss for noncompliance with the Speedy Trial Act with or without prejudice is within the discretion of the trial court. United States v. Taylor, 487 U.S. 326, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988). United States v. Brainer, 691 F.2d 691 (4th Cir.1982). That discretion, however, is not unlimited, the Act mandating dismissal of an indictment upon “violation of precise time limits, and specifying criteria to consider in deciding whether to bar reprosecution.” 108 S.Ct. at 2423. In Taylor the Supreme Court ruled that a district court’s dismissal with prejudice under section 3162(a)(2) was an abuse of discretion where the court failed to set out relevant factual findings and to clearly articulate its application of the statutory factors to the facts of the case. Jones does not argue that the district court abused its discretion in dismissing his indictment without prejudice, but argues that Taylor automatically entitles him to a remand for the court to address the two statutory factors it previously failed to address. We do not read Taylor quite so broadly. In Taylor the Court found it significant that Congress had included clear and specific factors for a district court to consider in deciding whether to bar reprosecution, i.e., whether to dismiss an indictment with or without prejudice. The Court found that because the factors were listed in the statute, the statute required that those factors be applied to each case. Id. at 2419. The appellant relies on this language to support his claim that he is entitled to a remand for consideration of the factors in the statute. Under the circumstances of this case, we do not believe that a remand is required. In the Speedy Trial Act ... Congress specifically and clearly instructed that courts “shall consider, among others, each of the following factors,” § 3162(a)(2) (emphasis added), and thereby put in place meaningful standards to guide appellate review ... Where, as here, Congress has declared that a decision will be governed by consideration of particular factors, a district court must carefully consider those factors as applied to the particular case and, whatever its decision, clearly articulate their effect in order to permit meaningful appellate review. In Taylor the Supreme Court did not reverse simply because the district court failed to address one or more of the statutory factors. Although the Court emphasized the importance of a district court articulating its reasons for its choice of remedy and addressing the factors set out by Congress, it reversed because, after analyzing the district court’s decision in the framework of the Act and in light of the record, it found that the court had abused its discretion with regard to the merits of the speedy trial claim. “The District Court failed to consider all the factors relevant to the choice of a remedy under the Act. What factors it did rely on were unsupported by factual findings or evidence in the record.” Id. at 2423. During oral argument of this case, appellant referred us to United States v. White, 864 F.2d 660 (9th Cir.1988), where the court relied on Taylor in reversing a conviction because the district court failed to make specific factual findings and to discuss the statutory factors in support of its decision to dismiss without prejudice under section 3162(a)(2). In White, the court remanded the case to the district court for analysis and articulation of the application of the statutory factors to the facts of that case. Jones urges us to follow the Ninth Circuit and remand his case for analysis of the statutory factors. In White the district court made no specific factual findings in support of its decision to dismiss without prejudice and the record contained no discussion of the statutory factors. The linchpin of the reviewing court’s decision to reverse was that it was unable to find an adequate basis in the record for the district court’s decision. We do not believe the case before us mandates the same result. Though we certainly do not minimize the importance of the Court’s holding in Taylor with regard to articulation of the statutory factors, where the record amply supports the district court’s decision, we do not believe Taylor requires automatic reversal. Instead, we choose to apply the abuse of discretion standard recognized in Taylor to the facts of this case, and in doing so, acknowledge that we must “undertake more substantive scrutiny” than would otherwise be the case, “to ensure that the judgment is supported in terms of the factors identified in the statute.” 108 S.Ct. at 2420. Unlike White, the record here is sufficient for us to make a determination of whether the district court’s decision to dismiss without prejudice was an abuse of discretion. After carefully reviewing the record we conclude that the district court did not abuse its discretion and that to remand the case, as the appellant requests, would not only be unnecessary, but would be pointless. The first factor to be considered under the statute is the seriousness of the crime. In this case, we recognize that the crime charged is a very serious one. Where this is true, the sanction of dismissal with prejudice should ordinarily be imposed only for serious delay. United States v. Carreon, 626 F.2d 528 (7th Cir.1980). Second, although the original trial date was 126 days after the indictment, thirty of those days were excludable for a determination of appellant’s mental competency. Thus, the trial date was scheduled twenty-six days outside of the Act. However, as we previously pointed out in footnote one of this opinion, the statute providing for competency examination after arrest and before trial was amended only days before appellant’s arrest and under the previous statute there would have been no violation of the Speedy Trial Act. It appears that the magistrate simply applied the wrong statute. With regard to the third factor, i.e., the impact of a reprosecution on the administration of justice and on the administration of the Speedy Trial Act, there is no evidence that a delay in the trial date was for the government to obtain a tactical advantage, that the delay was purposeful or that the appellant was prejudiced by the delay. See United States v. Simmons, 786 F.2d 479 (2d Cir.1986). Under the circumstances, where the delay was not intentional, was not overly long, and there is no evidence of prejudice to the appellant, we find that the district court did not abuse its discretion in dismissing the indictment without prejudice. Even though the district court failed to give a written analysis of the statutory factors as it should have done, that failure was harmless in view of the fact that the record amply supports the decision. Accordingly, the judgment of the district court is affirmed. AFFIRMED. . Prior to October 12, 1984, 18 U.S.C. § 4244 permitted commitment for competency examination after arrest and before trial for "such reasonable period as the court may determine.” The statute was amended on October 12, 1984, five days before Jones was arrested, by 18 U.S.C. § 4247(b) to allow commitment for “a reasonable period, but not to exceed thirty days_” When he committed Jones to Butner, the magistrate did not limit the commitment period to a specific period of time, apparently operating under the old statute. . Jones did not appeal from the court's dismissal order. Had he done so, this Court would have lacked jurisdiction to hear the appeal. See United States v. Kelley, 849 F.2d 1395 (11th Cir.1988); United States v. Reale, 834 F.2d 281 (2d Cir.1987); United States v. Bratcher, 833 F.2d 69 (6th Cir.1987) (all holding that a criminal defendant may not immediately appeal when an indictment is dismissed without prejudice for a Speedy Trial Act violation). Cf. United States v. Lanham, 631 F.2d 356 (4th Cir.1980) (holding that dismissal without prejudice is not immediately reviewable). . 18 U.S.C. § 1341 makes it a crime to "devise any scheme or artifice to defraud, ... [and] for the purpose of executing such scheme or artifice ... place in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or take or receive therefrom, any such matter or thing, or knowingly cause to be delivered by mail according to the direction thereon, ... any such matter or thing." . Jones also argues that the district court erred in: (1) its ruling regarding an alleged plea agreement; and (2) in allowing evidence of similar acts under Fed.R.Evid. 404(b). Also, he argues that the evidence on counts two, four, and five was not sufficient to sustain his conviction. We have reviewed these contentions and find them to be without merit. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
sc_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. DEPARTMENT OF REVENUE OF KENTUCKY et al. v. DAVIS et ux. CERTIORARI TO THE COURT OF APPEALS OF KENTUCKY No. 06-666. Argued November 5, 2007 Decided May 19, 2008 C. Christopher Trower argued the cause for petitioners. With him on the briefs were Gwen R. Pinson and Douglas M. Dowell. G. Eric Brunstad, Jr., argued the cause for respondents. With him on the brief were Rheba Rutkowski, M. Stephen Dampier, Charles R. Watkins, John R. Wylie, David J. Guin, Tammy McClendon Stokes, Irvin D. Foley, Anthony G. Raluy, M. Scott Barrett, Charles S. Zimmerman, Hart L. Robinovitch, Michael C. Moran, Arthur T. Susman, Matthew T. Hurst, and Matthew T. Heffner. Briefs of amici curiae urging reversal were filed for the State of North Carolina et al. by Roy Cooper, Attorney General of North Carolina, Christopher G. Browning, Jr., Kay Linn Miller Hobart, and Gregory P. Roney, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Talis J. Colberg of Alaska, Terry Goddard of Arizona, Dustin McDaniel of Arkansas, Edmund G. Brown, Jr., of California, John W. Suthers of Colorado, Richard Blumenthal of Connecticut, Joseph R. Biden III of Delaware, Bill McCollum, of Florida, Thurbert E. Baker of Georgia, Mark J. Bennett of Hawaii, Lawrence Wasden of Idaho, Lisa Madigan of Illinois, Steve Carter of Indiana, Tom Miller of Iowa, Paul Morrison of Kansas, Charles C. Foti, Jr., of Louisiana, G. Steven Rowe of Maine, Douglas F. Gansler of Maryland, Martha Coakley of Massachusetts, Michael A. Cox of Michigan, Lori Swanson of Minnesota, Jim Hood of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Jon Bruning of Nebraska, Catherine Cortez Masto of Nevada, Kelly A. Ayotte of New Hampshire, Anne Milgram of New Jersey, Gary King of New Mexico, Andrew M. Cuomo of New York, Wayne Stenehjem of North Dakota, Marc Dann of Ohio, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Thomas J. Corbett, Jr., of Pennsylvania, Patrick Lynch of Rhode Island, Henry McMaster of South Carolina, Lawrence E. Long of South Dakota, Robert E. Cooper, Jr., of Tennessee, Greg Abbott of Texas, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Bob McDonnell of Virginia, Robert M. McKenna of Washington, Darrell V. McGraw, Jr., of West Virginia, J. B. Van Hollen of Wisconsin, and Patrick J. Crank of Wyoming; for the Churchill Tax-Free Fund of Kentucky et al. by Michael F. Smith, Philip J. Kessler, and Dennis K. Egan; for Dupree Mutual Funds by P. Anthony Sammons; for the Government Finance Officers Association et al. by Richard Ruda; for the National Association of State Treasurers by Robert A Long, Theodore P. Metzler, Richard L. Sigal, and Richard A. Cordray; for Nuveen Investments, Inc., by Barry Sullivan and J. Kevin McCall; and for the Securities Industry and Financial Markets Association by Carter G. Phillips, Richard D. Bernstein, A Robert Pietrzak, Daniel A. McLaughlin, Kevin M. Carroll, and Leslie M. Norwood. Briefs of amici curiae urging affirmance were filed for the Tax Foundation by Brian E. Bailey; and for Alan D. Viard et al. by Lucinda O. McConathy. Briefs of amici curiae were filed for the Multistate Tax Commission by Sheldon H. Laskin; and for the National Federation of Municipal Analysts by Leonard Weiser-Varón, William C. Brashares, Maxwell D. Solet, and Noah C. Shaw. Justice Souter delivered the opinion of the Court, except as to Part III-B. For the better part of two centuries States and their political subdivisions have issued bonds for public purposes, and for nearly half that time some States have exempted interest on their own bonds from their state income taxes, which are imposed on bond interest from other States. The question here is whether Kentucky’s version of this differential tax scheme offends the Commerce Clause. We hold that it does not. I A Like most other States, the Commonwealth of Kentucky taxes its residents’ income. See Ky. Rev. Stat. Ann. §141.020(1) (West 2006). The tax is assessed on “net income,” see ibid., calculated by reference to “gross income” as defined by the Internal Revenue Code, see §§ 141.010(9)-(11) (West Supp. 2007), which excludes “interest on any State or local bond” (“municipal bond,” for short), 26 U. S. C. § 103(a). Kentucky piggybacks on this exclusion, but only up to a point: it adds “interest income derived from obligations of sister states and political subdivisions thereof” back into the taxable net. Ky. Rev. Stat. Ann. § 141.010(10)(c). Interest on bonds issued by Kentucky and its political subdivisions is thus entirely exempt, whereas interest on municipal bonds of other States and their subdivisions is taxable. (Interest on bonds issued by private entities is taxed by Kentucky regardless of the private issuer’s home.) The ostensible reason for this regime is the attractiveness of tax-exempt bonds at “lower rates of interest... than that paid on taxable... bonds of comparable risk.” M. Graetz & D. Schenk, Federal Income Taxation 215 (5th ed. 2005) (hereinafter Graetz & Schenk). Under the Internal Revenue Code, for example, see 26 U. S. C. § 103, “if the market rate of interest is 10 percent on a comparable corporate bond, a municipality could pay only 6.5 percent on its debt and a purchaser in a 35 percent marginal tax bracket would be indifferent between the municipal and the corporate bond, since the after-tax interest rate on the corporate bond is 6.5 percent,” Graetz & Schenk 215. The differential tax scheme in Kentucky works the same way; the Commonwealth’s tax benefit to residents who buy its bonds makes lower interest rates acceptable, while limiting the exception to Kentucky bonds raises in-state demand for them without also subsidizing other issuers. The significance of the scheme is immense. Between 1996 and 2002, Kentucky and its subdivisions issued $7.7 billion in long-term bonds to pay for spending on transportation, public safety, education, utilities, and environmental protection, among other things. IRS, Statistics of Income Bulletin, C. Belmonte, Tax-Exempt Bonds, 1996-2002, pp. 169-170, http://www.irs.gov/pub/irs-soi/02govbnd.pdf (as visited Jan. 23, 2008, and available in Clerk of Court’s case file). Across the Nation during the same period, States issued over $750 billion in long-term bonds, with nearly a third of the money going to education, followed by transportation (13%) and utilities (11%). See ibid. Municipal bonds currently finance roughly two-thirds of capital expenditures by state and local governments. L. Thomas, Money, Banking and Financial Markets 55 (2006). Funding the work of government this way follows a tradition going back as far as the 17th century. See Johnson & Rubin, The Municipal Bond Market: Structure and Changes, in Handbook of Public Finance 483, 485 (F. Thompson & M. Green eds. 1998) (“[In] 1690... Massachusetts issued bills of credit to pay soldiers who had participated in an unsuccessful raid on the City of Quebec”). Municipal bonds first appeared in the United States in the early 19th century: “New York City began to float [debt] securities in about 1812,” A. Hillhouse, Municipal Bonds: A Century of Experience 31 (1936) (hereinafter Hillhouse), and by 1822 Boston “had a bonded debt of $100,000,” id., at 32. The municipal bond market had swelled by the mid-1840s, when the aggregate debt of American cities exceeded $27 million, and the total debt of the States was nearly 10 times that amount. See ibid. Bonds funded some of the great public works of the day, including New York City’s first water system, see id., at 31, and the Erie Canal, see R. Amdursky & C. Gillette, Municipal Debt Finance Law §1.2.1, p. 15 (1992) (hereinafter Amdursky & Gillette). At the turn of the 20th century, the total state and municipal debt was closing in on $2 billion, see Hillhouse 35, and by the turn of the millennium, over “$1.5 trillion in municipal bonds were outstanding,” J. Temel, The Fundamentals of Municipal Bonds, p. ix (5th ed. 2001). Differential tax schemes like Kentucky’s have a long pedigree, too. State income taxation became widespread in the early 20th century, see A. Comstock, State Taxation of Personal Incomes 11 (1921) (reprinted 2005) (hereinafter Com-stock), and along with the new tax regimes came exemptions and deductions, see id., at 171-184, to induce all sorts of economic behavior, including lending to state and local governments at favorable rates of untaxed interest. New York enacted the first of these statutes in 1919, see 1919 N. Y. Laws pp. 1641-1642, the same year it imposed an income tax, see Comstock 104, and other States followed, see, e. g., 1921 N. C. Sess. Laws p. 208; 1923 N. H. Laws p. 78; 1926 Va. Acts ch. 576, pp. 960-961, with Kentucky joining the pack in 1936, see 1936 Ky. Acts p. 71. Today, 41 States have laws like the one before us. B Petitioners (for brevity, Kentucky or the Commonwealth) collect the Kentucky income tax. Respondents George and Catherine Davis are Kentucky residents who paid state income tax on interest from out-of-state municipal bonds, and then sued the tax collectors in state court on a refund claim that Kentucky’s differential taxation of municipal bond income impermissibly discriminates against interstate commerce in violation of the Commerce Clause of the National Constitution. The trial court granted judgment to the Commonwealth, relying in part on our cases recognizing the “market-participant” exception to the dormant Commerce Clause limit on state regulation. See App. to Pet. for Cert. A18-A19 (citing Reeves, Inc. v. Stake, 447 U. S. 429 (1980), and Hughes v. Alexandria Scrap Corp., 426 U. S. 794 (1976)). The Court of Appeals of Kentucky reversed. See 197 S. W. 3d 557 (2006). In a brief discussion, it rejected the reasoning of an Ohio case upholding a similar tax scheme challenged under the Commerce Clause, see id., at 563 (discussing Shaper v. Tracy, 97 Ohio App. 3d 760, 647 N. E. 2d 550 (1994)), and distinguished our market participant cases, see 197 S. W. 3d, at 564, as well as a decision from the 19th century the Commonwealth relied on, see id., at 563-564 (discussing Bonaparte v. Tax Court, 104 U. S. 592 (1882)). The Court of Appeals thought it had “no choice but to find that Kentucky’s system of taxing only extraterritorial bonds runs afoul of the Commerce Clause,” 197 S. W. 3d, at 564, and the Supreme Court of Kentucky denied the Commonwealth’s motion for discretionary review, see App. to Pet. for Cert. A14. We granted certiorari owing to the conflict this raised on an important question of constitutional law, and because the*, result reached casts constitutional doubt on a tax regime adopted by a majority of the States. 550 U. S. 956 (2007). We now reverse. II The Commerce Clause empowers Congress “[t]o regulate Commerce... among the several States,” Art. I, §8, cl. 3, and although its terms do not expressly restrain “the several States” in any way, we have sensed a negative implication in the provision since the early days, see, e. g., Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc.for Relief of Distressed Pilots, 12 How. 299, 318-319 (1852); cf. Gibbons v. Ogden, 9 Wheat. 1,209 (1824) (Marshall, C. J.) (dictum). The modern law of what has come to be called the dormant Commerce Clause is driven by concern about “economic protectionism — that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.” New Energy Co. of Ind. v. Limbach, 486 U. S. 269, 273-274 (1988). The point is to “effectuatfe] the Framers’ purpose to 'prevent a State from retreating into [the] economic isolation,’” Fulton Corp. v. Faulkner, 516 U. S. 325, 330 (1996) (quoting Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U. S. 175,180 (1995); brackets omitted), “that had plagued relations among the Colonies and later among the States under the Articles of Confederation,” Hughes v. Oklahoma, 441 U. S. 322, 325-326 (1979). The law has had to respect a cross-purpose as well, for the Framers’ distrust of economic Balkanization was limited by their federalism favoring a degree of local autonomy. Compare The Federalist Nos. 7 (A. Hamilton), 11 (A. Hamilton), and 42 (J. Madison), with The Federalist No. 51 (J. Madison); see also Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 546 (1985) (“The essence of our federal system is that within the realm of authority left open to them under the Constitution, the States must be equally free to engage in any activity that their citizens choose for the common weal”). Under the resulting protocol for dormant Commerce Clause analysis, we ask whether a challenged law discriminates against interstate commerce. See Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., 511 U. S. 93, 99 (1994). A discriminatory law is “virtually per se invalid,” ibid.; see also Philadelphia v. New Jersey, 437 U. S. 617, 624 (1978), and will survive only if it “advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives,” Oregon Waste Systems, supra, at 101 (internal quotation marks omitted); see also Maine v. Taylor, 477 U. S. 131,138 (1986). Absent discrimination for the forbidden purpose, however, the law “will be upheld unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.” Pike y. Bruce Church, Inc., 397 U. S. 137, 142 (1970). State laws frequently survive this Pike scrutiny, see, e. g., United Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste Management Authority, 550 U. S. 330, 346-347 (2007) (plurality opinion); Northwest Central Pipeline Corp. v. State Corporation Comm’n of Kan., 489 U. S. 493, 525-526 (1989); Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456, 472-474 (1981), though not always, as in Pike itself, 397 U. S., at 146. Some cases run a different course, however, and an exception covers States that go beyond regulation and themselves “participat[e] in the market” so as to “exercis[e] the right to favor [their] own citizens over others.” Alexandria Scrap, supra, at 810. This “market-participant” exception reflects a “basic distinction... between States as market participants and States as market regulators,” Reeves, 447 U. S., at 436, “[t]here [being] no indication of a constitutional plan to limit the ability of the States themselves to operate freely in the free market,” id., at 437. See also White v. Massachusetts Council of Constr. Employers, Inc., 460 U. S. 204, 208 (1983) (“[W]hen a state or local government enters the market as a participant it is not subject to the restraints of the Commerce Clause”). Thus, in Alexandria Scrap, we found that a state law authorizing state payments to processors of automobile hulks validly burdened out-of:state processors with more onerous documentation requirements than their in-state counterparts. Likewise, Reeves accepted South Dakota’s policy of giving in-state customers first dibs on cement produced by a state-owned plant, and White held that a Boston executive order requiring half the workers on city-financed construction projects to be city residents passed muster. Our most recent look at the reach of the dormant Commerce Clause came just last Term, in a case decided independently of the market participation precedents. United Haulers, supra, upheld a “flow control” ordinance requiring trash haulers to deliver solid waste to a processing plant owned and operated by a public authority in New York State. We found “Compelling reasons” for “treating [the ordinance] differently from laws favoring particular private businesses over their competitors.” Id., at 342. State and local governments that provide public goods and services on their own, unlike private businesses, are “vested with the responsibility of protecting the health, safety, and welfare of [their] citizens,” ibid., and laws favoring such States and their subdivisions may “be directed toward any number of legitimate goals unrelated to protectionism,” id., at 343. That was true in United Haulers, where the ordinance addressed waste disposal, “both typically and traditionally a local government function.” Id., at 344 (quoting United Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste Management Authority, 261 F. 3d 245, 264 (CA2 2001) (Calabresi, J., concurring); internal quotation marks omitted). And if more had been needed to show that New York’s object was consequently different from forbidden protectionism, we pointed out that “the most palpable harm imposed by the ordinances — more expensive trash removal — [was] likely to fall upon the very people who voted for the laws,” rather than out-of-state interests. United Haulers, 550 U. S., at 345. Being concerned that a “contrary approach... would lead to unprecedented and unbounded interference by the courts with state and local government,” id., at 343, we held that the ordinance did “not discriminate against interstate commerce for purposes of the dormant Commerce Clause,” id., at 342. III A It follows a fortiori from United Haulers that Kentucky-must prevail. In United Haulers, we explained that a government function is not susceptible to standard dormant Commerce Clause scrutiny owing to its likely motivation by legitimate objectives distinct from the simple economic protectionism the Clause abhors. See id., at 343 (“Laws favoring local government... may be directed toward any number of legitimate goals unrelated to protectionism”); see also id., at 344 (noting that “[w]e should be particularly hesitant to interfere... under the guise of the Commerce Clause” where a local government engages in a traditional government function). This logic applies with even greater force to laws favoring a State’s municipal bonds, given that the issuance of debt securities to pay for public projects is a quintessentially public function, with the venerable history we have already sketched, see supra, at 334-335. By issuing bonds, state and local governments “sprea[d] the costs of public projects over time,” Amdursky & Gillette § 1.1.3, at 11, much as one might buy a house with a loan subject to monthly payments. Bonds place the cost of a project on the citizens who benefit from it over the years, see ibid., and they allow for public work beyond what current revenues could support, see id., § 1.2, at 12-13. Bond proceeds are thus the way to shoulder the cardinal civic responsibilities listed in United Haulers: protecting the health, safety, and welfare of citizens. It should go without saying that the apprehension in United Haulers about “unprecedented... interference” with a traditional government function is just as warranted here, where the Davises would have us invalidate a century-old taxing practice, see supra, at 335, presently employed by 41 States, see n. 7, supra, and affirmatively supported by all of them, see Brief for 49 States as Amici Curiae. In fact, this emphasis on the public character of the enterprise supported by the tax preference is just a step in addressing a fundamental element of dormant Commerce Clause jurisprudence, the principle that “any notion of discrimination assumes a comparison of substantially similar entities.” United Haulers, supra, at 342 (quoting General Motors Corp. v. Tracy, 519 U. S. 278,298 (1997); internal quotation marks omitted). In Bonaparte, 104 U. S. 592, a case involving the Full Faith and Credit Clause, we held that a foreign State is properly treated as a private entity with respect to state-issued bonds that have traveled outside its borders. See id., at 595 (beyond its borders, a debtor State “is compelled to go into the market as a borrower, subject to the same disabilities in this particular as individuals,” and has none “of the attributes of sovereignty as to the debt it owes”). Viewed through this lens, the Kentucky tax scheme parallels the ordinance upheld in United Haulers: it “benefit[s] a clearly public [issuer, that is, Kentucky], while treating all private [issuers] exactly the same.” 550 U. S., at 342. There is no forbidden discrimination because Kentucky, as a public entity, does not have to treat itself as being “substantially similar” to the other bond issuers in the market. Thus, United Haulers provides a firm basis for reversal. Just like the ordinances upheld there, Kentucky’s tax exemption favors a traditional government function without any differential treatment favoring local entities over substantially similar out-of-state interests. This type of law does “not 'discriminate against interstate commerce’ for purposes of the dormant Commerce Clause.” Id., at 345. B This case, like United Haulers, may also be seen under the broader rubric of the market participation doctrine, although the Davises say that market participant cases are inapposite here. In their view, we may not characterize state action under the Kentucky statutes as market activity for public purposes, because this would ignore a fact absent in United Haulers but central here: this is a case about differential taxation, and a difference that amounts to a heavier tax burden on interstate activity is forbidden, see, e. g., Camps New-found/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564 (1997) (invalidating statute exempting charities from real estate and personal property taxes unless conducted or operated principally for the benefit of out-of-state residents); Fulton Corp., 516 U. S. 325 (striking down tax on corporate stock held by state residents, where rate of tax was inversely proportional to the corporation’s exposure to the State’s income tax); Bacchus Imports, Ltd. v. Dias, 468 U. S. 263 (1984) (holding excise tax on sale of liquor at wholesale unconstitutional because it exempted some locally produced alcoholic beverages). The Davises make a fair point to the extent that they argue that Kentucky acts in two roles at once, issuing bonds and setting taxes, and if looked at as a taxing authority it seems to invite dormant Commerce Clause scrutiny of its regulatory activity, see Walling v. Michigan, 116 U. S. 446, 455 (1886) (“A discriminating tax imposed by a State operating to the disadvantage of the products of other States when introduced into the first mentioned State, is, in effect, a regulation in restraint of commerce among the States, and as such is a usurpation of the power conferred by the Constitution upon the Congress”); see also Camps Newfound, supra, at 578 (“[I]t is clear that discriminatory burdens on interstate commerce imposed by regulation or taxation may... violate the Commerce Clause”); Tracy, supra, at 287 (“The negative or dormant implication of the Commerce Clause prohibits state taxation... that discriminates against or unduly burdens interstate commerce”). But there is no ignoring the fact that imposing the differential tax scheme makes sense only because Kentucky is also a bond issuer. The Commonwealth has entered the market for debt securities, just as Maryland entered the market for automobile hulks, see Alexandria Scrap, 426 U. S., at 806, and South Dakota entered the cement market, see Reeves, 447 U. S., at 440. It simply blinks this reality to disaggregate the Commonwealth’s two roles and pretend that in exempting the income from its securities, Kentucky is independently regulating or regulating in the garden variety way that has made a State vulnerable to the dormant Commerce Clause. States that regulated the price of milk, see, e. g., West Lynn Creamery, Inc. v. Healy, 512 U. S. 186 (1994); Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511 (1935), did not keep herds of cows or compete against dairy producers for the dollars of milk drinkers. But when Kentucky exempts its bond interest, it is competing in the market for limited investment dollars, alongside private bond issuers and its sister States, and its tax structure is one of the tools of competition. The failure to appreciate that, regulation by taxation here goes hand in hand with market participation by selling bonds allows the Davises to advocate the error of focusing exclusively on the Commonwealth as regulator and ignoring the Commonwealth as bondseller, see Brief for Respondents 36-39, just as the state court did in saying that “ ‘when a state chooses to tax its citizens, it is acting as a market regulator!,]’ not as a market participant.” 197 S. W. 3d, at 564 (quoting Shaper, 97 Ohio App. 3d, at 764, 647 N. E. 2d, at 552). To indulge in this single vision, however, would require overruling most, if not all, of the cases on point decided since Alexandria Scrap. White, for example, also scrutinized a government acting in dual roles. The mayor of Boston promulgated an executive order that bore the hallmarks of regulation: it applied to every construction project funded wholly or partially by city funds (or funds administered by the city), and it imposed general restrictions on the hiring practices of private contractors, mandating that 50% of their work forces be bona fide Boston residents and setting thresholds for minorities (25%) and women (10%) as well. See 460 U. S., at 205, n. 1; see also id., at 218-219 (Blackmun, J., concurring in part and dissenting in part) (“The executive order in this case... is a direct attempt to govern private economic relationships.... [It] is the essence of regulation”). At the same time, the city took part in the market by “expending]... its own funds in entering into construction contracts for public projects.” Id., at 214-215 (opinion of the Court). After speaking of “ ‘[t]he basic distinction... between States as market participants and States as market regulators/” id., at 207 (quoting Reeves, supra, at 436-437), White did not dissect Boston’s conduct and ignore the former. Instead, the Court treated the regulatory activity in favor of local and minority labor as terms or conditions of the government’s efforts in its market role, which was treated as dispositive. Similarly, in Alexandria Scrap, Maryland employed the tools of regulation to invigorate its participation in the market for automobile hulks. The specific controversy there was over documentation requirements included in a “comprehensive statute designed to speed up the scrap cycle.” 426 U. S., at 796. Superficially, the scheme was regulatory in nature; but the Court’s decision was premised on its view that, in practical terms, Maryland had not only regulated but had also “entered into the market itself to bid up [the] price” of automobile hulks. See id., at 806. United Haulers, though not placed under the market participant umbrella, may be seen as another example. Not only did the public authority acting in that case process trash, but its governmental superiors forbade trash haulers to deal with any other processors. This latter fact did not determine the outcome, however; the dispositive fact was the government’s own activity in processing trash. We upheld the government’s decision to shut down the old market for trash processing only because it created a new one all by itself, and thereby became a participant in a market with just one supplier of a necessary service. If instead the government had created a monopoly in favor of a private hauler, we would have struck down the law just as we did in C & A Carbone, Inc. v. Clarkstown, 511 U. S. 383 (1994). United Haulers accordingly turned on our decision to give paramount consideration to the public function in actively dealing in the trash market; if the Davises had their way, United Haulers would be overruled and the market participation doctrine would describe a null set (or maybe a set of one, see Reeves, supra). In each of these cases the commercial activities by the governments and their regulatory efforts complemented each other in some way, and in each of them the fact of tying the regulation to the public object of the foray into the market was understood to give the regulation a civic objective different from the discrimination traditionally held to be unlawful: in the paradigm of unconstitutional discrimination the law chills interstate activity by creating a commercial advantage for goods or services marketed by local private actors, not by governments and those they employ to fulfill their civic objectives, see, e. g., Fulton Corp., 516 U. S. 325 (higher tax on the stock of corporations with little or no presence in the State); New Energy Co. of Ind., 486 U. S. 269 (tax credit to sellers of ethanol available only for ethanol produced in the State); Bacchus Imports, Ltd., 468 U. S. 263 (tax exemption that applied only to sales of certain locally produced liquors); Lewis v. BT Investment Managers, Inc., 447 U. S. 27 (1980) (prohibition on out-of-state banks owning in-state businesses that provided investment advisory services); Boston Stock Exchange v. State Tax Comm’n, 429 U. S. 318 (1977) (higher tax on sale of securities by nonresidents if the securities were sold on an out-of-state, not an in-state, exchange). In sum, our cases on market regulation without market participation prescribe standard dormant Commerce Clause analysis; our cases on market participation joined with regulation (the usual situation) prescribe exceptional treatment for this direct governmental activity in commercial markets for the public’s benefit. The Kentucky tax scheme falls outside the forbidden paradigm because the Commonwealth’s direct participation favors, not local private entrepreneurs, but the Commonwealth and local governments. The Commonwealth enacted its tax code with an eye toward making some or all of its bonds more marketable. When it issues them for sale in the bond market, it relies on that tax code, and seller and purchaser treat the bonds and the tax rate as joined just as intimately, say, as the work force requirements and city construction contracts were in Boston. Issuing bonds must therefore have the same significance under the dormant Commerce Clause as government trash processing, junk car disposal, or construction; and United Haulers, Alexandria Scrap, and White can be followed only by rejecting the Davises’ argument that Kentucky’s regulatory activity should be viewed in isolation as Commerce Clause discrimination. c A look at the specific markets in which the exemption’s effects are felt both confirms the conclusion that no traditionally forbidden discrimination is underway and points to the distinctive character of the tax policy. The market as most broadly conceived is one of issuers and holders of all fixed-income securities, whatever their source or ultimate destination. In this interstate market, Kentucky treats income from municipal bonds of other States just like income from bonds privately issued in Kentucky or elsewhere; no preference is given to any local issuer, and none to any local holder, beyond what is entailed in the preference Kentucky grants itself when it engages in activities serving public objectives. A more specialized market can be understood as commerce solely in federally tax-exempt municipal bonds, much of it conducted through interstate municipal bond funds. Here, of course, the distinction between the taxing State’s bonds and their holders and issuers and holders of out-of-state counterparts is at its most stark. But what is remarkable about the issuers in this and the broader interstate market is that nearly every taxing State believes its public interests are served by the same tax-and-exemption feature, which is supported in this Court by every one of the States (with or without an income tax) despite the ranges of relative wealth and tax rates among them. See Brief for 49 States as Amici Curiae. These facts suggest that no State perceives any local advantage or disadvantage beyond the permissible ones open to a government and to those who deal with it when that government itself enters the market. See supra, at 344-348. An equally significant perception emerges from examining the third type of market for municipal bonds: the one for bonds within the State of issue, a large proportion of which market in each State is managed by one or more single-state funds. By definition, there is no discrimination against interstate activity within the market itself, but one of its features reveals an important benefit of intrastate bond markets as they operate through these funds. The intrastate funds absorb securities issued by smaller or lesser known municipalities that the interstate markets tend to ignore. See National Federation Brief 15 (compared with single-state funds, “[njational mutual funds... are less likely to dedicate the time necessary to evaluate a small, obscure or infrequent municipal bond issuer or to purchase bonds issued by such public entities”); id., at 19 (“[Njational mutual funds place a higher premium on the liquidity of their holdings than do single state funds, which are willing to purchase less liquid municipal bonds of smaller and less familiar issuers because of the state tax advantage and the fund’s mandate to purchase bonds issued within a specific state”). There is little doubt that many single-state funds would disappear if the current differential tax schemes were upset. See id., at 18 (“[OJne predictable impact of the elimination of tax incentives for the purchase of municipal bonds issued in a specific state would be the disappearance, through consolidation into national mutual funds, of single state mutual funds”); ibid. (“Although a handful of single state funds might continue to exist for a small number of states (such as Florida) with high populations that have a high affinity for local bond issuers, the current state tax system is the raison d’etre for virtually all single state funds, and they would cease to be financially viable in the absence of a tax advantage that outweighed their relative lack of diversification vis-a-vis national funds and their reduced asset base”); accord, Brief for Respondents 29 (the States’ tax exemptions “have fostered the growth of funds that hold only the municipal bonds of a single state,” which “[a]s compared [with] national tax-exempt bonds funds... tend to be higher risk and higher cost”); 11 Kiplinger’s Retirement Report, Win With Home-State Muni Bond Funds, p. 2 (Dec. 2004) (noting that in States without a differential taxation scheme, “there’s little incentive to create [single-state] muni bond funds”). Nor is there any suggestion that the interstate markets would discover some new reason to welcome the weaker municipal issues that would lose their local market homes after a victory for the Davises here. See National Federation Brief 18,19 (“The main adverse impact of the disappearance of single state funds... would be felt by small municipal issuers Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case? A. Yes B. No Answer:
sc_petitioner	027	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them. Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. UNITED STATES v. GILLOCK No. 78-1455. Argued December 4, 1979 Decided March 19, 1980 Burger, C. J., delivered the opinion of the Court, in which BrenNan, Stewart, White, Marshall, Blackmun, and Stevens, JJ., joined. Rehnquist, J., filed a dissenting statement, in which Powell, J., joined, post, p. 374. Solicitor General McCree argued the cause for the United States. With him on the briefs were Assistant Attorney General Heymann, Deputy Solicitor General Frey, Jerome M. Feit, and Louis M. Fischer. James V. Doramus argued the cause for respondent. With him on the brief were James F. Neal, James F. Sanders, and Hal Gerber. Mr. Chief Justice Burger delivered the opinion of the Court. We granted certiorari to resolve a conflict in the Circuits over whether the federal courts in a federal criminal prosecution should recognize a legislative privilege barring the introduction of evidence of the legislative acts of a state legislator charged with taking bribes or otherwise obtaining money unlawfully through exploitation of his official position. 441 U. S. 942 (1979). I Respondent Edgar H. Gillock was indicted on August 12, 1976, in the Western District of Tennessee on five counts of obtaining money under color of official right in violation of 18 U. S. C. § 1951, one count of using an interstate facility to distribute a bribe in violation of 18 U. S. C. § 1952, and one count of participating in an enterprise through a pattern of racketeering activity in violation of 18 U. S. C. § 1962. The indictment charged Gillock, then a Tennessee state senator and practicing attorney, with accepting money as a fee for using his public office to block the extradition of a defendant from Tennessee to Illinois, and for agreeing to introduce in the State General Assembly legislation which would enable four persons to obtain master electricians’ licenses they had been unable to obtain by way of existing examination processes. Before trial, Gillock moved to suppress all evidence relating to his legislative activities. The District Court granted his motion, holding that as a state senator, Gillock had an eviden-tiary privilege cognizable under Rule 501 of the Federal Rules of Evidence. This privilege, deemed by the District Court to be equivalent to that granted Members of both Houses of Congress under the Speech or Debate Clause, Art. I, § 6, cl. 1, was limited to prohibiting the introduction of evidence of Gillock’s legislative acts and his underlying motivations. The coürt stated that the privilege is necessary “to protect the integrity of the [state’s] legislative process by insuring the independence of individual legislators” and “to preserve the constitutional relation between our federal and state governments in our federal system.” The Government appealed the pretrial suppression order to the United States Court of Appeals for the Sixth Circuit, see 18 U. S. C. § 3731, which vacated the order and remanded for additional consideration. 559 F. 2d 1222 (1977). The Court of Appeals noted that although the District Court had expressed its willingness to recognize a legislative privilege, it had not applied the principle to particularizo items of evidence. On remand, the Government submitted a formal offer of proof and requested a ruling on the applicability of the legislative privilege to 15 specifically described items of evidence. The offer first detailed the evidence the Government proposed to introduce at trial in support of the count of the indictment charging Gillock with soliciting money from one Ruth Howard in exchange for using his influence as a state senator to block the extradition of Howard’s brother, James Michael Williams. Williams had been arrested in Tennessee in November 1974, and was being held as a fugitive from Illinois. According to the offer of proof, in January 1975 Howard met in Memphis with her brother’s attorney, John Hundley, who allegedly told her that he had a “friend” who could help her brother. A meeting between Gillock and Howard was arranged by Hund-ley, and Gillock agreed to exercise his influence to block the extradition for a fee. The Government declared its intention to prove that on March 6, 1975, Gillock appeared at Williams’ extradition hearing. Although he denied that he was attending the hearing either as an attorney or in his capacity as a state senator, Gillock reviewed the extradition papers and questioned the hearing officer about the propriety of extradition on a misdemeanor charge. Later that day, Gillock requested an official opinion from the Tennessee Attorney General concerning “Extradition on a Misdemeanor.” In addition, the Government stated it intended to introduce at trial the transcript of a telephone call Gillock made to Howard on March 25, 1975. During that conversation, Gil-lock allegedly advised Howard that he had delayed the extradition proceedings, and could have blocked them entirely, by exerting pressure on the extradition hearing officer who had appeared before Gillock’s senate judiciary committee on a budgetary matter. To corroborate that conversation, the Government indicated it would prove that on March 19, 1975, Gillock attended a meeting of the senate judiciary committee where the same extradition hearing officer who conducted Williams’ extradition hearing presented his department’s budget request. Next, the Government recited the evidence it proposed to introduce showing that Gillock used his influence as a member of the Tennessee State Senate to assist four individuals in obtaining master electricians’ licenses valid in Shelby County, Tenn. According to the offer of proof, the four contacted Gillock in early 1972. Two weeks later, Gillock advised them that he could get legislation enacted by the General Assembly which would provide for reciprocity in licensing. Under his proposal, a person who received a license in another county could be admitted without a test in Shelby County. The prosecution represented it would offer evidence that Gillock fixed a contingent fee of $5,000 per person, to be refunded if the legislation was not passed. The Government also represented that it would offer evidence that Gillock introduced reciprocity legislation in the. senate and that he arranged for the introduction of a similar bill in the house. The Government further proposed to introduce statements made by Gillock on the floor of the senate in support of the bill. After the bill was passed by both branches of the legislature and forwarded to the Governor, several private persons, including union representatives, allegedly met with Gillock and voiced their opposition to the legislation. The Government intended to prove that Gillock replied that he could not financially afford to withdraw the legislation because he had already accepted “fees” for introducing it. Finally, the Government intended to prove that on April 13, 1972, Gillock moved to override the Governor’s veto of the legislation, and stated that it would introduce into evidence any and all statements made by Gillock on the floor of the senate in support of his motion to override. Based on this offer of proof, the District Court granted Gillock’s renewed motion to exclude evidence of his legislative acts under Rule 501. It ruled inadmissible Gillock’s official request for an opinion from the Attorney General regarding extradition and the answer to that request, and Gillock’s statements to Howard that he could exert pressure on the extradition hearing officer to block the extradition because the hearing officer had appeared before Gilloek’s legislative committee. Similarly, the court ruled that all evidence regarding Gillock’s introduction and support of the electricians’ reciprocal licensing bill, his conversation with the private individuals who opposed the legislation^ and the Governor’s veto letter would be inadmissible. The Government again appealed the District. Court’s suppression order. The Court of Appeals by a divided vote held that “the long history and the felt need for protection of legislative speech or debate and the repeated and strong recognition of that history in the cases... from the Supreme Court, fully justify our affirming [the District Court] in [its] protection of the privilege in this case.” 587 F. 2d 284, 290 (1978). Turning to the scope of the privilege, the court affirmed the suppression of evidence of Gillock’s request for a formal opinion from the Attorney General, his participation in' the senate judiciary committee, his introduction of the reciprocity legislation, his motion on the floor of the senate to override the Governor’s veto, and all the statements he made on the floor of the senate. The other items of evidence were considered to be insufficiently related to the legislative process to be protected by the privilege. II Gilloek urges that we construct an evidentiary privilege barring the introduction of evidence of legislative acts in federal criminal prosecutions against state legislators. He argues first that a speech or debate type privilege for state legislators in federal criminal cases is an established part of the federal common law and is therefore applicable through Rule 501. Second, he contends that even apart from Rule 501, a legislative speech or debate privilege is compelled by principles of federalism rooted in our constitutional structure. It is clear that were we to recognize an evidentiary privilege similar in scope to the Federal Speech or Debate Clause, much of the evidence at issue here would be inadmissible. Recently, in United States v. Helstoski, 442 U. S. 477, 489 (1979), we reaffirmed our holding in United States v. Brewster, 408 U. S. 501, 525 (1972), that with respect to Members of Congress “[t]he Clause protects 'against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts.’ ” Under that standard, evidence of Gillock’s participation in the state senate committee hearings and his votes and speeches on the floor would be privileged and hence inadmissible. The language and legislative history of Rule 501 give no aid to Gillock. The Rule provides in relevant part that "the privilege of a witness... shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.” Congress substituted the present language of Rule 501 for the draft proposed by the Advisory Committee of the Judicial Conference of the United States to provide the courts with greater flexibility in developing rules of privilege on a case-by-case basis. Under the Judicial Conference proposed rules submitted to Congress, federal courts would have been permitted to apply only nine specifically enumerated privileges, except as otherwise required by the Constitution or provided by Acts of Congress. See Proposed Federal Rules of Evidence 501-513, H. R. Doc. No. 93-46, pp. 9-19 (1973). Neither the Advisory Committee, the Judicial Conference, nor this Court saw fit, however, to provide the privilege sought by Gillock. Although that fact standing alone would not compel the federal courts to refuse to recognize a privilege omitted from the proposal, it does suggest that the claimed privilege was not thought to be either indelibly ensconced in our common law or an imperative of federalism. Moreover, the House Conference Committee Report on the Federal Rules of Evidence leaves little doubt that Rule 501 requires the application of federal privilege law in criminal cases brought in federal court. H. R. Conf. Rep. No. 93-1597, p. 7 (1974). Cf. Wolfle v. United States, 291 U. S. 7, 13 (1934) (the admissibility of evidence in criminal trials in the federal courts “is to be controlled by common law principles, not by local statute”); Funk v. United States, 290 U. S. 371 (1933). Thus, the fact that there is an evidentiary privilege under the Tennessee Constitution, Art. II, § 13, which Gillock could assert in a criminal prosecution in state court does not compel an analogous privilege in a federal prosecution. Ill Gillock argues that the historical antecedents and policy considerations which inspired the Speech or Debate Clause of the Federal Constitution should lead this Court to recognize a comparable evidentiary privilege for state legislators in federal prosecutions. The important history of the Speech or Debate Clause has been related abundantly in opinions of this Court and need not be repeated. See, e. g., United States v. Helstoski, supra; United States v. Brewster, supra; United States v. Johnson, 383 U. S. 169 (1966). Suffice it to recall that England’s experience with monarchs exerting pressure on members of Parliament by using judicial process to make them more responsive to their wishes led the authors of our Constitution to write an explicit legislative privilege into our organic law. In statutes subject to repeal or in judge-made rules of evidence readily changed by Congress or the judges who made them, the protection would be far less than the legislative privilege created by the Federal Constitution. Our cases, however, have made clear that “[ajlthough the Speech or Debate Clause’s historic roots are in English history, it must be interpreted in light of the American experience, and in the context of the American constitutional scheme of government rather than the English parliamentary system.” United States v. Brewster, 408 U. S., at 508. In deciding whether the principles underlying the federal constitutional speech or debate privilege compel a similar evidentiary privilege on behalf of state legislators, the analysis must look primarily to the American experience, including our structure of federalism which had no counterpart in England. Two interrelated rationales underlie the Speech or Debate Clause: first, the need to avoid intrusion by the Executive or Judiciary into the affairs of a coequal branch, and second, the desire to protect legislative independence. Eastland v. United States Servicemen’s Fund, 421 U. S. 491, 502-503 (1975). Cases considering the Speech or Debate Clause have frequently arisen in the context of a federal criminal prosecution of a Member of Congress and have therefore accented the first rationale. Only recently in such a case, we re-emphasized that a central purpose of the Clause is “to preserve the constitutional structure of separate, coequal, and independent branches of government. The English and American history of the privilege suggests that any lesser standard would risk intrusion by the Executive and the Judiciary into the sphere of protected legislative activities.” United States v. Helstoski, 442 U. S., at 491. Accord, United States v. Johnson, supra, at 180-181. The Framers viewed the speech or debate privilege as fundamental to the system of checks and balances. 8 The Works of Thomas Jefferson 322 (Ford ed. 1904); I The Works of James Wilson 421 (R. McCloskey ed. 1967). The first rationale, resting solely on the separation of powers doctrine, gives no support to the grant of a privilege to state legislators in federal criminal prosecutions. It requires no citation of authorities for the proposition that the Federal Government has limited powers with respect to the states, unlike the unfettered authority which English monarchs exercised over the Parliament. By the same token, however, in those areas where the Constitution grants the Federal Government the power to act, the Supremacy Clause dictates that federal enactments will prevail over competing state exercises of power. Thus, under our federal structure, we do not have the struggles for power between the federal and state systems such as inspired the need for the Speech or Debate Clause as a restraint on the Federal Executive to protect federal legislators. Apart from the separation of powers doctrine, it is also suggested that principles of comity require the extension of a speech or debate type privilege to state legislators in. federal criminal prosecutions. However, as we have noted, federal interference in the state legislative process is not on the same constitutional footing with the interference of one branch of the Federal Government in the affairs of a coequal branch. Baker v. Carr, 369 U. S. 186, 210 (1962). Cf. Dombrowski v. Pfister, 380 U. S. 479, 489-492 (1965) (federal court may enjoin state-court application of a clearly unconstitutional statute). Our opinion in National League of Cities v. Usery, 426 U. S. 833 (1976), is not to the contrary. There, we held that a federal statute regulating the wages of state employees was unconstitutional because it “operate [d] to directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions.” Id., at 852. The absence of a judicially created evidentiary privilege for state legislators is not, however, comparable intervention by the Federal Government into essential state functions. First, Gillock’s argument, resting on the Tenth Amendment, has no special force with regard to state legislators; on the rationale advanced, state executive officers and members of the state judiciary would have equally plausible claims that the denial of an evidentiary privilege to them resulted in a direct federal impact on traditional state governmental functions. Moreover, we recognized in National League of Cities that the regulation by Congress under the Commerce Clause of individuals is quite different from. legislation which directly regulates the internal functions of states. Id., at 840-841. Although the lack of an evidentiary privilege for a state legislator might conceivably influence his conduct while in the legislature, it is not in. any sense analogous to the direct regulation imposed by the federal, wage-fixing legislation in National League of Cities. The second rationale underlying the Speech or Debate Clause is the need to insure legislative independence. Gillock relies heavily on Tenney v. Brandhove, 341 U. S. 367 (1951), where this Court was cognizant of the potential for disruption of the state legislative process. The issue there, however, was whether state legislators were immune from civil suits for alleged violations of civil rights under 42 U. S. C. § 1983. The claim was made by a private individual who alleged that a state legislative committee hearing was conducted to prevent him from exercising his First Amendment rights. The Court surveyed the history of the speech or debate privilege from its roots in the British parliamentary experience through its adoption in our own Federal Constitution. In light of these “presuppositions of our political history,” 341 U. S., at 372, the Court stated: “We cannot believe that Congress — itself a staunch advocate of legislative freedom — would impinge on a tradition so well grounded in history and reason by covert inclusion in the general language [of § 1983] before us.” Id., at 376. Accordingly, the Court held that a state legislator’s common-law absolute immunity from civil suit survived the passage of the Civil Rights Act of 1871. Although Tenney reflects this Court’s sensitivity to interference with the functioning of state legislators, we do not read that opinion as broadly as Gillock would have us. First, Tenney was a civil action brought by a private plaintiff to vindicate private rights. Moreover, the cases in this Court which have recognized an immunity from civil suit for state officials have presumed the existence of federal criminal liability as a restraining factor on the conduct of state officials. As recently as O’Shea v. Littleton, 414 U. S. 488 (1974), we stated: “Whatever may be the case with respect to civil liability generally,... or civil liability for willful corruption-,... we have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights.... On the contrary, the judicially fashioned doctrine of official immunity does not reach ‘so far as to immunize criminal conduct proscribed by an Act of Congress... Gravel v. United States, 408 U. S. 606, 627 (1972).” Id., at 503 (emphasis supplied). Accord, Imbler v. Pachtman, 424 U. S. 409, 429 (1976); Scheuer v. Rhodes, 416 U. S. 232 (1974). Thus, in protecting the independence of state legislators, Tenney and subsequent cases on official immunity have drawn the line at civil actions. We conclude, therefore, that although principles of comity command careful consideration, our cases disclose that where important federal interests are at stake, as in the enforcement of féderal criminal statutes, comity yields. We recognize that denial of a privilege to a state legislator may have some minimal impact on the exercise of his legislative function; however, similar arguments made to support a claim of Executive privilege were found wanting in United States v. Nixon, 418 U. S. 683 (1974), when balanced against the need of enforcing federal criminal statutes. There, the genuine risk of inhibiting candor in the internal exchanges at the highest levels of the Executive Branch was held insufficient to justify denying judicial power to secure all relevant evidence in a criminal proceeding. See also United States v. Burr, 25 F. Cas. 187 (No. 14,694) (CC Va. 1807). Here, we believe that recognition of an evidentiary privilege for state legislators for their legislative acts would impair the legitimate interest of the Federal Government in enforcing its criminal statutes with only speculative benefit to the state legislative process. IV The Federal Speech or Debate Clause, of course, is a limitation on the Federal Executive, but by its terms is confined to federal legislators. The Tennessee Speech or Debate Clause is in terms a limit only on the prosecutorial powers of that State. Congress might have provided that a state legislator prosecuted under federal law should be accorded the same evi-dentiary privileges as a Member of Congress. Alternatively, Congress could have imported the “spirit” of Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), into federal criminal law and directed federal courts to apply to a state legislator the same evidentiary privileges available in a prosecution of a similar charge in the courts of the state. But Congress has chosen neither of these courses. In the absence of a constitutional limitation on the power of Congress to make state officials, like all other persons, subject to federal criminal sanctions, we discern no basis in these circumstances for a judicially created limitation that handicaps proof of the relevant facts. Accordingly, the judgment of the Court of Appeals for the Sixth Circuit is Reversed. Compare United States v. DiCarlo, 565 F. 2d 802 (CA1 1977), cert. denied, 435 U. S. 924 (1978), and United States v. Craig, 537 F. 2d 957 (CA7) (en banc), cert. denied, 429 U. S. 999 (1976), with In re Grand Jury Proceedings, 563 F. 2d 577 (CA3 1977). The count based on 18 U. S. C. § 1952 was subsequently dismissed by the District Court. The Government stated that the offer was made on the assumption that the District Court’s prior ruling was correct. The Government, however, explicitly reserved its position that state legislators in federal criminal prosecutions are not entitled to an evidentiary privilege comparable to the Speech or Debate Clause. Gillock would be entitled to request an opinion from the State Attorney General by virtue of his status as a state senator. Only state government officials, not private attorneys, can secure official opinions. Tenn. Code Ann. §8-609 (b)(6) (Supp. 1979). Gilloek makes no claim that state legislators are entitled to the benefits of the Federal Speech or Debate Clause, which by its terms applies only to “Senators and Representatives.” See Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U. S. 391, 404 (1979). Rule 501 provides in full: “Except 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_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. UNITED STATES of America, Appellant, v. William T. SOMERS et al. No. 76-2009. United States Court of Appeals, Third Circuit. Argued Dec. 2, 1976. Decided Feb. 25, 1977. Jonathan L. Goldstein, U. S. Atty., for appellant; Maryanne T. Desmond, Asst. U. S. Atty., Newark, N. J., on brief. Ralph J. Kmiec, Cherry Hill, N. J., for Arthur W. Ponzio, appellee. Before FORMAN, ROSENN and GARTH, Circuit Judges. OPINION OF THE COURT GARTH, Circuit Judge. In this appeal we are called upon to review the question which we had previously —and, as now appears, erroneously — stated should need no review. In United States v. Salerno, (Appeal of William Silverman), (hereinafter “Silverman I”), 538 F.2d 1005 (3d Cir. 1976), Judge Rosenn, writing for this Court, held: (1) that 28 U.S.C. § 2255 provides jurisdiction to challenge a sentence imposed under 18 U.S.C. § 4208(a)(2) prior to the adoption of the 1973 Parole Guidelines, when the intent of the sentencing judge is frustrated by the application of those guidelines; and (2) that because the intent of Silverman’s sentencing judge was thwarted by the implementation of the guidelines, Silverman’s original sentence could be modified. In Silverman’s case the intent of the original sentencing judge (who was no longer a member of the district court when Silver-man sought resentencing) could be ascertained only by interpreting and construing the sentencing colloquy appearing in the sentencing transcript. Forecasting that such a circumstance — unavailability of the original sentencing judge — would be a rare one, Judge Rosenn wrote: We do not believe that our holding will seriously burden either the district court or this court. Where the motion to vacate sentence can be directed to the sentencing judge, the question whether his sentencing expectations have been frustrated is easily resolved and there should be no need for review of that decision in the Court of Appeals. In the rare case, as here, when the original sentencing judge is no longer on a district court bench, and the record convincingly shows by the statement of the trial judge at sentencing that he intended to have the defendant receive meaningful parole consideration, then we believe that resentencing should be required, [emphasis supplied.] Silverman I, 538 F.2d at 1009. We now face the very circumstance foreseen by Judge Rosenn where the district court judge who (1) sentenced the defendant Ponzio on May 21, 1973, (2) was informed of the “new” Parole Guidelines, (3) found his original intent to have been frustrated by those guidelines, and (4) vacated the sentence under authority of Silverman. Believing that the original sentencing judge is in the best position to know his own intent and that his determination of that intent is conclusive, we affirm the order of the district court reducing Ponzio’s sentence. In so doing, however, we do not relax or depart from the narrow holding of Silverman I as interpreted by the same panel of this Court which denied rehearing in Silverman II. I. On March 8, 1973, appellee Ponzio was convicted with others of various counts of an indictment which, among other things, charged Ponzio with acts of extortion in violation of 18 U.S.C. § 1951 (The Hobbs Act) and § 1952 (The Travel Act). On May 21, 1973, Ponzio was sentenced on Count I (conspiracy to violate The Hobbs Act) to prison for a term of six years . [P]ursuant to the provisions of Title 18 U.S.C. § 4208(a)(2), defendant to be eligible for parole at such time as the Board of Parole shall determine. Judgment of sentence, May 21, 1973. His conviction on 15 other counts resulted in terms of five year imprisonment on each count, concurrent with each other count, and concurrent with the sentence imposed on Count I. In sum, therefore, although Ponzio faced a total term in prison of six years, the Parole Board had the discretion to release him on parole at any time. Ponzio’s conviction was affirmed by this Court on May 31, 1974, United States v. Somers, 496 F.2d 723 (3d Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974). As noted, the Supreme Court of the United States denied certiorari on October 15, 1974. On November 19, 1974, Ponzio commenced serving his sentence and, thereafter, pursuant to a timely motion under Rule 35, F.R.Crim.P., made application for reduction of his sentence. On January 13, 1975, the judge who originally sentenced Ponzio reduced his sentence from six to five years imprisonment. Thereafter, on July 26, 1976, Ponzio wrote a letter again seeking relief from his sentence. Treating that letter as a motion pursuant to 28 U.S.C. § 2255, on August 6, 1976, the original sentencing judge on authority of Silverman I granted Ponzio’s motion, vacated his sentence and resentenced him to time served. The government thereupon applied for a stay of the district court’s order, and sought to return Ponzio to custody. Both of the government’s motions were denied. This appeal followed. II. Our analysis begins with, and is controlled by Silverman I and II. Silverman I, relying upon the “legislative history of section 4208(a)(2) and district court sentencing practice thereunder,” held that where the implementation of the guidelines frustrated the sentencing judge’s probable expectation (with respect to the original sentence imposed, viewed at the time of imposition), resentencing was required. We recognize that the problem presented in Silverman I was that of ascertaining the intent of the original sentencing judge who was no longer available (in a sentencing context) to reveal his own prior intent. That problem, however, does not confront us here. In this case, the district court judge who originally sentenced Ponzio on May 21, 1973 to a six year term under § 4208(a)(2) not only was available to rule on Ponzio’s § 2255 proceeding, but he was also able, in an unequivocal fashion, to explain his May 1973 sentencing intent and expectations. It is true that when Ponzio was sentenced on May 21, 1973, the only indication of the sentencing judge’s intent was the imposition of sentence pursuant to § 4208(a)(2). However, the very selection of that statute as a sentencing vehicle, a choice made prior in time to the promulgation of the new guidelines, is significant. Without more, it tells us that the sentencing judge implicitly expected (and indeed, provided the mechanism for) early parole eligibility, conditioned only upon the Parole Board’s satisfaction with Ponzio’s institutional adjustment and rehabilitation progress. Silverman I, supra ; see also Garafola v. Benson, 505 F.2d 1212, 1218 (7th Cir. 1974); Lambert v. United States, 392 F.Supp. 113, 117 n.2 (N.D.Ga.1975). It is also true that during the Rule 35 hearing, — and indeed, during the entire period between May 1973 and August 1976, — no other expression of intent or expectation was voiced by the sentencing judge. It was only at the August 6, 1976 hearing in connection with Ponzio’s § 2255 proceeding, that the district court judge for the first time expressly addressed the subject of his original sentencing expectations and intent. As we have previously observed, directly after Ponzio had commenced serving his six year sentence in November 1974, he had moved to reduce his sentence under F.R.Crim.P. 35. The Parole Guidelines had been public knowledge • for about one year at that time, and while Ponzio’s application for reduction of sentence did not directly advance the Silverman theory presently relied upon, Ponzio’s motion papers referred tangentially to the Guidelines in connection with a discussion of the sentence of a codefendant. Essentially, Ponzio’s Rule 35 application dealt with disparity in sentences between Ponzio and his codefendants, hardship on Ponzio’s family, and arguments addressed to rehabilitation and to the purposes of imprisonment (all of which Ponzio claimed to have satisfied or discharged). As a result of this application, the same judge who had originally sentenced Ponzio to six years imprisonment reduced his sentence to five years, but without opinion or comment. It was in this setting that Silverman I was filed by this Court on July 15, 1976. On July 26,1976, Ponzio sent a letter to the sentencing judge seeking relief from further imprisonment. Viewing that letter as a petition under § 2255, argument was scheduled by the court on August 6, 1976. It was then, for the first time, that what had been implicit in the district court’s sentence, became explicit. The district court said: [B]ut sentence originally was imposed in May of 1973 and as pointed out in the opinion of the U. S. v. Salerno in late 1973, which was some period of time after the sentence was originally imposed upon you, the Board of Parole adopted new criteria and procedures for parole determinations. Those standards were not within the contemplation of this Court at the time that sentence was imposed upon you when the Court’s sentence was that you be sentenced pursuant to the provisions of Section 4208 A2. [emphasis supplied.] I may have indicated to you at that time, although I do not have the transcript before me, but I do know that there have been many, many times that defendants have appeared before this Court and I have indicated the liberality of that proceeding and have indicated that as long as you behaved yourself while in custody and demonstrated that you have been rehabilitated and ready to be returned to society, the Board of Parole would give you every consideration. As a matter of fact, numerous inmates have clamorously requested that sentences imposed be changed to § 4208 A2; because they felt that they would get earlier parole. That clamor had considerably subsided because it has been indicated to me as well as to many other federal judges that early parole is not being given under the new standards, procedures, and regulations adopted by the Board of Parole. X * * X X * Now, also, at the time that I originally imposed sentence upon you and at the time that that sentence was reduced, I was clearly under the impression that the factors to be considered by a Parole Board would be whether you've paid your debt to society, how you behaved while you were in your institution, what the chances were of returning you to society, whether you have been rehabilitated. Those were the old standards. Now they have the new standards and it could be that you would serve maybe four years by the time the Parole Board made up its mind what to do. X X * X x ' X As I’ve indicated further, I don’t see eye to eye with this computerized, statistical, and generalized consideration of parole. My sentencing expectations have been frustrated by the Board’s new guidelines and their procedures and their salient factors. And for those reasons, as well as for the more important reason that I am not without compassion, I think you’ve paid your debt to society. I think your family has been under a considerable strain, and I’m going to vacate the prior sentence that was imposed upon you and a new sentence will be imposed of the time you have already served, and I would sign an order to that effect, which I have before me. [emphasis supplied.] Transcript, August 6, 1976, pp. 12-13, 14, 18-19. In the final but unreported opinion which followed the August 6, 1976 hearing, but which incorporated the oral observations made at that hearing as they depicted his motivating factors, the district court judge wrote: [T]he legislative history of § 4208(a)(2) is comprehensively discussed in the Salerno opinion, and there is no need to repeat that history here. Prior to the adoption of the new guidelines which are now in effect, and which became effective in late 1973, the Parole Board based its decision primarily upon institutional behavior and the probability of recidivism. See C.F.R. § 2.4 (1973). Those were the criteria which were in effect at the time this defendant was sentenced, and with which this court was familiar when sentence was imposed. It was also this court’s understanding that a defendant sentenced under § 4208(a)(2) would become immediately eligible' for parole after sentence had been imposéd. This is in sharp contrast to the other sentencing options available to a federal judge. See 18 U.S.C. § 4202, and 18 U.S.C. § 4208(a)(1). * * * * * * It was the expectation of this court when the defendant was sentenced that he would receive early meaningful consideration for parole. The adoption of the new parole guidelines subsequent to the time of sentencing has frustrated that expectation. In fact, prior to the adoption of the new parole guidelines, this court was regularly inundated with requests from defendants and their counsel for sentences under § 4208(a)(2). Such requests are no longer made, largely, we think, because of the new guidelines. Not only does the Salerno opinion provide a jurisdictional basis upon which this court may act, the judicial conscience requires corrective action. Op. August 25, 1976, pp. 3-4, 7. III. As we read Silverman I and II, it is the intent and expectation of the district court judge who sentences under § 4208(a)(2) which are controlling and which must be searched out to determine if relief may be ordered under 28 U.S.C. § 2255. In our judgment, there can be no better evidence of a sentencing judge’s expectations or intent than his own statement of those facts. We are aware that here the sentencing judge not only attributed the thwarting of his sentencing intent and expectations to the operation of the Guidelines, but he also relied upon an additional list of reasons to support his order reducing Ponzio’s sentence. Had the district court’s action resulted solely from these latter considerations (i. e., good conduct; time served; sufficient punishment; rehabilitation; family hardship; loss of pension; deterrence, etc.) we would have been obliged to reverse its order, for it is only in the case of frustration of the district court’s sentencing expectations that the Silverman doctrine affords grounds for relief (under the “collateral attack” provisions of § 2255 (see note 9, supra)). We recognize that sentencing courts are not vested with those functions belonging to the Parole Board, D'Allesandro v. United States, 517 F.2d 429 (2d Cir. 1975), or “with [the] powerfs] of a super parole board.” Silverman II, supra. Hence, we will not countenance Silverman relief where the district court’s basis for reducing sentence is predicated wholly upon considerations other than frustration of its original sentencing intent. Here, however, we are not faced with that situation. Although the district court’s opinion speaks of such extraneous matters, we cannot ignore the factor which we find to be at the core of the district court opinion — the frustration of its original sentencing expectations which were specifically so expressed by the original sentencing judge. We do no more here than apply the Silverman principle as it has previously been announced by this Court — but with the assurance of greater certainty insofar as knowledge of the district court judge’s intent is concerned. While reaffirming the viability of Silver-man, we nevertheless restate the admonition found in Silverman II that the Silver-man doctrine is a most narrow and inelastic principle which will not be expanded beyond its strict confines. IV. We conclude this opinion with an observation, collateral to the decision itself but nevertheless required to be made because of the effect which counsel’s failure to supply necessary documents might have had upon our decision. As we have noted, the focal point for application of the Silverman doctrine is the district court judge’s intent and expectations at the time of imposition of sentence. We would have expected, therefore, that the documents and transcripts relevant, and indeed essential, to that issue would be furnished to us as part of the appendix on this appeal. Such was not the case. Had it not been for our independent inquiry and had we not obtained these documents through our own efforts, we would not have had available for examination: the relevant docket entries; the original judgment of sentence; the original sentencing transcript of May 21, 1973; the memoranda, motion and submissions in connection with the Rule 35 hearing; Ponzio’s § 2255 letter of petition; the absolutely essential August 6, 1976 transcript; the August 6, 1976 orders (vacating sentence and denying stay pending appeal) from which the government’s appeal was taken; the government’s Notice of Appeal; the district court’s August 25, 1976 written opinion. Not one of these documents, each of which was vital to our determination and to this opinion, appears in the appendix on appeal. This Court was required to make separate and independent inquiries to assemble the necessary record materials. Ponzio, the appellee apparently submitted no papers for inclusion in the appendix and did not even recite in his brief those portions of the district court’s comments and opinion which supported his contentions and which were instrumental to this Court’s application of the Silverman doctrine. The government’s appendix merely sets forth a number of legal opinions which taken together, constitute no more than a frontal assault on this Court’s Silverman decision. While we recognize the obligations imposed upon the appellant by the Federal Rules of Appellate Procedure (F.R.A.P. 30(a) and this Court’s Local Rules, we cannot countenance the appellee’s failure to comply with the applicable provisions of F.R.A.P. 30(b). Nor can we understand or justify his reliance upon this Court to discharge his functions in “piecing out” and supporting the essential elements of the position which he advocates. While we deplore counsels’ disregard of the requirements of our Rules, (F.R.A.P. 30, Third Cir.R. 21) we are even more dismayed by the level of appellate advocacy which has been exhibited on this appeal. Heretofore we have hesitated to suppress appellate papers or to dismiss appeals for failure to comply with appellate rules. However, presentations such as the instant one go a long way toward dispelling that hesitation. We can no longer afford the effort and time to prepare counsels’ case and to supply counsels’ record deficiencies. Henceforth, our displeasure with counsels’ refusal, failure or unwillingness to master our procedures will necessarily result in the imposition of appropriate sanctions. Third Cir.R. 21(3). V. The August 6, 1976 order of the district court vacating Ponzio’s original sentence and resentencing him to “the time already spent in jail” will be affirmed. The August 6, 1976 order of the district court denying the United States a stay pending appeal will be dismissed as moot. (See note 5 supra). . Section 4208(a)(2) reads, in pertinent part: (a) Upon entering a judgment of conviction . requiring] that the defendant be sentenced to imprisonment for a term exceeding one year, (2) the court may fix the maximum sentence of imprisonment to be served in which event the court may specify that the prisoner may become eligible for parole at such time as the board of parole may determine. The 1973 Parole Guidelines were published for the first time in the Federal Register on November 19, 1973. 28 C.F.R. § 2.52, 38 F.R. 31942 (Nov. 19, 1973). . United States v. Salerno (Silverman II) 542 F.2d 628 (3d Cir. 1976) (Sur Petition for Rehearing). . A more detailed history of the facts and trial leading to Ponzio’s conviction may be found in United States v. Somers, 496 F.2d 723 (3d Cir. 1974). . United States v. Salerno (Silverman I) 538 F.2d 1005 (3d Cir. 1976). Silverman I was filed on July 15, 1976. . In light of our disposition we have no occasion to comment upon the district court’s actions in denying a stay of its order and refusing to return Ponzio to custody pending action on the government’s appeal. . The order from which the government appealed was not entered in a criminal proceeding, but rather in a § 2255 proceeding. Such an action is not a proceeding in the original criminal prosecution, but is rather an independent civil suit. Heflin v. United States, 358 U.S. 415, 418 n.7, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959). Accordingly, the action, being civil in nature, is governed by the rules, statutes and appellate practice, (United States v. Hayman, 342 U.S. 205, 209 n.4, 72 S.Ct. 263, 96 L.Ed. 232 (1951)) controlling civil actions. See Neely v. United States, 546 F.2d 1059 at 1064-1067 (3d Cir. 1976); Wright and Miller, Federal Practice and Procedure § 590 (1969). See also United States v. DiRusso, 548 F.2d 372, (1st Cir. 1976) (Di-Russo II). . 538 F.2d at 1008. . While we recognize that the Rule 35 hearing came well after the implementation of the new Parole Guidelines, and that Ponzio’s moving papers referred to, and included a copy of the Guidelines, we nevertheless are not persuaded that these circumstances require that relief be denied to this § 2255 application. While counsel undoubtedly had the “tools” (Guidelines) in his hands to fashion a remedy for Ponzio, he did not draw the district court judge’s attention to the issue of the impact which the Parole Guidelines had upon Ponzio’s initial sentence. Compare DiRusso II, note 6 supra. Even the government does not contend that any reliance (if such there was) upon the Guidelines in a Rule 35 hearing would thereby “exhaust” § 2255 jurisdiction under Silverman I. The most that can be argued, granting that the district court had jurisdiction (see n.9 infra), is that the court abused its discretion in affording § 2255 relief on the same grounds as had been urged in a Rule 35 hearing. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963) precludes any mechanistic application of the doctrine of res judicata in successive § 2255 proceedings. Sanders establishes those circumstances under which the district court may give weight to a prior denial of § 2255 relief. 373 U.S. at 15, 83 S.Ct. 1068. In emphasizing that the Sanders test is “the ends of justice”, Justice Brennan concluded, id. at 17, 83 S.Ct. at 1078, that No matter how many prior applications for federal collateral relief a prisoner has made, the principle elaborated in Subpart A, supra, [Successive Motions on Grounds Previously Heard and Determined] cannot apply if a different ground is presented by the new application. So too, it cannot apply if the same ground was earlier presented but not adjudicated on the merits. In either case, full consideration of the merits of the new application can be avoided only if there has been an abuse of the writ or motion remedy; and this the Government has the burden of pleading. We believe that where the prior application for relief has been made under Rule 35, the Sanders res judicata criteria are the same. United States v. Jasper, 481 F.2d 976, 978-80 (3d Cir. 1973). We are satisfied (1) that the same ground that formed the basis for the § 2255 decision (new Parole Guidelines) was not relied upon by the district court when it reduced Ponzio’s sentence from six to five years; and that therefore (2) the district court did not abuse its discretion. We cannot help but observe that at no time during the Rule 35 proceedings, was any reference to the Guidelines made by the district court. Moreover, a one year reduction in sentence, from six to five years, had no practical impact whatsoever on Ponzio’s sentence, for the Parole Guidelines relative to Ponzio’s offense, as cited to the court by Ponzio’s attorney, indicated that, depending upon his parole prognosis, Ponzio would serve between 26 and 36 months. Supplemental Memorandum in Support of Motion for Reduction of Sentence, Cr. No. 323-72, at 3 (received at request of the Court). This latter circumstance, if no other, leads us to conclude that the Guidelines argument was never fairly presented to the district court at the Rule 35 hearing. . 28 U.S.C. § 2255 provides in pertinent part: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. In Silverman I, 538 F.2d at 1008 n.4, this Court, on the jurisdictional aspect, held: The district judge also concluded and we agree that 28 U.S.C. § 2255, which provides in relevant part that a district court has jurisdiction of a motion “to vacate, set aside, or correct” a sentence imposed without jurisdiction, “in excess of the maximum authorized by law, or . otherwise subject to collateral attack,” is an appropriate vehicle for making this claim. See Kortness v. United States, supra, 514 F.2d [167,] 170 [(8th Cir. 1975)]; United States v. Perchada, 407 F.2d 821, 823 (4th Cir. 1969). Cf. United States v. Hayman, 342 U.S. 205, 216-19, 72 S.Ct. 263, 96 L.Ed. 232 (1952). See also Jacobson v. United States, 542 F.2d 725 (8th Cir. 1976); United States v. Clinkenbeard, 542 F.2d 59 (8th Cir. 1976). On the surface it would appear that the First Circuit would disagree with our Silverman jurisdictional holding. See DiRusso II note 6 supra; United States v. DiRusso, 535 F.2d 673 (1st Cir. 1976). However, a close reading of DiRusso II reveals that the question presented in Silverman and here has not yet been presented to that Court. See DiRusso II, at 375 n.2. A distinction is made in DiRusso II between those cases where “the sentences that were collaterally attacked had been imposed either prior to or contemporaneously with the promulgation and general awareness” of the new Guidelines. Both Silverman and Ponzio had been sentenced prior to the Guidelines; DiRusso had not. Nor are we convinced that the Rule 35 proceeding, see note 7 supra, under the peculiar factual circumstances present here, should yield a different result. Other circuits have apparently assumed that relief of the type afforded in Silverman is available only under 28 U.S.C. § 2241, thereby requiring the proceeding to be brought before a district court with jurisdiction over the prisoner or his custodian. See, e. g., Grasso v. Norton, 520 F.2d 27 (2d Cir. 1975); Garafola v. Benson, 505 F.2d 1212 (7th Cir. 1974); see also the discussions in Jacobson and Clinkenbeard, supra. This jurisdictional issue need not detain us, for Silverman I resolved that issue for this Court, and its holding may not be modified except by this Court en banc. Third Circuit Internal Operating Procedures, M.2. As we have observed, the government’s petition for rehearing in Silverman I was denied by Silver-man II, supra. . We have not overlooked Ponzio’s motion to dismiss the government’s appeal. Ponzio had moved to dismiss the appeal and to strike certain correspondence which forwarded copies of two recent opinions. (Clinkenbeard and Jacobson, supra) bearing on the Silverman principle, on the ground that the form of the government’s submission did not comply with the rules of this Court concerning filing of reply briefs. The cases submitted had been decided after all briefs were filed, and were furnished for the information of the Court and Ponzio. Apart from any other consideration requiring the denial of Ponzio’s motion, we did not regard the government’s submission as a “reply brief” within the purview of F.R.A.P. 28(c). Of more importance here, however, is that the views which we have expressed in text above reflect our concerns not with form but rather with substance; in particular, the omission of papers from the appendix which papers are crucial to the resolution of the issues before us. Question: What is the 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_appnatpr	2	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Plaintiff-Appellee, v. Clifton CAMERON and Paul Tinson, Defendants-Appellants. No. 91-3447. United States Court of Appeals, Sixth Circuit. Argued Oct. 1, 1991. Decided Jan. 7, 1992. Roger S. Bamberger (argued and briefed), Blas E. Serrano, Asst. U.S. Attys., Cleveland, Ohio, for U.S. Alan C. Rossman (argued and briefed), Cleveland, Ohio, for Clifton Cameron. Thomas G. Longo (argued and briefed), Cleveland, Ohio, for Paul C. Tinson. Before MARTIN and MILBURN, Circuit Judges, and JOINER, Senior District Judge. Honorable Charles W. Joiner, United States District Court for the Eastern District of Michigan, sitting by designation. JOINER, Senior District Judge. Clifton Cameron and Paul Tinson appeal the district court’s denial of a motion to dismiss indictments charging them with possession of cocaine base with intent to distribute, and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Their initial trial ended when the trial court declared a mistrial over defendants’ objections. Defendants allege that retrial would violate the Double Jeopardy Clause of the Fifth Amendment. We disagree, and affirm the district court’s denial of defendants’ motion to dismiss. I. Defendants were arrested on March 2, 1990, and indicted March 21, 1990. Their trial began with the impanelling of a jury on February 7, 1991, with Judge Battisti presiding. The government presented its evidence, and rested its case on February 12, 1991. On February 13, 1991, the Cleveland Plain Dealer published a front-page article entitled: “U.S. Probes Battisti’s Handling of 1988 Case.” Judge Battisti subsequently made the article a part of the record. In pertinent part, the article stated: The investigation allegedly involves hearings Battisti conducted after he was notified by former U.S. Attorney Patrick M. McLaughlin that a defendant in his court had told an undercover F.B.I. agent he knew someone who could influence the judge. The defendant, James V. Petrella Sr., 61, was under indictment on federal auto theft charges. Battisti accused McLaughlin of “shabby political maneuvers in a federal court” and claimed Pe-trella’s allegations were unsubstantiated. He laid down new rules in his court concerning any information that might require a judge to remove himself from the case. Battisti heard the case in which Petrel-la was convicted and sentenced him to three years probation, the first four months of which were to be served in a Youngstown halfway house. Before leaving office, McLaughlin confirmed he had asked the Justice Department’s Office of Professional Responsibility to investigate Battisti’s handling of the Petrella case. On February 13, 1991, Judge Battisti held a conference of approximately one hour with defendants’ attorneys, soliciting their views on how best to proceed with the trial in light of the article. Both defendants and the government stated their opposition to declaration of a mistrial. Judge Battisti decided to voir dire the jury regarding the article, and, if the jurors were aware of the content of the article, to declare a mistrial. When questioned, five of the jurors revealed that they had either read the article, or heard radio reports on the same topic addressed by the article. In light of the jurors’ awareness of an investigation focused upon his handling of a criminal case, Judge Battisti was, appropriately, concerned that the publication of the newspaper article could affect the jurors’ impartiality. Prior to declaring a mistrial, the judge found that there was “manifest necessity to declare a mistrial as a result of [the] publicity ... [and that] [t]hese conditions ... might ... tilt [the] entire proceeding one way or another.” After declaring a mistrial, the judge further explained his reasoning, stating: My reasons for this, of course, have to do with the fact that the jurors have — a number of the jurors — have read or heard the publicity that appeared in the Plain dealer [sic] this morning. That article will become a part of the record. I don’t think it needs to be explained any further, unless counsel wish for a further explanation from the Court. It certainly would be unseemly to say the least for me to poll this jury as to whether they’re going to have any confidence in the Judge, and believe him, and follow his instructions after reading this sort of thing that they’ve read this morning, and heard this morning. (Emphasis added.) Having declared a mistrial, Judge Battisti dismissed the jury, and recused himself from any further consideration of the case. On March 5, 1991, defendants’ case was transferred to the docket of Judge Manos. Defendants filed their motion to dismiss on March 27, 1991. Judge Manos entered an order denying the motion on May 21, 1991. On appeal, defendants present this court with a single issue; whether Judge Manos erred in finding that Judge Battisti had not abused his discretion in ruling that he was presented with a manifest necessity for the declaration of a mistrial. II. This court has jurisdiction to hear defendants’ interlocutory appeal from the denial of their motion to dismiss on double jeopardy grounds. 28 U.S.C. § 1291; Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 2041, 52 L.Ed.2d 651 (1977). It is within a district court’s sound discretion to declare a mistrial. United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824); Jones v. Hogg, 732 F.2d 53, 56 n. 1 (6th Cir.1984). We review de novo a district court’s denial of a motion to dismiss on double jeopardy grounds. United States v. Goland, 897 F.2d 405, 408 (9th Cir.1990). We look to the record of the initial trial. While the Constitution does not require a trial judge to conduct a hearing on the record, the record must support the finding that manifest necessity justified the declaration of a mistrial. United States v. Bates, 917 F.2d 388, 397 n. 12 (9th Cir.1990); Arizona v. Washington, 434 U.S. 497, 516-17, 98 S.Ct. 824, 835-36, 54 L.Ed.2d 717 (1978). The Constitution directs that no person shall twice be put in jeopardy of life or limb for the same offense, whether by being twice punished or twice tried. U.S. Const. Amend. V.; Price v. Georgia, 398 U.S. 323, 326, 90 S.Ct. 1757, 1759, 26 L.Ed.2d 300 (1970). The Fifth Amendment’s prohibition against twice placing a defendant in jeopardy has been recognized by the Supreme Court as “fundamental to the American scheme of justice,” United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971) (plurality opinion), in reflecting a policy of finality for the benefit of criminal defendants. See Jones, 732 F.2d at 54. Embodied within the policy of finality is the “valued right” granted to a defendant by the Double Jeopardy Clause “to have his trial completed by a particular tribunal.” Jorn, 400 U.S. at 484, 91 S.Ct. at 557 (citing Wade v. Hunter, 336 U.S. at 689, 69 S.Ct. at 837). The Court described the basis for the prohibition in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), emphasizing that for the state to be permitted to make repeated efforts to convict an individual would violate an idea “deeply ingrained in Anglo-American jurisprudence.” Id. at 187, 78 S.Ct. at 223. Unfettered reprosecution would result in subjecting the accused to “embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Id. at 188, 78 S.Ct. at 223. The Double Jeopardy Clause, however, will not act as an absolute bar in every case. In some circumstances, a defendant’s right to have his case resolved by a particular tribunal will be subordinate to the larger interest of the public in “fair trials designed to end in just judgments.” Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). When a mistrial has been declared, reprosecution is generally permissible if the declaration came at the request or with the acquiescence of the defendant. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). In the absence of such consent, reprosecution is not barred where a “manifest necessity” exists to declare a mistrial in the defendant’s initial prosecution. Perez, 22 U.S. (9 Wheat.) at 580; Washington, 434 U.S. at 505-06, 98 S.Ct. at 830-31; United States v. Sanford, 429 U.S. 14, 16, 97 S.Ct. 20, 21, 50 L.Ed.2d 17 (1976) (per curiam). In Perez, Justice Story stated the standard to be applied in determining whether retrial is permissible following a mistrial declared without the consent of the accused: We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office. Perez, 22 U.S. (9 Wheat.) at 580. This test has been consistently followed. See Jones, 732 F.2d at 55. In light of Justice Story’s recognition of the impossibility of stating all the circumstances in which a manifest necessity for declaration of a mistrial may arise, the “manifest necessity” test has never been applied in a mechanical fashion, but is viewed as a flexible standard. Illinois v. Sommerville, 410 U.S. 458, 462, 93 S.Ct. 1066, 1069, 35 L.Ed.2d 425 (1973). It is clear that manifest necessity is not synonymous with absolute necessity, but that a “high degree” of necessity must exist before a mistrial may properly be declared. Washington, 434 U.S. at 506, 98 S.Ct. at 830. Determining whether a high degree of necessity was presented calls for an analysis of each case upon its particular facts. See United States v. Jaramillo, 745 F.2d 1245, 1249 (9th Cir.1984), cert. denied, 471 U.S. 1066, 105 S.Ct. 2142, 85 L.Ed.2d 499 (1985). The particular facts in defendants’ case lead us to conclude that Judge Battisti properly exercised his discretion in finding a manifest necessity for declaration of a mistrial. Reviewing courts are required to respect the setting in which the trial court found itself at the time mistrial was declared. Washington, 434 U.S. at 505-06, 98 S.Ct. at 830-31. In this case, Judge Battisti found himself the subject of a broadly disseminated article questioning the propriety of his handling of a criminal case. In such unusual circumstances it is apparent that Judge Battisti correctly concluded that recusal was appropriate, as the possibility was present that his impartiality might be questioned by the jury. 28 U.S.C. § 455(b). On appeal, defendants argue that while recusal was perhaps a legitimate course of action for Judge Battisti to take, the necessity of recusal, and the existence of a manifest necessity for declaration of a mistrial, are not established by reference to the same criteria. Defendants primarily rely upon United States v. Sartori, 730 F.2d 973 (4th Cir.1984), arguing that as Judge Battisti, having decided to recuse himself, was presented with a feasible alternative to declaration of a mistrial — substitution of judges pursuant to Federal Rule of Criminal Procedure 25(a) — a manifest necessity for mistrial was not presented. Sartori is distinguishable from the facts presented by defendants’ case, and we are not persuaded that Judge Battisti was presented with feasible alternatives to mistrial. In Sartori, the defendant, a practitioner of “holistic medicine,” accused of selling a chemical compound as a cancer cure, was charged in the district court with mail fraud. After a jury had been impanelled and four government witnesses heard, the district judge declared a mistrial and re-cused himself from further consideration of the case. Id. at 974-75. Prior to trial the judge had informed the parties of his involvement with the American Cancer Society as a “lay leader,” and had twice offered to recuse himself from the case. Id. In explaining his decision to declare a mistrial, the judge stated his belief that his years-long involvement with the American Cancer Society rendered his continued presence at trial inconsistent with the appearance of judicial propriety. Id. At trial, following an unrecorded bench conference, the court heard arguments from the parties regarding alternatives to mistrial, with the parties requesting that the judge continue to preside over the trial. In the alternative, the government suggested that rather than declare a mistrial, the court should request the assignment of another judge to continue the trial pursuant to Federal Rule of Criminal Procedure 25(a). Id. The judge rejected this suggestion, apparently in erroneous reliance on a Fourth Circuit opinion in a civil case indicating that substitution under the Rule was to be discouraged. Id. In finding that the district court was without a manifest necessity for declaration of a mistrial, the Sartori court identified two errors in the district court’s action. First, the court concluded that substitution was an available alternative to mistrial, and therefore precluded the existence of a manifest necessity. In Harris v. Young, 607 F.2d 1081, 1085 (4th Cir.1979), cert. denied sub nom. Mitchell v. Harris, 444 U.S. 1025, 100 S.Ct. 688, 62 L.Ed.2d 659 (1980), the court stated: In determining whether the trial judge exercised sound discretion in declaring a mistrial, we must consider if there were less drastic alternatives to ending the trial. If less drastic alternatives than a mistrial were available, they should have been employed in order to protect the defendant’s interest in promptly ending the trial, and the Commonwealth’s interest in rapid prosecution of offenders. As defendant Sartori’s trial had only seen a single day of testimony, and because the issues presented by Sartori’s case were neither novel nor too complex for a substitute judge to quickly grasp, the court concluded that substitution was an appropriate less drastic alternative which the trial judge had failed to consider prior to declaring a mistrial. Sartori, 730 F.2d at 976. A judge assigned to complete the trial of Cameron and Tinson would face a very different task, as their trial had proceeded to the conclusion of the government’s casein-chief over four trial days. Second, the Fourth Circuit found that the trial judge had mischaracterized the problem posed to him, as the question he faced was not whether his impartiality might reasonably be questioned, but whether the risk of an appearance of judicial impropriety constituted a manifest necessity for declaration of a mistrial. Id. at 977. As the trial judge was without an economic or other interest in the outcome of the case, and given that the defendant did not request recusal prior to impanelling the jury, although it was presented with two opportunities to do so, “the risk was simply not great enough to constitute manifest necessity.” Id. Neither of the bases relied upon by the Sartori court are presented in the case before us. It is clear from the record that Judge Battisti was well aware of the case law applicable to a mistrial declaration and its potential double jeopardy effect. Judge Battisti reviewed the law and plainly did not confuse his analysis of manifest necessity with the criteria for recusal under 28 U.S.C. § 455(a). Judge Battisti’s concern with juror impartiality mirrors the concerns examined by the Supreme Court in Washington. Where the trial judge ordered a mistrial because the defendant’s lawyer made improper and prejudicial remarks during his opening statement to the jury, the Court, after finding that “in a strict, literal sense, the mistrial was not ‘necessary,’ ” went on to state: Nevertheless, the overriding interest in the evenhanded administration of justice requires that we accord the highest degree of respect to the trial judge’s evaluation of the likelihood that the impartiality of one or more jurors might have been affected by the comment. Washington, 434 U.S. at 511, 98 S.Ct. at 833 (emphasis added). The record further reveals that Judge Battisti was made aware of the possibility of substitution under Federal Rule of Criminal Procedure 25(a), which provides: If by reason of death, sickness or other disability the judge before whom a jury trial has commenced is unable to proceed with the trial, any other judge regularly sitting in or assigned to the court, upon certifying familiarity with the record of the trial, may proceed with and finish the trial. The Rule does not define the term “disability,” and we need not attempt to do so here. In light of the unique circumstances facing Judge Battisti, we conclude that he appropriately determined that Rule 25(a) did not present a feasible alternative to mistrial. In Jaramillo, the Ninth Circuit reviewed and affirmed the declaration of a mistrial in circumstances analogous to those faced by Judge Battisti. The trial judge presiding over defendant Jaramillo’s jury trial was indicted on seven counts by a grand jury on the third day of trial, and immediately declared a mistrial. Id. at 1246. Jar-amillo moved to bar retrial on double jeopardy grounds, arguing, inter alia, that the initial judge had failed to consider the less drastic alternative of substitution under Rule 25(a). The court, reviewing the denial of Jaramillo’s motion, concluded that neither death nor disabling sickness — the two bases for substitution specifically identified by Rule 25(a) — would have an effect upon the integrity of the proceedings held prior to substitution. Id. at 1249. However, in the case of a judge under indictment, the Ninth Circuit found that the purported “disability” directly implicates the character and integrity of the judge especially in relation to criminal proceedings, the designation of another judge would not remove the appearance of partiality concerning all prior rulings and all actions of the indicted judicial officer, from the inception of the trial. To establish the appearance of justice under such extraordinary circumstances, a new judge would necessarily be compelled to begin the trial anew. Id. We believe that it is not an abuse of discretion for a judge, alleged to be under investigation for his handling of a criminal case, to determine that this directly impinges upon his ability to properly conduct criminal proceedings before him at the time reports of the investigation are disseminated, and to hold that the designation of another judge would not suffice to protect the integrity of the judicial process. The flexibility of the manifest necessity standard; the requirement to respect the setting in which the trial judge found himself; the “historically unique” problems faced by a trial judge under indictment, calling into question his moral fitness to sit as a judge; removed Rule 25(a) from the realm of available less drastic alternatives to mistrial. Id. We conclude that Judge Battisti’s refusal to request substitution under Rule 25(a) did not render his decision to declare a mistrial an abuse of discretion. Defendants lastly argue that Judge Bat-tisti, in effect, sua sponte declared a mistrial, and failed to allow defense counsel a meaningful opportunity to research and present the alternatives to mistrial which defendants have examined in their brief on appeal. This argument is not supported by the record and we reject it. A series of factors applicable to determine whether a trial court abused its discretion in declaring a mistrial have been stated by the Ninth Circuit: Has the trial judge (1) heard the opinions of the parties about the propriety of the mistrial, (2) considered alternatives to a mistrial and chosen the alternative least harmful to a defendant’s rights, (3) acted deliberately instead of abruptly, and (4) properly determined that the defendant would benefit from the declaration of a mistrial? United States v. Bates, 917 F.2d 388, 396 (9th Cir.1990). From the record it can only be concluded that Judge Battisti acted in accordance with these factors. Judge Bat-tisti conducted an unrecorded conference with defendants’ attorneys prior to declaring the mistrial. On the record, while presenting their objections to a mistrial, and having argued the possibility of substitution under Rule 25(a), defense counsel recognized that a discussion considering alternatives to mistrial had been held, and that the judge was not acting precipitously: THE COURT: I should also like to note on the record that the defendants were given an opportunity to raise their objections prior to my decision this morning. I don’t mean anything by that other than the fact that that happened, and I called you into chambers. I discussed the matter with you. We did not put it on the record, because we didn’t — it was known that I was going to come out into the courtroom and put this on the record. But, you were not caught by surprise when you came into the courtroom this morning. We had a long discussion. We discussed the matter for at least an hour in my chambers. MR. LONGO: That is true, and I didn’t mean to suggest that it wasn’t discussed. THE COURT: I know that. I’m only putting it on the record. And you have no — you cannot possibly have failed to recollect that, Mr. Rossman; is that right? MR. ROSSMAN: No, absolutely not, Judge. I didn’t mean to suggest that was the case, either. The record is unambiguous. Defendants’ contention that Judge Battisti failed to carefully consider his decision and explore alternatives is without merit. We note again that a trial court is not required to conduct a formal hearing on the record regarding its decision, Washington, 434 U.S. at 516-17, 98 S.Ct. at 835-36, and conclude that the record supports the finding of a manifest necessity. AFFIRMED. . Defendants contend that an additional less drastic alternative was open to Judge Battisti in that “he could have continued with the trial until the jury reached a verdict, and if a guilty verdict was returned, another judge could have presided over the sentencing of the Defendants." In light of our conclusion that Judge Battisti appropriately recused himself from the case, we find that defendants’ proffered alternative did not constitute an available alternative. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. 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. Robert WILLIAMS, Appellant, v. J. R. MARTIN, Warden, and the Attorney General of the State of South Carolina, Appellees. Nos. 77-1058, 78-6569. United States Court of Appeals, Fourth Circuit. Argued Aug. 22, 1979. Decided March 6, 1980. Timothy W. Bouch, Third Year Law Student (Walter Reiser, Randall M. Chastain, University of South Carolina Law Center, Columbia, S. C., on brief), for appellant. Katherine W. Hill, Asst. Atty. Gen., Columbia, S. C. (Daniel R. McLeod, Atty. Gen., and Emmet H. Clair, Asst. Atty. Gen., Columbia, S. C., on brief), for appellees. Before BUTZNER, HALL and PHILLIPS, Circuit Judges. BUTZNER, Circuit Judge: The critical issue in this appeal is whether a state court’s refusal to furnish an indigent prisoner an expert for the preparation and presentation of his defense was constitutional error. The district court held that it was not and dismissed Robert Williams’ petition for a writ of habeas corpus. We reverse because we believe that the appointment of an expert was constitutionally required for Williams’ adequate defense against a charge of murder. I Williams shot Phoebe Maybank during a family quarrel over a missing wallet. The wound paralyzed Maybank, and eight months later she died. Williams was initially charged with assault and battery with intent to kill and later with murder. The indictments were consolidated for trial in the General Sessions Court, Charleston County, South Carolina. Williams was indigent. Before trial his court-appointed attorney moved for the appointment, at the state’s expense, of an independent forensic pathologist to evaluate medical evidence concerning the cause of Maybank’s death. The motion disclosed that the county medical examiner believed Maybank died from a pulmonary embolism resulting from a thrombosis that formed in her leg due to immobilization caused by her paralysis from the gunshot wound. The motion explained that while Williams’ attorney had learned from medical books that there are numerous causes of a pulmonary embolism, he was not professionally able to evaluate the evidence and question the medical examiner without consulting a pathologist. He therefore sought authorization to engage a pathologist to examine the autopsy report and perhaps to testify about the “probability that events unrelated to assault and battery” caused Maybank’s death. The motion concluded with an estimate that a minimum fee for consultation with a pathologist and for his appearance as a witness would be $400. At the pretrial hearing on the motion, Williams’ attorney elaborated on the necessity of consultation with a pathologist because of the eight-month interval between the infliction of the wound and death. He said: There is a rather complex issue of medical causation involved. As best I understand it from my research, there is — the cause of death was a blood clot which formed in the leg of the decedent and then was detached and lodged in the pulmonary artery, I believe. I don’t know exactly the detail, but the difficulty is that the blood clot in the leg can be caused by a variety of means. The medical examiner informed me that he did not observe any of these other things in his examination of the body and the specimens that he preserved, but it is impossible for counsel to examine those specimens and determine whether or not his assessment is correct and it’s important, therefore, that the defendant be appraised and afforded the assistance of the competent expert witnesses to assist counsel in determining whether or not the cause of death as stated by the medical examiner is in fact the true cause of death . After counsel presented the motion, the following colloquy occurred: Judge: I have read your motion. As I understand it, your request, what you are in need of are funds to obtain this information, whether it is good or bad, and you ask the Court to direct that funds be paid? Is that correct? Defense Attorney: Be made available, yes, sir. Judge: Well, I don’t have that authority- Defense Attorney: Well, Your Honor, if it pleases the Court, I think the situation is in all respects similar to the situation of a defendant who needs to have a transcript provided for appeal or for other purposes. Judge: Well, that is provided for by law. Defense Attorney: The constitutional principle is the same, I believe, Your Honor, and I submit the motion to the Court. Judge: Well, I can say to you that I can’t issue an order directing the Treasurer of Charleston County to pay out this sum of money because, in my opinion, if I issued the order it would be ignored and I know of no funds available to pay for this type of evidence or testimony. So, I am not going to hold out to you that I can do that because I am satisfied that I can’t. All I can tell you is what my understanding of the law is, and that is I don’t have the authority to direct any money be paid to obtain this type of evidence or testimony from this type of witness. And, lacking that authority, I certainly can’t mislead you or your client by stating that I can provide those funds. Now, if you can talk to someone in authority who has funds available and they are agreeable, based on an order of the Court, to pay the money, I will so order it. Defense Attorney: I’ll investigate that, Your Honor. Williams’ attorney did not renew his motion or advise the court about any further investigations concerning a source of funds to pay the pathologist. At trial the state presented evidence that Williams shot Maybank, that she was unarmed, and that she presented no danger to him. The forensic pathologist testifying on behalf of the state said that Maybank’s body was embalmed and buried. Nine days after death the body was exhumed, and he conducted an autopsy. He testified that in his opinion Maybank’s death was due to a clot or thrombosis in her leg migrating to her lungs and cutting off the supply of blood to the lungs; her paralysis from the gunshot wound caused the clot; and her body exhibited no other cause for the clot in her leg. The autopsy report stated, “this thrombosis was most probably secondary to her paraplegia which resulted from a gunshot wound of the neck.” The doctor explained that the phrase “most probably” indicated the highest degree of medical certainty, although he could not be 100% sure about anything in medicine. Williams contended that Maybank’s death did not result from the gunshot wound. He also asserted that he shot in self-defense when Maybank attacked him with a knife. The jury convicted him of voluntary manslaughter, and the court sentenced him to 15 years in prison. Williams’ appeal to the Supreme Court of South Carolina assigned error to the trial court’s denial of his motion for funds to retain a pathologist. The Court held that a statute authorizing payment of expenses of counsel appointed to represent indigents encompassed compensation for expert witnesses when the assistance of an expert is reasonably necessary for a proper defense. It noted that Williams’ motion had been denied because of the trial court’s erroneous conclusion that funds were not available, but it held that the failure to provide funds did not prejudice Williams. It based its ruling on testimony of the state’s pathologist that the autopsy demonstrated to the highest possible degree of medical certainty that the gunshot wound caused death and that Williams had not shown that another pathologist would have aided his defense. See State v. Williams, 263 S.C. 290, 300, 210 S.E.2d 298, 303 (1974). Williams subsequently unsuccessfully sought a writ of habeas corpus in the state courts on the ground that he was denied effective representation because his counsel did not bring to the attention of the trial court the statute authorizing payment of expert witnesses. Williams then twice applied for writs of habeas corpus in the federal district court. In the first he alleged that the denial of his motion for funds to retain a pathologist deprived him of due process of law and denied him equal protection of the law in violation of the fourteenth amendment. In his second petition he alleged that his counsel was ineffective because he did not obtain a pathologist to assist with his defense. With respect to the first petition, the district court held that Williams had not been prejudiced because he had shown only that “he might have found a pathologist who did not share the opinion of the pathologist who testified for the State as to the cause of death.” It ruled that the constitution does not mandate “the expenditure of public funds for an indigent defendant to go shopping for a favorable expert witness.” The district court denied the second writ, involving the competency of counsel, for essentially the same reasons: Williams had not shown that medical evidence in his behalf was available and “if so, the substance of such testimony.” The appeals from denials of both writs were consolidated in this proceeding. II There can be no doubt that an effective defense sometimes requires the assistance of an expert witness. This observation needs little elaboration. Had Williams been financially able to afford his own defense, competent counsel undoubtedly would have consulted a pathologist. Moreover, provision for experts reasonably necessary to assist indigents is now considered essential to the operation of a just judicial system. The American Bar Association standards on providing defense services state: The plan [for providing competent counsel to indigents] should provide for investigatory, expert and other services necessary to an adequate defense. These should include not only those services and facilities needed for an effective defense at trial but also those that are required for effective defense participation in every phase of the process . The accompanying commentary notes that “[t]he quality of representation at trial may be excellent and yet valueless to the defendant if his defense requires the services of a[n] . . . expert and no such services are available.” ABA Standards, Providing Defense Service,. 22-23 (App. Draft 1968). Similarly, a distinguished committee of lawyers, state and federal judges, and academicians reported to the Attorney General that adequate representation of criminal defendants requires in some cases provision for engaging experts in addition to appointment of counsel. The committee stated: The need for such services has been recognized in all well-developed systems of representation for financially incapacitated defendants, both in this country and abroad. Until . . . such services are made available, the procedures in the federal courts can not fairly be characterized as a system of adequate representation. One of the assumptions of the adversary system is that counsel for the defense will have at his disposal the tools essential to the conduct of a proper defense . . . Both Congress and the South Carolina legislature have responded to this need by authorizing the provision of funds to indigent defendants for expert services when necessary for an adequate defense. See 18 U.S.C. § 3006A(e); S.C.Codg § 17-3-80 (Cumm.Supp.1978). Jacobs v. United States, 350 F.2d 571 (4th Cir. 1965), vacated a judgment denying a motion for collateral relief brought under 28 U.S.C. § 2255. Relying on Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), we recognized that the obligation of the government to provide an indigent defendant with the assistance of an expert was firmly based on the equal protection clause. In Jacobs we held that the obligation arises when a substantial question exists over an issue requiring expert testimony for its resolution and the defendant’s position cannot be fully developed without professional assistance. 350 F.2d at 573. The determination of the defendant’s need for expert assistance is committed to the sound discretion of the trial judge. Ill The trial judge acknowledged Williams’ need for assistance, but he denied the motion because he erroneously believed that he lacked authority to furnish an expert at the state’s expense. It is quite evident that denial of Williams’ motion was not the result of the informed discretion of the trial judge. We, therefore must make an independent examination, of the record to determine (a) whether a substantial question requiring expert testimony arose over the cause of death, and (b) whether Williams’ defense could be fully developed without professional assistance. See Jacobs, 350 F.2d at 573. The cause of Maybank’s death was an essential element of the State’s case. It could be established by the prosecution only through the testimony of an expert witness. Although the state’s pathologist professed confidence in his opinion, despite embalming and the nine-day delay, he acknowledged that generally an autopsy should be performed as soon as possible after death. The pathologist also conceded that it is unusual for a pulmonary embolism to occur as long as eight" months after trauma. Thus, the record discloses a substantial question over the cause of death which required expert testimony for its explication. This satisfies the first aspect of the Jacobs test. Jacobs next requires consideration of whether Williams’ defense could be fully developed without professional assistance. We must apply the Jacobs test in the light of the Supreme Court’s observation that the assignment of a lawyer to an indigent must not be made “under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.” Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158 (1932). Without the services of an expert, Williams’ trial counsel could not adequately prepare his case. A complete understanding of the medical factors involved was necessary before a medical layman could effectively question the state’s pathologist and test the firmness of his opinion. The handicap under which Williams’ counsel was forced to operate while preparing for and cross-examining the state’s expert is markedly similar to the situation in Jacobs where we held that the defendant’s “position could not be fully developed for lack of available professional assistance.” 350 F.2d at 573. The presentation of Williams’ defense at trial was also hampered by the absence of a defense expert witness. An expert may have been able to question the accuracy of an autopsy performed after embalming and delay. Furthermore, the record discloses that Maybank had cirrhosis of the liver. A medical textbook cited by Williams’ counsel in his brief indicates that cirrhosis and numerous other ailments may cause an embolism. Therefore, it is possible that a pathologist could have expressed an opinion on the likelihood that cirrhosis of the liver or some other disease caused the embolism. Such testimony could well have raised a reasonable doubt concerning the cause of death. Just as the state needed an expert to prove the cause of death, Williams needed an expert to present his defense. It is not incumbent upon Williams to prove under the Jacobs test that an independent expert would have provided helpful testimony at trial. An indigent prisoner who needs expert assistance because the subject matter is beyond the comprehension of laymen should not be required to present proof of what an expert would say when he is denied access to an expert. The state, relying on Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), argues that Williams waived any right to relief. Estelle found waiver of a constitutional right because the defendant never objected to the trial court about being tried in prison clothing. Here, in contrast, Williams’ counsel did request funds and was affirmatively informed by the trial judge that no funds were available. Moreover, the state asserted in response to Williams’ claim of ineffective counsel that “[cjounsel cannot be personally faulted for being unaware of the South Carolina law providing for such assistance since the trial judge, who has had many years on the bench, was also unaware of the statute.” Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971), on which the state also relies, dealt with an alternative source of assistance that was widely known and easily available. In Williams’ case, however, the record discloses no alternative to the state funds requested and denied by the trial judge. Likewise, we conclude that Satterfield v. Zahradnick, 572 F.2d 443 (4th Cir. 1978), which the state cites, is not controlling because of factual differences. Satterfield concerned the defendant’s claim of insanity. Satterfield was able to procure a doctor to testify in his defense, and the state did not introduce evidence available to it that he was sane. Because a substantial question requiring expert testimony arose over the cause of Maybank’s death and because Williams’ defense could not be fully developed without professional assistance that would have been available to a person who could afford his own defense, Williams has satisfied the dual test prescribed in Jacobs to establish that he was denied equal protection of the law. Furthermore, the trial judge’s refusal to provide an expert deprived Williams of the effective assistance of counsel and due process of law in violation of the sixth and fourteenth amendments. Cf. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Mason v. Arizona, 504 F.2d 1345, 1351 (9th Cir. 1974); Davis v. Coiner, 356 F.Supp. 695 (N.D.W.Va.1973); United States v. Germany, 32 F.R.D. 421 (M.D.Ala.1963). The order dismissing Williams’ habeas corpus petition is vacated, and the case is remanded with directions to appoint a pathologist to investigate the cause of May-bank’s death. If, with such assistance, Williams can establish that the expert assistance of a pathologist in preparing and presenting his defense was necessary to the adequate presentation of that defense, and might reasonably have affected adjudication of the cause of death, the writ should be granted, subject to retrial in a reasonable length of time. See ABA Standards, Providing Defense Services § 1.5 (App. Draft 1968). Obviously, if the pathologist testifies that there is no reasonable doubt that the gunshot wound caused Maybank’s death, Williams will have failed to establish that an expert witness would have assisted in the adequate preparation and presentation of his defense. In that situation, the error caused by the state’s failure to appoint an independent expert would be harmless and the conviction will stand. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Jacobs, 350 F.2d at 573. Because Williams failed to object at trial to the jury instruction on self-defense, we affirm the judgment of the district court on that issue. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Hankerson v. North Carolina, 432 U.S. 233, 244 n.8, 97 S.Ct. 2339, 2345 n.8, 53 L.Ed.2d 306 (1977); Frazier v. Weatherholtz, 572 F.2d 994, 996 (4th Cir. 1978). Vacated and Remanded for Further Proceedings. . S.C.Code § 17-3-80 (Cumm.Supp.1978) provides: Appropriation for expenses of appointed private counsel and public defenders; restrictions and limitations. In addition to the appropriation in § 17-3-70, there is hereby appropriated for the fiscal year commencing July 1, 1969 the sum of fifty thousand dollars for the establishment of the defense fund which shall be administered by the Judicial Department. This fund shall be used to reimburse private appointed counsel, public defenders, and assistant public defenders for necessary expenses actually incurred in the representation of persons pursuant to this chapter, provided that the expenses are approved by the trial judge. No reimbursement shall be made for travel expenses except extraordinary travel expenses approved by the trial judge. The total State funds provided by this section shall not exceed fifty thousand dollars. . Report of the Attorney General’s Committee on Poverty and the Administration of Federal Criminal Justice, 45-46 (1963). . In view of our disposition of the case, we need not address Williams’ claim that his counsel was ineffective because he did not obtain a medical witness. 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_genstand	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the 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". Reba DOUGLAS, for herself and all others similarly situated, Plaintiff-Appellant, v. C. Patrick BABCOCK, Director of the Michigan Department of Social Services, and Louis Sullivan, Secretary of Health and Human Services, Defendants-Appellees. No. 92-1231. United States Court of Appeals, Sixth Circuit. Argued Dec. 14, 1992. Decided March 25, 1993. Edward J. Hoort (argued and briefed), Legal Services of Southern Michigan, Flint, MI, for plaintiff-appellant. Erica Weiss Marsden, Office of Atty. Gen. of Michigan, Lansing, MI, Robert Haviland, Asst. U.S. Atty., Flint, MI, Jennifer H. Zacks (argued and briefed), Michael Jay Singer, U.S. Dept, of Justice, Appellate Staff, Civ. Div., Washington, DC, for defendants-appellees. Before: MERRITT, Chief Judge; and GUY and RYAN, Circuit Judges. RYAN, Circuit Judge. Reba Douglas seeks pregnancy-related Medicaid benefits. She appeals from a grant of summary judgment in favor of the Director of the Michigan Department of Social Services (MDSS) and the Secretary of Health and Human Services (HHS). Douglas presents the following issues on appeal: 1. Whether the district court erred in finding Douglas ineligible for pregnancy-related benefits under 42 U.S.C. § 1396a(a)(10)(A)(i)(III) or (IV), in light of a previous determination that she was uncooperative in establishing the paternity of her oldest child; and 2. Whether the denial of benefits violated Douglas’s right to equal protection under the law. We find the district court correctly determined these issues and we shall affirm. I. Reba Douglas, who was pregnant and had two minor children, applied for Medicaid prenatal and postpartum medical benefits in 1989. MDSS denied Douglas’s application because the state Aid to Families with Dependent Children (AFDC) agency found she had failed to cooperate, without good cause, in establishing the paternity of her oldest child, Ezekio, who was born in 1979, and assigning rights for his support. This finding of noncooperation was made pursuant to 42 U.S.C. § 602(a)(26) and 45 C.F.R. § 232.12(a), as administered under the Michigan statutory scheme. Douglas filed suit in the United States District Court for the Eastern District of Michigan, contesting the denial of prenatal care for herself and all others similarly situated. After the district court denied class certification, Douglas proceeded individually, contending that the AFDC cooperation and assignment provisions with respect to Ezekio did not apply to eligibility for Medicaid prenatal benefits for her current pregnancy, and that HHS’s interpretation of the statute violated her right to equal protection under the law. She sought injunctive relief. The district court granted a preliminary injunction barring MDSS and HHS from “interpreting the assignment and cooperation requirements of the Medicaid statute to bar prenatal ... care of pregnant women who have complied with the requirements with respect to the child in útero." HHS appealed issuance of the injunction to this court. While the appeal was pending, Congress amended 42 U.S.C. § 1396k to exempt a specific group of pregnant women, described in 42 U.S.C. § 1396a(Z )(1)(A), from its cooperation requirements. Following oral argument, this court remanded the case to the district court for consideration of the effect of the 1990 amendment. On remand, the district court found that Douglas was not covered by the 1990 amendment. The court granted summary judgment for MDSS and HHS, concluding that “following the plain language of the statute,” Douglas was not eligible for Medicaid prenatal care, because she had failed to cooperate. The district court denied Douglas’s equal protection claim, finding that the challenged statute was rationally related to a legitimate government interest. 792 F.Supp. 1030. Douglas perfected a timely appeal to this court. II. This court reviews a grant of summary judgment de novo. Brooks v. American Broadcasting Cos., 932 F.2d 495, 500 (6th Cir.1991). This appeal raises a question of statutory construction, a legal question we review de novo. Cf. Smith v. Commissioner, 937 F.2d 1089, 1096 (6th Cir.1991). III. Douglas argues that the district court erred in denying her the requested prenatal .care benefits because she is “categorically eligible” for Medicaid benefits as a low-income woman under 42 U.S.C. § 1396d(n)(1)(C) pursuant to 42 U.S.C. § 1396a(a)(10)(A)(i)(III) or (IV). Douglas contends that since she meets the income and resource requirements referenced in section 1396d(n)(l)(C), she is eligible for Medicaid prenatal care under section 1396a(a)(10)(A)(i)(/Z7). Douglas next argues that even if she is ineligible under section 1396a(a)(10)(A)(i)(//7), she is alternatively eligible under section 1396a(a)(10)(A)(i)(/F). As a final alternative argument, Douglas contends that even if she is determined to be ineligible for Medicaid prenatal benefits under a literal reading of the applicable statutes, she should nevertheless receive the benefits because such a reading would frustrate Congress’s intent to provide comprehensive prenatal Medicaid benefits for low-income women. She urges us to not read the statutes “too rigidly” in order to promote what she deems as the more fundamental congressional goal of promoting prenatal care for low-income women. The Secretary contends that under the provisions of section 1396k, Douglas’s previous paternity noneooperation makes her ineligible for Medicaid pregnancy-related benefits. He argues that Douglas is ineligible both under part III and part IV of section 1396a. The Secretary maintains that the cooperation requirement of section 1396k applies to all Medicaid applicants unless otherwise specifically excepted, and applicants covered by part III have not been specifically excepted. While the Secretary acknowledges that applicants covered by part IV have been excepted from the cooperation requirement, he argues that Douglas is not a member of this group. Thus, according to the Secretary, Douglas was ineligible for pregnancy-related Medicaid benefits both before and after the enactment of the 1990 amendment to section 1396k. IV. Medicaid was established in 1965 as a venture in “cooperative federalism,” to “provid[e] federal financial assistance to States that choose to reimburse certain costs of medical treatment for needy persons.” Harris v. McRae, 448 U.S. 297, 301, 100 S.Ct. 2671, 2680, 65 L.Ed.2d 784 (1980). States that choose to participate in Medicaid are subject to the statutory terms of the program and the regulations promulgated by the Secretary of HHS. 42 U.S.C. § 1396a. A. Section 1396k Section 1396k of the Medicaid Act provides several mechanisms by which federal and state governments can recoup some of the costs of medical care provided to low-income persons by pursuing third parties legally obligated to pay these medical costs. Section 1396k contains several interrelated provisions designed “[f]or the purpose of assisting in the collection of medical support payments and other payments for medical care owed to recipients....” 42 U.S.C. § 1396k(a). First, section 1396k “require[s]” “as a condition of eligibility” that all applicants for Medicaid benefits “assign [to] the State any rights, ... the individual [or any other person who receives benefits for whom the applicant has the authority to execute an assignment] may have to support ... and to payment for medical care from any third party.” 42 U.S.C. § 1396k(a)(l)(A). Second, section 1396k requires that an applicant “cooperate with the State ... in establishing the paternity” of any “person who is eligible for medical assistance,” and who is also “a child born out of wedlock. ...” 42 U.S.C. §§ 1396k(a)(l)(A) and (B). Until its amendment in 1990, the statute excused noncooperation in only one way: a woman would be excused from cooperating in establishing paternity if she was “found to have good cause.” 42 U.S.C. §§ 1396k(a)(l)(B)(i) and (ii). Finally, an applicant is required “to cooperate with the State in identifying, and providing information to assist the State in pursuing, any third party who may be liable to pay for care and services.... ” 42 U.S.C. § 1396k(a)(l)(C). A “good cause” exception is also available here. In sum, in order to be eligible for medical assistance, a Medicaid applicant is required to assist the state by assigning any support and medical payment rights to the state, cooperating with the state in establishing the paternity of any minor child born out of wedlock for whom the applicant is legally responsible, and cooperating with the state in identifying and pursuing any third parties who may be liable to pay for medical care. The latter two requirements can be excused if the applicant is found to have “good cause.” MDSS found Douglas noncooperative, without good cause, in establishing the paternity of her oldest child, Ezekio. This determination was upheld on administrative appeal, where Douglas was represented by counsel. Obviously, the question that remains is whether section 1396k’s requirements of assignment and cooperation apply to applicants for Medicaid prenatal benefits. Absent an explicit provision to the contrary, there is no reason to think they would not, because as stated above, all applicants “for medical assistance” are “required ” to assign rights, and cooperate in establishing paternity and pursuing third parties. B. Sections 1396a(a)(10)(A)(i)(III) and (IV) Against the backdrop of the assignment and cooperation section of the Medicaid Act are provisions establishing the eligibility requirements for prenatal care. A determination of such eligibility requires an eye-glazing examination of a labyrinthine maze of sections, and seemingly infinite subsections, of the Medicaid Act. We begin in section 1396a(a)(10)(A)(i)(///) which requires a state plan to make prenatal assistance available for all individuals “who are qualified pregnant women or children as defined in section 1396d(n) of this title_” Section 1396d(n)(l)(C) defines a “qualified pregnant woman” as a pregnant woman who, “otherwise meets the income and resources requirements of a State plan under part A of subchapter IV of this chapter....” Section 1396a(a)(10)(A)(i)(7F) requires prenatal care for all individuals “who are described in subparagraph (A) or (B) of subsection (i )(1) of this section and whose family income does not exceed the minimum income level the State is required to establish under subsection (1)(2)(A) of this section for such a family....” For purposes of 1396a(a)(10)(A)(i)(777), it is undisputed that Douglas meets the income and resources requirements under Michigan’s AFDC program, a “State plan.” She is ineligible for AFDC only because she failed to cooperate in establishing paternity of Ezekio, as required by 42 U.S.C. § 1396k(a)(l)(B). Indeed, her children presently receive AFDC and her unborn child became eligible for AFDC upon his birth. Contrary to her assertions, since Douglas is otherwise eligible under section 1396a(a)(10)(A)(i)(777)’s income and resources requirements, she is precluded from eligibility under section 1396a(a)(10)(A)(i)(7F), because part IV refers the reader to the definition at section 1396a(i)(l)(A) or (B), which in turn excludes anyone described in sections 1396a(a)(10)(A)(i)(I) through (III). Since Douglas is covered by part III, and thus cannot be covered by part IV, she would seem to be under the overriding assignment and cooperation requirements of section 1396k. It is at this point in our analysis that the amendment to section 1396k is relevant. C. The 1990 Amendment to Section 1396k Section 1396k was amended in 1990. The relevant text of section 1396k, with the amending language underlined, now reads, in pertinent part: [A] State plan for medical assistance shall— (1) provide that, as a condition of eligibility for medical assistance under the State plan to an individual ..., the individual is required— (A) to assign the State any rights, of the individual or of any other person who is eligible for medical assistance under this subchapter and on whose behalf the individual has the legal authority to execute an assignment of such rights, to support (specified as support for the purpose of medical care by a court or administrative order) and to payment for medical care from any third party; (B) to cooperate with the State (i) in establishing the paternity of such person (referred to in subparagraph (A)) if the person is a child born out of wedlock, and (ii) in obtaining support and payments (described in subparagraph (A)) for himself and for such person, unless (in either case) the individual is described in [42 U.S.C. §] 1396a(l)(l)(A) of this title or the individual is found to have good cause for refusing to cooperate as determined by the State agency.... 42 U.S.C. § 1396k(a) (emphasis, added). Therefore, the 1990 amendment exempts from the cooperation requirement a specific subset of pregnant women described in 42 U.S.C. § 1396a(i )(1)(A). As mentioned previously, this section describes this group of women as: women during pregnancy (and during the 60-day period beginning on the last day of the pregnancy) ... who are not described in any of subclauses (I) through (III) of subsection (a)(10)(A)(i) of this section .... 42 U.S.C. § 1396a(i )(1)(A) (emphasis added). This is the point at which Douglas is made ineligible for Medicaid prenatal benefits. Because she is described in part III, she is not exempt from the assignment and cooperation requirements of section 1396k. There is simply no rational ground for us to conclude, as Douglas would have us, that those otherwise eligible under part III are somehow exempt from the overriding requirements of assigning rights, cooperating in establishing paternity, and pursuing third parties. Congress could have made the exception established by the 1990 amendment larger, but — rightly or wrongly — chose not to do so. While Congress has expanded Medicaid pregnancy-related care for low-income women, it has not extended it to persons in Douglas’s situation. Douglas, as the district court found, is not covered by the 1990 Amendment’s exception to the general cooperation requirement. D. Frustrated Congressional Intent Finally, Douglas argues that Congress could not have intended — given its general policy of favoring prenatal assistance to low-income women — that the statutes in question should be read to deny her pregnancy-related Medicaid benefits. As a fallback position, Douglas contends that even if the statutes, read properly — that is, as they are written — would deny her eligibility, such a reading would frustrate congressional intent, and this court should read the statute so as to allow benefits. Douglas also relies on Lewis v. Grinker, 965 F.2d 1206 (2d Cir.1992), where the Second Circuit gave undocumented aliens pregnancy-related Medicaid benefits in spite of contrary statutory language. There are several problems with Douglas’s contentions. First, it is true that the statutes and relevant legislative history seem to evidence an increasing concern on the part of Congress for prenatal care for poor women. However, the statutes and relevant legislative history evidence an equally strong congressional commitment to the policy of paternity cooperation as a trade-off for the expenditure of massive public funds for medical care for certain of the nation’s poor mothers. Second, Medicaid’s recent emphasis on the pregnant mother, not the unborn child, as the recipient of prenatal care cuts against Douglas’s arguments. As the Lewis court has noted, recent amendments to the Medicaid statute have worked a “shift from a fetal centered to a maternal centered approach to prenatal care.” Id. at 1209. This shift necessarily places more emphasis on the mother as the recipient of Medicaid pregnancy-related care. This focus is relevant here because Douglas, not her child, is the person ineligible for Medicaid because of noncooperation. Although the unborn child is one of the intended beneficiaries of Medicaid pregnancy-related care, the threat of losing benefits provides a strong and continuing incentive to the mother to cooperate in establishing paternity for each of her children. In addition, even if we were to determine — and we do not — that the statutes in question were ambiguous, we would nevertheless conclude that Douglas is subject to the cooperation requirement of section 1396k. When a portion of the Medicaid statutes is ambiguous, we give considerable weight to HHS’s interpretation because [a]n agency director’s interpretation of a statute that his agency is entrusted to administer is entitled to considerable deference and our review of such an interpretation is limited to determining whether the administrator’s construction of the statute is ‘reasonable.’ Chapman v. United States Dep’t of Health & Human Services, 821 F.2d 523, 527 (10th Cir.1987). We have also stated that deference to an agency’s statutory interpretation is especially important “when an interpretation of a statute involves the reconciliation of conflicting policies.” Wayside Farm, Inc. v. United States Dep’t of Health & Human Services, 863 F.2d 447, 451 (6th Cir.1988). As the Supreme Court explained in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984): When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. (Footnotes omitted.) As previously noted, Douglas relies on Lewis, 965 F.2d 1206. In Lewis, the court held that undocumented aliens are entitled to pregnancy-related Medicaid benefits, even though, as the court conceded, “the plain language of the statute appears to require denying prenatal care to [these] women_’ Id. at 1215. Lewis did not specifically address whether women covered by section 1396a(a)(10)(A)(i)(III) would be eligible in spite of not cooperating, but did effectively hold that residency eligibility (a requirement similar to cooperation) could be demanded in light of section 1396d(n)’s mention of only income and resource eligibility. Douglas urges this court to adopt the general approach of the Lewis court’s focus on Congress’s unlegis-lated intent. We have fundamental concerns with the reasoning in Lewis v. Grinker, and its applicability to the case before us. The Second Circuit in Lewis, instead of focusing on applying the applicable law as written by Congress, instead sought to determine what it deemed Congress’s broader “intent.” Id. at 1208. We do not believe our proper judicial role is to divine Congress’s unlegislated intent, or to make the statutes comport with what we believe Congress’s preferred policy to be, or what it ought to be. Rather, this court must apply the law as written, even when a result is produced that we may personally question. The perceived legislative history of the relevant statutes should not be allowed to trump duly enacted laws even if the “unenacted” legislative policy, intent, or history is clear. Here, the legislative history is far from clear. We are not confident that it would even be possible to discover what Congress’s “intent” was respecting the very detailed and complex question presented by this appeal. We decline to follow the approach of Lewis. y. Douglas’s second assignment of error is that the district court wrongly granted summary judgment for the defendants on Douglas’s constitutional claim. Douglas argues that the government’s policy cannot be related rationally to a legitimate interest because the government itself acknowledges that prenatal care is much less expensive to provide than pediatric care for an ill or low-birth weight baby. She also argues that the statute impermissibly discriminates among poor women who receive government medical assistance. Finally, Douglas argues that in this case, establishing the paternity of Ezekio would not reduce the government’s outlay for her unborn child, because Ezekio’s father has no financial responsibility for supporting the unborn child. Douglas argues that HHS’s interpretation of the paternity cooperation requirement violates the Equal Protection Clauses of the Fifth and Fourteenth Amendments because it creates impermissible classifications among low-income pregnant women. A. Our constitutional review of Congress’s “ ‘decisions to spend money to improve the general public welfare in one way and not another,’ ” is particularly deferential. Bowen v. Gilliard, 483 U.S. 587, 598, 107 S.Ct. 3008, 3015, 97 L.Ed.2d 485 (1987) (citations omitted). As the Supreme Court has noted, this deferential standard of review is premised on Congress’ ‘plenary power to define the scope and the duration of the entitlement to ... benefits, and to increase, to decrease, or to terminate those benefits based on its appraisal of the relative importance of the recipients’ needs and the resources available to fund the program.’ Id. (quoting Atkins v. Parker, 472 U.S. 115, 129, 105 S.Ct. 2520, 2529, 86 L.Ed.2d 81 (1985)). “ ‘A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’ ” Id., 483 U.S. at 601, 107 S.Ct. at 3017 (quoting McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961)). In order to survive an equal protection challenge, a statutory scheme that makes classifications based on income, as interpreted by the government, need only “be rationally related to a legitimate governmental interest.” Harris, 448 U.S. at 326, 100 S.Ct. at 2693. “[W]e cannot, in the name of the Constitution, overturn duly enacted statutes simply ‘because they may be unwise, improvident, or out of harmony with a particular school of thought.’ ” Id. (quoting Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 488, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1955)). B. Douglas’s policy critiques do not aid her equal protection theory. In spite of Douglas’s arguments, the government could rationally conclude that — in the aggregate — requiring low-income pregnant women to cooperate in establishing paternity for children born out of wedlock makes more money available for all Medicaid recipients by making it easier to find putative fathers who should pay medical expenses. Among these Medicaid recipients would be children and “cooperative” pregnant women. While the government’s interpretation of the cooperation requirement is not obviously perfect social policy, it is not irrational. There may be better ways to lower infant mortality among poor women than this statutory scheme provides. However, to fashion such policy from the bench would be to “substitute our personal notions of good public policy for those of Congress_” Schweiker v. Wilson, 450 U.S. 221, 234, 101 S.Ct. 1074, 1082, 67 L.Ed.2d 186 (1981). HHS’s interpretation of the statute does not violate Douglas’s equal protection rights. VI. For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment. . The state of Michigan did not participate in that appeal and is not participating in the current appeal. Michigan has taken the position that it would pay the benefits in question if HHS's position did not deny the state federal reimbursement. . Douglas v. Babcock, 931 F.2d 56 (6th Cir.1991) (order). 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_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". Glenn E. TAGATZ, Plaintiff-Appellant, v. MARQUETTE UNIVERSITY, Defendant-Appellee. No. 88-1498. United States Court of Appeals, Seventh Circuit. Argued Sept. 29, 1988. Decided Nov. 16, 1988. Mark J. Rogers, Angermeier & Rogers, Milwaukee, Wis., for plaintiff-appellant. John G. Hill, Jr., Marquette University, Milwaukee, Wis., for defendant-appellee. Before BAUER, Chief Judge, and POSNER and COFFEY, Circuit Judges. Judge Coffey heard oral argument in this case but later recused himself. The case has been decided by the remaining members of the panel. See, e.g., Love v. Young, 781 F.2d 1307, 1308 n. * (7th Cir.1986) (per curiam); Giacolone v. Abrams, 850 F.2d 79, 80 n. * (2d Cir.1988); United States v. Allied Stevedoring Corp., 241 F.2d 925, 927 (2d Cir.1957) (L. Hand, J.) (death or resignation); cf. Tobin v. Ramey, 206 F.2d 505 (5th Cir.1953). Two judges are a quorum of a three-judge panel, see 28 U.S.C. § 46(d), and “in the absence of a contrary statutory provision, a majority of a quorum constituted of a simple majority of a collective body is empowered to act for the body." FTC v. Flotill Products, Inc., 389 U.S. 179, 183, 88 S.Ct. 401, 404, 19 L.Ed.2d 398 (1967) (footnote omitted). POSNER, Circuit Judge. Dr. Glenn Tagatz, a professor in the Marquette University education school, brought suit against Marquette under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 626(c)(1). He charged that he had received smaller pay raises than colleagues who were either Catholic or under 40 years of age. Judge Warren, after a bench trial, entered judgment for Marquette, 681 F.Supp. 1344 (E.D.Wis.1988), and Tagatz appeals. The case is remarkable because, for the first time ever so far as we know, the plaintiff testified as his own expert witness. (We have found a case where a party’s employees testified as expert witnesses; the practice was criticized by the judge. See Rust Engineering Co. v. Lawrence Pumps, Inc., 401 F.Supp. 328, 334 (D.Mass.1975).) Dr. Tagatz, a specialist in statistical evidence in employment discrimination cases, prepared the statistical evidence on which his case rides, and was permitted to introduce the evidence as an expert witness. Rule 702 of the Federal Rules of Evidence, which governs the qualification of expert witnesses, is latitudinarian, and nothing in its language suggests that a party cannot qualify as an expert; nor did Marquette object to Dr. Tagatz’s testifying as an expert witness. As Dr. Tagatz’s counsel pointed out at argument, the fact that a party testifying as his own expert is not disinterested does not distinguish him from any other party who testifies in his own behalf; and hired experts, who generally are highly compensated— and by the party on whose behalf they are testifying — are not notably disinterested. There is a rule against employing expert witnesses on a contingent-fee basis (that is, against paying them more for their testimony if the party that hired them wins), and this rule might be thought to imply that a party — whose “reward” for testifying depends, of course, on the outcome of the suit — is not eligible to be an expert witness. But it is a rule of professional conduct rather than of admissibility of evidence. It is unethical for a lawyer to employ an expert witness on a contingent-fee basis, 3 Weinstein’s Evidence ¶ 706[03] at pp. 706-23 to 706-24 (1987), but it does not follow that evidence obtained in violation of the rule is inadmissible. See United States v. Cervantes-Pacheco, 826 F.2d 310, 316 (5th Cir.1987) (en banc) (concurring opinion). The trier of fact should be able to discount for so obvious a conflict of interest. In any event, there was no objection to Dr. Tagatz’s testifying as an expert witness, so we need not delve deeper into this intriguing subject. Because the case was tried, the intricate issues concerning prima facie case that Dr. Tagatz presses on us are irrelevant. United States Postal Service v. Aikens, 460 U.S. 711, 715-16, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983); Morgan v. South Bend Community School Corp., 797 F.2d 471, 480 (7th Cir.1986); Washington v. Electrical Joint Apprenticeship & Training Comm., 845 F.2d 710, 713-14 (7th Cir.1988). The only question is whether Judge Warren’s determination that Dr. Tagatz had not proved that he received smaller raises than he would have if he had been either Catholic or young was clearly erroneous. Although Dr. Tagatz attempts to present a disparate-impact claim, he has not identified any specific employment practice that he contends has a discriminatory effect. See Watson v. Fort Worth Bank & Trust, - U.S. -, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988). The only issue, therefore, is whether he proved deliberate discrimination either against non-Catholic, or against middle-aged, faculty. Marquette is a Jesuit institution. See Maguire v. Marquette University, 814 F.2d 1213, 1214 (7th Cir.1987). It gives preference to Catholic applicants for teaching jobs in fields where Catholic doctrine is important, such as theology and philosophy, as it is permitted to do by the exemption in Title VII for religious institutions. See 42 U.S.C. § 2000e-2(e)(2); cf. Pime v. Loyola University, 803 F.2d 351, 357-58 (7th Cir.1986) (concurring opinion). But its stated policy is not to discriminate against non-Catholics once they are hired; and whether because of this policy or otherwise, Marquette declined to plead the religious exemption as a defense to Dr. Ta-gatz’s claim of religious discrimination. Dr. Tagatz, who is 54 and an Episcopalian, received his doctorate in educational psychology from the University of Wisconsin and was hired by Marquette as an associate professor in 1968. In 1971 he was made chairman of the department of psychology in the education school but he was removed from that job in 1974. In 1976 he published a book that received a single, brutally unfavorable review, though the dean of the school of education said he rather liked it; since then Dr. Tagatz has published only one article in a professional journal. According to the Social Science Citation Index, Dr. Tagatz’s book has never been cited in a scholarly publication; and none of his articles has been cited since 1982. Compare Weinstein v. University of Illinois, 811 F.2d 1091, 1093 n. 2 (7th Cir.1987). Beginning in 1976 the dean placed annual raises on an explicitly meritocratic basis. Scholarly output (quality as well as quantity), teaching quality, and administrative and related service to the school or university are the criteria that the dean uses to determine how large a raise to give each member of the department. Between 1976 and 1981, Dr. Tagatz received average annual raises greater than some members of the department, but below the average. He brought this suit in 1982. The evidence of discrimination is almost entirely statistical. It consists of a series of tables, prepared by Dr. Tagatz, that compare salary raises for Catholic and non-Catholic, over-40 and under-40 faculty members in the school of education. The samples are small, because the school of education has only a small faculty. In the table that Dr. Tagatz’s counsel told us at argument contained the strongest evidence for his client, the salary raises between 1975 and 1985 of each of the 28 faculty members were compared with the faculty member’s religion. The comparison showed that, on average, the Catholic members of the faculty received significantly larger annual raises than the non-Catholic ones. A similar table showed larger annual raises on a percentage basis for faculty members under 40 compared to those over 40. Marquette did not offer expert testimony, although Dr. Tagatz is incorrect to say that it offered no statistical evidence. It presented a table showing that the most productive scholars in the school of education, as measured by number of publications, happened to be Catholics. (Dr. Ta-gatz’s own conspicuous lack of scholarly productivity&emdash;attributed by the school’s dean to Dr. Tagatz’s having “gone on strike” after he was fired as department chairman&emdash;helped depress the average for the non-Catholic members of the depart- ment.) Another table presented by Mar- quette compared Dr. Tagatz’s numerical teaching evaluations with the average for the school’s faculty, and showed that in the six periods for which comparable data were available the average score was 57.02, but his score was only 53.07. There was testi- mony that in addition to being a below-av- erage teacher and at the bottom of the faculty in productivity, Dr. Tagatz was a poor citizen of the school&emdash;refusing an im- portant committee assignment, failing to go through proper channels, enlisting students in his vendettas against other faculty members (the practice so memorably described in Mary McCarthy’s novel The Groves of Academe), and generally behav-Groves of Academe), and generally behaving in trying ways. Against this there was testimony that Dr. Tagatz is a prominent member of the department and leads it in the number and size of research grants received. Dr. Tagatz's main argument is that if the plaintiff in a Title VII case presents evidence that passes standard tests of statistical significance, the defendant must present a statistically significant rebuttal or lose. This argument misunderstands the significance of statistical significance, both generally and in this case. One of Dr. Tagatz's tables comparing salary raises for Catholic and for non-Catholic faculty in the school of education reveals a difference (favoring the Catholics) that is significant at the .0048 level. This means (speaking very crudely-see Kruskal, Tests of Significance, in 2 Int'l Encyclopedia of Statistic 944, 957 (1978)) that there is a probability o less than 5 in 1,000 that the difference i due to chance. But to infer as Dr. Tagat would that there is a less than 5 in 1,00 chance (in the absence of contrary evidence that the group that received the highe raises was favored because it was compose of Catholics is erroneous. All that the dat show is that there is in all likelihood a real not a spurious, difference between th means of the samples compared. The dat do not show that the difference is due to a particular attribute (namely, being Catholic) which the members of the better-off group have and the members of the worse-oft group lack. Correlation is not causation. Ste. Marie v. Eastern R.R. Ass'n, 650 F.2d 895, 400 (2d Cir.1981) (Friendly, J.). Members of each group may have other things in common, and one or more of those other things, rather than religion, may have caused the difference in mean salary increases. Marquette's evidence suggests that the better-off group is not only Catholic but also more productive, and the group's higher average annual salary raises may be due to its members' greater productivity rather than to their religion. Dr. Tagatz does not question the proposition that "scholarly achievement is clearly recognized as a nondiscriminatory reason for personnel action in academic settings." Anderson v. University of Northern Iowa, 779 F.2d 441, 443 (8th Cir.1985); see also Lieberman v. Gant, 630 F.2d 60, 66 (2( Cir.1980) (Friendly, J.). All this is not to say that Dr. Tagatz's tables are no evidence. Cf. MacDissi v. Valmont Industries, Inc., 856 F.2d 1054, 1058 (8th Cir.1988). Correlations can be suggestive of causality; scientific induction means inferring causality from correlation. Having shown a correlation between religion and salary raises, Dr. Tagatz has shown that it is possible that notwithstanding Marquette's stated policy of treating its Catholic and non-Catholic faculty members alike, Marquette is discriminating against non-Catholics. But it is only a possibility. There are many other possibilities. One is that a Catholic university such as Marquette is more attractive to Catholic academics than to non-Catholic ones; this might explain why the Catholics in the school of education are more productive on average than the non-Catholics. Maybe it is a pure coincidence that the most productive members of the school of education are Catholic; for the sample on which both parties' tables are based is very small. Certainly in a case such as this where the plaintiff's statistical evidence is weak and equivocal, the defendant can rebut it by casual statistical evidence of its own, by nonstatistical evidence, or by a combination of the two types. Then it is up to the district judge to decide whether the plaintiff has carried his burden of persuasion. Dr. Tagatz objects very strongly lx Judge Warren's attempt to do a little statistical analysis of his own. One of Dr. Tagatz's tables compares the salary raises for the five Catholic and five non-Catholic faculty members who had been continuously employed since 1969, and shows that over this period the average salary raise for the Catholics was higher than for the non-Catholics (including Dr. Tagatz). All five Catholics were full professors at the end of the period, while only two of the non-Catholics were; and Judge Warren noted that if one compared the five Catholic full professors with the two non-Catholic full professors the latter group had done better. Dr. Tagatz points out correctly that a larger sample is more reliable than a smaller one, and complains that Judge Warren made an already very small sample` significantly smaller by casting out three of its ten observations. "It is an unacceptable statistical procedure to turn a large sample into a small one by arbitrarily excluding observations." Washington v. Electrical Joint Apprenticeship & Training Comm., supra, 845 F.2d at 713. And perhaps the exclusion of the three non-Catholic professors of lower rank was arbitrary. But Dr. Tagatz's failure to control for differences in rank, like his failure to control for differences in scholarly productivity and teaching evaluations, made his table essentially worthless-and such variables can be controlled for. See, e.g., Tuckman, Gapinski & Hagemann, Faculty Skills and the Salary Structure in Academe: A Market Perspective, 67 Am.Econ. Rev. 692 (1977). Judge Warren's reworking of the table was a means of demonstrating just how worthless the table was rather than an impermissible exercise in generating factual data on which the parties were given no opportunity to comment. Judges, by the way, are not wallflowers or potted plants; and a district judge's effort to test the strength of a party's statistical evidence by determining how sensitive it is to the design of the sample-a standard method of evaluating statistical evidence-is rather to be commended than condemned. Compare Mister v. Illinois Central Gulf R.R., 882 F.2d 1427, 1432-33 (7th Cir.1987). We have focused on the evidence of religious discrimination. The evidence of age discrimination was if anything less impressive. The discovery that young faculty members receive larger annual raises on a percentage basis is no evidence at all of age discrimination. As is well known, the professoriat, like the Roman Catholic hierarchy, has only a few ranks. And unlike the Catholic hierarchy, the top rank-full professor-is normally reached relatively early in the academic's career (Dr. Tagatz became a full professor in 1970, when he was 36). This rank structure implies, and one observes, that academics' salaries tend to rise rapidly in the early stages of their career and to reach a plateau when the academic becomes a full professor; and this regardless of age. The phenomenon of diminishing returns to years of experience is well documented in studies of academic salaries. See, e.g., Tuckman, et al., supra, at 697. Of course there are exceptions, but Dr. Tagatz's evidence was only of averages. It is unlikely-and there is no evidence-that the characteristic age profile of academic salaries reflects age discrimination. Among alternative explanations, tenure-and the job security that results from it-tends to take some of the edge off academic ambition. So we would expect tenured faculty to be somewhat less productive on average than nontenured faculty, and of course most nontenured faculty are under 40, and most faculty over 40 have tenure. A countervailing factor is that tenured faculty have passed a more careful screening process than untenured. A comparison not between a faculty member before and after he got tenure but between tenured and (different) nontenured faculty members might therefore reveal that tenured faculty were more productive. Cutting back the other way is the possibility that new faculty are more mobile than old-another reason why one might expect the new (who generally are younger) to receive higher raises. A further consideration is that tenure itself is a form of compensation, a substitute for money; this may be another reason why salary increases are higher on' a percentage basis for nontenured than for tenured faculty. Given plausible (we do not suggest compelling) explanations unrelated to age discrimination for the results of Dr. Ta-gatz's statistical comparisons, we can hardly say that Judge Warren committed a clear error in refusing to infer, from evidence unusually meager, that Marquette was discriminating against Dr. Tagatz because of his age. Dr. Tagatz attempted to bolster his weak statistical evidence of religious and age discrimination with shards of testimonial evidence. There was testimony that the dean had suggested to one of the non-Catholic faculty members that she not wear her Masonic ring (the Catholic Church once regarded the Masons as dangerous heretics, and the Masons returned the compliment); that he told the faculty that Catholic doctrine should be taught wherever possible; and that the younger members of the faculty were more productive than the older ones. Judge Warren was not required to give controlling weight to such evidence, especially since Dr. Tagatz teaches statistics and there is no suggestion that the dean wanted statistics taught with.a Catholic slant (e.g., regression of angels on the heads of pins). Finally, Dr. Tagatz complains that Marquette discriminates in favor of Jesuit members of the faculty by giving them free housing and other (free) benefits. It is a nice question, not necessary to answer, whether discrimination in favor not of a religion but of a religious order is within the scope of Title VII. See Pime v. Loyola University, supra, 803 F.2d at 353-54 (concurring opinion). The discrimination in favor of Jesuits, if that is what it is, is as costly to the Catholic members of the faculty, except those who are Jesuits, as it is to non-Catholics such as Dr. Tagatz. In any event, he failed to prove discrimination. It is true that the Jesuits receive various benefits that the other faculty members do not receive. But this is not the whole picture. Jesuits do not receive their salaries. Instead the university pays those salaries to an association which maintains the residence where the Jesuits live. The association deducts the cost of feeding and housing the Jesuits and various other expenses and returns the balance to the university. The amount returned is about $4,000 per year per Jesuit. So while the Jesuits do get free housing, it is not at the expense of the university; and while they get health insurance and other fringe benefits without contributing (as other faculty members do) to the cost of those benefits, there is no evidence that these benefits cost the university more than the amount that it receives from the association. So far as appears, far from discriminating in favor of its Jesuit faculty members Marquette is obtaining their services at lower cost than the services of its other faculty members. Despite his use of the expert of his choice, Dr. Tagatz presented a weak case which was properly dismissed. Compare Laborde v. Regents of University of California, 686 F.2d 715 (9th Cir.1982); Ottaviani v. State University of New York, 679 F.Supp. 288 (S.D.N.Y.1988). 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_bank_r1	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 first 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. UNITED STATES of America, Plaintiff-Appellee, v. A & S COUNCIL OIL COMPANY; Artice L. Council, Defendants-Appellants. No. 90-5239. United States Court of Appeals, Fourth Circuit. Argued May 10, 1991. Decided Oct. 18, 1991. H. Gerald Beaver, argued, Beaver, Holt, Richardson, Sternlicht, Burge & Glazier, P.A., Fayetteville, N.C., for defendants-appellants. Thomas Wayne Dworschak, Sp. Asst. U.S. Atty., Raleigh, N.C., argued (Margaret Person Currin, U.S. Atty., on brief), for plaintiff-appellee. Before HALL, Circuit Judge, STAKER, District Judge for the Southern District of West Virginia, sitting by designation, and KELLAM, Senior District Judge for the Eastern District of Virginia, sitting by designation. OPINION K.K. HALL, Circuit Judge: Artice Council and his wholly-owned business, A & S Council Oil Company, appeal their convictions following a jury trial of conspiracy to defraud the government through false claims. We reverse and remand for a new trial. I. A. This case involves a conspiracy to divert heating oil intended for the military base at Fort Bragg, North Carolina, and to submit false bills to the United States for the undelivered fuel. There is no question that the diversions occurred; the only issue at the trial below was whether appellants were participants in the conspiracy. Appellants are Artice Council and his sole proprietorship, A & S Council Oil Company. Except where the context indicates otherwise, we refer below to appellants collectively as “appellant” or “Council,” inasmuch as only a single individual is actually involved. B. The following summary of the government’s evidence describes the fraudulent scheme. Sellers Oil Company (“Sellers”) was awarded a contract to provide heating oil to Fort Bragg, and Council subcontracted to supply part of the fuel. The government’s obsolete maps showed oil tanks that no longer existed; some Sellers and Council drivers quickly saw an opportunity to submit bills for supposed deliveries to erstwhile tanks while selling the undelivered oil off-base. The genesis of the conspiracy was an April, 1986, conversation between Walter Ford, a driver for Sellers, and Eugene Jackson, Sellers’ field manager. Ford pointed out the discrepancies between the government’s map and reality, and suggested that prior contractors had probably made a fortune diverting oil. Jackson asked Ford if he thought they could get away with a similar scam; Ford responded that he thought they could. In June, 1986, Jackson encountered Ford and Lawrence Hayes, another driver for Sellers. Ford was finished with his Fort Bragg run, but Hayes still had some fuel left. Jackson instructed Ford to pump Hayes’ oil onto Ford’s truck; Ford took the oil back to the Sellers Oil lot. Hayes checked out of Fort Bragg with an empty truck. Jackson paid Ford $150 and Hayes $50-$75 for this misdeed. Similar diversions continued through December, 1986. The modus operandi varied. Ford twice faked a breakdown of his truck; when the truck was hauled off-base for repair, oil was removed. Delivery tickets were falsified regularly. Hayes sometimes used a Sellers truck that could pump air through its meter to create a false reading. In six months, Ford was paid between six and twelve thousand dollars for his part. Over ninety-five thousand gallons of oil were diverted. C. No one was indicted for three years. In February, 1990, Jackson “found Jesus” (he did so periodically), and he wrote a letter to Special Agent Hobbs of the FBI, which begins: I Eugene Jackson am giving you a written statement. I realize under the law that it could incriminate me. I know that my life is not my own. God saved me and brought me to this point, and now for the love of God I am selling out. Bringing out the old so that he can show me the new. I am stepping out on faith in Christ regardless of the consequences. Jackson then confessed to the diversion and implicated appellant Council. In a typed follow-up statement to the FBI, dated February 12, 1990, Jackson specifically stated that the diversion of oil started in June, 1986. On the days following February 12, Jackson stood on the street corners of Fayetteville preaching to passersby. On February 15, he was arrested for driving without a license and in a dangerous manner. He was behaving so strangely that he was involuntarily committed to Cape Fear Valley Medical Center. Dr. Jerry Morrow examined him. His report contains this description of Jackson’s mental condition: When [I] met with [Jackson] initially, he was quite angry, menacing with his hands as he repeatedly thrust his pointed finger at [me], physically resistant to any efforts to perform physical assessments (even monitoring his pulse), and verbally saying: “I’m dead, I was sent by God to you. The stone has been rolled away.” With some effort and patience on the part of [me], he gradually became less resistant but then became completely passive, lying in bed flaccidly and passively allowing physical exam although not being responsive to any verbal requests. He became completely mute at this point. Dr. Morrow concluded that Jackson suffered from delusions and that his judgment was “severely impaired.” Morrow diagnosed a “schizoaffective disorder,” and prescribed antipsychotic medication. This involuntary admission to Cape Fear was not Jackson’s first. He was committed from February 24 to March 7, 1989, because [A]t this time he is experiencing hallucinations, conversing with God and was stating that Jesus was directing him that in order for his friend to speak with him, they must get Jesus’s permission. The patient stated that he is a little Jesus, and he is not eating or sleeping adequately. He insists on going throughout the neighborhood day and night, knocking on doors, attempting to get the neighbors to follow him, and he is obviously in need of further psychiatric evaluation and possible hospitalization. In addition, Jackson had been hospitalized twice in 1984 for similar mental illness. D. On March 13, 1990, Jackson, Hayes, Council, Sellers, A1 Holmes, and Alton Graham (the last two were other Sellers drivers) were named in a three-count indictment charging them with conspiracy to defraud the government and two substantive counts of fraud through presentation of false claims. Jackson’s counsel filed a notice of insanity defense and a motion to suppress Jackson’s statements to the FBI. In support of his motion, Jackson cited his lack of mental capacity and hallucinations at the time the statements were made. These motions were mooted, however, when Jackson, along with Graham and Hayes, pled guilty to the conspiracy count and agreed to testify for the government. Ford, who was already incarcerated because of an unrelated conviction for conspiracy to distribute cocaine, was not indicted, but also chose to cooperate with the government. In his plea agreement, Jackson agreed to “submit to a polygraph examination whenever requested by the United States Attorney” and “that the results of these examinations will be admissible against the defendant in a court of law.” On June 13 and June 20, 1990, Jackson took polygraph tests conducted by a government examiner. On both occasions, the examiner concluded that Jackson was “not truthful” when he implicated Council in the diversion scheme. On July 5, 1990, counsel for the remaining defendants received a copy of the polygraph report in the mail. That same day, the government moved in limine to prohibit admission of the polygraph evidence at trial. The defendants immediately responded, arguing that the government’s confidence in the reliability of the evidence was demonstrated by the stipulation of admissibility against Jackson contained in the plea agreement. Furthermore, defense counsel asserted that the Assistant United States Attorney had informed him that a psychiatrist, Dr. Robert Rollins, would testify to Jackson’s competence, and that Rollins had seen, among other materials, the polygraph results. Council argued that he had a right to inquire into all facts underlying the expert’s opinion. The government did not dispute that Rollins had considered Jackson’s failure of the polygraph test. In a pleading filed in support of its motion in limine, the government asserted that Jackson had “comment[ed] to Dr. Rollins about being upset over the test results” and that “Dr. Rollins has opined that Eugene Jackson’s test results may be due to his mental condition, not to any possible untruthfulness.” Nonetheless, the district court granted the government’s motion, and ruled the evidence inadmissible. Defendants also filed a motion in limine to prohibit Jackson’s testimony because it was inherently incredible. The district court denied this motion. II. The trial of Council, Holmes, and Sellers was held July 10-13, 1990. Ford, Hayes, and Graham took the stand in turn and told a consistent story. The diversions started in June, 1986, and Jackson solicited the involvement of each in the scheme, even going so far as to threaten Graham with the loss of his job if he refused. Only Ford offered any evidence implicating Council, and it was circumstantial: one time when Ford was to be paid by Jackson for diverted oil, Jackson said to wait because the money would be arriving shortly. Ford saw Council drive up and go into the Sellers Oil facility, where Council spoke to Jackson for five to ten minutes, then left. Five minutes later, Jackson paid Ford. Jackson was the star witness, but he told a different story. According to Jackson, Council instigated the diversions by asking him how much he wanted to make off of the Fort Bragg contract. These first discussions, according to Jackson, did not occur until August or September, 1986, two to three months after the other cooperating conspirators said the diversions began. Jackson stated that he at first refused Council’s solicitation, and Council told him that if he left the job without making money, it was his own fault. Jackson eventually acceded to Council's pressure, and, sometime after December 10, 1986, he agreed to divert oil. He testified that he told Council he wanted to make $50,000, which Council said might be difficult because there were only four months left in the Fort Bragg contract. Ford was fired by Sellers on January 4, 1987, after he was involved in an on-the-job traffic accident. This firing was six months after he said the conspiracy began, but a scant three weeks after Jackson’s start-up date. Jackson told of the various methods used to divert oil, and testified that Council was the purchaser of it. Jackson also provided the only evidence implicating Holmes. At the conclusion of his direct examination, Jackson told a bizarre, disjointed story of the events leading up to his confession. He recounted that he had stolen some items from Council’s yard in 1989, and the thefts were beginning to bother him. In February, 1990, he decided to go to Council, confess, and offer to pay for the stolen items. For some reason, he went to the local Coca-Cola plant and wandered around. When he came out, Council and a policeman were there to greet him, but the policeman let him go; he then went to the FBI to tell of the oil diversions. Cross-examination was spirited. When confronted with the other conspirators’ earlier beginning date, Jackson flatly stated that the others were wrong. He persisted even when shown his handwritten note to the FBI, which used the June 1986 date. Details of his episodes of mental illness were introduced, in some instances after he denied them (e.g., he at first refused to admit that he was involuntarily committed on February 16, 1990). He acknowledged that he quit taking his antipsychotic medication when he left the hospital. He denied certain details of the other conspirators’ testimony, including Graham’s statement that he recruited Graham on threat of firing. The government called Dr. Rollins to bolster Jackson’s tattered credibility. Rollins conceded that Jackson suffered from a “schizophrenic affective disorder,” which occasionally manifested itself in “very severe symptoms.” He also admitted that Jackson had not continued to take the prescribed antipsychotic medication. Nonetheless, Rollins opined that Jackson was able to distinguish reality from imagination. The government offered a July 8, 1990, report stating Rollins’ conclusions. This report was consistent with every matter common to it and Rollins’ trial testimony; however, it also stated Rollins' opinion, which he did not repeat at trial, that Jackson was competent to be a witness. Council objected, but his objection was based on the exclusion of the polygraph evidence. The objection was overruled. Council’s cross-examination of Rollins was stunted by his inability to inquire about the polygraph test. At a bench conference, Council renewed his motion to be permitted to ask about it, but the court stuck to its initial ruling. The government rested. The court granted Sellers’ motion for judgment of acquittal, but denied Holmes’ and Council’s. Council and Holmes both took the stand in their own defense and denied involvement. Several Council employees testified that they had no knowledge of any involvement by Council in the diversions; other witnesses attested to Council’s good character. At the conclusion of all the evidence, the district court granted a judgment of acquittal on one of the substantive counts as to all remaining defendants, leaving one conspiracy and one substantive count each against Holmes and Council. The jury deliberated for a day and a half. Holmes was acquitted notwithstanding Jackson’s accusations. Council was acquitted of the substantive count, but was convicted of conspiracy. Council moved for a new trial and renewed his motion for judgment of acquittal. His motions were denied. On November 5,1990, Artice Council was sentenced to two years in prison and was fined $20,000. His oil company was fined $10,000 and placed on five years’ probation. Council appeals. Council moved for bail and a stay of the fine pending appeal. Over the government’s objection, the district court granted the motion on December 3, 1990, finding that Council’s appeal raised substantial questions of law, which, if resolved contrary to the district court’s rulings, would likely result in reversal. III. A. The Fourth Circuit rule is that evidence that the accused or a witness has taken a polygraph test is inadmissible. United States v. Brevard, 739 F.2d 180 (4th Cir.1984); United States v. Smith, 565 F.2d 292 (4th Cir.1977). However, this circuit’s prior cases involve allegations that a criminal defendant has been prejudiced by the mention of a polygraph during trial. None of them involve a defendant’s attempt to impeach a government witness with the results of a government-initiated and government-administered polygraph examination. Circumscribing a defendant’s cross-examination of government witnesses implicates the Confrontation Clause of the Sixth Amendment. Olden v. Kentucky, 488 U.S. 227, 231, 109 S.Ct. 480, 482, 102 L.Ed.2d 513 (1988); Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974). Where it involves the government’s most crucial witness, the constitutional concerns are especially heightened. Dorsey v. Parke, 872 F.2d 163, 166 (6th Cir.), cert. denied, 493 U.S. 831, 110 S.Ct. 103, 107 L.Ed.2d 67 (1989). The rules of evidence are not necessarily coextensive with the Confrontation Clause. See Idaho v. Wright, — U.S. —, 110 S.Ct. 3139, 3146, 111 L.Ed.2d 638 (1990) (some otherwise-admissible hearsay can deprive defendant of his right to confrontation). Council urges us to recognize a Confrontation Clause exception to the general inadmissibility of polygraph results to accommodate an accused’s attacks on the credibility of key government witnesses. Council argues that this case can be distinguished from Fourth Circuit precedents because those cases involved polygraph results that had a prejudicially inculpatory effect. Certainly, before a scientific test should be used as inculpatory evidence, its reliability should be very high, because of the “aura of infallibility” that surrounds scientific evidence. However, if a scientific test, though not unfailingly accurate, is reliable enough that its exculpatory result would create a reasonable doubt of a criminal defendant’s guilt, Council argues that the Confrontation Clause demands that he be permitted to introduce it into evidence. Council presents us with a weighty, difficult issue. The peculiar facts of his case are compelling — a lone witness upon whom the government’s case depends, whose credibility is heavily attacked, and who is disbelieved in part by the jury. However, at the expense of a cliche, we note that hard cases make bad law. This court’s precedents preclude direct attacks on or bolstering of the credibility of a witness through evidence that the witness has taken a polygraph test. The broad exception Council seeks to create for an accused’s attacks on government witnesses would, in our view, conflict with those precedents. Accordingly, though we acknowledge that other circuits have loosened their traditional strictures against polygraph evidence in recent years, we cannot follow as a panel of this court. Any such drastic departure from our previous practice must be made by an en banc court. In short, we find no error in the exclusion of Jackson’s polygraph result insofar as it was offered to prove its own correctness, i.e. that Jackson was lying. B. The government went one step further in the battle over Jackson’s credibility, however. It offered the bolstering testimony of Dr. Rollins. He gave an expert opinion that Jackson was able to distinguish reality from imagination. When examining Jackson, Rollins had been informed of the polygraph results. Fed.R.Evid. 705 reads: The expert may testify in terms of opinion or inference and give reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination. The data upon which an expert bases his opinion need not be admissible in evidence. Fed.R.Evid. 703. However, to counteract the potential advantage this liberalized rule confers on the proponent of the opinion, Rule 705 permits the cross-examiner to require the expert to reveal otherwise-inadmissible underlying information before the jury, subject only to Fed. R.Evid. 403’s prejudice/probative value balancing test. United States v. Gillis, 773 F.2d 549, 553-554 (4th Cir.1985). In Gillis, the defendant was charged with transporting stolen vehicles. He had been convicted of a similar charge in 1980, and the court ruled in limine that the government could not introduce evidence of the prior crime. At trial, however, the defendant offered the expert testimony of a psychologist who had examined the defendant in relation to the earlier trial and not since. On cross-examination, the district court permitted the government to inquire about the circumstances under which the expert had seen the defendant, which necessarily revealed that the defendant had previously been charged with a similar offense. On appeal, this court found no error: We have recognized the importance of developing the factual basis of psychiatric testimony regarding mental responsibility, and have granted prosecutors wide latitude in crossexamining expert witnesses on the issue. Id. at 554 (citations omitted). Certainly a criminal defendant is entitled to at least as wide a latitude as we have given prosecutors. Full examination of the underpinnings of an expert’s opinion is permitted because the expert, like all witnesses, puts his credibility in issue by taking the stand. Jackson’s polygraph result is relevant to Rollins’ credibility because Rollins must have necessarily discounted it to reach the opinion he stated in court. According to a government pleading, Rollins “opined that Eugene Jackson’s test results may be due to his mental condition, not to any possible untruthfulness.” Aside from the lack of conviction in this opinion (“may”), even its preferred explanation — that Jackson’s polygraph failure was “due to his mental condition” — may well have failed to infuse the jury with confidence in Rollins’ assessment of Jackson’s credibility. Council should have been permitted to fully explore the bases of Rollins’ opinion, including inquiry about Jackson’s polygraph result. Rule 703 creates a shield by which a party may enjoy the benefit of inadmissible evidence by wrapping it in an expert’s opinion; Rule 705 is the cross-examiner’s sword, and, within very broad limits, he may wield it as he likes. We emphasize that the polygraph result is admissible as an attack on Rollins’ opinion, not directly on Jackson’s credibility, and the jury ought to be given a limiting instruction to that effect. Of course, the peculiarity of this case is that Rollins’ opinion concerns Jackson’s credibility. Nonetheless, the opinion is not exempted from searching cross-examination because of its subject matter. The convictions are reversed, and the case is remanded for a new trial. REVERSED AND REMANDED. . See, in addition to Brevard and Smith, United States v. Herrera, 832 F.2d 833 (4th Cir.1987); United States v. Porter, 821 F.2d 968 (4th Cir. 1987), cert. denied, 485 U.S. 934, 108 S.Ct. 1108, 99 L.Ed.2d 269 (1988); United States v. Tedder, 801 F.2d 1437 (4th Cir.1986), cert. denied, 480 U.S. 938, 107 S.Ct. 1585, 94 L.Ed.2d 775 (1987); and United States v. Morrow, 731 F.2d 233 (4th Cir.), cert. denied, 467 U.S. 1230, 104 S.Ct. 2689, 81 L.Ed.2d 883 (1984). . The closest case is United States v. Grandison, 780 F.2d 425, 434 (4th Cir. 1985), vacated on other grounds, 479 U.S. 1075, 107 S.Ct. 1269, 94 L.Ed.2d 130 (1987), in which we held that the government was not required to drop its prosecution because the polygraph results of a witness were favorable to the defendant; the admissibility of those results was not an issue. .United States v. Alexander, 526 F.2d 161, 168 (8th Cir.1975); see Barefoot v. Estelle, 463 U.S. 880, 926 n. 8, 103 S.Ct. 3383, 3412 n. 8, 77 L.Ed.2d 1090 (1983) (Blackmun, J., dissenting). . Circuits that have not yet permitted evidence of polygraph results for any purpose are now the decided minority. The Eleventh Circuit recently revisited polygraph tests en banc. United States v. Piccinonna, 885 F.2d 1529 (11th Cir. 1989) (en banc). In Piccinonna, the court created two exceptions to the general inadmissibility of polygraph results — (1) if parties stipulate to admissibility in advance of the test, or (2) to impeach or corroborate the testimony of a witness. The second exception is further limited by a requirement of notice before trial of intent to use the evidence and by Rule 403’s command that the probative value of the evidence outweigh its unfair prejudicial effect. Other circuits have admitted polygraph results under various sets of circumstances. See Wolfel v. Holbrook, 823 F.2d 970, 972 (6th Cir.1987), cert. denied, 484 U.S. 1069, 108 S.Ct. 1035, 98 L.Ed.2d 999 (1988) (polygraph result admissible if relevant "to proof developed by probative evidence” and probative value of polygraph result outweighs prejudicial effect and possibility of juror confusion); United States v. Miller, 874 F.2d 1255, 1261 (9th Cir. 1989) (polygraph may be admissible if offered for some purpose other than the correctness of its result); United States v. Lynn, 856 F.2d 430, 432-433 (1st Cir.1988) (terms of accomplice-witness’ plea agreement, including requirement of polygraph test, may be revealed through cross-examination by defendant to show motive of witness to fabricate); United States v. Gordon, 688 F.2d 42, 44 (8th Cir.1982) (polygraph evidence admissible if parties stipulate admissibility in advance of test); United States v. Johnson, 816 F.2d 918, 923 (3rd Cir.1987) (polygraph admissible to rebut defendant’s claim that confession was coerced); United States v. Kampiles, 609 F.2d 1233, 1245 (7th Cir. 1979), cert. denied, 446 U.S. 954, 100 S.Ct. 2923, 64 L.Ed.2d 812 (1980) (same); United States v. Hall, 805 F.2d 1410, 1415-1417 (10th Cir. 1986) (defendant’s failure of polygraph admissible to explain why police had not conducted more thorough investigation). . As for the Rule 403 balancing, we believe that the "prejudicial effect” of this evidence is less than that we found tolerable in Gillis. . Council also argues that the admission of Dr. Rollins’ written report prepared before trial, was impermissible bolstering by prior consistent statement before Rollins’ credibility was attacked. See Fed.R.Evid. 801(d)(1)(B); United States v. Bolick, 917 F.2d 135 (4th Cir.1990). Appellant did not make this specific objection at trial, and we would not reverse on this unpre-served ground. United States v. One 1971 Mercedes Benz, 542 F.2d 912, 915 (4th Cir.1976); Fed.R.Evid. 103(a)(1). Nonetheless, in the event Council is retried, we note that he is correct on this point. The weight given Rollins’ testimony was central to the jury’s determination of the vital issue of Jackson’s credibility. It was improper for the government to introduce an extrajudicial statement, consistent with Rollins’ trial testimony, except "to rebut an expressed or implied charge against the declarant of recent fabrication or improper influence or motive.” Fed.R.Evid. 801(d)(1)(B). Question: Is the first listed respondent bankrupt? A. Yes B. No Answer:
sc_authoritydecision	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. RIOS v. UNITED STATES. No. 52. Argued March 29, 1960. Decided June 27, 1960. Harvey M. Grossman argued the cause for petitioner. With him on the brief was Clore Warne. Assistant Attorney General Wilkey argued the cause for the United States. With him on the brief were Solicitor General Rankin, Beatrice Rosenberg and Eugene L. Grimm. A. L. Wirin filed a brief for the American Civil Liberties Union et al., as amici curiae, urging reversal. Mr. Justice Stewart delivered the opinion of the Court. An indictment filed in the United States District Court for the Southern District of California charged the petitioner with unlawful receipt and concealment of narcotics in violation of 21 U. S. C. § 174. Before trial the petitioner made a motion to suppress for use as evidence a package of heroin which, so a California court had found, Los Angeles police officers had obtained from the petitioner in an unconstitutional search and seizure. After a hearing the District Court denied the motion to suppress, finding that federal agents had not participated in the search, and finding also that the California officers had obtained the evidence in a lawful manner. The package of narcotics was admitted in evidence over the petitioner’s renewed objection at his subsequent trial. He was convicted and sentenced to twenty years in prison. The Court of Appeals affirmed the conviction, accepting the District Court’s finding that the seizure had been lawful, and holding that in any event illegally seized evidence “may nevertheless be received in a federal prosecution, if the seizure was made without the participation of federal officials.” 256 F. 2d 173, at 176. Certiorari was granted in an order which limited the questions for consideration to two, 359 U. S. 965: “1. Independently of the state court’s determination, was the evidence used against petitioner in the federal prosecution obtained in violation of his rights under the Constitution of the United States? “2. If the evidence was unlawfully obtained, was such evidence admissible in the federal prosecution of petitioner because it was obtained by state officers without federal participation?” In Elkins v. United States, decided today, ante, p. 206, the Court has answered the second question by holding that evidence seized in an unreasonable search by state officers is to be excluded from a federal criminal trial upon the timely objection of a defendant who has standing to complain. The only question that remains in this case, therefore, is whether the Los Angeles officers obtained the package of heroin “during a search which, if conducted by federal officers, would have violated the defendant’s immunity from unreasonable searches and seizures under the Fourth Amendment.” Ante, p. 223. As in most cases involving a claimed unconstitutional search and seizure, resolution of the question requires a particularized evaluation of the conduct of the officers involved. See Go-Bart Co. v. United States, 282 U. S. 344, 357. At about ten o’clock on the night of February 18, 1957, two Los Angeles police officers, dressed in plain clothes and riding in an unmarked car, observed a taxicab standing in a parking lot next to an apartment house at the corner of First and Flower Streets in Los Angeles. The neighborhood had a reputation for “narcotics activity.” The officers saw the petitioner look up and down the street, walk across the lot, and get into the cab. Neither officer had ever before seen the petitioner, and neither of them had any idea of his identity. Except for the reputation of the neighborhood, neither officer had received information of any kind to suggest that someone might be engaged in criminal activity at that time and place. They were not searching for a participant in any previous crime. They were in possession of no arrest or search warrants. The taxicab drove away, and the officers followed it in their car for a distance of about two miles through the city. At the intersection of First and State Streets the cab stopped for a traffic light. The two officers alighted from their car and approached on foot to opposite sides of the cab. One of the officers identified himself as a policeman. In the next minute there occurred a rapid succession of events. The cab door was opened; the petitioner dropped a recognizable package of narcotics to the floor of the vehicle; one of the officers grabbed the petitioner as he alighted from the cab; the other officer retrieved the package; and the first officer drew his revolver. The precise chronology of all that happened is not clear in the record. In their original arrest report the police stated that the petitioner dropped the package only after one of the officers had opened the cab door. In testifying later, this officer said that he saw the defendant drop the package before the door of the cab was opened. The taxi driver gave a substantially different version of what occurred. He stated that one of the officers drew his revolver and “took hold of the defendant’s arm while he was still in the cab.” A state criminal prosecution was instituted against the petitioner, charging him with possession of narcotics, a felony under California law. Cal. Health and Safety Code, § 11500. At a preliminary hearing the two Los Angeles officers testified as to the circumstances surrounding the arrest and seizure. When the case came on for trial in the Superior Court of Los Angeles County, the petitioner moved to suppress as evidence the package of heroin which the police had seized. On the basis of the transcript of the preliminary hearing, and after brief argument by counsel, the court granted the motion and entered a judgment of acquittal. Thereafter, one of the Los Angeles officers who had arrested the petitioner discussed the case with his superiors and suggested giving the evidence to United States authorities. He then got in touch with federal narcotics agents and told them about the petitioner’s case. This led to the federal prosecution we now review. In holding that the package of heroin which had been seized by the state officers was admissible as evidence in the federal trial, the District Court placed prime reliance upon the silver platter doctrine, there having been no participation by federal agents in the search and seizure. But the court also expressed the opinion, based upon the transcript of the state court proceedings and additional testimony of the two Los Angeles police officers at the hearing on the motion to suppress, that the officers had obtained the evidence lawfully. The court was of the view that the seizure was permissible as an incident to a legal arrest, or, alternatively, that the petitioner had abandoned the narcotics when he dropped them to the floor of the taxicab. At the time this opinion was expressed, however, the district judge had not yet heard the taxicab driver’s version of the circumstances surrounding the arrest and seizure. The driver did not testify until the trial itself. After he had testified, the package of heroin was offered in evidence. The petitioner’s counsel objected, and the court overruled the objection without comment. See Gouled v. United States, 255 U. S. 298, 312-313; Amos v. United States, 255 U. S. 313, 316-317; Jones v. United States, 362 U. S. 257, 264. For all that appears, this ruling may then have been based solely upon the silver platter doctrine. Moreover, the Court of Appeals gave no consideration to the question of the legality of the state search and seizure, relying as it did upon the silver platter doctrine and rejecting the petitioner’s contention that the state court’s determination of illegality precluded the federal trial court from making an independent inquiry into the matter. With the case in such a posture, we have concluded that the interests of justice will best be served by remanding the case to the District Court. There, free from the entanglement of other issues that have now become irrelevant, the lawfulness of the policemen’s conduct can be determined in accord with the basic principles governing the validity of searches and seizures by federal officers under the Fourth Amendment. Under these principles the inquiry in the present case will be narrowly oriented. The seizure can survive constitutional inhibition only upon a showing that the surrounding facts brought it within one of the exceptions to the rule that a search must rest upon a search warrant. Jones v. United States, 357 U. S. 493, 499; United States v. Jeffers, 342 U. S. 48, 51. Here justification is primarily sought upon the claim that the search was an incident to a lawful arrest. Yet upon no possible view of the circumstances revealed in the testimony of the Los Angeles officers could it be said that there existed probable cause for an arrest at the time the officers decided to alight from their car and approach the taxi in which the petitioner was riding. Compare Brinegar v. United States, 338 U. S. 160; Carroll v. United States, 267 U. S. 132; Henry v. United States, 361 U. S. 98. This the Government concedes. If, therefore, the arrest occurred when the officers took their positions at the doors of the taxicab, then nothing that happened thereafter could make that arrest lawful, or justify a search as its incident. United States v. Di Re, 332 U. S. 581; Johnson v. United States, 333 U. S. 10; Miller v. United States, 357 U. S. 301; Henry v. United States, 361 U. S. 98. But the Government argues that the policemen approached the standing taxi only for the purpose of routine interrogation, and that they had no intent to detain the petitioner beyond the momentary requirements of such a mission. If the petitioner thereafter voluntarily revealed the package of narcotics to the officers’ view, a lawful arrest could then have been supported by their reasonable cause to believe that a felony was being committed in their presence. The validity of the search thus turns upon the narrow question of when the arrest occurred, and the answer to that question depends upon an evaluation of the conflicting testimony of those who were there that night. [For opinion of Mr. Justice Frankfurter, joined by Mr. Justice Clark, Mr. Justice Harlan and Mr. Justice Whittaker, see ante, p. 233.] [For memorandum of Mr. Justice Harlan, joined by Mr. Justice Clark and Mr. Justice Whittaker, see ante, p. 251.] The judgment is vacated, and the case is remanded to the District Court for further proceedings consistent with this opinion. Vacated and remanded. The petitioner later broke free from the policeman’s grasp and ran into an alley. There the officer apprehended him after shooting him in the back. “Q. Will you just tell us in your own words, Mr. Smith, what happened immediately after the time you saw Officer Beckmann? “A. Well, he appeared alongside my taxicab on the right-hand side opposite the front window on the right holding a flashlight in his right hand, I believe, and his billfold in his left. . . . “The Court: Then what happened? “The Witness: Then I believe he turned toward the defendant who was riding in the back of the cab and I think he motioned with his billfold toward the defendant and he opened the door. Now somewhere along in here I think Beckmann disposed of his flashlight. I didn’t notice exactly what happened there. ' “By Mrs. Bulgrin: “Q. What did the defendant do? What was happening as far as the defendant was concerned? “A. Well, he appeared to be becoming quite agitated. “Q. While he was inside the cab? “A. While he was inside the cab, yes. “Q. When the door opened did he get out? “A. Well, there are other events before he got out. “The Court: What were they? “The Witness: Well, I am trying to get these in the right order. It is difficult because things happened quickly. . . . “The Witness: Officer Beckmann opened the door and I asked him who he was, that is, he opened the rear door of the taxicab and he said, 'We are police officers.’ I just wanted to satisfy my own mind about that. I didn’t know whether he was a policeman or a hijacker positively, but I thought that he was a policeman but I wanted to be sure. So he said, ‘We are police officers.’ “I thought probably it was just a routine examination. I work the night shift, have for some time, and I have been stopped by the police and they have checked the occupants of my cab. There have been quite a few holdups of taxi drivers and I just thought it was a routine thing. “But the defendant was getting quite agitated and I noticed at this time that Officer Beckmann had his revolver drawn, which seemed to me somewhat extraordinary just to stop and question an occupant of a cab, and said something to the effect that you are scaring him, what is the big idea, something like that. I don’t remember my exact words. “As I recall then Officer Beckmann took the defendant by the arm— "By Mrs. Bulgrin: “Q. That was after the defendant got out of the cab, is that correct? “A. It was my impression that Officer Beckmann took hold of the defendant’s arm while he was still in-the cab. . . . “The Court: How could you tell the defendant was agitated ? “The Witness: Well, it is a rough impression but I was sufficiently impressed with the fact at the time to protest to Officer Beckmann that he was frightening him, and as far as I knew there was no good cause to be frightening him with a drawn revolver. Maybe it was me who was agitated.” On cross-examination the taxi driver testified as follows: “Well, I would say that the most prominent thing in my eyesight at the time was this revolver, which looked the size of a cannon. . . . “At the time he opened the door, I can’t say just at what point in the order of these events he drew his revolver, but at some time before or after the door was opened, while Rios was still sitting in the cab, he drew his revolver.” California follows the so-called exclusionary rule. People v. Cahan, 44 Cal. 2d 434, 282 P. 2d 905. The basis for the trial court’s suppression of the evidence is revealed in the following excerpt from the judge’s brief oral opinion: “As I see it, I can’t possibly see how this arrest could have originally been attempted under the information the officer very frankly tells us that he had. I don't think any reasonable man would think a felony had been committed because a man comes out of a building, looks up the street, and the other way on the street, then looks up First Street, then walks to an automobile in a parking lot, gets in a taxicab and drives away. What in the world there is in that, together with the fact it happens to be First and Hope or First and Flower — I forget which it is — and also that somebody else was arrested in a taxicab, when there are so many hundreds of taxicabs in this community, about three months before, just to state it shows the absurdity of it, insofar as I see, and your motion to suppress the evidence will be granted — . . . “I find him not guilty as charged. They will get you sometime, Rios; they didn’t get you this time but they will sometime.” “Q. What occasioned the presentation of this case to'the Federal grand jury after the ruling in the Superior Court across the street, Mr. Beckmann, in this particular case ? "A. After the ruling in the Superior Court, approximately a week or two weeks later, I conferred with my divisional commander, Captain Clavis, about the case, and at that time I showed him the arrest reports and discussed the case with him. “He then called Captain Madden of the Narcotics Division of the Los Angeles Police Department. I then went over and talked to Captain Madden of the Los Angeles Police Department. Captain Madden then looked at the arrest report, and I discussed the case with him going to the Federal Narcotics to present the case. “Q. Whose idea was that? Was that yours or Captain Madden’s? “A. Mine. “Q. In other words, did you institute the discussion with Captain Madden ? “A. Yes. Captain Madden then called Federal Narcotics and I went over to Federal Narcotics and talked to Mr. Goven. At that time I showed him a copy of my arrest report and discussed the case with him.” At the time of the arrest the California statute governing arrest without warrant provided as follows: “A peace officer may make an arrest in obedience to a warrant delivered to him, or may, without a warrant, arrest a person: “1. For a public offense committed or attempted in his presence. “2. When a person arrested has committed a felony, although not in his presence. “3. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it. "4. On a charge made, upon a reasonable cause, of the commission of a felony by the party arrested. “5. At night, when there is reasonable cause to believe that he has committed a felony.” Cal. Penal Code (1956 ed.), §836 (later amended, Stat. 1957, c. 2147, § 2). A passenger who lets a package drop to the floor of the taxicab in which he is riding can hardly be said to have “abandoned” it. An occupied taxicab is not to be compared to an open field, Hester v. United States, 265 U. S. 57, or a vacated hotel room, Abel v. United States, 362 U. S. 217. Question: What is the basis of the Supreme Court's decision? A. judicial review (national level) B. judicial review (state level) C. Supreme Court supervision of lower federal or state courts or original jurisdiction D. statutory construction E. interpretation of administrative regulation or rule, or executive order F. diversity jurisdiction G. federal common law Answer:
songer_fedlaw	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. FEDERAL LAND BANK OF ST. LOUIS, Appellee, v. John WILSON and Georgia Wilson, Appellants. The First State Bank of Newport, formerly The First National Bank of Newport, Arkansas, United States Department of Agriculture by and through Farmers Home Administration and Bank of Newark, Appellees. No. 82-1535. United States Court of Appeals, Eighth Circuit. Submitted Oct. 24, 1983. Decided Oct. 31, 1983. David Hodges, Little Rock, Ark., for appellant. Jerry Post, Batesville, Ark., Donald P. Raney, Lightle, Beebe, Raney & Bell, Searcy, Ark., and George E. Pike, Jr., Friday, Eldredge & Clark, Little Rock, Ark., George W. Proctor, U.S. Atty., Sherry P. Bartley, Asst. U.S. Atty., Little Rock, Ark., for appellee Federal Land Bank of St. Louis. Before BRIGHT, ROSS and JOHN R. GIBSON, Circuit Judges. ROSS, Circuit Judge. Georgia Wilson appeals from the judgment of the district court rejecting her claims in a foreclosure action. The foreclosure action was an action against the United States pursuant to 28 U.S.C. § 2410. This cause was removed from the Independence County, Arkansas, Chancery Court to the United States District Court pursuant to 28 U.S.C. §§ 1441(b) and 1444, at the request of the United States of America, acting through the Farmers Home Administration (FmHA). Other parties in this rather involved and complex proceeding are: The Federal Land Bank of St. Louis (Federal), First State Bank of Newport (State Bank), Bank of Newark (Newark), John Wilson and Georgia Wilson. A. CLAIM OF FEDERAL: On January 14, 1974, John and Georgia Wilson executed a promissory note to Federal in the sum of $20,000.00 with interest at the rate of 7V2% per annum. Under the terms of the note, Federal possessed the option to invoke a variable rate of interest if economic conditions warranted the action. Contemporaneously, the Wilsons executed a mortgage to Federal conveying the following property in Independence County to secure the promissory note: Part of the West Half of Lot 5 of the Northeast Fractional Quarter of Section 5, Township 12 North, Range 4 West, of the 5th P.M.,' described as follows: Commencing at the Southwest Corner of said Lot 5, thence East 264 feet to the point of beginning, thence North 330 feet, thence East 198 feet, thence South 330 feet, thence West 198 feet to the point of beginning. On February 20, 1980, Federal filed a foreclosure action against the Wilsons in the Chancery Court of Independence County alleging that the Wilsons were in default in their payments on the note, that Federal had elected to accelerate the indebtedness and declare the entire principal indebtedness due, and praying for a judgment against the Wilsons for $21,828.10, interest due and reasonable attorney’s fees. Federal made State Bank, FmHA and Newark party-defendants, asserting that these defendants were necessary parties since each claimed a security interest in the property in question. B. CLAIM OF NEWARK: On March 10, 1980, Newark filed its answer and “cross-complaint” alleging that on June 19, 1978, John Wilson executed and delivered to Newark a promissory note for $10,500.00; and that on August 22, 1978, John and Georgia Wilson executed to Newark a deed of trust as security for the note to the extent of $7,556.75. Newark alleged that John Wilson had failed to make payments as promised and requested a judgment in rem against the Wilsons for $7,556.75, interest at the rate of 10% per annum from August 22, 1978, and reasonable attorney’s fees. C. CLAIM OF FmHA: John and Georgia Wilson obtained several loans from FmHA over a seven-year period. The initial loan was extended on January 9, 1974, and the most recent loan was made on February 24, 1978. On June 4, 1979, John Wilson filed a voluntary Chapter 7 bankruptcy petition; Georgia Wilson was not a party to this bankruptcy proceeding. When John Wilson filed his bankruptcy petition, FmHA was the holder of the following three unpaid promissory notes, each of which had been executed and delivered by John and Georgia Wilson: DATE OF NOTE AMOUNT INTEREST RATE Feb. 20,1976 $32,500.00 m% Feb. 16,1977 16,174.64 8% Feb. 16,1977 48,800.00 5% The first two notes were secured by two junior real estate mortgages against the property involved in the foreclosure action (as well as a security interest in the farming equipment and crops of John Wilson and Georgia Wilson). The third note for $48,800.00 was secured only by farming equipment and crops. In the fall of 1979, FmHA sought and obtained the abandonment by the bankruptcy trustee of the farming equipment in which FmHA had a security interest. The abandoned security items were sold at a public auction on February 12, 1980, and the net proceeds were applied to the Wilsons’ FmHA account. On the date of the chattel liquidation sale, FmHA was still the holder of the three unpaid promissory notes mentioned earlier: the $32,500.00 and $16,-174.64 notes, secured by junior real estate mortgages, and the $48,800.00 note secured only by perfected security interests in farming equipment and crops. Instead of requesting the application of the liquidation sale proceeds to the $48,-800.00 loan, which was secured only by the equipment which was sold, the FmHA county supervisor, who did not have custody of the Wilsons’ file and assumed all three notes to be secured by real estate mortgages, instructed the FmHA finance office to pay the oldest loan in full and thereafter to pay the balance against the note bearing the higher rate of interest. Consequently, the net sale proceeds were initially credited to retire the $32,500.00 note and pay down the $16,174.64 note. Realizing that the aforementioned allocation of the proceeds from the chattel sale was not in its best interest, FmHA, on January 23, 1981, reallocated the proceeds as follows: $19,573.37 as principal and $5,175.82 as interest to the note of February 20, 1976, and $12,855.57 as principal and $5,181.55 as interest to the note of February 17,1977. The effect of the reallocation was to increase the unpaid balance on the reamortized note of February 16,1977, from an unpaid balance of $3,323.49 as principal and interest at 8% per annum to an unpaid balance of $16,174.64 as principal and $6,519.03 as interest; and reduce the unpaid balance on the $48,800.00 note of February 17, 1977, from $26,354.67 as principal and $836.12 as interest to an unpaid balance of $9,130.73 as principal and $310.70 as interest. FmHA did not seek any relief for the February 17, 1977 indebtedness in the foreclosure proceeding, since this note was not secured by the real estate involved. D. CLAIM OF GEORGIA WILSON: Mrs. Wilson asserted that she was awarded possession of the real property in question under the divorce decree terminating her marriage to John Wilson; because of this, she maintained that the foreclosure action by the mortgagees, Federal, Newark and FmHA is subordinate to her claim and right to possession of the realty. Mrs. Wilson also challenged FmHA’s and Newark’s claims, asserting usury as an affirmative defense. The court rejected all of Mrs. Wilson’s claims. On appeal, Mrs. Wilson contends that the district court erred: 1) in sustaining FmHA’s reallocation of proceeds from the sale of certain collateral, 2) in excluding certain evidence concerning appellant’s financial situation, 3) in holding that the Farm Credit Act of 1971 preempted Arkansas’ usury laws, and 4) in denying appellant’s claim to her residence and one half of a soybean crop. I. Reallocation of Proceeds from Chattel Sale The district court found that FmHA was not precluded from reallocating the proceeds from the sale of the farm equipment after discovering the mistake in the initial application. Appellant argues that the court erred; she contends that a creditor cannot change the application of proceeds once an account has been credited. In support of her argument, appellant cites 60 AM JUR 2d PAYMENT § 86 (1972): “By mutual agreement, the debtor and creditor may change the application of a payment * * * but only if the rights of third parties are not prejudiced.” In the case at bar, however, there is no risk of prejudice to any third party. The Bank of Newark originally contested the reallocation, but the district court rejected its claim, and the bank abandoned the claim on appeal. A debtor desiring to avail himself of his right to direct the application of a payment must give the direction therefor either before or at the time of the payment; otherwise, the right is lost, because thereafter the money ceases to be his, and is no longer subject to his control. See St. Paul Fire & Marine Ins. Co. v. United States, 309 F.2d 22 (8th Cir.1962), cert. denied, 372 U.S. 936, 83 S.Ct. 883, 9 L.Ed.2d 767 (1963). Here, at the time the farm equipment was publicly auctioned, neither of the Wilsons requested that the FmHA appropriate the sale proceeds in any particular manner. A creditor can, absent clear direction otherwise, apply a payment from a debtor to any debt he chooses to maximize his security. Federal Deposit Ins. Corp. v. Freudenfeld, 492 F.Supp. 763, 770 (D.Wis.1980). While it is often said that a creditor lacks the freedom to allocate involuntary payments made by a debtor that he has on receipt of a voluntary, unallocated payment, it is the right of the creditor to apply sums received from the debtor or for his account in such fashion as to give the creditor the utmost advantage of such security as the creditor may possess. And in the absence of any other creditor who would be prejudiced by such an allocation, the courts must respect this right of a secured creditor. United States v. Pollack, 370 F.2d 79, 80 (2d Cir.1966). We are mindful of the fact that reallocation is improper in some instances. Where an application of payment has been made and the debtor notified, the debt is discharged. Only assent of the parties can justify reapplication after the creditor has applied the payment and notified the debtor. Matter of S & W Exporters, Inc., 16 B.R. 941 (Bkrtcy.N.Y.1982). The district court pointed out, however, that the factor distinguishing the above case from the instant case is notice to the debtor. Here, the Wilsons had no notice of the misapplication and reallocation until after this litigation was commenced. In addition, Arkansas law recognizes a presumption that proceeds from a foreclosure sale will be applied to the indebtedness secured by the property sold: When property is mortgaged to secure a debt, and afterwards this property is sold and the proceeds turned over to the mortgagee, the natural presumption is that both parties intend that the payment shall be applied on the mortgage debt, and the mortgagee has the right to apply the payment in that way, even though the mortgage debt be not due. Lyon v. Bass, 76 Ark. 534, 89 S.W. 849 (1905). Furthermore, section III G of the security agreement involving the chattel and crops securing the $48,800.00 note provides in part: Any payment made by Debtor may be applied on the note or any indebtedness to Secured Party secured hereby, in any order Secured party determines. (Emphasis added.) The mere entry of a credit to a particular account is not conclusive evidence of an irrevocable application of the payment in the absence of notice to the debtor. In re Stacy, Wolf Hat Co., 99 F.2d 793 (2d Cir. 1938); In re Automatic Equipment Mfg. Co., 103 F.Supp. 427 (D.Neb.1952). In the instant case the district court reasoned that the combination of the state law presumption, the creditor’s contractual right and the absence of notice to the debtor provide the legal basis for FmHA’s reallocation. We agree. II. Evidentiary Rulings Appellant contends that the court erred in excluding evidence regarding her financial situation. The trial court received appellant’s testimony that she had no job, assets, or other source of income since her divorce in 1979. The court sustained an objection to the line of questioning; appellant’s counsel then stated that he had completed his questioning on that point anyway. Appellant now argues that the testimony was relevant and crucial to the issue of reallocation. The trial court has broad discretion in determining the relevance of proposed evidence, United States v. Johnson, 516 F.2d 209, 214 (8th Cir.), cert. denied, 423 U.S. 859 [96 S.Ct. 112, 46 L.Ed.2d 85] (1975); United States v. Mitchell, 463 F.2d 187, 191 (8th Cir.1972), cert. denied, 410 U.S. 969 [93 S.Ct. 1449, 35 L.Ed.2d 705] (1973), and the admission or exclusion of such evidence will be overturned on appeal only if the court has abused its discretion. United States v. Kills Crow, 527 F.2d 158, 160 (8th Cir.1975) (per curiam). United States v. Williams, 545 F.2d 47, 50 (8th Cir.1976). Aside from a general conclusory allegation, appellant makes no claim that would support a finding of abuse of discretion. In light of the eases cited in the preceding section regarding reallocation, it is difficult to envision how appellant’s financial situation is of any consequence when pitted against the rights of a secured creditor. We find no abuse of discretion in the court’s evidentiary ruling. III. Usury In trial and post-trial proceedings, appellant offered six arguments to prove that the Federal Land Bank’s note and security were in violation of Arkansas’ usury provision, Article 19, Section 13 of the Arkansas Constitution. The court declined to make a factual determination of whether any of the items listed by appellant generated an interest rate in excess of Arkansas’ maximum rate of ten per cent per annum. Instead, the court based its decision on what we consider the pivotal issue: whether Congress intended to preempt the field of state usury laws when it enacted the Farm Credit Act of 1971, 12 U.S.C. § 2001 et seq. The court held that state usury provisions are inapplicable in credit transactions involving Federal Land Banks. Appellant contends that this holding was erroneous, asserting three grounds: 1) that the Federal Land Bank is not a federal government agency, 2) that Congress did not intend to preempt state usury law in passing 12 U.S.C. § 2015, and 3) that there is no conflict between the federal and state law in this situation. The Federal Land Banks were established pursuant to the Farm Credit Act, 12 U.S.C. § 2001, et seq. Federal Land Banks are appendages of the United States. This is clearly stated in 12 U.S.C. § 2011: “The Federal land banks established pursuant to section 4 of the Federal Farm Loan Act, as amended, shall continue as federally chartered instrumentalities of the United States.” Appellant’s second and third claims are equally lacking in merit. As a general rule, there is no question that, when Congress legislates in an area in which it has constitutional authority, the laws of the states in the same field, to the extent that they are inconsistent with the federal law, must yield. International Union of United Automobile Workers v. O’Brien, 339 U.S. 454 [70 S.Ct. 781, 94 L.Ed. 978] (1950); Hanson v. Union Pacific R.R. Co., 160 Neb. 669, 71 N.W.2d 526 (1955). Beatrice Production Credit Association v. Vieselmeyer, 376 F.Supp. 1391, 1392 (D.Neb. 1973). Federal Land Banks set interest rates pursuant to 12 U.S.C. § 2015, which provides: § 2015. Interest rates and other charges Loans made by a Federal land bank shall bear interest at a rate or rates, and on such terms and conditions, as may be determined by the board of directors of the bank from time to time, with the approval of the Farm Credit Administration. In setting rates and charges, it shall be the objective to provide the types of credit needed by eligible borrowers at the lowest reasonable costs on a sound business basis taking into account the cost of money to the bank, necessary reserve and expenses of the banks and Federal land bank associations, and providing services to stockholders and members. The loan documents may provide for the interest rate or rates to vary from time to time during the repayment period of the loan, in accordance with the rate or rates currently being charged by the bank. The statute plainly states that the directors of the bank will set interest rates with the approval of the Farm Credit Administration. There is no reference to state interest rate limits. IV. Property Claims Appellant submits that the court erred in denying her claim to possession of her residence unencumbered by the claims of all mortgagees. The court also denied her claim to one-half of the proceeds from the sale of a soybean crop. Appellant contends that she has dower rights in the residence and the soybeans. A. Soybeans The district court found that the state court, in dividing the Wilsons’ property, intended to award John Wilson all the assets from the farming operation, to the exclusion of any claims of Mrs. Wilson. The divorce decree states: “(8) The Court finds [John Wilson] shall be entitled to the proceeds of any settlement or recovery on pending claims or lawsuits concerning the farming operation.” Furthermore, it is settled Arkansas law that a husband may give a chattel mortgage in personalty without the consent of the wife; any dower interest of the wife is taken subject to the lien. Strang v. Strang, 258 Ark. 139, 148-49, 523 S.W.2d 887, 892 (1975). B. Residence The district court correctly denied appellant’s claim to the residence. Strang v. Strang, supra, is dispositive: “ * * * where property subject to division in a divorce case is mortgaged, each takes subject to the mortgage.” Id. at 148-49, 523 S.W.2d at 893. The court correctly denied appellant’s claim to the property. We find no error in the district court’s judgment and accordingly, we affirm. . The Honorable George Howard, Jr., United States District Court for the Eastern District of Arkansas. . State Bank’s claims were rejected by the district court; it is not a party to this appeal. . John and Georgia Wilson, the payors and mortgagors on the notes and mortgages involved, were formerly husband and wife. This marriage was terminated by an absolute divorce decree of the Independence County Chancery Court on October 26, 1979. . The real property involved in this action was abandoned pursuant to an order of the bankruptcy court dated January 9, 1980, after the bankruptcy court found: (T)here is no reasonable basis to believe there is any equity above liens and that said property * * * is abandoned and disclaimed as an asset in this case. . Federal Land Bank of St. Louis v. Wilson, 533 F.Supp. 301 (E.D.Ark.1982). . Section 13 provides: All contracts for a greater rate of interest than ten percent per annum shall be void, as to principal and interest. 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_fedlaw	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. Anton E. SPERLING, Appellant, v. UNITED STATES of America et al., Appellees. No. 74-1533. United States Court of Appeals, Third Circuit. Argued Jan. 24, 1975. Decided April 18, 1975. As Amended May 2, 1975. Joseph Meehan, Long Branch, N. J., for appellant. Jonathan L. Goldstein, U. S. Atty., John J. Barry, George E. Mittelholzer, Asst. U. S. Attys., Newark, N. J., for appellees. Before VAN DUSEN, GIBBONS and HUNTER, Circuit Judges. OPINION OF THE COURT GIBBONS, Circuit Judge. This appeal, involving a claim of job discrimination by the federal government, brings before us for the first time important questions concerning the proper construction and application of the civil remedy afforded to federal employees in the district courts by § 717(c) of the Equal Employment Opportunity Act of 1972, Pub.L.No.92—261, 86 Stat. 111, 42 U.S.C. § 2000e—16(c), amending Title VII of the Civil Rights Act of 1964, Pub.L.No.88—352, 78 Stat. 255, 42 U.S.C. § 2000e et seq. The Act mandates that all personnel actions affecting employment in the federal government are to be free from discrimination based on race, color, religion, sex, or national origin, and provides the Civil Service Commission with broad remedial authority to insure that this explicit mandate will be carried out. The Act designates the Civil Service Commission as the administrative agency to review the claims of aggrieved federal employees or applicants for federal employment. Recognizing that private sector employees dissatisfied with the fact-finding or the conciliation procedures of the Equal Employment Opportunity Commission (EEOC) in Title VII actions are authorized to press their claims in the federal district courts, 42 U.S.C. § 2000e—5(f)-(k), the Act also provides a civil remedy in the district courts to federal employees dissatisfied with Civil Service Commission (CSC) review of their claims. Appellant Anton E. Sperling, a career employee in federal service filed suit in the district court pursuant to § 717(c). He appeals here from an order of the district court which granted the government’s motion for summary judgment. Sperling had been employed as a civilian writer by the United States Army Electronics Command at Fort Monmouth, New Jersey (ECOM) since 1957. At ECOM, Sperling served as Executive Vice-President of Lodge 1904 of the American Federation of Government Employees (AFL-CIO), and as the union’s grievance representative in Equal Employment Opportunity proceedings at the Fort. In that capacity, Sperling, a white man, represented a black ECOM employee in a series of discrimination grievance proceedings from 1965 through 1967. Sperling claims that he was denied a promotion to a GS — 13 position in November, 1968, in retaliation for his successful representation, as union grievance delegate, of the black ECOM employee. Sperling pressed his own claim through the administrative process by filing a series of five complaints between March, 1968 and October, 1969, culminating in an adverse decision by the Board of Appeals and Review of the United States Civil Service Commission on July 15, 1972. On August 15, 1972 he filed suit in district court. Sperling’s amended complaint joins as defendants the Secretary of the Army, civilian and military personnel employed by the Department of the Army, the Commissioners of the United States Civil Service Commission, and the United States. The principal relief sought is a retroactive, promotion to a GS — 13 employment level together with back pay, and all other attendant rights and benefits for that level from December, 1968. Sperling also seeks an award of counsel fees. Jurisdiction before the district court was alleged pursuant to the Federal question statute, 28 U.S.C. § 1331; the Civil Rights Act, 28 U.S.C. § 1343; the Tucker Act, 28 U.S.C. § 1346(a)(2); the Mandamus Statute, 28 U.S.C. § 1361; the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202; the Administrative Procedure Act, 5 U.S.C. § 702; the Back Pay Act, 5 U.S.C. § 5596; and the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e—16. On August 20, 1973, the government moved to dismiss Sperling’s complaint for failure to state a claim upon which relief could be granted, and, alternatively, moved for summary judgment. Sper-ling opposed the government’s motions, and on October 16, 1973, filed a cross-motion for summary judgment. Sper-ling’s position, both before the district court and on appeal, is that the administrative record leaves no fact issue as to a showing of the government’s discrimination against him, and hence entitlement to relief. If, however, this court concludes that there is a fact issue as to discrimination, Sperling’s position is that he is entitled to a de novo hearing in the district court on that issue. In the alternative, he is agreeable to having the determination made on the administrative agency record without an additional evi-dentiary hearing. The government’s position before the district court, and on appeal, is (1) that the decision of the Board of Appeals of the Civil Service Commission is final; or (2) that if there is any judicial review it is limited to a determination that administrative due process had been afforded; or (3) that if any factual review is permitted it is limited to determining whether substantial evidence in the administrative record as a whole supports the Commission’s findings. The district court concluded that it had jurisdiction under the Tucker Act, but that the scope of judicial review available under that jurisdictional grant was limited to determining whether substantial evidence supported the Commission’s findings. Alternatively, it held that if the suit was cognizable under § 717(c) of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e—16(c), which the government disputed, its scope of review was limited to determining whether administrative due process was afforded by the agency. THE 1972 ACT The Equal Employment Opportunity Act of 1972, Pub.L.No.92-261, extensively revised the employment discrimination provisions of Title VII of the Civil Rights Act of 1964. The 1972 Act added a new § 717 to Title VII making it clear that the federal government is obligated to insure that all personnel actions be free from discrimination based on race, color, religion, sex or national origin, § 717(a); vesting in the United States Civil Service Commission the authority to enforce these prohibitions by appropriate remedies and through its rule-making power, § 717(b); and affording to persons aggrieved, a civil remedy in the district courts, § 717(c). The interrelationship of § 717 with existing remedies for public and private employment discrimination, the cross-reference in § 717(d) to other provisions in Title VII, and the legislative compromises in Congress which resulted in the present language, coincide to produce an unusually difficult complex of problems in statutory interpretation An appropriate starting point is the framework of Title VII of the Civil Rights Act of 1964. As enacted, Title VII did not extend to employment in the federal governmeht, but rather afforded a civil remedy in the district courts to victims of discrimination in the private sector once conciliation of their claims had been sought with the Equal Employment Opportunity Commission (EEOC). However, the EEOC was given no authority to seek judicial enforcement of these conciliation agreements. Absent some means of enforcement, the EEOC, in the eyes of many members of Congress, failed even to come close to achieving the Act’s goal of eliminating employment discrimination in the private sector. Those Congressmen advocating a strengthened EEOC pressed for a cease and desist enforcement authority to be vested in the Commission. However, out of compromise, the 1972 Act amending Title VII authorized only judicial enforcement of EEOC orders, while preserving the existing civil remedy for an aggrieved private sector'employee in the district court. Congress, in considering the amendment of Title VII, was also concerned with discrimination in public employment. Although Title VII of the 1964 Act had not been extended to federal employees, a number of other statutory provisions, Executive Orders, and Civil Service Commission regulations, all of which were in force by 1972, had already prohibited discrimination in such employment on account of race, color, religion, sex or national origin. There was, moreover, a longstanding back pay remedy available to federal workers. Despite these provisions, the House Committee charged with the responsibility of preparing a revision of Title VII concluded that progress in eliminating discrimination in federal employment had been “far from satisfactory.” It attributed such lack of progress to structural defects in the procedures which the government regulations established for processing complaints, and to a lack of confidence on the part of federal employees in the performance of the Civil Service Commission. The principal defect in the prior system was that the very same federal agency charged with a discriminatory act conducted its own conciliation, investigation and until recently, its own adjudication of the claim. Appeals from the final decision of an agency to the Civil Service Commission’s Board of Appeals and Review, the House Report concluded, rarely resulted in a reversal of an ageney decision. The House Committee on Education and Labor proposed, in H.R. 1746, to eliminate these deficiencies by vesting enforcement of the prohibition against discrimination in federal employment in the EEOC rather than in the Civil Service Commission, and by affording federal employees the same civil remedies which were afforded to employees in the private sector. While the House was considering H.R. 1746, the Senate Committee on Labor and Public Welfare was considering S. 2515, a bill addressed to the same issues. The Senate Report accompanying that bill, while recognizing that progress had been less than satisfactory, was more sanguine about, what might be expected from the Civil Service Commission, and proposed to continue the antidiscrim-ination responsibility vested in the Commission by Executive Order 11478. Despite their differences, however, the Senate Committee on Labor and Public Welfare, and the House Committee on Education and Labor were of like mind about the need for making a civil remedy in the courts available to federal employees who were dissatisfied with administrative review of their claims. The provisions of § 717 with respect to the civil remedy as adopted in the final House and Senate versions are set forth in the margin. In contrast to the conciliation provisions of the 1964 private civil remedy in Title VII, the House version would have permitted suits in the district court within thirty days of notice of an agency’s disposition of claim. Because the House bill would thus have completely bypassed the appeal remedy before the Civil Service Commission’s Board of Appeals and Review, the civil remedy in the district court, of necessity, was the same trial de novo as in a private employment discrimination case. However, because the Senate Committee proposed to preserve the antidiscrimination enforcement authority of the Civil Service Commission, the Senate’s version of § 717(c) made reference to the appeal remedy available before the Commission. The Senate Committee report explains what was intended to be accomplished: “The bill (section 717(c)) enables the aggrieved Federal employee (or applicant for employment) to file an action in the appropriate U.S. district court after either a final order by his agency or a final order of the Civil Service Commission or an appeal from an agency decision or order in any personnel action in which the issue of discrimination on the basis of race, color, religion, sex or national origin has been raised by the aggrieved person. It is intended that the employee have the option to go to the appropriate district court or the District Court for the District of Columbia after either the final decision 'within his agency on his appeal from the personnel action complained of or after an appropriate appeal to the Civil Service Commission or after the elapse of 180 days from the filing of the initial complaint or appeal with the Civil Service Commission.” (emphasis supplied) Thus in order to meet the substantial objections to the Civil Service Commission remedy, the Senate proposed to give public sector litigants the option of bypassing the Commission and seeking a judicial remedy at the outset. At the same time, those federal employees who had confidence in the Commission could appeal to it, but they would not thereby lose their right to an action in the district court if the Commission’s decision was unsatisfactory. The Conference Committee adopted the Senate’s approach, and § 717(c) as enacted, is identical in language to S. 2515 to which the Senate Report, quoted above, refers. The Senate Report would appear, then, to be the authoritative expression of Congressional intent. As will be developed hereafter, the option as to remedies which § 717(c) plainly affords, significantly bears upon the scope of review issues considered by the district court. RETROACTIVITY OF § 717 Because the acts of discrimination complained of by Sperling took place before March 24, 1972, the effective date of the 1972 amendments, the government disputes the applicability of § 717 to this case. Sperling contends that because the statute is procedural and remedial in nature, it should be given retroactive application. Thus, since the administrative proceeding in his case was still pending on the effective date of the amendments, and was not concluded until July 15, 1972, Sperling urges that he is entitled to the civil remedy that § 717(c) affords. The question of the retroactivity of § 717 has already generated extensive litigation. The Second, Fourth and District of Columbia Circuits have given the Act retroactive application. The Sixth Circuit, reasoning that waivers of sovereign immunity should be strictly construed, has held that it should have prospective application only. However, long before the enactment of § 717, the Third Circuit had concluded that other jurisdictional grants waived the federal government’s sovereign immunity as a bar to the review of federal employment decisions. A back pay award was available against the federal government before the enactment of § 717. See Back Pay Act of 1966, 5 U.S.C. § 5596. That statute as well as several of its predecessors which were to like effect have been held to apply retroactively. We do not find the Sixth Circuit’s sovereign immunity rationale for prospective application of § 717 persuasive in light of the longstanding waiver of immunity in the federal employment context. Whatever little may be said in support of a rule of strict construction of waivers of sovereign immunity in new fields, nothing can be said in favor of strict construction of a waiver in a field where it has long existed. No other reason has been suggested for a prospective application of § 717, and we find Judge Butzner’s analysis in the Fourth Circuit’s decision, persuasive. He points to the legislative history of the statute, which indicates that Congress did not need to create new substantive rights for federal employees when it enacted § 717. Rather, Judge Butzner reasons that this provision was designed only to make judicial enforcement of longstanding federal substantive policies against employment discrimination more certain and more effective than in the past. Section 717, he concludes, is a classic example of a procedural or remedial statute applicable to cases pending at the time of enactment. We agree with Judge Butzner and with those circuits which have held that § 717 applies to actions where an administrative claim was pending at the time of its enactment. Literally the statute applies to the case sub judice, since Sperling’s suit was filed within thirty days of his receipt of notice of the Commission’s action. Being procedural and remedial in nature, the Act governs the claims disposed of by that administrative decision. SCOPE OF JUDICIAL REVIEW The district court, while expressing doubt as to the applicability of § 717, concluded in the alternative that judicial review under the Act was limited to determining whether or not administrative due process had been afforded. Neither the text of the statute nor any clues which may be divined from its legislative history support such a conclusion. The proper role of the district court in a § 717 case has, like the retroactivity issue, produced abundant litigation. None of the cases recommend themselves to us as a completely satisfactory explanation of the district court’s role in § 717 cases. Many proceed on the assumption that no real change in the role of the judiciary was intended. But that approach simply belies the plain language of the statute. Section 717(d) provides: “The provisions of section 706(f) through (k), as applicable, shall govern civil actions brought hereunder.” Section 706(f) through (k), 42 U.S.C. § 2000e—5(f)—(k), set forth the remedies available in the district court to private litigants in nonfederal employment. The Supreme Court has held that actions by private litigants under § 706 are considered de novo in the district court even if they follow EEOC proceedings. Indeed the language of § 706 hardly admits of any other interpretation. Thus § 706(f) provides: “(4) It shall be the duty of the chief judge of the district to designate a judge in such district to hear and determine the case. (5) It shall be the duty of the judge designated... to assign the case for hearing at the earliest practicable date....” (emphasis supplied) and § 706(g) provides: “If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice... [it] may enjoin the respondent....” (emphasis supplied) Certainly nothing in § 706 suggests any role for the district court other than that of making an independent factual determination of the alleged fact of employment discrimination. There is no restrictive language such as is found in 28 U.S.C. § 2347(a) dealing with the review of final administrative agency orders, or in 5 U.S.C. § 702 et seq. dealing with district court review of agency adjudications. If the district court’s role in § 717(c) federal employment discrimination cases is other than de novo, the limitation must be found elsewhere than in the remedy provisions of § 706. Section 717 itself is the only other provision to which we have been referred that purportedly limits the district court’s role. Although a number of district courts, and at least one circuit court, claim to have found a limitation of the district court’s § 706 jurisdiction in § 717 (or have merely assumed it) we have great difficulty with this approach. Our hesitancy in accepting that analysis is attributable to the fact that in some § 717(c) cases the trial in the district court must be de novo. Section 717(c) provides that if a discrimination charge is filed with the employing agency by a federal employee, and the agency has not made a final disposition of the complaint within 180 days, the employee may then file suit in the district court. Obviously in such a suit, one would have to make a record in the district court upon which the court could then adduce the facts concerning the claim. From this class of § 717(e) cases we move to the situation where the employing agency has already processed and rejected a discrimination claim. Here, the plain language of § 717(c) itself, as well as the Senate Report’s discussion of that provision, make clear that the employee has the option of filing suit in the district court or appealing to the Civil Service Commission. If suit has been filed the record made by the employing agency would, at a minimum, be evidentiary in the district court. In some cases summary judgment, pursuant to Rule 56 Fed.R.Civ.P., would undoubtedly be appropriate. If the aggrieved federal employee selects the second option, appeals to the Civil Service Commission, and then seeks a private civil remedy, the only statutory reference to the district court’s role is the cross-reference quoted above in § 717(d) to the provisions in § 706(f) through (k) “as applicable.” Those courts which have concluded that a trial de novo is not available in a case where an appeal has been taken to the Commission have found room for. that construction in the use of the words “as applicable.” It is difficult to comprehend how those words can support that construction. Such a reading would seem to imply that there are some cases where all of § 706, including even the jurisdictional grant in § 706(f)(3), might not be applicable. Yet the same courts which have said that trial de novo is not available where an agency record has been made and appeal taken to the Commission, have assumed jurisdiction under § 706(f)(3). There is no language in § 706(f) which can be relied upon to exclude a trial de novo in any case. If the “as applicable” language were intended to exclude a trial de novo in all cases where an agency record was made, it would have to be so because the § 706 civil action remedy was somehow inapplicable, and therefore judicial review dependent upon some other remedy and statutory grant of jurisdiction. More significantly, the inclusion of the words “as applicable” in § 717(d) could not have had any reference to the existence of a Civil Service Commission appeal procedure, since the “as applicable” language was included in the Senate bill S. 2515 long before the decision was made in the Senate Committee to amend the original version of the bill and provide for a CSC role in discrimination. Neither under Title VII as enacted in 1964, nor under any version of the 1972 proposed amendments was it ever contemplated that action by the EEOC would deprive a private sector litigant of a trial de novo. If the words “as applicable” were not so intended when the bill referred to the EEOC, there is no reason to conclude that they took on a new meaning when the CSC was substituted for the EEOC with respect to federal employees. With the exception of the first class of § 717(c) cases discussed above, in which a federal employing agency failed to act on a complaint for 180 days and thereby necessitated judicial fact-finding in a de novo proceeding in the district court, a construction limiting the district court’s role to review of the administrative record would leave the law concerning the judicial review of federal agency employment decisions exactly where it was before a § 717 was enacted, at least in circuits such as ours, which did not recognize a sovereign immunity bar to judicial review. In the other actions referable to the district court pursuant to § 717(c) there would be at least a record of fact-finding made by the employing agency, and in the situation where an appeal was taken to the CSC, the record made by the Board of Appeal and Review as well. It takes we think, a strained reading of § 717(c) to suggest that in three of the four situations in which a suit is explicitly permitted, Congress intended no advance beyond the existing law. The leading case limiting aggrieved public employees to district court review based on the administrative record in a § 717(c) suit, rather than granting a trial de novo is Judge Gesell’s decision in Hackley v. Johnson. This opinion, oft-quoted as a result of the concentration of § 717(c) litigation in the District of Columbia Circuit, concludes that it was not the congressional intent to provide a de novo trial in all such proceedings. In so holding, Haekley misreads the Act’s legislative history. The House was the first branch of Congress to move on its version of the Act. On June 21, 1971, H.R. 1746, a bill entitled the “Equal Employment Opportunities Enforcement Act of 1971” was reported out of the House Committee on Education and Labor without amendment and with a recommendation for its passage. As we have already noted, the House Report was highly critical of the Civil Service Commission’s performance in eliminating discrimination in federal employment, and sought to correct this deficiency by transferring its enforcement functions to the EEOC. And as already noted, the bill extended Title VII for the first time to federal employees by providing for a private civil remedy in the district courts. However, the principal feature of H.R. 1746 was its provision for a judicially enforceable cease and desist authority to be vested in the EEOC. It was this latter provision which sparked the most controversy when the bill was brought to the House floor for debate on September 15, 1971. Opponents of the committee bill argued that the EEOC’s cease and desist authority denied due process safeguards to private employers. They urged instead House passage of H.R. 9247 ás an amendment in the nature of a substitute to H.R. 1746. The “Erlenborn substitute,” as it was called, proposed transferring enforcement powers to the courts rather than vesting the EEOC with a cease and desist power. Following a second day of debate on September 16, 1971, the House voted 202—197 to consider H.R. 1746 as amended by the Er-lenborn substitute, and finally passed the bill in that amended form by a vote of 285 to 108. Two days earlier, the Senate version of the bill, S. 2515, was introduced on the floor of the Senate in behalf of its cosponsors, Senators Williams of New Jersey and Kennedy of Massachusetts, and then referred to the Senate’s Committee on Labor and Public Welfare for study. Like the original version of the House bill, S. 2515 sought to provide the EEOC with a method of enforcing the rights of private sector employees who had been subjected to unlawful employment practices. And like the House’s Committee bill, the key feature of the Senate version was a cease and desist authority vested in the EEOC. The bill, as referrd to committee, extended Title VII coverage to federal employees with enforcement authority in the EEOC, and provided for a private civil action in the district courts for aggrieved employees. On October 28, 1971 the Senate Committee on Labor and Public Welfare reported out S. 2515 favorably, and recommended its passage subject to an amendment which extensively altered the § 717 proposal. At the time the bill had been originally introduced to the Senate, Senator Kennedy as one of its cosponsors, had expressed concern over the bill’s transfer of all equal employment opportunity functions from the Civil Service Commission to the EEOC. He opposed the transfer on two grounds: that the EEOC was already overworked in processing private sector claims, and that it was unwise to place the nation’s entire equal opportunity effort in a single agency’s hands. As a result, an amended version of § 717 was added in committee at the behest of the bipartisan efforts of Senator Kennedy and Senators Cranston of California and Dominick of Colorado. Both the Report, as it relates to a continuing Civil Service Commission role, and the Senate committee version of § 717(c), have already been set out in the margin. Because the Senate was preoccupied with other pressing legislative matters, however, debate on the floor was delayed until the new year. On January 18, 1972, the Senate Committee’s version of S. 2515 was brought to the floor. It will be recalled that the House had already voted against a cease and desist authority in the EEOC in approving their version of the bill. The Senate after four weeks of lengthy debate, followed suit and adopted the so-called “Dominick amendment” which also substituted EEOC enforcement through the courts. However, opponents of the bill, led by Senator Allen of Alabama, continued to filibuster against its passage, even after the Senate’s approval of the Dominick amendment. On February 22, 1972, following two unsuccessful attempts at cloture, two-thirds of the Senate voted to limit further debate. Before finally voting on S. 2515, the bill’s sponsors attempted to provide their colleagues with an analysis of its salient featurés. It is at this point, that the legislative history presents some difficulties. Senator Williams, one of the bill’s original sponsors, and its manager on the floor provided a summary of § 717(c): “Finally, written expressly into the law is a provision enabling an aggrieved Federal employee to file an action in U. S. District Court for a review of the administrative proceeding record after a final order by his agency or by the Civil Service Commission, if he is dissatisfied with that decision. Previously, there have been unrealistically high barriers which prevented or discouraged a Federal employee from taking a case to court. This will no longer be the case. There is no reason why a Federal employee should not have the same private right of action enjoyed by individuals in the private sector, and I believe that the committee has acted wisely in this regard.” In support of his statement, Senator Williams had a more lengthy analysis printed in the Record. This analysis was taken almost verbatim from the Senate Committee Report. There were however, some alterations of language which are significant for our purposes. We have set out the Williams analysis side-by-side with the Committee analysis in the margin to indicate these alterations, placing in brackets, and italicizing that wording in the Williams analysis which differs from the Committee’s version. It would appear that the subtle change in nuance, quite clearly reflected in Senator Williams’ alterations, was intended to emphasize the view that § 717(c) was to provide for only administrative review in the district court. Although deference is due to the Williams analysis in view of his role as cosponsor and floor manager of the bill, we believe the analysis in the Senate Report representing the consensus of the committee charged with studying the bill, more accurately reflects the congressional intent. That the Senate Report should be regarded as explicative of congressional intent rather than the Williams view, is further demonstrated by Senator Cran-ston’s insertion into the Record of the Committee Report’s discussion which we have already quoted in the margin alongside the Williams analysis. Senator Cranston, it will be recalled, had been instrumental in amending § 717 while S. 2515 was in committee, and it was the committee’s amendment of § 717 which was the version debated on the floor of the Senate. Following the conclusion of debate, the Senate passed the bill by a vote of 73 to 16. Our reading of the legislative history leads us to the conclusion that it was Congress’ intent to provide an aggrieved federal employee with as full a panoply of procedural remedies in the district court as those afforded a private sector litigant. Judge Gesell’s reliance in Haekley on Senator Williams’ statement and analysis of the bill was misplaced, and his conclusion that a trial de novo is not mandated was erroneous. We hold therefore that the statutory language of the Act, as well as its legislative history, indicates a right to a trial de novo in the district court when suit is brought by an aggrieved federal employee pursuant to § 717(c). THE PLAINTIFF’S BURDEN Having concluded that there is no statutory warrant for assigning the district court a different role in a § 717 case on the basis of either the absence or presence of an agency record, and also having concluded that the Act mandates a trial de novo in all cases, we next consider the function of the agency record in the district court proceeding. As we have discussed earlier, in most instances a discrimination complaint will have already have been the subject of agency review before the aggrieved employee brings suit under § 717(c). In the district court proceeding, as in any civil action, the employee has the burden of proving his allegations of agency discrimination. In this regard the agency record will have evidentiary value. It may well establish that there is no genuine fact issue as to the absence of discrimination. In such a case summary judgment is appropriate. If, however, there is a genuine fact issue, that must be resolved by the district court pursuant to the Federal Rules of Civil Procedure. However, the Federal Rules do not specifically instruct the district court as to the proper standard of review to be applied to the agency’s fact-finding record, nor does the language of § 717(c) itself enlighten us in this regard. Among those decisions which have considered the appropriate standard of judicial review under § 717(c), the two opinions which most thoughtfully address the problem in the context of an agency record which has rejected a discrimination claim, are those of Judge Ge-sell in Hackley v. Johnson, and Judge Caleb Wright in Guilday v. Department of Justice. Both opinions reject the position that § 717(c) represented no advance beyond the previously existing law. Both reject the contention that the judicial role is limited to “substantial evidence” review in those cases where an agency record exists. They reject, a fortiori, the position of the district court in this case that judicial review in a § 717 case is narrower still, being an inquiry limited solely to a consideration of administrative due process. In Hackley, Judge Gesell declined to accept the plaintiff’s position that in every § 717(c) case a district court eviden-tiary hearing was required, and dismissed as well the government’s position that the district court was limited to substantial evidence review. “The district court is required by the Act to examine the administrative record with utmost care. If it determines that an absence of discrimination is affirmatively established by the clear weight of the evidence in the record, no new trial is required. If this exácting standard is not met, the Court shall, in its discretion, as appropriate remand, take testimony to supplement the administrative record, or grant the plaintiff relief on the administrative record.” (emphasis supplied). Judge Gesell’s approach requires that the district court examine the administrative record and determine if on that record, by the clear weight of the evidence, the government is entitled to a judgment. If not, he suggests, the district court may in its discretion either remand or take further testimony. The more attractive course to hard-pressed district court judges seems obvious. But remand to whom? If a § 717(c) suit is commenced after an adverse employing agency decision, one would suppose that the remand would properly be to the employing agency. If the suit is commenced after a decision by the Civil Service Commission’s Board of Appeals and Review, a remand to it would require a second remand by the Board to the employing agency for the purpose of further fact finding. Entirely aside from the absence of any statutory authority for a district court to direct either a single or a double remand to an executive department agency for the purpose of taking testimony, there is the underlying issue of credibility. The motivational criteria that may color agency decisions on employment or promotion cannot, even in the computer age, be quantified, and motivation is what § 717 is all about. A remand for a decision on motivation, which shields the ultimate trier of fact from a face to face confrontation with those witnesses who were exposed to the events, does not seem consistent with the rather clear policy decision implicit in the enactment of § 717. That policy decision, it seems to us, was that the executive branch agencies would no longer be the judges of their own motivation. Judge Wright’s opinion in Guilday v. Department of Justice, also rejects both the plaintiff’s position that trial de novo is always available, and the government’s position that the court’s role is limited to substantial evidence review. While relying on Hackley, Judge Wright also found authority in Rule 56(c), Fed.R. Civ.P. for rejecting plaintiff’s claim to an evidentiary hearing: “As a matter of course, the Government — and often the plaintiff — moves for summary judgment based on the administrative record. The court must decide, after reviewing the record, whether there is a genuine issue as to any material fact and whether that movant is entitled to a judgment as a matter of law. Rule 56(c), Federal Rules of Civil Procedure. Based on this review, the Court either remands for further administrative proceedings, allows the case to go to trial — with the administrative record in evidence —, or grants or denies relief on the administrative record.” (footnote omitted) Judge Wright then proceeded to consider by what standard a district court should review the administrative record, and held that it would require that the “absence of discrimination be established by the preponderance of evidence in the administrative record.” There is no doubt that in appropriate cases summary judgment may be correct. But we do not think that Rule 56(c) can support the kind of hybrid judicial review envisaged by Judge Wright. Our difficulty lies in applying his proposed standard of review. Consider, hypothetically, a discrimination complaint which turns on credibility. If the agency’s hearing examiner makes credibility judgments against the complaining employee, will the district court then defer to those judgments or instead attempt to reach an independent judgment on the basis of a transcript without ever having the benefit of an opportunity to observe the demeanor of the complainant and other witnesses? If the Board of Appeals and Review of the Civil Service Commission, which also reviews on the agency record, has affirmed the hearing examiner’s decision, what deference will be given to the Board’s decision by the district court in applying the preponderance test? Finally, since in the administrative grievance proceedings the burden presumably is on the employee to establish his grievance, what justification is there, when the matter reaches court, for reviewing the record to see if the government has disproved the grievance by a preponderance of the evidence? We are well aware that a substantial motivation of those courts which have held that federal employee discrimination claims will be reviewed on the agency record by a substantial evidence standard has been their perception of the deluvian consequences of such lawsuits in the federal judicial system, and of the waste involved in affording both administrative and judicial remedies. Those concerns, while real, are matters properly within the sphere of the legislature. In any event, the federal courts have not been put out of business by Title VII lawsuits from the private sector. Those suits, too, in many cases duplicate grievance-arbitration remedies analogous to the grievance remedies established by federal regulation for government employees. Though the burden imposed on the federal courts by § 717 will be a heavy one, we will, one suspects, remain open for business. We thus conclude that in the de novo proceedings in the district court, the agency record can be reviewed on a motion for summary judgment by the standard generally applicable under Rule 56, Fed.R.Civ.P.; that is the existence of any genuine issue of fact as to employment discrimination. If such a motion is not granted, the agency record is admissible in evidence at trial when appropriate under the applicable Federal Rules of Civil Procedure Question: Did the interpretation of federal statute by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_adminaction_is	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. KLEPPE, SECRETARY OF THE INTERIOR v. DELTA MINING, INC., et al. No. 74-521. Argued October 6, 1975 Decided January 26, 1976 Burger, C. J., delivered the opinion of the Court, in which all Members joined except Stevens, J., who took no part in .the consideration or decision of the case. Deputy Solicitor General Randolph argued the cause for petitioner. With him on the brief were Solicitor General Bork, Acting Assistant Attorney General Jaffe, Harriet S. Shapiro, Leonard Schaitman, and Michael Kimmel. Fred Blackwell argued the cause and filed a brief for respondents. John L. Kilcullen filed a reply brief for respondent Mears et al. Jospeh A. Yablonski, Daniel B. Edelman, and Paul R. Hoeber filed a brief for the United Mine Workers of America as amicus curiae urging reversal. Guy Farmer and William A. Gershuny filed a brief for the Bituminous Coal Operators’ Assn., Inc., as amicus curiae urging affirmance. Mr. Chief Justice Burger delivered the opinion of the Court. We granted certiorari in this case and consolidated it for argument with No. 73-2066, National Independent Coal Operators’ Assn. v. Kleppe, ante, p. 388, decided today, to resolve an apparent conflict between the two Circuits. In 1971 and January 1972 inspectors from the Bureau of Mines entered and inspected the coal mines owned respectively by Delta Mining, Inc., G. M. W. Coal Co., Inc., and a partnership of Edward Mears and others known as the M. Y. Coal Co. The inspectors detected a number of violations of the Federal Coal Mine Health and Safety Act of 1969, 83 Stat. 742, 30 U. S. C. § 801 et seg., or regulations and served each mine operator with notices of the infractions. Each notice stated that the violations were to be abated by a specified date. The inspectors returned on that date and furnished the mine operators with a notice that the violations had been abated. The local office of the Bureau of Mines sent copies of the notice of violation and abatement to the Bureau’s central office. There an assessment officer reviewed the notices and sent proposed penalty assessment orders to the mine operators. The orders contained a list of the violations, the dates of their occurrence, the regulations violated, and the amounts of the proposed penalties. The proposed order of assessment to Delta was issued on April 11, 1972. It referred to six violations with civil penalties for each ranging from $30 to $90 for a total of $375. In December 1971, and January and May 1972, G. M. W. was issued proposed assessment orders for violations occurring from May to December 1971. Ten of the violations were assessed civil penalties from $25 to $100, totaling $525. G. M. W. also received an imminent-danger withdrawal order on November 24, 1971, identified as a fire hazard from loose coal in excess of three feet deep and was assessed a fine of $5,000. For violations occurring in 1971 and 1972 Mears received assessments with fines for 16 violations ranging from $25 to $100 and a 17th at $200 for a total of $1,000. It also received a withdrawal order for failure to abate a violation of the respirable-dust-concentration standard with a fine of $1,000. Each of the operators protested the proposed assessments. Delta argued, among other things, that it was a newly opened, small mine and the fines would affect its ability to stay in business. G. M. W. protested that the loose coal was wet and therefore not a fire hazard. Without explanation as to how, if at all, the information in the protest letters was considered, the assessment officer reissued the proposed orders. One of G. M. W.’s penalties was reduced from $100 to $50. The operators were again informed that they had 15 working days from the receipt of the reissued proposed order “to accept the amended or reissued order, whereupon it shall become the final assessment order of the Secretary, or to request formal adjudication with opportunity for hearing.” None of the operators requested formal adjudication. The mine operators did not pay the assessments. The Secretary filed complaints against each of them in October and November 1972, seeking enforcement of the assessments. Attached to the complaints were the proposed orders of assessment and preprinted forms reciting that the assessment officer found in fact that the violations had occurred. These forms were dated several months after the proposed assessment orders. The mine operators each answered, denying liability. While the cases were awaiting trial, the United States District Court for the District of Columbia enjoined the Secretary from utilizing or enforcing the assessment procedures of 30 CFR pt. 100 (1972), concluding that § 109 (a)(3) of the Federal Coal Mine Health and Safety Act, 30 U. S. C. § 819 (a) (3), requires the Secretary to prepare a decision incorporating findings of fact in all penalty assessment determinations, whether or not a hearing is requested. National Independent Coal Operators’ Assn. v. Morton, 357 F. Supp. 509 (1973). On the basis of that decision G. M. W. moved for summary judgment, contending that the Secretary’s assessment orders were unenforceable since there had been no “decision incorporating . . . findings of fact.” The District Court for the Western District of Pennsylvania, relying on the National Independent decision, decided that the penalty assessments sought to be enforced by the Secretary did not meet the requirements of § 109 (a) (3) of the Act because they were not supported by adequate findings of fact. The court entered judgment in favor of the respondent mine operators in all three cases. While the cases were pending on appeal, the Court of Appeals for the District of Columbia Circuit reversed the decisions on which the trial court here relied. National Independent Coal Operators’ Assn. v. Morton, 161 U. S. App. D. C. 68, 494 F. 2d 987 (1974). The Court of Appeals for the Third Circuit, however, declined to follow the District of Columbia Circuit decision, and held that § 109 (a) (3) compels the Secretary to support each assessment order with express findings of fact concerning the violation and the amount of the penalty, without regard to whether or not the operator requests a hearing. 495 F. 2d 38 (1974). We have today affirmed National Independent, which holding governs this case. Two remaining issues raised by the Third Circuit holding require discussion. The Court of Appeals first distinguished the District of Columbia Circuit holding on the ground that the “operators’ failure to request a hearing in no way suggests that the appropriateness of the penalty amount went undisputed. In each instance, the operators lodged protests. . . .” 495 F. 2d, at 44. This overlooks the fact that while a protest does not necessarily trigger administrative review, a request for a hearing does. Here the party against whom a penalty is assessed has deliberately forgone the opportunity for a full, public, administrative hearing from which findings of fact can be made. Here, too, the amount of the penalty is subject to de novo review in the district court whether or not a hearing was held. The Court of Appeals next distinguished the holding of the District of Columbia Circuit on the ground that the proposed assessment orders at issue “contained no 'information’ other than pro forma recitations that the six criteria [of § 109 (a)(1) of the Act] had been considered.” (Emphasis in original.) Ibid. The court was concerned that the proposed assessment orders were on “preprinted forms which recited, in some instances, that the six factors set out in the statute had been considered” and that the final orders of the Secretary did not mention the six criteria but “merely set forth the Secretary’s finding that a violation 'did, in fact, occur.’ ” Id., at 40. The court then held that “each final decision of the Secretary must be accompanied by findings of fact, concerning both the fact of violation and the magnitude of the penalty.” Id., at 44. The court noted the general proposition that judicial “review of a final administrative determination ... is rendered practically impossible, or at least vastly more difficult, where the agency's decision is not accompanied by express findings.” Id., at 42. We agree with the general proposition when judicial review is based on a substantial-evidence test. Here, however, if an operator wishes to contest the amount of the penalty without a hearing, that can be done by refusing to pay the penalty, thus invoking the right to a de novo trial in the district court, with a jury if desired. When a violation is noticed the operator- is informed as to the details of the nature and location of that violation; the administrative procedures of § 105 of the Act, 30 U. S. C. § 815, with provision for a public hearing on request, come into play and appellate review is available. In light of our holding in National Independent Coal Operators’ Assn. v. Kleppe, ante, p. 388, the judgment of the Court of Appeals for the Third Circuit is reversed, and the case is remanded for further proceedings consistent herewith. Reversed and remanded. Mr. Justice Stevens took no part in the consideration or decision of this case. The operators protest that these notices are not part of the record below. Since the issue before this Court is the validity of the regulations, not whether the regulations were properly complied with, for purposes of. this ease we will assume the notices were properly served. We note, however, that the mine operators do not contend that they were not given ample notice of the violations charged by the mine inspectors. The Third Circuit found support for its concern in a Comptroller General’s report which stated that the Comptroller was “ ‘unable to' determine the adequacy of the consideration given to the six factors [of §109 (a)(1)] and the basis for the penalties assessed in [400] sample cases.’ ” 495 F. 2d, at 43. However, the Secretary’s method of assessing penalties has been changed in a way that largely meets this objection. The regulations now in force contain formulas to be used by the assessment officers in considering the six § 109 (a) (1) criteria. 30 CFR § 100.3 (1975). The Secretary represented to the Court of Appeals for the District of Columbia Circuit that the assessment formula is to be retained. National Coal Operators’ Assn. v. Morton, 161 U. S. App. D. C. 68, 70 n. 12, 494 F. 2d 987, 989 n. 12 (1974). These regulations were not in effect when the penalties at issue here were levied. Use of the current regulations is preferable to the apparent ad hoc consideration given the criteria in this case. But a trial de novo is available to the mine operators on the amount of the penalty, so the Secretary’s failure to promulgate the best regulations in the first instance does not render all penalties assessed under the prior regulations unenforceable. Although explication by the assessment officer and an examiner might be of some aid to the district judge who is called upon to consider the penalty, the provision for a de novo trial on the amount of the penalty places squarely on the court the task of evaluating the penalty. The six criteria of §109 (a)(1) can be argued to the district court. The Third Circuit is undoubtedly correct that the more information a mine operator has, the better the operator will be able to determine whether to challenge the penalty. The issue, however, was whether the new procedures were mandated by the statute. Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
songer_state	23	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". UNITED STATES of America, Plaintiff-Appellee, v. Emmett Lovell NABORS, Defendant-Appellant. No. 89-1488. United States Court of Appeals, Sixth Circuit. Argued Jan. 22, 1990. Decided April 27, 1990. David J. DeBold, Asst. U.S. Atty. (argued), Detroit, Mich., for plaintiff-appellee. Douglas R. Mullkoff (argued), Ann Arbor, Mich., for defendant-appellant. Before MARTIN and RYAN, Circuit Judges; and PECK, Senior Circuit Judge. BOYCE F. MARTIN, Jr., Circuit Judge. Emmett Lovell Nabors appeals his conviction and sentence for assaulting a federal agent, possession of crack cocaine with the intent to distribute, use of a firearm during the commission of both a violent crime and a drug trafficking crime, and attempted escape. In July 1988, Special Agent Joseph Secrete, Bureau of Alcohol, Tobacco, and Firearms, began investigating Nabors, who was on probation at that time for the felony of carrying a concealed weapon, for possession of firearms. On July 21, 1988, Secrete obtained two search warrants authorizing searches for weapons and other evidence at two Detroit, Michigan residences used by Nabors. The next day, a team of federal, state, and local agents planned and initiated the search of one of those residences, an apartment occupied by Nabors and his girlfriend, Michelle Townsend. On the day of the search, the agents saw Nabors leave the apartment. At that point, the agents cancelled the search because they wished to search the apartment when Nabors was present to ensure that a firearm would be found in his possession. However, twenty minutes later, Nabors returned to the apartment with another individual, and the agents initiated their search. The agents knocked on the apartment door and yelled, “Police!,” and, “Police search warrant!” Moments later, the agents rammed the apartment door and Bureau of Alcohol, Tobacco, and Firearms Agent Roger Guthrie entered the apartment. Nabors fired two rifle shots at Guthrie, hitting him once in the right cheek. Nabors then fled the second-story apartment by jumping out of a bathroom window. He was soon apprehended by the search team following his leap. A search of the apartment produced the rifle Nabors fired at Guthrie, a pistol and ammunition, a scale loaded with 12.757 grams of crack cocaine, and cocaine distribution paraphernalia. On July 22, 1988, Nabors was arrested and held on a complaint charging him with the attempted murder of a federal agent, in violation of 18 U.S.C. § 1114. On August 25, 1988, Nabors was indicted for attempted murder of a federal agent, 18 U.S.C. § 1114, assaulting a federal agent with a deadly weapon, 18 U.S.C. § 111, two counts of being a felon in possession of firearms, 18 U.S.C. § 922(g)(1), possession of cocaine with the intent to distribute, 21 U.S.C. § 841(a)(1), use of firearms during a drug trafficking crime, 18 U.S.C. § 924(c), and use of a firearm during a crime of violence, 18 U.S.C. § 924(c). He was arraigned on these charges on August 31, 1988. On September 17, 1988, during his detention at a local jail, Nabors attempted to escape custody by impersonating another detainee who was being released on bond. A superseding indictment was issued on October 18, 1988 adding a count of attempted escape, 18 U.S.C. § 751, to the original charges. Because Nabors was not indicted within thirty days of his arrest, the district court dismissed the attempted murder count which was the sole subject of the complaint filed before the magistrate at Nabors’s arrest. Nabors successfully severed the attempted escape count for which he later pled guilty. Nabors’s jury trial for possession and assault began on December 20, 1988. On December 22, 1988, he was convicted on all counts. At sentencing, the court granted the government’s motion to dismiss one of the two felon in possession of a firearm convictions. Nabors was sentenced to 137 months on the assault, possession of a firearm by a felon, and possession of cocaine counts. He also received two five-year sentences consecutive to the 137 months for each of his two convictions under 18 U.S.C. § 924(c)(1) for the use of a firearm during a drug trafficking crime and use of a firearm during a crime of violence. In addition, Nabors received five years of supervised release after his release from custody- Nabors first contends that the law enforcement agents violated the “knock- and-announce” requirements of 18 U.S.C. § 3109 in executing the search warrant for his apartment. Consequently, Nabors argues that the evidence seized during the search should have been suppressed. 18 U.S.C. § 3109 provides that: [An] officer may break open any outer or inner door or window of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant. Nabors argues that the time between the knock-and-announcement in this case insufficiently complies with the statute. If evidence is procured in violation of § 3109, that evidence must be suppressed. Miller v. United States, 357 U.S. 301, 313-314, 78 S.Ct. 1190, 1197-1198, 2 L.Ed.2d 1332 (1958). Courts have, however, upheld searches which failed to comply with § 3109 where exigent circumstances have existed which render strict compliance inappropriate and imprudent. For example, in United States v. Spinelli, 848 F.2d 26 (2d Cir.1988), the court excused the officers’ noncompliance with the knock-and-announce statute where the suspect had a past history of firearm possession and a knowledge of the officers’ surveillance of his residence, endangering the destruction of his drug manufacturing laboratory. Likewise, a search violating 18 U.S.C. § 3109 was upheld when there were two exigent circumstance grounds; first, the defendants were believed to be armed and dangerous; second, the officers had information that the defendants had substantial quantities of drugs which could be easily disposed of. United States v. Barrientos, 758 F.2d 1152 (7th Cir.1985), cert. denied, 474 U.S. 1062,106 S.Ct. 810, 88 L.Ed.2d 785 (1986). In United States v. Pearson, an improperly executed search under § 3109 was upheld where the targeted individual was in a residence with other people and was armed. 746 F.2d 787 (11th Cir.1984). Nabors contends that the facts of this case mirror those in United States v. Rodriguez, 663 F.Supp. 585 (D.D.C.1987), where the police waited mere seconds after their announcement before entering the defendant’s dwelling. In Rodriguez, however, the police had no concern for their safety due to probable firearm possession by the defendant, nor did they have any reason to believe that evidence of narcotics was on the premises. While it might be argued that the officers waited an insufficient time prior to knocking down the door to the apartment, certainly we agree with the district court that exigent circumstances justified the officers’ behavior. The affidavit for the warrant indicates that Nabors was suspected of trafficking in narcotics, was a felon in the possession of an array of firearms, and habitually wore a bullet-proof vest. We do not hold, as Nabors contends, that every time law enforcement personnel suspect that the subject of a search warrant possesses a firearm, a split-second announcement followed by a forced entry sufficiently complies with 18 U.S.C. § 3109. Given the facts confronting the officers, including the threat to their own safety, the safety of those in the apartment, and the need to preserve narcotics evidence, there was compliance with the requirements of 18 U.S.C. § 3109. While the officers had the opportunity to search the apartment in Nabors’s absence, the decision to wait until he was present was justified by their need to prove that Nabors was a felon in the possession of a firearm. We note that law enforcement officers may not take lightly the requirement of § 3109 that bursting into apartments is permitted only “after notice of [the officers’] authority and purpose [and they are] refused admittance....” 18 U.S.C. § 3109. Cases in which officers make a forced entry seconds after announcing their authority and purpose will be carefully scrutinized in the future to determine whether there is compliance with the requirements of § 3109. Cf. United States v. Burton, 894 F.2d 188, 192-93 (6th Cir.1990) (Jones, J., concurring). Here, in view of the exigent circumstances we have discussed, we conclude that, while the question is close, there was compliance with § 3109 and the evidence discovered in the search of the apartment was properly admitted at trial. Nabors next contends that he was tried in violation of his statutory and constitutional rights to a speedy trial. Nabors was indicted on the thirty-third day following his arrest. 18 U.S.C. § 3161(b) requires that an indictment must be filed within thirty days of an arrest. At the time he was indicted, the sole offense charged in the complaint against him was the attempted killing of a federal agent. Consequently, the district court, under 18 U.S.C. § 3162(a)(1), dismissed the attempted murder count. Nabors argues that if one count in the indictment must be dropped because of a constitutional or statutory speedy trial violation, the entire indictment must be dropped. On this, he is wrong. The statutory and constitutional provisions governing the speedy trial of a criminal defendant do not require that every offense chargeable from a criminal episode be dismissed for failing to comply with the thirty-day time limit for indictments following an arrest. Rather, 18 U.S.C. § 3162(a)(1) only requires the dismissal of the offense charged in the complaint for a violation of 18 U.S.C. § 3161(b). United States v. Napolitano, 761 F.2d 135, 137-138 (2d Cir.), cert. denied, 474 U.S. 842, 106 S.Ct. 129, 88 L.Ed.2d 106 (1985); United States v. Pollock, 726 F.2d 1456, 1461-1462 (9th Cir.1984). Moreover, Nabors was indicted only three days after the thirty-day statutory period had expired. Six of those days were excludable under 18 U.S.C. § 3161(h)(3) because Nabors was hospitalized for leg injuries sustained in his leap from the apartment and was therefore unavailable. Likewise, five days were ex-cludable under 18 U.S.C. § 3161(h)(1) because of other proceedings involving Na-bors, including his first appearance on the complaint, his detention hearing, and a preliminary examination. Considering these appropriately excludable dates, Nabors was indicted well within the thirty-day time period required in 18 U.S.C. § 3161(b). We do not find any prejudice to Nabors’s sixth amendment right to a speedy trial from the failure of the trial judge to dismiss the remaining counts of the indictment. Nabors also contends that his statutory right to a speedy trial was violated because he was tried more than seventy days after his original indictment. If an indicted defendant does not offer a guilty plea, the Speedy Trial Act requires that the defendant be tried within seventy days of the filing date of the indictment or the defendant’s first appearance before a judicial officer on the charges in the indictment, whichever comes last. 18 U.S.C. § 3161(c)(1). Although Nabors’s trial did not begin within seventy calendar days of his appearance on the charges in the original indictment, the Speedy Trial Act provides a litany of exclusions from the calculation of the seventy-day period. See 18 U.S.C. § 3161(h). Among those excludable periods are delays resulting from any pretrial motion. 18 U.S.C. § 3161(h)(1)(F). Pretrial motion delay is calculated “from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” Id. In this case, Nabors was arraigned on the charges in his August 26, 1988 indictment on August 31, 1988. The period from October 3, 1988 through December was properly excluded from the seventy-day period under the pretrial motion exclusion. Id. Likewise, the time period from September 20, 1988 to October 3, 1988 was properly excluded from the seventy-day period by the trial judge under the “ends of justice” exclusion. 18 U.S.C. § 3161(h)(8). Consequently, the defendant was tried well within the seventy-day period calculated from his first appearance before a judicial officer. Nabors also contends that his sixth amendment right to a speedy trial was violated by the delays in this case. However, “our resolution of his Speedy Trial Act claim eliminates the necessity of reaching the constitutional claim.... [I]t will be an unusual case in which the time limits of the Speedy Trial Act have been met but the Sixth Amendment right to speedy trial has been violated.” United States v. DeJesus, 887 F.2d 114, 116 n. 1 (6th Cir.1989). No such circumstances are presented here. Nabors claims that the district court erred by denying his motion to dismiss Count 6 of the superseding indictment which alleged that Nabors violated 18 U.S.C. § 924(c) by using a firearm during a drug trafficking crime. The drug trafficking crime committed by Nabors was possession of crack cocaine with the intent to distribute. According to Nabors, the term “drug trafficking crime” does not include possession of drugs with the intent to distribute. However, in United States v. Henry, we held that possession with the intent to distribute is a drug trafficking crime in the meaning of § 924(c). 878 F.2d 937, 943 (6th Cir.1989). The district court properly denied Nabors’s motion to dismiss. Nabors further contends that the district court erred by denying his motion to dismiss Count 3 of the superseding indictment which charged Nabors with assaulting an Alcohol, Tobacco, and Firearms agent in violation of 18 U.S.C. § 111. 18 U.S.C. § 111 makes it a federal crime to assault any person designated in 18 U.S.C. § 1114 while that person is engaged in the performance of his or her official duties. Nabors argues that Alcohol, Tobacco, and Firearms agents are not protected by § 111 because they are not specifically listed in § 1114. We disagree. Alcohol, Tobacco, and Firearms agents perform the functions previously performed by revenue agents prior to the 1972 restructuring of the United States Treasury Department. The restructuring order specifically conferred the protections of § 1114 for revenue agents on the Alcohol, Tobacco, and Firearms agents. Moreover, Congress extended the protections enjoyed by revenue agents prior to the restructuring to officers performing the functions of the revenue agents after restructuring as if no reorganization had taken place. See 5 U.S.C. § 907(a). In other words, the Alcohol, Tobacco, and Firearms agents step into the statutory shoes of the revenue agents for the purposes of § 1114 protection. Accordingly, prosecutions for assaulting Alcohol, Tobacco, and Firearms agents have been upheld under 18 U.S.C. § 111 by reasoning that 5 U.S.C. § 907 ensures that § 1114 is enforced as if no restructuring had taken place, thus the transfer of certain Internal Revenue Service agent functions to Alcohol, Tobacco, and Firearms agents did not render the protections of § 1114 inapplicable to the Alcohol, Tobacco, and Firearms agents. See, e.g., United States v. Alvarez, 755 F.2d 830, 840-841 (11th Cir.), cert. denied, 474 U.S. 905, 106 S.Ct. 274, 88 L.Ed.2d 235 (1985); United States v. Czech, 671 F.2d 1195 (8th Cir.1982); United States v. Lopez, 586 F.2d 978 (2d Cir.1978), cert. denied, 440 U.S. 923, 99 S.Ct. 1251, 59 L.Ed.2d 476 (1979). Nabors contends, however, that because Congress amended § 1114 after the offenses committed in Alvarez and Lopez, and the amendments failed to specifically include Alcohol, Tobacco, and Firearms agents, Congress specifically meant to exclude them. We disagree. Nothing in the amendments to § 1114 affects the reasoning that 5 U.S.C. § 907 transfers the protections of § 1114 to the agents now performing the work of other agents and persons who were protected under § 1114 pri- or to the transfer of those functions. The current version of § 1114 protects revenue agents and those assisting them in the execution of their duties; consequently, 5 U.S.C. § 907(a) still protects Alcohol, Tobacco, and Firearms agents. In fact, Alvarez was decided on this theory even though congressional amendments to § 1114 were made after the date of the Lopez decision. Nabors also argues that because § 1114 does not explicitly mention Alcohol, Tobacco, and Firearms agents, the principle of lenity requires the reversal of his assault conviction. As noted in Alvarez, “the principle of lenity does not dictate that other pertinent statutes, such as 5 U.S.C. § 907(a), be disregarded_ 5 U.S.C. § 907(a) existed at the time the crime was committed, providing the defendant with fair warning of the prohibited conduct.” Alvarez, 755 F.2d at 841 n. 9. Thus, the district court properly denied Nabors’s motion to dismiss because Alcohol, Tobacco, and Firearms agents are included in § 1114 by the enactment of 5 U.S.C. § 907(a). Moreover, because the only circuit decisions addressing the protection of Alcohol, Tobacco, and Firearms agents have held that those agents were covered by § 1114, Congress’s failure to amend the statute to include those agents is properly viewed as an acquiescence in such an interpretation. Blitz v. Donovan, 740 F.2d 1241, 1245 (D.C.Cir.1984) (Congress is deemed to know the judicial gloss given to certain language and thus adopts it absent affirmative action to change the meaning). Nabors next contends that the evidence is insufficient to convict him for using a firearm during and in relation to his possession of cocaine. He also contends that the district court should have granted his motion for acquittal because the evidence did not support a finding beyond a reasonable doubt that he possessed cocaine with the intent to distribute and that he used a firearm during a drug trafficking crime. For both of Nabors’s claims, we apply essentially the same standard of review. The difference is that in our review of a motion for acquittal, we determine whether the evidence was sufficient to submit the case to the jury at the completion of the evidence for the United States. See United States v. Gibson, 675 F.2d 825, 829 (6th Cir.), cert. denied, 459 U.S. 972, 103 S.Ct. 305, 74 L.Ed.2d 285 (1982). “In a criminal case the standard of review for claims of insufficient evidence is ‘whether, after viewing the evidence in the light most favorable to the prosecutor, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” United States v. Ellzey, 874 F.2d 324, 327-328 (6th Cir.1989) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). Nabors has failed to establish that reasonable minds could not have found him guilty beyond a reasonable doubt based on the evidence introduced. Finally, we consider Nabors’s argument that the district court erred in sentencing him to two consecutive five-year sentences under 18 U.S.C. § 924(c)(1) for his two convictions on separate violations of that statute. Nabors contends that the rule of lenity dictates that § 924(c)(1) not be read to allow one use of firearms, to support two separate convictions and sentences. Section 924(c)(1) provides, in pertinent part: Whoever, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years.... In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for ten years.... Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection, nor shall the term of imprisonment imposed under this subsection run concurrently with any other term of imprisonment including that imposed for the crime of violence, or drug trafficking crime in which the firearm was used or carried. 18 U.S.C. § 924(c)(1). We agree with Nabors that § 924(c)(1) does not allow two sentences for a single violation of that statute. Here, however, two separate predicate offenses for triggering § 924(c)(1) were charged and proven. Under the “fortress theory”, adopted by us in United States v. Henry, we find that it reasonably appears that the weapons found in the apartment were in Nabors’s actual and constructive possession and were used to facilitate and protect drug transactions. Consequently, those firearms are considered to have been used during and in relation to the drug trafficking offense of possession of cocaine with the intent to distribute. See Henry, 878 F.2d at 944. In Henry, this Circuit vacated one of the two § 924(c)(1) convictions in that case because the government proved only that two uses of firearms were related to the same § 924(c)(1) predicate offense. Had the government adequately related the use of the firearm to a different offense, the Court would have affirmed the two § 924(c)(1) convictions. Henry, 878 F.2d at 945. Consequently, the panel in Henry explicitly declined to consider whether separate convictions under § 924(c)(1) permitted separate and discrete sentences. Id. at 944. Nabors’s two convictions under § 924(c)(1) do not each require the same proof of facts; the two predicate offenses are distinct and require proof of facts not required by the other predicate. Thus, no problem of multiplicity exists under Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). Finding that Nabors was properly convicted for two different violations of § 924(c)(1), we now consider the issue left open by the Court in Henry. Nabors argues that this Court should not allow multiple sentences under § 924(c)(1) because of dicta in United States v. Torres, 862 F.2d 1025, 1032 (3rd Cir.1988), that relative to multiple § 924(c)(1) offenses, “the law allows separate and discrete offenses to be charged, [but] does not permit separate and discrete offenses to be imposed .... ” In Torres, the government stipulated that only one sentence could be imposed for the multiple violations of § 924(c)(1). The Third Circuit’s dicta was based on its implicit position that Congress did not intend for double punishment under the enhanced sentence provisions. We disagree. There is nothing in the statute or the legislative history providing that separate convictions under § 924(c)(1) should not result in separate sentences under that provision. See United States v. Woodward, 469 U.S. 105, 105 S.Ct. 611, 83 L.Ed.2d 518 (1985) (analyzing legislative intent under question similar to issue presented by Nabors); United States v. Duncan, 850 F.2d 1104 (6th Cir.1988). The Eleventh Circuit recently considered a similar sentencing argument concerning whether the conviction on separate predicate offenses to § 924(c)(1) in the same indictment resulted in the application of the subsequent or second conviction sentence enhancement provisions of the statute. Holding that the two convictions on the same indictment could trigger the subsequent sentence enhancement, the court reasoned that Congress also could have limited the effect of the statute to apply only to subsequent indictments or after a prison term was served on the first conviction under § 924(c)(1). United States v. Rawlings, 821 F.2d 1543 (11th Cir.), reh’g denied, 829 F.2d 1132 (11th Cir.), cert. denied, 484 U.S. 979, 108 S.Ct. 494, 98 L.Ed.2d 492 (1987). “To avoid such a result, a prosecutor could simply bring the two offenses in two separate indictments, thereby insuring that one of the convictions would occur later in time than the other.... We do not think Congress intended the enhanced penalty for a repeat offender of § 924(c) to hinge on the machinations of the prosecutor.” Id. at 1546. Adopting Nabors’s argument would result in separate indictments and, consequently, an increase in the number of criminal cases, to obtain the enhanced provisions of § 924(c)(1). We do not find the statute ambiguous on the availability of multiple sentences for separate violations of the statute. While § 924(c)(1) is, at best, hard to follow in simple English, we concur with the reasoning in Rawlings that two distinct violations of the statute trigger the subsequent sentence enhancement provisions of § 924(c)(1). Thus, the commission of two violations of § 924(c)(1) would result in a five-year consecutive sentence for the first conviction and a ten-year consecutive sentence for the second § 924(c)(1) conviction. However, because of the complexity of this issue, we find the district court’s failure to sentence Nabors to a ten-year consecutive sentence for his second § 924(c)(1) conviction not clearly erroneous. Therefore, we affirm Nabors’s conviction and sentence. 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. WESTERNGECO LLC, Petitioner v. ION Geophysical Corporation. No. 16-1011. Supreme Court of the United States Argued April 16, 2018. Decided June 22, 2018. Timothy K. Gilman, Leslie M. Schmidt, Kirkland & Ellis LLP, New York, NY, Paul D. Clement, Gregg F. LoCascio, P.C., John C. O'Quinn, William H. Burgess, Kirkland & Ellis LLP, Washington, DC, for Petitioner. Danielle J. Healey, Brian G. Strand, Bailey K. Benedict, Fish & Richardson P.C., Houston, TX, Justin M. Barnes, Troutman Sanders LLP, San Diego, CA, Kannon K. Shanmugam, David I. Berl, Amy Mason Saharia, Masha G. Hansford, William T. Marks, J. Matthew Rice, Williams & Connolly LLP, Washington, DC, for Respondent. Justice THOMAS delivered the opinion of the Court. Under the Patent Act, a company can be liable for patent infringement if it ships components of a patented invention overseas to be assembled there. See 35 U.S.C. § 271(f)(2). A patent owner who proves infringement under this provision is entitled to recover damages. § 284. The question in this case is whether these statutes allow the patent owner to recover for lost foreign profits. We hold that they do. I The Patent Act gives patent owners a "civil action for infringement." § 281. Section 271 outlines several types of infringement. The general infringement provision, § 271(a), covers most infringements that occur "within the United States." The subsection at issue in this case, § 271(f), "expands the definition of infringement to include supplying from the United States a patented invention's components." Microsoft Corp. v. AT & T Corp., 550 U.S. 437, 444-445, 127 S.Ct. 1746, 167 L.Ed.2d 737 (2007). It contains two provisions that "work in tandem" by addressing "different scenarios." Life Technologies Corp. v. Promega Corp., 580 U.S. ----, ----, 137 S.Ct. 734, 742, 197 L.Ed.2d 33 (2017). Section 271(f)(1) addresses the act of exporting a substantial portion of an invention's components: "Whoever without authority supplies or causes to be supplied in or from the United States all or a substantial portion of the components of a patented invention, where such components are uncombined in whole or in part, in such manner as to actively induce the combination of such components outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer." Section 271(f)(2), the provision at issue here, addresses the act of exporting components that are specially adapted for an invention: "Whoever without authority supplies or causes to be supplied in or from the United States any component of a patented invention that is especially made or especially adapted for use in the invention and not a staple article or commodity of commerce suitable for substantial noninfringing use, where such component is uncombined in whole or in part, knowing that such component is so made or adapted and intending that such component will be combined outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer." Patent owners who prove infringement under § 271 are entitled to relief under § 284, which authorizes "damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer." II Petitioner WesternGeco LLC owns four patents relating to a system that it developed for surveying the ocean floor. The system uses lateral-steering technology to produce higher quality data than previous survey systems. WesternGeco does not sell its technology or license it to competitors. Instead, it uses the technology itself, performing surveys for oil and gas companies. For several years, WesternGeco was the only surveyor that used such lateral-steering technology. In late 2007, respondent ION Geophysical Corporation began selling a competing system. It manufactured the components for its competing system in the United States and then shipped them to companies abroad. Those companies combined the components to create a surveying system indistinguishable from WesternGeco's and used the system to compete with WesternGeco. WesternGeco sued for patent infringement under §§ 271(f)(1) and (f)(2). At trial, WesternGeco proved that it had lost 10 specific survey contracts due to ION's infringement. The jury found ION liable and awarded WesternGeco damages of $12.5 million in royalties and $93.4 million in lost profits. ION filed a post-trial motion to set aside the verdict, arguing that WesternGeco could not recover damages for lost profits because § 271(f) does not apply extraterritorially. The District Court denied the motion. 953 F.Supp.2d 731, 755-756 (S.D.Tex.2013). On appeal, the Court of Appeals for the Federal Circuit reversed the award of lost-profits damages. WesternGeco LLC v. ION Geophysical Corp., 791 F.3d 1340, 1343 (2015). The Federal Circuit had previously held that § 271(a), the general infringement provision, does not allow patent owners to recover for lost foreign sales. See id., at 1350-1351 (citing Power Integrations, Inc. v. Fairchild Semiconductor Int'l, Inc., 711 F.3d 1348 (C.A.Fed.2013) ). Section 271(f) should be interpreted the same way, the Federal Circuit reasoned, because it was "designed" to put patent infringers "in a similar position." WesternGeco, 791 F.3d, at 1351. Judge Wallach dissented. See id., at 1354-1364. WesternGeco petitioned for review in this Court. We granted the petition, vacated the Federal Circuit's judgment, and remanded for further consideration in light of our decision in Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U.S. ----, 136 S.Ct. 1923, 195 L.Ed.2d 278 (2016). WesternGeco LLC v. ION Geophysical Corp., 579 U.S. ----, 136 S.Ct. 2486, 195 L.Ed.2d 820 (2016). On remand, the panel majority reinstated the portion of its decision regarding the extraterritoriality of § 271(f). 837 F.3d 1358, 1361, 1364 (C.A.Fed.2016). Judge Wallach dissented again, id., at 1364-1369, and we granted certiorari again, 583 U.S. ----, 138 S.Ct. 734, 199 L.Ed.2d 601 (2018). We now reverse. III Courts presume that federal statutes "apply only within the territorial jurisdiction of the United States." Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 93 L.Ed. 680 (1949). This principle, commonly called the presumption against extraterritoriality, has deep roots. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts § 43, p. 268 (2012) (tracing it to the medieval maxim Statuta suo clauduntur territorio, nec ultra territorium disponunt ); e.g., United States v. Palmer, 3 Wheat. 610, 631, 4 L.Ed. 471 (1818) (Marshall, C.J.) ("[G]eneral words must... be limited to cases within the jurisdiction of the state"). The presumption rests on "the commonsense notion that Congress generally legislates with domestic concerns in mind." Smith v. United States, 507 U.S. 197, 204, n. 5, 113 S.Ct. 1178, 122 L.Ed.2d 548 (1993). And it prevents "unintended clashes between our laws and those of other nations which could result in international discord." EEOC v. Arabian American Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991). This Court has established a two-step framework for deciding questions of extraterritoriality. The first step asks "whether the presumption against extraterritoriality has been rebutted." RJR Nabisco, Inc. v. European Community, 579 U.S. ----, ----, 136 S.Ct. 2090, 2101, 195 L.Ed.2d 476 (2016). It can be rebutted only if the text provides a "clear indication of an extraterritorial application." Morrison v. National Australia Bank Ltd., 561 U.S. 247, 255, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). If the presumption against extraterritoriality has not been rebutted, the second step of our framework asks "whether the case involves a domestic application of the statute." RJR Nabisco, 579 U.S., at ----, 136 S.Ct., at 2101. Courts make this determination by identifying "the statute's 'focus' " and asking whether the conduct relevant to that focus occurred in United States territory. Ibid. If it did, then the case involves a permissible domestic application of the statute. See ibid. We resolve this case at step two. While "it will usually be preferable" to begin with step one, courts have the discretion to begin at step two "in appropriate cases." See id., at ----, n. 5, 136 S.Ct., at 2101, n. 5 (citing Pearson v. Callahan, 555 U.S. 223, 236-243, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). One reason to exercise that discretion is if addressing step one would require resolving "difficult questions" that do not change "the outcome of the case," but could have far-reaching effects in future cases. See id., at 236-237, 129 S.Ct. 808. That is true here. WesternGeco argues that the presumption against extraterritoriality should never apply to statutes, such as § 284, that merely provide a general damages remedy for conduct that Congress has declared unlawful. Resolving that question could implicate many other statutes besides the Patent Act. We therefore exercise our discretion to forgo the first step of our extraterritoriality framework. A Under the second step of our framework, we must identify "the statute's 'focus.' " RJR Nabisco, supra, at ----, 136 S.Ct., at 2101. The focus of a statute is "the objec[t] of [its] solicitude," which can include the conduct it "seeks to'regulate,' " as well as the parties and interests it "seeks to 'protec[t]' " or vindicate. Morrison, supra, at 267, 130 S.Ct. 2869 (quoting Superintendent of Ins. of N.Y. v. Bankers Life & Casualty Co., 404 U.S. 6, 12, 10, 92 S.Ct. 165, 30 L.Ed.2d 128 (1971) ). "If the conduct relevant to the statute's focus occurred in the United States, then the case involves a permissible domestic application" of the statute, "even if other conduct occurred abroad." RJR Nabisco, 579 U.S., at ----, 136 S.Ct., at 2101. But if the relevant conduct occurred in another country, "then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory."Ibid. When determining the focus of a statute, we do not analyze the provision at issue in a vacuum. See Morrison, supra, at 267-269, 130 S.Ct. 2869. If the statutory provision at issue works in tandem with other provisions, it must be assessed in concert with those other provisions. Otherwise, it would be impossible to accurately determine whether the application of the statute in the case is a "domestic application." RJR Nabisco, 579 U.S., at ----, 136 S.Ct., at 2101. And determining how the statute has actually been applied is the whole point of the focus test. See ibid. Applying these principles here, we conclude that the conduct relevant to the statutory focus in this case is domestic. We begin with § 284. It provides a general damages remedy for the various types of patent infringement identified in the Patent Act. The portion of § 284 at issue here states that "the court shall award the claimant damages adequate to compensate for the infringement." We conclude that "the infringement" is the focus of this statute. As this Court has explained, the "overriding purpose" of § 284 is to "affor[d] patent owners complete compensation" for infringements. General Motors Corp. v. Devex Corp., 461 U.S. 648, 655, 103 S.Ct. 2058, 76 L.Ed.2d 211 (1983). "The question" posed by the statute is " 'how much ha[s] the Patent Holder... suffered by the infringement.' " Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 507, 84 S.Ct. 1526, 12 L.Ed.2d 457 (1964). Accordingly, the infringement is plainly the focus of § 284. But that observation does not fully resolve this case, as the Patent Act identifies several ways that a patent can be infringed. See § 271. To determine the focus of § 284 in a given case, we must look to the type of infringement that occurred. We thus turn to § 271(f)(2), which was the basis for WesternGeco's infringement claim and the lost-profits damages that it received. Section 271(f)(2) focuses on domestic conduct. It provides that a company "shall be liable as an infringer" if it "supplies" certain components of a patented invention "in or from the United States" with the intent that they "will be combined outside of the United States in a manner that would infringe the patent if such combination occurred within the United States." The conduct that § 271(f)(2) regulates-i.e., its focus-is the domestic act of "suppl[ying] in or from the United States." As this Court has acknowledged, § 271(f) vindicates domestic interests: It "was a direct response to a gap in our patent law," Microsoft Corp., 550 U.S., at 457, 127 S.Ct. 1746 and "reach[es] components that are manufactured in the United States but assembled overseas," Life Technologies, 580 U.S., at ----, 137 S.Ct., at 743. As the Federal Circuit explained, § 271(f)(2) protects against "domestic entities who export components... from the United States." 791 F.3d, at 1351. In sum, the focus of § 284, in a case involving infringement under § 271(f)(2), is on the act of exporting components from the United States. In other words, the domestic infringement is "the objec[t] of the statute's solicitude" in this context. Morrison, 561 U.S., at 267, 130 S.Ct. 2869. The conduct in this case that is relevant to that focus clearly occurred in the United States, as it was ION's domestic act of supplying the components that infringed WesternGeco's patents. Thus, the lost-profits damages that were awarded to WesternGeco were a domestic application of § 284. B ION's arguments to the contrary are not persuasive. ION contends that the statutory focus here is "self-evidently on the award of damages." Brief for Respondent 22. While § 284 does authorize damages, what a statute authorizes is not necessarily its focus. Rather, the focus is "the objec[t] of the statute's solicitude"-which can turn on the "conduct," "parties," or interests that it regulates or protects. Morrison, supra, at 267, 130 S.Ct. 2869. Here, the damages themselves are merely the means by which the statute achieves its end of remedying infringements. Similarly, ION is mistaken to assert that this case involves an extraterritorial application of § 284 simply because "lost-profits damages occurred extraterritorially, and foreign conduct subsequent to [ION's] infringement was necessary to give rise to the injury." Brief for Respondent 22. Those overseas events were merely incidental to the infringement. In other words, they do not have "primacy" for purposes of the extraterritoriality analysis. Morrison, supra, at 267, 130 S.Ct. 2869. ION also draws on the conclusion in RJR Nabisco that "RICO damages claims" based "entirely on injury suffered abroad" involve an extraterritorial application of 18 U.S.C. § 1964(c). 579 U.S., at ----, 136 S.Ct., at 2111. From this principle, ION extrapolates a general rule that damages awards for foreign injuries are always an extraterritorial application of a damages provision. This argument misreads RJR Nabisco. That portion of RJR Nabisco interpreted a substantive element of a cause of action, not a remedial damages provision. See id., at ----, 136 S.Ct., at 2105. It explained that a plaintiff could not bring a damages claim under § 1964(c) unless he could prove that he was " 'injured in his business or property,' " which required proof of "a domestic injury." Ibid. Thus, RJR Nabisco was applying the presumption against extraterritoriality to interpret the scope of § 1964(c)' s injury requirement; it did not make any statements about damages-a separate legal concept. Two of our colleagues contend that the Patent Act does not permit damages awards for lost foreign profits. Post, at 2139 (GORSUCH, J., joined by BREYER, J., dissenting). Their position wrongly conflates legal injury with the damages arising from that injury. See post, at 2139 - 2140. And it is not the better reading of "the plain text of the Patent Act." Post, at 2143. Taken together, § 271(f)(2) and § 284 allow the patent owner to recover for lost foreign profits. Under § 284, damages are "adequate" to compensate for infringement when they "plac[e] [the patent owner] in as good a position as he would have been in" if the patent had not been infringed. General Motors Corp., supra, at 655, 103 S.Ct. 2058. Specifically, a patent owner is entitled to recover " 'the difference between [its] pecuniary condition after the infringement, and what [its] condition would have been if the infringement had not occurred.' " Aro Mfg. Co., supra, at 507, 84 S.Ct. 1526. This recovery can include lost profits. See Yale Lock Mfg. Co. v. Sargent, 117 U.S. 536, 552-553, 6 S.Ct. 934, 29 L.Ed. 954 (1886). And, as we hold today, it can include lost foreign profits when the patent owner proves infringement under § 271(f)(2). We hold that WesternGeco's damages award for lost profits was a permissible domestic application of § 284. The judgment of the Federal Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice GORSUCH, with whom Justice BREYER joins, dissenting. The Court holds that WesternGeco's lost profits claim does not offend the judicially created presumption against the extraterritorial application of statutes. With that much, I agree. But I cannot subscribe to the Court's further holding that the terms of the Patent Act permit awards of this kind. In my view the Act's terms prohibit the lost profits sought in this case, whatever the general presumption against extraterritoriality applicable to all statutes might allow. So while the Federal Circuit may have relied in part on a mistaken extraterritoriality analysis, I respectfully submit it reached the right result in concluding that the Patent Act forecloses WesternGeco's claim for lost profits. The reason is straightforward. A U.S. patent provides a lawful monopoly over the manufacture, use, and sale of an invention within this country only. Meanwhile, WesternGeco seeks lost profits for uses of its invention beyond our borders. Specifically, the company complains that it lost lucrative foreign surveying contracts because ION's customers used its invention overseas to steal that business. In measuring its damages, WesternGeco assumes it could have charged monopoly rents abroad premised on a U.S. patent that has no legal force there. Permitting damages of this sort would effectively allow U.S. patent owners to use American courts to extend their monopolies to foreign markets. That, in turn, would invite other countries to use their own patent laws and courts to assert control over our economy. Nothing in the terms of the Patent Act supports that result and much militates against it. Start with the key statutory language. Under the Patent Act, a patent owner enjoys "the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States." 35 U.S.C. § 154(a)(1) (emphasis added). Emphasizing the point, the Act proceeds to explain that to "infring[e] the patent" someone must "without authority mak[e], us[e], offe[r] to sell, or sel[l] [the] patented invention, within the United States." § 271(a) (emphasis added). So making, using, or selling a patented invention inside the United States invites a claim for infringement. But those same acts outside the United States do not infringe a U.S. patent right. These principles work their way into the statutory measure of damages too. A patent owner who proves infringement is entitled to receive "damages adequate to compensate for the infringement." § 284 (emphasis added). Because an infringement must occur within the United States, that means a plaintiff can recover damages for the making, using, or selling of its invention within the United States, but not for the making, using, or selling of its invention elsewhere. What's the upshot for our case? The jury was free to award WesternGeco royalties for the infringing products ION produced in this country; indeed, ION has not challenged that award either here or before the Federal Circuit. If ION's infringement had cost WesternGeco sales in this country, it could have recovered for that harm too. At the same time, WesternGeco is not entitled to lost profits caused by the use of its invention outside the United States. That foreign conduct isn't "infringement" and so under § 284's plain terms isn't a proper basis for awarding "compensat[ion]." No doubt WesternGeco thinks it unfair that its invention was used to compete against it overseas. But that's simply not the kind of harm for which our patent laws provide compensation because a U.S. patent does not protect its owner from competition beyond our borders. This Court's precedents confirm what the statutory text indicates. In Brown v. Duchesne, 19 How. 183, 15 L.Ed. 595 (1857), the Court considered whether the use of an American invention on the high seas could support a damages claim under the U.S. patent laws. It said no. The Court explained that "the use of [an invention] outside of the jurisdiction of the United States is not an infringement of [the patent owner's] rights," and so the patent owner "has no claim to any compensation for" that foreign use. Id., at 195-196. A defendant must "compensate the patentee," the Court continued, only to the extent that it has "com[e] in competition with the [patent owner] where the [patent owner] was entitled to the exclusive use" of his invention-namely, within the United States. Id., at 196. What held true there must hold true here. ION must compensate WesternGeco for its intrusion on WesternGeco's exclusive right to make, use, and sell its invention in the United States. But WesternGeco "has no claim to any compensation for" noninfringing uses of its invention "outside of the jurisdiction of the United States." Id., at 195-196. Other precedents offer similar teachings. In Birdsall v. Coolidge, 93 U.S. 64, 23 L.Ed. 802 (1876), the Court explained that damages are supposed to compensate a patent owner for "the unlawful acts of the defendant." Ibid. To that end, the Court held, damages "shall be precisely commensurate with the injury suffered, neither more nor less." Ibid. (emphasis added). It's undisputed that the only injury WesternGeco suffered here came from ION's infringing activity within the United States. A damages award that sweeps much more broadly to cover third parties' noninfringing foreign uses can hardly be called "precisely commensurate" with that injury. This Court's leading case on lost profit damages points the same way. In Yale Lock Mfg. Co. v. Sargent, 117 U.S. 536, 6 S.Ct. 934, 29 L.Ed. 954 (1886), the patent owner "availed himself of his exclusive right by keeping his patent a monopoly" and selling the invention himself. Id., at 552, 6 S.Ct. 934. As damages for a competitor's infringement of the patent, the patent owner could recover "the difference between his pecuniary condition after the infringement, and what his condition would have been if the infringement had not occurred." Ibid. And that difference, the Court held, "is to be measured" by the additional profits the patent owner "would have realized from such sales if the infringement had not interfered with such monopoly." Id., at 552-553, 6 S.Ct. 934. So, again, the Court tied the measure of damages to the degree of interference with the patent owner's exclusive right to make, use, and sell its invention. And, again, that much is missing here because foreign uses of WesternGeco's invention could not have interfered with its U.S. patent monopoly. You might wonder whether § 271(f)(2) calls for a special exception to these general principles. WesternGeco certainly thinks it does. It's true, too, that § 271(f)(2) expressly refers to foreign conduct. The statute says that someone who exports a specialized component, "intending that [it] will be combined outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer." From this language, you might wonder whether § 271(f)(2) seeks to protect patent owners from the foreign conduct that occurred in this case. It does not. Section 271(f)(2) modifies the circumstances when the law will treat an invention as having been made within the United States. It permits an infringement claim-and the damages that come with it-not only when someone produces the complete invention in this country for export, but also when someone exports key components of the invention for assembly aboard. A person who ships components from the United States intending they be assembled across the border is "liable" to the patent owner for royalties and lost profits the same as if he made the entire invention here. § 271(f)(2). But none of this changes the bedrock rule that foreign uses of an invention (even an invention made in this country) do not infringe a U.S. patent. Nor could it. For after § 271(f)(2)'s adoption, as before, patent rights exclude others from making, using, and selling an invention only "throughout the United States." § 154(a)(1). The history of the statute underscores the point. In Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 92 S.Ct. 1700, 32 L.Ed.2d 273 (1972), the Court held that a defendant did not "make" an invention within the United States when it produced the invention's components here but sold them to foreign buyers for final assembly abroad. Id., at 527-528, 92 S.Ct. 1700. The Court recognized that, if the defendant had assembled the parts in this country and then sold them to the foreign buyers, it would have unlawfully made and sold the invention within the United States. Id., at 527, 92 S.Ct. 1700. But because what it made and sold in this country "fell short" of the complete invention, the Court held, the patent laws did not prohibit its conduct. Ibid. The dissent, by contrast, argued that for all practical purposes the invention "was made in the United States" since "everything was accomplished in this country except putting the pieces together." Id., at 533, 92 S.Ct. 1700 (opinion of Blackmun, J.). Apparently Congress agreed, for it then added § 271(f)(2) and made clear that someone who almost makes an invention in this country may be held liable as if he made the complete invention in this country. As the Solicitor General has explained, the new statute "effectively treat[ed] the domestic supply of the components of a patented invention for assembly abroad as tantamount to the domestic manufacture of the completed invention for export." Brief for United States as Amicus Curiae 22 (emphasis added). Section 271(f)(2) thus expands what qualifies as making an invention in this country but does nothing to suggest that U.S. patents protect against-much less guarantee compensation for-uses abroad. Any suggestion that § 271(f)(2) provides protection against foreign uses would also invite anomalous results. It would allow greater recovery when a defendant exports a component of an invention in violation of § 271(f)(2) than when a defendant exports the entire invention in violation of § 271(a). And it would threaten to " 'conver[t] a single act of supply from the United States into a springboard for liability.' " Microsoft Corp. v. AT & T Corp., 550 U.S. 437, 456, 127 S.Ct. 1746, 167 L.Ed.2d 737 (2007). Here, for example, supplying a single infringing product from the United States would make ION responsible for any foreseeable harm its customers cause by using the product to compete against WesternGeco worldwide, even though WesternGeco's U.S. patent doesn't protect it from such competition. It's some springboard, too. The harm flowing from foreign uses in this case appears to outstrip wildly the harm inflicted by ION's domestic production: the jury awarded $93.4 million in lost profits from uses in 10 foreign surveys but only $12.5 million in royalties for 2,500 U.S.-made products. Even more dramatic examples are not hard to imagine. Suppose a company develops a prototype microchip in a U.S. lab with the intention of manufacturing and selling the chip in a foreign country as part of a new smartphone. Suppose too that the chip infringes a U.S. patent and that the patent owner sells its own phone with its own chip overseas. Under the terms of the Patent Act, the developer commits an act of infringement by creating the prototype here, but the additional chips it makes and sells outside the United States do not qualify as infringement. Under WesternGeco's approach, however, the patent owner could recover any profits it lost to that foreign competition-or even three times as much, see § 284 -effectively giving the patent owner a monopoly over foreign markets through its U.S. patent. That's a very odd role for U.S. patent law to play in foreign markets, as "foreign law alone, not United States law," is supposed to govern the manufacture, use, and sale "of patented inventions in foreign countries." Microsoft, supra, at 456, 127 S.Ct. 1746. Worse yet, the tables easily could be turned. If our courts award compensation to U.S. patent owners for foreign uses where our patents don't run, what happens when foreign courts return the favor? Suppose our hypothetical microchip developer infringed a foreign patent in the course of developing its new chip abroad, but then mass produced and sold the chip in the United States. A foreign court might reasonably hold the U.S. company liable for infringing the foreign patent in the foreign country. But if it followed WesternGeco's theory, the court might then award monopoly rent damages reflecting a right to control the market for the chip in this country-even though the foreign patent lacks any legal force here. It is doubtful Congress would accept that kind of foreign "control over our markets." Deepsouth, supra, at 531, 92 S.Ct. 1700. And principles of comity counsel against an interpretation of our patent laws that would interfere so dramatically with the rights of other nations to regulate their own economies. While Congress may seek to extend U.S. patent rights beyond our borders if it chooses, cf. § 105 (addressing inventions made, used, and sold in outer space), nothing in the Patent Act fairly suggests that it has taken that step here. Today's decision unfortunately forecloses further consideration of these points. Although its opinion focuses almost entirely on why the presumption against extraterritoriality applicable to all statutes does not forbid the damages sought here, the Court asserts in a few cursory sentences that the Patent Act by its terms allows recovery for foreign uses in cases like this. See ante, at 2138 - 2139. In doing so, the Court does not address the textual or doctrinal analysis offered here. It does not explain why "damages adequate to compensate for the infringement " should include damages for harm from noninfringing uses. § 284 (emphasis added). It does not try to reconcile its holding with the teachings of Duchesne, Birdsall, and Yale Lock. And it ignores Microsoft's admonition that § 271(f)(2) should not be read to create springboards for liability based on foreign conduct. Instead, the Court relies on two cases that do not come close to supporting its broad holding. In General Motors Corp. v. Devex Corp., 461 U.S. 648, 103 S.Ct. 2058, 76 L.Ed.2d 211 (1983), the Court held that prejudgment interest should normally be awarded so as to place the patent owner "in as good a position as [it] would have been in had the infringer" not infringed. Id., at 655, 103 S.Ct. 2058. Allowing recovery for foreign uses, however, puts the patent owner in a better position than it was before by allowing it to demand monopoly rents outside the United States as well as within. In Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 84 S.Ct. 1526, 12 L.Ed.2d 457 (1964), meanwhile, the Court simply applied Yale Lock's rule that a patent owner may recover " 'the difference between his pecuniary condition after the infringement, and what his condition would have been if the infringement had not occurred.' " Id., at 507, 84 S.Ct. 1526 (quoting Yale Lock, 117 U.S., at 552, 6 S.Ct. 934 ). As we've seen, that test seeks to measure the interference with the patent owner's lawful monopoly over U.S. markets alone. By failing to heed the plain text of the Patent Act and the lessons of our precedents, the Court ends up assuming that patent damages run (literally) to the ends of the earth. It allows U.S. patent owners to extend their patent monopolies far beyond anything Congress has authorized and shields them from foreign competition U.S. patents were never meant to reach. Because I cannot agree that the Patent Act requires that result, I respectfully dissent. The Federal Circuit held that ION was liable for infringement under § 271(f)(2). WesternGeco, 791 F.3d, at 1347-1349. It Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
songer_direct1	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal in suits against management, for union, individual worker, or government in suit against management; in government enforcement of labor laws, for the federal government or the validity of federal regulations; in Executive branch vs union or workers, for executive branch; in worker vs union (non-civil rights), for union; in conflicts between rival union, for union which opposed by management and "not ascertained" if neither union supported by management or if unclear; in injured workers or consumers vs management, against management; in other labor issues, for economic underdog if no civil rights issue is present; for support of person claiming denial of civil rights. 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. The COMMONWEALTH OF PUERTO RICO on the Relation of Carlos S. QUIROS, Secretary, Department of Labor and Human Resources, Plaintiff-Appellant, v. Louis BRAMKAMP, et al, Defendants-Appellees. No. 724, Docket 79-7777. United States Court of Appeals, Second Circuit. Argued Feb. 4, 1981. Decided July 28, 1981. Paul A. Lenzini, Washington, D. C. (Luis Guinot, Jr., Charles S. Fax, and Lynda Troutman O’Sullivan, Washington, D. C. and Harry H. Wise, New York City, on the brief), for plaintiff-appellant. Thomas F. Bacas, Washington, D. C. (S. Steven Karalekas and Charles, Karalekas, Bacas & McCahill, Washington, D. C., J. Kevin McKay and Hays, St. John, Abram-son & Heilbron, New York City, for defendants-appellees. T. Timothy Ryan, Jr., Sol. of Labor, Nathaniel Baccus, III, Assoc. Sol., Lois G. Williams, Deputy Assoc. Sol., Ruth E. Peters and Harry L. Sheinfeld, Washington, D. C., submitted a brief for the Secretary of Labor, amicus curiae. Before FEINBERG, Chief Judge, NEWMAN, Circuit Judge, and MISHLER, District Judge. Honorable Jacob Mishler, Senior United States District Judge, Eastern District of New York, sitting by designation. MISHLER, District Judge: On January 12, 1979 the Commonwealth of Puerto Rico filed a complaint in the United States District Court for the Southern District of New York against 55 defendants engaged in the apple-growing industry in New York State. The Commonwealth seeks to declare illegal and enjoin alleged discrimination in the hiring and treatment of Puerto Ricans as temporary agricultural laborers. The acts of defendants are claimed to be in violation of the Wagner-Peyser Act of 1933, as amended, 29 U.S.C. §§ 49-49k (Supp.1980), the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. §§ 1101-1524 (Supp.1981), and regulations promulgated thereunder. Shortly prior to the commencement of this action the Commonwealth filed a suit in the United States District Court for the Western District of Virginia against 52 defendants engaged in the apple-growing industry. Commonwealth of Puerto Rico ex rel. Quiros v. Alfred L. Snapp & Sons, Inc., et a 1., Civ. No. 79-0007 (W.D.Va. January 12, 1979). The complaint in the Virginia case is virtually identical to the one in the instant action. The defendants herein moved to dismiss the complaint. One asserted basis for dismissal was that the Commonwealth lacked standing to prosecute the action. On April 17, 1979, Judge Turk of the Western District of Virginia, faced with the identical issue, filed a memorandum opinion and order dismissing the Commonwealth’s complaint on the ground that it lacked standing as parens patriae. Commonwealth of Puerto Rico ex rel. Quiros v. Alfred L. Snapp & Sons, Inc., et al, 469 F.Supp. 928 (W.D.Va. 1979). On September 28, 1979, Judge Duf-' fy filed a memorandum granting defendants’ motion to dismiss the action commenced in the Southern District of New York on the basis of the reasoning found in the decision of Judge Turk. However, the Court of Appeals for the Fourth Circuit subsequently reversed the decision of Judge Turk, finding that the Commonwealth of Puerto Rico has standing as parens patriae. Commonwealth of Puerto Rico ex rel. Quiros v. Alfred L. Snapp & Sons, Inc., 632 F.2d 365 (4th Cir. 1980). Thereafter, argument on this appeal was heard. FACTS Each fall season thousands of temporary farm workers are needed by East Coast apple growers to bring in the apple harvest. Because workers are usually not available in adequate numbers in the immediate locality, growers have customarily employed both out of-state and foreign workers. With respect to foreign labor, the Immigration and Nationality Act, as amended, 8 U.S.C. §§ 1101-1524 (Supp.1981), authorizes the admission of aliens to serve as temporary agricultural laborers only “if unemployed persons capable of performing such service or labor cannot be found in this country.” 8 U.S.C. § 1101(a)(15)(H)(ii). The Immigration and Naturalization Service regulations insure the exhaustion of the domestic work force by requiring that a grower’s petition for the admission of aliens must be accompanied by a certification from the Secretary of Labor that qualified domestic workers are not available. 8 C.F.R. § 214.2(h)(3). The temporary labor regulations issued by the Secretary of Labor provide that such certification will issue only after an active attempt to recruit domestic workers has been made. 20 C.F R. § 655.203(d). The recruitment of domestic workers is usually undertaken through the Interstate Clearance System (the “ICS”), an interacting network of national, state and local employment offices established during the great depression by the Wagner-Peyser Act of 1933, as amended, 29 U.S.C. §§ 49-49k (Supp.1980). To utilize the ICS, a grower must accompany its application for certification to the Regional Administrator of the Department of Labor with a job offer for domestic workers which is referred to and circulated through the ICS network for at least sixty days. The application for certification of a need for foreign labor is granted or denied, in whole or in part, depending on the number of domestic workers who accept jobs through the ICS. The background and allegations relating to discrimination by defendants against Puerto Rican farm workers are as follows: In furtherance of its efforts to reduce unemployment, the Commonwealth, since 1976, has attempted to refer agricultural workers to the East Coast apple growers through the ICS. These efforts have met with resistance on the part of the apple growers who have traditionally employed Jamaican workers. In 1976 and 1977 few Puerto Ricans gained employment through the ICS. It has been established that the growers were legally justified in their unwillingness to hire Puerto Ricans in those years by the existence of Public Law 87 of the Commonwealth which required mainland employers to negotiate service contracts with Puerto Ricans containing provisions more onerous on the employer than those required by federal law, and further, subjected non-complying employers to possible criminal penalties. Hernandez Flecha, et al. v. Quiros, 567 F.2d 1154 (1st Cir. 1977), cert. denied, 436 U.S. 945, 98 S.Ct. 2846, 56 L.Ed.2d 786 (1978) (Public Law 87 rendered Puerto Rican workers “unavailable” within the meaning of the Immigration and Nationality Act). In July 1978 the legislature of Puerto Rico attempted to remedy the problems which had been caused by Public Law 87 by approving an amendment which authorized the Secretary of Labor of Puerto Rico to exempt employers from its requirements. Immediately thereafter, the Secretary of Labor of Puerto Rico, Carlos Quiros, announced his intention to exempt from Public Law 87 the apple growers whose 1978 job orders would be transmitted through the ICS. The Department of Labor, through the ICS, then cleared a total of 2,318 job orders for the East Coast apple harvest to Puerto Rico. On August 14, 1978, certification decisions were made. By that date, only two weeks after the job orders had been cleared to Puerto Rico, Secretary Quiros had already recruited 1,094 Puerto Rican workers. Certification applications of the defendant growers were denied, in whole or in part, because of the apparent availability of Puerto Rican workers to fill the 2,318 job orders. After the certification applications were denied, but before all of the job orders were filled, a number of associations representing East Coast fruit growers filed an action in the United States District Court for the Western District of Virginia seeking an injunction ordering the Secretary of Labor to certify the unavailability of domestic workers for 1,460 jobs and ordering the Commissioner of the Immigration and Naturalization Service to issue 1,460 additional visas for Jamaican workers. The injunction was granted because it appeared unlikely that Puerto Rican workers would be available in sufficient numbers to timely begin the harvest. However, before the beginning of the harvest, Secretary Quiros successfully recruited all of the workers for whom job orders had been received through the ICS. Of the 2,318 workers recruited, 611 were assigned to work for the New York apple growers. In granting the injunction which admitted the Jamaican workers the district court warned the growers that they were not relieved of their responsibility to hire those domestic workers who were present to begin the harvest. Nevertheless, the growers failed to hire many of the Puerto Ricans who had been referred to them. As a result, of those Puerto Ricans recruited only 992 left for the mainland. Flights for the remainder were cancelled following a request to Secretary Quiros by the United States Department of Labor that any further referrals be cancelled since many of the growers were refusing to employ the Puerto Rican workers who had already arrived at the orchards. Of the 386 Puerto Ricans who ultimately arrived at the New York orchards, fewer than 50 were employed to work through the 1978 harvest. DISCUSSION In order to present a justiciable case and controversy a litigant must possess a sufficient interest in the outcome of the action. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). In its capacity as parens patriae a state, and here, the Commonwealth, may sue to “prevent or repair harm to its ‘quasi-sovereign’ interests.” Hawaii v. Standard Oil Co. of Calif., 405 U.S. 251, 258, 92 S.Ct. 885, 889, 31 L.Ed.2d 184 (1972). A state possesses and may assert a quasi-sovereign interest in its general economy, Georgia v. Pennsylvania Railroad Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051 (1945), and in protecting the welfare of its citizens, Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117 (1923). The asserted quasi-sovereign interests will be deemed sufficiently implicated to support parens patriae standing only if “the injury alleged affects the general population of a State in a substantial way.” Maryland, et al. v. Louisiana, - U.S. -, -■, 101 S.Ct. 2114, 2124, 68 L.Ed.2d 576 (1981). The general population need not be directly affected for “even where the most direct injury is to a fairly narrow class of persons, there is precedent for finding state standing on the basis of substantial generalized economic effects.” Commonwealth of Pennsylvania, by Shapp v. Kleppe, 533 F.2d 668, 675 (D.C.Cir.), cert. denied, 429 U.S. 977, 97 S.Ct. 485, 50 L.Ed.2d 584 (1976). Thus, in Georgia v. Pennsylvania Railroad Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051, it was held that the state had standing to enjoin a conspiracy to fix anti-competitive rail rates. While it was the rail companies that were directly affected by the overcharges, the Supreme Court recognized that the citizens of the state indirectly suffered substantially from the alleged violation: Georgia as a representative of the public is complaining of a wrong, which if proven, limits the opportunities of her people, shackles her industries, retards her development, and relegates her to an inferior economic position among her sister States. These are matters of grave public concern in which Georgia has an interest apart from that of particular individuals who may be affected. 324 U.S. at 451, 65 S.Ct. at 723. Similarly, in Missouri v. Illinois, 180 U.S. 208, 21 S.Ct. 331, 45 L.Ed. 497 (1901), where Missouri was granted leave to file a bill seeking to enjoin the discharge of sewage into the Mississippi, it was recognized that “substantial impairment of the health and prosperity of the towns and cities of the state situated on the Mississippi river, including its commercial metropolis, would injuriously affect the entire state.” 180 U.S. at 241, 21 S.Ct. at 344. Accord, Kansas v. Colorado, 206 U.S. 46, 27 S.Ct. 655, 51 L.Ed. 956 (1907). In the instant case, all future migrant workers who might be refused employment due to the alleged unlawful discrimination, and the families of these workers, stand to be directly injured. Even if those directly injured are not substantial enough in number for their interests to be deemed “public,” and therefore properly litigated by the state, compare Maryland, et al. v. Louisiana, - U.S. -, 101 S.Ct. 2114, 68 L.Ed.2d 576; Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117, a broader range of state interests beyond those of the workers are involved. The Commonwealth’s efforts to secure the rights of migrant workers will most significantly benefit the general population whose welfare is dependent upon the health of the Puerto Rican economy. The activities of the growers will significantly affect the economy of Puerto Rico. While the impact on the economy of the unemployed status of the workers and the care of their families is the Commonwealth’s concern, the harm is more fundamental and pervasive. Puerto Rico is confronted with an average adult unemployment rate of 18.5%. For many years the Commonwealth government has attempted to alleviate unemployment by placing Puerto Rican workers in jobs on the mainland. In the period of 30 years prior to 1978, 350,000 Puerto Rican workers were placed in agricultural and non-agricultural jobs on the mainland. In 1978, 3,967 workers were actually placed in agricultural jobs outside the apple industry.' The figures reflect the importance of migrant labor to the economy of Puerto Rico. The Fourth Circuit described the injury resulting from discrimination against Puerto Rican workers as follows: The number of farm workers temporarily employed annually [by the defendants] does not accurately measure the potential effect of the damaged recruitment efforts on all of Puerto Rico’s citizens. The island’s officials are coping with an almost unmanageable unemployment problem. Its economy is in dire straits. The morale of the average Puerto Rican citizen under the circumstances can be expected to be extremely low. Deliberate efforts to stigmatize the labor force as inferior carry a universal sting. ... The apparent inability of the United States government, through the Department of Labor, to grant Puerto Ricans equal treatment with other citizens or even with foreign temporary workers must certainly have an effect which permeates the entire island of Puerto Rico. Residual injuries to the Commonwealth effort are, to say the least, very serious. Commonwealth of Puerto Rico ex rel. Quiros v. Alfred L. Snapp & Sons, Inc., 632 F.2d at 370. A statewide conspiracy to discriminate against Puerto Ricans by apple growers who except for such discrimination would have employed a significant number of Puerto Rican laborers will adversely affect the continuing effort of the Commonwealth to secure work for its citizens. A final factor to consider in determining whether to allow a state to proceed as parens patriae is “the presence or absence of a more appropriate party or parties capable of bringing suit.” Commonwealth of Pennsylvania, by Shapp v. Kleppe, 533 F.2d at 675. While this consideration is derived from the traditional concept of par-ens patriae, that is, the King’s power as guardian of persons under legal disability to act for themselves, a state seeking to proceed as parens patriae need not demonstrate the inability of private persons to obtain relief if parens patriae standing is otherwise indicated. See, e. g., Maryland et al. v. Louisiana,- U.S. -, 101 S.Ct. 2114, 68 L.Ed.2d 576; Georgia v. Pennsylvania Railroad Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051. Rather, “[t]he arguments in favor of allowing such standing become less compelling, as it becomes more feasible to achieve complete relief through suits by the parties actually aggrieved.” Commonwealth of Pennsylvania, by Shapp v. Kleppe, 533 F.2d at 675 n.42. In this case, it is unlikely that the individual Puerto Ricans who were injured by the alleged discrimination in 1978 will achieve the complete relief sought by the Commonwealth. First, the individual workers are separated from the mainland, which would make litigation of the individual claims difficult and costly. There is no assurance that the individual workers could bear the cost of a lawsuit that would achieve complete relief. Moreover, the interests of the individual laborers who were deprived of employment in 1978 are not necessarily coextensive with those of the public which the Commonwealth represents. Thus, even if the workers could marshal the resources to institute and effectively prosecute actions or a class action in their own behalf, there is no assurance that all named defendants herein would be sued or that relief against widespread and future discrimination would be actively pursued. The vindication of the rights of all future migrant laborers and the public of Puerto Rico should not be made dependent upon the possible relief obtained by the individual workers. Accordingly, we believe that the Commonwealth of Puerto Rico has standing as parens patriae to litigate this action. The decision of the district court is reversed and the cause is remanded for further proceedings. . Of the 55 defendants, 30 are employers and 25 are either officers, partners or employees thereof. . Frederick County Fruit Growers Association, Inc. v. F. Ray Marshall, et al, 78 Civ. 0086(H) (W.D.Va. August 31, 1978), appeal dismissed and remanded, 594 F.2d 857 (4th Cir. 1979). . As a Commonwealth of the United States, Puerto Rico may represent its citizens as par-ens patriae. Commonwealth of Puerto Rico ex rel. Quiros v. Alfred L. Snapp & Sons, Inc., et al, 632 F.2d 365, 369 (4th Cir. 1980). The Department of Labor of Puerto Rico is under a statutory duty to promote the interests of laborers. 3 P.R. Laws Ann. §§ 305-06. It is in fulfillment of this obligation that the Secretary of Labor brings this action. . The term parens patriae was traditionally used to refer to “the King’s power as guardian of persons under legal disabilities to act for themselves,” which function passed to the states in this country. Hawaii v. Standard Oil Co. of Calif., 405 U.S. 251, 257, 92 S.Ct. 885, 888-89, 31 L.Ed.2d 184 (1972). Most of the decisions dealing with the right of a state to sue as parens patriae have been made in the context of suits between states or by one state against a citizen of another state in which the original jurisdiction of the Supreme Court has been invoked pursuant to Article III, § 2 of the United States Constitution. Nevertheless, the basic principles of parens patriae standing discussed in those cases have application to suits by a state against a citizen of another state at the district court level. In order to properly invoke the original jurisdiction of the Supreme Court a state must initially prove that the lawsuit has been brought to protect state interests and not those of its individual citizens. Maryland, et al. v. Louisiana, -U.S. -,-, 101 S.Ct. 2114, 2124, 68 L.Ed.2d 576 (1981). Additional considerations are involved in a determination of whether to exercise jurisdiction in original suits. In all such suits the Court will exercise jurisdiction only when plaintiff has “established the ‘strictest necessity’ required for invoking [the] Court’s original jurisdiction.” Maryland, et al. v. Louisiana, - U.S. at -, 101 S.Ct. at 2136 (Rehnquist, J., dissenting) (quoting Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 505, 91 S.Ct. 1005, 1013, 28 L.Ed.2d 256 (1971). Eleventh Amendment considerations are also involved in suits between states. See, e. g., New Hampshire v. Louisiana, 108 U.S. 76, 2 S.Ct. 176, 27 L.Ed. 656 (1883). . The quasi-sovereign interest first recognized was that “independent of and behind the titles of its citizens, in all the earth and air within its domain,” Georgia v. Tennessee Copper Co., 206 U.S. 230, 237, 27 S.Ct. 618, 619, 51 L.Ed. 1038 (1907), which allowed states to proceed as par-ens patriae to protect their vital natural resources. E. g., New York v. New Jersey, 256 U.S. 296, 41 S.Ct. 492, 65 L.Ed. 937 (1921) (suit to enjoin New Jersey from directing sewage into New York Bay); Georgia v. Tennessee Copper Co., 206 U.S. 230, 27 S.Ct. 618, 51 L.Ed. 1038 (1907) (suit to enjoin manufacturing company from discharging noxious gas over five Georgia counties); Kansas v. Colorado, 206 U.S. 46, 27 S.Ct. 655, 51 L.Ed. 956 (1907) (suit to enjoin the diversion of water from the Arkansas River); Missouri v. Illinois, 180 U.S. 208, 21 S.Ct. 331, 45 L.Ed. 497 (1901) (suit to enjoin discharge of sewage into the Mississippi). . Affidavit of Manuel Rodriguez Escalera, Assistant Director, Migration Division, Department of Labor (March 21, 1979). . Shortly after this action was dismissed by the district court a class action suit was filed on behalf of mainland and Puerto Rican migrant workers against certain New York apple growers. The suit was brought in part by 13 Puerto Rican workers involved in the 1978 harvest who seek damages and injunctive relief against some of the same defendant apple growers sued by the Commonwealth in this case. Juan Valderrama Rios, et al. v. Secretary of Labor F. Ray Marshall, et al., No. 79 Civ. 5711 (S.D.N.Y. October 22, 1979). . We also note that the Commonwealth in this case seeks injunctive relief only. Therefore, even if the individual workers were successful in recovering damages from some or all of the growers there would be no possibility of double recovery in damages. Such a possibility would weigh against a finding of parens patriae standing. Hawaii v. Standard Oil Co. of Calif., 405 U.S. at 261-62, 92 S.Ct. at 891. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_method	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc. Marvin HOLMAN, Appellant, v. CENTRAL ARKANSAS BROADCASTING CO., INC., Sgt. Ronald W. Stobaugh, Patrolman Jackie Race and Carl Connerton, Appellees. No. 79-1333. United States Court of Appeals, Eighth Circuit. Submitted Nov. 6, 1979. Decided Dec. 12, 1979. Gregory G. Smith, Pryor, Robinson, Taylor & Barry, Fort Smith, Ark., for appellant. Cyril Hollingsworth, Davidson, Plastiras, Horne, Hollingsworth & Arnold, Little Rock, Ark., for appellee, Central Arkansas Broadcasting Co. Edward A. Gordon, Gordon & Gordon, Morrilton, Ark., for appellee, Stobaugh. Before LAY, BRIGHT and McMILLIAN, Circuit Judges. LAY, Circuit Judge. Summary judgment was granted defendants Central Arkansas Broadcasting Company, Inc., Carl Connerton, a news reporter, and police officers Ronald W. Stobaugh and Jackie Race, in a suit brought by Marvin Holman under 42 U.S.C. § 1983 for alleged invasion of Holman’s right of privacy and other civil rights. Holman also alleged a claim under 18 U.S.C. § 2520. We affirm. On November 20, 1975, Holman and his wife were stopped on the highway at approximately 3:56 A.M., and taken to the Russellville, Arkansas police station. Holman was charged with the offense of driving while intoxicated, second offense, and using profane and abusive language; Mrs. Holman was charged with public drunkenness. Holman, an attorney, had formerly served as municipal judge. The original complaint alleged the police officers, acting under color of state law, entered into a conspiracy with Connerton to publish an embarrassing news account of Holman’s arrest and subsequent behavior. Holman was allowed to privately confer with his retained counsel, Robert Hays Williams, at 4:30 A.M. in a private lounge. Williams later represented Holman at his trial in municipal court. Holman’s young associate, an attorney named Roderick Weaver, came to the jail shortly after 5:30 A.M. to secure the release of Holman and his wife on bond. The police informed him they would not release the Holmans until 9:00 A.M. Upon his return he observed at least two persons who were not police officers, one of whom he later learned was Mr. Connerton, a news reporter. When he went to Holman’s cell he noticed Connerton was in the cell block a short distance behind him and had a tape recorder in his hand. Weaver told Connerton not to record any conversation between himself and Holman. According to Weaver, Connerton appeared to walk away. At this time, Holman’s wife was taken from her cell for fingerprinting and photographing. According to the affidavits of three police officers, Holman was hitting and banging on his cell door, hollering and cursing from the time of his arrest until his release at approximately 9:00 A.M. The police communications operator stated Holman became abusive and refused to cooperate when she tried to give him a gas chromatograph test. When placed in the holding cell, he started hollering, cussing and screaming. Her affidavit states: He [Holman] began calling the officers present and myself vulgar names. This was going on throughout the morning and was still going on when I left at 8:00 a. m. At approximately 6:00 a. m. on that morning, November 19, 1975, KARV Radio Station called and wanted to know what was going on, that they were hearing a lot of noise. I told them it was just a drunk and I did not give them any names. KARV Radio Station is located about a block east of the police station. Prior to the time I left at 8:00 a. m. no member of any news media had arrived at the police station and to my knowledge no telephone call was made from the police station to any member of the news media. James L. Guhl, an officer in the detective division, arrived between 8:00 and 8:30 A.M. He stated: When I arrived I went to my office which is close to the holding cells I could hear quite a commotion going on back around the cells. Someone was hollaring [sic], banging and cursing. When I got to the office Detective Holt was there, and I asked him what was going on. He told me that Marvin Holman had been arrested the night previous for DWI and that this had been going on quite awhile; that is, since he had been arrested he had been banging on the door, etc. During the time that I was in the police department, I heard the constant banging Mr. Holman was making either with his hands or shoes against the cell door. He was cursing and saying that if they would let him out of the holding cell he would whip several of the officers. When they took his wife out of the holding cell to be processed he shouted that the officers had better not put their hands on his wife, that she did not have to submit to that. No credible evidence appears in the record that Connerton recorded any confidential information. It is obvious from the affidavits that the words broadcast could be heard by others in the police station. Holman argues the Fourth and Sixth Amendments create a “zone” of privacy which was violated by Connerton’s recording and publishing of Holman’s statements. The simple answer to this contention is that the boisterous complaints which were recorded were not made with the expectation of privacy or confidentiality. Neither Weaver nor Holman asserts confidential legal advice was given. The evidence demonstrates unequivocally that Holman was simply complaining loudly while Weaver tried to quiet him down in order to arrange his release. Even assuming the police called the news reporter to the station and allowed him to enter the cell block, no right to privacy is invaded when state officials allow or facilitate publication of an official act such as an arrest. See Paul v. Davis, 424 U.S. 693, 712-13, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491-93, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975). Although Weaver asked Connerton not to record Holman’s statements, they were made loudly and in such a manner as to attract attention. Connerton could not be prevented from reporting the statements he could so easily overhear aurally; use of a device to record them cannot create a claim for invasion of privacy when one would not otherwise exist. We recognize the important and vital right to private consultation that is basic to effective representation by counsel flows from the confidential relationship between an accused and his counsel. However, the undisputed facts distinguish this case from those in which that right is protected. Cf. Coplon v. United States, 89 U.S.App.D.C. 103, 191 F.2d 749 (D.C.Cir. 1951), cert. denied, 342 U.S. 926, 72 S.Ct. 363, 96 L.Ed. 690 (1952) (interception of telephone conversations between accused and counsel before and during trial). Here there was no attempt to record or overhear statements made with an expectation of privacy. Holman’s boisterous complaints were obviously not intended for Weaver’s ears alone. The tape demonstrates this. Holman amended his complaint to allege a second count under 18 U.S.C. §§ 2510, 2520 for unlawful interception of an oral communication. The same reasoning that defeats his section 1983 claim applies to this one. The facts clearly show Holman’s remarks were not uttered with an expectation that his communication would be private, that is, not subject to interception; nor were they uttered under circumstances justifying such an expectation. 18 U.S.C. § 2510(2); United States v. Carroll, 337 F.Supp. 1260, 1262 (D.D.C.1971). Under the circumstances, Holman’s claim for unlawful interception must fall as well. As Judge Van Sickle, presiding over the district court, wrote in granting summary judgment: The Plaintiff knew he was being interviewed. He knew the newsman had recording equipment. He yelled and swore at the top of his voice. He slammed the bars and produced loud and attention getting noises. He made no effort to communicate confidentially to his attorney. In fact, his attorney was busy trying to silence him long enough to get him out of the public place. Judgment affirmed. . Section 2520 of Title 18 provides civil liability for unlawful interception of an oral communication. See 18 U.S.C. §§ 2510-20. . The factual allegations of the complaint foreshadowed the shortcomings in Holman’s case: Mr. Connerton was let into the cell block where is located the cell in which the plaintiff [Holman] was incarcerated, and an area where nonauthorized personnel are excluded (and Mr. Connerton was not an authorized person) for the purpose of recording on tape recording equipment a conversation being carried on between the plaintiff and his attorney, Mr. Rick Weaver. At that time and place the plaintiff was quite exercised because of the treatment which he had received from the police department of the City of Russellville and because of the treatment which his wife at that time was receiving and was in the process of protesting loudly and profanely to his attorney about such treatment. Mr. Connerton recorded that conversation, a conversation in which the plaintiff was obviously emotionally disturbed, and then proceeded to broadcast that recording over radio station KCAB for the purpose of causing embarrassment and humiliation to the plaintiff, and which broadcast achieved its purpose (emphasis added). . The legislative history of 18 U.S.C. § 2510 discusses the definition of “oral communication” as an utterance made under circumstances justifying an expectation that it is not subject to interception: The person’s subjective intent or the place where the communication is uttered is not necessarily the controlling factor. Compare Linnell v. Linnell [249 Mass. 51], 143 N.E. 813 (Mass. 1924), with Freeman v. Freeman [238 Mass. 150], 130 N.E. 220 (Mass.1921). Nevertheless, such an expectation would clearly be unjustified in certain areas; for example, a jail cell (Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218 [8 L.Ed.2d 384] (1962)) or an open field (Hester v. United States, 265 U.S. 57, 44 S.Ct. 445 [68 L.Ed. 898] (1924)). Ordinarily however, a person would be justified in relying on such expectation when he was in his home (Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679 [5 L.Ed.2d 734] (1961)) or office (Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873 [18 L.Ed.2d 1040] (1967)), but even there, his expectation under certain circumstances could be unwarranted, for example, when he speaks too loudly. See State v. Cartwright, [246 Or. 120], 418 P.2d 822 (Ore.1966), certiorari denied 386 U.S. 937, 87 S.Ct. 961 [17 L.Ed.2d 810] (1967). S.Rep. No. 1097, 90th Cong., 2nd Sess., reprinted in [1968] U.S.Code Cong. & Admin.News, p. 2178 (emphasis added). Section 802 of the Omnibus Crime Control and Safe Streets Act of 1968 was revived by section 20(c) of the Omnibus Crime Control Act of 1970. See Act Jan. 2, 1975, P.L. 93-609, § 4, 88 Stat. 1973. Question: What is the nature of the proceeding in the court of appeals for this case? A. decided by panel for first time (no indication of re-hearing or remand) B. decided by panel after re-hearing (second time this case has been heard by this same panel) C. decided by panel after remand from Supreme Court D. decided by court en banc, after single panel decision E. decided by court en banc, after multiple panel decisions F. decided by court en banc, no prior panel decisions G. decided by panel after remand to lower court H. other I. not ascertained Answer:
songer_jurisdiction	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer". John N. FLOOD, M.D., Plaintiff-Appellant, v. John MARGIS, Jr., et al., Defendants-Appellees. No. 71-1238. United States Court of Appeals, Seventh Circuit. Argued April 11, 1972. Decided May 23, 1972. John N. Flood, M.D., for plaintiff-appellant. Dennis J. Flynn, Corp. Counsel, County of Racine, Racine, Wis., John E. Feld-bruegge, Milwaukee, Wis., Rex Capwell, David J. Nolden, Racine, Wis., for defendants-appellees. Before DUFFY, HAMLEY, and KILEY, Circuit Judges. The Honorable Frederick G. Hamley, United States Circuit Judge of the Ninth Judicial Circuit, sitting by designation. HAMLEY, Circuit Judge. John N. Flood, presently a citizen of California, operated a mobile home and park business in the Town of Caledonia, Racine County, Wisconsin, a municipal corporation (Caledonia), from 1948 until 1966. Beginning in 1953, Flood operated this business pursuant to a license issued by Caledonia. In 1964, however, Caledonia officials refused to renew the license. In 1967, proceeding in propria persona, Flood filed his original complaints in two damage actions involving the refusal to issue a renewal license, and other grievances. One of these complaints named Caledonia as a defendant and the other named John Mar gis, Jr., a former town chairman of Caledonia, and others, as defendants. As the result of a pretrial conference, the district court, characterizing the complaints as “an utter obfuscation of the issues,” entered an order to the effect that Flood should endeavor to obtain competent legal counsel to assist him in preparing and filing new pleadings. Flood, however, filed personally-prepared amended complaints adding new individual defendants. The amended complaint consisted of one hundred and twenty-four numbered paragraphs divided under twenty-two counts. The district court then dismissed the actions without prejudice, holding that Flood’s claim for relief was not a short and plain statement as required by Rule 8(a), F.R.Civ.P., and the averments were not simple, concise and direct as required by Rule 8(e) (1), F.R.Civ.P. This court affirmed on November 3, 1969, in an unreported order. Flood, still proceeding in propria persona, then filed another complaint, seeking damages in the sum of one million dollars, by reason of the grievances previously alleged, plus additional alleged grievances. In addition to Caledonia, Flood named as defendants Kenneth Hostak, Caledonia’s attorney, Joseph Blessinger, Sheriff of Racine County, six present or former officials of Caledonia, and ten “Does.” All of the named defendants moved'to dismiss the action and for increased security for costs. Some of the defendants moved that the action be abated pending the outcome of certain state court proceedings. The defendant sheriff also moved for a more definite statement. Plaintiff moved for summary judgment and to strike an allegedly defective affidavit of one of the defendants. In a decision and order reported sub nom. Flood v. Margis et al., 322 F.Supp. 1086 (E.D.Wis.1971), the district court denied plaintiff’s motion for summary judgment and dismissed the action with prejudice. The court did not rule on defendants’ motion to abate the action pending the outcome of pending state court proceedings, or on their motion for increased security for costs. Flood appeals. In the complaint upon which this appeal is based, Flood invokes district court jurisdiction under the Civil Rights Act (28 U.S.C. § 1343 and 42 U.S.C. §§ 1981, 1982, 1983 and 1985), federal question (28 U.S.C. § 1331), and diversity of citizenship (28 U.S.C. § 1332). The central theme of this pleading is the refusal of Caledonia’s officials to renew Flood’s license for the operation of his mobile home and park business. But the grievances adverted to in the pleading range over a broad spectrum of transactions going back as far as 1955. Among these alleged grievances are the “invasion” of plaintiff’s attorney-client relationship, the “misuse” of state courts to deprive plaintiff of his constitutional rights, the violation of an “oral gentlemen’s agreement,” a conspiracy to effect an unconstitutional arrest of plaintiff, unlawful interference with contracts benefiting plaintiff, the arbitrary raising of license fees without due process of law, the refusal to renew plaintiff’s license in deprivation of due process of law, defendant sheriff’s refusal to enforce the law, the action of the sheriff in selling plaintiff’s park property without prior notice, and libel and slander. Concerning all of these grievances except those relating to the alleged arbitrary raising of license fees without due process of law, and the alleged arbitrary refusal to renew plaintiff’s license in deprivation of due process of law, we agree with the district court’s determination, and for the reasons stated by the district court, that plaintiff failed to state a claim upon which relief can be granted. The grievances pertaining to the raising of license fees and the refusal to renew Flood’s license are, for the most part, stated in paragraphs 10, 11, 12, 15 and 16 of the complaint. They are dealt with in section VI of the district court’s opinion. (322 F.Supp. 1086, at 1093-1094). The district court ruled that these paragraphs did not state a claim under the Civil Rights Act because the grievances related only to property rights. The district court also held that these paragraphs did not state a claim cognizable under federal question jurisdiction (28 U.S.C. § 1331) because the grievances pertain only to violations of state law with respect to hearings and postings and are therefore matters exclusively for the state courts. The district court rendered its decision on January 15, 1971. On March 23, 1972, in Lynch v. Household Finance Corporation, 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424, the Supreme Court held that property rights as well as personal liberties may be vindicated under the Civil Rights Act. It follows that the reason given by the district court for ruling that the paragraphs of the complaint now under discussion fail to state a claim under the Civil Rights Act, is no longer sound. With regard to paragraphs 10, 11, 12, 15 and 16 of the new complaint, the district court had jurisdiction under that Act. With regard to federal question jurisdiction, Flood alleged that the raising of license fees, and the refusal to renew his license, was in violation of state law and deprived him of due process. The district court held that where the asserted deprivation of due process results from the alleged violation of a state law no federal question under the Fourteenth Amendment is involved. The court relied primarily upon Barney v. New York, 193 U.S. 430, 24 S.Ct. 502, 48 L.Ed. 737 (1904), although conceding that Barney had often been criticized, and upon East Coast Lumber Terminal v. Town of Babylon, 174 F.2d 106 (2d Cir. 1949). The reasoning of these cases is that the Fourteenth Amendment, with its Due Process Clause, is directed against state action, and if public officials proceed in violation of state law, this does not constitute state action, and the controversy must be dealt with in the state courts. The Barney decision has been so distinguished and qualified that it is no longer authoritative. See United States v. Raines, 362 U.S. 17, 25-26, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960); Home Telephone and Telegraph Company v. City of Los Angeles, 227 U.S. 278, 294, 33 S.Ct. 312, 57 L.Ed. 510 (1912). The proper rule, as stated in Home, is as follows: “ . . . where a state officer, under an assertion of power from the state is doing an act which could only be done upon the predicate that there was such power, the inquiry as to the repugnancy of the act to the Fourteenth Amendment cannot be avoided by insisting that there is a want of power.” (227 U.S., at 288, 33 S.Ct. at 315). We conclude that paragraphs 10, 11, 12, 15 and 16 of the new complaint properly invoke federal question jurisdiction under 28 U.S.C. § 1331. The district court did not deal with the question of whether these paragraphs of the complaint are cognizable under the court’s diversity jurisdiction. (28 U.S.C. § 1332). For present purposes we assume that they are. Since Caledonia is a municipal corporation, it is not a “person” within the meaning of the Civil Rights Act. Monroe v. Pape, 365 U.S. 167, 187-192, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). The action should accordingly be dismissed in toto against that defendant insofar as the Civil Rights Act jurisdiction is concerned. We do not now undertake to say whether, insofar as federal question and diversity jurisdiction are concerned, the action should be dismissed against Caledonia, and we leave those questions to the district court on remand. Paragraphs 10, 11, 12, 14, 15 and 16 of the complaint do not purport to state any claim against Caledonia’s attorney, Kenneth Hostak, or Sheriff Joseph Bles-singer. The action should therefore be dismissed outright as to them. The order of dismissal is vacated and the' cause is remanded for entry of an order in conformity with this opinion, and for further proceedings in the cause including determination of pending motions not yet disposed of by the district court. . The district court opinion fails to discuss substantive allegations contained in paragraphs 6, 14, 22 and 27 of the new complaint. We regard the substantive allegations of paragraphs 6, 22 and 27 as being too vague and conclusory to state a claim upon which relief can be granted. In our view paragraph 14 of the new complaint contains clear, particular and concise allegations bearing upon the failure of Caledonia to renew Mood’s license, a claim also dealt with in paragraphs 15 and 16. Our holding, stated below, that paragraphs 15 and 16 state a claim should also embrace paragraph 14. . In Monroe v. Pape, 365 U.S. 167, 171-172, 81 S.Ct. 473, 476, 5 L.Ed.2d 492 (1961), the Supreme Court said: “There can be no doubt at least since Ex parte Virginia, 100 U.S. 339, 346-347, [25 L.Ed. 676], that Congress has the power to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it. See Home Tel. & Tel. Co. v. Los Angeles, 227 U.S. 278, 287-296 [33 S.Ct. 312, 314, 318, 57 L.Ed. 510].” . See footnote 1, indicating that this ruling and the ruling concerning the application of the Civil Rights Act to these paragraphs also applies to paragraph 14. Question: Did the court determine that it had jurisdiction to hear this case? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_appel1_7_3	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the race or ethnic identity of this litigant as identified in the opinion. Names may be used to classify a person as hispanic if there is little ambiguity. All aliens are coded as "not ascertained". UNITED STATES of America, Plaintiff-Appellee, v. Asnaldo SANCHEZ, a/k/a Hernando, Jesus Gonzalez, Defendants-Appellants. No. 81-5708. United States Court of Appeals, Eleventh Circuit. Jan. 16, 1984. Rehearing Denied Feb. 23, 1984. Carl L. Masztal, Miami, Fla., for Sanchez. Sheryl Joyce Lowenthal, Miami, Fla., for Gonzalez. Caroline Heck, Asst. U.S. Atty., Jon A. May, U.S. Atty., Miami, Fla., for plaintiff-appellee. Before FAY and KRAVITCH, Circuit Judges, and ATKINS, District Judge. Honorable C. Clyde Atkins, U.S. District Court Judge for the Southern District of Florida, sitting by designation. KRAVITCH, Circuit Judge: The appellants, Asnaldo Sanchez and Jesus Gonzalez, were tried and convicted by a jury of conspiracy to import cocaine in violation of 21 U.S.C. §§ 952(a) and 963, and of attempt to import cocaine in violation of 21 U.S.C. §§ 952(a) and 963 and 18 U.S.C. § 2. Gonzalez was also found guilty on two counts of importation of cocaine, 21 U.S.C. § 952(a) and 18 U.S.C. § 2, and two counts of possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. I. BACKGROUND The appellants’ convictions arose out of an extensive Drug Enforcement Agency (DEA) undercover operation known as Operation Grouper investigating the drug trade in the Bahamas and South Florida. Two of the agents involved in Operation Grouper, Thomas Weed and Peter Sarron, were the primary witnesses for the government at trial. They testified to three different occasions when the appellants had acted to bring cocaine into the United States. Agent Weed testified that he and a confidential informant, Thomas Mallis, had met on the night of July 26, 1979 with Gonzalez and Emilio Carreras and that they had proceeded to a hotel where they met with two Colombians, Carlos Zaccour and a man identified as Hernando. Zaccour gave Weed two suitcases with fake compartments that he said contained five kilograms of cocaine. The group returned to Gonzalez’s boat, a yellow, twenty-four foot For-muía, and the packets, after some difficulty, were placed in secret compartments in the boat’s deck. The compartments were then treated by Gonzalez with fiberglass and painted over to match the deck’s color. Early the next morning, Gonzalez and Carr-eras departed for the United States with the packets secreted aboard the boat. Gonzalez had told Weed that he was to receive $5,000 per kilogram for smuggling the cocaine. Although Weed alerted Customs Officials in Florida, the shipment was never intercepted. On August 8,1979, however, Weed visited Gonzalez at his home in Miami and asked him if they had succeeded in smuggling the cocaine. Gonzalez replied that they had gotten the cocaine in, but that he had made only $10,000. Gonzalez also told Weed that the cocaine was for a friend of Sanchez’s named Rafael. Weed further testified that on August 16, 1979, he ran into Sanchez at a convenience store in Miami and that he had asked him if they had succeeded in smuggling the cocaine. Sanchez replied that they had been successful, but that he had personally not made any money. Upon being asked by Weed whether he appreciated Weed’s help, Sanchez replied affirmatively. The second incident took place on September 29, 1979, when a Customs aircraft followed the yellow Formula from the Bahamas to Miami. Upon docking, the boat was seized on the pretext that it had not cleared Customs. The boat’s two occupants were Gonzalez and Carreras. The vessel was then taken to the Customs House where 1.64 kilograms of cocaine were discovered in the secret compartments. A sham cocaine substance was substituted, and the boat was returned to Gonzalez after he paid a $1500 fine. Agent Sarron testified that six days later, on October 5, 1979, he and Mallis met with Sanchez at Sanchez’s home and that Sanchez told him that he wanted his help in bringing in two suitcases of cocaine from the Bahamas. Sanchez also told Sarron of Gonzalez’s experience with the boat being seized and stated that, although no one had been arrested, the cocaine had been no good and had to be discarded. That same evening Sarron met with Gonzalez and was again told about the boat being seized and the cocaine turning out to be bad. Gonzalez also solicited Sarron’s help in bringing in another shipment of cocaine. The final episode took place on October 7, 1979. United States Customs Agents, maintaining surveillance for the yellow Formula, spotted it arriving at the marina shortly after sunrise. Gonzalez and Carrer-as were stopped as they were about to tow the boat out of the marina, and the boat, along with the truck and trailer, was again seized. A search of the boat led to the discovery of over four kilograms of cocaine hidden in the boat’s deck compartments. When Gonzalez returned to claim the boat two days later, he was read his rights by a Customs Officer and informed that cocaine had been discovered aboard the boat. Gonzalez disclaimed any knowledge of the cocaine and also denied knowing how to use fiberglass or having had any work done on the boat within the last thirty days. He was then released, but the boat was kept by Customs. On December 6, 1979, Sanchez told Weed and Sarron that Gonzalez’s boat had been seized but that Gonzalez had not been arrested. At a later meeting, on September 4, 1980, Sanchez again informed Weed that Gonzalez had lost his truck, trailer, and boat, but that Gonzalez was lucky to not have been arrested. Sanchez, Gonzalez, and Carreras all testified at trial, each denying any involvement in a conspiracy to import cocaine. They admitted that they knew Agents Weed and Sarron, but only as friends and did not know of their involvement in the drug trade. Sanchez also claimed he was in New York on business on August 16, 1979, the date on which Weed stated he had met Sanchez at the convenience store. Both Sanchez and Gonzalez challenge their convictions on several grounds: that there was insufficient evidence to support their convictions, that the court improperly admitted coconspirator hearsay statements into evidence, and that they were denied a fair trial due to certain prejudicial answers by government witnesses. Gonzalez also attacks his convictions on the charges arising out of the October 7, 1979 episode as violative of his rights to a speedy trial and due process. II. SUFFICIENCY OF THE EVIDENCE Challenges to the sufficiency of the evidence are measured by the standard delineated in United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B) (en banc), aff’d on other grounds, - U.S. -, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983): It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided that a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt. A jury is free to choose among reasonable constructions of the evidence. In making this determination, we must view the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and accept reasonable inferences and credibility choices by the fact-finder, United States v. Gonzalez, 719 F.2d 1516, 1521-22 (11th Cir.1983). A. The Conspiracy Charges To establish a conspiracy, the government must prove that “there was an agreement between two or more persons to commit a crime, that each conspirator knew of, intended to join, and participated in the conspiracy.” United States v. Glasgow, 658 F.2d 1036, 1040 (5th Cir. Unit B 1981). An overt act is not required, only proof that the defendant conspired to commit the prohibited offense. United States v. Anderson, 651 F.2d 375, 379 (5th Cir. Unit A 1981). The evidence presented by the government establishes that both Gonzalez and Sanchez were participants in a conspiracy to import cocaine. The evidence shows that Gonzalez on three separate occasions, with Carreras’ help, brought cocaine into the United States from the Bahamas; twice the shipments were seized. The evidence also shows that Gonzalez’s acts were part of an agreement with other individuals, namely Zaccour and Sanchez, to import cocaine in violation of United States law. Although Gonzalez denied any knowledge of the transactions, the credibility choice between Gonzalez’s testimony and that of the government agents was for the jury. Gonzalez, supra. Likewise, the testimony of Agent Sarron establishes Sanchez’s role in the conspiracy. In a meeting with Sarron on October 5, 1979, Sanchez actively solicited the agents’ assistance in bringing into the United States two suitcases of cocaine that Zaccour was holding in the Bahamas. Sanchez’s knowledge of the conspiracy was also evidenced by his conversations with the agents when he related in detail what had happened to the various shipments Gonzalez had brought into the United States. B. The July 26, 1979 Attempt to Import Both Sanchez and Gonzalez contend that there was insufficient evidence verifying either that the substance involved in the July 26, 1979 shipment was cocaine or that it ever reached the United States. Each also individually challenges the sufficiency of the evidence linking them to the attempt to import. Although the identity of a narcotic must be established beyond a reasonable doubt, its nature may be established through circumstantial evidence. United States v. Crisp, 563 F.2d 1242 (5th Cir.1977). Agent Weed testified that, based on eleven years as a drug enforcement agent, he believed that the substance he was helping place in Gonzalez’s boat was cocaine. See United States v. Ferguson, 555 F.2d 1372, 1373 (9th Cir.1977) (experienced officer may identify substance with which he is familiar). Furthermore, the substance was referred to as cocaine by Gonzalez and Zacc-our during the loading and by Gonzalez and Sanchez after it arrived. Based on Weed’s testimony, and our obligation to accept reasonable inferences and credibility choices by the fact-finder, Gonzalez, supra, we find sufficient evidence to support the jury’s determination that the substance was cocaine. The appellants’ contention that there is insufficient evidence to show that the cocaine actually reached the United States is also without merit. To be convicted of attempt to import narcotics, the narcotics need not actually reach the United States. United States v. Perez-Herrera, 610 F.2d 289, 291 (5th Cir.1980). Moreover, Agent Weed testified that both Gonzalez and Sanchez acknowledged on different occasions that the cocaine had been successfully imported. Gonzalez’s actual participation in the attempted importation is amply supported by the evidence. Weed testified to watching Gonzalez place the packages of cocaine in the secret compartments of the boat and then fiberglassing over the areas and painting them. He also related a conversation with Gonzalez on August 8, 1979, in which Gonzalez told him that he had received $10,-000 for successfully importing the cocaine. Likewise, we find sufficient evidence under the Bell standard to uphold Sanchez’s conviction. In the October 5, 1979 meeting with Agent Sarron, Sanchez informed Sarron that Weed had been very helpful in bringing in the July 26th shipment of cocaine. Sanchez had also told Weed in their August 16, 1979 conversation at the convenience store that the cocaine had arrived and that he appreciated Weed’s help. From this testimony, the jury could have reasonably concluded that Sanchez had an active part in importing the July 26th shipment. C. The September 29, 1979 and October 7, 1979 Shipments Gonzalez was also convicted of knowingly and intentionally importing cocaine and possession of cocaine with intent to distribute for each of the two shipments on September 29,1979 and October 7, 1979. Both shipments were seized when Gonzalez’s boat was impounded on the pretext that he had not registered with U.S. Customs upon entering the United States. The September 29th shipment was replaced with the sham cocaine substitute, while Gonzalez was confronted with the fact that cocaine had been found aboard the boat when it was seized on October 7th. Gonzalez in his testimony denied any knowledge of the shipments or that he knew how to use fiberglass so as to seal the secret compartments where the cocaine was found. Agent Sarron testified, however, that on October 5, 1979, Gonzalez told him that his boat had been impounded and that the cocaine (the sham substitute) had turned out to be no good; at that same meeting, Gonzalez made arrangements for the October 7th shipment. Moreover, Weed testified that he had observed Gonzalez use fiberglass and paint to conceal the secret compartments for the July 26th shipment, further contradicting Gonzalez’s testimony. Finally, Sanchez on a number of occasions subsequent to the seizure of the shipments related to both Agents Weed and Sarron that Gonzalez’s boat had been impounded but that Gonzalez had been lucky not to have been arrested. Based on this evidence, a jury could have reasonably found Gonzalez guilty of the charges arising out of these shipments. III. ADMISSION OF COCONSPIRATOR STATEMENTS The appellants also contend that the admission into evidence of hearsay statements by coconspirators violated United States v. James, 590 F.2d 575 (5th Cir.), cert. denied 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). Coconspirator statements are admissible only if the court finds that the government has shown by substantial, independent evidence that: (1) a conspiracy existed, (2) the defendant and de-clarant were both part of the conspiracy, and (3) the statements were made during the course of and in furtherance of the conspiracy. James, supra at 581; United States v. Yonn, 702 F.2d 1341 (11th Cir.1983). The court’s findings as to the admissibility of the statements are subject to a clearly erroneous standard of review, United States v. Bulman, 667 F.2d 1374, 1379 (11th Cir.), cert. denied 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982). At the conclusion of the government’s case, the judge heard argument from counsel on the James issue and held: The Court finds, I think clearly and convincingly], certainly by a preponderance of the evidence, and if I were the trier of fact, could possibly [find] by beyond a reasonable doubt that there is substantial independent evidence linking these defendants to a conspiracy, that the statements that the Government has elicited were made by one who had joined in the conspiracy with the party against whom the statement was offered; that the statements were made during the course of that conspiracy, and the statements were made in furtherance of the conspiracy. The appellants argue that the district court erred because a separate, pretrial James hearing should have been held before the jury heard the evidence. A separate James hearing prior to the presentation of the government’s case-in-chief, however, is not required. United States v. Roe, 670 F.2d 956, 962 (11th Cir.1982). The judge, therefore, did not err in deciding the James issue until after the government had introduced the statements into evidence. Nor, after reviewing the record, do we find that the trial court erred in determining that the James prerequisites for admission of the statements were met in this case. IV. PREJUDICIAL REMARKS BY GOVERNMENT WITNESSES The appellants further allege that they were denied a fair trial because Agents Weed and Sarron made several prejudicial remarks while testifying. Agent Weed, when describing his July 26, 1979 meeting with Zaccour and Gonzalez, testified that Zaccour had shown him false passports, a crime not charged in the indictment; the trial judge gave a curative instruction to the jury to disregard the testimony. Later in his testimony, Weed stated that Sanchez had requested him to go to Colombia to pick up a load of marijuana, which was also not part of the indictment. The judge again gave a curative instruction and asked the jury if anyone could not disregard the evidence; all the jurors indicated they could obey the instruction. Finally, Agent Sarron testified that Gonzalez, while telling him that the cocaine involved in the September 29th shipment had turned out to be bad, stated: [Gonzalez] said, “I paid [the fine]. I got the boat back, but the cocaine was no good. We throw it away.” He said, “two people, bang bang, get killed because of this.” Agent Sarron’s description of the conversation was accompanied by a gesture whereby Sarron pointed his finger at his head as if holding a gun. The court denied the defendants’ motion for a mistrial, and instead gave a curative instruction and individually polled the jurors to determine whether they could disregard the statement. We agree with the district court that the above statements were improper, as any probative value was outweighed by their prejudicial effect. See F.R.Evid. 403. The statement by Agent Sarron, by implying that uncharged murders had taken place, was especially inappropriate; as the trial judge advised government counsel, “In my humble judgment, you made a terrible mistake.” The district court, therefore, acted properly in striking the disputed testimony. Deciding that the testimony was improper, however, is only the first step of our inquiry. We must further decide whether, in light of the court’s curative actions, any resulting prejudice prevented the defendants from receiving a fair trial. In United States v. Barnes, 681 F.2d 717 (11th Cir.1982), the government’s witness testified that the defendant had made a death threat, and the trial judge gave a curative instruction to disregard the testimony and collectively polled the jury. We held that although the statement was prejudicial, the trial court’s instruction cured any potential prejudice to the defendant. Id. at 725. Similarly, the trial judge here gave an extensive curative instruction: Just immediately prior to your recess, there was some testimony which was the result of a statement of what purported to have been said which may have happened because certain of the cocaine was not good. That is not a proper statement to present to you. The matter is completely irrelevant and has no bearing on this case, whatsoever, and I have to instruct you to completely and unequivocally disregard any inference of any kind that may be drawn from that testimony. Now, it may mean that one of you will be able to look up to me and say, “Judge I do not think I can do that,” and if you cannot, do not hesitate. Do not be reluctant, because, you know, we do not get paid on a case by case basis to do justice, and we will start this case all over if any of you feel that it would prohibit you from giving these defendants a fair trial. The judge then individually polled the jurors, including further questioning of one juror who defense counsel thought might be equivocating. None of the jurors indicated they could not obey the curative instruction. Although we strongly disapprove of the government’s decision to elicit this testimony, we believe that any potential prejudice from Agent Sarron’s testimony was cured by the judge’s cautious efforts to ensure that no incurable prejudice had occurred. Barnes, supra. We hold likewise as to Agent Weed’s testimony regarding the un-indicted crimes, as the judge carefully instructed the jury to disregard the evidence and polled them to make sure they would obey the instruction. Thus, while we do not approve of the government’s or its witnesses’ actions, we do not find that any reversible error resulted. V. THE SPEEDY TRIAL AND DUE PROCESS CLAIMS Gonzalez’s final contention is that he was in effect arrested on October 9, 1979, when he was read his rights and questioned about the cocaine found aboard his boat, and, because he was not indicted until March 5, 1981, his statutory and constitutional rights to a speedy trial and due process were therefore violated. We find these arguments without merit. A defendant is not arrested for the purposes of the Speedy Trial Act, 18 U.S.C. 3161(b), until formal charges are pending. United States v. Varella, 692 F.2d 1352, 1358 (11th Cir.1982). The same is true for the Sixth Amendment right to a speedy trial. United States v. McDonald, 456 U.S. 1, 102 S.Ct. 1497, 1500-02, 71 L.Ed.2d 696 (1982). Therefore, because no formal charges were lodged after Gonzalez was read his Miranda rights and questioned on October 9, 1979, the protections of the ‘Act and the Sixth Amendment are inapplicable. Nor has Gonzalez shown any prejudice arising from the government’s delay in bringing formal charges that would arise to a due process violation under the Fifth Amendment. To succeed in a due process claim the defendant must show (1) that substantial prejudice resulted because of the government’s delay and (2) that the prosecution intentionally employed the delay to obtain a tactical advantage. United States v. Avalos, 541 F.2d 1100, 1107 (5th Cir.1976). The only prejudice that Gonzalez has alleged is the unavailability of the boat to be viewed by the jury, which he contends would have allowed them to observe that the eoeaine was hidden from view. The government, however, never alleged that the cocaine was in open view; indeed, part of its case against Gonzalez was that he had stored the cocaine in hidden compartments and sealed them over with fiberglass. Likewise, Gonzalez has not shown that the government intentionally delayed bringing charges for the purpose of gaining a tactical advantage. The most that Gonzalez has demonstrated is that the government could have brought the importation and possession charges earlier, an argument akin to that which we rejected in Avalos: “The appellants assert only that the government knew about the conspiracy before October 1972 and could have initiated the prosecution sooner. The same could be said of almost every complex conspiracy case; this scarcely shows requisite tactical delay.” 541 F.2d at 1108. Gonzalez has thus failed to show government misconduct or intentional delay arising to an infringement of his due process rights. VI. CONCLUSION After reviewing the record, we find that the appellants’ convictions were supported by the evidence and that the appellants were accorded a fair trial. The convictions and sentences of Sanchez and Gonzalez are AFFIRMED. . Carreras was convicted of the same charges as Gonzalez. He is not appealing his conviction. . The Eleventh Circuit has adopted as binding precedent decisions of Unit B of the former Fifth Circuit. Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir.1982). . The appellants also point to several remarks by Weed on cross-examination implying that there were other investigations involving the appellants. These comments, however, were so oblique as to not be prejudicial and, as the trial judge ruled, were in response to questions by defense counsel which “clearly and unequi-vocably jarred the door open.” . The government justified the testimony on the ground that Agent Sarron if allowed to continue testifying was going to state that to his knowledge no one had actually been killed and the statements were simply “macho puffing” by Gonzalez. Even if this were true, it is hard to imagine what probative value such statements would have in showing the existence of a drug conspiracy. We do note, however, that the judge specifically found that the government had acted inadvertently and was not intentionally overreaching. . The appellants attempt to distinguish Barnes on the ground that Barnes involved a “death threat,” while here the testimony went to actual killings. Although we do not hold that the distinction is irrelevant for determining the degree of prejudice that resulted from the statement, our inquiry is still the same as in Barnes: whether the trial court’s actions effectively cured the potential prejudice. . The boat had been sold in forfeiture proceedings prior to trial. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the race or ethnic identity of this litigant as identified in the opinion? A. not ascertained B. caucasian - specific indication in opinion C. black - specific indication in opinion D. native american - specific indication in opinion E. native american - assumed from name F. asian - specific indication in opinion G. asian - assumed from name H. hispanic - specific indication in opinion I. hispanic - assumed from name J. other Answer:
songer_appel1_1_2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". BANK OF AMERICA NAT. TRUST & SAVINGS ASS’N v. DOUGLAS et al. No. 7354. United States Court of Appeals for the District of Columbia. Argued March 30, 1939. Decided May 8, 1939. William Stanley, of Washington, D. C., T. W. Dahlquist, of San Francisco, Cal., and Charles W. Collins and Donald R. Rich-berg, both of Washington, D. C., for appellant. Chester T. Lane, of Washington, D. G, for appellees. Before GRONER, Chief Justice, and EDGERTON and VINSON, Associate Justices. GRONER, G J. Plaintiff Bank brought this suit against the members of the Securities and Exchange Commission to prevent the public disclosure by the Commission of information claimed to have been illegally obtained and for injunction restraining the Commission from enforcing subpoenas requiring the production of the records of the Bank. Plaintiff is a national bank, a member of the Federal Reserve System, with deposits insured by the Federal Deposit Insurance Corporation, and has its principal place of business in San Francisco, California. It has outstanding capital stock of $50,000,000, has total capital assets in excess of $114,000,000, and does business in 308 communities in the State of California through its main office and its branches. Transamerica Corporation (not a party to this suit) owned practically the entire voting stock of the Bank prior to July 15, 1937, but on that date distributed to its own stockholders all but 42%, which it still retains. None of the Bank’s stock is registered on any national securities exchange. Transamerica in August, 1937, filed with Securities Commission an application for registration of 11,590,784 shares of its own capital stock of the par value of $2 per share. The registration became effective the following September 10. Since Transamerica had owned all of the Bank’s capital stock during the years 1934-36, its application included balance sheets, profit and loss statements, and other financial information with respect to the Bank for those years — furnished substantially in the same form as the report of condition of the Bank filed with the Comptroller of the Currency. In November, 1938, the Commission, in anticipation of proceedings to determine whether Transamerica’s registration should be suspended, obtained from the Secretary of the Treasury permission to examine the reports of bank examiners made to the Comptroller of the Currency with reference to the Bank. Subsequently, in response to the Commission’s request, the Secretary consented to the public official use of the information. The Commission then issued an order directing that a public hearing be held in Washington on January 16, 1939. The Bank was not summoned or joined as a party, but the Commission caused a subpoena duces tecum to be served on the Bank’s cashier in San Francisco, commanding him to appear within four days and bring with him records relating to numerous banking items and practices from 1929 to date; another subpcena was directed to the Bank’s vice-president, commanding him to produce records from 1929 to date relating to nearly two hundred loans made by the Bank. The subpoenas admittedly were based upon information derived from the reports furnished by the Secretary. On the hearing day, the Bank filed this complaint, alleging that the proposed investigation of the Bank’s affairs constituted an unlawful exercise of visitorial powers; that the Secretary had unlawfully given access to the bank examiners’ reports; and that their publication as proposed by the Commission would irreparably injure the Bank. It prayed for a declaratory judgment and for an injunction. The Commission answered, challenging the jurisdiction of the court and averring affirmatively that neither the action of the Secretary in furnishing the information nor the act of the Commission in using it was contrary to law. The trial court heard the cause on the merits and concluded: (1) that although the Commission intends at a public hearing to make its own appraisal and valuation of a substantial portion of the assets of the Bank and to make an investigation of the reserves of the Bank, such action does not constitute the exercise of any visitorial power over the Bank; (2) that even if such action is visitorial, it is within the lawful power of the Commission; (3) that although the evidence does not disclose that the bank examiners’ reports have ever been furnished to any officer, agency, or department of the government for use in a public hearing without the consent of the bank involved, except for use in criminal proceedings, the Secretary of the Treasury was authorized to furnish them to the Commission for its public official use; and (4) that the court had jurisdiction and that the suit was not prematurely brought. Judgment was entered dismissing the complaint. From what has been said, it is apparent that the issues concern: (1) the power of the District Court to grant the relief prayed; (2) the scope of the Commission’s investigatory powers; (3) the right of the Commission to demand and receive and thereafter to disclose information contained in the reports of the bank examiners; and (4) the validity of the subpoenas issued by the Commission based on such information. First. We think the court had jurisdiction. The Bank alleged that disclosure of the information would result in irreparable injury. Since other remedy was entirely lacking, the cause was a proper one for equitable relief. Utah Fuel Co. v. National Bituminous Coal Commission (decided January 30, 1939), 59 S.Ct. 409, 83 L.Ed. 483. If the Bank had prayed solely for an injunction against enforcement of the subpoenas, the question would be different. Federal Trade Com’n. v. Millers’ Nat. Federation, 60 App.D.C. 66, 47 F.2d 428; cf. Federal Power Com’n. v. Metropolitan Edison Co., 304 U.S. 375, 386, 58 S.Ct. 963, 82 L.Ed. 1408. But the complaint asks for other relief which a court of equity may grant, as well as for a declaratory judgment. “ ‘A court of equity ought to do justice completely and not by halves,’ and to this end, having properly acquired jurisdiction of the cause for any purpose, it will ordinarily retain jurisdiction for all purposes, including the determination of legal rights that otherwise would fall within the exclusive authority of a court of law”. Rice & Adams Corp. v. Lathrop, 278 U.S. 509, 515, 49 S.Ct. 220, 222, 73 L.Ed. 480. And since the case is one arising under the laws of the United States, the court had power to enter a declaratory judgment. Zenie Brothers v. Miskend, D.C., 10 F. Supp. 779. Second. Sec. 19(a) of the Securities Exchange Act of 1934 authorizes the Commission, if in its opinion such action is necessary for the protection of investors — “(2) after appropriate notice and opportunity for hearing, by order to deny, to suspend the effective date of, to suspend for a period not exceeding twelve months, or to withdraw, the registration of a security if the Commission finds that the issuer of such security has failed to comply with any provision of this title or the rules and regulations thereunder.” Sec. 12(b) (1) requires as a condition of the registration of securities the filing with the Commission of — “Such information, in such detail, as to the issuer and any person directly or indirectly controlling or controlled by, or under direct or indirect common control with, the issuer, * * * as the Commission may by rules and regulations require, as necessary or appropriate in the public interest or for the protection of investors. * * ” Sec. 21(a) authorizes the Commission in its discretion to make such investigation as it shall deem necessary to determine whether a registrant has violated any provisions of the Act or the rules of the Commission. The Commission’s order alleged that Transamerica had failed to comply with the provisions of Sec. 12(b) and the Commission’s regulations, in that it had filed false and misleading statements of material facts, that is to say, a large amount of losses and doubtful accounts had been written off the books of the Bank by pretended sales to other subsidiaries of Transamerica and by write-ups of the value of investment securities; the figures for “loans and discounts” included a large number of worthless and doubtful accounts; the valuation of certain bonds included arbitrary write-ups; the depreciation figures for real estate were inadequate; the “reserve for contingencies” was misleading since there was no indication that it represented not only a self-insurance fund but a reserve for all the losses and doubtful accounts, and was therefore inadequate; the profit and loss statements included the write-ups but made no provision for the losses; as a consequence the Bank had paid out in dividends a large sum in excess of its actual current earnings. The Act, being primarily for the protection of investors, imposes civil liability and criminal penalties upon any person who knowingly makes false and misleading statements in an application for the registration of a security for sale on a national exchange. The purpose is to require complete and truthful exposure of all matters in relation to the registrant’s financial condition. We do not doubt, therefore, that the Commission, in the exercise of its powers to enforce the Act, may inquire into the affairs of a company controlled by a registrant. And on the record in this case we are of opinion that Transamerica’s interest in the Bank, past arid present, brings the latter within the scope of that power. Third. The next question turns upon the authority of the Secretary of the Treasury to furnish the Commission copies of the examiners’ reports and whether, if there was authority, the information must be held in confidence. Admittedly, there is no statute of prohibition. According to a practice of long standing, the reports of bank examiners made to the Comptroller have been considered as private, and access to them for use by other government officials has been granted only in tax investigations and criminal prosecutions. In a number of instances Congress has specifically authorized use of reports “in confidence”, and the only statutory reference to publicity is in the Comptroller’s qualified authority to publish the report on any bank which fails to comply with his recommendations. Other instances to show that by unbroken custom reports of bank examinen, have been regarded as privileged are (1) the testimony of Chairman Douglas of the Commission in the hearings on the Barkley bill, to the effect that examiners’ reports ought not to be made public; (2) the testimony of the Comptroller in the Pujo investigation that the reports of examiners had always been regarded as confidential; (3) legislation on the subject, where in each instance in which the rule was modified, Congress recognized the necessity of effecting it by express language even as to those agencies and instrumentalities authorized to deal with banks. And to all of this may be added the uncontradicted testimony that examiners’ reports had never at any previous time been publicly used in any civil proceeding. It is obvious, therefore, that this case presents a direct conflict in congressional purposes; for on the one hand the Securities Exchange Act vests in the Commission power to make examinations of registrants and their controlled companies without excepting banks and, as part of its power, to compel the production of their books, records and papers for scrutiny' by the Commission— whereas on the other, the National Banking Act, in deference to the delicate and sensitive interests involved, contemplates exclusive supervision of banks by the Comptroller of the Currency and the confidential treatment by him of the matters developed as to their internal affairs. And this brings us back to the question with which we began this inquiry — the authority of the Secretary of the Treasury to furnish the information in question and, assuming that, whether it should be published by the Commission. The first part of the question was answered in the affirmative by Attorney General Wickersham on an inquiry from the President relative to the Money Trust or Pujo Committee Investigation in Congress. After a comprehensive review of the duties and powers of the Comptroller, he said: “Thus the banking laws clothe the Comptroller with authority to examine into the affairs of national banks for three main purposes: First, to ascertain the financial condition and soundness of management of national banks; second, to determine whether or not such banks are operating in conformity with the banking laws; third, to enable him to recommend amendments to the existing law. Nowhere in the law is there any express provision that the information thus acquired by the Comptroller shall be confidential. While, if in your opinion, the interests of the' Government require that this information shall be so treated, you have the right to refuse to divulge it (Boske v. Comingore, 177 U.S. 459, 469 [20 S.Ct. 701, 44 L.Ed. 846]), yet, I am clearly of the view that if, in your opinion, it is proper to give this information to the House committee you have the lawful power to do so.” 29 Op. Atty. Gen. 555, 560. The Commission insists that equal power is lodged in the Secretary by R.S. 161, which authorizes the head of each Department to prescribe regulations not inconsistent with law for the custody, use, and preservation of its records and papers. We think this is correct, and that the power includes the right to determine whether records may be withdrawn and used by other departments. In this view and since the Comptroller’s records are within the Treasury Department and the Comptroller, by statute, is under the general direction of the Secretary, it follows that no distinction can be made between the two classes of records. See, generally, 25 Op. Atty. Gen. 326; 35 Op. Atty. Gen. 5. Without more, therefore, we hold that the act of the Secretary in furnishing the Commission with the reports of the bank examiners in the present case “was not inconsistent with law”. Whether the information so furnished should be used by the Commission only for the purpose of conducting its inquiry into the financial affairs of the Bank or whether its use was unrestricted, presents a more difficult problem. As we have already pointed out, the unbroken administrative practice of the Secretary and the Comptroller, as well as the course of Congressional legislation, manifests a fixed purpose to confine the outside use of such information to criminal prosecutions, tax suits, and the like. And this is true because of the nature of banking, as to which, by universal recognition, public confidence is essential. The plenary power of the Comptroller over the conduct of the business and affairs of banks always has been considered ample to assure reasonable protection to depositors and the public. In the instant case it is said by the Bank that the Commission has already made public much of the information obtained from the examiners’ reports. In this respect the record shows that the Commission,, upon receiving the permission of the Secretary to make “public official use” of the reports, made an order for a hearing before one of its examiners to determine whether Transamerica had violated any of the provisions of the Act. The order, which was released to the public, set out the particulars of the subjects to be investigated, together with all of the facts believed by the Commission to show the respects in which Transamerica’s statement of the condition of the Bank was untrue. The specifications of alleged misconduct are so serious in their implications as to warrant the Commission in characterizing them as having, potentially, criminal aspects “which may yet lead to criminal prosecutions” and are set out in such meticulous detail as, backed by the great power of the Commission, to cause serious prejudice to the Bank and bring it, in advance of any hearing, into public disrepute. The Securities Exchange Act authorizes the Commission in its discretion to make investigations and to make public its findings, but there is nothing in the Act which authorizes publicity in advance of hearing. In the present case the order was made pursuant to Sec. 19(a) (2) of the Act, 15 U.S.C.A. § 78s, which empowers, after notice and hearing, suspension or cancellation of the registration statement. Under regulations prescribed by the Administrative Committee of the Federal Register, notices of hearing must be published in the Register, but the rule does not require the publication as part of such notice of the evidentiary facts; and where, as in this case, the latter are obtained from confidential sources, neither the purpose nor intent of the Act contemplates their broadcast to the public. It is not difficult to see that such a power might easily be made an instrument of oppression and, lacking specific congressional authorization, we think it ought not to be indulged. In addition to this, pretrial publication of evidence — labeled as believed to be true— ought, we think, to be avoided, especially as emanating from the tribunal charged with the judicial responsibility of weighing it and assuring .the accused a fair hearing. And, if this is the correct view, it is particularly pertinent here, for after all the Bank is not a party in the proceeding instituted by the Commission. Its connection with the investigation gro.ws wholly out of the fact that its largest stockholder, Transamerica, in certifying its own-financial condition, is believed by the Commission to have violated the provisions of the Securities Exchange Act. So far as the Bank is concerned, even if the charge, as to it, is true, any possible violation by it of the banking laws, is a matter not within the Commission’s reach. And certainly until findings are made, the Bank is entitled to have judgment, public and official, suspended. This does not suggest or contemplate that the government should be hampered or restrained in its investigation or in its prosecution of violations of the laws, or that in this case the Commission, under its duty to develop the actual facts by which to test the bona fides of the Bank’s financial statement, should be circumscribed in their proper pursuit. And so, as we think, while it must be decided that the Secretary was authorized to deliver the reports, their use should be confined to an investigation of the charges in proper proceedings by the Commission in the discharge of its duties under the Act. And this the Commission now assures us is the length and breadth of the purpose it has in mind. It says that it does not desire or intend to introduce the reports in evidence and that it will not make them public by any other means. This assurance we accept as conclusive of this branch of the case, and relying upon it we hold that the Commission may use the information at hand in preparation for the hearing and to aid it in obtaining the evidence believed by it to be necessary and proper in the hearing on its notice to Transamerica to show cause why its registration statement should not be suspended. In saying this, we are not holding that the Commission has any “visitorial” power over the Bank, or that it has the slightest right to manage or control the Bank’s affairs or policy, or to do any of those things which are visitorial in character. If in the discharge of its duty to hold hearings and make findings business secrets are necessarily disclosed, the result is attributable only to the necessity of carrying out the purposes of the Act. The difference between this and the exercise of visitorial powers, which are restricted by Congress to itself and certain particular agencies of government, is pointed out in First Nat. Bank of Youngstown v. Hughes, C.C., 6 F. 737, in this language : “Visitation, in law, is the act of a superior or superintending officer, who visits a corporation to examine into its manner of conducting business, and enforce an observance of its laws and regulations. Burrill defines the word to mean ‘inspection; superintendence; direction; regulation.’ The exercise of no such authority is contemplated by defendants. They do not contemplate inspection, supervision, or regulation of complainant’s business, or an enforcement of its laws or regulations. On the contrary, their purpose is to ascertain, in a legal way, and by legitimate testimony, whether any person had, at the time mentioned, on deposit with complainant any money subject to taxation in said county which had not been returned by the owners thereof for that purpose. Hence, the subpoena commanding the production of the complainant’s books, in the manner and for the purpose stated, is not an exercise of ‘visitorial powers;’ * 'Pages 740, 741. This distinction is recognized and approved in Guthrie v. Harkness, 199 U.S. 148, 158, 26 S.Ct. 4, 50 L.Ed. 130, 4 Ann. Cas. 433. But the Bank objects that, even if this is so, speaking generally, it does not apply here for the reason that the controlled company is a bank, and bebause banks are under the direction of the Comptroller, any examination by the Commission into its affairs is a duplication of supervision which ought not to be countenanced. The answer to this is that, the value of the assets of Transamerica depends in large measure on the value of its shareholding in the Bank. An investigation of the one which did not include also an investigation of the other would be futile, and in this view we are unable to find anything, either in the statutes or in reason, to justify putting the Bank in a class by itself. The Bank insists this is done by Sec. 13(b) of the Act, 15 U.S.C.A. § 78m, but we do not so read the section. It provides that the Commission may prescribe the form in which the required information shall be set forth — “but in the case of the reports of any person whose methods of accounting are prescribed under the provisions of any law of the United States, or any rule or regulation thereunder, the rules and regulations of the Commission with respect to reports shall not be inconsistent with the requirements imposed by such law or rule or regulation in respect of the same subject matter * * ” The Bank argues that, since it is required by the National Banking Act to file with the Comptroller a “report of its condition”, it is “inconsistent” to require Transamerica to file a different report with the Commission. The reasonableness of this argument may be conceded, and yet not reach the heart of the question. For here it is not a question of form or of the adoption of a different method of accounting. In all of these respects — as well as in the manner of appraisal of assets — the Bank must follow the Comptroller’s orders. And if Transamerica can show the Bank’s compliance therewith, we may assume the Commission would have no right to substitute its opinion in place of the Comptroller’s. But that is matter for another day. The Comptroller’s opinion of the Bank’s practices does not appear. The case we have concerns a charge that items involving large sums of money have by fictitious transfers between the Bank and its branches and other subsidiaries of Transamerica been made to reflect an incorrect value in the Bank’s assets and reserves, so that its footings are consequently unreal and untrue. To deny the right to investigate this charge and make public findings in relation thereto, would be destructive of the basic purpose of the Act. Fourth. This brings us then, to the question whether 'the subpoenas in their present form are so limitless in their scope as to make them unreasonable. The one to Ferrari commands him to bring from San Francisco to Washington, all loan and discount records, collateral records, ap-. praisal records, charged off loan and discount records, loan approval records, and any other books of account not heretofore enumerated together with all supporting data and records of correspondence for and covering the period from January 1, 1929, to January 13, 1939. The only limit to this requirement is that the books relate to matter concerning some two hundred loans in the Bank and its branches. The subpoena to Smith commands him to bring to Washington all records of loans and discounts, records of assets other than loans and discounts, records of collateral, records of charged off loans and discounts, records of charged off assets other than loans and discounts, loan approval records, investment records, records of inter-company accounts, general and expense ledgers, payroll and expense records, and any other books of account and records in support thereof not heretofore enumerated, records of appraisal, real estate tax bills, insurance policies, receipted bills and expense vouchers, contracts, guarantees, options, pledges and other agreements, minute books and records of correspondence, for and covering the period from January 1, 1929, to January 10, 1939, which relate to payments and credits to A. P. Giannini; to agreements in relation to assets amounting to thirty-five million dollars previously carried on the books; the character of such assets; the collateral pledged for them; the obligations created under sundry agreements for reduction of the obligations or guarantees thereof; loans and discounts, including losses, doubtful and slow accounts, write-ups of United States and municipal securities; the accounting methods employed to reflect such write-up; the character of the reserve maintained for contingencies; the adequacy of this reserve to cover self-insurance; losses on real estate; depreciation of bank premises, furniture, fixtures; losses on bonds and other securities; the amount and character of foreign exchange and credits held abroad; agreements between the Bank and subsidiaries of Transamerica relating to charged-off assets; sale, transfer, assignment, assumption of the guarantees of rights or liabilities under the agreements; repurchase guarantees; an agreement between the Bank and Transamerica relating to 56,000 shares of National City Bank stock; the manner of creation, treatment, and adequacy of the reserves set up on the books of the Bank and its predecessors and the charges thereto. It is perfectly clear, we think, that compliance with these demands will, for all practical purposes, close the Bank, and it is equally clear that by transferring the place of hearing from Washington to San Francisco the Commission may carry on its investigation without unduly and unreasonably hampering the Bank in its business. If this is so, then any other course is so unreasonable as to require correction. In Hale v. Henkel, 201 U.S. 43. 26 S.Ct. 370, 50 L.Ed. 652, the Supreme Court had before it a similar case, which is well described in the following quotation : “Applying the test of reasonableness to the present case, we think the subpcena duces tecum is far too sweeping in its terms to be regarded as reasonable. It does not require the production of a single contract, or of contracts with a particular corporation, or a limited number of documents, but all understandings, contracts, or correspondence between the MacAndrews & Forbes Company, and no less than six different companies, as well as all reports made and accounts rendered by such companies from the dale of the organization of the MacAndrews & Forbes Company, as well as all letters received by that company since its organization from more than a dozen different companies, situated in seven different states in the Union. If the writ had required the production of all the books, papers, and documents found in the office of the MacAndrews & Forbes Company, it would scarcely be more universal in its operation, or more completely put a stop to the business of that company. Indeed, it is difficult to say how its business could be carried on after it had been denuded of this mass of material, which is not shown to be necessary in the prosecution of this case, and is clearly in violation of the general principle of law with regard to the particularity required in the description of documents necessary to a search warrant or subpcena. Doubtless many, if not all, of these documents may ultimately be required, but some necessity should be shown, either from an examination of the witnesses orally, or from the known transactions of these companies with the other companies implicated, or some evidence of their materiality produced, to justify an order for the production of such a mass of papers. A general subpoena of this description is equally indefensible as a search warrant would be if couched in similar terms.” 201 U.S. pages 76, 77, 26 S.Ct. page 380, 50 L.Ed. 652. While it is true the Act authorizes the Commission to subpoena witnesses from any part of the United States, we think it a fair statement that Congress never intended that the power should be exercised to bring from one side of the country to the other the principal officers of a bank and the books and records covering a period of ten years to appear before an examiner of an administrative commission. The right to be free of suit except in the District of which one is an inhabitant is a fixed part, ot our federal judicial history. Its statutory requirement arose out of the experience of colonial days. Its wisdom has been proved in the passage of time, and no more obvious reversal of its spirit could be cited than is shown in the facts of this case. For all of these reasons, we are of opinion the subpoenas are unreasonable under the rule laid down in Hale v. Henkel, supra. Federal Trade Com’n. v. American Tobacco Co., 264 U. S. 298, 44 S.Ct. 336, 68 L.Ed. 696, 32 A.L. R. 786; Mobile Gas Co. v. Patterson, D.C., 288 F. 884; Id., D.C., 293 F. 208, 228; Cudahy Packing Co. v. United States, 7 Cir., 15 F.2d 133. We therefore hold: 1; That the delivery to the Commission by the Secretary of the Treasury of the examiners’ reports was authorized and legal; 2. That their use in proceedings to obtain the necessary facts 'and information whereby to carry out the investigatory function of the Commission, is proper; 3. That except to the extent necessary to carry out the purpose just above mentioned the reports should be treated as confidential; and 4. That the subpoenas in their present form are unreasonable and should not be enforced. We, therefore, remand to the trial court, with instructions to revoke the decree dismissing the complaint. But the Commission, by counsel, having given assurances' that the examiners’ reports will not be given publicity except as authorized in this opinion and the subpcenas having expired by limitation and being now ineffective, no injunction need issue. The cause will remain on the trial docket of the District Court with the right to the Bank to apply for further relief if it should become necessary by subsequent events contrary to the views expressed herein. Affirmed in part; reversed in part; and remanded. 48 Stat. 881, 15 U.S.C.A. § 78a et seq. See. 18, 15 U.S.C.A. § 78r. See. 32(a), 15 U.S.C.A. § 78ff. Federal Farm Loan Act: The Comptroller is “authorized and directed” to furnish his information concerning national banks and to make special examinations for the “confidential use” of any Federal Intermediate Credit Bank. 42 Stat. 1458, 12 U.S.C.A. § 1091. Reconstruction Finance Corporation Act: The Comptroller is “authorized” to make available to the Corporation “in confidence” such information as he may have concerning applicants for loans. 47 Stat. 709, 714, 15 U.S.C.A. § 608. Federal Home Loan Bank Act: The Comptroller is “authorized” to make available “in confidence” to the Homo Loan Bank Board such information as he may have respecting institutions with which any Home Loan Bank may have transactions. 47 Stat. 739, 12 U.S.C.A. § 1442(a). Federal Deposit Insurance Corporation Act: The Corporation’s examiners may examine national banks only with the written consent of the Comptroller, and the Corporation is given access to information in possession of the Comptroller. 49 Stat. 693-694, 12 U.S.O.A. § 264 (k)(2-4). 12 U.S.C.A. § 481. Hearing, Senate Committee on Banking and Currency, S. 2344, 75 Cong. 1 Sess. (1937), p. 71. Hearings, House Committee on Banking and Currency, H.R. 429 and 504 (1912-1913), Money Trust Investigation, 62 Cong. 2 Sess., Vol. 2, pt. 19, p. 1391. See note 4, supra. R.S. § 5133 et seq., 12 U.S.C.A. § 21, et seq. 5 U.S.C.A. § 22. R.S. § 324, 12 U.S.C.A. § 1. The Reconstruction Finance Corporation has announced that in transactions between the corporation and a bank it will be guided by the reports of the latter to the Comptroller. Hearings, House Committee on Banking and Currency, H.R. 5357, 74 Cong. 1 Sess. (1935), p. 135. 12 U.S.C.A. ,j§ 484: “No bank shall be subject to any visitorial powers other than such as are authorized by law, or vested in the courts of justice or such as shall be or shall have been exercised or directed by Congress, or by either House thereof or by any committee of Congress or of either House duly authorized. (R. S. § 5240; Feb. 19, 1875, c. 89, 18 Stat. 329; Dec. 23, 1918, c. 6, § 21, 38 Stat. 271.)” See. 51, Judicial Code, 28 U.S.C.A. § 112. 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_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". LEONARD et al. v. UNITED STATES (two cases). LYNCH v. SAME. (Circuit Court of Appeals, First Circuit. May 27, 1925.) Nos. 1801-1803. 1. Intoxicating liquors t®=>249 — Search warrant may be issued to prohibition agent; “civil officer of the United States.” A prohibition agent is a “civil officer of the United States,” within the meaning of Espionage Act, tit. 11, § 6 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10496%!) > to whom a search warrant may properly he issued, and by whom it may be served. ,[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Civil Officer.] 2. Searches and seizures <®=»3 — Search warrant must be directed to officer or class of officers authorized to execute it. It is essential to the validity of a search warrant that it be directed to an officer or class of officers any one of whom is authorized to execute it. 3. Intoxicating liquors <§=>249 — Search warrants held invalid. Search warrants directed to a named federal prohibition agent “and his assistants, or any or either or them,” held, invalid, there being no such officer as an assistant to a federal prohibition agent. 4. Searches and seizures @=>2 — Search warrant statutes strictly construed. Statutes authorizing search warrants are strictly construed. 5. Intoxicating liquors i@=w249 — Execution of search warrants held unlawful. Searches and seizures under search warrants issued pursuant to Prohibition Act, tit. 2, § 25 (Comp. St. Ann. Supp. 1923, § 10138%m), held unlawful, where the warrants were not executed by the officer to whom directed, nor in his presence by one aiding him, as required by Espionage Act, § 7 (Oomp. St. 1918, Comp. St. Ann. Supp. 1919, § 10496%,s). In Error to tbe District Court of tbe United States for tbe District of Massachusetts; Elisba A. Brewester, Judge. Criminal prosecution by tbe United States against Joseph Leonard and others and against Thomas Lynch. Judgments of conviction, and defendants bring error. Severs-ed and remanded. David H. Keedy, of Springfield, Mass. (Brooks, Kirby, Keedy & Brooks, of Springfield, Mass., on the brief), for plaintiffs in error. George R. Farnum, of Boston, Mass. (Harold P. Williams, of Boston, Mass., on the brief), for the United States. Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges. BINGHAM, Circuit Judge. The defendants, plaintiffs in error in the above-entitled cases, 'were convicted of having unlawful possession of liquor in violation of the National Prohibition Act (41 Stat. at Large, c. 85, § 25; Comp. St. Ann. Supp. 1923, § 10138%m) in the federal District Court for Massachusetts .upon indictments charging that offense. Previous to finding the indictments, search warrants were issued in each matter by a United States commissioner, upon which intoxicating liquor was seized and later used in evidence at the trial of these defendants. In eases Nos. 1801 and 1803 the search warrants were directed to “Walter H. Sullivan, federal prohibition agent, and his assistants, or any or either of them.” In No. 1801 the warrant was served and returned by Charles F. Trembley, a federal prohibition agent; in No. 1803 it was-served by James R. Horgan, a federal prohibition agent, but was returned as having been served by Edward H. Murphy, a federal prohibition agent. In No. 1802 the warrant was directed to “John M. Mallon, Jr., general federal prohibition agent, and his assistants or any or either of them,” and was served and returned by Richard F. Leeder, a general prohibition agent. In Nos. 1801 and 1803 the defendants seasonably moved -that the property and things seized and all information concerning the same and all other facts and information obtained by the search of said premises by means of said search warrants be excluded from evidence on the trial of said indictments, setting out 13 reasons therefor; and in No. 1802, in addition to the foregoing, they asked that the search warrant and all proceedings thereunder be quashed, assigning 8 reasons. These motions were denied, subject to the defendants’ exceptions, and at the several trials the evidence obtained through the searches and seizures was admitted, subject to the defendants’ exceptions. The first objection to each of the search warrants is that they were not directed to a • “civil officer of the United States duly authorized to enforce or assist in enforcing. any law thereof, or to a person so duly authorized by the President of the United States,” as required by section 6, title 11, of the Espionage Act (40 Stat. at Large, p. 229; Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10496¼f). This objection is without merit. In Keehn v. United States, 300 F. 493, this court held that a prohibition agent appointed, by the Commissioner of Internal Revenue for the enforcement of the Prohibition Act, although not an officer of the United States within the meaning of article 2, § 2 of the Constitution, was an officer to whom a search warrant might be properly issued and by whom it might be served; and in Steele v. United States, 45 S. Ct. 417, 69 L. Ed. — decided by the Supreme Court April 13, 1925, it was held that a prohibition agent was a civil officer of the United States, within the meaning of that expression as used in the Espionage Act, that the expression “civil officer of the United States,” as used in that act, does not mean an officer in the constitutional sense, and that the words of description there used are to designate a civil officer rather than a military agent of the government and one “duly authorized to enforce or assist in enforcing any law of the United ■ States.” The second objection is that the search warrants were directed to a federal prohibition agent or a general federal prohibition agent and that there were no -such officer or officers and no such designation known under the Constitution or statutes of the United States. We think this objection -is answered by what we have already said. The statutes of the United States authorize the appointment of agents by the Commissioner of Internal Revenue to enforce the Prohibition Law, and such agents may properly be termed federal prohibition agents. The third objection is that the direction in the several warrants was to a particular individual as a federal prohibition, or general federal prohibition agent, and his assistants or any or either of them, and that there is no class of officers known to the laws of the United States as assistants of federal prohibition agents, whether they are general or special federal prohibition agents. This objection merits consideration. In section 28, title 2, of the Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½o), the class of officers referred to as authorized to enforce the provisions of the act are the Commissioner of Internal Revenue, his assistants, agents, and inspectors, and all other officers of the United States whose duty it is to enforce the criminal laws. The Prohibition Act nowhere recognizes a class of officers such as assistants to a federal prohibition agent, nor does section 6, title 11, of the Espionage Act; and, as the directions in these warrants embraced a class of persons not designated by law or authorized to execute a search warrant, the question is whether they are invalidated by reason of the inclusion of such a class in the directions. In Gandreau v. United States (C. C. A.) 300 F. 21, the search warrant was directed to “the United States marshal for the district of Rhode Island, or any of his deputies, or any federal prohibition agent, or any civil officer of the United States duly authorized to enforce any law thereof,” and it was claimed the wafcrant was defective, in that it was not directed to a particular officer by name. It was held, however, that the direction was good, being addressed to a class of officers, any one of whom was authorized to execute it. We think it is essential to the validity of a warrant that it should be directed to an officer or class of officers authorized to execute it, and that the confusion demonstrated in these eases in the execution of these warrants would have been largely obviated if they had been directed to the Commissioner of Internal Revenue or his assistants, agents, or inspectors, or any civil officer of the United States duly authorized to enforce or assist in enforcing any law thereof. Sections 6 and 7 of title 11 of the Espionage Act, taken in connection with section 28, title 2, of the Prohibition Act, show that Congress regarded it as essential that a search warrant should be directed only - to an officer or class of officers authorized to enforce or assist in enforcing the laws of the United State, and should be executed only by the officer or one of the class of officers to whom it was directed. Statutes authorizing search warrants are strictly construed. Guenther v. Day, 6 Gray (Mass.) 490; Hussey v. Davis, 58 N. H. 317; Giles v. United States (C. C. A.) 284 F. 208. At common law the direction in the warrant was regarded as an essential part of it. Russell v. Hubbard, 6 Barb. (N. Y.) 654, 656; Housin v. Barrow, 6 Term Reports, 122; The King v. Weir, 1 Barnewell & Cresswell, 288, 291; Hoye v. Bush, 1 Manning & Granger, 775, 788; People v. Holcomb, 3 Parker, Cr. R. (N. Y.) 656; 1 Chitty’s Criminal Law, 38. The directions in these warrants were defective and rendered them invalid. But if the warrants were not invalidated by inclusion in their direction of a class of persons as officers, not known to the law to be such, they were not executed by the prohibition officer to whom they were directed, but by a stranger, one not named in the direction. Neither were they executed in the presence of the officer named. This is shown by the returns on the warrants and by the evidence introduced at the trial of the eases. Section 7, title 11, of the Espionage Act, directs that “a search warrant may in all eases be served by any of the officers mentioned in its direction, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution.” Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10496 1/4g. For this reason we think the searches and seizures were illegal and that the evidence obtained thereby was incompetent and should have been excluded. In view of the conclusions reached, we do not find it necessary to consider the remaining objections to the validity of the warrants. The judgments of the District Court in Nos. 1801, 1802, and 1803 are vacated, the verdicts are set aside, and the eases are remanded to the District Court for further proceedings not inconsistent with this opinion. 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_appfed	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 "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES LINES, INC., Appellant, v. UNITED STATES of America, Appellee. No. 78-1170. United States Court of Appeals, Fourth Circuit. Argued Jan. 11, 1979. Decided March 8, 1979. Walter B. Martin, Jr., Norfolk, Va. (John B. King, Jr., Vandeventer, Black, Meredith & Martin, Norfolk, Va., on brief), for appellant. David V. Hutchinson, Civil Division, Dept, of Justice, Washington, D.C. (Barbara Allen Babcock, Asst. Atty. Gen., Washington, D.C., William B. Cummings, U.S. Atty., Alexandria, Va., and Ronald R. Glancz, Civil Division, Dept, of Justice, Washington, D.C., on brief), for appellee. Before RUSSELL, Circuit Judge, JACK R. MILLER, Judge, U.S. Court of Customs and Patent Appeals, sitting by designation, and PHILLIPS, Circuit Judge. DONALD RUSSELL, Circuit Judge: The issue presented for decision in this case is whether the United States, as the stevedore employer of the federal civil service longshoreman, is subject to suit under the Suits in Admiralty Act, 46 U.S.C. § 742 (1970) for breach of its warranty of workmanlike performance to a private vessel. We hold that it is not. In 1974, William Speller, a federally employed longshoreman, sustained injuries in a .fall aboard the S. S. AMERICAN CORSAIR due to the presence of slippery hydraulic fluid in the deck area where he was working. Speller sued the vessel’s owner, United States Lines (appellant herein), on the theory of unseaworthiness of the vessel, a strict liability theory. That suit was settled with the shipowner paying Speller $10,000. United States Lines then brought this indemnity action against the United States (appellee herein), alleging that the United States, as Speller’s employer, breached its warranty of workmanlike performance in failing to correct or warn of the slippery deck’s condition. The district court found that the United States had breached the warranty, but nevertheless was not subject to suit under the Suits in Admiralty Act. From an adverse decision, United States Lines appeals. This case presents the classic circuity of action in the admiralty field which was abolished, at least in the private sector, by the 1972 amendments to the Longshoremen’s & Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-950 (1970 & Supp. V 1975) (hereinafter L.H.W.C.A.). Prior to 1972 an injured longshoreman, entitled to compensation under the L.H.W.C.A., was precluded from suing his employer, but could seek relief from the vessel’s owner if the vessel’s unseaworthy condition caused the accident. Seas Shipping Co. v. Sieracki (1946) 328 U.S. 85, 95-97, 100, 66 S.Ct. 872, 90 L.Ed. 1099. When the unseaworthy condition was attributable to the employer’s unworkmanlike performance, the shipowner could recover indemnity from the stevedore (employer), Ryan Co. v. Pan-Atlantic Corp. (1956) 350 U.S. 124, 131-34, 76 S.Ct. 232, 100 L.Ed. 133. Hence, the longshoreman, in effect, recovered indirectly from his employer that which he could not recover directly. This type of circular action occurred in cases involving federal employees, whose compensation is provided under the Federal Employees’ Compensation Act (F.E.C.A.), 5 U.S.C. § 8101, et seq., as well as in cases involving private longshoremen. See Greene v. Vantage Steamship Corporation (4th Cir. 1972) 466 F.2d 159, 168, 18 ALR F 167. Congress overruled the SierackiRyan form of action with the 1972 amendments to the L.H.W.C.A. It abolished the doctrine of unseaworthiness as a basis for liability against the shipowner in favor of the longshoreman, thereby restricting the longshoreman’s claim against the shipowner to one for negligence. It also outlawed the employer’s liability to the shipowner, whether claimed under warranty or otherwise. 33 U.S.C. § 905(b) (1970 & Supp. V 1975). The amendments, relating only to workers covered under the Act, had no direct effect on longshoremen like Speller who are covered under the F.E.C.A. The indirect effect, however, was to cut off the indemnity action between the shipowner and the United States. Since a shipowner can no longer sue a private stevedore for indemnity, it cannot, under the terms of the Suits in Admiralty Act, recover from the United States, for the government is subject to suit only in those instances in which a private individual would be so subject. 46 U.S.C. § 742 (1970). The district court therefore properly found that suit may not be maintained against the United States. The judgment of the district court is, therefore, affirmed. . 46 U.S.C. § 742 (1970) provides, in pertinent part: “In cases where if such vessel were privately owned or operated, or if such cargo were privately owned or possessed, or if a private person or property were involved, a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States . . . .” . The policies and changes involved in the amendments, including a higher schedule of benefits, are detailed in the legislative history. See H.R.Rep. No. 92-1441, 92d Cong., 2d Sess., reprinted in [1972] U.S.Code Cong. & Admin. News pp. 4698, 4703-04. This court has had numerous occasions to discuss the effects of the amendments, and we need not do so again here. See, e. g., Edmonds v. Compagnie Generate Transatlantique, (4th Cir. 1978) 577 F.2d 1153, 1154-55 (en banc), cert. granted, - U.S. -, 99 S.Ct. 348, 58 L.Ed.2d 343 (1978); Chavis v. Finnlines Ltd., O/Y, (4th Cir. 1978) 576 F.2d 1072, 1076-78; Riddle v. Exxon Transp. Co., (4th Cir. 1977) 563 F.2d 1103, 1110, 1112; Anuszewski v. Dynamic Mariners Corp., Panama, (4th Cir. 1976) 540 F.2d 757, 758-59 (per curiam), cert. denied, 429 U.S. 1098, 97 S.Ct. 1116, 51 L.Ed.2d 545 (1977); Bess v. Agromar Line, (4th Cir. 1975) 518 F.2d 738, 740-41. . Feeling precedent-bound under Sandoval v. Mitsui Sempaku K. K. Tokyo (5th Cir. 1972) 460 F.2d 1163, 17 ALR F 479, a pre-amendment case, a district court in the fifth circuit has allowed suit against an instrumentality of the United States. Guevara v. Cia Sud Americana de Vapores, (D.C.Z.1978) 1978 A.M.C. 2000, 2005. That court, however, overlooked the statutory bar to suit under the Suits in Admiralty Act, as affected by the amendments to the L.H.W.C.A. In passing, we note that at least one court has held the unseaworthiness doctrine no longer applicable to federally employed longshoremen. Quinn v. Central Gulf S.S. Corp. (D.Md.1977) 1977 A.M.C. 204. Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_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. AMERICAN RY. EXPRESS CO. v. ROWE et al. (Circuit Court of Appeals, First Circuit. August 17, 1926.) No. 1939. 1. Courts <©=>376 — Evidence <©=>317(18) — Attorney’s testimony as to statements made 3y deceased while in hospital after injury held admissible under statutes (G. L. Mass. o. 233, § 65; Rev. St. U. S. § 721 [U. S. Comp. St § 1538]). In action of tort to recover damages for conscious suffering and death of plaintiff’s testator, testimony of attorney as to statements made by deceased while in hospital after injury held admissible under 6. L. Mass. c. 233, § 65. and Rev. St. U. S. § 721 (U. S. Comp. St. § 1538). 2. Courts <S=>337. Rev. St. § 721, requiring state laws, except where Constitution, treaties, or statutes of United States otherwise require, shall be rules of decision in federal courts, does not apply to criminal eases (Comp. St. § 1538). 3. Courts <©=>376 — Evidence <©=>317(18) — That deceased’s deposition might have been taken held not to affect admissibility under statute of testimony as to statements made by him (G. L. Mass. c. 233, § 65; Rev. St. U. S. § 721 [U. S. Comp. St. § 1538]). In action for conscious suffering and death of plaintiff’s decedent, that deceased’s deposition might have been taken held not to affect admissibility, under G. L. Mass. e. 233, § 65, and Rev. St. U. S. § 721 (U. S. Comp. St. § 1538), of attorney’s testimony as to statements made by him after injury. Johnson, Circuit Judge, dissenting. In Error to the District Court of the United States for the District of Massachusetts; Elisha H. Brewster, Judge. Action by Bert Rowe and another, executors of the estate of George Rowe, against the American Railway Express Company. Judgment for plaintiffs, and defendant brings error. Affirmed. Austin M. Pinkham, of Boston, Mass., for plaintiff in error. John H. Casey, of Boston, Mass. (Ernest Foss, of Newburyport, Mass., on the brief), for defendants in error. Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges. ANDERSON, Circuit Judge. This is an action of tort, brought by the executors of the estate of George Rowe, late of Seabrook, N. H. The declaration contains two counts; one to recover damages for conscious suffering and pain, and the other for the death of their testator, alleged to have been caused by the negligence of the defendant in operating a baggage truck on the platform of a railroad station in Newburyport, Mass., on October 27,1923. The deceased was 92 years of age, and by reason of collision with the truck sustained a fracture of one of his thighs. He was taken to a hospital in Newburyport, and later to his home in New Hampshire, where he died about 3 weeks later. No living witness saw the truek strike the deceased. The deceased was visited at the hospital, 3 or 4 days after the accident, by an attorney employed by his son, who was afterwards appointed one of the executors, and in response to questions of the attorney gave answers which covered what he knew in regard to how the accident took place. This statement was not introduced in evidence, but the lawyer who visited the deceased at the hospital was permitted, over the objection of the defendant, to testify, after refreshing his recollection from the written statement which had been prepared and signed by- the deceased, as to questions asked and the answers given. If this evidence was competent, we think the judgment below must be affirmed, for from all the evidence the jury would be warranted in finding: That the plaintiff’s intestate, a man 92 years of age, on the afternoon in question, was at the Boston & Maine station in Newburyport, Mass., for the purpose of taking a train for his home in Seabrook, N. H.; that shortly before the arrival of his train he left the men’s waiting room by the door leading to the platform, and turned towards the right, going in a northeasterly direction, with the view of entering the smoking car when the train arrived; that after proceeding a short distance on the platform, and when within 2 or 3 feet of the place occupied by the newspaper stand in the summer time, he was struck in the back by the defendant’s truck, knocked down, and received the injuries complained of; that at the time he came out of the station he did not observe the truek, and knew nothing about its approach until he was struck and knocked down; that the truck was some 9 feet long, 5 feet wide, and weighed 500 pounds, and at the time was being drawn by an express messenger, who was at its front end, having hold of the tongue or handle with his left hand, steering the truck, and having hold of the truck with his right hand, near the right comer, pulling it; that the truck had been taken from the express office at the southwesterly or Boston end of the station, and drawn northeasterly towards the Portsmouth or Seabrook end of the station, past the ladies’ entrance, the ticket office, and the gentlemen’s entrance; that the ticket office portion of the station extended out into the platform some 5 feet or more beyond the vestibules to the- gentlemen’s and ladies’ entrances; that the messenger, in his northeasterly course from the express office, had proceeded with the truek at a distance of some 4 feet from the station building, swerving out as he passed the ticket office, and swerving in again as he passed the gentlemen’s entrance; that as he passed the gentlemen’s entrance he gave no heed as to whether people were going in or out there, but did observe, as he passed the ticket office and the gentlemen’s entrance, people standing opposite thereto and midway of the platform near posts that were about 15 feet out from the entrance, and which supported the shed or canopy of the station; that he at no time observed the deceased, though he could, had he looked ; and that the accident was due to his failure to exercise due care in this particular. The crucial question is whether, under General Eaws of Massachusetts, e. 233,' § 65, the declarations made by the deceased in answer to the questions of the attorney were admissible in evidence. Section 65 is as follows : “A declaration of a deceased person shall not be inadmissible in evidence as hearsay if the court finds that it was made in good faith before the commencement of the action and upon the personal knowledge of the declarant.” The Massachusetts statute is an extension of the exceptions to the anti-hearsay rule. Brooks v. Holden, 175 Mass. 137, 140, 55 N. E. 802; Hall v. Reinherz, 192 Mass. 52, 77 N. E. 880. We hold that the evidence was admissible under R. S. § 721 (Comp. St. [1916] § 1538): “The laws of the several States, except where the Constitution, treaties, or statutes of the United States oherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in eases where they apply.” This section originated in section 34 of the Judiciary Act of 1789 (1 Stat. 92). It has been uniformly construed to cover state statutes changing the rules of evidence, except when thus direct conflict with a federal statute would result. A case exactly in point is Conn. M. L. Ins. Co. v. Union Trust Co., 112 U. S. 250, 5 S. Ct. 119, 28 L. Ed. 708, in which it was held that the provision in the New York Civil Code excluding evidence of a doctor, obtained in a professional capacity, was binding on the courts of the United States sitting within that state in trials at common law, under R. S. § 721, that the laws of the several states, except where the Constitution, treaties, and statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States. In the opinion Mr. Justice Harlan says, citing R. S. § 721: “This has been uniformly construed as requiring the courts of the Union, in the trial of all civil cases at common law, not within the exceptions named, to observe, as rules of decision, the rules of evidence prescribed by the laws of the states in which such courts are held,” — citing Potter v. National Bank, 102 U. S. 163, 26 L. Ed. 111; Vance v. Campbell, 1 Black, 427, 17 L. Ed. 168; Wright v. Bales, 2 Black, 535, 17 L. Ed. 264; McNiel v. Holbrook, 12 Pet. 84, 9 L. Ed. 1009; Sims v. Hundley, 6 How. 1, 12 L. Ed. 319. (Italics supplied.) The exceptions to the rule also illustrate the proper application of the rule. In Whitford v. Clark County, 119 U. S. 522, 7 S. Ct. 306, 30 L. Ed. 500, a deposition was admitted, although the witness was actually in court, contrary to the provision of R. S. § 865. This was held wrong, the court saying (page 525 [7 S. Ct. 308]): “When the statutes of the United States make special provisions as to the competency or admissibility of testimony, they must be followed in the courts of the United States, and not the laws or the practice of the state in which the court is held when they are different.” Ex parte Fisk, 113 U. S. 713, 5 S. Ct. 724, 28 L. Ed. 1117, relied upon by the express company, was habeas corpus to release Fisk, who had been committed for contempt for failure to give his deposition before trial under the New York Code, which authorized the taking of deposition in a manner inconsistent with the deposition provisions of the Federal Code. Fisk was ordered set free. But Justice Miller in his opinion says, referring to R. S. § 720: “It has been often decided in this court that in actions at law in the courts of the United States, the rules of evidence and the law of evidence generally of the states prevail in those courts. * * * The New York statute would, if in force, repeal or supersede the act of Congress.” (Page 725 [5 S. Ct. 729].) All that was really decided in the Fisk Case was that the New York statutory provisions as to depositions could not be substituted for the federal statutory provisions as to depositions. The general rule still obtains that, unless there be conflict with a federal statute, the state rule as to evidence prevails. In Potter v. National Bank, 102 U. S. 163, 26 L. Ed, 111, R. S. § 858, was applied in a federal court sitting in Illinois, although the Illinois statute made the testimony of the executor incompetent. Section 858 provides (page 163): “In the courts of the United States no witness shall be excluded in any action on account of color, or in any civil action because he is a party to or interested in the issue tried: Provided, that in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court. In all other respects the laws of the state in which the court is held shall be the rules of decision as to the competency of witnesses in the courts of the United States in trials at common law and in equity and admiralty.” But on page 165, the court (Harlan, J.) refers to R. S. § 721, as applicable, except where there is an express contrary inconsistent federal provision. In Sims v. Hundley, 6 How. 1, 6 (12 L. Ed. 319), a notary’s certificate of protest, made admissible under the statute of Mississippi, was held admissible in the federal court sitting in Mississippi; Taney, C. J., saying: “The rules of evidence prescribed by the statute of a state are always followed by the courts of the United States, when sitting in the state, in commercial eases as well as in others.” In McNiel v. Holbrook, 12 Pet. 84, 88, 9 L. Ed. 1009, Taney, C. J., held a statute of Georgia, making certain written instruments competent without proof of the handwriting, applicable in the federal court under what is now R. S. § 721. In Wright v. Bales, 2 Black, 535, 17 L. Ed. 264, the headnote accurately states the decision: “The statutory enactments of the States of the Union, in respect to evidence in cases at common law, are obligatory upon judges of the courts of the United States, who are bound to apply them as rules of decision.” The federal Circuit-Court (which was the trial court) had refused to apply the Ohio statute removing disqualifications because of-interest. The ease was sent back for a new trial. Vance v. Campbell, 1 Black, 427, 430, 17 L. Ed. 168, is to the same effect. In American Ag. Chem. Co. v. Hogan, 213 F. 416, 130 C. C. A. 52, this court held that the Massachusetts rule, allowing former testimony of a witness to he introduced for the purpose of impeaching his subsequent testimony without his attention having first been called to the former testimony, will be followed by the federal court sitting in this state. The opinion was by Brown, J., who says (page 420 [130 C. C. A. 56]): “Ordinarily the rules of evidence and the law of evidence of the state prevail in the federal court sitting within the limits of the state.” R. S. § 721, does not apply to criminal cases. See Logan v. United States, 144 U. S. 263, 299, 12 S. Ct. 617, 36 L. Ed. 429 et seq., where there is an instructive review of the statutes and earlier cases by Mr. Justice Gray. Compare United States v. Gwynne, 209 F. 993, 994. In Nelson v. First National Bank, 69 F. 798, 16 C. C. A. 425, Judge Sanborn states the rule as follows in dealing with the application of a staté statute to the certificate of protest of a promissory note, page 801, 16 C. C. A. 428: “And the rules of evidence prescribed by the statute of a state are declared by act of Congress to he ‘rules of decision in trials at common law in the courts of the United States,’ ‘except where the Constitution, treaties, or statutes of the United States otherwise require or provide.’ ” Compare 2 Foster’s Fed. Prac. (4th Ed.) § 372, and G. & C. Merriam Co. v. Syndicate Pub. Co. (C. C. A.) 207 F. 515, where Judge Hand sustained an exception to the hearsay rule (page 518) and his opinion was adopted by the Court of Appeals. Compare Wig-more, Ev. § § 1420, 1421, et seq.; 22 C. J. 216 et seq., notes and cases. Compare, also, 25 C. J. 817, and notes; Id. p. 828. In our opinion, the'authorities show that the court below was entirely right in applying the Massachusetts statute. The fact that Rowe’s deposition might perhaps have been taken does not bring the ease within the principles laid down in the Eisk Case and other similar cases. In fact, he died without his deposition being taken. The executors were not, therefore, offering a deposition taken in a manner other than that provided in the federal statutes, in the Eisk Case held applicable before the Act of March 9,1892 (27 Stat. 7 [Comp. St. § 1476]), changed the law. The Massachusetts statute is in no way inconsistent with any federal .statute. In Fourth Nat. Bank v. Albaugh, 188 U. S. 734, 737, 23 S. Ct. 450, 451, 47 L. Ed. 673, the court said: “In these days, when the whole tendency of decisions and legislation is to enlarge the admissibility of hearsay, where hearsay must be admitted or a failure of justice occur, we are not inclined to narrow the lines.” Cf. Mattox v. United States, 156 U. S. 237, 243, 244, 13 S. Ct. 50, 36 L. Ed. 917. Commonwealth v. Trefethen, 157 Mass. 180, 31 N. E. 961, 24 L. R. A. 235. The judgment of the District Court is affirmed, with costs to the defendants in error. 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_source	F	What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals. James F. McMANUS, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent. United Air Lines, Inc., Intervenor-Respondent. Nos. 92, 93, Dockets 25802, 25803. United States Court of Appeals Second Circuit. Argued Dec. 12, 1960. Decided Feb. 6, 1961. James F. McManus, pro se. Morris Chertkov, Washington, D. C. (Franklin M. Stone, General Counsel, Civil Aeronautics Board, John H. Wanner, Deputy General Counsel, O. D. Ozment, Associate General Counsel, Litigation and Research, Abbott A. Leban, Robert A. Bicks, Acting Asst. Atty. Gen., Richard A. Solomon, Department of Justice, Washington, D. C., on the brief), for respondent. Hardin, Hess & Eder, New York City, and Mayer, Friedlich, Spiess, Tierney, Brown & Platt, Chicago, Ill., for intervenor. Before LUMBARD, Chief Judge, and SWAN and MOORE, Circuit Judges. LUMBARD, Chief Judge. The petitioner, an owner of two travel .agencies, seeks to have reviewed seven ■orders issued by the Civil Aeronautics Board during its consideration of resolutions promulgated and filed with the Board by the Air Traffic Conference of America (hereinafter ATC) and the International Air Transport Association (hereinafter IATA), trade associations •of air carriers engaged respectively in domestic and international operations. The associations had been formed to take joint action on industry-wide problems. In these resolutions they established ■criteria and procedures for the selection, appointment, and retention of ticket .agents, and provided that no member of an association could appoint or retain a ■travel agent who had not applied to that .association and been approved by it. The original resolution establishing this procedure was drawn up by ATC in 1940 and submitted for the approval of the Civil Aeronautics Board under § 412 of the Civil Aeronautics Act of 1938, later re-enacted as § 412 of the Federal Aviation Act of 1958, 49 U.S.C.A. § 1382. Approval was granted on April 18, 1941 (Order No. E-983). Subsequent agreements similar in substance were approved in 1945 and 1951. After having received complaints regarding the procedures instituted by the conference agreements, the Civil Aeronautics Board issued an order on October 31, 1956, instituting an investigation to determine whether the conference system for qualifying ticket agents established by the ATC resolution was in the public interest. Various parties, including the petitioner herein, were permitted to intervene, public hearings were held, and briefs were filed. In an Initial Decision dated November 3,1958, the Hearing Examiner held that the ATC resolution was not adverse to the public interest and should be approved by the Board provided that certain amendments were made thereto. This decision was substantially adopted by the Civil Aeronautics Board in Order No. E-14012, dated June 10, 1959, which also kept the record open for 60 days to permit the ATC to file the required amendments. Two subsequent supplemental orders, No. E-14647 (November 12, 1959) and No. E-14924 (February 15, 1960), modified the order of June 10 by directing that certain additional amendments to the resolutions be filed. On April 22, 1960, the Board, in Order No. E-15143, dismissed the petitioner’s motion seeking review of the decision of the Board’s Chief of Compliance not to institute enforcement proceedings against the ATC for violating the Federal Aviation Act by acting under the approved resolution. The petitioner also seeks review of three orders issued in the course of the Board’s consideration of the related IATA resolution. At the same tjme as it authorized the ATC investigation, the Board instituted an investigation of a similar resolution submitted by the IATA. No further steps were taken with respect to the IATA resolution during the pendency of the ATC investigation. In 1958 the petitioner demanded an immediate hearing with oral argument on a motion he had filed with the Board requesting it to withdraw its approval of a similar IATA resolution which had been approved eight years earlier. After some correspondence between the Board and the petitioner, the Board issued Order No. E-13959 (June 1, 1959), denying the request for a hearing and oral argument. Having decided to proceed with the IATA investigation once the ATC case had been completed, the Board on September 10, 1959, issued Order No. E-14436, in which it granted the petitioner leave to intervene but denied his motions that the Board immediately withdraw its approval of the resolution, that votes on an earlier motion be entered on the record, that copies of certain correspondence be made part of the record, and that the notice for a prehearing conference which had been scheduled be vacated. On September 30, 1959, the Board issued Order No. E-14508, in which certain IATA resolutions relating to sales agents were approved “except as they apply to the United States.” It is these orders that the petitioner wishes to have reviewed by this court along with the orders issued in the course of the ATC investigation. I. The petitioner claims that this court has jurisdiction to review the above orders under § 1006 of the Federal Aviation Act of 1958, 49 U.S.C.A. § 1486, and § 10 of the Administrative Procedure Act, 5 U.S.C.A. § 1009. Although the judicial-review section of the Federal Aviation Act is broadly phrased so as to authorize review of “any order, affirmative or negative, issued by the Board or Administrator,” it also provides that review must be at the behest of “any person disclosing a substantial interest in such order.” Order No. E-14508, which approved several IATA resolutions only insofar as they affected agents outside the United States, in no way prejudiced the petitioner. The petition-er, therefore, does not have the “substantial interest” required by the statute to challenge Order No. E-14508. The Board’s order must be a final one to be reviewable. Although the statute does not expressly require that the order be final before it may be reviewed, the requirement of finality was read into § 1006 of the statute’s predecessor, the Civil Aeronautics Act of 1938, which was phrased in identical terms. See, e. g., Eastern Air Lines v. C. A. B., 1956, 100 U.S.App.D.C. 184, 243 F.2d 607; Western Air Lines v. C. A. B., 9 Cir., 1950, 184 F.2d 545; cf. Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 1948, 333 U.S. 103, 112-113, 68 S.Ct. 431, 92 L.Ed. 568. The Board’s refusal to grant the petitioner a hearing on his motion requesting immediate disapproval of the IATA resolution did not deny a right or fix any legal relationship. If this order deprived the petitioner of any right granted by the statute, it may be reviewed when the final order issues. But it would needlessly encumber the administrative process if any denial of a hearing were held to be reason for staying further agency proceedings until the validity of such denial were passed upon by a court of appeals. Similarly, the decisions relating to various procedural details made by the Board in its order of September 10, 1959, did not determine any rights or relationships and may not be reviewed at this time. Nor can the petitioner have these orders reviewed under § 10(c) of the Administrative Procedure Act, 5 U.S.C. A. § 1009(c), which authorizes review of “every agency action made reviewable by statute and every final agency action for which there is no other adequate remedy in any court.” (Emphasis added.) Cities Service Gas Co. v. F. P. C., 10 Cir., 1958, 255 F.2d 860, certiorari denied Magnolia Petroleum Co. v. Cities Service Gas Co., 358 U.S. 837, 79 S.Ct. 61, 3 L.Ed.2d 73; see Isbrandtsen Co. v. United States, 1954, 93 U.S.App.D.C. 293, 211 F.2d 51, certiorari denied Japan Atlantic & Gulf Conference v. U. S., 347 U. S. 990, 74 S.Ct. 852, 98 L.Ed. 1124. The decisions made by the Board in its order of September 10, 1959, are of the kind encompassed by the second sentence of § 10(c) of the Administrative Procedure Act, which directs that “any preliminary, procedural, or intermediate agency action or ruling not directly reviewable shall be subject to review upon the review of the final agency action.” Since review is available at that time, the petitioner has an adequate remedy by review of the final decision. The petitions to review the orders entered in the course of the IATA investigation, Nos. E-13959, E-14436, and E-14508, are therefore dismissed. II. The Board’s orders approving the ATC resolution, however, are reviewable final actions, and we proceed to consider the petitioner’s objections. The resolution provided for the establishment of an Agency Committee with which applications would be filed by potential ticket agents. Only if the committee approved of the applicant would his name be entered on the ATC Agency List from which member carriers were required to select their agents. The Hearing Examiner and the Board held the plan not adverse to the public interest since it would, if properly administered, bring about a rise in the standards of agency representation. As a result of the Board’s approval, carriers acting under the resolution were, by reason of § 414 of the Federal Aviation Act, 49 U.S.C.A. § 1384, exempted from the operation of the antitrust laws. The Board was aware of the restrictive effect which this practice would have on competition in the ticket-agent market and its possible abuse, but it approved of the resolution nonetheless. The petitioner makes several attacks on the validity of the orders, the major claims of substance being that the ATC resolution was not within the scope of § 412, that the Board’s order, being conditional, was beyond its authority, and that §§ 412 and 414 amount to an unconstitutional delegation of legislative power to the airline industry and the Civil Aeronautics Board. The language of § 412 encompasses all contracts and agreements between air carriers for pooling services or for preserving efficiency of operation. The conference agreement considered by the Board in this case comes clearly within the statutory language. See United States Lines Co. v. C. A. B., 2 Cir., 1948, 165 F.2d 849; Apgar Travel Agency, Inc. v. International Air Transp. Ass’n, D.C.S.D.N.Y.1952, 107 F.Supp. 706. It may well be that Congress did not intend to cover so broad an area by enacting § 412, and that the airlines should not be permitted to exercise concerted control which is immune from antitrust regulation over some related industry such as that of ticket agencies. But there is no indication in either the words of the statute or in its legislative history that would justify our reading §§ 412 and 414 narrowly to insulate airlines from antitrust liability to other airlines only and not to protect it from suits by those engaged in affiliated services affected by an agreement among the airlines. Nor is there any merit to the petitioner’s contention that the Board, once having approved an agreement, could not act on its own to investigate and conditionally disapprove. The exemption from the operation of the antitrust laws is valid only so long as the Board believes that the agreement is not adverse to the public interest. Section 412(b) clearly provides that one decision on an agreement does not bind the Board as to later agreements, and that it may disapprove an agreement “whether or not previously approved by it.” If complaints regarding the operation of a system established by an approved resolution come to its attention, the Board is justified in reopening the case and considering the agreement anew. Nor is the Board bound to approve or disapprove agreements in their entirety. It is true that § 15 of the Shipping Act of 1916, 46 U.S.C.A. § 814, on which § 412 of the Civil Aeronautics Act was modeled, provides that the Federal Maritime Board may “disapprove, cancel, or modify any agreement,” whereas § 412 says only that the Board may “by order disapprove.” However, the power to condition its approval on the incorporation of certain amendments is necessary for flexible administrative action and is inherent in the power to approve or disapprove. We would be sacrificing substance to form if we held invalid any conditional approval but affirmed an unqualified rejection accompanied by an opinion which explicitly stated that approval would be forthcoming if modifications were made. The petitioner’s final objection is that the procedure established by §§ 412 and 414 of the act amounts to an unconstitutional delegation of legislative power. Our attention is called to the decisions of the Supreme Court in Carter v. Carter Coal Co., 1936, 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160, and Schechter Poultry Corp. v. United States, 1935, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570. No legislative delegation exists here, however. Under § 412 agreements between air carriers are to be filed with the Board and approved or disapproved by it. These agreements bind only the parties to them, and impose no restriction on carriers who are not parties. Nor does the Board’s approval of an agreement amount to an unconstitutional exercise of legislative power. By reason of § 414, activity pursuant to an approved agreement is insulated from the operation of the antitrust laws, but the Board may approve only such agreements as are not “adverse to the public interest.” This standard is definite enough to withstand constitutional attack, see New York Central Securities Corp. v. United States, 1932, 287 U.S. 12, 24, 53 S.Ct. 45, 77 L.Ed. 138, and the exemption from regulation of such concerted activity as, in the opinion of a regulatory public agency, meets the standard is not unlawful. Sunshine Anthracite Coal Co. v. Adkins, 1940, 310 U.S. 381, 396, 60 S.Ct. 907, 84 L.Ed. 1263. We therefore dismiss the petitions to review the orders relating to the IATA investigation and affirm the orders entered pursuant to the ATC investigation. . “Legal Restraints “Sec. 414. Any person affected by any order made under sections 408, 409, or 412 of this Act shall be, and is hereby, relieved from the operations of the ‘antitrust laws’, as designated in section 1 of the Act entitled ‘An Act to supplement existing laws against unlawful restraints and monopolies, and for other purposes’, approved October 15, 1914, and of all other restraints or prohibitions made by, or imposed under, authority of law, insofar as may be necessary to enable such person to do anything authorized, approved, or required by such order.” . In the opinion accompanying Order No. E-14012, the Board said at page 12: “It must always be realized that this entire system of joint carrier screening of travel agencies is a substantial departure from the normal free competitive practices of our economy, and that it would bo clearly in violation of the Federal antitrust laws were it not for the immunity extended by Section 414 of the Act.” . “Pooling and Other Agreements “Filing Of Agreements Required “Sec. 412. (a) Every air carrier shall file with the Board a true copy, or, if oral, a true and complete memorandum, of every contract or agreement (whether enforceable by provisions for liquidated damages, penalties, bonds, or otherwise) affecting air transportation and in force on the effective date of this section or hereafter entered into, or any modification or cancellation thereof, between such air carrier and any other air carrier, foreign air carrier, or other carrier for pooling or apportioning earnings, losses, traffic, service, or equipment, or relating to the establishment of transportation rates, fares, charges, or classifications, or -for preserving and improving safety, economy, and efficiency of operation, or for controlling, regulating, preventing, or otherwise eliminating destructive, oppressive, or wasteful competition, or for regulating stops, schedules, and character of service, or for other cooperative working arrangements. “Approval By Board “(b) The Board shall by order disapprove any such contract or agreement, whether or not previously approved by it, that it finds to be adverse to the public interest, or in violation of this Act, and shall by order approve any such contract or agreement, or any modification or cancellation thereof, that it does not find to be adverse to the public interest, or in violation of this Act; except that the Board may not approve any contract or agreement between an air carrier not directly engaged in the operation of aircraft in air transportation and a common carrier subject to the Interstate Commerce Act, as amended, governing the compensation to be received by such common carrier for transportation services performed by it.” Question: What forum heard this case immediately before the case came to the court of appeals? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Court of Customs & Patent Appeals H. Court of Claims I. Court of Military Appeals J. Tax Court or Tax Board K. Administrative law judge L. U.S. Supreme Court (remand) M. Special DC court (not the US District Court for DC) N. Earlier appeals court panel O. Other P. Not ascertained Answer:
sc_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. STRICKLER v. GREENE, WARDEN No. 98-5864. Argued March 3, 1999 — Decided June 17, 1999 Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, Ginsburg, and Breyer, JJ., joined in full, in which Kennedy and Souter, 3J., joined as to Part III, and in which Thomas, J., joined as to Parts I and IV. Souter, J., filed an opinion concurring in part and dissenting in part, in which Kennedy, J., joined as to Part II, post, p. 296. Miguel A. Estrada argued the cause for petitioner. With him on the briefs were Barbara L. Hartung, Mark E. Olive, and John H. Blume. Pamela A. Rumpz, Assistant Attorney General of Virginia, argued the cause for respondent. With her on the brief was Mark L. Earley, Attorney General. Gerald T. Zerkin filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging reversal. Kent S. Scheidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging affirmance. Justice Stevens delivered the opinion of the Court. The District Court for the Eastern District of Virginia granted petitioner’s application for a writ of habeas corpus and vacated his capital murder conviction and death sentence on the grounds that the Commonwealth had failed to disclose important exculpatory evidence and that petitioner had not, in consequence, received a fair trial. The Court of Appeals for the Fourth Circuit reversed because petitioner had not raised his constitutional claim at his trial or in state collateral proceedings. In addition, the Fourth Circuit concluded that petitioner’s claim was, “in any event, without merit.” App. 418, n. 8. Finding the legal question presented by this case considerably more difficult than the Fourth Circuit, we granted certiorari, 525 U. S. 809 (1998), to consider (1) whether the Commonwealth violated Brady v. Maryland, 373 U. S. 83 (1963), and its progeny; (2) whether there was an acceptable “cause” for petitioner’s failure to raise this claim in state court; and (3), if so, whether he suffered prejudice sufficient to excuse his procedural default. I In the early evening of January 5,1990, Leanne Whitlock, an African-American sophomore at James Madison University, was abducted from a local shopping center and robbed and murdered. In separate trials, both petitioner and Ronald Henderson were convicted of all three offenses. Henderson was convicted of first-degree murder, a noncapital offense, whereas petitioner was convicted of capital murder and sentenced to death. At both trials, a woman named Anne Stoltzfus testified in vivid detail about Whitlock’s abduction. The exculpatory material that petitioner claims should have been disclosed before trial includes documents prepared by Stoltzfus, and notes of interviews with her, that impeach significant portions of her testimony. We begin, however, by noting that, even without the Stoltzfus testimony, the evidence in the record was sufficient to establish petitioner’s guilt on the murder charge. Whether petitioner would have been convicted of capital murder and received the death sentence if she had not testified, or if she had been sufficiently impeached, is less clear. To put the question in context, we review the trial testimony at some length. The Testimony at Trial At about 4:30 p.m. on January 5,1990, Whitlock borrowed a 1986 blue Mercury Lynx from her boyfriend, John Dean, who worked in the Valley Shopping Mall in Harrisonburg, "Virginia. At about 6:30 or 6:45 p.m., she left her apartment, intending to return the car to Dean at the mall. She did not return the ear and was not again seen alive by any of her friends or family. Petitioner’s mother testified that she had driven petitioner and Henderson to Harrisonburg on January 5. She also testified that petitioner always carried a hunting knife that had belonged to his father. Two witnesses, a friend of Henderson’s and a security guard, saw petitioner and Henderson at the mall that afternoon. The security guard was informed around 3:30 p.m. that two men, one of whom she identified at trial as petitioner, were attempting to steal a car in the parking lot. She had them under observation during the remainder of the afternoon but lost sight of them at about 6:45. At approximately 7:30 p.m., a witness named Kurt Massie saw the blue Lynx at a location in Augusta County about 25 miles from Harrisonburg and a short distance from the cornfield where Whitlock’s body was later found. Massie identified petitioner as the driver of the vehicle; he also saw a white woman in the front seat and another man in the back. Massie noticed that the car was muddy, and that it tinned off Route 340 onto a dirt road. At about 8 p.m., another witness saw the Lynx at Buddy’s Market, with two men sitting in the front seat. The witness did not see anyone else in the ear. At approximately 9 p.m., petitioner and Henderson arrived at Dice’s Inn, a bar in Staunton, Virginia, where they stayed for about four or five hours. They danced with several women, including four prosecution witnesses: Donna Kay Tudor, Nancy Simmons, Debra Sievers, and Carolyn Brown. While there, Henderson gave Nancy Simmons a watch that had belonged to Whit-lock. Petitioner spent most of his time with Tudor, who was later arrested for grand larceny based on her possession of the blue Lynx. These four women all testified that Tudor had arrived at Dice’s at about 8 p.m. Three of them noticed nothing unusual about petitioner’s appearance, but Tudor saw some blood on his jeans and a cut on his knuckle. Tudor also testified that she, Henderson, and petitioner left Dice’s together after it closed to search for marijuana. Henderson was driving the blue Lynx, and petitioner and Tudor rode in back. Tudor related that petitioner was leaning toward Henderson and talking with him; she overheard a crude conversation that could reasonably be interpreted as describing the assault and murder of a black person with a ''rock erusher.” Tudor stated that petitioner made a statement that implied that he had killed someone, so the person “wouldn’t give him no more trouble.” App. 99, Tudor testified that while she, petitioner, and Henderson were driving around, petitioner took out his knife and threatened to stab Henderson because he was driving recklessly. Petitioner then began driving. At about 4:30 or 5 a.m. on January 6, petitioner drove Henderson to Kenneth Workman’s apartment in Timberville. Henderson went inside to get something, and petitioner and Tudor drove off without waiting for him. Workman testified that Henderson had blood on his pants and stated he had killed a black person. Petitioner and Tudor then drove to a motel in Blue Ridge. A day or two later they went to Virginia Beach, where they spent the rest of the week. Petitioner gave Tudor pearl earrings that Whitlock had been wearing when she was last seen. Tudor saw Whitlock’s driver’s license and bank card in the glove compartment of the car. Tudor testified that petitioner unsuccessfully attempted to use Whitlock’s bank card when they were in Virginia Beach. When petitioner and Tudor returned to Augusta County, they abandoned the blue Lynx. On January 11, the police identified the car as Dean’s, and found petitioner’s and Tudor’s fingerprints on both the inside and the outside of the ear. They also found shoe impressions that matched the soles of shoes belonging to petitioner. Inside the ear, they retrieved a jacket that contained identification papers belonging to Henderson. The police also recovered a bag at petitioner’s mother’s house that Tudor testified she and petitioner had left when they returned from Virginia Beach. The bag contained, among other items, three identification cards belonging to Whitlock and a black “tank top” shirt that was later found to have human blood and semen stains on it. Tr. 707. On January 13, a farmer called the police to advise them that he had found Henderson’s wallet; a search of the area led to the discovery of Whitlock’s frozen, nude, and battered body. A 69-pound rock, spotted with blood, lay nearby. Forensic evidence indicated that Whitlock’s death was caused by “multiple blunt force injuries to the head.” App. 109. The location of the rock and the human blood on the rock suggested that it had been used to inflict these injuries. Based on the contents of Whitlock’s stomach, the medical examiner determined that she died fewer than six hours after she had last eaten. A number of Caucasian hair samples were found at the scene, three of which were probably petitioner’s. Given the weight of the rock, the prosecution argued that one of the killers must have held the victim down while the other struck her with the murder weapon. Donna Tudor’s estranged husband, Jay Tudor, was called by the defense and testified that in March she had told him that she was present at the murder scene and that petitioner did not participate in the murder. Jay Tudor’s testimony was inconsistent in several respects with that of other witnesses. For example, he testified that several days elapsed between the time that petitioner, Henderson, and Donna Tudor picked up Whitlock and the time of Whitlock’s murder. Anne Stoltzfus’ Testimony Anne Stoltzfus testified that on two occasions on January 5 she saw petitioner, Henderson, and a blonde girl inside the Harrisonburg mall, and that she later witnessed their abduction of Whitlock in the parking lot. She did not call the police, but a week and a half after the incident she discussed it with classmates at James Madison University, where both she and Whitlock were students. One of them called the police. The next night a detective visited her, and the following morning she went to the police station and told her story to Detective Claytor, a member of the Harrisonburg City Police Department. Detective Claytor showed her photographs of possible suspects, and she identified petitioner and Henderson “with absolute certainty” but stated that she had a slight reservation about her identification of the blonde woman. Id., at 56. At trial, Stoltzfus testified that, at about 6 p.m. on January 5, she and her 14-year-old daughter were in the Music Land store in the mall looking for a compact disc. While she was waiting for assistance from a clerk, petitioner, whom she described as “Mountain Man,” and the blonde girl entered. Because petitioner was “revved up” and “very impatient,” she was frightened and backed up, bumping into Henderson (whom she called “Shy Guy”), and thought she felt something hard in the pocket of his coat. Id., at 36-37. Stoltzfus left the store, intending to return later. At about 6:45, while heading back toward Music Land, she again encountered the threesome: “Shy Guy” walking by himself, followed by the girl, and then “Mountain Man” yelling “Donna, Donna, Donna.” The girl bumped into Stoltzfus and then asked for directions to the bus stop. The three then left. At first Stoltzfus tried to follow them because of her concern about petitioner’s behavior, but she “lost him” and then headed back to Music Land. The clerk had not returned, so she and her daughter went to their ear. While driving to another store, they saw a shiny dark blue car. The driver was “beautiful,” “well dressed and she was happy, she. was singing....” Id., at 41. "When the blue car was stopped behind a minivan at a stop sign, Stoltzfus saw petitioner for the third time. She testified: “Mountain Man’ came tearing out of the Mall entrance door and went up to the driver of the van and... was just really mad and ran back and banged on back of the backside of the van and then went back to the Mall entrance wall where ‘Shy Guy' and ‘Blonde Girl’ was standing.... [T]hen we left [and before the van and a white pickup truck could turn] Mountain Man’ came out again-” Id., at 42-43. After first going to the passenger side of the pickup truck, petitioner came back to the black girl’s car, “pounded on” the passenger window, shook the ear, yanked the door open and jumped in. When he motioned for “Blonde Girl” and “Shy Guy" to get in, the driver stepped on the gas and “just laid on the horn” but she could not go because there were people walking in front of the ear. The horn “blew a long time” and petitioner “started hitting her... on the left shoulder, her right shoulder and then it looked like to me that he started hitting her on the head and I was, I just became concerned and upset. So I beeped, honked my horn and then she stopped honking the horn and he stopped hitting her and opened the door again and the ‘Blonde Girl’ got in the back and ‘Shy Guy’ followed and got behind him.” Id., at 44-45. Stoltzfus pulled her car up parallel to the blue car, got out for a moment, got back in, and leaned over to ask repeatedly if the other driver was “O.K.” The driver looked “frozen” and mouthed an inaudible response. Stoltzfus started to drive away and then realized “the only word that it could possibly be, was help.” Id., at 47. The blue car then drove slowly around her, went over the curb with its horn honking, and headed out of the mall. Stoltzfus briefly followed, told her daughter to write the license number on a “3x4 [inch] index card,” and then left for home because she had an empty gas tank and “three kids at home waiting for supper.” Id., at 48-49. At trial Stoltzfus identified Whitlock from a picture as the driver of the car and pointed to petitioner as “Mountain Man.” When asked if pretrial publicity about the murder had influenced her identification, Stoltzfus replied “absolutely not.” She explained: “[F]irst of all, I have an exceptionally good memory. I had very close contact with [petitioner] and he made an emotional impression with me because of his behavior and I, he caught my attention and I paid attention. So I have absolutely no doubt of my identification.” Id., at 58. The Commonwealth did not produce any other witnesses to the abduction. Stoltzfus’ daughter did not testify. The Stoltzfus Documents The materials that provide the basis of petitioner’s Brady claim consist of notes taken by Detective Claytor during his interviews with Stoltzfus, and letters written by Stoltzfus to Claytor. They cast serious doubt on Stoltzfus’ confident assertion of her “exceptionally good memory.” Because the content of the documents is critical to petitioner’s procedural and substantive claims, we summarize their content. Exhibit 1 is a handwritten note prepared by Detective Claytor after his first interview with Stoltzfus on January 19,1990, just two weeks after the erime. The note indicates that she could not identify the black female victim. The only person Stoltzfus apparently could identify at this time was the white female. Id., at 306. Exhibit 2 is a document prepared by Detective Claytor some time after February 1. It contains a summary of his interviews with Stoltzfus conducted on January 19 and January 20, 1990. At that time “she was not sure whether she could identify the white males but felt sure she could identify the white female.” Exhibit 3 is entitled “Observations” and includes a summary of the abduction. Exhibit 4 is a letter written by Stoltzfus to Claytor three days after their first interview “to clarify some of my confusion for you.” The letter states that she had not remembered being at the mall, but that her daughter had helped jog her memory. Her description of the abduction includes the comment: “I have a very vague memory that I’m not sure of. It seems as if the wild guy that I saw had come running through the door and up to a bus as the bus was pulling off.... Then the guy I saw came running up to the black girl’s window. Were those 2 memories the same person?” Id., at 316. In a postscript she noted that her daughter “doesn’t remember seeing the 3 people get into the black girl’s ear....” Ibid. Exhibit 5 is a note to Claytor captioned “My Impressions of ‘The Car,’ ” which contains three paragraphs describing the size of the car and comparing it with Stoltzfus’ Volkswagen Rabbit, but not mentioning the license plate number that she vividly recalled at the trial. Id., at 317-318. Exhibit 6 is a brief note from Stoltzfus to Claytor dated January 25, 1990, stating that after spending several hours with John Dean, Whitlock’s boyfriend, “looking at current photos,” she had identified Whitlock “beyond a shadow of a doubt.” Id., at 318. The District Court noted that by the time of trial her identification had been expanded to include a description of her clothing and her appearance as a college kid who was “singing” and “happy.” Id., at 387-388. Exhibit 7 is a letter from Stoltzfus to Detective Claytor, dated January 16, 1990, in which she thanks him for his “patience with my sometimes muddled memories.” She states that if the student at school had not called the police, “I never would have made any of the associations that you helped me make.” Id., at 321. In Exhibit 8, which is undated and summarizes the events described in her trial testimony, Stoltzfus commented: “So where is the 3x4 card?... It would have been very nice if I could have remembered all this at the time and had simply gone to the police with the information. But I totally wrote this off as a trivial episode of college kids carrying on and proceeded with my own full-time college load at JMU.... Monday, January 15th. I was cleaning out my car and found the 3x4 card. I tore it into little pieces and put it in the bottom of a trash bag.” Id., at 326. There is a dispute between the parties over whether petitioner’s counsel saw Exhibits 2, 7, and 8 before trial. The prosecuting attorney conceded that he himself never saw Exhibits 1, 3, 4, 5, and 6 until long after petitioner’s trial, and they were not in the file he made available to petitioner. For purposes of this case, therefore, we assume that petitioner proceeded to trial without having seen Exhibits 1, 3, 4, 5, and 6. State Proceedings Petitioner was tried in Augusta County, where Whitlock’s body was found, on charges of capital murder, robbery, and abduction. Because the prosecutor maintained an open file policy, which gave petitioner’s counsel access to all of the evidence in the Augusta Comity prosecutor’s files, petitioner’s counsel did not file a pretrial motion for discovery of possible exculpatory evidence. In closing argument, petitioner’s lawyer effectively conceded that the evidence was sufficient to support the robbery and abduction charges, as well as the lesser offense of first-degree murder, but argued that the evidence was insufficient to prove that petitioner was guilty of capital murder. Id., at 192-198. The judge instructed the jury that petitioner could be found guilty of the capital charge if the evidence established beyond a reasonable doubt that he “jointly participated in the fatal beating” and “was an active and immediate participant in the act or acts that caused the victim’s death.” Id., at 160-161. The jury found petitioner guilty of abduction, robbery, and capital murder. Id., at 200-201. After listening to testimony and arguments presented during the sentencing phase, the jury made findings of “vileness” and “future dangerousness,” and unanimously recommended the death sentence that the judge later imposed. The Virginia Supreme Court affirmed the conviction and sentence. Strickler v. Commonwealth, 241 Va. 482, 404 S. E. 2d 227 (1991). It held that the trial court had properly instructed the jury on the “joint perpetrator” theory of capital murder and that the evidence, viewed most favorably in support of the verdict, amply supported the prosecution’s theory that both petitioner and Henderson were active participants in the actual killing. In December 1991, the Augusta County Circuit Court appointed new counsel to represent petitioner in state habeas corpus proceedings. State habeas counsel advanced an ineffective-assistance-of-counsel claim based, in part, on trial counsel’s failure to file a motion under Brady v. Maryland, 373 U. S. 83 (1963), “to have the Commonwealth disclose to the defense all exculpatory evidence known to it — or in its possession.” App. 205-206. In answer to that claim, the Commonwealth asserted that such a motion was unnecessary because the prosecutor had maintained an open file policy. The Circuit Court dismissed the petition, and the State Supreme Court affirmed. Strickler v. Murray, 249 Va. 120, 452 S. E. 2d 648 (1995). Federal Habeas Corpus Proceedings In March 1996, petitioner filed a federal habeas corpus petition in the Eastern District of Virginia. The District Court entered a sealed, ex parte order granting petitioner’s counsel the right to examine and to copy all of the police and prosecution files in the case. Record, Doe. No. 20. That order led to petitioner’s counsel’s first examination of the Stoltzfus materials, described supra, at 273-275. Based on the discovery of those exhibits, petitioner for the first time raised a direct claim that his conviction was invalid because the prosecution had failed to comply with the rule of Brady v. Maryland. The District Court granted the Commonwealth’s motion to dismiss all claims except for petitioner’s contention that the Commonwealth violated Brady, that he received ineffective assistance of counsel, and that he was denied due process of law under the Fifth and Fourteenth Amendments. In its order denying the Commonwealth’s motion to dismiss, the District Court found that petitioner had “demonstrated cause for his failure to raise this claim earlier [because] [d]efense counsel had no independent access to this material and the Commonwealth repeatedly withheld it throughout Petitioner’s state habeas proceeding.” App. 287. After reviewing the Stoltzfus materials, and making the assumption that the three disputed exhibits had been available to the defense, the District Court concluded that the failure to disclose the other five was sufficiently prejudicial to undermine confidence in the jury’s verdict. Id., at 396. It granted summary judgment to petitioner and granted the writ. The Court of Appeals vacated in part and remanded. It held that petitioner’s Brady claim was proeedurally defaulted because the factual basis for the claim was available to him at the time he filed his state habeas petition. Given that he knew that Stolt2fus had been interviewed by Harri-sonburg police officers, the court opined that “reasonably competent counsel would have sought discovery in state court” of the police files, and that in response to this “simple request, it is likely the state court would have ordered the production of the files.” App. 421. Therefore, the Court of Appeals reasoned, it could not address the Brady claim unless petitioner could demonstrate both cause and actual prejudice. Under Fourth Circuit precedent a party “cannot establish cause to excuse his default if he should have known of such claims through the exercise of reasonable diligence.” App. 423 (citing Stockton v. Murray, 41 F. 3d 920, 925 (1994)). Having already decided that the claim was available to reasonably competent counsel, the Fourth Circuit stated that the basis for finding procedural default also foreclosed a finding of cause. Moreover, the Court of Appeals reasoned, petitioner could not fault his trial lawyers’ failure to make a Brady claim because they reasonably relied on the prosecutor’s open file policy. App. 423-424. As an alternative basis for decision, the Court of Appeals also held that petitioner could not establish prejudice because “the Stoltzfus materials would have provided little or no help... in either the guilt or sentencing phases of the trial.” Id., at 425. With respect to guilt, the court noted that Stoltzfus’ testimony was not relevant to petitioner’s argument that he was only guilty of first-degree murder rather than capital murder because Henderson, rather than he, actually killed Whitlock. With respect to sentencing, the court concluded that her testimony “was of no import” because the findings of future dangerousness and vileness rested on other evidence. Finally, the court noted that even if it could get beyond the procedural default, the Brady claim would fail on the merits because of the absence of prejudice. App. 425, n. 11. The Court of Appeals, therefore, reversed the District Court’s judgment and remanded the ease with instructions to dismiss the petition. II The first question that our order granting certiorari directed the parties to address is whether the Commonwealth violated the Brady rule. We begin our analysis by identifying the essential components of a Brady violation. In Brady, this Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 873 U. S., at 87. We have since held that the duty to disclose such evidence is applicable even though there has been no request by the accused, United States v. Agurs, 427 U. S. 97, 107 (1976), and that the duty encompasses impeachment evidence as well as exculpatory evidence, United States v. Bagley, 473 U. S. 667, 676 (1985). Such evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Id., at 682; see also Kyles v. Whitley, 514 U. S. 419, 433-434 (1995). Moreover, the rule encompasses evidence “known only to police investigators and not to the prosecutor.” Id., at 438. In order to comply with Brady, therefore, “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in this case, including the police.” Kyles, 514 U. S., at 437. These eases, together with earlier cases condemning the knowing use of perjured testimony, illustrate the special role played by the American prosecutor in the search for truth in criminal trials. Within the federal system, for example, we have said that the United States Attorney is “the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Berger v. United States, 295 U. S. 78, 88 (1935). This special status explains both the basis for the prosecution’s broad duty of disclosure and our conclusion that not every violation of that duty necessarily establishes thát the outcome was unjust. Thus the term “Brady violation” is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence — that is, to any suppression of so-called “Brady material” — although, strictly speaking, there is never a real “Brady violation” unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued. Two of those components are unquestionably established by the record in this case. The contrast between (a) the terrifying incident that Stoltzfus confidently described in her testimony and (b) her initial perception of that event “as a trivial episode of college kids carrying on” that her daughter did not even notice, suffices to establish the impeaching character of the undisclosed documents. Moreover, with respect to at least five of those documents, there is no dispute about the fact that they were known to the Commonwealth but not disclosed to trial counsel. It is the third component — whether petitioner has established the prejudice necessary to satisfy the "materiality" inquiry — that is the most difficult element of the claimed Brady violation in this case. Because petitioner acknowledges that his Brady claim is procedurally defaulted, we must first decide whether that default is excused by an adequate showing of cause and prejudice. In this ease, cause and prejudice parallel two of the three components of the alleged Brady violation itself. The suppression of the Stoltzfus documents constitutes one of the causes for the failure to assert a Brady claim in the state courts, and unless those documents were “material” for Brady purposes, their suppression did not give rise to sufficient prejudice to overcome the procedural default. III Respondent expressly disavows any reliance on the fact that petitioner’s Brady claim was not raised at trial. Brief for Respondent 17-18, n. 6. He states that the Commonwealth has consistently argued “that the claim is defaulted because it could have been raised on state habeas corpus through the exercise of due diligence, but was not.” Ibid. Despite this concession, it is appropriate to begin the analysis of the “cause” issue by explaining why petitioner’s reasons for failing to raise his Brady claim at trial are acceptable under this Court’s cases. Three factors explain why trial counsel did not advance this claim: The documents were suppressed by the Commonwealth; the prosecutor maintained an open file policy; and trial counsel were not aware of the factual basis for the claim. The first and second factors — i. e., the nondisclosure and the open file policy — are both fairly characterized as conduct attributable to the Commonwealth that impeded trial counsel’s access to the factual basis for making a Brady claim. As we explained in Murray v. Carrier, 477 U. S. 478, 488 (1986), it is just such factors that ordinarily establish the existence of cause for a procedural default. If it was reasonable for trial counsel to rely on, not just the presumption that the prosecutor would fully perform his duty to disclose all exculpatory materials, but also the implicit representation that such materials would be included in the open files tendered to defense counsel for their examination, we think such reliance by counsel appointed to represent petitioner in state habeas proceedings was equally reasonable. Indeed, in Murray we expressly noted that “the standard for cause should not vary depending on the timing of a procedural default.” Id., at 491. Respondent contends, however, that the prosecution’s maintenance of an open file policy that did not include all it was purported to contain is irrelevant because the factual basis for the assertion of a Brady claim was available to state habeas counsel. He presses two factors to support this assertion. First, he argues that an examination of Stoltzfus’ trial testimony, as well as a letter published in a local newspaper, made it clear that she had had several interviews with Detective Claytor. Second, the fact that the Federal District Court entered an order allowing discovery of the Harrisonburg police files indicates that diligent counsel could have obtained a similar order from the state court. We find neither factor persuasive. Although it is true that petitioner’s lawyers — both at trial and in post-trial proceedings — must have known that Stoltzfus had had multiple interviews with the police, it by no means follows that they -would have known that records pertaining to those interviews, or that the notes that Stoltzfus sent to the detective, existed and had been suppressed. Indeed, if respondent is correct that Exhibits 2, 7, and 8 were in the prosecutor’s “open file,” it is especially unlikely that counsel would have suspected that additional impeaching evidence was being withheld. The prosecutor must have known about the newspaper articles and Stoltzfus’ meetings with Claytor, yet he did not believe that his prosecution file was incomplete. Furthermore, the fact that the District Court entered a broad discovery order even before federal habeas counsel had advanced a Brady claim does not demonstrate that a state court also would have done so. Indeed, as we understand Virginia law and respondent’s position, petitioner would not have been entitled to such discovery in state ha-beas proceedings without a showing of good cause. Even pursuant to the broader discovery provisions afforded at trial, petitioner would not have had access to these materials under Virginia law, except as modified by Brady. Mere speculation that some exculpatory material may have been withheld is unlikely to establish good cause for a discovery request on collateral review. Nor, in our opinion, should such suspicion suffice to impose a duty on counsel to advance a claim for which they have no evidentiary support. Proper respect for state procedures counsels against a requirement that all possible claims be raised in state collateral proceedings, even when no known facts support them. The presumption, well established by “ ‘tradition and experience,’ ” that prosecutors have fully “‘discharged their official duties,’ ” United States v. Mezzanatto, 513 U. S. 196, 210 (1995), is inconsistent with the novel suggestion that conscientious defense counsel have a procedural obligation to assert constitutional error on the basis of mere suspicion that some prose-cutorial misstep may have occurred. Respondent’s position on the “cause” issue is particularly weak in this case because the state habeas proceedings confirmed petitioner’s justification for his failure to raise a Brady claim. As already noted, when he alleged that trial counsel had been incompetent because they had not advanced such a claim, the warden responded by pointing out that there was no need for counsel to do so because they “were voluntarily given full disclosure of everything known to the government.” Given that representation, petitioner had no basis for believing the Commonwealth had failed to comply with Brady at trial. Respondent also argues that our decisions in Gray v. Netherlands 518 U. S. 152 (1996), and McCleskey v. Zant, 499 U. S. 467 (1991), preclude the conclusion that the cause for petitioner’s default was adequate. In both of those cases, however, the petitioner was previously aware of the factual basis for his claim but failed to raise it earlier. See Gray, 518 U. S., at 161; McCleskey, 499 U. S., at 498-499. In the context of a Brady claim, a defendant cannot conduct the “reasonable and diligent investigation” mandated by McCleskey to preclude a finding of procedural default when the evidence is in the hands of the State. The controlling precedents on “cause” are Murray v. Carrier, 477 U. S., at 488, and Amadeo v. Zant, 486 U. S. 214 (1988). As we explained in the latter case: “If the District Attorney’s memorandum was not reasonably discoverable because it was concealed by Putnam County officials, and if that concealment, rather than tactical considerations, was the reason for the failure of petitioner’s lawyers to raise the jury challenge in the trial court, then petitioner established ample cause to excuse his procedural default under this Court’s precedents.” Id., at 222. There is no suggestion that tactical considerations played any role in petitioner’s failure to raise his Brady claim in state court. Moreover, under Brady an inadvertent nondisclosure has the same impact on the fairness of the proceedings as deliberate concealment. “If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor.” Agurs, 427 U. S., at 110. In summary, petitioner has established cause for failing to raise a Brady claim prior to federal habeas because (a) the prosecution withheld exculpatory evidence; (b) petitioner reasonably relied on the prosecution’s open file policy as fulfilling the prosecution’s duty to disclose such evidence; and (c) the Commonwealth confirmed petitioner’s reliance on the open file policy by asserting during state habeas proceedings that petitioner had already received “everything known to the government.” We need not decide in this case whether any one or two of these factors would be sufficient to constitute cause, since the combination of all three surely suffices. IV The differing judgments of the District Court and the Court of Appeals attest to the difficulty of resolving the issue of prejudice. Unlike the Fourth Circuit, we do not believe that “the Stolzfus [sic] materials would have provided little or no help to Striekler in either the guilt or sentencing phases of the trial.” App. 425. Without a doubt, Stoltzfus’ testimony was prejudicial in the sense that it made petitioner’s conviction more likely than if she had not Question: Did administrative action occur in the context of the case? A. No B. Yes 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 Leslie A. DUPLISEA, Plaintiff, Appellant, v. MAINE CENTRAL RAILROAD, Defendant, Appellee. No. 5368. United States Court of Appeals First Circuit. Oct. 31, 1958. Oscar Walker, Bangor, Me., for appellant. Arnold L. Veague, Bangor, Me., with whom John W. Conti and Eaton, Peabody, Bradford & Veague, Bangor, Me., were on brief, for appellee. Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges. PER CURIAM. Appeal is taken from an order dismissing a complaint for lack of jurisdiction. The complaint is conveniently vague as to the basis of federal jurisdiction. Clearly it is not diversity of citizenship under 28 U.S.C. § 1332, for the complaint alleges that plaintiff is a citizen of Maine and that defendant Railroad is a corporation incorporated under the laws of the State of Maine. Nor is there any allegation of a breach of a duty imposed or the violation of a right given by the Constitution, the Railway Labor Act, or any other federal statute. Compare Conley v. Gibson, 1957, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80; Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 1944, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187. Nor does the complaint raise any question as to the validity, construction, or effect of the Constitution or of any law of the United States. On the contrary, under the terms of the complaint, plaintiff seeks damages for an alleged wrongful discharge in violation of the terms of a collective bargaining agreement negotiated by the Railroad and the Brotherhood of Railroad Trainmen under the provisions of the Railway Labor Act. No doubt the Railway Labor Act is an “Act of Congress regulating commerce” within the meaning of 28 U.S.C. § 1337. It would have been within the power of Congress to provide a federal cause of action for damages based upon a wrongful discharge of a railway employee in violation of the collective bargaining agreement. Cf. Textile Workers Union of America v. Lincoln Mills of Alabama, 1957, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972. If such a federal cause of action had been created, presumably the federal district court would have had jurisdiction, either under 28 U.S.C. § 1337, or under the more general provision of 28 U.S.C. § 1331, since more than $3,000 was involved. But counsel for appellant was unable to point to any provision of the Railway Labor Act creating such federal cause of action. Nor have we been able to find any such provision. What seems to come nearest to the present case is found in the terms of 48 Stat. 1189 (1934), 45 U.S.C.A. § 153, under which a railway employee having a grievance because of alleged wrongful discharge in violation of a term of the collective bargaining agreement is permitted to submit his case to the National Railroad Adjustment Board. It is provided further in 48 Stat. 1191 (1934), 45 U.S.C.A. § 153(m), that any resulting awards by the Railroad Adjustment Board, or a division thereof, “shall be final and binding upon both parties to the dispute, except insofar as they shall contain a money award.” In subsection (o) of the same section, it is provided that when such an award is made, the Railroad Adjustment Board “shall make an order, directed to the carrier, to make the award effective and, if the award includes the requirement for the payment of money, to pay to the employee the sum to which he is entitled under the av/ard on or before a day named.” The following subsection provides that if the carrier does not comply with such order, then the aggrieved employee “may file in the District Court of the United States * * * a petition setting forth briefly the causes for which he claims relief, and the order of the division of the Adjustment Board in the premises. Such suit in the District Court of the United States shall proceed in all respects as other civil suits, except that on the trial of such suit the findings and order of the division of the Adjustment Board shall be prima facie evidence of the facts therein stated * * . The district courts are empowered, under the rules of the court governing actions at law, to make such order and enter such judgment, by writ of mandamus or otherwise, as may be appropriate to enforce or set aside the order of the division of the Adjustment Board.” Thus Congress not only failed expressly to create a special jurisdiction in the federal courts for adjudication of claims based on violations of such collective bargaining contracts, but Congress in fact did create such a jurisdiction in an administrative body. As stated in Starke v. New York, Chicago & St. Louis R. Co., 7 Cir., 1950, 180 F.2d 569, 573-574: “Congress having specifically conferred upon the Adjustment Board the authority to hear and determine plaintiff’s grievance, it is not in the absence of express language to be implied that it also intended to confer jurisdiction upon the courts. Such a holding * * would seriously impair if not destroy the usefulness of the Act and the purpose which Congress sought to achieve.” Apparently the plaintiff at first invoked these administrative remedies under the Railway Labor Act, for the complaint contains a somewhat cryptic paragraph reading as follows: “That at all times herein mentioned from February 23, 1953 to January 17, 1958, the plaintiff appealed within sixty (60) days from the date of the last decision rendered, to wit: February 23, 1953, with no decision having been rendered on said appeal therefrom to this date, the plaintiff pursued his claim of alleged wrongful discharge in violation of collective bargaining agreement then and there, by exhausting to finality his administrative remedies, under provisions of the Railway Labor Act.” If it may be inferred from the above-quoted allegation that a division of the Railroad Adjustment Board in processing a grievance by the plaintiff has made an adverse award to the effect that the plaintiff has no just grievance under the collective bargaining agreement, then the plaintiff would have to deal with the provision of 45 U.S.C.A. § 153 (m) to the effect that the award “shall be final and binding upon both parties to the dispute” in case the plaintiff should subsequently seek to recover on a common law action for breach of contract in a state court, assuming, of course without now deciding, that such court would otherwise have jurisdiction of the action. Among the precedents fully supporting the action of the district court, see Stack v. New York Central R. Co., 2 Cir., 258 F.2d 739; Starke v. New York, Chicago & St. Louis R. Co., supra; Broady v. Illinois Central R. Co., 7 Cir., 1951, 191 F.2d 73, 78-79, certiorari denied, 1951, 342 U.S. 897, 72 S.Ct. 231, 96 L.Ed. 672; Strawser v. Reading Co., D.C.E.D.Pa. 1948, 80 F.Supp. 455. A judgment will be entered affirming the order of the District Court. 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_respond2_1_4	J	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". Your task is to determine what subcategory of business best describes this litigant. Carmen CARRILLO vda de Cerich et al., Plaintiffs-Appellees, v. SAMEIT WESTBULK and Johan Hagenes, Defendants and Third-Party Plaintiffs-Appellants, v. CARIBE SHIPPING COMPANY, INC., et al., Third-Party DefendantsAppellees. No. 74-1204. United States Court of Appeals, First Circuit. Argued Feb. 5, 1975. Decided April 14, 1975. Rehearing Denied May 29, 1975. Jose L. Novas Dueno, San Juan, P. R., with whom Hartzell, Ydrach, Mellado, Santiago, Perez & Novas, San Juan, P. R. and Haight, Gardner, Poor & Havens, New York City, and by Harvey B. Nachman, San Juan, P; R., with whom Nachman, Feldstein & Gelpi, San Juan, P. R., was on brief, for Carmen Carrillo vda de Cerich, and others. Harry Adnuze Montano, with whom Rieckehoff, Calderon, Rosa-Silva & Vargas, Hato Rey, P. R., was on brief, for Caribe Shipping Company, Inc., and others. Before COFFIN, Chief Judge, ALD-RICH and McENTEE, Circuit Judges. ALDRICH, Senior Circuit Judge. On November 9, 1970, at San Juan, plaintiff’s decedent, Cerich, a longshoreman employed by Caribe Shipping Co., Inc. (stevedore) was engaged in unloading automobiles from a hold of the M/V Westbulk, a Norwegian flag vessel owned and operated by defendants. When an afternoon rain called a halt to this activity some longshoremen sought shelter below decks. Cerich entered a car still in the hold, which could be found to be a not uncommon or forbidden practice. An hour later, the rain continuing, the whistle was sounded to signal the workday’s end. Unnoticed, Cerich failed to join the longshoremen who left the vessel. Without inspecting (or without adequately inspecting), the vessel’s crew closed the hatches by an automatic mechanism subject to their exclusive control, leaving the holds unlighted. The following morning, Cerich’s body was discovered near a ladder at the bottom of the hold, some four or five levels below the tweendeck where he had last been seen the previous day. In response to special questions the jury found the vessel unseaworthy, defendants negligent, and Cerich contributorily negligent to the extent of 10%, and rejected defendants’ third-party complaint against the stevedore for indemnification. See generally Ryan Stevedoring Co., Inc. v. Pan-Atlantic Steamship Corp., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133. Defendants appeal. In the district court defendants, on the issue of unseaworthiness, contended that since the hatches were not closed until Cerich’s employment had terminated for the day, they no longer owed him a duty. If it could be found that he wilfully remained below, this would be an understandable position. However, there was nothing about the nature of the cargo, i. e., attractive for pilfering, to make this a likely possibility. Under such circumstances defendants were on the horns of a dilemma; either they were negligent in failing to inspect in case a seaman had fallen asleep or was otherwise incapable of responding to the whistle or, if the duty of checking was the stevedore’s, nonetheless defendants made the vessel unseaworthy for a longshoreman legally entitled to a safe exit. On either basis defendants had no defense on the issue of liability. The fact that they may have had a valid claim for indemnification was no defense against imposition of obstinacy damages with respect to that failure to concede. Rivera v. Rederi A/B Nordstjernan, 1 Cir., 1972, 456 F.2d 970, 975 & n. 11, cert. denied, 409 U.S. 876, 93 S.Ct. 124, 34 L.Ed.2d 128. If there were some possibility of thinking Cerich 100% contributively negligent, that is, that the sole fault was his, we might have a different question. But while it was not surprising for the jury to have found contributory negligence of some sort, it seems inconceivable that any finder of fact would have placed the blame for this accident upon Cerich alone. Although defendants had a litigable issue on contributory negligence, therefore, we do not think it an abuse of discretion for the court to find obstinacy in defendants’ failure to concede their liability. Cf. Fireman’s Fund Ins. Co. v. Santoro, 1 Cir., 1967, 376 F.2d 157, 160; Soto v. Lugo, 1954, 76 P.R.R. 416, 418-19; Mercado v. American R.R. Co., 1943, 61 P.R.R. 222, 230. Cerich’s contributory negligence, however, does give rise to the initial issue raised in defendants’ brief, the failure of the court to accept their views on the matter of their claim over against the stevedore for indemnification, refusing their requests to charge, and denying their motion for judgment n. o. v. against the stevedore in light of the jury’s finding. That a stevedore’s warranty of workmanlike performance encompasses a promise to provide longshoremen free of negligence seems well settled. See Hartnett v. Reiss S.S. Co., 2 Cir., 1970, 421 F.2d 1011, 1018, cert. denied, 400 U.S. 852, 91 S.Ct. 49, 27 L.Ed.2d 90; Arista Cia. DeVapores, S. A. v. Howard Terminal, 9 Cir., 1967, 372 F.2d 152, 154. The vessel’s primary argument here invokes a “per se” rule of indemnification, apparently embraced in the Second, Fourth, and Ninth Circuits, that a finding of contributory negligence on the part of a plaintiff longshoreman is per se proof of a breach of warranty of workmanlike performance by his employer. See United States Lines, Inc. v. Jarka Corp. of Baltimore, 4 Cir., 1971, 444 F.2d 26, 28; McLaughlin v. Trelleborgs Angfartygs A/B, 2 Cir., 1969, 408 F.2d 1334, 1336, cert. denied sub nom. Golden Marine Co., Inc. v. Trelleborgs Angfartygs A/B, 395 U.S. 946, 89 S.Ct. 2020, 23 L.Ed.2d 464; Arista Cia., ante, 372 F.2d at 154. However, defendants overstate the rule (and parenthetically, the stevedore understates it). The allegedly negligent conduct must be in the course of his employment. If the jury had found Cerich negligent in going to sleep, so that he could not respond to the whistle, this negligence might have been charged back to the stevedore. And if he had been hurt while attempting to leave the ship immediately after the whistle blew, and before the hatch was closed, just as the shipowner would have owed him a seaworthy vessel for the purpose of getting ashore, so, too, any contributory negligence here would be chargeable against his employer. But what, on the record, we cannot tell is when the contributory negligence found by the jury occurred. If it had been by carelessly, or foolishly, wandering around in the dark after the defendants had prevented his leaving by improperly closing the hatches, it would not be proper to charge this to his employer. Cf. Waterman Steamship Corp. v. David, 5 Cir., 1965, 353 F.2d 660, 664-66, cert. denied, 384 U.S. 972, 86 S.Ct. 1863, 16 L.Ed.2d 683. It is elementary under principles of respondeat superior that no right of indemnity lies against an employer for actions of his employee taken beyond the scope of employment. See Ira S. Bushey & Sons, Inc. v. United States, 2 Cir., 1968, 398 F.2d 167, 170; Drewery v. Daspit Bros. Marine Divers, Inc., 5 Cir., 1963, 317 F.2d 425, 426-28 and n. I. However, defendants failed to request that the special question to the jury be restricted to the course of Cerich’s employment. It is no answer that in their final argument to the jury defendants may have confined themselves to discussing possible acts by Cerich that would, in fact, have met that test. A jury is not to be foreclosed from reaching conclusions of fact plainly warranted on the record simply because counsel may not have discussed them. There should have been a special question on course of employment or, alternatively, requests for instructions so restricted. Defendants’ requests having been overbroad, their objections based on Cerich’s contributory negligence must be overruled without reaching the question whether we would adopt the per se rule, or the looser “factor” rule applied in the Fifth Circuit, see, e. g., Julian, note 1, ante, 479 F.2d at 433. There was a basis for defendants’ claim for indemnification by the stevedore other than Cerich’s contributory negligence, namely, that there was a responsibility on the part of the stevedore to check that all its men had come ashore. This was a jury question that we will deal with, post, on the matter of obstinacy findings. We first consider defendants’ objections with respect to plaintiff’s damages. In their brief defendants say that over their objection the court charged the jury that it might consider “the survivor’s grief and mental anguish,” and proceed to argue that this was error. We do not reach the question; defendants did not in fact adequately save their objections, either formally or informally. Because an important point of practice is involved, we go into this in some detail. Prior to the presentation of their final arguments to the jury, the court, pursuant to F.R.Civ.P. 51, discussed with counsel the general substance of the proposed charge and noted what requests it would give and what deny. Defendants proceeded to note their objections to the proposed granting of certain of plaintiff’s requests, notably No. 21. Request No. 21, relating to damages, was over a page long and certain portions of it were correct beyond question. Defendants’ present claim that they objected to the inclusion of grief and mental anguish could only be supported, if at all, by their alleged general objection to the entire request. What defendants said, however, seems notably more restricted. After the charge the following occurred. “Mr. Nachman (counsel for plaintiff). The plaintiff has no exceptions or request or additional request other than as stated prior to the calling of the jury. Mr. Novas (counsel for defendants). Your Honor, at this time we would like to renew our objection and to take exception to the denial of such instructions on the part of your Honor. The Court. Let the record so reflect. Mr. Novas. In order to avoid any unnecessary waste, great wasting of time, if your Honor approved and my colleague here so stipulates I can base my objection and renew my objection and renew my exceptions just by referring to the number. Mr. Nachman. I will stipulate that you say the exact same thing that you said before. The Court. Exactly the same words that you originally said. Mr. Anduze (counsel for stevedore). All right, we will stipulate that. The Court. All right, the parties stipulate and the Court accepts the stipulation.” F.R.Civ.P. 51 provides in part as follows. “No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” This means after the charge, not before, United States v. Taglianetti, 1 Cir., 1972, 456 F.2d 1055, 1057; Marshall v. Nugent, 1 Cir., 1955, 222 F.2d 604, 615, as counsel for defendants should well know. Rivera v. Rederi A/B Nordstjernan, ante, 456 F.2d at 976. The many reasons for this have been collected in Dunn v. St. Louis-San Francisco Ry. Co., 10 Cir., 1966, 370 F.2d 681, where the court noted express disapproval of an attempt, as in the case at bar, to circumvent the rule by a post-charge stipulation. In our discretion we may overlook insufficient compliance with the rule, Bouley v. Continental Cas. Co., 1 Cir., 1972, 454 F.2d 85, but a party takes his chances and cannot rely on an assurance by the district court that his rights are saved. Dunn, ante, 370 F.2d at 684. In the case at bar defendants’ procedure was altogether inadequate. And, turning to the merits, if the court’s charge was in fact error, that fact is not so clear that we will treat it in the absence of timely objection. We deal, finally, with the matter of counsel fees and prejudgment interest for obstinacy, see Puerto Rico Rules of Civil Procedure 44.4(d) and (e), a matter which from time to time has given us concern. There are dangers of its over-application. In the first place, a judge who has lived with a case that may have seemed to him to raise a very litigable question at first, may forget this, once the jury has found for the plaintiff, and think the conclusion obvious from the beginning. It is not to be overlooked, however, that this is basically a subjective penalty, not a pro forma award for winning a meritorious case. Secondly, desirable as it may be to have suits settled rather than tried, a practice whereby a court weighs, either at the time, or afterwards, whether a party’s offer was reasonable or not would be very troublesome. It does not become less so when one realizes that the judge, concerned with a heavy calendar, is not altogether a disinterested party, no matter how well-intentioned. We may remark, 'too, particularly where a plaintiff has nothing to lose by making what might be thought unreasonable demands (for a plaintiff who has no assets the rule is a one-way street) that we would be naive if we thought that threats to demand obstinacy fees if a defendant did not improve his offer were not often an important part of a plaintiff’s armory. To some extent, this may be a reason for the rule, but it is easily capable of abuse. Finally, we are troubled, even to the point of suggesting possible constitutional overtones, with the automatic award of prejudgment interest where it is found that a defendant has been obstinate in some, but not in all, particulars. As the court observed in Heirs of Trias v. Porto Rico Leaf Tobacco Co., 1941, 59 P.R.R. 228, at 229, the award of fees is for “the work necessarily done by the attorney for the adverse party.” A defendant may, as here, be obstinate in not admitting liability, but not obstinate with respect to contributory negligence and damages. The necessity of proving liability may not have delayed reaching the case for trial, and its actual proof may have required but half a day, while the rest of the trial took a week. The defendant may think he was not obstinate at all — but if the court finds against him on one issue, should the plaintiff receive his counsel fees for the entire case, including those claims which the adverse party was not obstinate in resisting? We have indicated otherwise. See Pan American World Airways, Inc. v. Ramos, 1 Cir., 1966, 357 F.2d 341, 342. We may similarly question, if a defendant’s partial obstinacy caused no delay of any consequence, whether a penalty of prejudgment interest may involve constitutional infirmities. None of these questions is raised with respect to the award to the plaintiff in the case at bar, as defendants have objected only to the finding of obstinacy, not to the amount of the imposition. We do, however, have a serious question regarding the award to the stevedore, third-party defendant. With respect to the claim for indemnity, the court expressly found the “evidence could have supported either conclusion.” It also found that the third-party defendant seemed interested in settling, but third-party plaintiff did not. If this is all there was to it — if a party is obstinate simply because he wants to try a legitimate issue — this is not a concept of a right to trial in a free society that we would easily endorse. Nor do we think it the view of the Supreme Court of Puerto Rico. In Mercado v. American R.R. Co., ante, 61 P.R.R. at 230, for example, the court said, “It seems unnecessary to explain that when the circumstances of the case really justify the defendant in believing that plaintiff’s pretensions lack merit, it is not bound to admit a responsibility which it, in good faith, does not believe it has.” If a party, for example, could fairly be appraised as having a 50/50 chance of winning a liquidated claim, is he obstinate if he refuses a 50% offer? Before we endorse a principle that a party with a supportable claim is obstinate simply because it prefers to litigate than to compromise, we would want to be sure that this is the question that is before us, and we would also wish full briefing on such an important issue. ■ The award of counsel fees to the stevedore is vacated and the case remanded for further, or more explicit, findings by the district court, with a return to this court if either party so wishes. The judgments of the district court are otherwise affirmed. . Under prevailing interpretations of Congressional enactments, the general maritime law governs actions in Puerto Rico to the extent consistent with local law. See Alcoa Steamship Co. v. Perez Rodriguez, 1 Cir., 1967, 376 F.2d 35, 37-38, cert. denied, 389 U.S. 905, 88 S.Ct. 215, 19 L.Ed.2d 219; Waterman Steamship Corp. v. Rodriguez, 1 Cir., 1961, 290 F.2d 175, 179-80. Section 31 of the Puerto Rico Workmen’s Accident Compensation Act, 11 L.P.R.A. § 32, authorizing third-party actions based upon existing law, has been held to encompass third-party claims by longshoremen under the general maritime counts of negligence and unseaworthiness. Alcoa, ante, 376 F.2d at 37; Waterman, ante, 290 F.2d at 180; Guerrido v. Alcoa Steamship Co., 1 Cir., 1956, 234 F.2d 349, 355-57. However, the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq., effective November, 1972, no longer permits actions by longshoremen based upon unseaworthiness, nor claims by vessels against stevedores for indemnity, under the general maritime law. Id., § 905(b). See Julian v. Mitsui O.S.K. Lines, Ltd., 5 Cir., 1973, 479 F.2d 432, 433-34, cert. denied, 414 U.S. 1093, 94 S.Ct. 725, 38 L.Ed.2d 551. Nevertheless, since the current action was filed June 8, 1971, and the third-party complaint August 11, 1971, though judgment was not entered until January 16, 1974, we need not decide whether the plaintiffs charge of unseaworthiness and the vessel’s claim for indemnity might survive this change in the general maritime law because specifically authorized by the Commonwealth. . No case, in “per se” jurisdictions or otherwise, appears to have faced this issue in the context of a maritime indemnity claim. Most simply recite that the injured longshoreman had been acting “in the course of his employment,” see Ryan, ante, 350 U.S. at 125, 76 S.Ct. at 233; Humble Oil & Ref. Co. v. Philadelphia Ship Maintenance Co., 3 Cir., 1971, 444 F.2d 727, 729, or was injured “while working.” See, e. g., Weyerhaeuser S. S. Co. v. Nacirema Operating Co., Inc., 1958, 355 U.S. 563, 566, 78 S.Ct. 438, 2 L.Ed.2d 491; Chinese Maritime Trust, Ltd. v. Carolina Shipping Co., 4 Cir., 1972, 456 F.2d 192, 193 (per curiam); Arista, ante, 372 F.2d at 153; Waterman S. S. Corp. v. David, ante. . We note here our vigorous disagreement with the statement in plaintiff’s brief that it was a “vice” to have presented the degree of contributory negligence to the jury at all. Rather, it is a wise practice, for a number of reasons. See Page v. St. Louis Southwestern Ry. Co., 5 Cir., 1965, 349 F.2d 820, 824, and n. 12. Cf. Albergo v. Reading Co., 3 Cir., 1966, 372 F.2d 83, 86, cert. denied, 386 U.S. 983, 87 S.Ct. 1284, 18 L.Ed.2d 232; Skidmore v. Baltimore & O. R. Co., 2 Cir., 1948, 167 F.2d 54, 56-70, cert. denied, 335 U.S. 816, 69 S.Ct. 34, 93 L.Ed. 371. . “Our last objection to plaintiffs’ request for instructions deals with request for instruction No. 21 .... We object specifically to that part of it that includes loss of companionship as a proper item of recovery in a cause of action based on . the alleged breach of the seaworthiness warranty.” This did not, even as of that time, properly call the court’s attention, United States v. Lachmann, 1 Cir., 1972, 469 F.2d 1043, 1044, cert. denied, 411 U.S. 931, 93 S.Ct. 1897, 36 L.Ed.2d 390, to an objection to the inclusion of grief and mental anguish, a recognized feature of Puerto Rico law. . By using the word “subjective” we do not mean that personal good faith is the exact test. A position may be too unreasonable to be so excused. . As being, for example, a penalty unrelated, - or disproportionate to the offense, and one which falls upon defendants and never upon plaintiffs. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". What subcategory of business best describes this litigant? A. medical clinics, health organizations, nursing homes, medical doctors, medical labs, or other private health care facilities B. private attorney or law firm C. media - including magazines, newspapers, radio & TV stations and networks, cable TV, news organizations D. school - for profit private educational enterprise (including business and trade schools) E. housing, car, or durable goods rental or lease F. entertainment: amusement parks, race tracks, for profit camps, record companies, movie theaters and producers, ski resorts, hotels, restaurants, etc. G. information processing H. consulting I. security and/or maintenance service J. other service (including accounting) K. other (including a business pension fund) L. unclear 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. McCOMB v. PACIFIC & ATLANTIC SHIPPERS ASS’N. No. 9691. United States Court of Appeals Seventh Circuit. June 17, 1949. William S. Tyson, Solicitor, Joseph M. Stone, Attorney U. S. Department of Labor, Washington, D. C., Plerman Grant, Acting Regional Attorney, Department of Labor, Chicago, 111., Bessie Margolin, Assistant Solicitor, William A. Lowe, Attorney, United States Department of Labor, Washington, D. C., for appellant. David Axelrod, Jack Goodman, Carl L. Steiner, Chicago, 111., for appellee. Before MAJOR, Chief Judge, and KERNER and MINTON, Circuit Judges. MAJOR, Chief Judge. This action was brought by the Administrator of the Wage and Hour Division, United States Department of Labor, to restrain defendant from violating the overtime and record-keeping requirements of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq., subsequently referred to as the Act. The District Court, after trial, entered its findings of fact and conclusions of law, and rendered judgment dismissing the complaint. The defendant is an Illinois corporation with its principal place of business in Chicago, Illinois, and maintains offices in approximately 35 cities throughout the United States. It is engaged in the ’business of collecting, forwarding and the distribution of freight. It is conceded that the nature of defendant’s business is such that its employees are engaged in activities involving interstate commerce. While numerous violations were alleged in the complaint, including the claim that defendant had 75 employees who were being compensated contrary to Sec. 207 of the Act, all the alleged violations were, prior to the hearing, adjusted or remedied by the defendant in a manner satisfactory to the plaintiff, except as to the wage plan? by which eight rate clerks and warehouse-employees (the only employees presently involved) were compensated. This situation was noted by the lower court in its-finding, “That although the defendant had been guilty of certain violations under the Act, these violations had admittedly been corrected prior to the filing of the Complaint for Injunction in the instant case.” From a■ stipulation of facts entered into-by the parties it is shown .that as to these, rate clerks there was set up on defendant’s records an hourly rate which, with time- and one-half after 40 hours, would equal the total amount paid them in weeks in which they worked 48 hours. The record shows the numbér of hours worked by these employees was less than 48 hours in any week. It was also stipulated that several former employees had been paid the same amount each week for varying hours in excess of 40 a week. In other words, each employee received a guaranteed minimum wage based on a 48 hour week. They were paid twice a month and, according, to the plan, received the same amount of compensation regardless of the number of hours employed up to 48, figured, however, on the basis of so much per hour for 40' hours, and time and one-half for the 'hours in excess of 40 but not exceeding 48. The plan also provided additional compensation at the one and one-half rate for hours worked in excess of 48. And it was stipulated that “The employees in question who work more than 40 and less than * * * 48 hours receive substantially more compensation under the present method of payment, than they would receive,- if they were paid at the hourly rate set up on the books of the defendant, with time and one-haíf that rate for the hours actually worked in excess of 40.” Any attempt on our part to analyze the numerous cases relied upon by the parties in support of their respective contentions would be wasted effort. A few may be noted. 149 Madison Ave. Corp. v. Asselta, 331 U.S. 199, 67 S.Ct. 1178, 91 L.Ed. 1432, 169 A.L.R. 1293; Walling v. Halliburton Oil Well Cementing Co., 331 U.S. 17, 67 S.Ct. 1056, 91 L.Ed. 1312; Walling v. Belo Corp., 316 U.S. 624, 62 S.Ct. 1223, 86 L.Ed. 1716; McComb v. Utica Knitting Co., 2 Cir., 164 F.2d 670, and Walling v. Uhlmann Grain Co., 7 Cir., 151 F.2d 381. The case most strongly relied upon by the plaintiff is the decision of this court in the Uhlmann Grain Co. case, and the one most favorable to the defendant is the Utica Knitting Mills case. A reading of these and other cases makes it plain that each is made to depend in the main on its own particular facts. Prior to the commencement of the hearing of testimony in the court below, counsel for the plaintiff, referring to the stipulation which had been entered into by the parties, stated, “It leaves open for oral testimony the understanding of the witnesses, or the understanding of the employees themselves as to the manner in which they are being paid. * * * so it is important to know what they understood and how they were hired.” And further, it was stated that the testimony would be devoted to “showing what the understanding was on the part of the employees in question, as to how they were being paid, and anything relating to that which would tend to indicate their true understanding of the point.” Thereupon, the plaintiff called four witnesses, Walters, Hanson, Klemm and Gable. As found by the court below, Walters and Hanson left defendant’s employ in December 1947, and were unable to testify as to defendant’s present manner of operations. Klemm testified that he was hired at an hourly rate of $1.00 per hour, with time and one-half for hours worked over 40, and that when he worked over 40 hours he was actually paid time and one-half for his work. Gable testified to the same effect but even more emphatically, that he was paid a guaranteed salary based on a 48 hour week, with straight time for the first 40 hours and time and one-half thereafter, that he was paid additional compensation for any hours worked over 48 in any week, and that he preferred to have a guaranteed salary so that he could properly budget himself. The defendant ' called three witnesses, Gaunt, Pehanich and Francis, and it was agreed that the testimony of three other of defendant’s present employees would be substantially the same if called and examined. Each of the witnesses called by the defendant testified that while they were paid a guaranteed salary they knew that it was based on an hourly rate, with time and one-half for overtime, and they all testified in effect that they preferred a guaranteed salary and that they were perfectly satisfied with the arrangement. This was all the testimony except that of defendant’s president, who pointed out the nature of defendant’s business was such that it was irregular from the standpoint of work to be done, that the guaranteed wage agreements of the company exceeded the minimum required by the Act in all cases, and always had, and that the defendant had corrected such deficiencies and omissions as had been called to its attention by the plaintiff. If the understanding of the employees involved in the instant dispute relative to the method by which they were being compensated is material, as we think it is and as counsel for plaintiff stated at the hearing below, it is evident that there is no merit in plaintiff’s contention here. As noted, all the witnesses presently employed, both those for the plaintiff and the defendant, testified without equivocation, as the court below found, that while they were compensated on a guaranteed salary basis they understood that such salary was predicated upon an hourly rate, with time and one-half for overtime, and that they not only were satisfied but that they desired such an arrangement. There is no basis in fact for plaintiff’s contention that defendant devised an artificial method of payment or that the agreement with its employees is other than bonafide. Defendant’s method of compensating its employees was not only understood but satisfactory to them and was utilized for compliance with and not for evasion of the requirements of the Act. We think the court below was entirely justified in denying the ' restraining order and dismissing the complaint. The order appealed from is Affirmed. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_procedur	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. BAILY et al. v. BALLANCE. No. 4803. Circuit Court of Appeals, Fourth Circuit Oct. 13, 1941. 1 J. Randolph Davis and William M. Phipps, both of Norfolk, Va., for appellants. Sidney Sacks and Albert S. Lewis, both of Norfolk, Va., for appellee. Before PARKER, SOPER, and NORTHCOTT, Circuit Judges. PER CURIAM. This is an appeal from an order granting a discharge in bankruptcy, which was opposed on the ground that the bankrupt had failed “to keep or preserve books of account or records from which his financial condition and business transactions might be ascertained”. Bankrupt was a traveling salesman who kept no books or records. He had a bank account in which he made deposits and against which he drew checks, but he did not preserve his bank statements or cancelled checks after he had examined them. The finding of the Referee in Bankruptcy approved by the District Judge was that bankrupt was not engaged in business for himself but was working for another upon commissions paid him monthly; that such bank account as he carried reflected only his personal expenses; and that his failure to keep or preserve books of account or records was justified in view of the nature and character of his employment. We see no reason to disturb the action of the court below based upon the findings and recommendations of the referee. The provision of the Bankruptcy Act is that the court shall grant the discharge unless satisfied that “the bankrupt has * * * (2) destroyed, mutilated, falsified, concealed, or failed to keep or preserve books of account or records, from which his financial condition and business transactions might be ascertained, unless the court deems such acts or failure to have been justified under all the circumstances of the case”. 11 U.S.C.A. § 32 sub. c(2). Whether such failure is so justified is thus left to the determination of the court in the exercise of a sound discretion (Huffman v. Tevis, 9 Cir., 82 F.2d 940; Rosenberg v. Bloom, 9 Cir., 99 F.2d 249); and there is .nothing in the record before us to indicate that such discretion has been in any way abused in this case. On the contrary, it is clear that failure to keep or preserve records is properly held to be justified when the nature of the bankrupt’s occupation is such that the keeping or preserving of records is not required by it. Remington on Bankruptcy, 5th Ed., vol. 7, §§ 3304-6; In re Weismann, D.C., 1 F.Supp. 723; In re Earl, 8 Cir., 45 F.2d 492; In re Neiderheiser, 8 Cir., 45 F.2d 489, 490. As was well said by the late Judge Kenyon in the case last cited, which likewise dealt with the discharge in bankruptcy of a traveling salesman: “If the occupation or business of the bankrupt were such that ordinarily no books of account would be kept, or if the court under all the circumstances deems the failure to keep such books justified, then the failure so to do would not be sufficient to bar discharge. If the bankrupt were engaged in no business and was a mere employee not in the habit of keeping books or records of account, surely the failure so to do would be no bar to discharge. Such appears to be the situation here. Appellant was a traveling man on a small salary, who had not been accustomed to keeping books, had no particular need for so doing, and testified he never did keep books. Under these circumstances we think subdivision 2 above set out would not be applicable. Bankrupt testified he did not have his checks or records of deposit; that he had returned his bank book to the bank. His testimony on this subject is rather unsatisfactory, but we think the evidence is not sufficient to show that he was under any compulsion to keep any books or that he intentionally destroyed or concealed any books or records from which his financial condition might be ascertained.” The order appealed from will accordingly be affirmed. The motion to dismiss the appeal will be denied on authority of Wayne United Gas Co. v. Owens-Illinois Glass Co., 300 U.S. 131, 57 S.Ct. 382, 81 L.Ed. 557. Affirmed. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_respondent	027	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. 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: 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_trialpro	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". UNITED STATES ex rel. BECK v. NEELLY. No. 10715. United States Court of Appeals Seventh Circuit. Feb. 20, 1953. Rehearing Denied March 17, 1953. Albert W. Dilling and Kirkpatrick W. Billing, Chicago, Ill., for appellant. Otto Kerner, Jr., U. S. Atty., John Peter Lulinski, Anna R. Lavin, Assts. U. S. Atty., Chicago, Ill. (John M. McWhorter, Acting District Counsel Immigration & Naturalization Service, of Chicago, Ill., of counsel), for appellee. Before DUFFY, FINNEGAN and LINDLEY, Circuit Judges. LINDLEY, Circuit Judge. Petitioner, relator in a habeas corpus proceeding in the District Court, appeals from an order dismissing her petition. The essential facts are undisputed. Petitioner, a citizen of Canada, entered the United States legally September 19, 1926, when some sixteen years of age. Three years later, she was brought before the United States immigration authorities in a deportation hearing, at which she was represented by counsel, and found deportable on the charge that she was an inmate of a house of prostitution. A warrant issued and petitioner left the country voluntarily on April 26, 1929. She reentered the same day without any legal permission so tó do. A little over a year later, June 20, 1930, she was again brought before the immigration officials who found that she was de-portable because, at the time of her reentry following her first deportation, she had no immigration visa, was then likely to become a public charge, was a prostitute, had returned to the United States after having been deported, had reentered by means of false and misleading statements, without inspection, and was then a member of a class excluded by law. In pursuance of a warrant then issuing she was again deported on August 28, 1931. About a month later, in September, 1931, she again entered the United States without a visa. Having been arrested on a warrant issued December 24, 1931, charging, among other things, that she had entered by means of false and misleading statements, at a hearing on February 23, 1932, she was found to be in the country illegally and again ordered deported April 5, 1932. On September 23, 1931 petitioner had married a Cuban. Consequently, the Canadian government ruled that she was no longer a Canadian citizen, and refused to accept her as a deportee. The warrant of deportation could not be executed, as Canada persisted in its refusal to accept her until August 16, 1945. In 1946 petitioner moved to reopen the proceeding on the ground that her admission of prostitution at the first hearing on March 12, 1929 had been secured by duress and coercion and that she had not then been represented by counsel. The motion to reopen was granted and the rehearing held on July 7, 15,.25, 31 and November 14, 1947, at all of which times she was represented by counsel of her own selection, except that on the last day, November 14, 1947 she waived counsel. At the conclusion of tlie hearing, the inspector found that she was an alien who had been arrested and deported in pursuance of law; that the Secretary of Labor had not granted her permission to reapply for admission; that she had reentered the United States, after having been deported as a prostitute, and that at the time of her entry she was not in possession of an immigration visa. She appealed to the Board of Immigration Appeals, which, on November 9, 1949, approved the finding and directed that she be deported to Canada. The District Court, after hearing, entered an order denying petitioner’s motions to quash the warrant, found the issues in favor of respondent, dismissed the writ and remanded petitioner to the custody of respondent. Assuming arguendo, but not deciding that petitioner may collaterally attack the record of previous deportation proceedings we pass to the essential questions presented by petitioner, viz.: whether (1) there was a denial of fair hearing before the immigration authorities, (2) the latter’s findings were supported by adequate evidence, and (3). any erroneous rule of law was applied. A subordinate question presented is whether the hearing on which the warrant of deportation of December 9, 1949 is governed by the Administrative Procedure Act. The then applicable Act, 8 U.S.C.A. § 155(a), provided that any alien who, after being deported as a prostitute, shall return to and enter the United States, shall, upon the warrant of the Attorney General, be taken into custody and deported; section 213(a), that no immigrant shall be admitted to the United States unless she has an unexpired immigration visa or comes within certain oilier exempt classes not pertinent in this case, and section 214, that any alien found in the United States not entitled to entry shall be taken into custody and deported. Section 155(a) also provided that in every case where a person is ordered deported from the United States, the decision of the Attorney General shall be final. Under the statute the courts may not interfere with the administrative determination unless, upon the record, the proceedings were manifestly unfair or substantial evidence to support the finding is lacking, or error of law has been committed, or the evidence reflects manifest abuse of discretion. U. S. ex rel. Schlimmgen v. Jordan, 7 Cir., 164 F.2d 633, 634. In other words, the findings of administrative officials in charge in such cases will be set aside by the court only upon proof of at least one of these situations. Daskaloff v. Zurbrick, 6 Cir., 103 F.2d 579, 581; Yep Suey Ning v. Berkshire, 9 Cir., 73 F.2d 745; Louie Lung Gooey v. Nagle, 9 Cir., 49 F.2d 1016, 1017; Taranto v. Haff, 10 Cir., 88 F.2d 85; U. S. ex rel. Tisi v. Tod, 264 U.S. 131, 44 S.Ct. 260, 68 L.Ed. 590; U. S. ex rel. Rennie v. Brooks, D.C., 284 F. 908. With this rule in mind, we examine the evidence submitted upon the fairness of the hearings, including the original one of 1929. At that time petitioner was first questioned by the immigration inspector, in the absence of counsel. She stated that she had recently been arrested in Detroit, in a house of prostitution; that, while living there, she had had illicit relations with four or five different men; that she had had similar relations with men in Canada before coming to the United States, beginning when she was 14 years of age. Thereupon a warrant issued charging that she was in the country in violation of the law. A hearing was held on March 12, 1929, at which time she was represented by counsel of her own choice. A transcript of the statements she had previously made before the inspector was read to hér and she was asked if the statements were true. In the presence of her counsel, and without objection upon her part or that of her counsel, she replied that they were true and correct. Thereupon the transcript was received in evidence. Her testimony in the present proceeding is that the basis for issuance of the warrant consisted of false charges and that her testimony was given under duress. Inasmuch as it is undisputed that in her counsel’s presence at the original hearing she admitted the truth of the statements without objection by her or by her counsel, the trial court was amply justified in finding that the hearing was fair; that no erroneous application of the law was involved and that the administrative finding was justified and warranted the order of deportation. True it is that at the time of the first interview with the inspector she was without counsel; but subsequently, at the hearing, she was represented by counsel and in his presence and, as we have seen, without objection, admitted the truth of what she had previously said, fully supporting the findings made. This is within^he case of Low Wah Suey v. Backus, 225 U.S. 460 at page 470, 32 S.Ct. 734, 736, 56 L.Ed. 1165, where the court said: “This objection, in substance, is that, under examination before the inspection officer, at first she had no counsel. Such an examination is within the authority of the statute, and it is not denied that at subsequent stages of the proceedings and before the hearing was closed or the orders were made she had the assistance and advice of counsel.’’ To the same effect are U. S. ex rel. Bilokumsky v. Tod, 263 U.S. 149, 155-156, 44 S.Ct. 54, 68 L.Ed. 221, and Ung Bak Foon v. Prentis, 7 Cir., 227 F. 406, 409; United States ex rel. Di Battista v. Hughes, 3 Cir., 299 F. 99, 101 and 102. Petitioner insists that the review was conducted in violation of the provisions of the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq. It should be observed, however, that that Act specifically exempts proceedings originating before it became effective, September 11, 1946. She insists further that the hearing before Inspector Friedman in 1947, when the Act was effective, was in violation of the Act. Section 12 of the Act provides that “no procedural requirement shall be mandatory as to any agency proceeding initiated prior to the effective date of such requirement.” In Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 515, 96 L.Ed. 586, where the proceedings were instituted before September 11, 1946, the court said: “Validity of the hearing procedures is questioned for noncompliance with the Administrative Procedure Act, which we think is here inapplicable.” This language is decisive of.the issue before us, for here, as there, the proceedings had been instituted before September 11, 1946. Furthermore, if we should assume arguendo that there is merit to petitioner’s contention in this respect, she raised the objections too late. Thus, in United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 36, 73 S.Ct. 67, 68, the court said: “We have recognized in more than a few decisions, and Congress has recognized in more than a few statutes, that orderly procedure and good administration require that objections to the proceedings of an administrative ag.ency be made while it has opportunity for correction in order to raise issues reviewable by the courts. * * * Simple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice.” Upon a full review of all the evidence we find that there was adequate substantial evidence to support the findings in each of the deportation proceedings; that there was no misapplication of the law; that the hearings were fair and that petitioner has no just cause for complaint. The judgment is affirmed. . United States ex rel. Steffner v. Carmichael, 5 Cir., 183 F.2d 19; Daskaloff v. Zurbrick, 6 Cir., 103 F.2d 579; United States ex rel. Koehler v. Corsi, 2 Cir., 60 F.2d 123. . Similar provisions appear in the present Act, 8 U.S.C.A. § 1101 et sequi. See sections 1182, 1251 and 1252. Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_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. UNITED STATES of America, Appellee, v. Homer Nelson BARCLEY, Appellant. No. 20481. United States Court of Appeals, Eighth Circuit. Nov. 4, 1971. Aldrich, Circuit Judge, dissented and filed opinion. Merle Johnson, Sioux Falls, S. D., for appellant. Richard D. Hurd, Asst. U. S. Atty., William F. Clayton, U. S. Atty., Sioux Falls, S. D., for appellee. Before ALDRICH, LAY and BRIGHT, Circuit Judges. Of the First Circuit, sitting by designation. BRIGHT, Circuit Judge. Homer Nelson Barcley was convicted by a jury on two counts of communicating threats by mail in violation of 18 U.S.C. § 876. He brings this timely appeal contending that the evidence was insufficient to show that the letter which he mailed contained threats of personal injury. We agree and reverse. The events underlying Barcley’s present difficulties began in 1969 when he suffered a conviction for forgery in a state court of South Dakota. Following the trial, the court appointed an experienced and competent South Dakota attorney to represent Barcley on an appeal to the South Dakota Supreme Court. On September 5, 1969, the day following his court appointment, this attorney interviewed Barcley at the South Dakota State Penitentiary. During the course of this interview, Barcley indicated that he had done some research on his case and that he expected to play an active role in the handling of the appeal. Additionally, Barcley instructed his attorney to file all of the assignments of error which had been prepared by Barcley’s trial counsel. At the close of this interview, the attorney told Barcley that he intended to review the trial transcript before proceeding with the appeal. It is not clear whether he promised to visit Barcley again at the penitentiary to discuss the case further. In his trial testimony, he said that he did not recall making this commitment, but he conceded that he might have said that he would return on September 12, 1969. He did not return for a second meeting. On September 16, 1969, the attorney wrote a letter to Barcley advising him: (1) that he had entered into a stipulation with the State’s Attorney in order to secure additional time for perfecting the appeal; (2) that the assignments of error had been filed; (3) that the record had been settled; and (4) that the only remaining steps of the appeal process were the filing of the brief and oral argument. On September 20, 1969, the attorney received this response through the mail: “Dear Mr. Vrooman: The dictation of this communication is necessitated by the fact that your correspondence was received this 17th day of September, A.D.1969, and before too many lines are written, I will remind you of a small part of the conversation that was had at a time when you deemed it necessary to visit me, that you adventated the necessitation of being boss in this case, of which in rebuttal the statement was, that you could be the boss so long as you conformed to precise dictation of just what I wanted in the assignment of error. Now, I don’t intend to set around for the four years with a finger in my ass and play the same game that some two bit lawyer thinks he can do, knowing that I am much more qualified than the 12 years that you have in criminal law, plus the three prior lawyers combined. “Now, again, I will attempt to tell you, that when the time came for the second visit, September 12, 1969, that there were additional assignment of error in which to be presented in court. Plus the fact that I wanted to attack the motion for arrest of judgment and motion for new trial, in and for itself. “You can, first, stick that stipulation entered into by you, the States Attorney, and the Attorney General, in your trash can. For you can’t perfect an appeal without all the factual material being presented. “Number Two, you God damn well better withdraw the assignments of error until such time as you get all the assignments of error and factual material together. “Number Three, the record has not been settled. And you better listen to me and not at me you “S.O.B.” because I am not playing your game. “In point of fact, as soon as I can get this case situated around in the position I want you are the first S.O. B. that will go, Sam Sechser will next. “The remaining two steps you are talking about are not substantiated by letting your ass overload your mouth. For you did not get my ok in sending this to the Supreme Court, which is to say that you better be on your Code of Ethics before you force me into an unsuitable position. “Signed, Respectfully Submitted, Homer Barcley.” Sam Sechser, who is mentioned in the letter, served as the prosecutor in the state case against Barcley. Barcley’s writing and mailing of this letter served as the basis for his present conviction. At the close of the government’s case, Barcley’s counsel moved for a judgment of acquittal. He contended that the letter could not reasonably be construed as a threat of personal injury. Stressing the circumstances surrounding the mailing of the letter, he argued that the language could only be interpreted as Barcley’s sharp criticism of the ethical conduct of his attorney and that of the prosecutor for proceeding with the appeal and entering into a stipulation without Barcley’s consent. In denying this motion, the trial judge stated: “I suspect that [the language] might be capable of several interpretations, but it seems to me that’s a question of fact for the jury to interpret. * * * ” [Tr. 92] In support of the trial court’s ruling, the government points to the language of the letter which reads: “you are the first S.O.B. that will go, Sam Sechser will next.” The government argues that this language, coupled with its suggested implications, was sufficiently clear to create a question of interpretation for the jury. The government, as did the trial court, relies on the Seventh Circuit’s decision in United States v. Prochaska, 222 F.2d 1 (7th Cir. 1955). In that case, the defendant was indicted on a charge of violating § 876 for mailing the following communication to one Maurice Frank: “Okay, Maurie, this is it, get it and get it straight because you have only one chance. We want $10,000.00 cash in 10's and 20’s to be placed by you in a place designated by us in our next letter. You have 5 to 7 days. If you should wish to contact us please do so by advertising under personals in the Tribune. Please Maurie, make it easy on yourself by cooperating fully.” [222 F.2d at 2] In upholding the trial court’s denial of the defendant’s motion to dismiss the indictment, the court stated: Written words or phrases take their character as threatening or harmless from the context in which they are used, measured by the common experience of the society in which they are published. * * * [W]hen [language is] employed by members of our society in context with an extortion demand its necessary implications are precisely clear. [222 F.2d at 2-3] Thus, in Prochaska, the fact that the allegedly threatening language appeared in the context of an extortion note supplied sufficient proof of its minacious meaning. In effect, the court found the language to be threatening on its face; any possible ambiguity was removed by the context in which it appeared. We deem the presence of the extortion scheme crucial to the Prochaska decision. Here, unlike Prochaska, we find no extorsive overtones. We recognize that it is possible to construe the language as threatening injury. There are, however, a number of innocuous interpretations which are equally plausible. One such interpretation is that Barcley intended to file a complaint against his attorney seeking to have him discharged for unethical conduct. This interpretation is consistent with the general tone of the letter, as well as Barcley’s final admonition to his attorney that “you better be on your Code of Ethics before you force me into an unsuitable position.” In order to sustain its burden of proof under § 876, the government must present evidence sufficiently strong to establish beyond a reasonable doubt that the communication in question conveys a threat of injury. Where a communication contains language which is equally susceptible of two interpretations, one threatening, and the other nonthreatening, the government carries the burden of presenting evidence serving to remove that ambiguity. Absent such proof, the trial court must direct a verdict of acquittal. See United States v. Jones, 418 F.2d 818 (8th Cir. 1969). See also United States v. Kelton, 446 F.2d 669 (8th Cir. 1971); Lerma v. United States, 387 F.2d 187 (8th Cir. 1968). In evaluating the sufficiency of the evidence presented by the government to establish that the language in this case conveyed a threat, we are mindful that the letter communicated a client’s dissatisfaction with the services of his attorney. Such communication falls within the purview of the First Amendment whether phrased in the King’s English or peddler’s French. When First Amendment considerations apply, courts must be careful to distinguish “[w]hat is a threat * * * from what is constitutionally protected speech.” Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664 (1969). In Watts, the Court considered an issue similar to that presented here, albeit in a different context. There, a speaker at a political meeting said in part: And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. [Id. at 706, 89 S.Ct. at 1401] The speaker was convicted of violating 18 U.S.C. § 871 by knowingly and willfully making a threat to inflict bodily harm upon the President. The Court set the conviction aside, stating: “[T]he statute initially requires the Government to prove a true ‘threat.’ We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term.” Id. at 708, 89 S.Ct. at 1401. Continuing, the Court emphasized the context in which the statement had been made. The language of the political arena, like the language used in labor disputes, see Linn v. United Plant Guard Workers of America, 383 U.S. 53, 58 [86 S.Ct. 657, 15 L.Ed.2d 582] (1966), is often vituperative, abusive, and inexact. (Id. at 708, 89 S.Ct. at 1401-1402.] We think this comment aptly characterizes the kind of letter a court appointed attorney might expect to receive from a dissatisfied client writing from within prison walls. Barcley’s letter, much like the communication in Watts, is worded in the rowdydowdy argot of the streets, but it does not clearly convey a threat of injury. Considering the context in which it was written, the principles enunciated in Watts strongly suggest that the government must offer something more than the equivocal language present here to establish the communication of a threat. In this case, neither Bareley’s attorney nor Sam Sechser testified that he experienced fear upon reading the letter. Under these circumstances, we conclude that the government failed to prove Barcley’s guilt beyond a reasonable doubt. Accordingly, we direct the district court to enter a judgment of acquittal. . 18 U.S.C. § 876 reads in pertinent part as follows: Whoever knowingly * * * deposits or causes to be delivered * * * any communication * * * addressed to any * * * person and containing any threat * * * to injure the person of the addressee or of another, shall be fined not more than $1,000 or imprisoned not more than five years, or both. . Since we reverse Barcley’s conviction for insufficient evidence, we do not reach his other contentions on appeal. . Bareley’s trial counsel withdrew after accepting a position with the office of the State’s Attorney. . The government argues that this cannot be the meaning of the language because Barcley could not have effected the discharge of the prosecutor, Sam Sechser. This argument fails to recognize that Barcley’s letter charges misconduct on the part of all counsel, including the Attorney General of South Dakota, the charges apparently resting on Barcley’s misguided feeling that the stipulation and settling of the record constituted a form of connivanee among the attorneys to prejudice his chances of success on appeal, . Criminal defendants are often hypercritical of the efforts made by appointed counsel on their behalf. See United States v. Cotton, 446 F.2d 865 (8th Cir., 1971) ; Slawek v. United States, 413 F.2d 957, 958 (8th Cir. 1969). . In prosecutions for extortion, proof of the effect of an allegedly threatening communication upon the victim may be crucial. United States v. Kennedy, 291 F.2d 457, 458 (2d Cir. 1961) ; see also Bianchi v. United States, 219 F.2d 182 (8th Cir.), cert. denied, 349 U.S. 915, 75 S.Ct. 604, 99 L.Ed. 1249 (1955) ; Nick v. United States, 122 F.2d 660 (8th Cir.), cert. denied, 314 U.S. 687, 62 S.Ct. 302, 86 L.Ed. 550 (1941). Similarly, in a ease of this kind, it seems that proof of the effect of an allegedly threatening letter upon the addressee would throw light upon the intent of the sender within the context of the dialogue between the parties to the correspondence. Question: What is the number of judges who voted in favor of the disposition favored by the majority? 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 REESE, Frank Ordean v. SPARKS, Gary E. Caskey, James E., Sease, Kenneth. Appeal of Frank REESE. No. 84-5590. United States Court of Appeals, Third Circuit. Argued March 11, 1985. Decided April 29, 1985. Allen C. Welch (argued), Clearfield, Pa., for appellant. Thomas E. Brenner (argued), Goldberg, Evans & Katzman, Harrisburg, Pa., for appellee. Before HUNTER and GARTH, Circuit Judges, and VAN DUSEN, Senior Circuit Judge. OPINION OF THE COURT GARTH, Circuit Judge: Frank Reese was transferred from Adams County Prison (ACP) in Gettysburg, Pennsylvania to the State Correctional Institution at Camp Hill on August 3, 1983. Reese subsequently filed a complaint in United States District Court, claiming that his transfer was instituted in retaliation for a prior civil rights action filed by Reese against Gary Sparks. Sparks answered and filed affidavits and documents in support of a motion for summary judgment. Reese failed to respond, and summary judgment in favor of Sparks was granted. Reese then filed papers styled as an amended complaint, joining defendants James E. Caskey and Kenneth Sease and alleging that he, Reese, had been placed in solitary confinement and subsequently transferred to another institution (Camp Hill) as the result of a misconduct hearing at which he was not present and of which he had no notice. Reese claimed a violation of the due process guarantee of the fourteenth amendment and 42 U.S.C. § 1983. The district court, in one order dated August 1, 1984, vacated its earlier grant of summary judgment, granted Reese’s motion to amend his complaint, then, treating the amended complaint as a response to Sparks’ original motion for summary judgment, entered another order of summary judgment in favor of Sparks, Caskey, and Sease. It is from this second grant of summary judgment that Reese appeals. Because we conclude that the district court’s action in granting summary judgment without giving Reese an opportunity to respond by affidavits or other proofs was improper, and, alternatively, because we find that even the documents that were before the district court presented a genuine issue of material fact, we reverse and remand. I. According to Reese’s amended complaint, after an escape attempt by several prisoners at ACP, a disciplinary hearing was held on August 2, 1983. Reese had no notice of this hearing, nor was he given an opportunity to appear and be heard. According to Reese, as a result of this hearing he was first confined to special detention, then transferred to Camp Hill. Sparks’ filings in support of his initial motion for summary judgment included an affidavit that Reese was implicated in the breakout attempt and that “[a] hearing was held for Mr. Reese concerning his transfer on August 2, 1983, following that hearing, Mr. Reese was transferred to the State Correctional Institution at Camp Hill.” Sparks’ papers included a copy of a Petition for Administrative Transfer of Reese pursuant to 61 Pa.S. 72, based on a security risk reclassification. The Petition for transfer was dated August 1, 1983 and approved by a Common Pleas judge on August 2, 1983. Sparks’ papers also included a document entitled “Misconduct Report,” evidencing an August 2, 1983 hearing. That report ordered that Reese immediately be placed in special detention at ACP and directed that Reese be transferred to Camp Hill on August 3, 1983. This “Misconduct Report” is signed by Caskey and Sease as “Hearing Board Members.” II. The district court failed to comply with the governing principles of Fed.R. Civ.P. 56 when it granted summary judgment against Reese on his amended complaint without first notifying Reese and giving him an opportunity to file supporting documents. “To exercise the right to oppose summary judgment, a party must have notice____ Although the court may dismiss the action at its own motion, it must first provide [the party] an opportunity to oppose an entry of summary judgment against him.” Bryson v. Brand Insulation, Inc., 621 F.2d 556, 559 (3d Cir. 1980). See also Davis Elliot International v. Pan American Container, 705 F.2d 705, 707 (3d Cir.1983). Here, Reese filed an amended complaint, which changed not only the legal theory upon which he first sought relief, but also averred additional and different facts supporting his new theory. The district court accepted the amendment to the complaint; and vacated its prior grant of summary judgment. Yet the court at the same time immediately granted summary judgment, based on affidavits and documents previously filed by Sparks when Sparks moved against Reese’s initial complaint. Thus, Reese was given neither notice nor an opportunity to file affidavits either in support of his amended complaint, or in response to Sparks’ affidavits and motion. Any notice Reese might have had of Sparks’ earlier motion for summary judgment addressed to Reese’s original complaint could not have informed Reese of his need to present affidavits or documents in support of his amended complaint. Moreover, the theory and the facts asserted in Reese’s amended complaint differed materially from the theory and facts asserted in Reese’s initial complaint. In Reese’s first complaint, as we have observed, Reese claimed that he had been transferred by Sparks in retaliation for having filed a civil suit against Sparks. In Reese’s amended complaint Reese contended that his transfer was ordered on the basis of a misconduct proceeding, which under Pennsylvania law required that Reese be accorded a hearing. Reese also claimed that he had received disciplinary confinement without having been heard, again in violation of prison regulations. Because of the peculiar sequence of events in which Sparks’ motion for summary judgment against the original complaint was granted, and because Reese had no further opportunity to oppose a grant of summary judgment against his amended complaint (a complaint against which Sparks had never moved), it is evident to us that the case must be remanded to the district court to give Reese an opportunity to oppose any motion that may be filed by Sparks addressed to Reese’s amended complaint. Cf. Bryson v. Brand Insulation, supra, (summary judgment may be granted by court sua sponte, provided, however, that notice has been afforded to party against whom judgment is contemplated), III. Even apart from the procedural irregularity of the grant of summary judgment against Reese’s amended complaint, we do not believe that the record and affidavits before the district court justified the second grant of summary . judgment for Sparks in this case. Summary judgment is appropriate only where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In making the determination whether a genuine issue of material fact exists, all reasonable inferences from the affidavits must be drawn in favor of the non-moving party. Sun Refining and Marketing Co. v. Rago, 741 F.2d 670, 673 (3d Cir.1984). The district court relied on the principle that a prisoner enjoys no due process right to a hearing prior to an administrative transfer from one prison to another, including a transfer for security reasons. Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976); Cobb v. Aytch, 643 F.2d 946 (3d Cir.1981) (in banc). See also Robson v. Biester, 53 Pa.Comm. 587, 420 A.2d 9 (1980). However, where the transfer is punitive, provisions of the Pennsylvania Code providing for notice and hearing prior to punishment for misconduct, create a protected liberty interest in remaining in the general prison population. That interest is entitled to procedural due process protections. Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) (relying on 37 Pa.Code § 95.104 (1978)). It must be remembered that Reese claimed to have been transferred to Camp Hill not as a security or administrative transferee, but rather as a result of the August 2 misconduct proceeding at which he was improperly denied the right to be present. Thus, treating Reese’s amended complaint as an affidavit in opposition to summary judgment, as the district court treated it, Reese’s claim that the reason for his transfer was the misconduct report and not the administrative transfer petition, creates a genuine issue of material fact. The district court apparently did not recognize that Reese’s claim of a misconduct transfer contradicted Sparks’ contention that Reese’s transfer was of an administrative character. Rather than acknowledging that the disputed type of transfer had given rise to a material dispute of fact which would preclude the entry of summary judgment, the district court sought to reconcile and explain away the evident contradiction by saying: It is unfortunate that the prison officials used a misconduct report form to present their recommendation that Plaintiff be transferred as a security risk. Use of such a form generally will imply that Plaintiff is being punished and that prison officials acting pursuant to the rules governing misconduct hearings, which may require minimum due process. In this case, though, it is clear that the Warden acted properly under 61 P.S. § 72 to transfer Plaintiff before any misconduct hearing occurred and that no hearing was necessary. Reese v. Sparks, No. 83-1653 (M.D.Pa. (Aug. 1, 1984)), mem. op. at 6-7. Because a misconduct charge requires a hearing that Reese was denied, and an administrative transfer requires no such process, it is evident that the dispute revealed by the petition for transfer on the one hand and Reese’s complaint on the other, is material and could not be resolved in the present summary judgment context. Indeed, the finding made by the district court that the transfer was an administrative transfer and not a misconduct transfer — a finding that is impermissible in a summary judgment proceeding — could only result if all inferences were drawn in favor of the moving party, and not the non-moving party. The coincidence in time (August 1 — Petition for Transfer; August 2 — misconduct proceeding and disciplinary confinement; August 3 — transfer) and the sequence of events (finding of misconduct, detention, and transfer) require, particularly when inferences must be drawn in favor of Reese, the non-movant, that this dispute as to the type of transfer responsible for Reese’s reassignment, not be resolved in a summary manner. Thus, two additional reasons bar summary judgment against Reese’s claim. First, if Reese’s transfer actually resulted from a misconduct hearing held without notice or opportunity for Reese to attend and did not result from the administrative petition, judgment for Sparks is not justified. It is not disputed that Reese had no notice of, and no opportunity for, hearing. What is disputed is that Reese’s transfer was a misconduct transfer which required notice and a hearing. On this record, that issue was improperly decided by the district court in summary fashion. Second, Reese has claimed without contradiction that he was punished in violation of the Pennsylvania Code by having been confined in special detention without the benefit of a hearing. Confinement to special detention is, unlike a transfer, inherently punitive, and thus within the rule of Hewitt v. Helms, supra, requiring a hearing. Thus, Cobb v. Aytch, supra, which is concerned with administrative transfers, is inapposite. Thus, absent an appropriate justification by the defendants for this action — and none appears in this record— summary judgment in favor of Sparks on the detention claim is also barred at this time. IV. The district court’s order dated August 1, 1984 which improperly grants summary judgment in favor of Sparks will be reversed and we will remand the case for further proceedings consistent with this opinion. . 61 Pa.S. § 72 in relevant part provides: The Deputy Commissioner ... is hereby authorized ... upon petition being presented to him.... by reason of existing conditions ... that a certain number of inmates, set forth in such petition, should be transferred therefrom, [to] make an order authorizing and directing the said ... official in charge, to transfer to another prison ... such person or persons ...; Provided, however, That before any transfer is made as aforesaid the court of common pleas of the county wherein any such penitentiary ... is located, shall give its consent to such transfer____ . 37 Pa.Code § 95.240 provides in relevant part that: (3) Confinement is punishment, therefore no further punishment is permitted unless the prisoner violates the rules and regulations of the prison or violates State law. (7) No prisoner shall be punished unless he has been informed of the offense alleged against him and given an opportunity to present his defense. In addition the following shall apply: (i) The hearing shall be staffed by an impartial tribunal. (ii) The hearing shall be preceded by notice to the prisoner, in writing, of the charges against him. (iii) The decision reached shall be based upon evidence raised at the hearing. (iv) The decision-makers shall state the reason for their determination of guilt if that is the decision reached. (9) Punishment may fall into the two following categories: (i) Loss of privileges. (ii) Segregation. . Reese concluded his amended complaint by adding the following declaration, "I declare under penalty of perjury that the foregoing is true and correct.” . See 37 Pa.Code § 95.240(9), note 2, supra. . Our rejection of a disposition based on summary judgment is naturally confined to the record before us. Nothing in this opinion would preclude a summary judgment disposition on an appropriate record after an opportunity for discovery and/or an opportunity to file additional affidavits has been afforded. . We express no opinion as to any possible immunity that may be asserted by Sparks and the other defendants. 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_circuit	K	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. UNITED STATES of America, Plaintiff-Appellant, v. Alga HOPE, Jr., Defendant-Appellee. No. 88-5443. United States Court of Appeals, Eleventh Circuit. Dec. 27, 1988. Dexter W. Lehtinen, U.S. Atty., Richard Scruggs, Linda Collins Hertz, Harriet R. Galvin, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellant. Joseph Paglino, Miami, Fla., for defendant-appellee. Before TJOFLAT and FAY, Circuit Judges, and FAWSETT , District Judge. Honorable Patricia C. Fawsett, U.S. District Judge for the Middle District of Florida, sitting by designation. FAY, Circuit Judge: This is an interlocutory appeal brought by the United States from an order in the district court granting the motion of defendant-appellee Alga Hope, Jr. to dismiss Count I of a five-count indictment. Count I charges the defendant with conspiracy to defraud the United States and to conceal and cover up material facts in a matter within the jurisdiction of an agency or department of the United States, in violation of 18 U.S.C. § 371. The Government contends that Count I contains the elements of the offense charged and that the sufficiency of the Government’s evidence is a matter of proof to be determined at trial. We find that under Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987), Count I of the indictment fails to state a violation of § 371 because it alleges neither a direct nor indirect fraud on the United States. We therefore affirm the order of the district court. I. BACKGROUND The facts as alleged by the Grand Jury are as follows: Alga Hope, Jr. was the President and Executive Director of the Economic Development Corporation of Dade County, Inc. (EDCO), a nonprofit Florida corporation, which was organized in the aftermath of the 1980 riots in Miami to receive and distribute federal funds in the form of loans to minority owned businesses in Dade County, Florida. The funds were provided to Metropolitan Dade County as “Community Development Block Grants,” which EDCO would request from the Dade County Office of Community and Economic Development (OCED). Throughout Hope’s tenure with EDCO, he and Hilario James were the principals of three Florida corporations, among them, Sunbelt Recycled Rubber Collection Centers, Inc. (Sunbelt). Hope and James conspired to obtain through EDCO a federally funded loan of $75,000 for Sunbelt. The indictment charges that in furtherance of the conspiracy, Hilario James resigned his position as business analyst and finance specialist with EDCO in order to apply to EDCO for the Sunbelt loan. Hope then used his position at EDCO to vote in favor of the loan to Sunbelt at a loan committee meeting, without disclosing his part ownership of the company. Also in furtherance of the conspiracy, Hope recommended to OCED officials that the Sunbelt loan be approved and that federal funds be drawn down to pay the loan. Hope allegedly submitted false documents to OCED in support of the loan application. Hope and James were indicted on November 20, 1986 in a five-count indictment for violations of 18 U.S.C. § 371 (conspiracy to defraud the government and to cover up material facts within the jurisdiction of the Department of Housing and Urban Development (HUD) (Count I); 18 U.S.C. § 1001 (making false statements to HUD) (Count II); and 18 U.S.C. § 1951 (extortion) (Counts III-IV). Count I sets out seventeen overt acts committed by Hope or James in furtherance of the conspiracy. (Appendix A) None of the alleged overt acts mentions any communication or transaction between either of the defendants and any agency or department of the United States. The defendant filed a motion to dismiss the indictment on March 15, 1988, claiming that under Tanner v. United States, supra, the indictment failed to allege the elements of a § 371 conspiracy. The court held a hearing on April 14, 1988 on the motion to dismiss and heard reargument on the motion on May 12, 1988. The court ruled that Tanner mandated a dismissal of the conspiracy count, but that the case would go to trial on the remaining counts. Before selection of a jury, the Government filed with our court a notice of appeal and a motion for an emergency stay of the trial proceedings. A hearing was held by telephone before the Honorable James C. Hill, Circuit Judge, on the Government’s motion for emergency stay. This motion was denied as moot once the district court granted a motion to continue pending the outcome of this appeal. II. THE TANNER CASE AND § 371 In Tanner, the Supreme Court held that in a § 371 conspiracy, the target of the conspiracy must be the United States or one of its agencies or departments, either directly or through a third party. Defendants Tanner and Conover were indicted and convicted of inter alia, conspiring to defraud the United States by impairing, impeding, obstructing and defeating the lawful functions of the Rural Electrification Administration (REA), a credit agency of the United States Department of Agriculture, in violation of 18 U.S.C. § 371. Defendant Conover, the procurement manager for Seminole Electric Cooperative, Inc., a Florida corporation, improperly aided codefendant Tanner with respect to a contract bid on a construction project for Seminole. The construction contract was paid with loan money guaranteed by REA. Conover also made material misrepresentations to a bonding company regarding the project’s state of completion. On appeal to our court, United States v. Conover, 772 F.2d 765 (11th Cir.1985) the conviction was affirmed. Before the Supreme Court, the defendants argued that at most, the evidence showed that Seminole, a private corporation, was defrauded, and that absent a direct fraud on the REA a conviction for conspiracy to defraud the United States could not stand. The Government made two arguments: (1) that a conspiracy to defraud the United States may be effected by third parties; and (2) that Seminole, as the recipient of federal financial assistance and supervision could be treated as the United States under § 371. The Supreme Court rejected the latter argument: The conspiracies criminalized by § 371 are defined not only by the nature of the injury intended by the conspiracy, and the method used to effectuate the conspiracy, but also — and most importantly —by the target of the conspiracy_ [T]he Government, in arguing that § 371 covers conspiracies to defraud those acting on behalf of the United States, asks this Court to expand the reach of a criminal provision by reading new language into it. This we cannot do. Tanner, supra, 107 S.Ct. at 2752-53. The Court did not, however, reverse the convictions. The Court accepted the Government’s first argument, that a § 371 conviction could be based upon a conspiracy to cause some third party to defraud the United States unwittingly. The case was thus remanded to our court to determine if there was sufficient evidence to show that the defendants conspired to cause Seminole to make false statements to REA. III. APPLICATION OF TANNER Under Tanner, Count I of the indictment in this case can survive only if it alleges that an object of the conspiracy was to defraud HUD, either directly or by causing EDCO to perpetrate the fraud. A close examination of Count I reveals that it alleges no such thing. The Government contends that the dismissal of Count I was error because the facts as alleged are sufficient to charge a § 371 conspiracy. However, Count I of the indictment states quite specifically that Hope’s conduct was aimed directly and exclusively at agencies and officials of Dade County. (Appendix A). The accusatory language in Count I closely tracks the language of the statute, but it does not allege any object of the conspiracy or overt act which is directed at the United States. Since under Tanner EDCO may not itself be treated as the United States, Count I fails to allege a conspiracy to defraud the United States directly. It is a closer question whether Count I permits the Government to prove at trial that Hope conspired to manipulate EDCO in order that HUD and the United States be defrauded indirectly. The Court noted in Tanner that § 371, covering conspiracies to defraud “in any manner or for any purpose” does not limit the method which may be used to defraud the United States: “A method that makes uses of innocent individuals or businesses to reach and defraud the United States is not for that reason beyond the scope of § 371.” Tanner at 2752; see also United States v. Bornstein, 423 U.S. 303, 309, 96 S.Ct. 523, 528, 46 L.Ed.2d 514 (1976); United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943) (fact that a false claim passes through a third party on its way to the government does not preclude liability under the False Claims Act). We agree, as a general matter, with the Government’s contention that it need not have specified in a separate clause of the indictment that the conspiracy contemplated an indirect fraud on the United States in order for the Government to introduce evidence in support of that theory. In this case, however, the indictment as framed fails to allege a conspiracy to defraud the United States either directly or indirectly. By explicitly naming county agencies as the sole and ultimate targets of the conspiracy in Count I, the Government precludes itself from claiming that it “fully intended to present sufficient proof” that HUD was either directly or indirectly defrauded by the defendant. (Brief for appellant at 10) The former Fifth Circuit has held “that if an indictment enumerates the particular facts alleged to constitute the element of a charged crime and the proof makes out the elements in a different manner, a fatal variance results.” United States v. Guthartz, 573 F.2d 225, 228 (5th Cir.), cert. denied, 439 U.S. 864, 99 S.Ct. 187, 58 L.Ed. 2d 173 (1987). Under Tanner, the particular facts alleged in the indictment in this case even if taken as true, do not state a violation of § 371. To allow the Government to introduce evidence to show that the defendants violated § 371 by conspiring to defraud the United States would be to permit a fatal variance from the words of the indictment. IV. TWO OBJECTS ARGUMENT The Government contends that a second reason that the decision of the district court should be reversed is that the conspiracy charged in Count I has a second, independent object; to knowingly and willfully make false statements in violation of 18 U.S.C. § 1001. Because the second object of the § 371 conspiracy is to violate a separate criminal statute, the Government argues that the court’s ruling was erroneous, since it precludes the Government from presenting evidence as to this second object. We reject this argument. Section 371 explicitly covers conspiracies to defraud the United States or commit any offense against the United States. Section 1001 proscribes the substantive offense of falsifying or covering up material facts in any matter within the jurisdiction of any department or agency of the United States. A conspiracy to commit “any offense” against the United States (here a § 1001 offense) is as much a violation of § 371 as is a conspiracy to defraud the United States. The Supreme Court in Tanner explained that the conspiracies criminalized by § 371 are defined by the target of the conspiracy. The holding in Tanner thus applies with equal force to the “any offense” clause of § 371 as it does to the “defraud” clause. Again, by specifically referring to county departments and agencies as the targets of the conspiracy, to the exclusion of departments or agencies of the United States, the overt acts section of the indictment precludes the Government from presenting evidence as to a § 371 conspiracy, no matter what its object. To permit the Government to do so would allow the possibility that the defendant could be convicted of an offense with which he had not been charged. AFFIRMED. APPENDIX A The Grand Jury charges that: COUNT I Economic Development Corporation of Dade County 1. At all times relevant to this indictment the Economic Development Corporation of Dade County, Inc. (hereinafter EDCO) was a non-profit corporation, registered in the State of Florida. From May, 1981 to October, 1982, EDCO was located at 1001 N.W. 54th Street, Miami, Florida. From November, 1982, until October, 1984, EDCO was located at 8270 Northeast Second Avenue, Miami, Florida. EDCO was organized to receive and distribute federal funds in the form of loans to minority owned businesses in Dade County, Florida. 2. At all times relevant to this indictment EDCO received federal funds from the United States Department of Housing and Urban Development. These federal funds were provided to Metropolitan Dade County Florida in the form of Community Development Block Grants. EDCO would and did request funds from the Dade County Office of Community and Economic Development (hereinafter OCED). These funds would be drawn down in order to provide loans to minority businesses. 3. At all time relevant to this indictment EDCO received additional federal funds from the United States Department of Commerce, Minority Business Development Agency. The purpose of these funds was to allow EDCO to provide management and technical assistance to minority owned businesses. The Defendants: 4. At all times relevant to this indictment ALGA HOPE, JR., was employed as the President and Executive Director of EDCO, and was responsible for EDCO’s overall operations. 5. From in or about May 1982, until on or about April 6, 1984, HILARIO JAMES, was employed by EDCO as a business analyst and finance specialist. His responsibilities included management and business assistance to EDCO’s clients. 6. At all times relevant to this indictment ALGA HOPE, JR. and HILARIO JAMES were the principals of three corporations registered in the State of Florida: Sunbelt Recycled Rubber Industries, Inc., incorporated on or about May 11, 1983 and allegedly located at 17860 Southwest 111th Avenue, Miami, Florida; Sunbelt Recycled Rubber Collection Centers, Inc., incorporated on or about May 11, 1983 and allegedly located at 17860 Southwest 111th Avenue, Miami, Florida; and Sunbelt Recycled Rubber Products, Inc., incorporated on or about July 29, 1983, and allegedly located at 781 N.E. 75th Street, Miami, Florida. Sunbelt Recycled Rubber Collection Centers, Inc. was a subsidiary of Sunbelt Recycled Rubber Industries, Inc. 7. From in or about May 1983 to in or about August 1984, at Miami, Dade County, in the Southern District of Florida and elsewhere, the defendants, ALGA HOPE, JR. and HILARIO JAMES, did knowingly and willfully combine, conspire, confederate and agree with each other and with persons unknown to the Grand Jury: (1) to defraud the United States of America, and the Department of Housing and Urban Development, an agency of the United States, by impairing, obstructing, and defeating the lawful governmental function of administration and enforcement of the community Development Block Grant Program by means of fraud, deceit and dishonesty; and (2) to knowingly and willfully conceal, cover up and cause to be concealed and covered up, material facts, that is, the co-ownership by ALGA HOPE, JR. of Sunbelt Recycled Rubber Collection Centers, Inc., in a manner within the jurisdiction of an agency or department of the United States, that is, the Department of Housing and Urban Development, in violation of Title 18, United States Code, Section 1001. The Manner and Means of the Conspiracy: 8. It was part of the conspiracy that HILARIO JAMES would and did resign from his position as business analyst and finance specialist with EDCO so that he could apply to EDCO for a federally funded loan for Sunbelt Recycled Rubber Collection Centers, Inc., the corporation that he co-owned, with ALGA HOPE, JR. 9. It was further part of the conspiracy that ALGA HOPE, JR., as the President of EDCO, voted in favor of the loan to Sunbelt Recycled Rubber Collection Centers, Inc. at the meeting of EDCO’s loan committee without disclosing that he was a co-owner of the corporation. 10. It was further part of the conspiracy that ALGA HOPE, JR., without disclosing his co-ownership of Sunbelt Recycled Rubber Collection Centers, Inc., recommended to officials of Dade County OCED that the loan to the corporation be approved and that federal funds be drawn down. 11. It was further part of the conspiracy that false and fraudulent documents were submitted to Dade County OCED in support of the loan application of Sunbelt Recycled Rubber Collection Centers, Inc. These false and fraudulent documents included a purchase agreement and sales receipts between Sunbelt Recycled Rubber Collection Centers, Inc. and TCM International, Inc. OVERT ACTS In furtherance of the conspiracy and to effect the objects thereof, the following overt acts among others were committed by at least one of the defendants within the Southern District of Florida and elsewhere: A. On or about March 20,1984, HILARIO JAMES sent a letter to ALGA HOPE, JR., submitting his resignation from EDCO. B. On or about March 20,1984, HILARIO JAMES submitted an application to EDCO, requesting a federally funded loan in the amount of $85,000 for Sunbelt Recycled Rubber Collection Centers, Inc. C. On or about March 30, 1984, ALGA HOPE, JR., submitted the loan application of Sunbelt Recycled Rubber Collection Centers, Inc. to an official of Dade County OCED. D. On or about April 5, 1984, ALGA HOPE, JR., attended a meeting of the EDCO loan committee at which he voted in favor of the loan to Sunbelt Recycled Rubber Collection Centers, Inc. E. On or about April 10, 1984, ALGA HOPE, JR., sent a letter to Dr. Ernest Martin, Director of Dade County OCED, recommending approval of the loan to Sunbelt Recycled Rubber Collection Centers, Inc. F. On or about April 12, 1984, ALGA HOPE, JR., sent a letter to Dr. Ernest Martin, Director, Dade County OCED, responding to questions raised by OCED concerning the loan to Sunbelt Recycled Rubber Collection Centers, Inc. G. On or about April 12, 1984, ALGA HOPE, JR., requested a draw down of $75,-000.00 in federal funds for the loan to Sunbelt Recycled Rubber Collection Centers, Inc. H. On or about April 23, 1984, ALGA HOPE, JR., and HILARIO JAMES endorsed a check from Dade County, in the amount of $65,000.00, made out jointly to EDCO and to Sunbelt Recycled Rubber Collection Centers, Inc. I. On or about April 26, 1984, ALGA HOPE, JR., HILARIO JAMES and an attorney attended a meeting at EDCO in which the loan to Sunbelt Recycled Rubber Collection Centers, Inc., was closed. J. On or about April 27, 1984, ALGA HOPE, JR., signed an EDCO check in the amount of $73,750.25, payable to Sunbelt Recycled Rubber Collection Centers, Inc. K. On or about May 4, 1984, HILARIO JAMES wrote a check from Tropical Federal Savings and Loan Association, account number 01 00043727, in the amount of $1,500.00, payable to HILARIO JAMES. L. On or about June 11, 1984, HILARIO JAMES, wrote a cheek from Tropical Federal Savings and Loan Association, account number 01 00043277, in the amount of $1,000.00, payable to HILARIO JAMES. The check is annotated “L/P on behalf of A1 Hope.” M. On or about June 18, 1984, HILARIO JAMES, wrote a check from Tropical Federal Savings and Loan Association, account number 01 00043277, in the amount of $500.00, payable to HILARIO JAMES. The stub for the check is annotated “loan payable — A1 Hope.” N. On or about June 20, 1984, HILARIO JAMES, wrote a check from Tropical Federal Savings and Loan Association, account number 01 000433277, in the amount of $300.00, payable to HILARIO JAMES. The check is annotated “Loan Payable to A1 Hope.” O. On or about July 2, 1984, HILARIO JAMES, wrote a check from Tropical Federal Savings and Loan Association, account number 01 00043277, in the amount of $2,000.00, payable to Sunbelt Recycled Rubber Industries, Inc. and annotated “management fees.” P. On or about July 3, 1984, HILARIO JAMES, wrote a check from Tropical Federal Savings and Loan Association, account number 01 00043277, in the amount of $800.00, payable to HILARIO JAMES. The check is annotated “Hilario James A1 Hope.” Q. On or about August 4, 1984, ALGA HOPE, JR. and HILARIO JAMES, meet with a consultant in Los Angeles, California to discuss a report prepared for Sunbelt Recycled Rubber Industries, Inc. All in violation of Title 18, United States Code, Section 371. . 18 U.S.C. § 371 provides, in full, as follows: If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor. .18 U.S.C. § 1001 provides, in full, as follows: Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both. . James subsequently pleaded guilty to some of the charges. . The Supreme Court has interpreted the scope of the phrase “to defraud" under § 371 to reach “any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government." Dennis v. United States, 384 U.S. 855, 861, 86 S.Ct. 1840, 1844, 16 L.Ed.2d 973 (1966); see also Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 512, 68 L.Ed. 968 (1924). . On remand, this court reversed the convictions of Tanner and Conover, finding insufficient evidence to support the theory that the defendants conspired to induce Seminole to make misrepresentations to REA. United States v. Conover, 845 F.2d 266 (11th Cir.1988). . In Tanner, the Government did allege an indirect fraud as a separate object of the conspiracy: It was further a part of the conspiracy that the defendants would and did cause Seminole Electric to falsely state and represent to the Rural Electrification Administration that an REA-approved competitive bidding procedure had been followed in awarding the access road construction contracts. Tanner, supra, 107 S.Ct. at 2754. . The Eleventh Circuit in Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981. . We reject defendant’s claim that Count I must be dismissed on independent grounds for duplicity, which is the joining of two or more separate crimes in a single count of an indictment. United States v. Ramos, 666 F.2d 469, 473 (11th Cir.1982). While it is true that courts have interpreted the "defraud the United States" and the "commit any offense” clauses of § 371 as separate criminal offenses, see, e.g., United States v. Haga, 821 F.2d 1036, 1039 (5th Cir.1987), it is well established that a single conspiracy count may properly allege multiple objectives. United States v. Alvarez, 735 F.2d 461, 465 (11th Cir.1984). The Supreme Court stated in Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942), that the allegation in a single count of a conspiracy to commit several crimes does not render the count duplicitous, for “[t]he conspiracy is the crime and that is one, however diverse its objects.” Id. at 54, 63 S.Ct. at 102, 87 L.Ed. at 28-29 (citations omitted). Count I alleges a single conspiracy in violation of § 371, with two separate objects, and is not duplicitous. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
sc_issuearea	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. DAVIS, SECRETARY, STATE BOARD OF ELECTIONS, et al. v. MANN et al. No. 69. Argued November 14, 18, 1963. Decided June 15, 1964. David J. Mays and R. D. Mcllwaine III, Assistant Attorney General of Virginia, argued the cause for appellants. With them on the briefs were Robert Y. Button, Attorney General of Virginia, and Henry T. Wickham. Edmund D. Campbell and Henry E. Howell, Jr. argued the cause for appellees. With Mr. Campbell on the brief for appellees Mann et al. was E. A. Prichard. With Mr. Howell on the brief for appellees, the citizens and voters of Norfolk, Virginia, were Leonard B. Sachs and Sidney H. Kelsey. Solicitor General Cox, by special leave of Court, argued the cause for the United States, as amicus curiae, urging affirmance. With him on the brief were Bruce J. Terris and Richard W. Schmude. Briefs of amici curiae were filed by Leo Pfeffer, Melvin L. Wulf, Jack Greenberg and Robert B. McKay for the American Jewish Congress et al., and by W. Scott Miller, Jr. and George J. Long for Schmied, President of the Board of Aldermen of Louisville, Kentucky. Mr. Chief Justice Warren delivered the opinion of the Court. Presented for decision in this case is the validity, under the Equal Protection Clause of the Fourteenth Amendment to the Federal Constitution, of the apportionment of seats in the legislature of the Commonwealth of Virginia. I. Plaintiffs below, residents, taxpayers, and qualified voters of Arlington and Fairfax Counties, filed a complaint on April 9, 1962, in the United States District Court for the Eastern District of Virginia, in their own behalf and on behalf of all voters in Virginia similarly situated, challenging the apportionment of the Virginia General Assembly. Defendants, sued in their representative capacities, were various officials charged with duties in connection with state elections. ' Plaintiffs claimed rights under, provisions of the Civil Rights Act, 42 U. S. C. §§ 1983, 1988, and asserted jurisdiction under 28 U. S. C. § 1343 (3). The complaint alleged that the present statutory provisions apportioning seats in the Virginia Legislature, as amended- in 1962, result in invidious discrimination against plaintiffs and “all other voters of the State Senatorial and House districts” in which they reside, since voters in Arlington and Fairfax Counties are given substantially less representation than voters living in other parts of the State. Plaintiffs asserted that the discrimination was violative of the Fourteenth Amendment as well as the Virginia Constitution, and contended that the requirements of the Equal Protection Clause of the Federal Constitution, and of the Virginia Constitution, could be met only by a redistribution of legislative representation among the counties and independent cities of the State “substantially in proportion to their respective populations.” Plaintiffs asserted that they “possess an inherent right to vote for members of the General Assembly . . . and to cast votes that are equally effective with the votes of every other citizen” of Virginia, and that this right was being diluted and effectively denied by the discriminatory apportionment of seats in both houses of the Virginia Legislature under the statutory provisions attacked as being unconstitutional. Plaintiffs contended that the alleged inequalities and distortions in the allocation of legislative seats prevented the Virginia Legislature from “being a body representative of the people of the Commonwealth,” and resulted in a minority of the people of Virginia controlling the General Assembly. The complaint requested the convening of a three-judge District Court. With respect to relief, plaintiffs sought a declaratory judgment that the statutory scheme of legislative apportionment in Virginia, prior as well as subsequent to the 1962 amendments, contravenes the Equal Protection Clause of the Fourteenth Amendment and is thus unconstitutional and void. Plaintiffs also requested the issuance of a prohibitory injunction restraining defendants from performing their official duties relating to the election of members of the General Assembly pursuant to the present statutory provisions. Plaintiffs further sought a mandatory injunction requiring defendants to conduct the next primary and general elections for legislators on an at-large basis throughout the State. A three-judge District Court was promptly convened. Residents and voters of the City of Norfolk were permitted to intervene as plaintiffs against the original defendants and against certain additional defendants, election officials in Norfolk. On June 20, 1962, all of the plaintiffs obtained leave to amend the complaint by adding an additional prayer for relief which requested that, unless the General Assembly “promptly and fairly” reapportioned the legislative districts, the Court should reapportion the districts by its own order so as to accord the parties and others similarly situated “fair and proportionate” representation in the Virginia Legislature. Evidence presented to the District Court b.y plaintiffs included basic figures showing the populations of the various districts from which senators and delegates are elected and the number of seats assigned to each. From that data various statistical comparisons were derived. Since the 1962 reapportionment measures were enacted only two days before the complaint was filed and made only small changes in the statutory provisions relating to legislative apportionment, which had been last amended in 1968, the evidence submitted covered both the present and the last previous apportionments. Defendants introduced various exhibits showing the numbers of military and military-related personnel in the City of Norfolk and in Arlington and Fairfax Counties, disparities from population-based representation among the various States in the Federal Electoral College, and results of a comparative study of state legislative apportionment which show Virginia as ranking eighth among the States in population-based legislative representativeness, as reapportioned in 1962. On November 28, 1962, the District Court, with one judge dissenting, sustained plaintiffs’ claim and entered an interlocutory order holding the apportionment of the Virginia Legislature violative of the Federal Constitution. 213 F. Supp. 577. The Court refused to dismiss the case or stay its action on the ground, asserted by defendants, that plaintiffs should be required first to procure the views of the state courts on the validity of the apportionment scheme. Instead, it held that, since neither the 1962 legislation nor the relevant state constitutional provisions were ambiguous, no question of state law necessitating abstention by the Federal District Court was presented. In applying the Equal Protection Clause to the Virginia apportionment scheme, the Court stated that, although population is the predominant consideration, other factors may be of some relevance “in assaying the justness of the apportionment.” Stating that the Federal Constitution requires a state legislative apportionment to “accord the citizens of the State substantially equal representation,” the Court held that the inequalities found in the statistical information relating to the population of the State’s various legislative districts, if unexplained, sufficiently showed an “invidious discrimination” against plaintiffs and those similarly situated. The Court rejected any possibility of different bases of representation being applicable in the two houses of the Virginia Legislature, stating that, in Virginia, each house has “a direct, indeed the same, relation to the people,” and that the principal present-day justification for bicameralism in state legislatures is to insure against precipitate action by imposing greater deliberation upon proposed legislation. Because of the gross inequalities in representation among various districts in both houses of the Virginia Legislature, the Court put the burden of explanation on defendants, and found that they had failed to meet it. Consequently, the Court concluded that the discrimination against Arlington and Fairfax Counties and the City of Norfolk was a grave and “constitutionally impermissible” deprivation, violative of the Equal Protection Clause of the Fourteenth Amendment. With respect to relief, the Court stated that, while it would have preferred that the General Assembly itself correct the unconstitutionality of the 1962 apportionment legislation, it would not defer deciding the case until after the next regular session of the Virginia Legislature in January 1964, because senators elected in November 1963 would hold office until 1968 and delegates elected in 1963 would serve until 1966. Deferring action would thus result in unreasonable delay in correcting the injustices in the apportionment of the Senate and the House of Delegates, concluded the Court. The District Court’s interlocutory order declared that the 1962 apportionment violated the Equal Protection Clause and accordingly was void and of no effect. It also restrained and enjoined defendants from proceeding with the conducting of elections under the 1962 legislation, but stayed the operation of the injunction until January 31, 1963, so that either the General Assembly could act or an appeal could be taken to this Court, provided that, if neither of these steps was taken, plaintiffs might apply to the District Court for further relief. Finally, the court below retained jurisdiction of the case for the entry of such orders as might be required. An appeal to this Court was timely noted by defendants. On application by appellants, The Chief Justice, on December 15, 1962, granted a stay of the District Court’s injunction pending final disposition of the ease by this Court'. Because of this stay, the November 1963 election of members of the Virginia Legislature was conducted under the existing statutory provisions. We noted probable jurisdiction on June 10, 1963. 374 U. S. 803. II. The Virginia Constitution provides for a Senate of not more than 40 nor less than 33 members, in Art. IV, § 41, and for a House of Delegates of not more than 100 nor less than 90 seats, in Art. IV, §.42. Senators are elected quadrennially and delegates biennially. At all relevant times, state statutes have fixed the number of senators at 40 and the number of delegates at 100. Pursuant to the state constitutional requirement of legislative reapportionment at least decenially, contained in Art. IV, § 43, the General Assembly has reapportioned senatorial and House seats in 1932, 1942, and 1952, as well as in 1962, and in 1958 the apportionment statutes were amended. The Virginia Constitution contains no express standards, however, for the apportionment of legislative representation, and leaves the task of establishing districts solely up to the discretion of the legislature. With respect to political subdivisions, Virginia has 98 counties and 32 independent cities. Despite the absence of any specific provisions in the State Constitution, population has generally been traditionally regarded as the most important factor for legislative consideration in reapportioning and redistricting. Because cities and counties have consistently not been split or divided for' purposes of legislative representation, multimember districts have been utilized for cities and counties whose populations entitle them to more than a single representative, resulting in there always being less than 100 delegate districts and less than 40 senatorial districts. And, because of a tradition of respecting the integrity of the boundaries of cities and counties in drawing district lines, districts have been constructed only of combinations of counties and cities and not by pieces of them. This has resulted in the periodic utilization of floterial districts where contiguous cities or counties cannot be combined to yield population totals reasonably close to a population ratio figure determined by dividing the State’s total population by the number of seats in the particular legislative body. Various other factors, in addition to population, which have historically been considered by Virginia Legislatures in enacting apportionment statutes include compactness and contiguity of territory in forming districts, geographic and topographic features, and community of interests among people in various districts. Section 24-14 of the Virginia Code, as amended in 1962, provides for the apportionment of the Virginia Senate, and divides the State into 36 senatorial districts for the allocation of the 40 seats in that body. With a total state population of 3,966,949, according to the 1960 census, and 40 Senate seats, the ideal ratio would be one senator for each 99,174 persons. Under the 1962 statute, however, Arlington County is given but one senator for its 163,401 persons, only .61 of the representation to which it would be entitled on a strict population basis. The City of Norfolk has only .65 of its ideal share of senatorial representation, with two senators for a population of 305,872. And Fairfax County (including the cities of Fairfax and Falls Church), with two senators for 285,194 people, has but .70 of its ideal representation in the Virginia Senate. In comparison, the smallest senatorial district, with respect to population, has only 61,730, and the next smallest 63,703. Thus, the maximum population-variance ratio between the most populous and least populous senatorial districts is 2.65-to-l. Under the 1962 senatorial apportionment, applying 1960 population figures, approximately 41.1% of the State’s total population reside in districts electing a majority of the members of that body. Apportionment of seats in the Virginia House of Delegates is provided for in § 24-12 of the Virginia Code, as amended in 1962, which creates 70 House districts and distributes the .100 House seats among them. Dividing the State’s total 1960 population by 100 results in an ideal ratio of one delegate for each 39,669 persons. Fair-fax County, with a population of 285,194, is allocated only three House seats under the 1962 apportionment provisions, however, thus being given only .42 of its ideal representation. While the average population per delegate in Fairfax County is 95,064, Wythe County, with only 21,975 persons, and Shenandoah County, with a population of only 21,825, are each given one seat in the Virginia House. The maximum population-variance ratio, between the most populous and least populous House districts, is thus 4.36-to-1. The City of Norfolk, with 305,872 people, is given only six House seats, and Arlington County, with a population of 163,401, is allocated only three. Under the 1962 reapportionment of the House of Delegates, 40.5% of the State’s population live in districts electing a majority of the House members. Twenty-seven House districts have more than three times the representation of the people of Fairfax County, 12 districts have twice the representation of Arlington County, and six, twice that of Norfolk. No adequate political remedy to obtain legislative reapportionment appears to exist in Virginia. No initiative procedure is provided for under Virginia law. Amendment of the State Constitution or the calling of a constitutional convention initially requires the vote of a majority of both houses of the Virginia General Assembly. Only after such legislative approval is obtained is such a measure submitted to the people for a referendum vote. Legislative apportionment questions do not appear to have been traditionally regarded as non justiciable by Virginia state courts, however, and appellees could possibly have sought and obtained relief in a state court as well as in a Federal District Court. III. In Reynolds v. Sims, ante, p. 533, decided also this date, we held that the Equal Protection Clause requires that seats in both houses of a bicameral state legislature must be apportioned substantially on a population basis. Neither of the houses of the Virginia General Assembly, under the 1962 statutory provisions here attacked, is apportioned sufficiently on a population basis to be constitutionally sustainable. Accordingly, we hold that the District Court properly found the Virginia legislative apportionment invalid. Appellants' contention that the court below should have abstained so as to permit a state court to decide the questions of state law involved in this litigation is without merit. Where a federal court's jurisdiction is properly invoked, and the relevant state constitutional and statutory provisions are plain and unambiguous, there is no necessity for the federal court to abstain pending determination of the state law questions in a state court. McNeese v. Board of Education, 373 U. S. 668. This is especially so where, as here, no state proceeding had been instituted or was pending when the District Court’s jurisdiction was invoked. We conclude that the court below did not err in refusing to dismiss the proceeding or stay its action pending recourse to the state courts. Undoubtedly, the situation existing in Virginia, with respect to legislative apportionment, differs not insignificantly from that in Alabama. In contrast to Alabama, in Virginia the legislature has consistently reapportioned itself decennially as required by the State Constitution. Nevertheless, state legislative malapportionment, whether resulting from prolonged legislative inaction or from failure to comply sufficiently with federal constitutional requisites, although reapportionment is accomplished periodically, falls equally within the proscription of the Equal Protection Clause. We reject appellants’ argument that the underrepresen-tation of Arlington, Fairfax and Norfolk is constitutionally justifiable since it allegedly resulted in part from the fact that those areas contain large numbers of military and military-related personnel. Discrimination against a class of individuals, merely because of the nature of their employment, without more being shown, is constitutionally impermissible. Additionally, no showing was made that the Virginia Legislature in fact took, such a factor into account in allocating legislative representation. And state policy, as evidenced by Virginia’s election laws, actually favors and fosters voting by military and military-related personnel. Furthermore, even if such persons were to be excluded in determining the populations of the various legislative districts, the discrimination against the disfavored areas would hardly be satisfactorily explained, because, after deducting military and military-related personnel, the maximum population-variance ratios would still be 2.22-to-1 in the Senate and 3.53-to-l in the House. We also reject appellants’ claim that the Virginia apportionment is sustainable as involving an attempt to balance urban and rural power in the legislature. Not only does this explanation lack legal merit, but it also fails to conform to the facts. Some Virginia urban areas, such as Richmond, by comparison with Arlington, Fairfax and Norfolk, appear to be quite adequately represented in the General Assembly. And, for the reasons stated in Reynolds, in rejecting the so-called federal analogy, and in Gray v. Sanders, 372 U. S. 368, 378, appellants’ reliance on an asserted analogy to the deviations from population in the Federal Electoral College is misplaced. The fact that the maximum variances in the populations of various state legislative districts are less than the extreme deviations from a population basis in the composition of the Federal Electoral College fails to provide a constitutionally cognizable basis for sustaining a state apportionment scheme under the Equal Protection Clause. We find it unnecessary and inappropriate to discuss questions relating to remedies at the present time. Since the next election of Virginia legislators will not occur until 1965, ample time remains for the Virginia Legislature to enact a constitutionally valid reapportionment scheme for purposes of that election.. After the District Court has provided the Virginia Legislature with an adequate opportunity to enact a valid plan, it can then proceed, should it become necessary, to grant relief under equitable principles to insure that no further elections are held under an unconstitutional scheme. Since the District Court stated that it was retaining jurisdiction and that plaintiffs could seek further appropriate relief, the court below presumably intends to take further action should the Virginia Legislature fail to act promptly in remedying the constitutional defects in the State’s legislative apportionment plan. We therefore affirm the judgment of the District Court on the merits of this litigation, and remand the case for further proceedings consistent with the views stated here and in our opinion in Reynolds v. Sims. It is so ordered. Mr. Justice Clark concurs in the affirmance for the reasons stated in his concurring opinion in Reynolds v. Sims, ante, p. 587, decided this date. [For dissenting opinion of Mr. Justice Harlan, see ante, p. 589.] Mr. Justice Stewart. In this case, the District Court.recognized that “population is not . . . the sole or definitive measure of districts when taken by the Equal Protection Clause.” 213 F. Supp., at 584. In reaching its decision the. court made clear that it did not “intend to say that there cannot be wide differences of population in districts if a sound reason can be advanced for the discrepancies.” Id., at 585. The District Court, however, could find “no rational basis for the disfavoring of Arlington, Fairfax and Norfolk.” Ibid. In my opinion the appellants have failed to show that the trial court erred in reaching this conclusion. Accordingly, in keeping with the view expressed in my dissenting opinion in Lucas v. Forty-Fourth General Assembly of Colorado, post, p. 744, I would affirm the District Court’s judgment holding that to the extent a state legislative apportionment plan is conclusively shown to have no rational basis, such a plan violates the Equal Protection Clause. Reapportionment in 1952 was accomplished only after the Governor convened a special session of the Virginia Legislature for that purpose, since the legislature had adjourned without enacting any statutes reallocating representation. In anticipation of the constitutional mandate to reapportion in 1962, the Virginia Governor, in January 1961, appointed a commission on redistricting. In doing its work, this commission employed the assistance of the Bureau of Public Administration of the University of Virginia. Suggesting that Senate and House districts should be, as nearly as practicable, equal in population, the Bureau submitted two alternative plans for the apportionment of the House and three alternative plans for the apportionment of Senate seats. These plans all followed the various criteria traditionally considered in previous apportionments, and complied with the constitutionally prescribed size limitations on both of the houses. In late 1961, the commission filed its report recommending a redistricting plan different from any of the plans submitted by the Bureau. Its plan, based more on political compromise than any of the Bureau’s suggested plans, deviated further from population-based representation than any of the Bureau’s proposals. At its 1962 regular session, the Virginia General Assembly completely disregarded both the commission report and the plans prepared by the Bureau, and adopted apportionment schemes of its own for each house, in practical effect making only minimal changes in the existing statutory provisions. These enactments, of course, are the ones principally complained of by appellees in this litigation. The term “floterial district” is used to refer to a legislative district which includes within its boundaries several separate districts or political subdivisions which independently would not be entitled to additional representation but whose conglomerate population entitles the entire area to another seat in the particular legislative body being apportioned. See Baker v. Carr, 369 U. S. 186, 256 (Clark, J., concurring). As an example, the City of Lynchburg, with a 1960 population of 54,790, is itself allocated one seat in the Virginia House of Delegates under the 1962 apportionment plan. Amherst County, with a population of only 22,953, is not given any independent representation in the Virginia House. But the City of Lynchburg and Amherst County are combined in a floterial district with a total population of 77,743. Presumably, it was felt that Lynchburg was entitled to some additional representation in the Virginia House, since its population significantly exceeded the ideal House district size of 36,669. However, since Lynchburg’s population did not approach twice that figure, it was apparently decided that Lynchburg was not entitled, by itself, to an added seat. Adjacent Amherst County, with a population substantially smaller than the ideal district size, was presumably felt not to be entitled to a separate House seat. The solution was the creation of a floterial district comprising the two political subdivisions, thereby according Lynchburg additional representation and giving Amherst County a voice in the Virginia House, without having to create separate additional districts for each of the two political subdivisions. In illustrating the disparities from population-based representation in the apportionment of Senate seats, the District Court included in its opinion a chart showing the composition (by counties and cities) and populations of, and the number of senators allotted to, various senatorial districts, and comparing these figures with the senatorial representation given Arlington, Fairfax and Norfolk. 213 F. Supp., at 581-582. Appellees have pointed out, however, that, since seats in the Virginia Legislature are reapportioned decennially, and since the allegedly underrepresented districts are those whose populations are increasing more rapidly than the allegedly overrepresented ones, the disparities from population-based representation, in both houses of the Virginia Legislature, will continually increase throughout the 10-year period until the next reapportionment. In discussing deviations from population-based representation in the allocation of seats in the House of Delegates, the District Court included, as part of its opinion, a chart showing the populations of and the number of seats given to certain House districts, and comparing these figures with the House representation accorded Arlington, Fair-fax and Norfolk. 213 F. Supp., at 582-584. For a discussion of the lack of federal constitutional significance of the presence or absence of an available political remedy, see Lucas v. Forty-Fourth General Assembly of Colorado, post, pp. 736-737, decided also this date. Va. Const., Art. XV, §§ 196, 197. In Brown v. Saunders, 159 Va. 28, 166 S. E. 105 (1932), the Supreme Court of Appeals of Virginia held that a congressional dis-tricting statute enacted by the Virginia Legislature was invalid since it conflicted with Art. IV, § 55, of the State Constitution, which requires congressional districts to have “as nearly as practicable, an equal number of inhabitants.” Of course, involved in that case was a specific state constitutional requirement relating to congressional districting, whereas no such detailed state requirements exist with respect to apportionment of seats in the Virginia Legislatura. Appellants have argued, however, that this decision indicates that Virginia courts will also adjudicate questions relating to the validity of the State's legislative apportionment scheme under the provisions of the Federal Constitution. However, in Tyler v. Davis, a case involving a suit instituted on March 26, 1963, almost four months after the District Court’s decision in the instant case, the Circuit Court of the City of Richmond dismissed, on the merits, an action challenging the apportionment of seats in the Virginia Legislature. Although the state court found that it had jurisdiction and that the questions raised were justiciable in nature, it dismissed the complaint on the ground that plaintiffs had failed to show that the scheme for apportioning seats in the Virginia Legislature was an invidiously discriminatory one violative 'of the Equal Protection Clause. See 213 F. Supp., at 584. Virginia’s election laws enable persons in the armed forces to vote without registration or payment of poll tax. Va. Code Ann., 1950 (Repl. Vol. 1964) §24r-23.1. While the literal language of this provision grants the privilege to those “in active service ... in time of war,” the Virginia State Board of Electors is applying it currently. Although the mere stationing of military personnel in the State does not give them residence, Virginia election officials interpret the applicable statutory provisions to mean that residence for military personnel is determined in the same manner as for all other citizens. Military personnel and members of their families who have been residents of Virginia for a year, residents of a county, city or town for six months, and residents of a precinct for 30 days are entitled to vote. Military personnel are not included in the categories of persons disabled from voting. Va. Code Ann., 1950 (Repl. Vol. 1964) § 24-18. See Reynolds v. Sims, ante, pp. 571-576. See id., at 585. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:
songer_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. UNITED STATES FIDELITY & GUARANTY COMPANY, Plaintiff-Appellant, v. HOUSING AUTHORITY OF THE TOWN OF BERWICK, Defendant, Hibernia National Bank of New Orleans, Intervenor, Martin-Lebreton Insurance Agency, Intervenor-Appellee. No. 75-3848. United States Court of Appeals, Fifth Circuit. Aug. 12, 1977. A. Morgan Brian, Jr., New Orleans, La., for plaintiff-appellant. Russell M. Cornelius, New Orleans, La., for defendant. Before WISDOM and GEE, Circuit Judges, and BOOTLE, District Judge. Senior District Judge of the Middle District of Georgia sitting by designation. WISDOM, Circuit Judge: This appeal concerns a dispute over the retained contract funds of two companion public construction projects. The parties are the surety (plaintiff-appellant) on the prime contractor’s statutory performance and payment bonds on both projects, and the contractor’s insurance agency as a conventional assignee of a portion of the contractor’s rights to the retained funds on only one of the projects. We hold for the surety, and reverse the district court. I. The Housing Authority for the Town of Berwick, Louisiana, (Authority) initiated two construction projects for low-rent housing developments on companion sites in St. Mary Parish, referred to here as Job-2 and Job-3. The prime contractor on each, Delta General Construction Corporation (Delta), furnished to the Authority statutory performance and payment bonds to cover both prime contracts on which United States Fidelity and Guaranty Company is surety. Delta executed in favor of USF&G one general indemnity agreement and a separate application for each of the two bonds. The pertinent provisions of the bond applications state: As collateral, to secure the obligations herein of the undersigned and all other indebtedness liabilities of [Delta] to [USF&G], whether heretofore or hereafter incurred. . . [Delta], assigns . . . all . . . interest of [Delta] in and to . . . every contract covered by [USF&G’s] bond including all retained percentages, deferred payments, earned moneys and all funds and properties whatever that may be due or become due under said contract . growing out of said contract or work done thereunder. . such assignment [is] to be effective as of the date of said contract but only in event of . any breach of any of the agreements herein contained, or of said contract or bond, or of any other bond (heretofore or hereafter) executed or procured by [USF&G] on behalf of [Delta]. (Emphasis added.) Subsequently, Martin Lebreton Insurance Agency (Agency) to enable Delta to pay the past due balance owed on its premium account endorsed Delta’s promissory note to Hibernia National Bank in New Orleans for $23,856. The following day the note held by Hibernia was collaterally secured by Delta’s written assignment to the Agency of a $23,856 interest in the retainage outstanding on Job-2. The Authority was notified of this assignment before they were notified of the previous assignment to USF&G. Delta became unable to pay its subcontractors and suppliers on a current basis and these third parties threatened to assert their claims. USF&G advanced its own funds to pay the claims of those third parties. With the help of money advanced by USF&G in accordance with its bond obligations Delta ultimately completed both jobs. The totals of the respective 10 percent retainages withheld by the Authority under the two contracts were closed out at $56,986 for Job-2 and $85,000 for Job-3. The main action in this ease between USF&G and the Authority has been settled and dismissed. The only remaining matter is the determination of the Agency’s claim to certain contract funds now in the possession of USF&G from Job-2. The trial judge held in his final judgment that USF&G’s right to the retainage on each job, based on subrogation and bond application assignment, was superior per se to the loan-collateral assignment rights of the Agency, but only up to the respective separate amounts of bond loss USF&G sustained on each particular job. USF&G’s total bond losses were $49,798 on Job-2 and $294,539 on Job-3. When USF&G is credited with the respective remaining contract balances that were paid to it the results are a net retainage balance of $7,188 left over on Job-2 but a net excess loss of $209,539 on Job-3. The trial judge did not, however, allow USF&G to offset the small net retainage left on Job-2 against the large net bond loss on Job-3 to reduce the surety’s deficit as far as possible by utilizing all the available contract funds. Rather the Agency’s assignment was held to be the superior right for recovery of the $7,188 net balance of retainage from Job-2, while USF&G’s net loss of $209,539 on Job 3 was denied the chance to be further reduced by that $7,188. II. The only question raised on appeal is whether the surety, USF&G, was properly denied recoupment of its net excess loss on the highest-loss job, Job-3, from the net excess retainage of $7,188 on the lower-loss job, Job-2. Although USF&G seeks reversal on subrogation and assignment theories, in light of our disposition, it is necessary to discuss only the subrogation claim. The court below recognized that USF&G as surety for Delta was subrogated to the rights of laborers, materialmen, and suppliers of Delta whose claims USF&G paid, and that the rights of those original Delta creditors are superior to those of the Agency. Pearlman v. Reliance Insurance Co., 1962, 371 U.S. 132, 83 S.Ct. 232, 9 L.Ed.2d 190; Claiborne Parish School Board v. Fidelity & Deposit Co. of Maryland, 5 Cir. 1930, 40 F.2d 577; Bankhead v. Maryland Casualty Co., 197 F.Supp. 879 (E.D.La. 1961); 17 Am.Jur.2d “Contractor’s Bond” §§ 107-8 (1964). It is also true, however, that USF&G is subrogated to the priority statutory position of the public owner with respect to the contract fund. Prairie State Bank v. United States, 1896, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412; Henningsen v. U. S. Fidelity and Guaranty Co., 1908, 208 U.S. 404, 285 S.Ct. 389, 52 L.Ed. 547; cf. Bankhead v. Maryland Casualty Co., 197 F.Supp. 879 (E.D.La.1961). It is clear, then, as the district court ruled, that USF&G had priority vis-a-vis the Agency, to the retained contract funds of Job-2 for its losses associated with that job. The question here is whether the retainage on Job-2 can be applied to USF&G’s losses on Job-3. The contract between the Authority and Delta entitled the Authority to backcharge Delta’s potential retainage on Job-2 with all payments required to be made for settling third-party labor and material claims on both Job-2 and Job-3. As a result no “final payment of retainage” ever matured or became due Delta under the prime contract for Job-2. Article 12 of the contract between the Authority and Delta concerning “Payments” provides: . [T]here shall be retained 10% . until final completion and acceptance of all such work covered by the Contract . . Upon completion and acceptance by the . . . Authority of all work required hereunder, the amount due the Contractor [Delta] shall be paid after the Contractor has furnished to the . . . Authority a release ... of all claims against the Authority arising and by virtue of this Contract . . . The . Authority may withhold any payment otherwise due the Contractor to protect the . . . Authority against any claim (emphasis added). The required “release” before final payment was due was not given until March 4, 1975 when close-out documentation on Job-2 was finally completed, executed by Delta, and forwarded to the Authority. On April 30, 1975 the final release documents were signed by the Authority. By April 30, 1975, close to seven years after Delta’s assignment to the Agency, the massive loss on Job-3 had occurred and the liabilities therefor were fixed. More than the entire balance of Job-3 contract funds, both progress money and final retainage, was necessary to satisfy claims of third parties for those completion costs as well as Delta’s unpaid labor and material bills. Had USF&G not paid those sums under its bond, the Authority had an express contract right and statutory responsibility to use a 11 of Delta’s otherwise available contract funds, whether derived from Job-2 or Job-3 to pay them. Consequently, there never was a debt owed by the Authority to Delta and, therefore, the assignment by Delta to the Agency does not preclude recovery by USF&G of the net excess retain-age of $7,188 from Job 2. As stated in P. P. Williams & Co. v. Roach, 12 La.App. 305, 125 So. 465, 468 (1929), “ . . . [an] assignor can assign no better rights than he has, and the assignee, of course, acquires no better rights than the assignor has.” The net result is that the Agency acquired nothing, because no debt from the Authority to Delta resulted, and USF&G, subrogated to the Authority’s rights, was entitled under the terms of the contract between the Authority and Delta to use Job-2 retainage to pay Job-3 claims. A case analogous in principle, P. P. Williams & Co. v. Roach, supports our conclusion. In Williams, the assignee of a subcontractor sued the contractor to recover the October progress payment due the subcontractor. The October payment, however, was backcharged to the subcontractor for debts it had incurred for which the contractor was liable. As a result, since the amount due for the work did not exceed the legitimate charges against it, the October payment never became a debt owed by the contractor to the subcontractor, and the sub-contractor’s assignee could not successfully claim a debt that never existed. Here also, the Agency cannot successfully claim retainage due Delta when the amount of retainage was insufficient to meet the legitimate charges against it. As one final point, we note Agency’s misplaced reliance on Baker v. City of Shreveport, 165 La. 391, 115 So. 631 (1928) reh. denied. In Baker there is no suggestion that the contract between the public body and the contractor allowed excess retainage from one job to be used to pay claims on another job. Baker, therefore, does not control our determination. Although other avenues of approach might lead to the result reached in this case, we follow the course outlined in this opinion. REVERSED. . As these are public works, the projects and the prime contracts are governed by Louisiana’s Public Works Act, R.S. 38:2241 et seq. . The Agency handled the underwriting of Del-° ta’s bonds from USF&G on both Job-2 and Job-3. The Agency also placed insurance coverage applicable to those two projects, as well as all such insurance needs on Delta’s other work, maintaining a credit account for the premiums due. In due course, the Agency paid Delta’s note to the Bank and received in return all of the Bank’s rights. . Louisiana Public Works Act, R.S. 38:2243. . Whether Baker would otherwise control is a question we need not presently consider. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_altdisp	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 an issue arising out of an alternative dispute resolution process (ADR, settlement conference, role of mediator or arbitrator, etc.) 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". James P. TAYLOR, Appellant, v. UNITED STATES of America, Appellee. No. 17623. United States Court of Appeals Eighth Circuit. April 16, 1964. James P. Taylor, pro se. No appearance for appellee. Before JOHNSEN, Chief Judge, and MATTHES, Circuit Judge. PER CURIAM. The denial of a previous motion by appellant to vacate sentence under 28 U.S.C.A. § 2255 was reversed by us in Taylor v. United States, 8 Cir., 282 F.2d 16, with directions to hold a hearing upon appellant’s claim that he was mentally incompetent during the proceedings leading to his conviction and sentence. A full-scale hearing was engaged in by the District Court, with appellant being present and duly represented by counsel, and with a large amount of evidence being adduced. Upon careful consideration of all of this oral and documentary evidence, the Court found that appellant had been mentally competent to understand the proceedings against him and to effectively assist in his defense; that this competency obtained in all of the proceedings involved; and that his conviction and sentence were accordingly valid. Detailed findings were made by the Court, which are reported in Taylor v. United States, D.C.Minn., 199 F.Supp. 734. Upon application being made to us for leave to appeal in forma pauperis from this determination, after a certification by the District Court that the appeal would be one that was without merit and so not taken in good faith, we undertook to satisfy ourselves whether there was any basis to request us to review the evidence in relation to the Court’s findings, or whether the appeal would in the situation be frivolous. We made appointment of the counsel who had represented appellant on the hearing, and who thus was familiar with the proceedings and the evidence, to make indication for him of any possible appellate substance that could be involved in the situation. A detailed statement was prepared and filed as to the proceedings and the evidence, from which it was manifest that the situation was without basis for a contention that the evidence did not amply support the District Court’s findings. We accordingly refused to permit the appeal to be proceeded with and dismissed it as frivolous. Taylor v. United States, 308 F.2d 776, 777. - Our opinion said (308 F.2d at 778 and 779): “That Taylor was given a full and fair hearing on his claim that he was mentally incompetent during the proceedings leading to his conviction, is unquestionable. .There was, obviously, ample evidence to support the determination of Judge Devitt that Taylor was during those proceedings mentally competent. The issue tried was an issue of fact for the trial court, and cannot be made a question of law for this Court. * * * There would be no justification for permitting Taylor to go further with his frivolous appeal or for requiring court-appointed counsel to waste further time and efforts on his behalf”. Appellant thereafter filed another motion to vacate sentence under 28 U.S.C.A. § 2255, seeking to have the District Court once more engage in a consideration of the question of his mental competency, under the guise of a charge that his appointed counsel had failed to render him effective assistance. He contends that counsel should have raised the question of his mental competency in his conviction and sentencing proceedings through a timely request to the Court for a mental examination and hearing under 18 U.S.C.A. § 4244. But the plenary hearing and determination which appellant was given on his previous motion to vacate, 199 F.Supp. 734, have afforded him all the right and precaution which could have come to him through proceedings under § 4244. As has been indicated, the Court specifically found that appellant was at all times mentally competent to understand the proceedings against him and to effectively assist in his defense. His contention as to the failure of his counsel to have requested an examination under § 4244 would therefore not be entitled to any consideration as a question of due process in respect to his legal representation. He further contends that his counsel should have raised the defense for him that he was insane at the time of the commission of the crime. The situation, however, is not one in which appellant stood trial, but one in which he pleaded guilty. On the determination of competency made in his previous § 2255 proceeding, that plea was one which appellant had the capacity to make. Beyond this, his contention that, on the indications of mental incompetency which existed, his counsel failed to render effective assistance in not requiring him to stand trial on the criminal charge and setting up insanity as a defense, constituted in the circumstances of the situation an attempt to have the Court engage in another consideration of his mental condition upon the same basis and elements as it had previously done. The determination made had duly taken into account the background and history, as well as other material, upon which appellant sought to rest his present motion. The evaluation made as to all these aspects entitled the Court to treat the motion as not presenting any question of substance or merit sufficient to require hearing on the character of the assistance which had been rendered by his counsel, as a claim of want of due process. The appeal from the Court’s denial of appellant’s motion is entitled to be dismissed as frivolous. It may be added that the charge of lack of effective assistance of counsel was also made in appellant’s previous motion, and that our opinion undertook to lay this charge at rest by stating consideredly that a detailed examination of the tremendous record involved “indicates conclusively a lack of substance to this charge”. 282 F.2d at 19. Appeal dismissed. Question: Did the court's ruling on an issue arising out of an alternative dispute resolution process (ADR, settlement conference, role of mediator or arbitrator, etc.) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_origin	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. Angelo P. CIPRARI, Plaintiff-Appellant, v. SERVICOS AEREOS CRUZEIRO do sul, S. A. (CRUZEIRO), Defendant-Appellee. No. 334, Docket 30145. United States Court of Appeals Second Circuit. Argued April 12, 1966. Decided May 13, 1966. Lee S. Kreindler, New York City (Milton G. Sincoff, Gerald A. Robbie, Kreind-ler & Kreindler, New York City, on the brief), for plaintiff-appellant. Robert B. von Mehren, New York City (Samuel E. Gates, John D. Niles, and Debevoise, Plimpton, Lyons & Gates, New York City, on the brief), for defendant-appellee. Before LUMBARD, Chief Judge, and WATERMAN and ANDERSON, Circuit Judges. PER CURIAM: We affirm the order of the United States District Court for the Southern District of New York which granted partial summary judgment for the defendant dismissing plaintiff’s first cause of action which sought damages for personal injuries suffered in an airplane crash in Brazil in defendant’s aircraft which plaintiff, a resident of New York, had boarded in Brazil after purchasing his ticket there, for the reasons stated by Judge Wyatt in his opinion, reported at 245 F.Supp. 819 (1965), which analyzes the governing New York law. As defendant had already disbursed for the plaintiff a sum in excess of the maximum amount reasonable under Brazilian law, the district court held no further recovery could be had. 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_crmproc2	10	What follows is an opinion from a United States Court of Appeals. Your task is to identify the second most frequently cited federal rule of criminal procedure in the headnotes to this case. Answer "0" if less than two federal rules of criminal procedure are cited. For ties, code the first rule cited. Jake RICHARDSON, Appellant, v. UNITED STATES of America, Appellee. No. 15110. United States Court of Appeals Eighth Circuit. Dec. 21, 1954. Jake Richardson, pro se. Edward L. Scheufier, U. S. Atty., Kansas City, Mo., and Joseph L. Flynn, Asst. U. S. Atty., St. Joseph, Mo., for appellee. Before GARDNER, Chief Judge, and COLLET and VAN OOSTERHOUT, Circuit Judges. PER CURIAM. This is an appeal from an order denying motion of defendant (appellant), made pursuant to section 2255, Title 28 United States Code, to vacate sentence, motion of defendant to withdraw plea of guilty, motion for habeas corpus ad testificandum and writ of attachment, and supplements thereto, and motion for reconsideration of each of said motions. The defendant in his brief makes the following points: “Question One: Whether or not, the arrest of the appellant by Federal narcotic agents on March 16, 1953, was unlawful and violated the protection guaranteed him Amendment Four and Five to the Federal Constitution. Whether or not, in violation of Amendment Five to the Federal Constitution the arresting Federal narcotic agents herein involved failed to comply with the requirements of 18 U.S.C.A.Federal Rules of Criminal Procedure, Rule 5(a) after arresting this appellant. And if so, did the trial court herein acquire valid jurisdiction over the instant case herein involved ? “Question Two: Whether or not, in a trial upon an information set forth in three counts, sales of heroin hydrochloride; this appellant was denied his Constitutional rights conferred under Amendments Five and Six to the Federal Constitution; (1) When the trial court failed to comply with the statutory requirements of 18 U.S.C.A.Federal Rules of Criminal Procedure, Rules 7(b), 10 and 11, divested itself of jurisdiction by failing to complete the court: and if so, whether or not, this is grounds for 28 U.S.C.A. § 2255? “Question Three on appeal herein is, whether or not, in a hearing without a jury upon motions filed in the trial court in conformity with 28 U.S.C.A. § 2255 and 18 U.S.C.A. Foil. 688, Rule 11(a) Criminal Rules 1933, in which events were alleged to infringe the Constitutional rights of this appellant do or do not appear on the face of the record of his conviction, and where this appellants motions raised matters of facts dehors the record, the trial court herein was required to determine the issues, make findings of fact and conclusions of law with respect thereto and produce this appellant in court to be present at the hearing to testify and offer evidence in his own behalf, pursuant to 28 U.S.C.A. § 2255 and 28 U.S.C.A.Federal Rules of Civil Procedure, Rule 52(a) ?” The defendant was arrested on March 16, 1953, without a warrant by narcotic agents. On March 17, 1953, a complaint was filed, a warrant was issued, and the defendant was arrested thereunder and brought before the United States Commissioner. On March 20, 1953, defendant appeared in open court with Kenneth Simon, a competent attorney, appearing for him. After due explanation by the court, he waived indictment in writing, and an information in three counts was filed charging defendant with three separate sales of heroin, in violation of section 2554(a), Title 26 United States Code. Defendant through his counsel waived reading of the information. The Government attorney made an explanation of the charges. Thereupon, the following discussion took place (Tr. 65-66): “Mr. Simon: Mr. Richardson, you understand that at this time you enter this plea to the information. You understand what the information is, sir, don’t you? “The Defendant: Yes, sir. “Mr. Simon: You do not have to plead guilty, but you have a right to a trial if you desire one. “The Defendant: All right, sir. “Mr. Simon: If you desire the Court will entertain a plea of guilty and it will then be up to the Court to assess the punishment. “The Court: It will be up to the Court, if he is tried and found guilty. He should understand also that the Court imposes the penalty and not the jury. You understand that? . “Mr. Simon: You understand that, Mr. Richardson? “The Defendant: Yes, I am to plead guilty. “Mr. Simon: That is up to you, sir. “The Defendant: I enter a plea of guilty. “Mr. Simon: You wish to enter a plea of guilty? “The Defendant: Yes, sir. “Mr. Simon: Is that to all three counts ? “The Defendant: Yes, sir. “Mr. Simon: He wishes to enter a plea of guilty to all three counts, your Honor.” Before sentence the defendant’s attorney made a statement to the court in mitigation of the offenses. The statement shows his familiarity with the involved offenses and the defendant’s record. The defendant, upon his plea of guilty, was sentenced to two years imprisonment on each count, the sentences on counts 1 and 2 to run consecutively, and the sentence on count 3 to run concurrently with the sentence on count 2. Complaint is made about the March 16 arrest by the narcotic agents. The arrest was made in Missouri, and under Missouri law a private person may make an arrest on showing of actual commission of a felony and reasonable grounds to suspect the accused. No attack was made on this arrest in the original ease, and consequently no record has been made thereon. In view of the plea of guilty to this offense, it is extremely likely that the arrest was lawful. In any event, the defendant was lawfully arrested the following day under a proper warrant. Defendant likewise complains of a one-day delay in taking him before a magistrate, and alleged efforts of officers to coerce a confession during such period. No confession was introduced in evidence. B-y his plea of guilty defendant admitted all material allegations of the information. In Hood v. United States, 8 Cir., 152 F.2d 431, 436, this court said: “Appellants having entered their pleas of guilty, admitted all the facts charged in the indictment necessary to constitute the offense, and no other proof was necessary, nor was any other proof offered. * * * Whether any confession was obtained would seem to be quite immaterial in view of the fact that it was not used, and in view of the pleas of guilty voluntarily entered by appellants.” See also Friedman v. United States, 8 Cir., 200 F.2d 690. Defendant’s counsel in open court waived reading of the information. It is highly improbable that counsel would do this if he had not been furnished a copy of the information. Thereafter, the Government attorney read and explained each count of the information. Under such circumstances, the failure, if any, to provide defendant with a copy of the information was not a denial of due process. Merritt v. Hunter, 10 Cir., 170 F.2d 739; Ray v. United States, 5 Cir., 192 F.2d 658. The record in this case shows that the court fully complied with Rules of Criminal Procedure 7(b), 10, 11, and 32(a). Defendant was represented by competent counsel, and all his rights afforded by said rules were fully explained and protected. Defendant likewise complains that he should have been permitted to appear at the hearing in the trial court and afforded an opportunity to offer testimony as to coercion used upon him by the officers. The trial court properly found that the record in this case conclusively shows that the defendant was entitled to no relief. As herein-above pointed out, defendant, after having his rights fully explained and with the benefit of consultation with counsel, voluntarily entered a plea of guilty. The assertion of defendant as to coercion is rather weak, and is completely contradicted by the testimony of the officers. The conviction was not based on any confession, if there ever had been a confession, either in whole or in part. Defendant had a previous criminal record. lie had been advised by the court that the power of sentencing rested wholly with the court. In many respects the facts in this case come rather close to those in Hart v. United States, 8 Cir., 178 F.2d 357, in which case the court denied the defendant relief. Defendant also contends that there was error in refusing to permit him to withdraw his plea of guilty. A defendant who enters a plea of guilty has no legal right to withdraw the plea. An application to withdraw a plea of guilty is addressed to the sound discretion of the trial court, and is reviewable only for an abuse of discretion. The question of the defendant’s guilt or innocence need not be determined in such an application. Friedman v. United States, supra. There was no abuse of discretion in denying appellant’s application to withdraw his plea of guilty. We have carefully considered the record and the various matters urged by the defendant and fail to find that defendant has been deprived of any of his Constitutional rights. The order appealed from is affirmed. Question: What is the second most frequently cited federal rule of criminal procedure in the headnotes to this case? Answer with a number. Answer:
songer_casetyp1_7-2	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". The FROSTIE COMPANY, Appellant, v. DR. PEPPER COMPANY, Appellee. No. 21836. United States Court of Appeals Fifth Circuit. Feb. 12, 1965. Daphne Robert Leeds, Washington, D. C., Anthony Atwell, Dallas, Tex., David H. Semmes, John Gibson Semmes, Washington, D. C., Atwell, Grayson & Atwell, Dallas, Tex., Semmes & Semmes, Washington, D. C., for appellant. B. Thomas McElroy, W. D. White, White, McElroy & White, Dallas, Tex., for appellee. Before TUTTLE, Chief Judge, and BROWN and GEWIN, Circuit Judges. TUTTLE, Chief Judge: This is an appeal by the owner of the trademark “Frostie” when used in connection with the sale of a soft drink from an order of the trial court denying an injunction against infringement of its trademark and against unfair competition resulting from the use by the Dr. Pepper Company of the words “Frosty Pepper” prominently printed on the cartons of its soft drink product. The suit is brought under the Lanham Act, 15 U.S.C.A. §§ 1114-1119, 1121 and 1125 (a). The record disclosed without dispute that the appellant is the owner of the valid trademark Frostie which it acquired in connection with the sale of a root beer concentrate; that it had many franchised bottlers throughout the country including 45 independent bottlers franchised both by the appellant and the appellee. The products of both parties are used by bottlers to produce bottles of Frostie and Dr. Pepper respectively which are sold largely in six-pack cartons stacked up in the soft drink departments of supermarkets and other outlets. Prior to the acquisition of the trademark by appellant, the Dr. Pepper Company had used in its advertising copy, but not on the packages containing its bottles, the adjective “Frosty,” in suggesting that Dr. Pepper should be served cold such as “Dr. Pepper in a fresh, frosty bottle,” “chilled to a frosty turn,” “ice-cold bottles that come to you frosty and cold,” “get your Dr. Pepper frosty and cold.” Appellants do not contest’the right of the appellees to use such terminology in their advertising and sales promotion work, as, of course, they could not. In 1959 the appellee began using the words “Frosty Pep” on its cartons. These cartons also contained a picture of a bottle of Dr. Pepper being poured into a glass containing ice cream, and also on the opposite side contained the trademark Dr. Pepper and the words beneath it, “and ice cream.” It has ceased using the words “Frosty Pep” following litigation in which it was held that the word “pep” infringed the trademark of the Pepsi Cola Company. Subsequently, during the summer months the Dr. Pepper Company began using on its cartons the words “Frosty Pepper” together with a picture of a bottle of Dr. Pepper, a glass containing ice cream combined with a liquid, and with the words of the Dr. Pepper trademark and the words “and ice cream.” There was no substantial proof by the appellants of actual confusion, although appellant tendered in evidence proof that not infrequently bottles of Frostie were delivered by bottlers in cartons bearing the name Dr. Pepper. The court ruled out this evidence and other proof tending to link the products of the two parties together in the public mind. The court held that this evidence was inadmissible because it was not the act of the appellee. This was error. Once the mark is used by appellee, the tendency of that use to confuse the public may be shown. The question remains whether the prominent use of the words “Frosty Pepper,” embodying as it does, in effect, the entire trademark of the Frostie Company on the package that is put on display for the purpose of attracting customers, is a violation of the provisions of the Lanham Act. The trial court found “a ‘noun’ is a name of a person, place or thing. An ‘adjective’ is a word that describes a noun. ‘Pepper’ is a noun and is a name for Defendant’s drink. ‘Frosty’ is an adjective, meaning that which is cold or frozen, and when applied to ‘Pepper’ serves merely to modify, describe, or qualify such name as to condition or suggested use.” This finding is contrary to the testimony by the witnesses testifying for the Dr. Pepper Company and is clearly erroneous in that the words “Frosty Pepper” clearly, according to all of the evidence, describe a drink consisting of the Dr. Pepper with ice cream added. While it is true that the Dr. Pepper Company was not in the business of selling what is thus called a “Frosty Pepper,” it can not be doubted that the words “Frosty Pepper” designated an article, one of the ingredients of which was the article sold by the Dr. Pepper Company. It is equally clear that the word “Frosty” in the combination did not qualify the Dr. Pepper drink that was on sale. It can hardly be disputed that any person seeing a carton of soft drinks bearing the legend “Frosty Pepper” in prominent type who, for some reason, had learned of the existence of appellant’s drink “Frostie,” but without knowing the source or origin of the drink may well have been misled into picking up a carton of Dr. Pepper bearing such label. Obviously, appellee would not have used this legend had they not intended thereby to attract purchasers. To the extent that the attraction was based on the use of the word Frosty, the attraction was based on the use of appellant’s trademark. The finding by the trial court that such use was not likely to confuse the consumer, must necessarily have been based on the impermissible assumption that a prospective purchaser who was familiar with the trademark Frostie also knew that Frostie was not a product of the Dr. Pepper Company. Here was a direct appeal to persons who might be attracted by the term Frosty, or Frostie. To the extent that such attraction resulted from the exploitation by the appellee of appellant’s trademark Frostie, to which appellant had the exclusive right as a trademark for such bottled goods, this would be an infringement of appellant’s rights. This Court has, of course, held that an intent to infringe or an intent to mislead the public is not a necessary ingredient to an action such as this. American Foods, Inc. v. Golden Flake, Inc., .5 Cir., 312 F.2d 619. We have also held that proof of actual confusion is not required since under the terms of the Lanham Act the likelihood of confusion is the appropriate test. Abramson v. Coro, Inc., 5 Cir., 240 F.2d 854. In view of the difference in spelling here between Frostie and Frosty, the language used by this Court in the Abramson case is of particular significance. We there said: “The authorities are legion in holding that proof of actual deception is not needed to justify an injunction against the use of a trademark if it is of such a character or used in such a way as to be likely to deceive a prospective purchaser, and that similarity of sound as well as appearance may be taken into account in weighing this probability.” citing, LaTouraine Coffee Co. v. Lorraine Coffee Co., 2 Cir., 157 F.2d 115; George W. Luft Co. v. Zande Cosmetic Co., 2 Cir., 142 F.2d 536; Esso, Inc. v. Standard Oil Co., 8 Cir., 98 F.2d 1; Queen Manufacturing Co. v. Isaac Ginsberg & Bros., 8 Cir., 25 F.2d 284; S. S. Kresge Co. v. Champion Spark Plug Co., 6 Cir., 3 F.2d 415; Coca Cola Co. v. Old Dominion Beverage Corp., 4 Cir., 271 F. 600. Our detei’mination that the word Frosty does not describe the characteristics of Dr. Pepper is supported by a decision of the United States Court of Customs and Patent Appeals in the Frostie Company v. Sun-Glo Packers, Inc., 315 F.2d 932, 49 C.C.P.A. 983. In that case, the appellant here was opposing the registration of a trademax-k by SunGlo Paekei's, Inc. consisting of the words “Frosty Inn” when used in connection with a soft drink. The Court of Customs and Patent Appeals said, “We are in full agreement with the board [the trademark trial and appeal board] that neither ‘Frosty’ nor ‘Frostie’ describes any property of root beer or other soft drinks. Thus they are not desci-iptive.” Persuasive also in the decision of this case, the court there said, “Here, ‘Frosty Inn’ is applied to the same goods as those for which the ti'ademark ‘Frostie’ is registered. In px-actical effect the foi’mer incorporates the latter in its entirety.” The same is true here. The words Frosty Pepper “incorporates ‘Frostie’ in its entirety.” The trial court, in its discussion of nouns and adjectives, proceeded on the assumption that if the term Frosty in the wox"ds Frosty Pepper was anything other than descriptive of the article being sold by the appellee then, because of its identity with appellant’s trademark this would amount to an infringement. In this the trial court was correct. However, in deciding that the word Frosty was descriptive, the trial court was clearly in error. As indicated in the Lanham Act, it is a defense to an action if “the use of the name, term, or device charged to be an infringement is a use, otherwise than as a trade or service mark [ti’ademai'k,] * * * of a term or device which is descriptive of and used fairly and in good faith only to describe to users the goods * * * of such parties * * (Emphasis added.) “Frosty” does not describe to prospective users the goods sold by Dr. Pepper Company. It is a description of something else, as all parties agree. It is used in such a manner as to attract prospective customers to the product of the Dr. Pepper Company. Since such use of it incorporates the entire trademark of the appellant and can not be excused as being descriptive of the ap-pellee’s product, then it is, almost by definition, the equivalent of an infringing mark. In determining whether there was likelihood of confusion, a matter as to which there was no substantial evidence, we are of the view that a mere ocular examination of the two marks might permit the trial court to make its conclusion. However, all relevant evidence should be considered. Since it is impossible to determine from the record whether the trial judge admitted and considered all of the relevant evidence which was tendered on the issue of confusion, the case must be remanded for a factual inquiry into this question. In determining whether the appellee’s use of the words “Frosty Pepper” on its soft drink cartons is likely to confuse the consumer as to the source and origin of the goods, all the relevant evidence should have been considered by the trial court, including the exhibits of Dr. Pepper cartons and Frostie cartons containing the products of both of the parties. Indeed, as Callman points out: “The exhibit is of more potent evidentiary value than the testimony of witnesses.” 3 Callman, Unfair Competition and Trade-Marks 1576 (2d Ed. 1950). The court- must determine in its own opinion whether there is a likelihood of confusion, and it may not assume that the ordinary purchaser is thoroughly familiar with the products of the two parties. While all the tendered evidence is before us on appeal, we would prefer not to rely on an ocular examination by an appellate tribunal, but to leave to the district court, after a consideration of all the relevant evidence, the task of making an initial determination whether in the use of “Frosty Pepper” by appellee there is the requisite likelihood of confusion. The judgment of the trial court is, therefore, reversed and the ease is remanded for further proceedings not inconsistent with this opinion. . Tlie relevant provision is as follows: “Any person who shall, in commerce, (a) use, without the consent of the registrant, in the reproduction, counterfeit, copy or colorable imitation of any registered mark in connection with the sale, offering for sale, or advertising of any goods or services on or in connection with, which such use is likely to cause confusion or mistake or to deceive purchasers as to the source of origin of such goods or services * * * shall be liable to a civil action by the registrant * * . As stated by the Court of Appeals for the District of Columbia Circuit in Panitz, et al. v. University Clothes, Inc., 59 App.D.C. 299, 40 F.2d 811: “In our view, a mere ocular examination of the two marks leads to the conclusion that being devoted to goods of the same descriptive properties, they are sufficiently alike to cause confusion in trade and deceive purchasers, within the meaning of the rule announced * * * ” Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:
songer_casetyp1_7-2	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". John J. WOJCIECHOWSKI v. LONG-AIRDOX DIVISION OF MARMON GROUP, INC. a corporation and Marmon Group, Inc. a corporation, Appellants, v. PITTSBURGH COAL COMPANY DIVISION OF CONSOLIDATION COAL COMPANY. No. 72-1839. United States Court of Appeals, Third Circuit. Argued Sept. 14, 1973. Decided Nov. 29, 1973. Bernard J. McAuley, Wayman, Irvin, Trushel & McAuley, Pittsburgh, Pa., for appellants. Anthony J. Polito, Rose, Schmidt & Dixon, Pittsburgh, Pa., for Pittsburgh Coal Co. Saul Davis, Pittsburgh, Pa., for John J. Wojciechowski. Before BIGGS, ADAMS and RO-SENN, Circuit Judges. OPINION OF THE COURT • ROSENN, Circuit Judge. This is an appeal by the defendant manufacturer from an adverse jury verdict in a suit for personal injuries grounded solely upon the strict liability theory of Section 402(a) of the Restatement (Second) of Torts. Since we find appellant’s contentions of trial error without merit, we affirm. Plaintiff Wojciechowski was employed by the third party defendant, Pittsburgh Coal Company Division of Consolidated Coal Company (Employer). The Employer leased from defendant, Long-Air-dox Division of Marmon Group, Inc., (Long-Airdox), a number of identical compressed air blasting devices manufactured by Long-Airdox. The Long-Airdox system, a replacement for the older method of blasting with powder to release coal for mining, utilizes a sudden release of compressed air to fracture a coal seam. Air is compressed in a generator located on the company premises. The generator is connected by piping to a number of “blowdown valves,” each of which is in turn connected by about 125 feet of tubing to a single shell. The blowdown valve, regulating the air flow to and from the shell to which it is connected, actually consists of two separate control valves. The air supply valve, regulated by a lever, controls the flow of compressed air from the generator into the shell. The bleeder or air release valve, regulated by a removable hexagonal wrench, controls the return flow of air from the shell back to the valve and then into the atmosphere. The shell itself is about fourteen feet long and weighs about eighty pounds. During normal operation a trained, licensed employee, called a shot firer, opens the air release valve and closes the air supply valve, thereby releasing most compressed air from the shell. He then walks over to the coal face and inserts the shell into a hole previously made in the face. Assuring himself that no one is in the vicinity of the shell, he then returns to the blowdown valve. He uses the wrench (hex key) to shut the bleeder valve and he manually opens the air supply valve, the result being a build-up of compressed air in the shell. After approximately a half minute, the pressure in the shell reaches a predetermined level of approximately 8000 pounds per square inch. At that moment the air in the shell is released from the head with an explosive force sufficient to fracture the coal face in the vicinity. The shot firer, still at the blowdown valve, reverses the air flow by closing the air supply valve and opening the bleeder valve. The air remaining in the shell after the explosion makes a loud hissing noise as it returns from the shell through the pipe to the blowdown valve. The shot firer can then return to the coal face, place the shell into another previously made hole, and repeat the operation. It should be noted that the Airdox system has an automatic repeat feature; if the supply valve is kept open and the bleeder valve kept shut, the shell will fire continuously every half minute as the pressure in the shell rebuilds up to the predetermined level. The Employer’s safety regulations and Long-Airdox’s written and oral instructions to the Employer required that the entire operation be performed by a single person and that the shot firer take the hex key with him when he returned to the coal face to move the shell. The rule was intended to protect the person at the coal face. The shell at the coal face can not be seen from the site of the valve. If someone else remained with the hex key at the valve, the latter might through a mix-up in signals prematurely reset the valves and cause the shell to fire before the person at the face was in the clear. On the evening of Friday, September 1, 1967, plaintiff had fired two shots by himself without incident when his foreman, Davis, requested that plaintiff hurry the blasting, operation. Davis suggested that they work together in performing further firings. Plaintiff would stay at the coal face between shots, while Davis would remain at the valve and set off successive blasts. Plaintiff, who had been a shot firer since 1949, complied with Davis’ request even though he knew the procedure would violate company safety rules. The first two shots went off without incident, plaintiff placing the shell into holes in the coal face and stepping into the clear, and Davis then setting off a blast. Just before Davis set off the second blast, Baughman, on his way to the coal face where his job was to drill the holes for the shell, came up to Davis at the valve. Baughman waited there until Davis fired the shot. Baughman testified that he saw Davis then shut the supply valve and open the bleeder valve; he then heard the sound of air returning from the shell. Davis told Baughman that he had to leave the valve, but Baughman left the valve for the coal face with no knowledge of whether Davis actually left the valve. Meanwhile, after Davis’ second blast plaintiff returned to the shell. As he was placing the shell in the next hole, the shell gave a full force blast into his face causing him serious injury. The blast occurred in plain view of Baugh-man, who by that time was at the coal face. Although plaintiff had not heard any sound of air before the blast, immediately thereafter he heard the sound of air bleeding out of the shell. Several employees immediately went to aid plaintiff. However, there was no testimony concerning events at the blowdown valve between the time Baughman left the valve and four to five minutes after the succeeding blast. At that later time the bleeder valve was open as it should be following a blast; the wrench which controlled the valve and had been used by Davis was not there. The deposition of Davis, who died before trial, was read into evidence at the trial. Davis stated that after Baughman left the valve, he had walked away to speak to another employee, Spotty, who was dead at the time Davis gave his deposition. The same shell and valve were used without incident for the remainder of the Friday evening shift. The following morning, Taylor, the company safety expert, fired the shell several times without incident, finding no evidence of a defect which might have caused the accident. Taylor returned to the mine for the entire Sunday night and Monday night shifts to observe the firing of the suspect shell, and during those sixteen hours of continuous firings he saw no malfunction or anything else unusual. Plaintiff, who was precluded by the Workmen’s Compensation Act from bringing suit against his employer, Pittsburgh Coal, sued Long-Airdox in diversity on theories of strict products liability and also negligent design of the equipment allegedly causing the injury. Long-Airdox filed a third party action grounded in negligence for contribution by Pittsburgh Coal. Plaintiff abandoned his negligence theory before any testimony was taken, leaving only his strict liability claim to be tried. The strict liability claim was based on Section 402A of the Restatement (Second) of Torts (1965), which has been adopted by the Pennsylvania Supreme Court as the law of Pennsylvania. Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). That section states : (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. The Pennsylvania courts have also adopted Comment G to Section 402A, which provides that The burden of proof that the product was in a defective condition at the time that it left the hands of the particular seller is upon the injured plaintiff; and unless evidence can be produced which will support the conclusion that it was then defective, the burden is not sustained. Woods v. Pleasant Hills Motor Co., 219 Pa.Super. 381, 281 A.2d 649, 651 (1971). At the close of defendant’s case, the Employer’s motion for dismissal was granted. The dismissal was based on the court’s finding that the evidence would not support a finding by the jury that the accident was caused concurrently by a defect in the equipment as well as improper human intervention at the blowdown valve. The trial judge’s theory was that regardless of whether or not the Employer was negligent, the accident was caused either from the shell improperly exploding while the valves remained in the bleeding position, or else exploding, as it was designed to do, because someone at the valve fired the shell. Under neither of these alternatives would the Employer be liable for any damages, and its dismissal would avoid the possibility of an inconsistent verdict holding the defendants jointly liable. The jury, after being properly instructed on the elements of Section 402A liability, found against Long-Air-dox, the only remaining defendant. Damages of $120,000 were awarded at a separate hearing. Long-Airdox contends that the trial court erred by (1) permitting testimony concerning prior and subsequent incidents involving Airdox shells; (2) dismissing the action against the Employer on the ground that the possibility of concurrent causation of the accident was too speculative; (3) failing to instruct the jury on assumption of risk by plaintiff; (4) refusing to permit Long-Air-dox to call plaintiff’s expert as a witness or to permit Long-Airdox to introduce interrogatories answered by plaintiff’s expert, after plaintiff elected not to call the expert as his own witness; (5) prohibiting defendant’s counsel from asking Taylor, the company safety expert, his opinion as to the cause of the accident; and (6) refusing to answer a jury question relating to payment of Workmen’s Compensation, medical bills and disability income submitted during the jury deliberations. We consider these objections in turn. I. TESTIMONY CONCERNING PRIOR AND SUBSEQUENT INCIDENTS The trial judge permitted plaintiff and other Pittsburgh Coal employees to testify about several of their abnormal experiences with Airdox shells. Plaintiff himself testified that about three weeks before the accident in question, a sudden release of air from the shell with which he was working blew some powder into his eye, not embedding anything in his skin but requiring that his eye be cleaned out. He testified that on two other occasions, once while he was about to place a shell in a new hole and once while a shell was lying unconnected on the ground, he had seen the shell “poof” or “fizz” from the release of pressurized air. Spender, another Pittsburgh Coal employee, testified that on at least one occasion several weeks after the accident, apparently because of condensation blocking the line, air was released very slowly out of the bleeder valve. However, the shell was used without incident immediately after this slow bleeding. Finally, Duke, another employee, testified that several weeks after the accident he had seen an unattached Airdox shell with no apparent cause suddenly jump eighteen inches off the ground. Although there was no evidence that the shells involved in these incidents were the same shell that injured plaintiff, there was testimony that each of the shells was of identical design with the suspect shell. Furthermore, aside from being direct evidence that the suspect shell was itself defective, the testimony was intended to counter defendant’s contention that the shell design made impossible a misfiring caused by air retention. Such a contention could best be refuted by examples to the contrary, and defendant had full opportunity to cross-examine plaintiff’s witnesses to develop any significant differences in circumstances that it deemed relevant. Even now defendant does not state specifically how the differences in circumstances affect the probative value of the admittedly minor incidents to refute the defendant’s general contention that the shell design made misfiring impossible. In determining the admissibility of the testimony, we must apply Federal Rule of Civil Procedure 43(a) and give plaintiff the benefit of the more liberal of the Pennsylvania or federal rule. Under the circumstances, however, we need not decide whether there is any difference between the two standards. Under both the state and federal standards the trial court, acted within its discretion in admitting the testimony. II. SUFFICIENCY OF EVIDENCE TO SUPPORT JOINT CAUSATION We first note that defendant does not argue that there was insufficient evidence of a defect in the Airdox shell to properly submit the question of manufacturer liability itself to the jury. Although plaintiff has the burden of showing the existence of a defect, a malfunction may itself, in the absence of abnormal use and reasonable secondary causes, be sufficient evidence of a defect to make the existence of a defect a jury question. MacDougall v. Ford Motor Co., 214 Pa.Super. 384, 257 A.2d 676 (1969); Greco v. Bucciconi Engineering Co., 407 F.2d 87 (3d Cir. 1969). This permissible inference simply changes plaintiff’s burden (in the absence of significant independent proof of a defect to one of showing the likelihood that the accident was indeed caused by a malfunction. A plaintiff can satisfy this burden by negating the likelihood of other reasonable causes of the accident. We doubt that in the present case plaintiff has sufficiently negated the possibility that human error caused thé accident to allow the accident by itself to evidence a malfunction. See Woods v. Pleasant Hills Motor Co., 219 Pa.Super. 381, 281 A.2d 649, 656 (1971); Kaczmarek v. Mesta Machine Co., 463 F.2d 675 (3d Cir. 1972); Finnie v. Ford Motor Co., 331 F.Supp. 321 (W.D.Pa.1971); McMeekin v. Gimbel Bros., Inc., 223 F. Supp. 896 (W.D.Pa.1963). See also Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631, 640 (8th Cir. 1972). We need not decide the question, however, since it is not raised on this appeal nor was it properly raised at trial. We now come to defendant’s narrower point, namely that the Employer was improperly dismissed at the close of the evidence because, contrary to the trial court’s finding upon which the dismissal was necessarily based, the evidence would support a finding that the accident was jointly caused by a defect in the Airdox equipment and improper human intervention at the blowdown valve. After a careful review of the entire record, we agree with the trial judge that no such inference would have been permissible. The problem with such a finding of concurrent causation is that even if there were sufficient evidence in the record to support the finding of a defect, such a finding is permissible only in the absence of a finding of human intervention. Given a finding of human intervention at the blowdown valve, the accident does not in itself provide support for the finding of a malfunction, which is necessary to support the inference of a defect. Nor are we persuaded that there is enough independent evidence of a defect, aside from the happening of the accident, to permit a finding of a defect concurrently with a finding of human intervention at the valve. Taylor’s experiments on the suspect shell and valve were uncontradicted. Furthermore, the relatively minor incidents involving air retention by a shell, although of some probative value of a defect when combined with a permissible finding of a malfunction, are by themselves rather insubstantial evidence of a defect. None of the incidents involved the normal operational full force blast, and none therefore involved the rapid buildup of new air in a shell, as opposed to a residual release of air remaining after an explosion. III. THE ASSUMPTION OF RISK DEFENSE Defendant’s counsel initially requested an assumption of risk charge on the theory that when plaintiff violated safety regulations by operating the Airdox system together with Davis, he assumed the risk that someone at the valve would prematurely explode the shell. The trial judge thought the charge was superfluous, since assumption of this risk would be irrelevant under the only finding that would allow recovery, namely that the manufacturer alone caused the accident. Defendant’s counsel accepted this proposition and dropped his request for an assumption of risk charge. There is no contention that the trial judge did not charge in accordance with his statement which induced counsel to drop his request. By dropping the request, defendant waived his right to allege error on appeal. Federal Rules of Civil Procedure, Rule 51; Stilwell v. Hertz Drivurself Stations, 174 F.2d 714 (3d Cir. 1949). In any event, since we agree that the evidence would not support a finding of joint causation of the accident, we also agree that an assumption of risk charge would have been superfluous for the reason stated. IV. OTHER CONTENTIONS OF APPELLANT Plaintiff’s expert, Dr. Weinstein, was hired to support plaintiff’s original theory that the accident was due to negligent design of the Airdox equipment. When plaintiff entirely dropped the negligence theory before trial, the trial judge did not abuse his discretion in refusing to allow defendant to call plaintiff’s expert as his own witness. Defendant’s questioning would have inevitably distracted the jury from the primary issue by bringing up the irrelevant question of negligence. Nor did the trial judge abuse his discretion in prohibiting defendant’s counsel from asking Taylor his opinion as to the cause of the accident, since Taylor was not named as an expert as required by the pretrial rules of the court. In any event, defendant was not significantly prejudiced by the ruling, since he was allowed to present to the jury testimony of Taylor strongly implying that Taylor thought the accident was caused by human intervention. Finally, as to the contention that the trial judge should have answered the jury’s question concerning collateral medical benefits, appellant concedes that the court followed existing law. Gladden v. P. Henderson & Co., 385 F.2d 480, 483 (3d Cir. 1967), cert. denied, 390 U.S. 1013, 88 S.Ct. 1262, 20 L.Ed.2d 162 (1968). The judgment of the district court will be affirmed. . Taylor testified that he found a slight leakage in the supply valve, permitting some air to flow into the shell even when the valve was closed. However, Taylor said that when he also closed the bleeder valve, the shell did not fire during the six minutes he waited. He next opened the supply valve and also opened the bleeder valve halfway, sending some of the supply air into the shell and the rest directly out the bleeder valve. The shell did not fire during the three minutes that Taylor waited. ' When he then closed the bleeder valve, the shell fired as it should have. These experiments on the suspect shell provide almost conclusive evidence that the leak in the supply valve could not have caused the accident. . 77 P.S. § 481. Hartwell v. Allied Chemical Corp., 457 F.2d 1335, 1337 (3d Cir. 1972). Socha v. Metz, 385 Pa. 632, 123 A.2d 837, 839-840 (1956). . Such suits against third parties are permitted under Pennsylvania law. Hagans v. Ellerman & Bucknall Steamship Co., 318 F.2d 563, 580-582 (3d Cir. 1963). . Socha v. Metz, 385 Pa. 632, 123 A.2d 837, 840 (1956). . We must apply Pennsylvania choice of law rules in this diversity case. Since the accident in question and all significant contacts involve Pennsylvania, it is clear that Pennsylvania courts woud apply Pennsylvania law. Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964). . If the jury found Long-Airdox entirely responsible for causing the accident, the latter would of course have no right of contribution from the Employer. On the other hand, if the jury found the Employer entirely responsible, plaintiff’s suit against Long-Airdox fails and there is no recovery requiring contribution. See cases cited at notes 2-4 supra. The Employer was not dismissed at an earlier stage of the trial because of the possibility that Long-Airdox might introduce sufficient evidence to support a finding of joint causation. . Defendant’s counsel admitted to the court at the close of the evidence that “basically the only defense we have in this case [is] that it couldn’t have happened.” At no point did defendant request a statement by the judge to the jury that the other accidents were only evidence to counter defendant’s defense of impossibility, rather than affirmative evidence that the shell involved in the accident was defective. . See Bailey v. Kawasaki-Kisen, K.K., 455 F.2d 392, 396-397 (5th Cir. 1972), applying Rule 43(a) to the particular point. . Brandon v. People’s Natural Gas Co., 417 Pa. 128, 207 A.2d 843, 846-847 (1965) ; DiFrischia v. New York Central Ry. Co., 307 F.2d 473, 476 (3d Cir. 1962) ; Fenton v. McCrory Corp., 47 F.R.D. 260, 261 (W.D. Pa.1969). Compare Prashker v. Beech Aircraft Corp., 258 F.2d 602, 608-609 (3d Cir.), cert. denied, 358 U.S. 910, 79 S.Ct. 236, 3 L.Ed.2d 230 (1958), where statistical airplane accident reports were held inadmissible to show a design defect because of the strong possibility that the accidents were caused by pilot error. There is no contention in the present case that the other incidents were caused by external factors. Cf. Uitts v. General Motors Corp., 58 F.R.D. 450 (E.D.Pa.1972). . We find persuasive the reasoning in the following cases: Bailey v. Kawasaki-Kisen, K.K., 455 F.2d 392, 396-398 (5th Cir. 1972) ; Jones & Laughlin Steel Corp. v. Matherne, 348 F.2d 394, 400 (5th Cir. 1965) ; P.B. Mutrie Motor Transportation, Inc. v. Interchemical Corp., 378 F.2d 447, 450-451 (1st Cir. 1967). See Annotation, 42 A.L.R.3d 780. . Compare MacDougall v. Ford Motor Co., 214 Pa.Super. 384, 257 A.2d 676 (1969) ; Dennis v. Ford Motor Co., 471 F.2d 753 (3d Cir. 1973) ; Burchill v. Kearney-National Corp., 468 F.2d 384 (3d Cir. 1972) ; Kridler v. Ford Motor Co., 422 F.2d 1182 (3d Cir. 1970) ; Greco v. Bucciconi Engineering Co., 407 F.2d 87 (3d Cir. 1969) ; Frankel v. Lull Engineering Co., 334 F.Supp. 913 (E.D.Pa. 1971) , aff’d 470 F.2d 995 (3d Cir. 1973) ; McCann v. Atlas Supply Co., 325 F.Supp. 701 (W.D.Pa.1971) ; Duckworth v. Ford Motor Co., 211 F.Supp. 888 (E.D.Pa.1962), rev’d in part, 320 F.2d 130 (3d Cir. 1963). . It was after the jury verdict that defendant first raised the general question of sufficiency of the evidence, in its motion for a new trial or in the alternative a judgment notwithstanding the verdict. This was too late to preserve the point for appeal. Gebhardt v. Wilson Freight Forwarding Co., 348 F.2d 129 (3d Cir. 1965). We note that the question of sufficiency of the evidence to support the finding of a defect is independent of the question of sufficiency of the evidence that the product was unchanged from the time of sale to the time of the accident. Only if a defect is found at the time of the accident does the jury reach the question of whether the defect existed at the time of the sale. . We assume that, pursuant to a permissible finding of joint causation, a defendant liable under a strict liability theory would be entitled to contribution from a third party defendant liable under a negligence theory. This was the holding of Chamberlain v. Carborundum Co., 485 F.2d 31 (3d Cir. 1973), decided subsequent to the trial in question. . Defendant does not raise on appeal the further point that even if the trial court was correct in finding impermissible an inference of concurrent mechanical and human causation, the court nevertheless erred by thereupon dismissing the action against the employer and submitting to the jury the sole remaining issue of manufacturer liability. We therefore decline to consider this issue. Compare the procedure followed by the trial court in Jackson v. Ulrich Manufacturing Co., 44 F.R.D. 473 (E.D.Pa.1972), aff’d 485 F.2d 680, (3d Cir. 1973) and in Grasha v. Ingersoll-Rand Co., 439 Pa. 216, 266 A.2d 710 (1970). . The defendant did not request an instruction that under plaintiff’s evidence in support of his claim of prior malfunctions of Airdox shells plaintiff may have voluntarily assumed the risk of this alleged malfunction. Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:
songer_state	07	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". Dalleen RUCKER, Plaintiff-Appellant, Kathy Warner, Intervenor-Appellant, v. The SECRETARY OF the TREASURY OF the UNITED STATES, and The United States of America, Defendants-Appellees, Rosa Ortega, Intervenor. No. 83-1804. United States Court of Appeals, Tenth Circuit. Dec. 28, 1984. Glenn Meyers of Colorado Rural Legal Services, Inc., Denver, Colo. (Jacquelyn Higinbotham of Colorado Rural Legal Services, Inc., Fort Morgan, Colo., with him on the brief), for plaintiff-appellant and inter-venor-appellant. Jo-Ann Horn, Atty., Tax Div., Dept, of Justice, Washington, D.C. (Robert N. Miller, U.S. Atty., Denver, Colo., of counsel; Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup and Richard Farber, Attys., Tax Div., Dept, of Justice, Washington, D.C., with her on the brief), for defendants-appellees. Before SETH, BREITENSTEIN and SEYMOUR, Circuit Judges. SEYMOUR, Circuit Judge. Dalleen Rucker brought this class action against the Secretary of the Treasury and the United States, challenging the application to her of section 464 of the Social Security Act, 42 U.S.C. § 664 (1982). Kathy Warner subsequently joined the action as an intervenor. Plaintiffs alleged that the Secretary exceeded his statutory authority by withholding federal income tax refunds and earned income credits due them. They sought declaratory and injunc-tive relief. The district court dismissed Rucker’s claims as moot and also dismissed Warner’s intervenor claim. We reverse. I. BACKGROUND This case involves the federal-state intercept program authorized by section 2331 of the Omnibus Budget Reconciliation Act of 1981, Pub.L. No. 97-35, 95 Stat. 860 (1981) (Omnibus Act). Under this program, federal income tax refunds due a taxpayer may be transferred to a state to the extent of a taxpayer’s past-due child support obligations. Two provisions of the Omnibus Act are relevant here. The first is an amendment to the Social Security Act, 42 U.S.C. § 664 (1982), which provides for reimbursing states that have supported the taxpayer’s children through the Aid to Families with Dependent Children program (AFDC). Section 664(a) authorizes the Secretary of the Treasury to withhold “refunds of Federal taxes paid” which are due to a parent of children supported by AFDC, and to transfer these funds to an appropriate state agency to satisfy the parent’s child support obligation. The second provision is an amendment to section 6402 of the Internal Revenue Code, 26 U.S.C. § 6402(c) (1982), which implements the procedure authorized by section 664(a) and provides that “[t]he amount of any overpayment to be refunded to the person making the overpayment” shall be reduced by the amount of any past-due child support. Plaintiff Dalleen Rucker is a married woman and a Colorado resident. Her husband is indebted to the State of Colorado for his failure to make required support payments to the children of his prior marriage. In April 1982, Rucker and her husband filed a joint 1981 Federal income tax return, expecting to receive $1,124 back from the Internal Revenue Service. This sum consisted of an income tax refund and an earned income credit. In June 1982, the IRS notified the Ruckers by letter that this sum was being withheld to satisfy Mr. Rucker’s child support obligations. In August 1982, Rucker filed an amended tax return seeking a refund of that portion of the overpayment of income taxes and the earned income credit allocable to her. She subsequently received a refund of $126, which represented the entire amount of her excess wage withholdings and a portion of the earned income credit. Immediately after filing her amended tax return, and before receiving the $126 refund, Rucker brought this action claiming that defendants exceed their statutory authority by intercepting and withholding funds owed to a taxpayer who is the nonob-ligated spouse of a child support obligor. She also claimed that defendants’ taking money due to a married taxpayer to satisfy obligations of a spouse, without affording the taxpayer notice and an opportunity to contest the liability, is a taking of property without due process in violation of the Fifth Amendment. The district court dismissed plaintiffs’ claims on the grounds of mootness. Rucker v. Secretary of the Treasury, 555 F.Supp. 1051, 1053 (D.Colo.1983). The court held that Rucker’s Fifth Amendment and tax refund claims were moot because she had received her allocable share of the income tax refund. The court also ruled that earned income credits are subject to the intercept program and that Rucker’s earned income credit claim was also moot because she had received an allocable share of this credit. On appeal, Rucker raises only the issue whether earned income credits are subject to the intercept program and whether they lawfully can be withheld under section 664(a). II. MOOTNESS Defendants assert that there is no case or controversy to support federal court jurisdiction, as required by article III, section 2 of the United States Constitution, because Rucker has received her allocable share of the earned income credit. Defendants claim that it was unnecessary and purely advisory for the trial court to consider whether the earned income credit could be withheld under section 664, and that no justicable issue is presented to this court on appeal. See Golden v. Zwickler, 394 U.S. 103, 110, 89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969); Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962); Norvell v. Sangre de Cristo Development Co., 519 F.2d 370, 375 (10th Cir.1975); Oklahoma City, Oklahoma v. Dulick, 318 F.2d 830, 831 (10th Cir.1963). This argument misconceives the nature of Rucker’s claim. As we read Rucker’s complaint, she is clearly claiming that defendants have exceeded their statutory authority by withholding any of the earned income credit due to her and her husband as a family unit. The IRS refunded only what it determined to be the portion of the credit allocable to her alone. The remaining portion of the credit has not been refunded to the Ruckers and Mrs. Rucker’s claim to the remainder provides the necessary controversy needed to support federal court jurisdiction. In arguing to the contrary, defendants assume the very issue in this case: whether the earned income credit can be allocated among spouses and a portion of it withheld under section 664 to satisfy one spouse’s child support obligations. Consequently, Rucker’s claim is not moot. III. SOVEREIGN IMMUNITY Defendants argue that if Rucker’s claim is not moot, it is barred by her failure to comply with the jurisdictional requirements of the Internal Revenue Code, 26 U.S.C. § 7422(a) (1982), which provides that no suit may be maintained for the recovery of any tax until a claim for refund has been duly filed with the IRS. They argue that Rucker’s suit, instituted after her refund claim had been filed but prior to the expiration of the six-month period set forth in 26 U.S.C. § 6532(a)(1) (1982), is barred by the doctrine of sovereign immunity. See, e.g., Dieckmann v. United States, 550 F.2d 622, 623 (10th Cir.1977); United States v. Freedman, 444 F.2d 1387, 1388 (9th Cir. 1971), cert. denied, 404 U.S. 992, 92 S.Ct. 538, 30 L.Ed.2d 544 (1971); Oldland v. Kurtz, 528 F.Supp. 316, 322-23 (D.Colo. 1981). A number of courts have addressed this very issue in the context of challenges to the intercept program. Almost all have concluded that claims to withheld tax refunds and earned income credits are not barred by sections 7422(a) and 6532 of the Internal Revenue Code. See Nelson v. Regan, 731 F.2d 105, 109 (2d Cir.1984); Jahn v. Regan, 584 F.Supp. 399, 408 n. 17 (E.D.Mich.1984); Sorenson v. Secretary of the Treasury, 557 F.Supp. 729, 732-33 (W.D.Wash.1982), appeal docketed, No. 83-3694 (9th Cir. Mar. 23, 1983); cf. Marcello v. Regan, 574 F.Supp. 586, 594 (D.R.I. 1983) (26 U.S.C. § 7421(a) likewise does not bar these challenges); Coughlin v. Regan, 584 F.Supp. 697, 705-06 (D.Maine 1984) (same). But see Vidra v. Egger, 575 F.Supp. 1305, 1307-08 (E.D.Pa.1982). As these decisions recognize, the statutory language of section 7422(a) and the policies prohibiting judicial intervention in tax collection and assessment are not applicable to challenges to the intercept program. The intercept program operates only after tax assessment and collection, when the federal government ceases to have an interest in the tax refunds. Judicial review at this point will not interfere with or thwart the government’s ability to collect taxes or its need for steady and predictable tax revenues. See, e.g., Marcello, 574 F.Supp. at 594. Cf. Bob Jones University v. Simon, 416 U.S. 725, 736, 94 S.Ct. 2038, 2045, 40 L.Ed.2d 496 (1974). Accordingly, we conclude that plaintiffs’ claims for earned income credit benefits are not barred by sections 7422(a) and 6532 of the Internal Revenue Code. IV. EARNED INCOME CREDIT WITHHOLDING As noted above, 42 U.S.C. § 664(a) authorizes the Secretary of the Treasury to withhold “refunds of federal taxes paid” which are due to an obligated spouse. In addition, 26 U.S.C. § 6402(c) provides that the amount of any “overpayment to be refunded to the person making the overpayment” shall be reduced by the amount of past-due child support. Rucker asserts that the earned income credit is neither a “refund of federal taxes” nor an “overpayment” within the meaning of these two statutory provisions, and thus is not subject to withholding in the intercept program. The earned income credit is a benefit available to certain families with dependent children and with an earned family income of less than $10,000 per year. See 26 U.S.C. § 43 (1982). The maximum credit allowed is $500. It is reduced proportionately as the adjusted gross family income increases above $6000, dropping to zero at $10,000. It was designed to provide relief to low income families who pay little or no income tax, and it was intended to provide an incentive for low income people to work rather than to receive federal assistance. See S.Rep. No. 94-36, 94th Cong., 1st Sess. 11 (1975), reprinted in 1975 U.S.Code Cong. & Ad.News 54, 63-64. While the credit benefits are distributed through the tax refund process, a recipient need not have owed or paid any taxes to be eligible. See Nelson, 731 F.2d at 109; In re Searles, 445 F.Supp. 749, 752-53 (D.Conn.1978). A refund of federal taxes is a repayment of money paid by a taxpayer in excess of that taxpayer’s liability. Although the earned income credit is given effect through the income tax return, the credit is not a tax refund because eligibility for the credit is not contingent upon payment of any federal income tax. Id.; In re Hurles, 31 B.R. 179, 180 (Bankr.S.D.Ohio 1983). Section 664(a), which authorizes interception only of “refunds of federal taxes paid,” does not itself authorize interception of the earned income credit. Defendants argue, however, that while section 664(a) may not authorize the withholding of earned income credits, such withholding is expressly authorized by section 6402(c) of the Internal Revenue Code because the earned income credit is an “overpayment” subject to interception. They point out that section 6401 of the Internal Revenue Code, 26 U.S.C. § 6401, defines “overpayment” to include the excess of an earned income credit over tax liability, and that this excess exists even when there is no tax liability. Rucker counters that because section 6402(c) only authorizes an offset against an “overpayment to be refunded to the person making the overpayment,” the earned income credit is not an “overpayment” that can be withheld under section 6402(c). Courts that have faced this issue have reached conflicting results. Compare Nelson, 731 F.2d at 111-12 (the earned income credit is not subject to interception under 26 U.S.C. § 6402(c)) with Coughlin, 584 F.Supp. at 706-07 (26 U.S.C. § 6402(c) authorizes interception of the earned income credit), and Sorenson, 557 F.Supp. at 733-34 (W.D.Wash.1983) (same). For the reasons set forth below, we believe the Second Circuit’s decision in Nelson is the better view. As the Nelson court notes, the term “overpayment,” broadly defined in section 6401 but limited in section 6402 by the phrase “to be refunded to the person making the overpayment,” is ambiguous with regard to the earned income credit. Section 6401 is a general provision in the chapter on Abatements, Credits, and Refunds of the Internal Revenue Code, governing the tax refund process. See Nelson, 731 F.2d at 111. Section 6402(c) and section 664(a), on the other hand, were both enacted as part of the Omnibus Act, which established the tax intercept program. Id. Interpreting the term “overpayment” in section 6402(c) so as not to include the earned income credit results in consistency with section 664(a) which authorizes only withholding of federal tax refunds. Moreover, we believe that this interpretation furthers the congressional purpose in enacting the earned income credit. Reducing the amount of the earned income credit due to a low income working family would reduce the family members’ incentive to work, and would frustrate the congressional goals of providing relief to low income families, encouraging work, reducing dependence on federal assistance, and stimulating the economy. See id. at 111-12; cf., In re Searles, 455 F.Supp. at 752-53 (discussing the adverse effects of including the credit in a bankrupt’s property). Defendants claim and the district court agreed, that the tax intercept program’s goal of enforcing child support obligations should take priority over the policies underlying the earned income credit. See Rucker, 555 F.Supp. at 1053. We are not persuaded. The intercepted funds are not paid to support the obligated taxpayer’s child but to reimburse a state for its support of that child in the past. The earned income credit, on the other hand, directly benefits the dependent children of the low income taxpayer. In the absence of evidence that Congress intended such a substantial cutback on the earned income credit program, we interpret the intercept legislation before us so as to avoid both conflict between the provisions of the Omnibus Act and a result clearly at odds with the goals of the earned income credit program. We hold that 26 U.S.C. § 6402 and 42 U.S.C. § 664 do not authorize the withholding of any portion of the earned income credit due an otherwise eligible recipient. The judgment is reversed and remanded to the district court for further proceedings. . 42 U.S.C. § 602(a)(26) (1982) requires the parent to whom child support payments are due to assign the right to such payments to a state as a precondition to AFDC eligibility in that state. . 42 U.S.C. § 664(a) provides: “Upon receiving notice from a State agency administering a plan approved under this part that a named individual owes past-due support which has been assigned to such State pursuant to section 602(a)(26) of this title, the Secretary of the Treasury shall determine whether any amounts, as refunds of Federal taxes paid, are payable to such individual (regardless of whether such individual filed a tax return as a married or unmarried individual). If the Secretary of the Treasury finds that any such amount is payable, he shall withhold from such refunds an amount equal to the past-due support, and pay such amount to the State agency (together with notice of the individual’s home address) for distribution in accordance with section 657(b)(3) of this title." . 26 U.S.C. § 6402(c) provides: "The amount of any overpayment to be refunded to the person making the overpayment shall be reduced by the amount of any past-due support (as defined in section 464(c) of the Social Security Act) owed by that person of which the Secretary has been notified by a State in accordance with section 464 of the Social Security Act. The Secretary shall remit the amount by which the overpayment is so reduced to the State to which such support has been assigned and notify the person making the overpayment that so much of the overpayment as was necessary to satisfy his obligation for past-due support has been paid to the State. This subsection shall be applied to an overpayment prior to its being credited to a person’s future liability for an internal revenue tax." . Mr. Rucker’s former wife assigned her right to support payments to the State of Colorado. See note 1, supra. . The refund to Rucker consisted of $31 in excess wage withholdings and $95 of the earned income credit. The record does not reflect the dollar amount of the earned income credit withheld to satisfy Mr. Rucker’s support obligation. We assume that some portion of the credit was withheld, inasmuch as the defendants concede that Rucker received only a "proportionate” share. Appellees' Brief at 4; see Rucker v. Secretary of the Treasury, 555 F.Supp. 1051, 1052-53 (D.Colo.1983). . The court also dismissed intervenor Warner's claims. Warner had not received from the IRS any portion of the earned income credit to which she claimed entitlement. The court apparently reasoned that having adopted the allegations of Rucker’s complaint, Warner lacked independent jurisdictional grounds once Ruck-er’s claim was dismissed as moot. In light of our decision concerning the dismissal of Ruck-er’s claim, we need not reach this issue. . 26 U.S.C. § 6532(a)(1) provides: "No suit or proceeding under section 7422(a) for the recovery of any internal revenue tax, penalty, or other sum, shall be begun before the expiration of 6 months from the date of filing-the claim required under such section unless the Secretary renders a decision thereon within that time, nor after the expiration of 2 years from the date of mailing by certified mail or registered mail by the Secretary to the taxpayer of a notice of the disallowance of the part of the claim to which the suit or proceeding relates.” . 26 U.S.C. § 6401 provides in pertinent part: (b) If the amount allowable as credits under section ... 43 (relating to earned income credit) exceeds the tax imposed by subtitle A ... the amount of such excess shall be considered an overpayment.” 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_casesource	031	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. MILLER v. ALBRIGHT, SECRETARY OF STATE No. 96-1060. Argued November 4, 1997 Decided April 22, 1998 Stevens, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, G. J., joined. O’Connor, J., filed an opinion concurring in the judgment, in which Kennedy, J., joined, post, p. 445. Sc ALIA, J., filed an opinion concurring in the judgment, in which Thomas, J., joined, post, p. 452. Ginsburg, J., filed a dissenting opinion, in which Souter and Breyer, JJ., joined, post, p. 460. Breyer, J., filed a dissenting opinion, in which Souter and Ginsburg, JJ., joined, post, p. 471. Donald Ross Patterson argued the cause and filed briefs for petitioner. Deputy Solicitor General Kneedler argued the cause for respondent. With him on the brief were Acting Solicitor General Dellinger, Assistant Attorney General Hunger, Edward C. DuMont, Michael Jay Singer, and John S. Koppel Walter A. Smith, Jr., St&ven B. Shapiro, Lucas Guttentag, Sara L. Mandelbaum, and Martha Davis filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal. Justice Stevens announced the judgment of the Court and delivered an opinion, in which The Chief Justice joins. There are “two sources of citizenship, and two only: birth and naturalization.” United States v. Wong Kim Ark, 169 U. S. 649, 702 (1898). Within the former category, the Fourteenth Amendment of the Constitution guarantees that every person “born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.” 169 U. S., at 702. Persons not born in the United States acquire citizenship by birth only as provided by Acts of Congress. Id., at 703. The petitioner in this case challenges the constitutionality of the statutory provisions governing the acquisition of citizenship at birth by children born out of wedlock and outside of the United States. The specific challenge is to the distinction drawn by §309 of the Immigration and Nationality Act (INA), 66 Stat. 238, as amended, 8 U. S. C. § 1409, between the child of an alien father and a citizen mother, on the one hand, and the child of an alien mother and a citizen father, on the other. Subject to residence requirements for the citizen parent, the citizenship of the former is established at birth; the citizenship of the latter is not established unless and until either the father or his child takes certain affirmative steps to create or confirm their relationship. Petitioner contends that the statutory requirement that those steps be taken while the child is a minor violates the Fifth Amendment because the statute contains no limitation on the time within which the child of a citizen mother may prove that she became a citizen at birth. We find no merit in the challenge because the statute does not impose any limitation on the time within which the members of either class of children may prove that they qualify for citizenship. It does establish different qualifications for citizenship for the two classes of children, but we are persuaded that the qualifications for the members of each of those classes, so far as they are implicated by the facts of this case, are well supported by valid governmental interests. We therefore conclude that the statutory distinction is neither arbitrary nor invidious. I Petitioner was born on June 20,1970, in Angeles City, Republic of the Philippines. The records of the Local Civil Registrar disclose that her birth was registered 10 days later, that she was named Lorena Peñero, that her mother was Luz Peñero, a Filipino national, and that her birth was “illegitimate.” Spaces on the form referring to the name and the nationality of the father are blank. Petitioner grew up and received her high school and college education in the Philippines. At least until after her 21st birthday, she never lived in the United States. App. 19. There is no evidence that either she or her mother ever resided outside of the Philippines. Petitioner’s father, Charlie Miller, is an American citizen residing in Texas. He apparently served in the United States Air Force and was stationed in the Philippines at the time of petitioner’s conception. Id., at 21. He never married petitioner’s mother, and there is no evidence that he was in the Philippines at the time of petitioner’s birth or that he ever returned there after completing his tour of duty. In 1992, Miller filed a petition in a Texas court to establish his relationship with petitioner. The petition was unopposed and the court entered a “Voluntary Paternity Decree” finding him “to be the biological and legal father of Lorelyn Pe-ñero Miller.” The decree provided that “[t]he parent-child relationship is created between the father and the child as if the child were born to the father and mother during marriage.” App. to Pet. for Cert. 38. In November 1991, petitioner filed an application for registration as a United States citizen with the State Department. The application was denied in March 1992, and petitioner reapplied after her father obtained the paternity decree in Texas in July 1992. The reapplication was also denied on the ground that the Texas decree did not satisfy “the requirements of Section 309(a)(4) INA, which requires that a child born out of wedlock be legitimated before age eighteen in order to acquire U. S. citizenship under Section 301(g) INA (formerly Section 301(a)(7) INA).” Id., at 33. In further explanation of its reliance on § 309(a)(4), the denial letter added: “Without such legitimation before age eighteen, there is no legally recognized relationship under the INA and the child acquires no rights of citizenship through an American citizen parent.” Ibid. II In 1993, petitioner and her father filed an amended complaint against the Secretary of State in the United States District Court for the Eastern District of Texas, seeking a judgment declaring that petitioner is a citizen of the United States and that she therefore has the right to possess an American passport. They alleged that the INA’s different treatment of citizen mothers and citizen fathers violated Mr. Miller’s “right to equal protection under the laws by utilizing the suspect classification of gender without justification.” App. 11. In response to a motion to dismiss filed by the Government, the District Court concluded that Mr. Miller did not have standing and dismissed him as a party. Because venue in Texas was therefore improper, see 28 U. S. C. § 1391(e), the court transferred the case to the District Court for the District of Columbia, the site of the Secretary’s residence. The Government renewed its motion in that forum, and that court concluded that even though petitioner had suffered an injury caused by the Secretary’s refusal to register her as a citizen, the injury was not “redressable” because federal courts do not have the power to “grant citizenship.” 870 F. Supp. 1, 3 (1994) (citing INS v. Pangilinan, 486 U. S. 875, 884 (1988)). The Court of Appeals for the District of Columbia Circuit affirmed, but on different grounds. It first held that petitioner does have standing to challenge the constitutionality of 8 U. S. C. § 1409(a). If her challenge should succeed, the court could enter a judgment declaring that she was already a citizen pursuant to other provisions of the INA. 96 F. 3d 1467, 1470 (1996)..On the merits, however, the court concluded that the requirements imposed on the “illegitimate” child of an American citizen father, but not on the child of a citizen mother, were justified by the interest in fostering the child’s ties with this country. It explained: “[W]e conclude, as did the Ninth Circuit, that ‘a desire to promote early ties to this country and to those relatives who are citizens of this country is not a[n irrational basis for the requirements made by5 sections 1409(a)(3) and (4). Ablang [v. Reno], 52 F. 3d at 806. Furthermore, we find it entirely reasonable for Congress to require special evidence of such ties between an illegitimate child and its father. A mother is far less likely to ignore the child she has carried in her womb than is the natural father, who may not even be aware of its existence. As the Court has recognized,'mothers and fathers of illegitimate children are not similarly situated.’ Parham v. Hughes, 441 U. S. 347, 355 (1979). 'The putative father often goes his way unconscious of the birth of the child. Even if conscious, he is very often totally unconcerned because of the absence of any ties to the mother.’ Id. at 355 n. 7 (internal quotation marks and citation omitted). This sex-based distinction seems especially warranted where, as here, the applicant for citizenship was fathered by a U. S. serviceman while serving a tom' of duty overseas.” Id., at 1472. Judge Wald concurred in the judgment despite her opinion that there is “no rational basis for a law that requires a U. S. citizen fathei’, but not a U. S. citizen mother, to formally legitimate a child before she reaches majority as well as agree in writing to provide financial support until that date or forever forfeit the right to transmit citizenship.” Id., at 1473. While she agreed that “requiring some sort of minimal 'family ties’ between parent and child, as well as fostering an early connection between child and country, is rational government policy,” she did not agree that those goals justify “a set of procedural hurdles for men — and only men — who wish to confer citizenship on their children.” Id., at 1474. She nevertheless regretfully concurred in the judgment because she believed that our decision in Fiallo v. Bell, 430 U. S. 787 (1977), required the court to uphold the constitutionality of. § 1409. 96 F. 3d, at 1473. We granted certiorari to address the following question: “Is the distinction in 8 U. S. C. § 1409 between ‘illegitimate’ children of United States citizen mothers and ‘illegitimate’ children of United States citizen fathers a violation of the Fifth Amendment to the United States Constitution?” 520 U. S. 1208 (1997). III Before explaining our answer to the single question that we agreed to address, it is useful to put to one side certain issues that need not be resolved. First, we need not decide whether Fiallo v. Bell dictates the outcome of this case, because that case involved the claims of several aliens to a special immigration preference, whereas here petitioner claims that she is, and for years has been, an American citizen. Additionally, Fiallo involved challenges to the statutory distinctions between “illegitimate” and “legitimate” children, which are not encompassed in the question presented in this ease and which we therefore do not consider. The statutory provision at issue in this case, 8 U. S. C. § 1409, draws two types of distinctions between citizen fathers and citizen mothers of children born out of wedlock. The first relates to the class of unmarried persons who may transmit citizenship at birth to their offspring, and the second defines the affirmative steps that are required to transmit such citizenship. With respect to the eligible class of parents, an unmarried father may not transmit his citizenship to a child born abroad to an alien mother unless he satisfies the residency requirement in § 1401(g) that applies to a citizen parent who is married to an alien. Under that provision, the citizen parent must have resided in the United States for a total of at least five years, at least two of which were after attaining the age of 14 years. If the citizen parent is an unmarried mother, however, § 1409(c) rather than § 1401(g) applies; under that subsection she need only have had one year of continuous residence in the United States in order to confer citizenship on her offspring. Since petitioner’s father satisfied the residency requirement in § 1401(g), the validity of the distinction between that requirement and the unusually generous provision in § 1409(c) is not at issue. As for affirmative steps, § 1409(a), as amended in 1986, imposes four requirements concerning unmarried citizen fathers that must be satisfied to confer citizenship “as of the date of birth” on a person born out of wedlock to an alien mother in another country. Citizenship for such persons is established if: “(1) a blood relationship between the person and the father is established by clear and convincing evidence, “(2) the father had the nationality of the United States at the time of the person’s birth, “(3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and “(4) while the person is under the age of 18 years— “(A) the person is legitimated under the law of the person’s residence or domicile, “(B) the father acknowledges paternity of the person in writing under oath, or “(C) the paternity of the person is established by adjudication of a competent court.” 8 U. S. C. § 1409(a). Only the second of these four requirements is expressly included in § 1409(c), the provision applicable to unwed citizen mothers. See n. 7, supra. Petitioner, relying heavily on Judge Wald’s separate opinion below, argues that there is no rational basis for imposing the other three requirements on children of citizen fathers but not citizen mothers. The first requirement is not at issue here, however, because the Government does not question Mr. Miller’s blood relationship with petitioner. Moreover, even though the parties have disputed the validity of the third condition — and even though that condition is repeatedly targeted in Justice Breyer’s dissent — we need not resolve that debate because it is unclear whether the requirement even applies in petitioner’s case; it was added in 1986, after her birth, and she falls within a special interim provision that allows her to elect application of the preamendment § 1409(a), which required only legitimation before age 21. See n. 3, swpra. And even if the condition did apply to her claim of citizenship, the State Department’s refusal to register petitioner as a citizen was expressly based on § 1409(a)(4). Indeed, since that subsection is written in the disjunctive, it is only necessary to uphold the least onerous of the three alternative methods of compliance to sustain the Government’s position. Thus, the only issue presented by the facts of this ease is whether the requirement in § 1409(a)(4) — that children born out of wedlock to citizen fathers, but not citizen mothers, obtain formal proof of paternity by age 18, either through legitimation, written acknowledgment by the father under oath, or adjudication by a competent court — violates the Fifth Amendment. It is of significance that the petitioner in this ease, unlike the petitioners in Fiallo, see 430 U. S., at 790, and n. 3, is not challenging the denial of an application for special status. She is contesting the Government’s refusal to register and treat her as a citizen. If she were to prevail, the judgment in her favor would confirm her pre-existing citizenship rather than grant her rights that she does not now possess. We therefore agree with the Court of Appeals that she has standing to invoke the jurisdiction of the federal courts. See 96 F. 3d, at 1469-1470 (distinguishing INS v. Pangilinan, 486 U. S. 875 (1988)). Moreover, because her claim relies heavily on the proposition that her citizen father should have the same right to transmit citizenship as would a citizen mother, we shall evaluate the alleged discrimination against him as well as its impact on her. See, e. g., Craig v. Boren, 429 U. S. 190, 193-197 (1976). IV Under the terms of the INA, the joint conduct of a citizen and an alien that results in conception is not sufficient to produce an American citizen, regardless of whether the citizen parent is the male or the female partner. If the two parties engage in a second joint act — if they agree to marry one another — citizenship will follow. The provision at issue in this ease, however, deals only with cases in which no relevant joint conduct occurs after conception; it determines the ability of each of those parties, acting separately, to confer citizenship on a child born outside of the United States. If the citizen is the unmarried female, she must first choose to carry the pregnancy to term and reject the alternative of abortion — an alternative that is available by law to many, and in reality to most, women around the world. She must then actually give birth to the child. Section 1409(e) rewards that choice and that labor by conferring citizenship on her child. If the citizen is the unmarried male, he need not participate in the decision to give birth rather than to choose an abortion; he need not be present at the birth; and for at least 17 years thereafter he need not provide any parental support, either moral or financial, to either the mother or the child, in order to preserve his right to confer citizenship on the child pursuant to § 1409(a). In order retroactively to transmit his citizenship to the child as of the date of the child’s birth, all that § 1409(a)(4) requires is that he be willing and able to acknowledge his paternity in writing under oath while the child is still a minor. 8 U. S. C. § 1409(a)(4)(B). In fact, § 1409(a)(4) requires even less of the unmarried father— that provision is alternatively satisfied if, before the child turns 18, its paternity “is established by adjudication of a competent court.” § 1409(a)(4)(C). It would appear that the child could obtain such an adjudication absent any affirmative act by the father, and perhaps even over his express objection. There is thus a vast difference between the burdens imposed on the respective parents of potential citizens born out of wedlock in a foreign land. It seems obvious that the burdens imposed on the female citizen are more severe than those imposed on the male citizen by § 1409(a)(4), the only provision at issue in this case. It is nevertheless argued that the male citizen and his offspring are the victims of irrational discrimination because § 1409(a)(4) is the product of “ ‘overbroad stereotypes about the relative abilities of men and women.’” Brief for Petitioner 8. We find the argument singularly unpersuasive. Insofar as the argument rests on the fact that the male citizen parent will "forever forfeit the right to transmit citizenship” if he does not come forward while the child is a minor, whereas there is no limit on the time within which the citizen mother may prove her blood relationship, the argument overlooks the difference between a substantive condition and a procedural limitation. The substantive conduct of the unmarried citizen mother that qualifies her child for citizenship is completed at the moment of birth; the relevant conduct of the unmarried citizen father or his child may occur at any time within 18 years thereafter. There is, however, no procedural hurdle that limits the time or the method by which either parent (or the child) may provide the State Department with evidence that the necessary steps were taken to transmit citizenship to the child. The substantive requirement embodied in § 1409(a)(4) serves, at least in part, to ensure that a person born out of wedlock who claims citizenship by birth actually shares a blood relationship with an American citizen. As originally enacted in 1952, § 1409(a) required simply that “the paternity of such child [born out of wedlock] is established while such child is under the age of twenty-one years by legitimation.” 66 Stat. 238. The section offered no other means of proving a biological relationship. In 1986, at the same time that it modified the INA provisions at issue in Fiallo in favor of unmarried fathers and their out-of-wedlock children, see n. 4, supra, Congress expanded § 1409(a) to allow the two other alternatives now found in subsections (4)(B) and (4)(C). Pub. L. 99-653, § 13, 100 Stat. 3657. The purpose of the amendment was to “simplify and facilitate determinations of acquisition of citizenship by children born out of wedlock to an American citizen father, by eliminating the necessity of determining the father’s residence or domicile and establishing satisfaction of the legitimation provisions of the jurisdiction.” Hearings, at 150. The 1986 amendment also added § 1409(a)(1), which requires paternity to be established by clear and convincing evidence, in order to deter fraudulent claims; but that standard of proof was viewed as an ancillary measure, not a replacement for proof of paternity by legitimation or a formal alternative. See id., at 150, 155. There is no doubt that ensuring reliable proof of a biological relationship between the potential citizen and its citizen parent is an important governmental objective. See Trimble v. Gordon, 430 U. S. 762, 770-771 (1977); Fiallo, 430 U. S., at 799, n. 8. Nor can it be denied that the male and female parents are differently situated in this respect. The blood relationship to the birth mother is immediately obvious and is typically established by hospital records and birth certificates; the relationship to the unmarried father may often be undisclosed and unrecorded in any contemporary public record. Thus, the requirement that the father make a timely written acknowledgment under oath, or that the child obtain a court adjudication of paternity, produces the rough equivalent of the documentation that is already available to evidence the blood relationship between the mother and the child. If the statute had required the citizen parent, whether male or female, to obtain appropriate formal documentation within 30 days after birth, it would have been “gender-neutral” on its face, even though in practical operation it would disfavor unmarried males because in virtually every case such a requirement would be superfluous for the mother. Surely the fact that the statute allows 18 years in which to provide evidence that is comparable to what the mother provides immediately after birth cannot be viewed as discriminating against the father or his child. Nevertheless, petitioner reiterates the suggestion that it is irrational to require a formal act such as a written acknowledgment or a court adjudication because the advent of reliable genetic testing folly addresses the problem of proving paternity, and subsection (a)(1) already requires proof of paternity by clear and convincing evidence. See 96 P. 3d, at 1474. We respectfully disagree. Nothing in subsection (a)(1) requires the citizen father or his child to obtain a genetic paternity test. It is difficult, moreover, to understand why signing a paternity acknowledgment under oath prior to the child’s 18th birthday is more burdensome than obtaining a genetic test, which is relatively expensive, normally requires physical intrusion for both the putative father and child, and often is not available in foreign countries. Congress could fairly conclude that despite recent scientific advances, it still remains preferable to require some formal legal act to establish paternity, coupled with a clear-and-eonvincing evidence standard to deter fraud. The time limitation, in turn, provides assurance that the formal act is based upon reliable evidence, and also deters fraud. Congress is of course free to revise its collective judgment and permit genetic proof of paternity rather than requiring some formal legal act by the father or a court, but the Constitution does not now require any such change. Section 1409 also serves two other important purposes that are unrelated to the determination of paternity: the interest in encouraging the development of a healthy relationship between the citizen parent and the child while the child is a minor; and the related interest in fostering ties between the foreign-born child and the United States. When a child is born out of wedlock outside of the United States, the citizen mother, unlike the citizen father, certainly knows of her child’s existence and typically will have custody of the child immediately after the birth. Such a child thus has the opportunity to develop ties with its citizen mother at an early age, and may even grow up in the United States if the mother returns. By contrast, due to the normal interval of nine months between conception and birth, the unmarried father may not even know that his child exists, and the child may not know the father’s identity. Section 1409(a)(4) requires a relatively easy, formal step by either the citizen father or his child that shows beyond doubt that at least one of the two knows of their blood relationship, thus assuring at least the opportunity for them to develop a personal relationship. The facts of this very ease provide a ready example of the concern. Mr. Miller and petitioner both failed to take any steps to establish a legal relationship with each other before petitioner’s 21st birthday, and there is no indication in the record that they had any contact whatsoever before she applied fór a United States passport. Given the size of the American military establishment that has been stationed in various parts of the world for the past half century, it is reasonable to assume that this case is not unusual. In 1970, when petitioner was born, about 683,000 service personnel were stationed in the Far East, 24,000 of whom were in the Philippines. U. S. Dept. of Commerce, Statistical Abstract of the United States 381 (99th ed. 1978). Of all Americans in the military at that time, only one percent were female. These figures, coupled with the interval between conception and birth and the fact that military personnel regularly return to the United States when a tour of duty ends, suggest that Congress had legitimate concerns about a class of children born abroad out of wedlock to alien mothers and to American servicemen who would not necessarily know about, or be known by, their children. It was surely reasonable when the INA was enacted in 1952, and remains equally reasonable today, for Congress to condition the award of citizenship to such children on an act that demonstrates, at a minimum, the possibility that those who become citizens will develop ties with this country — a requirement that performs a meaningful purpose for citizen fathers but normally would be superfluous for citizen 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. 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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_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. ATLANTIC COAST LINE R. CO. v. HADLOCK et al. No. 12592. United States Court of Appeals Fifth Circuit. Jan. 10, 1950. Rehearing Denied March 2, 1950. John G. Baker, Orlando, Fla., LeRoy B. Giles, Orlando, Fla., Charles Cook Howell, Wilmington, North Carolina, for appellant. Clark W. Jennings, Orlando, Fla., for appellees. Before HOLMES, WALLER, and SIB-LEY, Circuit Judges. SIBLEY, Circuit Judge. A train of appellant Atlantic Coast Line R. Co., shortly after midnight running through the railroad yard limits and in the edge of the incorporated town of Newberry in Florida, collided with the automobile of appellee Hadlock which was approaching the tracks on U. S. Highway 41. Had-lock and his driver, appellee Owens, were severely injured and the automobile ruined. Their two suits for damages were consolidated for trial, and by stipulation are also consolidated in this appeal. The jury found verdicts for reduced damages, finding in answer to special questions that the train was operated in a negligent manner, this negligence contributing directly to the injury; that the driver of the automobile was also neligent in its operation, his negligence contributing directly to the injury; and that the proportion of the negligence was 80 percent to< the driver and 20 percent to the defendant. The damages were reduced accordingly. Errors specified on appeal are the refusal of the court to instruct a verdict for the defendant; the refusal of a new trial; and the admission of evidence of other accidents at the crossing. 1. The refusal of a new trial is not reviewable, the grant thereof being discretionary, and no special circumstances appearing to take this case out of the rule. 2. Towards the close of the trial a witness was asked by plaintiffs’ counsel if there had been within two years other accidents at this crossing involving locomomotives and automobiles, an objection of irrelevance being overruled. The question was answered yes, but was not followed up. On cross-examination defendant’s counsel asked about details, but the only instance definitely remembered by the witness was when a man named Rush drove across in front of the engine which knocked the rear bumper off his car. There was some joking about Rush rushing, and not rushing fast enough. No further reference appears to have been made to this evidence by court or counsel. The complaints alleged this crossing to be a dangerous crossing, and so known to the defendant, especially as to trains approaching it from the east, as this train was, because of obstructions which made it difficult for a motorist to see or hear a train, and because of a dirt road running eastward near the track so that one on the highway at night would easily mistake the light of a train for the light of an automobile on the dirt road; and that the rails at the crossing were difficult to see at night. There is authority that when a place or instrumentality for the safety of which the defendant is responsible has been involved in other accidents within a recent period under similar circumstances the proof may be made for the limited purposes of showing that the place or instrumentality was in fact a source of danger, and that the defendant knew it. It is, however, likely to lead to collateral issues as to who was to blame in the other instances, and to afford more confusion than light, so that the matter rests largely in the discretion of the trial judge. 20 Am.Jur., Evidence, Sect. 304; 38 Am.Jur., Negligence, Sect. 314. In our recent case of Lowry v. Seaboard Air Line R. Co., 5 Cir., 171 F.2d 625, we upheld the rejection of such evidence, especially since there no defect was claimed in the construction of the crossing involved. In the present case there was a claim, that the crossing itself was invisible at night, and that the crossing sign required by statute had no reflector to call attention to it at night. We cannot say the trial judge abused his discretion in permitting an enquiry as to other accidents there, but it developed that there was little or nothing to the enquiry. No night accidents appeared, and for lack of any similarity proven the Court very likely would have excluded the evidence had he been asked to. We find no reversible error here. 3. The gravamen of the case is on the motion for instructed verdict. Appellant contends that since the automobile struck the side of the engine at a point from eight feet to twenty feet from its front, according to different witnesses, the case is one of running into a train already occupying the crossing, for which the automobile driver has often been held solely to blame. We do not agree. The evidence would authorize the jury to conclude that car and engine were each approaching the crossing at a speed of 25 miles or more per hour, neither being actually aware of the presence and intention to cross of the other because of obstructions by buildings and trees between them till within a few feet of each other and too late to stop'. It was a matter of only a half second whether the car or engine would get on the crossing first, — whether the engine would strike the side of the car or the car the side of the engine. The enquiry for fault is not to be settled so simply. With both approaching it too fast, the law would award no absolute priority to the one arriving first. Nor can it be said as a matter of law that there was no fault in defendant in the construction of its crossing and the operation of its engine, or that the faulty driving of the automobile was the sole cause of the collision. As to the crossing, the defendant was not responsible for the houses and trees not on its right of way which obstructed the view of each other of a train coming from the east and an automobile coming from the south, nor for the dirt road paralleling the railroad on its south side eastward. But the crossing itself was so level and smooth that at night, with the automobile headlight not showing the track to right and left, and with the rails across the highway even with the paving so that they did not show, a stranger on the highway could not well see there was a crossing. This rendered more important other notice. The statutes of Florida, F.S.A. Sects. 320.45, 320.46, and 351.03 provide for railway crossing signs. •The first two' sections relate to crossings designated as dangerous by the State road department. Sect. 320.45 requires the motor operator to stop not less than ten feet from the nearest rail, and to look in both directions and listen for the approach of a locomotive or train. The next section re-quires the railroad company at such a grade crossing to place on each side of its track, to the right of the highway and 250 feet from the crossing, a large sign with black letters on a white background, “Stop — Railroad Crossing — Florida Law”, equipped with a mirror reflector for night use of .such size, color and description as may i be approved by the State road department, to reflect the motor vehicle’s headlight. Such a sign was erected 250 feet from this crossing on the right'of the highway but 15 feet away from the edge of it, and without any mirror reflector. The driver of this automobile did not see the sign or know he was approaching a railway crossing. The third cited section, 351.03, .requires the railroad company at .other highway crossings to erect a sign, “Look out for. the cars”. There was no such sign at this crossing, which evidently was treated as a dangerous one. The.defendant argues that the; proviso at the end of Sect. 320.45, “Provided, however, that the requirements of this section shall not extend to railroad tracks within the .limits of incorporated cities or towns * * * ” excuses it, from having either sign or reflector at this crossing, since it is within the limits of an incorporated town, and since Sect. 320.46 applies only to crossings falling under Sect. 320.45. We do not so understand the . proviso. The “requirements of this Section” do not indeed apply to city and town crossings, but they relate only to the operator of the motor vehicle. No requirement is therein made of the railroad company; but its requirements follow in the .next section without any such proviso. The jury might well conclude that the failure to have the re; flector on the sign to draw attention to it at night was negligence contributing to the accident. But section 320.46 has a proviso at its end, “Provided further, that where railroad warning signs have already been placed, or shall hereafter be placed, at any railroad crossing by the state road department, said railroad companies shall not be required to erect or maintain additional signs or reflectors at such crossings.” We held in Ouzts v. Powell, 5 Cir., 125 F.2d 768, where it was stipulated that the sign at a crossing had been erected by the State Road Department, that no sign was required to be erected by the railroad company and that the company was not responsible for any insufficiency in the sign. The record in the present case contains no suggestion that the sign at this crossing was erected by the State Road Department, and the appellant has made no such contention either in its brief or oral argument. Indeed the brief, which quotes the section, omits this proviso, evidently because it was not considered pertinent to the case. It quotes and relies on only the proviso to section 320.45 just above discussed. . The body of section 340.46 requires . that the railroad company shall place and maintain the sign with mirror reflectors to reflect the motor vehicles head- . light at night. The proviso operates as an exception, and the burden is upon the railroad company to prove the exception. It has not. even raised the contention, though the proof was made by several witnesses that there were no reflectors. We cannot suppose .the State Road Department had erected the signs at this crossing. Again the speed of the train is in question. One of the train crew estimates it as low as 12 miles per hour. Others place it as high as 25 miles. Two experienced ex-engineers of this very railroad company, on the basis as proved of a level track with a stated kind of locomotive and a stated number of cars, with air brakes applied in emergency at the crossing and the train running 400 feet before stopping, testified that the speed must have been in excess of 30 miles per hour. The jury might consider this an imprudent speed at which to approach an obstructed, unguarded crossing in the limits of a town and across a much travelled highway such as Highway 41 is shown to be. The defendant itself had prescribed a speed limit here of 15 miles, according to the fireman. Similarly there is some excuse for the conduct of this driver. He had travelled the highway twice before and knew there was a railroad to be crossed near this town, but he did not know he was approaching it. He testifies he was looking ahead, did not see the crossing sign, did not see the rails across the pavement, (several witnesses testify they are hardly visible at night), did see the side road to his right and a dim light down it, which he took to be a light on a pole, but now thinks it must have been the engine headlight. He heard no whistle, though several witnesses testify one was blown. All this occurred in a short space of 140 feet after passing the buildings along the highway. The enginemen say the headlight was burning brightly; but they also say they were in yard limits, and their rules require dimmed headlights there lest they blind others, and that a dimmed headlight is really dim. The jury might think the car driver was negligent but not reckless or the sole author of the accident. They did charge him with four-fifths of the fault. We discussed carefully the application of the other Florida statutes to a similar accident in Lowry v. Seaboard Air Line R. Co., 5 Cir., 171 F.2d 625, and need not repeat that discussion. We held that case to be one for the jury, and we hold the same here. Judgment affirmed. We have examined carefully the Florida cases cited in the dissenting opinion and think them all readily distinguishable from this case in their circumstances. Indeed, in Seaboard Airlines R. Co. v. Boles, 160 Fla. 910, 37 So.2d 578, whore the driver of the vehicle knew-he was approaching the crossing and failed to take proper precautions, the court ordered that the damages be shared half and half. The jury hero awarded only one-fifth damages. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_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". W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Appellant, v. TYLER PIPE AND FOUNDRY COMPANY, Appellee. TYLER PIPE AND FOUNDRY COMPANY, Appellant, v. W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Appellee. No. 23489. United States Court of Appeals Fifth Circuit. Dec. 19, 1966. Bessie Margolin, Assoc. Sol., Robert E. Nagle, Atty., Charles Donahue, Sol. of Labor, Caruthers G. Berger, Atty., Dept. of Labor, Washington, D. C., Major J. Parmenter, Regional Atty., for appellant and cross-appellee. Jerry L. Buchmeyer, William H. Neary, Dallas, Tex., for appellee and cross-appellant, Thompson, Knight, Simmons & Bullion, Dallas, Tex., of counsel.. Before BROWN, COLEMAN and. AINSWORTH, Circuit Judges. AINSWORTH, Circuit Judge: The Secretary of Labor brought this, suit under Section 16(c) of the Fair Labor Standards Act of 1938 (29 U.S.C. § 201 et seq.) to recover overtime compensation claimed to be due under Section 7 of the Act to D. C. Mangrum, a former employee of Tyler Pipe and Foundry Company, defendant, for the period February 26, 1963 to September 12, 1964. Tyler Pipe operates a foundry at Swan, Texas, where it produces cast iron and fittings, approximately 70 per cent of which was shipped in its own trucks in interstate commerce as a private carrier. It is agreed that the employee is within the Act’s general coverage, but defendant contends that Mangrum’s employment was exempt from the overtime provisions by virtue of Section 13(b) (1) of the Act which exempts employees for whom the Interstate Commerce has power to establish qualifications and maximum hours of service pursuant to Section 204 of the Motor Carrier Act (see 49 U.S.C. § 304). Mangrum worked in excess of forty hours each week, and defendant has refused to compensate him for overtime for the excess hours. The question for decision, therefore, is whether Mangrum’s employment is exempt from the overtime provisions of the Act by virtue of being subject to the motor carrier exemption which is limited to certain employees whose activities affect the safety of operations of vehicles in interstate commerce. The district judge held that Mangrum was not within the exemption during the period February 26, 1963 through December 31, 1963, but was exempt during the period January 1, 1964 through September 12, 1964 and rendered judgment accordingly. Both parties have appealed from this judgment insofar as it adversely affects them. Mangrum was employed in defendant’s garage, working six days a week, excluding Sundays, eight hours per day. The trial judge found that during the first ten months his work consisted primarily of service and repair work on fork lifts “and front end Loaders,” the industrial machines used in the manufacturing operations, and thereafter he was employed to do service and repair work on industrial machinery; that during the years 1963 and 1964, Man-grum, a Class C automotive mechanic, was with all of the other Class A, B and C mechanics employed in defendant’s garage, subject to being called upon at any time and during any day of the week as part of their regular duties and in the ordinary course of their work, to perform “line-up” work on diesel trucks owned by the defendant and used to transport its property in interstate commerce. The line-up work was done on each work day but was especially heavy on Saturdays. The court found that the shift foreman simply picked garage employees at random to do this work and Mangrum was called upon at any time, and as part of his regular duties, and in the ordinary course of his job to perform such work. However, the court held that he did no line-up work in 1963, but in 1964 he did line-up work on Saturdays in sixteen work weeks, the amount and frequency on these particular Saturdays not being stated in the record. Line-up work was performed by Man-grum in the following way: He received instructions from the shift foreman which particular tractor he was to hook up with a particular trailer at the loading dock. He then drove the tractor from the parking area to the loading dock and hooked it up to the proper loaded trailer unit which involved connection and inspection of the two air brake hoses, connection and inspection of the fifth wheel and connection and inspection of the light system, including brake lights. The court said that this work directly affected the safety of operations of motor vehicles in interstate commerce. After completing the line-up work Mangrum drove the tractor-trailer to the fuel pump and left it there for handling by others. This was the only work performed by Mangrum on trucks operated in interstate commerce. After the tractor-trailer was left at the fuel pump it was fueled and driven by others to the body shop where an inspection was made by the service crew to determine if the brakes, lights, tires, windshield wipers and mud skirts for the back wheels were in order and in good condition. If so, the tractor-trailer was driven to the line and parked to await the driver who took it out. The defendant’s garage was divided into three areas: the first section known as the fork truck shop was that in which Man-grum was regularly employed where industrial machinery only was serviced or repaired; the second section was the diesel truck garage where tractors and over-the-road motor equipment was serviced or repaired; the third section was the trailer shop where trailers were similarly cheeked and repaired and where the service crew (other than Mangrum) checked the hooked-up tractor-trailer prior to it being driven to the line to await the driver. Under these circumstances, the district judge held that the exemption in Section 13(b) (1) of the Act did not apply for the year 1963 but did apply in the year 1964. Defendant’s principal authority is the decision in Morris v. McComb, 332 U.S. 422, 68 S.Ct. 131, 92 L.Ed. 44 (1947), whereas plaintiff’s reliance is on Pyramid Motor Freight Corporation v. Ispass, 330 U.S. 695, 67 S.Ct. 954, 91 L.Ed. 1184 (1947), decided by the Supreme Court several months prior to Morris. Defendant contends that under Morris v. McComb, Mangrum’s employment was exempt from the requirements of the Fair Labor Standards Act even though the total period of employment involved discloses only sixteen Saturdays when some line-up work was done by the employee. Defendant states that the holding in Morris is that “ * * * it is ‘the character of the activities rather than the proportion of either the employee’s time or of his activities that determines the actual need for the Commission’s power to establish reasonable requirements with respect to qualifications, maximum hours of service, safety of operation and equipment.’ ” Therefore, defendant contends that Mangrum was subject to being called at any time to do line-up work, both in the years 1963 and 1964, and should be classified as an exempt employee not subject to the overtime provisions of the Act. The facts in Morris, though having some analogy to those here, are not the same and the case is clearly distinguishable. The employees involved there were drivers and mechanics, all of whom were fully engaged full time and continuously in safety-affecting work, sharing indiscriminately in the interstate operations of the employer who operated a general cartage business as a motor common carrier in the metropolitan Detroit area and contiguous counties. On the average, in Morris, only about 4 per cent of the drivers’ and mechanics’ time was devoted to service in interstate commerce; however, this activity was not equally distributed to each driver. The Court held that the applicability of the Interstate Commerce Commission’s requirements as to specific drivers during specific weeks was not the issue but it was the fact that the Commission had power to establish qualifications and maximum hours of service, pursuant to Section 204 of the Motor Carrier Act, for the entire classification of the employees, drivers and mechanics that determined that these employees were exempt from Section 7 of the Fair Labor Standards Act pertaining to overtime compensation. The Court held that the employees were exempt from the Act in all work weeks, including those in which no interstate commerce work was performed because “ * * * apparently in the normal operation of the business, these strictly interstate commerce trips were distributed generally throughout the area and their performance was shared indiscriminately by the drivers and was mingled with the performance of other like driving services rendered by them otherwise than in interstate commerce. These trips were thus a natural, integral and apparently inseparable part of the common carrier service of the petitioner and of his drivers.” That is not the case here. Mangrum’s regular duties as a mechanic for Tyler Pipe were carried on in service and repair only of industrial machinery such as fork lifts and front end loaders. He was not a motor vehicle mechanic and was never employed in the garage in repair and service of defendant’s tractors and trailers used in the delivery of its products in interstate commerce. He was sporadically and infrequently called on in the year 1964 on Saturdays of sixteen work weeks to perform line-up work which was preceded and followed by the work of other mechanics and employees as to both service and inspection. He was not regularly employed in safety-affecting work. Accordingly, the case is more nearly like Pyramid Motor Freight Corporation v. Ispass, supra, in which the Supreme Court held that under the facts of that case the mere handling of freight at a terminal by so-called loaders, before or after the loading or even the placing of articles of freight on a motor carrier truck itself, may form “so trivial, casual or occasional a part of an employee’s activities, or his activities may relate only to such articles or to such limited handling of them, that his activities will not come within the kind of ‘loading’ which is described by the Commission and which, in its opinion, affects safety of operation.” This is the de minimis rule. Under the circumstances, Mangrum’s service in line-up work being so trivial, casual, occasional and insubstantial, we hold that his employment both in 1963 and 1964 is subject to the overtime provisions of the Fair Labor Standards Act and not exempt. The exemption should be considered with due regard to the rule that such exemptions from the operation of humanitarian legislation, such as the Fair Labor Standards Act, are to be narrowly construed. A. H. Phillips, Inc. v. Walling, 324 U.S. 490, 65 S.Ct. 807, 89 L.Ed. 1095 (1945). We had occasion to apply the holding in Pyramid Motor Freight, with full recognition of Morris, in our decision in Wirtz v. C & P Shoe Corporation, 5 Cir., 1964, 336 F.2d 21. In the latter case the employer’s warehousemen occasionally participated in driving or helping on the employer’s trucks. But this Court held that such activities were a negligible part of the warehousemen’s duties, were not of a safety-affecting character and concluded that they were not exempt since they constituted a trivial, casual and occasional part of the employees’ employment. The Court further held that “The primary jobs of these employees who sporadically helped on the trucks or acted as drivers did not include such work, and these infrequent activities on their part come within the de minimis rule set down by the Supreme Court in Pyramid Motor Freight Corporation v. Ispass, supra.” See also Opelika Royal Crown Bottling Company v. Goldberg, 5 Cir., 1962, 299 F.2d 37. Our holding is the same here, for we do not believe the circumstances justify application of the exemption as to either the years 1963 or 1964. Affirmed in part; reversed in part. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_r_bus	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Jakov BLAGAIC, Plaintiff-Petitioner, v. W. T. FLAGG, District Director, Chicago District, Immigration and Naturalization Service, Defendant-Respondent. No. 13581. United States Court of Appeals Seventh Circuit. June 15, 1962. Nathan T. Notkin, Chicago, Ill., for petitioner. James P. O'Brien, U. S. Atty., John Powers Crowley, Asst. U. S. Atty., Chicago, Ill., for respondent, John Peter Lulinski, Asst. U. S. Atty., of counsel. Before KNOCH, CASTLE and SWYGERT, Circuit Judges. SWYGERT, Circuit Judge. Petitioner, Jakov Blagaich, seeks review of a decision of the Regional Commissioner of the Immigration and Naturalization Service denying his application for a stay of deportation pursuant to Section 243(h) of the Immigration and Nationality Act, 8 U.S.C.A. § 1253 (h). Petitioner is a native of Yugoslavia who entered the United States on April 29, 1956 at Philadelphia as a crewman aboard the S. S. Kosmaj. He was given a twenty-nine days' leave but did not return to his ship at the expiration of his leave. A deportation hearing was had and petitioner was ordered deported in April, 1957 on the ground that he had remained in the United States longer than his visa permitted. The propriety of the order of deportation is not questioned in this appeal. After petitioner was ordered deported he applied for a withholding of deportation under Section 1253(h) on the ground that if returned to Yugoslavia, he would be subject to physical persecution because of his religion and his political opinions. On October 14, 1957 the Special Inquiry Officer of the Immigration and Naturalization Service recommended that deportation be withheld. On June 18, 1958 the Regional Commissioner, however, overruled the decision of the Special Inquiry Officer and denied petitioner’s application for withholding of deportation. Petitioner commenced the present action for review of the Commissioner’s decision August 25, 1961 in the United States District Court for the Northern District of Illinois. On December 4, 1961 the case was transferred, on the government's motion, to this Court pursuant to Section 5(b) of Pub.L. 87-301, 8 U.S.C.A. § 1105a, Note. We are met at the outset with the question whether this Court has jurisdiction to review initially the Regional Commissioner’s decision. A new section of the Immigration and Nationality Act, Section 106, was enacted by Congress September 26, 1961 as an amendment to the Act. (Section 5(a), Pub.L. 87-301), 8 U.S.C.A. § 1105a. This amendment became effective October 26, 1961 in accordance with the provisions of Section 5(b) of Pub.L. 87-301. The purpose of the amendment was to eliminate delay in reviewing deportation orders by providing for review initially by courts of appeals rather than by district courts except in criminal prosecutions under certain circumstances and in habeas corpus proceedings. This was accomplish.ed by providing under Section 1105a that the procedure prescribed by 5 U.S.C.A. §§ 1031-1042 shall be “the sole and exclusive procedure for, the judicial review of all final orders of deportation heretofore or hereafter made against aliens within the United States pursuant to administrative proceedings under section 1252(b) of this title * * ” [8 U.S.C.A.]. 5 U.S.C.A. §§ 1031-1042 provide for the initial judicial review by courts of appeals of specified administrative final orders issued by certain administrative agencies such as the Federal Power Commission, the Secretary of Agriculture, the United States Maritime Commission, and the Atomic Energy Commission. The government contends this Court lacks jurisdiction to review the Regional Commissioner’s ruling initially because the denial of petitioner’s application to withhold deportation was made pursuant to administrative proceedings under 8 U.S.C.A. § 1253(h), not under 8 U.S.C.A. § 1252(b) , and therefore the denial of a stay was not a final order of deportation. Petitioner admits that the language of the statute refers to “final orders of deportation,” but contends that the intent of Congress in enacting Section 1105a was to minimize delays in obtaining the deportation of persons who use the machinery of the courts to delay their ultimate deportation. Consequently, it is argued that Congress must have intended that the courts of appeals have initial jurisdiction to review denials of discretionary relief from deportation as well as final orders of deportation. The language of Section 1105a is clear and unambiguous. Jurisdiction now lies initially in the courts of appeals to review “final orders of deportation” made pursuant to 8 U.S.C.A. § 1252(b). We think, however, that the review provisions of Section 1105a should not be given the narrow interpretation that the government contends for. While it is true that the only question is whether the Attorney General has abused his discretion in refusing to withhold deportation under the provisions of Section 1253(h), this question involves the execution or suspension of the deportation order, and therefore it is ancillary to the order. If the withholding of deportation is not granted, petitioner will be deported; thus, in a realistic sense the denial of a stay is a part of the deportation order. Section 1253(h) is only applicable after a final order of deportation has been issued and therefore is pari materia with Section 1252(b). This is true even though the request for a stay of deportation under 1253(h) involves different questions of fact and law from those under 1252(b), and until recently was determined by the Immigration and Naturalization Service in a separate proceeding under the applicable regulation. The issuance by the Immigration and Naturalization Service of a new regulation by reason of which it asserts determinations of the Attorney General under Section 1253(h) now come within the review provisions of Section 1105a impairs the government's argument that this Court is without jurisdiction in the instant case. It is neither logical nor in accordance with recognized rules of statutory interpretation, we think, to hold that by merely changing the regulation governing the administrative proceeding under 1253(h) the courts of appeals now have initial review jurisdiction which they did not possess before the change in the regulation. Thus, while a change in the regulation governing the proceeding under 1253(h) does not give this Court jurisdiction if it had none before, such change indicates that the government likewise now views the discretionary proceedings under 1253 (h) as being ancillary to the deportation proceedings under 1252(b). We hold that this Court has jurisdiction by reason of 8 U.S.C.A. § 1105a to initially review the action of the Regional Commissioner of the Immigration and Naturalization Service in denying petitioner’s application for a stay of deportation. Going to the merits of the review, the question presented is: Did the Regional Commissioner acting in behalf of the Attorney General abuse the discretion allowed him in determining the application for a stay? As we recently said in Soric v. Flagg, 7 Cir., 303 F.2d 289, “Absent an abuse of discretion, it is well-settled in this court that we cannot substitute our judgment for that of the Attorney General.” The record shows that petitioner was born in 1913 and always resided in Yugoslavia. He had been a seaman since 1938. He testified that from 1946 to 1953 he was unable to obtain employment as a seaman because he was employed on a ship during (he war while “the partisans were fighting for the cause and [they] now needed employment;” that from 1946 to 1953 he worked on his father's farm; and that beginning in 1953 he was continuously employed as a seaman on a Yugoslav ship until he deserted the S. S. Kosmaj in 1956. Petitioner claims that he will be physically persecuted if deported to his native country because: (1) he attends church; (2) he is opposed to the Communist Party and is not a member; and (3) he deserted his vessel in the United States. The Regional Commissioner found that while it is an established fact that the Government of Yugoslavia is completely under the domination of the Communist Party, yet the churches throughout the country are open for public worship. Petitioner testified that while he was in Yugoslavia from 1946 to 1953 he always attended church whenever it was “humanly possible and when I was healthy” and that "nothing ever happened to me for reasons for going to church. * * ” Petitioner testified that he refused to attend Communist Party meetings on board ship and that he was warned by the chief engineer that the captain had said that he was going to discharge the petitioner and turn him over to the authorities when the ship returned to Yugoslavia because he refused to join the Communist Party aboard ship; that by reason of these facts he deserted his ship and is now convinced that his deportation to Yugoslavia will result in physical persecution. The Commissioner in his decision recognized that petitioner was threatened with the loss of his position as a seaman, but he went on to hold that “economic sanctions applied against those not members of the controlling clique in a country whose economic system is completely and rigidly state-controlled is not physical persecution.” As we said in Soric, because he was threatened with loss of his job as a seaman “[I]t does not follow that all types of employment were closed to him.” For reasons developed in Soric, we believe the Regional Commissioner’s ruling on this point was not an abuse of discretion. Lastly, as the Regional Commissioner points out in his decision, petitioner’s claim to fear of physical persecution because of his desertion from his ship is not the basis for a stay. Whether such desertion is an offense under Yugoslav law is irrelevant, because punishment for a non-political crime is not the kind of physical persecution to which the statute permitting stays of deportation applies. We hold that there was no abuse of discretion in denying the application for a stay of the deportation order and that the decision of the Regional Commissioner should be affirmed. Order affirmed. . Although plaintiff is referred to in the proceedings before this Court as Jakov Blagaic, it appears from the administrative proceedings and from his signature appearing in the administrative file that the spelling of the name is Blagaich. . Section 1253(h) provides: “(h) The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to physical persecution and for such period of time as he deems to be necessary for such reason.” . H.R.Rep. No. 1086. 87th Cong., 1st Sess. 15 (1961), U.S.Code Cong, and Admin. News 1961, p. 2950 et seq. . Section 1252(b) prescribes the “sole and exclusive procedure for determining the deportability of an alien under this section.” . Cf. Chao-Ling Wang v. Pilliod, 7 Cir., 285 F.2d 517. . 8 C.F.R. § 243.3(b) (2) provides in part: “If the request for a stay of deportation is predicated upon a claim by the alien that he would be subject to physical persecution if deported to the country designated by the Service, he shall be requested, upon notice, to appear before a special inquiry officer for interrogation under oath. * * * Upon completion of the interrogation, the special inquiry officer shall prepare a written memorandum of his findings and a recommendation which shall be forwarded to the regional commissioner together with all the evidence and information submitted by the alien or which may be applicable to the case. * * * ” . The government's brief contains the following statement: "The regulations have recently been revised to have such determinations made hereafter as part of the proceedings under 8 U.S.C. 1252(b) for the determination of deportability. See 8 C.F.R. 242.-17(c), effective January 22, 1962, 26 Fed. Reg. 12112 (December 19, 1961). Determinations of this sort made prior to January 22, 1962, are not affected by the new regulations, 26 Fed.Reg. 12111.” The new regulation reads in part: “(c) Temporary withholding o/ deportation. The special inquiry officer shall notify the respondent that if he is finally ordered deported his deportation will in the first instance be directed pursuant to section 243(a) of the Act to the country designated by him and shall afford the respondent an opportunity then and there to make such designation. The special inquiry officer shall then specify and state for tlie record the country, or countries in the alternate, to which respondent’s deportation will be directed pursuant to section 243(a) of the Act if the country of his designation will not accept him into its territory, or fails to furnish timely notice of acceptance, or the respondent declines to designate a country. The respondent shall be advised that pursuant to section 243(h) of the Act he may apply for temporary withholding of deportation to the country or countries specified by the special inquiry officer and may be granted not more than ten days in which to submit his application. * * * " 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_stpolicy	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". CARTER v. JOHN HENNES TRUCKING CO. No. 10874. United States Court of Appeals, Seventh Circuit. Jan. 4, 1954. Rehearing Denied March 1,1954. Joseph H. Hinshaw, Oswell G. Tread-way, Chicago, 111., for appellant. David M. Burrell, Ramer B; Holtan, Freeport, 111., Robert P. Sullivan, Chicago, 111., Burrell & Holtan, Freeport, 111., for appellee. Before MAJOR, Chief Judges, FINNEGAN, Circuit Judge, and PLATT, District Judge. PLATT, District Judge. Plaintiff, Jay Wallace Carter, brought an action to recover damages for personal injuries sustained as a result of an occurrence on February 4, 1952, alleged to have been proximately caused by negligence of the defendant in leaving a block of wood in a place of danger on a punch press. The jury returned a verdict for the plaintiff on which the court entered judgment. The defendant presented a motion for judgment notwithstanding the verdict. The district court denied this motion and from this ruling the defendant, John Hennes Trucking Company, appeals. The questions presented are: (1) was there any evidence in the record upon which the jury could have found that the plaintiff was in the exercise of ordinary care; (2) was the defendant negligent; and (3) was such negligence, if any, the proximate cause of the plaintiff’s injuries. In determining these questions the evidence must be viewed! in the light most favorable to the plaintiff to sustain his recovery. Eckenrode v. Pennsylvania R. Co., 335 U.S. 329, 69' S.Ct. 91, 93 L.Ed. 41; Nattens v. Grolier Society, 7 Cir., 195 F.2d 449, 450. To this end the plaintiff is entitled to the full effect of every inference from the evidence presented which reasonably minded men might deduce. A mere scintilla of evidence is not sufficient to sustain the verdict. It must be of substantial and relative consequence and carry the quality of proof to induce conviction and make an impression on reason. Commercial Casualty Ins. Co. v. Stinson, 6 Cir., 111 F.2d 63, certiorari denied, 311 U.S. 667, 61 S.Ct. 25, 85 L.Ed. 428. The facts taken in their best light for the plaintiff disclose that the plaintiff was employed by Warner Electric Brake & Clutch Company as a punch press operator. On Monday, February 4, 1952, he reported for work about 6:50 a. m. in excellent health. He had worked at the machine the previous Friday. He went to press No. 2 to which he was assigned and greased it. The grease zerts were two or three feet above the floor. He saw no 4 x 4 board on the face of the machine, and there was no 4 x 4 at his feet. This was corroborated by two other witnesses. He faced the front of the press, reached up, and pushed the two starting switch buttons which were located a little over his head. An average sized man would have to reach over his head to push these buttons. The press started and that was all that the plaintiff remembered. In a row on the west side of the shop were three punch presses for the forming and shaping of steel. Press No. 2 was the middle press. They were large presses 15 or 16 feet high and set about 10 to 20 feet apart. Two large bull wheels revolving toward the front operated these machines. The bottom of the bull wheels was about 9 feet and the top was about 15 feet above the floor. The defendant trucking company had been called in to dismantle and repair press No. 4 which was to the right and north of press No. 2. The defendant started its repair work on the preceding Saturday morning. It was necessary in repairing press No. 4 to lift off the crown which weighed SYz tons. A steel cable % inch in diameter was attached by the defendant to a beam of the building north of press No. 4, and ran directly over press No. 4 to another roof .beam south of press No. 4, and down at an angle touching press No. 2. Press No. 2 could not be operated while the cable was in place. There was evidence that this cable ran through or over the bull wheel of press No. 2. One witness testified that this cable went over the front of the press fairly high. A chain hoist was attached to the cable between the two parallel roof beams at a point directly over press No. 4 in order to lift the crown from this press. As the steel cable was tightened, a 4 x 4 about two or three feet long was placed as a softener between the cable and press No. 2. This 4x4 was picked up at random in the plant by the defendant’s employee and placed by him in its position. The defendant’s employees finished repairing press No. 4 late Saturday night, or early Sunday morning, and removed the cable and the hoist. The part of the plant where the defendant had been working was deserted at the time. The plant was not in operation on Sunday. There was no proof in the record that anyone was near the machine until the following morning when the plaintiff was injured. Immediately after the plaintiff started press No. 2 a fellow employee working in this part of the plant heard something which sounded like a block of wood hit the floor. Instantly with this noise the witness turned around and saw the plaintiff with his hands on his head looking up toward the top of the machine. He went to the plaintiff and saw a bruise on his head. Immediately after the occurrence a 4 x 4, 32 inches long, weighing 16 pounds was found back of where the plaintiff was standing and in close' proximity to him. It had a cable mark angling across one face of it. The plaintiff attempted to work but was taken to the nurse and later was taken to the hospital where he was attended by a physician. He suffered injuries to his neck, shoulder, and arm. There were no eye witnesses to the accident. The defendant insists that there is no evidence in the record that the plaintiff was in the exercise of due care, or of negligence on the part of the defendant which was the proximate cause of plaintiff’s injuries. These ultimate facts can neither be supported by mere speculation or conjecture, nor can they be inferred by the mere fact that an accident occurred which resulted in an injury to a person. Rotche v. Buick Motor Co., 358 Ill. 507, 516, 193 N.E. .529; Huff v. Illinois Central R. Co., 362 Ill. 95, 101, 199 N.E. 116; Coulson v. Discerns, 329 Ill.App. 28, 31, 66 N.E.2d 728. However, due care, negligence, and proximate cause may be established by circumstantial evidence. In Ohio Bldg. Safety Vault Co. v. Industrial Board, 277 Ill. 96, at pages 102 and 103, 115 N.E. 149, at page 151, the court discussing the inferences that can be logically drawn from the circumstances in the evidence expressed itself as follows: “It cannot be said that the existence of a certain fact may reasonably be inferred from the evidence when the existence of another fact inconsistent with the first can be from the same evidence inferred with equal certainty. A theory cannot be said to be established by circumstantial evidence unless the facts relied on are of such a nature and are so related to each other that it is the only conclusion that can reasonably be drawn from them. (Citing cases.) But the proof of such facts may be made by circumstantial as well as by direct evidence. A greater or less probability leading, on the whole, to a satisfactory conclusion, is all that can reasonably be required to establish controverted facts.” (Citing cases.) The court further stated 277 Ill. at page 110, 115 N.E. at page 154: "Where there is no eyewitness the fact at issue may be proved by circumstantial evidence. Such evidence consists of proof of certain facts and circumstances from which the court may infer other connected facts which usually and reasonably follow according to the common experience of mankind.” The plaintiff’s theory of recovery as stated by the defendant is that the defendant, in the course of dismantling and repairing press No. 4, carelessly and negligently placed and left a certain wooden block in an unspecified place on press No. 2 in such a manner that when the plaintiff, in the exercise ■of ordinary care, began operating the press, the block of wood fell upon him causing his injuries. Bearing in mind the foregoing principles of law we must examine the necessary elements of the plaintiff’s case. The jury had a firm basis to conclude -that the plaintiff was in the exercise of due care at and immediately before the •occurrence. He acted as an ordinarily prudent punch press operator would have in starting his machine. He stood in front of his press, reached up, and pushed the starting buttons. The machine started. Although no one saw him at the instant of the injury, he was seen immediately afterwards holding his head in his hands and looking up. It is unreasonable to assume or conjecture that the plaintiff through his own fault fell against the press, incurring his injuries. Under these circumstances the probability was that the plaintiff exercised ordinary care, and the evidence was satisfactory for the jury so to conclude. We are next confronted with the question as to whether there is any evidence that the defendant through its employees was negligent in causing and allowing a wooden block which was used in its repair work to remain in a place of danger on press No. 2. It is undisputed that the defendant used a 4 x 4, 2 to 3 feet long, between the cable and press No. 2. The cable was against press No. 2, and although the defendant’s evidence was that the block of wood was used over the buttons of the press, there is evidence from which the jury could reasonably believe that the cable ran through or over one of the bull wheels. Moreover, there is direct evidence that the cable did not run over the operating buttons. The bottom of the bull wheel was 9 feet and the top 15 feet above the floor. There can be no doubt that the cable, pressed the block of wood with great force against press No. 2 when the steel cable tightened, with a chain hoist attached to it, lifting the crown of press No. 4 which weighed 3% tons. The cable must have made its impression on one face of the block of wood, and it is reasonable to conclude that the block remained in or on the press. There is no evidence that any of the defendant’s servants actually removed the block of wood when the cable was released and taken down. One witness for the defendant testified that he saw a 4 x 4 drop to the floor, but the jury were neither required to believe this witness, nor to believe that the piece of wood was over the control buttons, with the bottom of the block 3 to 4 feet above the floor, as he testified. The circumstances were sufficient to draw the reasonable inference that the block of wood was left in a place of danger and probably against or in the bull wheel. There is no reasonable theory inconsistent with this which is of equal certainty when the evidence is taken in its best light for the plaintiff. We have direct evidence that the block of wood was placed between the steel cable and the press by the defendant’s employee, and that the cable passed over or through the bull wheel. The block was used as a softener between the press and the cable. The press could not be operated because of the location of the cable. Furthermore, there is no evidence that anyone was on or about press No. 2 between the time the defendants’ servants left the Warner plant and the time the plaintiff started the press. There is affirmative evidence that this part of the plant was deserted. It was within the province of the jury to conclude that the defendant negligently placed and permitted the block of wood to remain in a position of danger. Finally the question is presented: was there any evidence that the negligence of the defendant was the proximate cause of the plaintiff’s injuries. There was no 4 x 4 on the floor in the vicinity where the plaintiff stood when he started the machine. Immediately on the starting of the press a noise was heard that sounded like a block of wood hitting the floor. This block of wood weighing 16 pounds had a steel cable mark diagonally across one face of it. It was found back of and near where the plaintiff was standing holding his head looking up toward the top of the machine. This block conformed in size with the block of wood admittedly used by the defendant as a softener. It is hardly necessary to mention that the law of gravity would have caused the block of wood to fall down when the press started, and the bull wheels revolved forward, dislodging it. The fall of a block of wood weighing 16 pounds from any height above a man’s head could cause injury. The plaintiff had a bruise on his head which must have resulted from being struck with the block of wood, since he was in good health before the accident. There is no evidence in the record from which any reasonable inference-could be drawn that the block of wood was thrown against the plaintiff by a third person, or that he fell against the press. The proof of the facts and circumstances would reasonably convince the jury according to the common experience of mankind that the fall of the block of wood, negligently placed and left in a dangerous position upon the-press, proximately caused the plaintiff’s-injuries. In conclusion we find that the jury’s verdict for the plaintiff was based upon direct evidence and the most reasonable inferences from all of the facts and circumstances in evidence. None of the-cases cited by the defendant justify analysis, since they are not factually in point. The district court properly denied the defendant’s motion for judgment notwithstanding the verdict, and therefore the judgment is Affirmed. . United States Brewing Co. v. Stoltenberg, 211 Ill. 531, 535-536, 71 N.E. 1081; Chicago & E. I. R. Co. v. Beaver, 199 Ill. 34, 36, 65 N.E. 144. . Chicago, B. & Q. R. Co. v. Gregory, 58 Ill. 272, 280; Smith v. East St. Louis Ry. Co., 169 Ill.App. 132, 137-139. . Lindroth v. Walgreen Co., 407 Ill. 121, 131-135, 94 N.E.2d 847; Smith v. East St. Louis Ry. Co., 169 Ill.App. 132, 137-139. . Also see Hunter Packing Co. v. Industrial Comm., 1 Ill.2d 99, 105-106, 115 N.E.2d 236. . The jury are not bound to believe anything to be a fact simply because a witness has stated it so to be, provided the jury believe that the witness was mistaken or testified falsely. People v. Matter, 371 Ill. 333, 339, 20 N.E.2d 600; Goss Printing Press Co. v. Lempke, 191 Ill. 199, 60 N.E. 968. . We are aware that the court withdrew the allegation of the complaint that the defendant negligently caused and allowed a block of wood to remain on the top of the press. . “[W]hen the facts are established from which presumption may be legitimately drawn, it is the province of the jury to deduce the presumption or inference of fact.” Smith v. East St. Louis Ry. Co., 169 Ill.App. 132, at page 137; Plodzien v. Segool, 314 Ill.App. 40, 42-43, 40 N.E.2d 783; Lindroth v. Walgreen Co., 338 Ill.App. 364, 377, 87 N.E.2d 307, affirmed 407 Ill. 121, 94 N.E.2d 847. . In Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916, the Supreme Court stated: “It is no answer to say that the jury’s verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle-the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where * * * there is an evidentiary basis for the jury’s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court’s function, is exhausted when the evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.” Also see Lindroth v. Walgreen Co., 407 Ill. 121, 132-133, 94 N.E.2d 847; Plodzien v. Segool, 314 Ill.App. 40, 4B-43, 40 N.E.2d 783. 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_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. AMERICAN NAT. BANK v. CONTINENTAL CASUALTY CO. No. 6363. Circuit Court of Appeals, Sixth Circuit. April 13, 1934. Jordan Stokes, Jr., and James C. R. McCall, Jr., both of Nashyille, Term., for appellant. Geo. H. Armistead, Jr., of Nashville, Tenn. (Trabue, Hume & Armistead and H. B. Shofner, all of Nashville, Tenn., on the brief), for appellee. Before HICKS, HICKENLOOPER, and SIMONS, Circuit Judges. HICKS, Circuit Judge. This action was upon an accident policy issued to Harry Sudekum, who died while it was in force. Appellee is not liable if the insured committed suicide; and the issue is whether his death was so effected, or was caused by accidental means. Appellant, American National Bank, guardian for Har-ryette Sudekum, the beneficiary, complains of a directed verdict against it. The deceased was forty-two years old, five feet nine and three-tenths inches in height, and weighed one hundred and seventy-five pounds. He was happily married and lived with his wife and fifteen year old daughter, Harryette, at Nashville. He was secretary and general manager of the Crescent Amusement Company of that city. On November 25, 1930, he closed a contract with Warner Bros. Pictures, Inc., under which the stock of the Crescent Company would increase in value to about $270 a share and he himself would be employed at a salary of $18,000 a year. In the fall of 1930, Nashville was the scene of several financial crashes. One of its largest banks had been taken over by another. One of the largest bond and brokerage houses in the South, with headquarters in Nashville, had failed. The Liberty Bank & Trust Company, in which deceased was a director and stockholder, had failed. This bank was a depository for state funds and to secure these deposits had executed bonds upon which the deceased was one of the sureties. Deceased owed a note for $8,500 due December 25,1930, and another for $1,500 due in January, 1931. After bis death the state alone presented a claim of over a million dollars against the estate; and the inheritance tax returns made by the administrator showed total claims of $1,218,146.90 filed against it. A few days before his death Sudekum made a trip by automobile from Nashville to some of the theaters operated by his company in East Tennessee. Returning he encountered a heavy fog in the mountains and contracted neuralgia. He reached home on the morning of Friday, December 12, 1930, and was persuaded by his wife to remain in bed that day. His illness was not serious and the family activities were not greatly disturbed. The daughter, Harryette, spent Friday night away from home with a girl friend and left home again about noon on Saturday “to go to a show.” Mrs. Sudekum had house guests on Friday night; and, though the deceased was still in bed, he had so fully recovered that she and her guests left the house on Saturday afternoon to go to an entertainment. By Saturday deceased had no further need for 'an electric heating pad which he had kept on his forehead on Friday; and at 3 p. m¡ when he called the house hoy to bring him a glass of water he laughed and joked with the boy, seeming to be in no pain at all. He was last seen, alive about 4:15 or 4:30 p. m., Saturday, by Mrs. Helen Morris, a friend of the family, who visited him just before leaving with Mrs. Sudekum for the entertainment. She said that deceased seemed well and comfortable. The house boy, Earl Rutledge, testified that about 6 :45 p. m. he returned to the room to inquire of Sudekum what he' would have for supper. He found the door closed, but that was not unusual. Opening it he first saw the deceased’s feet on the floor, and looking farther, he “saw him lying on the floor with the cord that was used on the electric heating pad about his neck,” in a noose, the other end of which was tied to the wires of an incomplete electric fixture protruding from the wall about five or five and one-half feet above the floor. He was clad only in a silk undershirt, his usual sleeping apparel; his body being exposed from the waist down. The body was in a semi-sitting posture with the head against the wall about ten inches above the floor, with the upper part of the body leaning at an angle of about forty-five degrees from the wall. The boy did not touch him but ran to call the daughter, Harryette, who had just returned, saying, “Your father has hung himself.” According to his testimony he re-entered the room just ahead of her, grasped the plug of the heating pad where it was tied to the electric wires, and pulling with all his strength broke them so that deceased’s head dropped to the floor. He stated that Harryette entered the room about the time he broke the cord. But she testified that she passed the house boy and ran into the room ahead of him and that her father’s body was lying on the floor with the electric cord around his neck and with the head lying to one side and about ten or twelve inches above the floor. She further stated that her fa-‘ ther’s body was limp and relaxed and that she caught his head before telling the boy to cut the cord, and that after it was cut she rested her father’s head in her lap and pulled off the cord, which she had no trouble in loosening, since it ran smoothly through the knot at his neck. She testified further as. follows: “When I entered the room my father’s body was at an angle with the wall and his shoulders were against the wall. His head was leaning forward on his chest and his shoulders were back against the wall. The cord about his neck was loose. I am certain of that. It was not tight at all. I think my father was dead at the time. The cord about his neck was not taut, it was easy to remove.” The testimony of these two witnesses is controlling as to the position and condition in which the body was found, for no others saw the deceased before the cord was severed and removed. P. J. Chinan, a friend who was with Har-ryette and who entered the room soon after the body was discovered, testified that when he saw Sudekum “the cord was not about his neck”; that the buttocks of the body were about six or eight inches from the baseboard with the back against the wall; that he, Pollard Caldwell, who had been in the party with Mrs. Sudekum, and the house boy placed the body on the bed, after which he took Harry-ette downstairs. He then returned to find the house boy and Caldwell pumping Sudekum’s arms to restore his breath, but “he was dead * * * his neck was purple all the way around.” The maid, Alberta Amos, saw the body before it was placed on the bed and said it was lying with the head just above the baseboard with the head and shoulders against the wall. There seemed to be no question on that Saturday evening but that Sudekum had committed suicide. As stated, the house boy, when he called Harryette to the room, said, “Your father has hung himself,” and when he met Mrs. Sudekum at the door he said that “Mr. Harry had killed himself.” Accompanying the proofs of death sent appellee was a joint letter from three physicians, Dr. Buckner, Dr. Eve, and Dr. Sanders, which stated that at a post mortem held December 19, 1930, they found the following marks on the body: “ * * * A narrow bruised line quite discolored around the neck. The line was about one-half inch in width. The bruising or discoloration was more marked at some places than at others. We also found on the left side of the neck just below the lower jaw a .bruised spot a little wider than one-half inch and about one quarter of an inch long which passed upward and outward from the midline and this bruise was a little more marked than that around the neck. We found no evidence of an eleetrie burn anywhere. We also found some bruises on his right leg just below the knee and one on the back of the left hand.” Mrs. Sudekum, who saw the body before it was placed on the bed, seemed to think the neck had been burned, for Mrs. Morris quoted her as saying, “Oh, that horrible bum.” One of the embalmers stated that the mark projecting from the mark of the cord around the neck seemed like a burned place similar to an electric burn. The blood that he drained from the body he testified was abnormally dark, an indication that there had been an electric shock. The other embalmer testified to an old skinned place on the knee nearly healed and to a place on the left hand about the size of a dime. He said a mark on the chin to the side of the Adam’s apple appeared to be a bum and was brown and parched looking. An electrical expert testified that by the manner in which the plug of the heating pad cord was tied to the wires at the outlet it would have been possible when the cord was drawn tight for the wires to brush against the two prongs of the plug making a contact and causing the current to flow through the cord which was around the deceased’s neck. He stated that the ends of the fine wire which were in the knot around deceased’s neck were beaded as though an are had jumped across which would probably have caused a shock. Tests, made afterward, showed 120 to 130 volts passing through the wires at the fixture. The expert said that this voltage was not supposed to be sufficient to kill a man, but he admitted that there was uncertainty about it. He also testified that different persons were more susceptible to shock than others and that certain parts of the body were more sensitive than others. We think that the facts and circumstances permit of no other reasonable inference than that deceased intentionally destroyed himself. There was, therefore, no error in directing a verdict for appellee. Proctor v. Preferred Accident Ins. Co., 51 F.(2d) 15, 17 (C. C. A. 6) and cases there cited. There is no doubt that deceased carefully and firmly attached the cord of the heating pad to the electric wires on the wall in such manner that when the cord was pulled tight the electrical current would flow through it; that he made a noose with the other end of the cord and placed it around his neck so tightly that it contacted therewith; and that he was killed either by the current or by strangulation, or by both combined, just as he had prearranged. Appellant advanced the theory of murder, but there was no evidence to support it. No intruder was seen and there was no evidence of the presence of one in the room or upon the premises. There was no basis for suspicion against the house boy. There was no evidence that deceased was attacked while on the bed, and it is pure fantasy to suppose that he could have been taken alive from the bed and the noose placed about his neck without leaving signs of a struggle. A few weeks or so before his death one of his business associates had been found dead with a shoestring around his neck in a manner giving rise to the general belief that the man had strangled himself. There is evidence that deceased expressed doubts as to this theory, and on one occasion undertook to demonstrate with his necktie that one could not so choke himself to death. Prom this evidence, added to the further fact that deceased was of an experimental turn of mind, the theory was offered that at the time he met his death deceased was making a test to demonstrate, if possible, that his friend did not commit suicide. This is pure conjecture and there is no support for it in the record. It is inconceivable that deceased would conduct, in solitude, a pointless experiment of so dangerous a nature. Reasonable men do not so recklessly trifle with death. On December 15, two days after the death of Sudekum, Dr. Ivl. G. Buckner, as the attending physician, filed with the Department ' of Health of the State of Tennessee, Division of Vital Statistics, a death certificate in which he gave the cause of death as “suicide by strangulation.” On October 17,1931, about eleven months later, the coroner held an inquest at which the jury found that Sudekum died as a result of external violence or homicide. The record of the inquest, together with the certificate of the coroner to the effect that the cause of death was probably homicidal, was likewise filed with the Bureau of Vital Statistics. Before the ease was called for trial in the District Court at 9 o’clock March 2, 1932, appellant was served with an injunction sued out by appellee in the state Chancery Court which prevented it from offering in evidence the coroner’s record and certificate above referred to. Notwithstanding, appellant went to trial without asking for a postponement and without seeking to dissolve or modify the injunction. After verdict and judgment appellant moved for a new trial upon the ground that it should have been permitted to offer these records. It is unnecessary to determine here whether such report and certificate would have been admissible if presented. This is a question concerning which there is much controversy. Equitable Life Assur. Soc. v. Stinnett, 13 F.(2d) 820, 822 (C. C. A. 6). It is sufficient to say that under the circumstances there was no abuse of judicial discretion in denying the motion for a new trial. It develops that there was no ground for the introduction of the report of the coroner’s jury and the accompanying coroner’s certificate as a part of the record of the Bureau of Vital Statistics because in the injunction ease referred to, Continental Cas. Co. v. Nashville & American Trust Co. et al., 61 S.W.(2d) 461, the Supreme Court of Tennessee held that these documents had no place in the record of the Bureau. Judgment affirmed. The late Judge HIOKENLOOPER concurred in the conclusion above reached but died before the opinion was prepared. 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_usc2sect	4331	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". 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: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42? Answer with a number. Answer:
songer_casetyp1_7-2	C	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". CREEL v. CREEL. No. 5998. United Stales Court of Appeals for the District of Columbia. Argued May 10, 1934. Decided June 25, 1934. Rehearing Denied Oct. 12, 1934 Edwin J. Creel, in pro. per. Leon Tobrincr, Byron U. Graham, Selig C. Brez, and Walter N. Tobriner, all of Washington, D. C., for appellee. Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, and GRONER, Associate Justices. MARTIN, .Chief Justice. An appeal from an order appointing a receiver of the assets of a. partnership engaged in business in the District of Columbia. The order was entered upon the plaintiff’s bill of complaint, the rule to show cause issued thereon, an affidavit in answer to the rule to show cause, and various exhibits. It is alleged in the bill of complaint that plaintiff and defendant are brothers, and became equal partners in an automotive jobbing and service business; that defendant was interested in the inventive arts and was frequently absent from tbe business when engaged in affairs relating to his inventions; that by reason of overwork, disappointments, and threatened litigation concerning his inventions from the year 1926 to 1933, defendant became in a highly wrought and nervous state and because thereof became exacting and arbitrary in his conduct relating to the business and frequently threatened to wreck and disrupt it; that in order to pacify defendant an agreement was made between the partners whereby defendant was permitted to absent himself from the conduct of the business for a period of two years, which agreement was further extended for another year, expiring January 1, 1933, and that during all of that time defendant withdrew money from the firm in excess of plaintiff; that upon the expiration of the agreement appellant continued to absent himself from’ the business, and had not returned thereto nor co-operated with the plaintiff in the conduct thereof, but was hostile and defiant toward plaintiff and neglected his obligations as a partner; that during the period while the agreement was in force, although frequently requested by plaintiff to notify the firm’s bookkeeper in respect to amounts withdrawn by defendant, the defendant refused to do so,-and plaintiff was without information at any time during the period as to the precise time and amount of defendant’s withdrawals, and consequently of the firm’s bank balance; that the partnership had also always in the past paid its bills promptly a,nd taken credit, for discounts; that at certain seasons of the year it had always been necessary to borrow money from the bank in order to meet current obligations of the partnership; that defendant in January, 1933,. without consulting plaintiff, ordered the bookkeeper not to pay January’s bills and notified the bank that ho would not execute the necessary promissory note representing the loan required; that defendant falsely accused plaintiff of withdrawing a large sum from the business, placing it in a competitor’s business, and threatened to bring suit against plaintiff, the competitor, and plaintiff’s attorney for $200,006 damages; that plaintiff made every possible effort to reach an amicable settlement with defendant, and offered to permit him to remain away from the business during 1933 if plaintiff were allowed to draw $100 per week for actively managing the affairs thereof, and also offered to sell to defendant his one-half interest, or to purchase defendant’s one-half interest in the business, or to entertain a buy or. sell offer on behalf of defendant; that defendant consistently ignored all of plaintiff’s proposals and refused to come to an amicable adjustment; that the partnership was solvent, but by reason of defendant’s persistent lack of co-operation in the management thereof irreconcilable ■ differences had arisen between the partners, making it impossible to conduct the business under present conditions; that the patronage and good will of the firm necessitated a continuance of its business until some disposition could be made thereof. The bill prayed for the appointment of a receiver; for the dissolution of the partnership; for the delivery to the receiver of all assets of the firm; for the conversion of the same into money by and under the direction of the court; and for the application of the proceeds to the payment of the various debts of the partnership, and the division of any balance remaining thereupon between the partners according to their respective interests upon a proper accounting, and for all necessary references to the auditor or special master. The plaintiff filed as an exhibit to his bill a letter sent to defendant before the beginning of the present suit containing the following offers: “So that there will be no misunderstanding between us, I desire to state what your brother is willing to do in order to obviate the necessity of dissolution proceedings: “1. He is perfectly willing to have you resume active participation in the business, provided you devote all of your time and attention to the partnership business and share the profits of same equally with him. “2. If you do not care to resume active participation in the business, he is willing to permit you to remain away from same during the year 1933, provided that he is allowed to draw $5,200 for his work in conducting the business during the year 1933 on behalf of the partnership, before equal division of profits is made. “3. Your brother is willing to submit a figure to you at which he will sell his one-half interest or purchase your one-half interest, you to have the option of deciding whether you wish to purchase or sell. “4. Your brother is willing that you should submit a figure at which you are willing to sell your one-half interest or purchase his one-half interest, he to have the option to decide whether he wants to buy or sell at your figure.” The defendant in his answer and affidavit admitted the existence of the partnership, his absence from Washington on various times in connection with his inventions, his becoming in a highly wrought and nervous state, but denies that he was exacting in his demands and arbitrary in his judgment in the conduct of the business; and states that until the end of the year 1927 there was no friction or unpleasantness whatsoever between the defendant and plaintiff. Defendant admitted that after November, 1927, there were disagreements, arguments, embarrassments, as between defendant and plaintiff, but avers that these .were wholly due to plaintiff’s refusal to assist defendant during the rush reason in their radio department. He states that the purpose of the agreement permitting defendant to remain away from the business was because defendant designed and planned the business so that he would be enabled to absent himself without interference with the business, and further “that the agreement mentioned was entered into in order to protect the defendant from any complaint on the part of the plaintiff based upon defendant’s absence from the business in ease plaintiff’s attitude and conduct should render defendant’s more continuous absence expedient in order to avoid disorganization of the business by reason of quarrelling and dissension.” Defendant denies that the agreement, although on its face terminating on January 1, 1933, had expired, and denies that defendant had absented, himself from the business, but avers that he had considered it advisable and expedient to be absent from the partnership’s place of business during business hours in order to avoid contention in the presence of employees, and that he had gone to the place of'business in the evening and had otherwise kept in touch with the affairs of the partnership. He admits that during the three-year period in question he did not notify plaintiff or the bookkeeper with respect to the amount of his personal withdrawals, but alleges that the system of bookkeeping is such that at intervals of one month the precise amount of defendant’s withdrawals would be disclosed. He admits that the defendant ordered the bookkeeper not to pay the January bills and that he refused to execute notes for the partnership borrowings, but that he did so in view of plaintiff’s threat to place the partnership in receivership. He admits the receipt of various offers, from plaintiff for a settlement of their differences as set out in plaintiff’s bill of complaint, but alleges that in respect to plaintiff’s offer to have defendant resume active participation in the business that it was not made in good faith, because plaintiff was aware that defendant had other substantial interests; that in respect to the offer to permit plaintiff to stay away from the business for another year, this offer likewise was not made in good faith, inasmuch as plaintiff knew that defendant did not wish to remain away from the business. Defendant also states that the mutual buy and sell offers set out by plaintiff in the bill of complaint were not made in good faith. Defendant avers that he has always been willing to co-operate in the management of the business; that the only differences which have arisen between the partners have been duo solely to plaintiff’s violation of the partnership agreement in respect to the management of the business and the withdrawal of funds; that such differences are in no wise irreconcilable, and that the business can continue to operate profitably under present conditions. The defendant sets out a history of the financial affairs of the partnership and suggests as alternative to the appointment of a receiver, the appointment of an arbitrator to consult with both partners, or the appointment of Mr. E. Quincy Smith as arbitrator with absolute power of dictation over the actions of both partners, whose decision should be final except as to certain minor reservations, sueh as withdrawals that may he agreed upon by the partners, in respect to the operation of the business, as to the sale and winding up of the business and as to the distribution of its assets between the partners. Upon consideration the court appointed E. Quincy Smith, being the same person whom the defendant suggested should be appointed as arbitrator with absolute power of dictation over the actions of both partners, etc., as receiver of the affairs of the partnership, and authorized and directed the receiver, until the further order of the court in the premises, to continuo to conduct and operate the business of the partnership and for that purpose to employ all the necessary clerks and employees to conduct the operation of the business, borrow money if necessary for such purpose, the receiver to report to the court within 30 days from the date of the appointment, and that all of the assets and property of the partnership within the jurisdiction of the court as well ■as all books, records, and papers thereof should be delivered to the receiver after the execution of a bond in that behalf. The present appeal was thereupon taken by appellant (defendant below) from the foregoing aetion of the court. We think that the action of the trial justice in appointing a receiver for the partnership was not erroneous. The record, fairly considered, discloses that there are such irreconcilable disagreements and dissensions between the partners in regard to the conduct of their affairs as to endanger the partnership good will and property. In such case the court is justified in appointing a receiver for the preservation of the assets and the liquidation of the partnership’s affairs. 23 R. C. L. 30. In Crim v. Crim, 194 Iowa, 1137, 191 N. W. 157, 158, an appeal from an order appointing a preliminary receiver upon an action for the dissolution of a partnership, the court, in affirming the order of appointment, said: “Plaintiff and defendant are brothers, and the sole members of a farm partnership. It is a partnership at will. It is quite apparent that disputes, disagreements, and controversies have arisen between them. It is contended, and there is some evidence in support thereof, that the interest of the defendant in the affairs of the business has appreciably diminished; that he absents himself from the farm; that the two brothers are at loggerheads as to methods of operation and the business of the partnership; that certain moneys of the firm on deposit in a hank were unavailable in the payment of firm debts by reason of the action taken on the part of the defendant, and that the plaintiff was compelled to personally borrow a large sum of money to be used in the business in lieu of the partnership assets. It is also shown that the defendant is desirous of dissolving the partnership. In brief, teamwork and harmony in the management of the enterprise does not exist, proximately resulting in the impairment and material injury to the business, and it is natural that under such conditions there will be a continuation of loss and injury.” In Jones v. Jones, 229 Ky. 71, 16 S.W.(2d) 503, 504, a receiver was appointed for a farm partnership conducted by two brothers. In upholding the validity of an order appointing the receiver prior to the hearing on dissolution, the court said: “The relationship existing between the partners is so strained a.nd bitter that it is impossible to even hope for the slightest cooperation between them. There is absolutely nothing to do but to appoint a receiver to take charge of the partnership property pending a final settlement of the partnership affairs.” In Reed v. Beals, 77 Fla. 801, 82 So. 234, the court said: “Prom the examination which we have made of the authorities on this subject, we think the law may be considered as settled, that whenever the intervention of a court of equity becomes necessary, in consequence of dissensions or disagreements between the partners, to effect a settlement and closing of tbe partnership, concerns, upon- bill filed by any of the partners, showing either a breach of duty on the part of the other partners, or a violation of the agreement of partnership, a receiver will be appointed as a matter of course.” It may be observed that the receiver appointed by the court in this ease is the person whom the appellant recommended for appointment as a dictator of the affairs of the firm. Nevertheless the present appeal was taken immediately upon his appointment, and before any action was taken by him in the conduct of his duties under his appointment. The order of the court appointing the receiver is affirmed with costs. Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:
sc_jurisdiction	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ. STOLT-NIELSEN S. A. et al. v. ANIMALFEEDS INTERNATIONAL CORP. No. 08-1198. Argued December 9, 2009 Decided April 27, 2010 Auto, J., delivered the opinion of the Court, in which Roberts, C. J., and Scaua, Kennedy, and Thomas, JJ., joined. Ginsberg, J., filed a dissenting opinion, in which Stevens and Breyer, JJ., joined, post, p. 688. Sotomayor, J., took no part in the consideration or decision of the case. Seth P. Waxman argued the cause for petitioners. With him on the briefs were Edward C. DuMont, Steven F. Cherry, Christopher E. Babbitt, Daniel S. Volchok, Christopher M. Curran, J. Mark Gidley, Peter J. Carney, Eric Grannon, Charles C. Moore, Richard J. Rappaport, Amy B. Manning, Tammy L. Adkins, Angelo M. Russo, Richard C. Siefert, Richard Gluck, and Paul S. Hoff. Cornelia T L. Pillard argued the cause for respondent. With her on the brief were Bernard Persky, J. Douglas Richards, Benjamin D. Brown, Christopher J. Cormier, Michael J. Freed, Steven A. Kanner, Michael D. Hausfeld, Hilary K. Ratway, Solomon B. Cera, W. Joseph Bruckner, and Aaron F. Biber. Briefs of amici curiae urging reversal were filed for the Association of Ship Brokers & Agents et al. by William J. Honan, Samuel Spital, and Patrick V. Martin; for the Chamber of Commerce of the United States of America by Carter G. Phillips, Paul J. Zidlicky, Robin S. Conrad, and Amar D. Sarwal; for CTIA-The Wireless Association by Evan M. Tager and Michael F. Altschul; for DRI-The Voice of the Defense Bar by Jerrold J. Ganzfried and Jennifer R. Bagosy; and for the Equal Employment Advisory Council by Rae T. Vann and Judith A. Lampley. Briefs of amici curiae urging affirmance were filed for the American Antitrust Institute et al. by Dan E. Gustafson, Albert A. Foer, and Richard M. Brunell; for the American Association for Justice et al. by Jeffrey R. White, Julie Nepveu, and Michael Schuster; for Dub Herring Ford Lincoln-Mercury, Inc., by Richard D. Faulkner, James D. Blume, and Shelly L. Skeen; for the Lawyers’ Committee for Civil Rights Under Law et al. by Sarah Crawford, Adam Klein, Lewis M. Steel, Vincent A Eng, and Dina Lassow; for the Pacific Legal Foundation by Deborah J. La Fetra and Timothy Sandefur; and for Public Justice, E C., et al. by F. Paul Bland, Jr., Seth E. Mermin, Arthur H. Bryant, and Michael J. Quirk. Briefs of amici curiae were filed for the American Arbitration Association by Eric P. Tuchmann, William K. Slate II, Patricia A Millett, and Michael C. Small; and for Public Citizen, Inc., by Scott L. Nelson and Deepak Gupta. Justice Alito delivered the opinion of the Court. We granted certiorari in this case to decide whether imposing class arbitration on parties whose arbitration clauses are “silent” on that issue is consistent with the Federal Arbitration Act (FAA), 9 U. S. C. § 1 et seq. I A Petitioners are shipping companies that serve a large share of the world market for parcel tankers — seagoing vessels with compartments that are separately chartered to customers wishing to ship liquids in small quantities. One of those customers is AnimalFeeds International Corp. (hereinafter AnimalFeeds), which supplies raw ingredients, such as fish oil, to animal-feed producers around the world. Animal-Feeds ships its goods pursuant to a standard contract known in the maritime trade as a charter party. Numerous charter parties are in regular use, and the charter party that AnimalFeeds uses is known as the “Vegoilvoy” charter party. Petitioners assert, without contradiction, that charterers like AnimalFeeds, or their agents — not the shipowners— typically select the particular charter party that governs their shipments. Accord, Trowbridge, Admiralty Law Institute: Symposium on Charter Parties: The History, Development, and Characteristics of the Charter Concept, 49 Tulane L. Rev. 743, 753 (1975) (“Voyage charter parties are highly standardized, with many commodities and charterers having their own specialized forms”). Adopted in 1950, the Vegoilvoy charter party contains the following arbitration clause: “Arbitration. Any dispute arising from the making, performance or termination of this Charter Party shall be settled in New York, Owner and Charterer each appointing an arbitrator, who shall be a merchant, broker or individual experienced in the shipping business; the two thus chosen, if they cannot agree, shall nominate a third arbitrator who shall be an Admiralty lawyer. Such arbitration shall be conducted in conformity with the provisions and procedure of the United States Arbitration Act [i e., the FAA], and a judgment of the Court shall be entered upon any award made by said arbitrator.” App. to Pet. for Cert. 69a. In 2003, a Department of Justice criminal investigation revealed that petitioners were engaging in an illegal price-fixing conspiracy. When AnimalFeeds learned of this, it brought a putative class action against petitioners in the District Court for the Eastern District of Pennsylvania, asserting antitrust claims for supracompetitive prices that petitioners allegedly charged their customers over a period of several years. Other charterers brought similar suits. In one of these, the District Court for the District of Connecticut held that the charterers’ claims were not subject to arbitration under the applicable arbitration clause, but the Second Circuit reversed. See JLM Industries, Inc. v. Stolt-Nielsen S. A., 387 F. 3d 163, 183 (2004). While that appeal was pending, the Judicial Panel on Multidistrict Litigation ordered the consolidation of then-pending actions against petitioners, including AnimalFeeds’ action, in the District of Connecticut. See In re Parcel Tanker Shipping Servs. Antitrust Litigation, 296 F. Supp. 2d 1370, 1371, and n. 1 (2003). The parties agree that as a consequence of these judgments and orders, AnimalFeeds and petitioners must arbitrate their antitrust dispute. B In 2005, AnimalFeeds served petitioners with a demand for class arbitration, designating New York City as the place of arbitration and seeking to represent a class of “[a]ll direct purchasers of parcel tanker transportation services globally for bulk liquid chemicals, edible oils, acids, and other specialty liquids from [petitioners] at any time during the period from August 1, 1998, to November 30, 2002.” 548 F. 3d 85, 87 (CA2 2008) (internal quotation marks omitted). The parties entered into a supplemental agreement providing for the question of class arbitration to be submitted to a panel of three arbitrators who were to “follow and be bound by Rules 3 through 7 of the American Arbitration Association’s Supplementary Rules for Class Arbitrations (as effective Oct. 8, 2003).” App. to Pet. for Cert. 59a. These rules (hereinafter Class Rules) were developed by the American Arbitration Association (AAA) after our decision in Green Tree Financial Corp. v. Bazzle, 539 U. S. 444 (2003), and Class Rule 3, in accordance with the plurality opinion in that case, requires an arbitrator, as a threshold matter, to determine “whether the applicable arbitration clause permits the arbitration to proceed on behalf of or against a class.” App. 56a. The parties selected a panel of arbitrators and stipulated that the arbitration clause was “silent” with respect to class arbitration. Counsel for AnimalFeeds explained to the arbitration panel that the term “silent” did not simply mean that the clause made no express reference to class arbitration. Rather, he said, “[a]ll the parties agree that when a contract is silent on an issue there’s been no agreement that has been reached on that issue.” Id., at 77a. After hearing argument and evidence, including testimony from petitioners’ experts regarding arbitration customs and usage in the maritime trade, the arbitrators concluded that the arbitration clause allowed for class arbitration. They found persuasive the fact that other arbitrators ruling after Bazzle had construed “a wide variety of clauses in a wide variety of settings as allowing for class arbitration,” but the panel acknowledged that none of these decisions was “exactly comparable” to the present dispute. See App. to Pet. for Cert. 49a-50a. Petitioners’ expert evidence did not show an “inten[t] to preclude class arbitration,” the arbitrators reasoned, and petitioners’ argument would leave “no basis for a class action absent express agreement among all parties and the putative class members.” Id., at 51a. The arbitrators stayed the proceeding to allow the parties to seek judicial review, and petitioners filed an application to vacate the arbitrators’ award in the District Court for the Southern District of New York. See 9 U. S. C. § 10(a)(4) (authorizing a district court to “make an order vacating the award upon the application of any party to the arbitration... where the arbitrators exceeded their powers”); Petition To Vacate Arbitration Award, No. 1:06-CV-00420-JSR (SDNY), App. in No. 06-3474-cv (CA2), p. A-17, ¶ 16 (citing § 10(a)(4) as a ground for vacatur of the award); see also id., at A-15 to A-16, ¶ 9 (invoking the District Court’s jurisdiction under 9 U. S. C. §203 and 28 U. S. C. §§1331 and 1333). The District Court vacated the award, concluding that the arbitrators’ decision was made in “manifest disregard” of the law insofar as the arbitrators failed to conduct a choice-of-law analysis. 435 F. Supp. 2d 382, 384-385 (SDNY 2006). See Wilko v. Swan, 346 U. S. 427, 436-437 (1953) (“[T]he interpretations of the law by the arbitrators in contrast to manifest disregard are not subject, in the federal courts, to judicial review for error in interpretation”); see also Petition To Vacate Arbitration Award, supra, at A-17, ¶ 17 (alleging that the arbitration panel “manifestly disregarded the law”). Had such an analysis been conducted, the District Court held, the arbitrators would have applied the rule of federal maritime law requiring that contracts be interpreted in light of custom and usage. 435 F. Supp. 2d, at 385-386. AnimalFeeds appealed to the Court of Appeals, which reversed. See 9 U. S. C. § 16(a)(1)(E) (“An appeal may be taken from... an order... vacating an award”). As an initial matter, the Court of Appeals held that the “manifest disregard” standard survived our decision in Hall Street Associates, L. L. C. v. Mattel, Inc., 552 U. S. 576 (2008), as a “judicial gloss” on the enumerated grounds for vacatur of arbitration awards under 9 U. S. C. § 10. 548 F. 3d, at 94. Nonetheless, the Court of Appeals concluded that, because petitioners had cited no authority applying a federal maritime rule of custom and usage against class arbitration, the arbitrators’ decision was not in manifest disregard of federal maritime law. Id., at 97-98. Nor had the arbitrators manifestly disregarded New York law, the Court of Appeals continued, since nothing in New York case law established a rule against class arbitration. Id., at 98-99. We granted certiorari. 557 U. S. 903 (2009). II A Petitioners contend that the decision of the arbitration panel must be vacated, but in order to obtain that relief, they must clear a high hurdle. It is not enough for petitioners to show that the panel committed an error — or even a serious error. See Eastern Associated Coal Corp. v. Mine Workers, 531 U. S. 57, 62 (2000); Paperworkers v. Misco, Inc., 484 U. S. 29, 38 (1987). “It is only when [an] arbitrator strays from interpretation and application of the agreement and effectively ‘dispenséis] his own brand of industrial justice’ that his decision may be unenforceable. ” Major League Baseball Players Assn. v. Garvey, 532 U. S. 504, 509 (2001) (per curiam) (quoting Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S. 593, 597 (1960)). In that situation, an arbitration decision may be vacated under § 10(a)(4) of the FAA on the ground that the arbitrator “exceeded [his] powers,” for the task of an arbitrator is to interpret and enforce a contract, not to make public policy. In this ease, we must conclude that what the arbitration panel did was simply to impose its own view of sound policy regarding class arbitration. B 1 In its memorandum of law filed in the arbitration proceedings, AnimalFeeds made three arguments in support of construing the arbitration clause to permit class arbitration: “The parties’ arbitration clause should be construed to allow class arbitration because (a) the clause is silent on the issue of class treatment and, without express prohibition, class arbitration is permitted under Bazzle; (b) the clause should be construed to permit class arbitration as a matter of public policy; and (c) the clause would be unconscionable and unenforceable if it forbade class arbitration.” App. in No. 06-3474-cv (CA2), at A-308 to A-309 (emphasis added). The arbitrators expressly rejected AnimalFeeds’ first argument, see App. to Pet. for Cert. 49a, and said nothing about the third. Instead, the panel appears to have rested its decision on AnimalFeeds’ public policy argument. Because the parties agreed their agreement was “silent” in the sense that they had not reached any agreement on the issue of class arbitration, the arbitrators’ proper task was to identify the rule of law that governs in that situation. Had they engaged in that undertaking, they presumably would have looked either to the FAA itself or to one of the two bodies of law that the parties claimed were governing, i. e., either federal maritime law or New York law. But the panel did not consider whether the FAA provides the rule of decision in such a situation; nor did the panel attempt to determine what rule would govern under either maritime or New York law in the ease of a “silent” contract. Instead, the panel based its decision on post -Bazzle arbitral decisions that “construed a wide variety of clauses in a wide variety of settings as allowing for class arbitration.” App. to Pet. for Cert. 49a-50a. The panel did not mention whether any of these decisions were based on a rule derived from the FAA or on maritime or New York law. Rather than inquiring whether the FAA, maritime law, or New York law contains a “default rule” under which an arbitration clause is construed as allowing class arbitration in the absence of express consent, the panel proceeded as if it had the authority of a common-law court to develop what it viewed as the best rule to be applied in such a situation. Perceiving a post-Bazzle consensus among arbitrators that class arbitration is beneficial in “a wide variety of settings,” the panel considered only whether there was any good reason not to follow that consensus in this case. App. to Pet. for Cert. 49a-50a. The panel was not persuaded by “court cases denying consolidation of arbitrations,” by undisputed evidence that the Vegoilvoy charter party had “never been the basis of a class action,” or by expert opinion that “sophisticated, multinational commercial parties of the type that are sought to be included in the class would never intend that the arbitration clauses would permit a class arbitration.” Id., at 50a-51a. Accordingly, finding no convincing ground for departing from the post-Bazzle arbitral consensus, the panel held that class, arbitration was permitted in this ease. App. to Pet. for Cert. 52a. The conclusion is inescapable that the panel simply imposed its own conception of sound policy. 2 It is true that the panel opinion makes a few references to intent, but none of these shows that the panel did anything other than impose its own policy preference. The opinion states that, under Bazzle, “arbitrators must look to the language of the parties’ agreement to ascertain the parties’ intention whether they intended to permit or to preclude class action,” and the panel added that “[tjhis is also consistent with New York law.” App. to Pet. for Cert. 49a. But the panel had no occasion to “ascertain the parties’ intention” in the present case because the parties were in complete agreement regarding their intent. In the very next sentence after the one quoted above, the panel acknowledged that the parties in this case agreed that the Yegoilvoy charter party was “silent on whether [it] permitted] or preelude[d] class arbitration,” but that the charter party was “not ambiguous so as to call for parol evidence.” Ibid. This stipulation left no room for an inquiry regarding the parties’ intent, and any inquiry into that settled question would have been outside the panel’s assigned task. The panel also commented on the breadth of the language in the Vegoilvoy charter party, see id., at 50a, but since the only task that was left for the panel, in light of the parties’ stipulation, was to identify the governing rule applicable in a case in which neither the language of the contract nor any other evidence established that the parties had reached any agreement on the question of class arbitration, the particular wording of the charter party was quite beside the point. In sum, instead of identifying and applying a rule of decision derived from the FAA or either maritime or New York law, the arbitration panel imposed its own policy choice and thus exceeded its powers. As a result, under § 10(b) of the FAA, we must either “direct a rehearing by the arbitrators” or decide the question that was originally referred to the panel. Because we conclude that there can be only one possible outcome on the facts before us, we see no need to direct a rehearing by the arbitrators. III A The arbitration panel thought that Bazzle “controlled” the “resolution” of the question whether the Vegoilvoy charter party “permitís] this arbitration to proceed on behalf of a class,” App. to Pet. for Cert. 48a-49a, but that understanding was incorrect. Bazzle concerned contracts between a commercial lender (Green Tree) and its customers. These contracts contained an arbitration clause but did not expressly mention class arbitration. Nevertheless, an arbitrator conducted class arbitration proceedings and entered awards for the customers. The South Carolina Supreme Court affirmed the awards. Bazzle v. Green Tree Financial Corp., 351 S. C. 244, 569 S. E. 2d 349 (2002). After discussing both Seventh Circuit precedent holding that a court lacks authority to order classwide arbitration under § 4 of the FAA, see Champ v. Siegel Trading Co., 55 F. 3d 269 (1995), and conflicting California precedent, see Keating v. Superior Court of Alameda Cty., 31 Cal. 3d 584, 645 P. 2d 1192 (1982), the State Supreme Court elected to follow the California approach, which it characterized as permitting a trial eourt to “order class-wide arbitration under adhesive but enforceable franchise contracts,” 351 S. C., at 259, 266, 569 S. E. 2d, at 357, 360. Under this approach, the South Carolina court observed, a trial judge must “[b]alanc[e] the potential inequities and inefficiencies” of requiring each aggrieved party to proceed on an individual basis against “resulting prejudice to the drafting party” and should take into account factors such as “efficiency” and “equity.” Id., at 260, and n. 15, 569 S. E. 2d, at 357, and n. 15. Applying these standards to the case before it, the South Carolina Supreme Court found that the arbitration clause in the Green Tree contracts was “silent regarding class-wide arbitration.” Id., at 263, 569 S. E. 2d, at 359 (emphasis deleted). The court described its holding as follows: “[W]e... hold that class-wide arbitration may be ordered when the arbitration agreement is silent if it would serve efficiency and equity, and would not result in prejudice. If we enforced a mandatory, adhesive arbitration clause, but prohibited class actions in arbitration where the agreement is silent, the drafting party could effectively prevent class actions against it without having to say it was doing so in the agreement.” Id., at 266, 569 S. E. 2d, at 360 (footnote omitted). When Bazzle reached this Court, no single rationale commanded a majority. The opinions of the Justices who joined the judgment — that is, the plurality opinion and Justice Stevens’ opinion — collectively addressed three separate questions. The first was which decisionmaker (court or arbitrator) should decide whether the contracts in question were “silent” on the issue of class arbitration. The second was what standard the appropriate decisionmaker should apply in determining whether a contract allows class arbitration. (For example, does the FAA entirely preclude class arbitration? Does the FAA permit class arbitration only under limited circumstances, such as when the contract expressly so provides? Or is this question left entirely to state law?) The final question was whether, under whatever standard is appropriate, class arbitration had been properly ordered in the case at hand. The plurality opinion decided only the first question, concluding that the arbitrator and not a court should decide whether the contracts were indeed “silent” on the issue of class arbitration. The plurality noted that, “[i]n certain limited circumstances,” involving “gateway matters, such as whether the parties have a valid arbitration agreement at all or whether a concededly binding arbitration clause applies to a certain type of controversy,” it is assumed “that the parties intended courts, not arbitrators,” to make the decision. 539 U. S., at 452. But the plurality opined that the question whether a contract with an arbitration clause forbids class arbitration “does not fall into this narrow exception.” Ibid. The plurality therefore concluded that the decision of the State Supreme Court should be vacated and that the case should be remanded for a decision by the arbitrator on the question whether the contracts were indeed “silent.” The plurality did not decide either the second or the third question noted above. Justice Stevens concurred in the judgment vacating and remanding because otherwise there would have been “no controlling judgment of the Court,” but he did not endorse the plurality’s rationale. Id., at 455 (opinion concurring in judgment and dissenting in part). He did not take a definitive position on the first question, stating only that “[ajrguably the interpretation of the parties’ agreement should have been made in the first instance by the arbitrator.” Ibid. (emphasis added). But because he did not believe that Green Tree had raised the question of the appropriate decisionmaker, he preferred not to reach that question and, instead, would have affirmed the decision of the State Supreme Court on the ground that “the decision to conduct a class-action arbitration was correct as a matter of law.” Ibid. Accordingly, his analysis bypassed the first question noted above and rested instead on his resolution of the second and third questions. Thus, Bazzle did not yield a majority decision on any of the three questions. B Unfortunately, the opinions in Bazzle appear to have baffled the parties in this case at the time of the arbitration proceeding. For one thing, the parties appear to have believed that the judgment in Bazzle requires an arbitrator, not a court, to decide whether a contract permits class arbitration. See App. 89a (transcript of argument before arbitration panel) (counsel for Stolt-Nielsen states: ‘What [Bazzle] says is that the contract interpretation issue is left up to the arbitrator, that’s the rule in [Bazzle]”). In fact, however, only the plurality decided that question. But we need not revisit that question here because the parties’ supplemental agreement expressly assigned this issue to the arbitration panel, and no party argues that this assignment was impermissible. Unfortunately, however, both the parties and the arbitration panel seem to have misunderstood Bazzle in another respect, namely, that it established the standard to be applied by a decisionmaker in determining whether a contract may permissibly be interpreted to allow class arbitration. The arbitration panel began its discussion by stating that the parties “differ regarding the rule of interpretation to be gleaned from [the Bazzle] decision.” App. to Pet. for Cert. 49a (emphasis added). The panel continued: “Claimants argue that Bazzle requires clear language that forbids class arbitration in order to bar a class action. The Panel, however, agrees with Respondents that the test is a more general one — arbitrators must look to the language of the parties’ agreement to ascertain the parties’ intention whether they intended to permit or to preclude class action.” Ibid. As we have explained, however, Bazzle did not establish the rule to be applied in deciding whether class arbitration is permitted. The decision in Bazzle left that question open, and we turn to it now. IV While the interpretation of an arbitration agreement is generally a matter of state law, see Arthur Andersen LLP v. Carlisle, 556 U. S. 624, 630-631 (2009); Perry v. Thomas, 482 U. S. 483, 493, n. 9 (1987), the FA A imposes certain rules of fundamental importance, including the basic precept that arbitration “is a matter of consent, not coercion,” Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468, 479 (1989). A In 1925, Congress enacted the United States Arbitration Act, as the FAA was formerly known, for the express purpose of making “valid and enforceable written provisions or agreements for arbitration of disputes arising out of contracts, maritime transactions, or commerce among the States or Territories or with foreign nations.” 43 Stat. 883. Reenacted and codified in 1947, see 61 Stat. 669, the FAA provides, in pertinent part, that a “written provision in any maritime transaction” calling for the arbitration of a controversy arising out of such transaction “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract,” 9 U. S. C. §2. Under the FAA, a party to an arbitration agreement may petition a United States district court for an order directing that “arbitration proceed in the manner provided for in such agreement.” §4. Consistent with these provisions, we have said on numerous occasions that the central or “primary” purpose of the FAA is to ensure that “private agreements to arbitrate are enforced according to their terms.” Volt, supra, at 479; Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U. S. 52, 57, 58 (1995); see also Doctor’s Associates, Inc. v. Casarotto, 517 U. S. 681, 688 (1996). See generally 9 U. S. C. §4. Whether enforcing an agreement to arbitrate or construing an arbitration clause, courts and arbitrators must “give effect to the contractual rights and expectations of the parties.” Volt, supra, at 479. In this endeavor, “as with any other contract, the parties’ intentions control.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 626 (1985). This is because an arbitrator derives his or her powers from the parties’ agreement to forgo the legal process and submit their disputes to private dispute resolution. See AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643, 648-649 (1986) (“[A]rbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitration”); Mitsubishi Motors, supra, at 628 (“By agreeing to arbitrate..., [a party] trades the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration”); see also Steelworkers v. Warrior & Gulf Nav. Co., 363 U. S. 574, 581 (1960) (an arbitrator “has no general charter to administer justice for a community which transcends the parties” but rather is “part of a system of self-government created by and confined to the parties” (internal quotation marks omitted)). Underscoring the consensual nature of private dispute resolution, we have held that parties are “‘generally free to structure their arbitration agreements as they see fit.’” Mastrobuono, supra, at 57; see also AT&T Technologies, supra, at 648-649. For example, we have held that parties may agree to limit the issues they choose to arbitrate, see Mitsubishi Motors, supra, at 628, and may agree on rules under which any arbitration will proceed, Volt, supra, at 479. They may choose who will resolve specific disputes. E. g., App. 30a; Alexander v. Gardner-Denver Co., 415 U. S. 36, 57 (1974); Burchell v. Marsh, 17 How. 344, 349 (1855); see also International Produce, Inc. v. A/S Rosshavet, 638 F. 2d 548, 552 (CA2) (“The most sought-after arbitrators are those who are prominent and experienced members of the specific business community in which the dispute to be arbitrated arose”), cert. denied, 451 U. S. 1017 (1981). We think it is also clear from our precedents and the contractual nature of arbitration that parties may specify with wkom they choose to arbitrate their disputes. See EEOC v. Waffle House, Inc., 534 U. S. 279, 289 (2002) (“[Njothing in the [FAA] authorizes a court to compel arbitration of any issues, or by any parties, that are not already covered in the agreement” (emphasis added)); Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 20 (1983) (“[A]n arbitration agreement must be enforced notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement”); Steelworkers, supra, at 581 (an arbitrator “has no general charter to administer justice for a community which transcends the parties” (internal quotation marks omitted)); accord, First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938, 943 (1995) (“[Arbitration is simply a matter of contract between the parties; it is a way to resolve those disputes — but only those disputes — that the parties have agreed to submit to arbitration” (emphasis added)). It falls to courts and arbitrators to give effect to these contractual limitations, and when doing so, courts and arbitrators must not lose sight of the purpose of the exercise: to give effect to the intent of the parties. Volt, 489 U. S., at 479. B From these principles, it follows that a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so. In this case, however, the arbitration panel imposed class arbitration even though the parties concurred that they had reached “no agreement” on that issue, see App. 77a. The critical point, in the view of the arbitration panel, was that petitioners did not “establish that the parties to the charter agreements intended to preclude class arbitration.” App. to Pet. for Cert. 51a. Even though the parties are sophisticated business entities, even though there is no tradition of class arbitration under maritime law, and even though AnimalFeeds does not dispute that it is customary for the shipper to choose the charter party that is used for a particular shipment, the panel regarded the agreement’s silence on the question of class arbitration as dispositive. The panel’s conclusion is fundamentally at war with the foundational FAA principle that arbitration is a matter of consent. In certain contexts, it is appropriate to presume that parties that enter into an arbitration agreement implicitly authorize the arbitrator to adopt such procedures as are necessary to give effect to the parties’ agreement. Thus, we have said that “' “procedural” questions which grow out of the dispute and bear on its final disposition’ are presumptively not for the judge, but for an arbitrator, to decide.” Howsam v. Dean Witter Reynolds, Inc., 537 U. S. 79, 84 (2002) (quoting John Wiley & Sons, Inc. v. Livingston, 376 U. S. 543, 557 (1964)). This recognition is grounded in the background principle that “[w]hen the parties to a bargain sufficiently defined to be a contract have not agreed with respect to a term which is essential to a determination of their rights and duties, a term which is reasonable in the circumstances is supplied by the court.” Restatement (Second) of Contracts §204 (1979). An implicit agreement to authorize class-action arbitration, however, is not a term that the arbitrator may infer solely from the fact of the parties’ agreement to arbitrate. This is so because class-action arbitration changes the nature of arbitration to such a degree that it cannot be presumed the parties consented to it by simply agreeing to submit their disputes to an arbitrator. In bilateral arbitration, parties forgo the procedural rigor and appellate review of the courts in order to realize the benefits of private dispute resolution: lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes. See Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 31 (1991); Mitsubishi Motors, 473 U. S., at 628; see also 14 Penn Plaza LLC v. Pyett, 556 U. S. 247, 257 (2009) (“Parties generally favor arbitration precisely because of the economics of dispute resolution” (citing Circuit City Stores, Inc. v. Adams, 532 U. S. 105, 123 (2001))); Gardner-Denver, supra, at 57 (“Parties usually choose an arbitrator because they trust his knowledge and judgment concerning the demands and norms of industrial relations”). But the relative benefits of class-action arbitration are much less assured, giving reason to doubt the parties’ mutual consent to resolve disputes through classwide arbitration. Cf. First Options, supra, at 945 (noting that “one can understand why courts might hesitate to interpret silence or ambiguity on the ‘who should decide arbitrability point as giving the arbitrators that power, for doing so might too often force unwilling parties to arbitrate” contrary to their expectations). Consider just some of the fundamental changes brought about by the shift from bilateral arbitration to class-action arbitration. An arbitrator chosen according to an agreed-upon procedure, see, e. g., supra, at 667, no longer resolves a single dispute between the parties to a single agreement, but instead resolves many disputes between hundreds or perhaps even thousands of parties. See App. 86a (“[W]e believe domestic class members could be in the hundreds” and that “[t]here could be Question: What is the manner in which the Court took jurisdiction? A. cert B. appeal C. bail D. certification E. docketing fee F. rehearing or restored to calendar for reargument G. injunction H. mandamus I. original J. prohibition K. stay L. writ of error M. writ of habeas corpus N. unspecified, other Answer:
songer_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". BALTIMORE REGIONAL JOINT BOARD, Amalgamated Clothing Workers of America, Appellant, v. WEBSTER CLOTHES, INC., Appellee. No. 78-1216. United States Court of Appeals, Fourth Circuit. Argued Jan. 9, 1979. Decided April 6, 1979. Bernard W. Rubenstein, Baltimore, Md., for appellant. Jeffrey E. Rockman, Alan I. Baron, Baltimore, Md., for appellee. Before HALL, Circuit Judge, JACK R. MILLER, Judge, United States Court of Customs and Patent Appeals, sitting by designation, and PHILLIPS, Circuit Judge. PER CURIAM: Amalgamated Clothing Workers of America (hereinafter Union) appeals from an order of the District Court for the District of Maryland granting motion by the plaintiff, Webster Clothes, Inc. (hereinafter Webster) for summary judgment vacating an arbitrator’s award in favor of the Union for the benefit of Webster’s employees. We affirm. Webster brought this action against the Union to have vacated an arbitrator’s decision granting an award of damages to the Union for Webster’s breach of a collective bargaining agreement. The facts leading up to the arbitration were as follows. At the times in issue Webster operated several men’s clothing stores, and until the latter part of 1974, manufactured suits for its retail business in its own factory in Westminster, Maryland. This manufacturing operation was covered by various successive collective bargaining agreements between Webster and the Union. Article XVII of the agreement that was in effect at the critical time in this litigation contained a provision requiring union consent to any agreement Webster might make with a supplier for the manufacture of clothes for Webster’s retail stores. On September 9, 1974 Webster advised the Union that it would close down its manufacturing operation at the Westminster plant at the close of fall production. At about the same time, the Union learned that Webster had contracted, without Union consent, for the production by and purchase of suits from the Gary Allen Co. On learning of the planned shutdown of operations the Union struck Webster’s factory and warehouse. An emergency arbitration meeting was held on September 15, 1974, at which time the arbitrator granted Webster’s request for an interim order enjoining the strike. Some time around the end of October 1974 Webster, at the close of fall production, permanently shut down its plant. Thereafter several hearings were held before the arbitrator and on February 4, 1975, the challenged decision was rendered. The arbitrator found that Webster had breached Article XVII of the bargaining agreement by contracting, without Union consent, with other companies, particularly Gary Allen, for the manufacture of clothing. Noting the decline in Webster’s purchase of cloth and union labels in 1974 and the fact that the Union was “sewn out” by late October or early November 1974, the arbitrator found that, as a result of Webster’s unauthorized activity, the Union had suffered a payroll loss of approximately $80,000 in 1974. The arbitrator noted that “while it may well have been true . that goods manufactured in the plant would have been too late for the Fall season, the fact remains that the Agreement required the Company to obtain Union consent to such outside manufacturing operations.” Thereupon the arbitrator ordered that Webster pay the Union $80,000 for distribution among Webster’s former employees. Webster then brought this action to have the award vacated on grounds that the arbitrator exceeded his authority under the agreement by issuing an award both contrary to the facts presented at the arbitration hearings and not contemplated by the terms of that agreement. Following a hearing on the parties’ cross-motions for summary judgment, the district judge ordered the arbitrator to submit a detailed explanation regarding his computation of the award of $80,000, for consideration in ruling on the motion. The arbitrator’s explanation stated that the $80,000 figure was based on his conclusion from the facts presented that the November and December 1974 payrolls were lost by virtue of Webster’s breach, and that, as compared with average payrolls for the years 1968-1973, this loss amounted to a sum of $80,-000. Following a renewed hearing on the parties’ cross-motions for summary judgment, the district court entered summary judgment vacating the arbitrator’s award and this appeal followed. In granting summary judgment, the district court accepted as undisputed facts that the Westminster plant was operating at full capacity with some overtime at the time garments were purchased from Gary Allen, and that these garments would not have been made at Westminster even if not made by Gary Allen because they were fall garments which had to be in the stores by October 15. On this basis the Court concluded that as a matter of law there had been no showing of actual damages resulting from Webster’s breach of the agreement, and that the arbitrator, in making a demonstrably punitive award, had gone beyond the terms of the agreement. We agree with this analysis. In Westinghouse Electric Corp., Aerospace Division v. IBEW, Local 1805, 561 F.2d 521 (4th Cir. 1977), this Court held unenforceable an arbitrator’s award to union members of extra paid vacation days for the employer’s breach of a union contract provision requiring negotiations regarding vacation shutdowns. The union in that case had failed to show either monetary loss resulting from the breach or willful or wanton conduct in its perpetration. We stated that “[w]ith respect to vacation shutdowns, compensatory damages may be awarded only when a breach of the bargaining agreement causes a monetary loss . . . . ” Id. at 523. Webster relies on Westinghouse to support the district court’s judgment here. The Union contends that the Westinghouse holding is limited to awards concerning vacation shutdowns, and that, in any case, it should not be applied to a breach of a provision so essential to the agreement as that here involved. The Union further contends that, although there may be some uncertainty as to the nature and the amount of the loss suffered as a result of Webster’s breach, given the latitude afforded arbitrators in fashioning remedies in United Steelworkers v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960), the arbitrator here, having found a breach, had the authority to, and did, fashion an appropriate remedy to compensate Webster employees. We do not read Westinghouse to be so narrowly based, nor Enterprise Wheel to authorize the award here made. It is clear that in order to be entitled to compensatory damages for contract breach, a party must have suffered some legally cognizable loss, be it manifestly monetary or measurable in monetary terms. This is Westinghouse’s burden, and it is not confined to essential as opposed to peripheral terms of contracts. There was simply no rationally probative evidence on the record before the arbitrator that Webster’s breach caused in fact a loss to its employees of any sort traditionally justifying an award of compensatory damages. Nothing said in Enterprise Wheel negates the requirement that compensatory damages be based upon cognizable loss causally traceable to breach. The Court in that case said: “[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement [H]is award is legitimate only so long as it draws its essence from the collective bargaining agreement . . . .’’ Id. at 597, 80 S.Ct. at 1361. The award of damages in the present case does not draw its essence from the bargaining agreement, for the agreement’s essence does not contemplate punitive, but only compensatory awards. Though not termed punitive, the award here given can only be such, for there is nothing in the record showing it validly compensatory, and it is manifestly not nominal. In the absence of any provision for punitive awards, and of any substantiating proof of willful or wanton conduct, an arbitrator may not make an award of punitive damages for breach of a collective bargaining agreement. Westinghouse Electric Corp., Aerospace Division v. IBEW, Local 1805, 561 F.2d 521 (4th Cir. 1977). See also Local 127, United Shoe Workers v. Brooks Shoe Mfg. Co., 298 F.2d 277 (3d Cir. 1962). There being no provision in the agreement here for an award of punitive damages, the arbitrator’s award is not sustainable. The judgment vacating it is therefore affirmed. AFFIRMED. . Article XVII of the collective bargaining agreement provided: OTHER FACTORIES AND CONTRACTORS A. During the term of this Agreement the Employer agrees that he shall not, without the consent of the Union, remove or cause to be removed his present plant or plants from the city or cities in which such plant or plants are located. B. During the term of this Agreement the Employer may with the consent of the Union manufacture clothing or cause them to be manufactured for his own business use in a factory other than his present factory or factories provided his factory or factories have and continue to have full employment and provided further that such other factory or factories are under contract with the Union. C. The Employer further agrees that he shall send work only to such Union contractors designated by agreement of the parties herein. The Employer employing contractors agrees simultaneously with the execution of this Agreement to execute a contractor registration statement, the terms and conditions of which shall be specifically incorporated herein by reference. . The arbitrator’s decision denied the Union’s prayer for an order requiring Webster to resume production at the Westminster plant. . It is true that the “undisputed” facts underlying this conclusion came solely from testimony by Webster and that the arbitrator could have rejected its credibility, but given two opportunities to say as much, and to justify the award as compensatory rather than punitive, he did not do so. In fact, tne arcurators opinion indicates that he did not entertain serious doubts concerning the credibility of the testimony. Accepting it, he held the award still justifiable on the basis alone of the technical breach. 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_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. Shelly MARTINDALE, Jr., Plaintiff-Appellee, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant-Appellant. No. 89-7105. United States Court of Appeals, Eleventh Circuit. Dec. 13, 1989. Frank W. Donaldson, U.S. Atty., Jenny L. Smith, Marvin Neil Smith, Jr., D. Wayne Rogers, Jr., Asst. U.S. Attys., Birmingham, Ala., for defendant-appellant. Lisa Janet Naas, Legal Services of North-Central Alabama, Decatur, Ala., for plaintiff-appellee. Before JOHNSON and EDMONDSON, Circuit Judges, and PECKHAM , Senior District Judge. Honorable Robert F. Peckham, Senior U.S. District Judge for the Northern District of California, sitting by designation. PER CURIAM: The only issue presented in this appeal is whether the district court’s order under 42 U.S.C.A. § 405(g) reversing the decision of the Secretary of Health and Human Services to deny disability benefits to Martindale was a “final judgment” which, when no longer appealable, commenced the thirty day period in which an application could be made for attorney’s fees under the Equal Access to Justice Act, 28 U.S.C.A. § 2412(d) (“EAJA”). On June 15, 1988, the district court entered an order which read, in pertinent part: “[I]t is hereby ORDERED, ADJUDGED and DECREED that the decision of the Secretary is REVERSED, and this action is REMANDED to the Secretary for an award of benefits.” Upon “remand,” as directed by the district court, the disability benefits were awarded. On September 23, 1988, upon Martindale’s motion, the district court entered an order “dismissing” the case. On October 20, 1988, Martindale filed an application for attorney’s fees under the EAJA. This application was filed within thirty days of the court’s order “dismissing” the case but more than four months after the decision of the Secretary to deny benefits was reversed and remanded by the court “for an award of benefits.” On November 30, 1988, the district court entered an order awarding attorney’s fees, rejecting the Secretary’s argument that the fee petition was untimely and holding that the September 23, 1988 order was the “final judgment” for purposes of the EAJA. See 28 U.S.C.A. § 2412(d)(2)(G). In Taylor v. Heckler, 778 F.2d 674 (11th Cir.1985), this Court considered the question of what is a “final judgment” for EAJA purposes. We held that a court order remanding a case to the Secretary for further administrative proceedings is an interlocutory order and not a final judgment. Id. at 677-78; see also Farr v. Heckler, 729 F.2d 1426 (11th Cir.1984); Howell v. Schweiker, 699 F.2d 524 (11th Cir.1983). In such a situation, we held that “a claimant who has obtained a remand order from the district court cannot apply for a fee under the [EAJA] until the administrative process has come to an end and the district court has entered a final judgment.” Taylor, 778 F.2d at 677-78. In Taylor, we found the “final judgment” to be the district court’s post-remand order dismissing the case, which followed the Secretary’s decision on remand to award the claimed benefits. See id. at 678 & n. 5. The Supreme Court has recently discussed the finality of remand orders under the EAJA in terms consistent with Taylor, observing that “[t]he Secretary concedes that a remand order from a district court to the agency is not a final determination of the civil action and that the district court ‘retains jurisdiction to review any determination rendered on remand.’ ” Sullivan v. Hudson, — U.S. -, 109 S.Ct. 2248, 2255, 104 L.Ed.2d 941 (1989). Taylor and Hudson, however, do not support affirmance of the district court’s judgment in this case. An order remanding a case for further administrative proceedings is completely different from an order such as the one entered by the district court on June 15, 1988 in this case. The district court’s order determined that Martindale was entitled to benefits and ordered the Secretary to award the benefits. Although styled as a “remand,” the order left nothing further to be done except to execute the judgment. The Secretary had no authority to conduct further administrative proceedings, consider any new evidence, or exercise any discretion about whether or not to award Martindale the disputed benefits. The district court awarded the disability benefits as claimed. Taylor did observe that “[t]his circuit treats all remand orders to the Secretary as interlocutory orders, not as final judgments.” Id. at 677 (emphasis in original). It is clear from the language, context, and logic of Taylor and Hudson, however, that the “remand” contemplated by those cases is a remand for further administrative proceedings, in which the Secretary would exercise further independent judgment as to whether to “grant or deny benefits to the claimant in light of the district court’s decision.” Taylor, 778 F.2d at 677. Such proceedings would be followed, if necessary, by judicial review of “any determination rendered on remand.” Hudson, 109 S.Ct. at 2255. There was no occasion for any further administrative decisionmaking on remand in this case, nor for any further judicial review by the district court. We find this case analogous to Tallahassee Memorial Regional Medical Center v. Bowen, 815 F.2d 1435 (11th Cir.1987), cert. denied, 485 U.S. 1020, 108 S.Ct. 1573, 99 L.Ed.2d 888 (1988), where we found that a district court order remanding a case to the Secretary “for further consideration” was final because in fact the Secretary could have taken only one course of action on remand. “Thus,” we held, “as far as the district court was concerned, the litigation of the merits was completed.” Id. at 1443 n. 12. The district court’s June 15, 1988 order was the final judgment in this case. Mar-tindale’s October 20, 1988 application for attorney’s fees fell outside the time limit provided by the EAJA. Therefore, the district court’s November 30, 1988 order awarding attorney’s fees to Martindale was entered without jurisdiction. See United States v. Inc., 872 F.2d 373, 375 (11th Cir.1989). REVERSED. . Martindale argues that the district court left open the issue of when the onset of disability occurred and what the precise calculation of benefits would be. The record does not support this. The Administrative Law Judge, in his original January 30, 1987 decision, found "no conflict in the evidence” that Martindale's disability commenced on March 14, 1986. This was not subsequently disputed by any party. The only dispute before the district court concerned whether the disability was temporary or permanent. There was likewise no dispute about what benefits Martindale would be entitled to if the disability were found to be permanent. The Secretary's computation of benefits on remand was a purely mechanical and ministerial function which did not constitute "further administrative proceedings" for present purposes. . Hudson involved remand of a case to the Secretary for reconsideration under different legal standards, with provision for a supplemental hearing "to adduce additional evidence.” See id. at 2252. Hudson observed that “[a]s in this case, there will often be no final judgment in a claimant’s civil action for judicial review until the administrative proceedings on remand are complete.” Id. at 2255 (emphasis added). Hudson is thus perfectly consistent with the conclusion that a judgment is “final” for EAJA purposes where nothing remains on "remand” but to award benefits as ordered by the court. .The fact that the district court styled its order as a “remand,” rather than directly ordering the award of the disputed benefits, is not disposi-tive. To hold otherwise would elevate form over substance. We recognize that Martindale may have been unintentionally misled by the district court's phrasing. The district court’s characterization of its final judgment as an interlocutory remand cannot make it so, however. See General Television Arts, Inc. v. Southern Ry. Co., 725 F.2d 1327, 1331 n. 5 (11th Cir.1984) ("Unfortunately for the appellant ... a district court mislabeling a non-final judgment 'final’ does not make it so.”). We would suggest that verbal confusion may be avoided in the future by terming an order a "remand” only where further independent judgment on the part of the Secretary is called for. . Tallahassee dealt with the finality of a judgment under 28 U.S.C.A. § 1291. As Taylor itself noted, however, there is no reason to construe the concept of finality differently under the EAJA. See 778 F.2d at 677. . 28 U.S.C.A. § 2412(d)(2)(G) defines a "final judgment” for EAJA purposes as “a judgment that is final and not appealable.” Thus, the thirty day period provided by 28 U.S.C.A. § 2412(d)(1)(B) would not begin to run following an appealable judgment until the time for filing a notice of appeal expired. See James v. United States Dep’t of Housing and Urban Dev., 783 F.2d 997, 999 (11th Cir.1986) (“final judgment” under EAJA “mean[s] the date on which a party’s case has met its final demise, [such] that there is nothing further the party can do to give it life”). With regard to the June 15, 1988 order in this case, the time limit for applying for attorney’s fees terminated on September 13, 1988, thirty days following the expiration, on August 14, 1988, of the sixty day period for filing an appeal under Fed.R.App.P. 4(a)(1). Cf. James, 783 F.2d at 998-99 & n. 2 (EAJA application not untimely merely because filed before final judgment became nonappealable). 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_usc1sect	47	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". EXCHANGE NAT. BANK OF SPOKANE et al. v. MEIKLE. No. 6571. Circuit Court of Appeals, Ninth Circuit. Sept. 14, 1932. WILBUR, Circuit Judge, dissenting. Hamblen & Gilbert and Post, Russell,Davis & Paine, all of Spokane, Wash., for appellants. Sidney Teiser and Teiser & Keller, all of Portland, Or., for appellee., Before WILBUR and SAWTELLE, Cir-enit Judges, and MeCORMICK, District Judge. Rehearing denied November 28, 1932. SAWTELLE, Circuit Judge. This appeal comes from a suit in equity brought in the United States District Court of the Eastern District of Washington, by J. D. Meikle, a eitizen of Oregon, trustee in bankruptcy of the Fred Herrick Lumber Company, an Oregon corporation, against the Exchange National Bank of Spokane, Wash., and J. A. Drain, receiver of said bank, both citizens of Washington, for recovery of $49,446.56, with interest, alleged to be due the bankrupt lumber company from the bank. Fred Herrick for many years had extensive holdings in the lumber business in the south and in the northwest, and owned all but the qualifying shares of stock in the Milwaukee Lumber Company, the Coeur d’Alene Mill Company, and the Export Lumber Company, all Idaho corporations; also, 50 per cent, of the stock of the Scotch Lumber Company. In 1923 Herrick organized the Fred Herrick Lumber Company, an Oregon corporation with its principal office in Burns, Or., to open up valuable timber holdings. Of this company he was president and owned all the stock except about 102 shares. The capital stock of the company was $500,000, and Herrick furnished the money and subscribed for the original stock issue. The company began the construction of a lumber mill and railroad in connection therewith, and as the size of the undertaking grew more money was needed. The capital stock'was increased from $500,000 to $2,000,000, the money for which came chiefly from other companies owned by Herrick personally. In this connection Mr. Herrick said: “The capital stock was increased from $500,000 to two million dollars because I had put in more money than the $500,000. The arrangement from the inception was that I ivas to take stock for the money I put into the concern and that continued until the company was finally sold.” This testimony was corroborated by that of J. W. Girard, vice president and general manager of the Fred Herrick Lumber Company. However, there was no formal agreement to that effect entered into between the corporation and Herrick, and only share certificates in blank were actually issued to Herrick. The Herrick Lumber Company received money from both the Export Company and the Milwaukee Company, hut the greater amount from the latter. During the period of time in question the advances from the Milwaukee Company to the Herrick Company amounted to $506,445.02, which were handled in the following manner: Mr. Herrick used the Milwaukee Company much as he would have used a bank, and had therein an account called “The Fred Herrick Advance Aeeount.” On the credit side of this account went such items as Mr. Herrick’s monthly salary, payments to Mr. Herrick from the Export Lumber Company, the Coeur d’Alene Mill Company, the Scotch Lumber Company, proceeds from the sale of the Interior Lumber Company; in short, any money received by Mr. Herrick from his many and various enterprises. On the debit side appeared the items for Mr. Herrick’s ordinary living expenses, his food and clothing and telephone bilis, his investments. The account was carried by the Milwaukee Lumber Company in much the same manner as a bank would have carried it. Mr. Herrick also had a personal bank account at a hank in St. Maries, but any overdrafts were taken care of by cheeks from the Milwaukee Company, which cheeks were debited to the “Fred Herrick Advance Account.” During the period from May 14, 1923, to October 30, .1928, which covers the time when the advances wore being made to the Fred Herrick Lumber Company, there was deposited in the “Fred Herrick Advance Aeeount” of the Milwaukee Company the sum of $2,953,725.50, and the amount of disbursements during the same period was $2,-217,216.44, showing a credit balance of over $736,000. All the money received from Mr. Herrick was also kept in a “Fred Herrick Advance Account” on the books of the Fred Herrick Lumber Company. Of the moneys obtained from the Milwaukee Company some $109,000 was evidenced by cheeks drawn by the Milwaukee Lumber Company to the order of the Fred Herrick Lumber Company, and $318,-622.50 was obtained from the Milwaukee Company in the following manner: Fred Herrick gave his individual check to the Fred Herrick Lumber Company drawn on the First National Bank of St. Maries, Idaho. Generally these checks were issued in blank, the amount not being filled in, and they were left with Mr. Girard to he filled out and deposited when needed. They were filled out by Mr. Girard from time to time and deposited with the Fred Herrick Lumber Company in its bank at Bums, and by that bank sent for clearance or collection to the First National Bank at St. Maries. Generally there would not be sufficient funds in the latter bank to honor the same and the bank would call upon the Milwaukee Company to make these checks good, and the Milwaukee Company would cover such cheeks by depositing forthwith almost identical sums. Money was obtained from the Export Lumber Company as follows: the Export Lumber Company borrowed $100,000 from the First National Bank of Portland for which it gave its note. The $100,000 thus obtained was transmitted at the request of the Export Lumber Company to the Exchange National Bank of Spokane. This latter bank thereupon at the request of the Export Lumber Company distributed for the account and on behalf of the Fred Herrick Lumber Company out of said moneys the sum of $50,000 by transmitting the same to the First National Bank at Burns, Or., for deposit to the credit of the account of the Fred Herrick Lumber Company, which $50,000 was so deposited; $10,066.67 was transmitted to the Washington National Bank of El-lensburg for the purpose of taking up two notes of the Fred Herrick Lumber Company held by that bank, and said two notes were so paid. These advances by the Milwaukee Lumber Company and by the Export Company to the Herrick Company constituted the consideration for claims filed and allowed in the bankruptcy proceedings. The Milwaukee Company never paid a dividend on its stock nor was there any corporate authorization for the withdrawals of money from that company by or on behalf of Fred Herrick. In September, 1928, Fred Herrick and two officers and directors of the Fred Herrick Lumber Company reached an agreement with the Edward Hines Western Pine Company whereby the latter agreed to purchase practically all the assets of the former for $750,000. On October 4th the sale was consummated and the assets transferred to the Hines Company. At the time of the transfer the Fred Herrick Company gave an order to the Hines Company to pay, from the $750,-000, certain specified sums to enumerated creditors of the Herrick Company. The sums owed aggregated the full amount of the purchase priee and none of it was turned over to the Herrick Company except $10,264.02 ■for distribution in satisfaction of local current bills. On the list of creditors among others was that of appellant here in the sum of $49,446.56. At the time the payment to the Exchange National Bank was made, Fabian B. Dodds, representing Fred Herrick’s personal creditors to whom Herrick had assigned his shares of stock in the Fred Herrick Lumber Company, protested by word of mouth and by letter that, if this money was accepted by the bank, it would be a preference and that he would attempt to recover same on behalf of creditors. The Fred Herrick Lumber Company was adjudicated bankrupt upon a voluntary petition on January 15, 1929, by the District Court of the United States for the District of Oregon, and thereafter J. D. Meikle, ap-pellee herein, was elected trustee and duly qualified. On August 5, 1929, a suit was instituted against the Exchange National Bank of Spokane and James A. Drain, receiver thereof, to recover from said bank the payment of $49,446.56 as an unlawful preference, and, on May 20, 1931, after trial, a decree was entered in favor of the trustee and against the Exchange National Bank, setting aside said preferential payment and giving judgment for the amount prayed in said complaint with interest from the date of filing said suit. Petition for appeal was not filed until July-27, 1931, more than thirty but less than ninety days after the entry of the decree, and the order granting the appeal was not made until July 30, 1931. Appellee has filed a motion in this court to dismiss the appeal herein because the appeal was not filed within thirty days after the entry of the decree as provided for in section 24c of the Bankruptcy Act, as amended (11 USCA § 47(e). We think this section inapplicable in a plenary suit like the one before us. The same question, namely, the time within which an appeal must be taken in cases of this character, has recently been considered by the Second Circuit Court of Appeals in the ease of Lowenstein v. Reikes et al., 54 F.(2d) 481, certiorari denied February 23, 1932, 285 U. S. 539, 52 S. Ct. 311, 76 L. Ed. 932. With the conclusion therein reached we are in full accord. The motion to dismiss is denied. The record shows that the testimony was all taken in open court. As this court has previously said in two eases: “On tlie foregoing facte, tlie appellant is confronted by two well-established principles of law, from which there is little or no dissent: First, 1he findings of the chancellor, based on testimony taken in open court, are presumptively correct and will not be disturbed on appeal, save for obvious error of law or serious mistake of fact. * * * ” Easton v. Brant (C. C. A.) 19 F. (2d) 857, 859; Gila Water Company v. International Finance Corporation (C. C. A.) 13 F.(2d) 1, 2. We are concerned, therefore, chiefly with tho conclusions of law, the correctness of which may be determined, as appellant concedes, by the answer to one question, namely: Was the Herrick Lumber Company solvent or insolvent on October 9, 1928, the date on which Hie payment of $49,446.56 was made to the Exchange National Bank of Spokane? If the company was solvent, the payment to the bank was valid; if the company was insolvent, then the payment to the bank constituted a preference against creditors within the meaning of the Bankruptcy Act (11 IJSCA) and is voidable. A careful study of the assets and liabilities of the Fred TTerrick Lumber Company on October 9,1928, as tabulated in the briefs, shows that the solvency or insolvency of the company on that date must be determined by the construction placed upon the “Fred Herrick Advance Account.” If that account, in the sum of $506,445.02, was evidence of tho liability of the Fred Herrick Lumber Company to tho Milwaukee Company for that amount, then the Fred Herrick Lumber Company was insolvent on October 9th. The manner in which the officers of Mr. Herrick’s various companies regarded the “FVed Herrick Advanee Account” must be considered. It will be remembered that Herrick was the sole owner, except for a few shares of qualifying stock, of several large companies. In connection with his method of doing business, Mr. Herrick said: “The Milwaukee Lumber Company was the resident company and all transactions went thru the Milwaukee Company. For instance, the proceeds of the sale of the Interior Lumber Company went thru the Milwaukee Company. The reason for' putting the money in in that way was that Mr. Palmer did the collecting for me in these accounts and the money came in there if I wanted it paid out to any individual company he paid it out. The money that went in was my money and I was given credit for it in my personal account and as it was spent I had Mr. Palmer issue cheeks for it and it was charged to me. During those years there were many hundreds of thousands of dollars handled that way, and during the latter part of the term I was sole owner of all of the stock of the Milwaukee Lumber Company and tho other companies except the qualifying shares. * •* * “I only took out of these companies what was mine. It kept coming in from every direction. If a dividend came from the Alabama property, it went into the Milwaukee office; if a dividend eame in from the Interior Company, it went there. * * f' The Milwaukee Lumber Company was acting as distributing agent from its inception even tho the Scotch Lumber Company owned fifty per cent of the stock. * * * ” Mr. J. W. Girard, vice president and general manager of the Fred Herrick Lumber Company, said: “Mr. Herrick was practically the whole Fred Herrick Lumber Company. The financing rested largely on him and when the company needed money we looked to him to furnish it. s * * The FVed Herrick advance account showed - all tho money we had received from FVed Herrick. I assumed that it was all coming from Fred Herrick or as a result of his activity or his interest, but whether or not it was all received direct from Mr. Herrick as an individual I could not tell. * * * ” The manner in which Herrick’s business enterprises were carried on shows a complete disregard of corporate organization and identity, not only with regard to corporations chartered in the same state but also with regard to corporations chartered in different states. It is not difficult to see Herrick as tho prime mover of all the various companies, but the rule is well established that a corporation exists as an entity, and that courts of law will not go beyond the fact of corporate existence in order to examine the real ownership of a corporation. The New York Court of Appeals has laid down the general rule as follows: “In no legal sense can the business of a corporation be said to be that of its individual stockholders. It is true that they have an interest in the business carried on, and an influence in controlling its conduct; but they have created a legal entity to prosecute such business, make its contracts, and be responsible for its obligations, and that entity is alone responsible to persons dealing with it for the conduct of such business.” People v. American Bell Telephone Company, 117 N. Y. 241, 255, 22 N. E. 1057, 1062. Quoted in Cook oil Corporations (Eighth Ed.) vol. III, §§ 663, 664, p. 2566. See, also, Eisner v. Macomber, 252 U. S. 189, 214, 40 S. Ct. 189, 64 L. Ed. 521, 9 A. L. R. 1570; Rhode Island Hospital Trust Co. v. Doughton, 270 U. S. 69, 82, 46 S. Ct. 256, 70 L. Ed. 475, 43 A. L. R. 1374; Flink v. Paladini, 279 U. S. 59, 63, 49 S. Ct. 255, 73 L. Ed. 613. Moreover, this general rule is' observed even when all or practically all of the stock is owned, as here, by one person. “A corporation can not act except through its proper agents and in the prescribed way, and in the operation of the principle it makes no difference that the stockholder owns all or practically all the stock of the corporation and controls it, still the property of the corporation does not belong to him, but to the corporation.” [Numerous cases cited.] Thompson on Corporations, vol. 6, § 4475, p. 350. Again, “even when all the st.ock is owned by a sole shareholder, there seems no adequate reason to depart from the general rule that the corporation and its shareholders are to be treated as distinct legal persons.” Green v. Victor Talking Machine Co. (C. C. A. 2) 24 F. (2d) 378, 59 A. L. R. 1091. The ease of Elenkrieg v. Siebrecht, 238 N. Y. 254, 144 N. E. 519, 521, 34 A. L. R. 592, presents a particularly close analogy. There the court said: “Merely because Siebreeht referred to the property as his property cannot overcome the undisputed fact of the corporation’s existence and ownership. His family owned all the stock of the corporation, and it is a fact that the corporation was a family affair. * * * However this may be, the corporation exists; it has title to the property; it maintains and operates the property through agents. The fact that it is a family corporation, so to speak, is nothing suspicious or illegal. Innumerable are the corporations wherein all the stock is owned by a few members of one family. The fact that one man may own all but a few shares of the stock, and be in fact the dominant and controlling factor or the only active manager of the corporation, is no evidence in and of itself that the corporation does not exist as a person in the eyes of the law actually owning, operating, and controlling property.” We are not unmindful of a long line of cases in which the courts, particularly courts of equity, have looked behind the technical fact of corporate organization to hold that the individual shareholders are the real persons in interest. See, for example, In re Rieger, Kapner & Altmark (D. C.) 157 F. 609; Minifie v. Rowley, 187 Cal. 481, 202 P. 673, 676; United States v. Milwaukee Refrigerator Transit Co. (C. C.) 142 F. 247; MeCaskill Co. v. United States, 216 U. S. 504, 514, 515, 30 S. Ct. 386, 54 L. Ed. 590. Minifie v. Rowley, supra, holds that the courts will disregard corporate identity when failure to do so would “sanction a fraud or promote injustice”; we are not convinced that the facts of the instant case meet either of the criteria. We must give due weight to the uneontradieted testimony of Mr. Herrick that at all times he considered the “Fred Herrick Advance Account” on the books of the Milwaukee Company in the nature of a bank account, and that he felt at all times that any sums he put therein were his money. But the question of title to those funds is one of law and not of personal opinion. After the Milwaukee Company received money from Mr. Herrick or from any of his companies, the title thereto was in the corporation and not in Herrick personally. The transfer of large sums by the Milwaukee Company to the Fred Herrick Lumber Company without repayment was not an authorized corporate act, and consequently, in the absence of any showing that the sums were for materials or for value received in any form, created a liability of the Fred Herrick Lumber Company to the Milwaukee Company. The fact that Fred Herrick personally, owning all or substantially all the stock of the Milwaukee Company, authorized the transfers in a personal capacity through a mistaken conception of his own rights does not alter the situation. Corporations exist as legal persons and the courts uphold them in the exercise of their independent rightá, as distinguished from the rights of the individual stockholders. It would be the greatest inconsistency to allow an individual to set’ up any number of corporations, to recognize the corporate existence when it might be to his interests to do .so, and to disregard entirely such organization and ignore completely the corporate fiction whenever he chose. If the position contended for by appellant here were upheld, the result would be Only confusion in the credit of all corporations and a growing feeling of distrust of all joint stock companies. Appellant states that the Exchange National Bank was misled by the books of the Fred Herrick Lumber - Company and would not have loaned the money here involved if it had known that the “Fred Herrick Ad-vanee Account” represented a liability of the company. That may be so, but as the title to the money remained in the Milwaukee Lumber Company, and was not transferred by any corporate act, it is the creditors of the lumber company who must first be considered. The record gives us no facts concerning the creditors of the Milwaukee Lumber Company, but if there be any it is not right to destroy capriciously, whatever assets they may have considered security for their money and to leave them completely unprotected. The “Fred Herrick Advance Account” was adopted as a bookkeeper expedient by each of the companies considered; we cannot hold that the creditors of the Milwaukee Company will have their legal status determined solely by whatever bookkeeping methods that company chose to adopt. Such a holding would mean that the rights of creditors could be disregarded in any corporations in which one person owned a majority of the stock of each. An individual who is allowed to incorporate a joint stock company is given many advantages that he would not enjoy if he owned the business personally without the guise of corporate organization; it is not too much to ask that such a person, in return for the rights that he has been granted, be required to respect the organization that he has created and to allow it to function through legally recognizable corporate acts. We do not pass on the proposition as to whether any advances received by the Herrick Company directly from Fred Herrick, or the money which the Herrick Company received from cheeks signed in blank by Herrick on his personal account, which usually constituted overdrafts that were met by the Milwaukee Company, created a stock transaction and not a loan in the light of all the facts of the case. As the advances came not from Fred Herrick personally, but from the Milwaukee Company, we are constrained to hold that they created a liability of the Fred Herrick Lumber Company to the Milwaukee Lumber Company. That being so, the total sum of $506,445.02 of the “Fred Herrick Advance Account” on the books of the Fred Herrick Lumber Company was a liability on October 9, 1928, and it clearly follows that the Fred Herrick Lumber Company was insolvent on that date. The payment to the bank, therefore, constituted a preference over creditors. We find no error in the record, and the judgment of the lower court must be affirmed. Affirmed. Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 11? Answer with a number. Answer:
sc_lcdisposition	I	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. SULLIVAN, SECRETARY OF HEALTH AND HUMAN SERVICES v. FINKELSTEIN No. 89-504. Argued April 24, 1990 Decided June 18, 1990 White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, Marshall, Stevens, O’Connor, and Kennedy, JJ., joined, and in which Scalia, J., joined except as to n. 8. Scalia, J., filed an opinion concurring in part, post, p. 631. Blackmun, J., filed an opinion concurring in the judgment, post, p. 632. Deputy Solicitor General Shapiro argued the cause for petitioner. With him on the briefs were Solicitor General Starr, Assistant Attorney General Gerson, and Edwin S. Kneedler. Kenneth V. Handal argued the cause for respondent. With him on the brief were Dennis G. Lyons and Mary G. Sprague. Justice White delivered the opinion of the Court. We granted certiorari to decide whether the Secretary of Health and Human Services may immediately appeal a district court order effectively declaring invalid regulations that limit the kinds of inquiries that must be made to determine whether a person is entitled to disability insurance benefits and remanding a claim for benefits to the Secretary for consideration without those restrictions. We hold that the Secretary may appeal such an order as a “final decision” under 28 U. S. C. § 1291. I Respondent Finkelstein is the widow of a wage earner who died in 1980 while fully insured under Title II of the Social Security Act, 49 Stat. 622, as amended, 42 U. S. C. § 401 et seq. (1982 ed.). In 1983, respondent applied to the Social Security Administration for widow’s disability benefits, claiming that her heart condition made her disabled within the meaning of the section of the Social Security Act providing for surviving spouses’ disability insurance benefit payments, § 223, as added, 70 Stat. 815, and as amended, 42 U. S. C. §§ 423(d)(1)(A), (d)(2)(B) (1982 ed. and Supp. V). Section 423(d)(2)(B) states that a widow shall not be determined to be disabled unless her impairment is of a level of severity which, “under regulations prescribed by the Secretary,” is deemed sufficient to preclude an individual from engaging in any gainful activity. Under regulations promulgated by the Secretary, 20 CFR §§ 404.1577, 404.1578(a)(1) (1989), a surviving spouse is deemed disabled only if the spouse suffers from a physical or mental impairment meeting or equaling the severity of an impairment included in the Secretary’s Listing of Impairments located at Appendix 1 to 20 CFR pt. 404, subpt. P (1989). If the surviving spouse’s, impairment does not meet or equal one of the listed impairments, the Secretary will not find the spouse disabled; in particular, the Secretary will not consider whether the spouse’s impairment nonetheless makes the spouse disabled, given the spouse’s age, education, and work experience. The Secretary’s practice for spouses’ disability insurance benefits thus differs significantly from the regulations for determining whether a wage earner is entitled to disability insurance benefits. For wage earners, the Secretary has established a “five-step sequential evaluation process for determining whether a person is disabled.” Bowen v. Yuckert, 482 U. S. 137, 140 (1987). Under that five-step process, even if a wage earner’s impairment does not meet or equal one of the listed impairments, the wage earner may nonetheless be entitled to disability insurance benefits if the Secretary determines that his “impairment in fact prevents him from working.” Sullivan v. Zebley, 493 U. S. 521, 535 (1990). The Secretary maintains that the difference between the wage earner regulations and the surviving spouse regulations is supported by a difference between the two pertinent statutory definitions of disability. Compare 42 U. S. C. § 423(d)(2)(A) with § 423(d)(2)(B) (1982 ed. and Supp. V). Respondent’s application for benefits was denied on the ground that her heart condition did not meet or equal a listed impairment. After exhausting administrative remedies, respondent sought judicial review of the Secretary’s decision in the United States District Court for the District of New Jersey, invoking § 205(g) of the Social Security Act, as amended, 53 Stat. 1370, 42 U. S. C. § 405(g) (1982 ed.). The District Court sustained the Secretary’s conclusion that respondent did not suffer from an impairment that met or equaled a listed impairment. See App. to Pet. for Cert. 16a. The District Court nonetheless concluded that “the case must be remanded to the Secretary,” id., at 17a, because the record was “devoid of any findings” regarding respondent’s inability to engage in any gainful activity even though her impairment was not equal to one of the listed impairments, see ibid. The Court of Appeals for the Third Circuit dismissed the Secretary’s appeal for lack of jurisdiction. Finkelstein v. Bowen, 869 F. 2d 215 (1989). The Court of Appeals relied on its past decisions holding that “'remands to administrative agencies are not ordinarily appealable.’ ” Id., at 217 (citation omitted). Although the Court of Appeals acknowledged an exception to that rule for cases “in which an important legal issue is finally resolved and review of that issue would be foreclosed ‘as a practical matter’ if an immediate appeal were unavailable,” ibid, (citation omitted), that exception was deemed inapplicable in this case because the Secretary might persist in refusing benefits even after consideration of respondent’s residual functional capacity on remand, and the District Court might thereafter order that benefits be granted, thereby providing the Secretary with an appealable final decision. Id., at 220. The Court of Appeals conceded that the Secretary might not be able to obtain review at a later point if he concluded on remand that respondent was entitled to benefits based on her lack of residual functional capacity, but it believed this argument for immediate appeal-ability to be foreclosed by a prior decision of the Circuit. Ibid. We granted certiorari, 493 U. S. 1055 (1990). II We begin by noting that the issue before us is not the broad question whether remands to administrative agencies are always immediately appealable. There is, of course, a great variety in remands, reflecting in turn the variety of ways in which agency action may be challenged in the district courts and the possible outcomes of such challenges. The question before us rather is whether orders of the type entered by the District Court in this case are immediately appealable by the Secretary. It is necessary therefore to consider precisely what the District Court held and why it remanded this case to the Secretary. Although the District Court sustained the Secretary’s conclusion that respondent did not suffer from an impairment that met or equaled the severity of a listed impairment, it concluded that the Secretary’s ultimate conclusion that respondent was not disabled could not be sustained because other medical evidence suggested that respondent might not be able to engage in any gainful activity. Considering it “anomalous” that an impairment actually leaving respondent without the residual functional capacity to perform any gainful activity could be insufficient to warrant benefits just because it was not equal to one of the listed impairments, the District Court directed the Secretary “to inquire whether [respondent] may or may not engage in any gainful activity, as contemplated by the Act.” App. to Pet. for Cert. 18a. The District Court’s order thus essentially invalidated, as inconsistent with the Social Security Act, the Secretary’s regulations restricting spouses’ disability insurance benefits to those claimants who can show that they have impairments with “specific clinical findings that are the same as ... or are medically equivalent to” one of the listed impairments, 20 CFR § 404.1578(a)(1) (1989). Cf. Heckler v. Campbell, 461 U. S. 458, 465-466 (1983). The District Court stated that it was “remand[ing]” the case to the Secretary because the record contained no findings about the functional impact of respondent’s impairment; in effect it ordered the Secretary to address respondent’s ailment without regard for the regulations that would have precluded such consideration. The District Court’s order thus reversed the Secretary’s conclusion that respondent was not disabled and remanded for further consideration of respondent’s medical condition. Once the nature of the District Court’s action is clarified, it becomes clear how this action fits into the structure of § 405 (g). The first sentence of § 405(g) provides that an individual denied benefits by a final decision of the Secretary may obtain judicial review of that decision by filing “a civil action” in federal district court. The use of the term “a civil action” suggests that at least in the context of § 405(g), each final decision of the Secretary will be reviewable by a separate piece of litigation. The fourth and eighth sentences of § 405(g) buttress this conclusion. The fourth sentence states that in such a civil action, the district court shall have the power to enter “a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing.” (Emphasis added.) This sentence describes the action that the District Court actually took in this case. In particular, although the fourth sentence clearly foresees the possibility that a district court may remand a cause to the Secretary for rehearing (as the District Court did here), nonetheless such a remand order is a “judgment” in the terminology of § 405(g). What happened in this case is that the District Court entered “a judgment . . . reversing the decision of the Secretary, with . . . remanding the cause for a rehearing.” The District Court’s remand order was unquestionably a “judgment,” as it terminated the civil action challenging the Secretary’s final determination that respondent was not entitled to benefits, set aside that determination, and finally decided that the Secretary could not follow his own regulations in considering the disability issue. Furthermore, should the Secretary on remand undertake the inquiry mandated by the District Court and award benefits, there would be grave doubt, as the Court of Appeals recognized, whether he could appeal his own order. Thus it is that the eighth sentence of § 405(g) provides that “[t]he judgment of the court shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions.” (Emphasis added.) Respondent makes several arguments countering this construction of § 405(g) and of the District Court’s order, none of which persuade us. First, respondent argues that the remand in this case was ordered not pursuant to the fourth sentence of § 405(g), but under the sixth sentence of that section, which states in pertinent part that the District Court may “at any time order additional evidence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” Respondent points out that the District Court stated that it was ordering a remand because the evidence on the record was insufficient to support the Secretary’s conclusion and that further factfinding regarding respondent’s ailment was necessary. We do not agree with respondent that the District Court’s action in this case was a “sixth-sentence remand.” The sixth sentence of § 405(g) plainly describes an entirely different kind of remand, appropriate when the district court learns of evidence not in existence or available to the claimant at the time of the administrative proceeding that might have changed the outcome of that proceeding. For the same reason, we reject respondent’s argument, based on the seventh sentence of § 405(g), that the district court may enter an appealable final judgment upon reviewing the Secretary’s postremand “additional or modified findings of fact and decision.” The postremand review conducted by the District Court under the seventh sentence refers only to cases that were previously remanded under the sixth sentence. The seventh sentence states that the district court may review “[s]uch additional or modified findings of fact,” a reference to the second half of the sixth sentence of § 405(g), which requires that “the Secretary shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm his findings of fact or his decision, or both, and shall file with the court any such additional and modified findings of fact and decision . . . The phrase “such additional evidence” refers in turn to the “additional evidence” mentioned in the first half of the sixth sentence that the district court may order the Secretary to take in a sixth-sentence remand. See supra, at 625-626. But as the first half of the sixth sentence makes clear, the taking of this additional evidence may be ordered only upon a showing that there is material new evidence. The postremand judicial review contemplated by the seventh sentence of § 405(g) does not fit the kind of remand ordered by the District Court in this case. Respondent also argues that the eighth sentence of § 405(g), providing that the judgment of the district court “shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions,” does not compel the conclusion that a judgment entered pursuant to the fourth sentence is immediately appealable. In respondent’s view, Congress used the the term “final” in the eighth sentence only to make clear that a court’s decision reviewing agency action could operate as law of the case and res judicata. Cf. City of Tacoma v. Taxpayers of Tacoma, 357 U. S. 320, 336 (1958). But even if it is true that Congress used the term “final” to mean “conclusively decided,” this reading does not preclude the construction of “final” to include “appealable,” a meaning with which “final” is usually coupled. Nor does respondent consider the significance of Congress’ use of the term “judgment” to describe the action taken by the District Court in this case. Although respondent argues that the words “final decisions,” as used in 28 U. S. C. § 1291, encompass no more than what was meant by the terms “final judgments and decrees” in the predecessor statute to § 1291, respondent recognizes that “final judgments” are at the core of matters appealable under § 1291, and respondent does not contest the power of Congress to define a class of orders as “final judgments” that by inference would be appealable under § 1291. Cf. Sears, Roebuck & Co. v. Mackey, 351 U. S. 427, 434 (1956). This is what Congress has done in the fourth sentence of § 405(g). More generally, respondent argues that a power in the district court to remand to an agency is always incident to the power to review agency action and that § 405(g) only expanded the district courts’ equitable powers; therefore, she insists, it is improper to construe § 405(g) as a limit on the district courts’ power to remand. This argument misapprehends what Congress sought to accomplish in § 405(g). The fourth sentence of § 405(g) does not “limit” the district courts’ authority to remand. Rather, the fourth sentence directs the entry of a final, appealable judgment even though that judgment may be accompanied by a remand order. The fourth sentence does not require the district court to choose between entering a final judgment and remanding; to the contrary, it specifically provides that a district court may enter judgment “with or without remanding the cause for a rehearing.” Finally, respondent argues that we already decided last Term, in Sullivan v. Hudson, 490 U. S. 877 (1989), that a remand order of the kind entered in this case is not appealable as a final decision. Although there is language in Hudson supporting respondent’s interpretation of that case, we do not find that language sufficient to sustain respondent’s contentions here. In Hudson, we held that under the EAJA, 28 U. S. C. § 2412(d)(1)(A), a federal court may award a Social Security claimant attorney’s fees for representation during administrative proceedings held pursuant to a district court order remanding the action to the Secretary. We were concerned there with interpreting the term “any civil action” in the EAJA, not with deciding whether a remand order could be appealed as a “final decision” under 28 U. S. C. § 1291. We noted in Hudson that the language of § 2412(d)(1)(A) must be construed with reference to the purpose of the EAJA and the realities of litigation against the Government. The purpose of the EAJA was to counterbalance the financial disincentives to vindicating rights against the Government through litigation; given this purpose, we could not believe that Congress would “throw the Social Security claimant a lifeline that it knew was a foot short” by denying her attorney’s fees for the mandatory proceedings on remand. Hudson, supra, at 890. We also recognized that even if a claimant had obtained a remand from the district court, she would not be a “prevailing party” for purposes of the EAJA until the result of the administrative proceedings held on remand was known. 490 U. S., at 887-888. We therefore concluded that for purposes of the EAJA, the administrative proceedings on remand “should be considered part and parcel of the action for which fees may be awarded.” Id., at 888. We did not say that proceedings on remand to an agency are “part and parcel” of a civil action in federal district court for all purposes, and we decline to do so today. Accordingly, 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. Title 28 U. S. C. § 1291 provides that “[t]he courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts . . . except where a direct review may be had in the Supreme Court.” Title 42 U. S. C. § 405(g) (1982 ed.) provides: “Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Columbia. As part of his answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive, and where a claim has been denied by the Secretary or a decision is rendered under subsection (b) of this section which is adverse to an individual who was a party to the hearing before the Secretary, because of failure of the claimant or such individual to submit proof in conformity with any regulation prescribed under subsection (a) of this section, the court shall review only the question of conformity with such regulations and the validity of such regulations. The court may, on motion of the Secretary made for good cause shown before he files his answer, remand the case to the Secretary for further action by the Secretary, and it may at any time order additional evidence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding; and the Secretary shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm his findings of fact or his decision, or both, and shall file with the court any such additional and modified findings of fact and decision, and a transcript of the additional record and testimony upon which his action in modifying or affirming was based. Such additional or modified findings of fact and decision shall be reviewable only to the extent provided for review of the original findings of fact and decision. The judgment of the court shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions. Any action instituted in accordance with this subsection shall survive notwithstanding any change in the person occupying the office of Secretary or any vacancy in such office.” For example, a district court may on occasion order a remand to an agency even though the district court action was filed by the agency, not someone seeking judicial review, e. g., United States v. Alcon Laboratories, 636 F. 2d 876 (CA1), cert. denied, 451 U. S. 1017 (1981). In other cases the district court may order a remand to the agency but the person seeking judicial review may seek to appeal on the ground that broader relief should have been granted by the district court, e. g., Bohms v. Gardner, 381 F. 2d 283 (CA8 1967), cert. denied, 390 U. S. 964 (1968). None of these situations are presented in this case, and we express no opinion about appealability in those circumstances. Specifically, the District Court noted that an Administrative Law Judge “found that the ‘medical findings shown in the medical evidence of record establish the existence of mitral valve prolapse,’” App. to Pet. for Cert. 17a, which does not meet or equal one of the listed impairments but might, in the District Court’s view, prevent respondent from engaging in any gainful activity, ibid. Neither party suggests that the Secretary’s decision denying respondent benefits without considering her mitral valve prolapse was not a “final decision of the Secretary” within the meaning of § 405(g). See, e. g., Caulder v. Bowen, 791 F. 2d 872 (CA11 1986); Borders v. Heckler, 777 F. 2d 954, 955 (CA4 1985); Newhouse v. Heckler, 753 F. 2d 283, 287 (CA3 1985); Booz v. Secretary of Health and Human Services, 734 F. 2d 1378, 1381 (CA9 1984); Dorsey v. Heckler, 702 F. 2d 597, 604-605 (CA5 1983); Cagle v. Califano, 638 F. 2d 219, 221 (CA10 1981). Although all the Circuits recognize that new evidence must be “material” to warrant a sixth-sentence remand, it is not clear whether the Circuits have interpreted the requirement of materiality in the same way. See Dorsey, supra, at 605, n. 9 (criticizing “stricter position” of Fourth and Tenth Circuits); Godsey v. Bowen, 832 F. 2d 443, 444 (CA7 1987) (expressing skepticism about existence of conflict); Borders, supra, at 956 (also skeptical). We express no opinion on the proper definition of materiality in this context. It is true, as respondent maintains, that the District Court did not caption its order as a “judgment,” much less a “final judgment.” The label used by the District Court of course cannot control the order’s appealability in this case, any more than it could when a district court labeled a non-appealable interlocutory order as a “final judgment.” See Liberty Mutual Ins. Co. v. Wetzel, 424 U. S. 737 (1976). Respondent also makes two arguments based on subsequent legislative history to counter the conclusion that Congress intended orders entered under the fourth sentence of § 405(g) to be appealable final judgments. First, she relies on a committee print prepared by the Social Security Subcommittee of the House Ways and Means Committee which, in summarizing amendments to the Social Security Act, stated that under prior law, a district court could remand a case to the Secretary on its own motion and that the judgment of the district court would be final after the Secretary filed any modified findings of fact and decision with the court, and that no change had been made by the amendments. See The Social Security Amendments of 1977: Brief Summary of Major Provisions and Detailed Comparison With Prior Law, WMCP No. 95-72, p. 26 (1978) (Brief Summary). The committee print’s observations are entirely consistent with the construction we have placed on remands ordered under the sixth sentence of § 405(g). Moreover, leaving aside all the usual difficulties inherent in relying on subsequent legislative history, see, e. g., United States v. Mine Workers, 330 U. S. 258, 281-282 (1947), we note that the print specifically warned that it was prepared by the subcommittee staff for informational purposes only and was not considered or approved by the subcommittee, and that it was designed not to be a section-by-section analysis of the amendments but only a “narrative synopsis.” Brief Summary, at I, V. We therefore cannot assign this committee print any significant weight. Second, respondent relies on a House Judiciary Committee Report on amendments to the Equal Access to Justice Act (EAJA), stating that a district court’s remand decision under § 405(g) is not a “final judgment.” H. R. Rep. No. 99-120, p. 19 (1985). Again, we cannot conclude that this subsequent legislative history overthrows the language of § 405(g). In the first place, this part of this particular Committee Report concerned the proper time period for filing a petition for attorney’s fees under EAJA, not appealability. Second, the Committee relied in particular on Guthrie v. Schweiker, 718 F. 2d 104 (CA4 1983), for the proposition that a remand order is not a final judgment, but Guthrie also concerned the time for filing an attorney’s fees petition, and it is far from clear that Guthrie did not involve a sixth-sentence remand. Guthrie, in turn, relied on Gilcrist v. Schweiker, 645 F. 2d 818, 819 (CA9 1981), which, quite unlike the present case, involved an appeal from a district court remand order that did “no more than order clarification of the administrative decision.” Title 28 U. S. C. § 2412(d)(1)(A) provides in pertinent part: “Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action . . . including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” 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_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. COMMISSIONER OF INTERNAL REVENUE v. GLENSHAW GLASS CO. No. 199. Argued February 28, 1955. Decided March 28, 1955. Solicitor General Sobeloff argued the cause for petitioner. With him on the brief were Assistant Attorney General Holland, Charles F. Barber, Ellis N. Slack and Melva M. Graney. Max Swiren argued the cause for the Glenshaw Glass Company, respondent. With him on the brief were Sidney B. Oambill and Joseph D. Block. Samuel H. Levy argued the cause for William Goldman Theatres, Inc., respondent. With him on the brief was Bernard Wolfman. Mr. Chief Justice Warren delivered the opinion of the Court. This litigation involves two cases with independent factual backgrounds yet presenting the identical issue. The two cases were consolidated for argument before the Court of Appeals for the Third Circuit and were heard en banc. The common question is whether money received as exemplary damages for fraud or as the punitive two-thirds portion of a treble-damage antitrust recovery must be reported by a taxpayer as gross income under § 22 (a) of the Internal Revenue Code of 1939, In a single opinion, 211 F. 2d 928, the Court of Appeals affirmed the Tax Court’s separate rulings in favor of the taxpayers. 18 T. C. 860; 19 T. C. 637. Because of the frequent recurrence of the question and differing interpretations by the lower courts of this Court’s decisions bearing upon the problem, we granted the Commissioner of Internal Revenue’s ensuing petition for certiorari. 348 U. S. 813. The facts of the cases were largely stipulated and are not in dispute. So far as pertinent they are as follows: Commissioner v. Glenshaw Glass Co.—The Glenshaw Glass Company, a Pennsylvania corporation, manufactures glass bottles and containers. It was engaged in protracted litigation with the Hartford-Empire Company, which manufactures machinery of a character used by Glenshaw. Among the claims advanced by Glenshaw were demands for exemplary damages for fraud and treble damages for injury to its business by reason of Hartford’s violation of the federal antitrust laws. In December, 1947, the parties concluded a settlement of all pending litigation, by which Hartford paid Glenshaw approximately $800,000. Through a method of allocation which was approved by the Tax Court, 18 T. C. 860, 870-872, and which is no longer in issue, it was ultimately determined that, of the total settlement, $324,529.94 represented payment of punitive damages for fraud and antitrust violations. Glenshaw did not report this portion of the settlement as income for the tax year involved. The Commissioner determined a deficiency claiming as taxable the entire sum less only deductible legal fees. As previously noted, the Tax Court and the Court of Appeals upheld the taxpayer. Commissioner v. William Goldman Theatres, Inc.— William Goldman Theatres, Inc., a Delaware corporation operating motion picture houses in Pennsylvania, sued Loew’s, Inc., alleging a violation of the federal antitrust laws and seeking treble damages. After a holding that a violation had occurred, William Goldman Theatres, Inc. v. Loew’s, Inc., 150 F. 2d 738, the case was remanded to the trial court for a determination of damages. It was found that Goldman had suffered a loss of profits equal to $125,000 and was entitled to treble damages in the sum of $375,000. William Goldman Theatres, Inc. v. Loew’s, Inc., 69 F. Supp. 103, aff’d, 164 F. 2d 1021, cert. denied, 334 U. S. 811. Goldman reported only $125,000 of the recovery as gross income and claimed that the $250,000 balance constituted punitive damages and as such was not taxable. The Tax Court agreed, 19 T. C. 637, and the Court of Appeals, hearing this with the Glenshaw case, affirmed. 211 F. 2d 928. It is conceded by the respondents that there is no constitutional barrier to the imposition of a tax on punitive damages. Our question is one of statutory construction: are these payments comprehended by § 22 (a) ? The sweeping scope of the controverted statute is readily apparent: “SEC. 22. GROSS INCOME. “(a) General Definition. — ‘Gross income’ includes gains, profits, and income derived from salaries, wages, or compensation for personal service ... of whatever kind and in whatever form paid, or from professions, vocations, trades, businesses, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever. . . .” (Emphasis added.) This Court has frequently stated that this language was used by Congress to exert in this field “the full measure of its taxing power.” Helvering v. Clifford, 309 U. S. 331, 334; Helvering v. Midland Mutual Life Ins. Co., 300 U. S. 216, 223; Douglas v. Will cuts, 296 U. S. 1, 9; Irwin v. Gavit, 268 U. S. 161, 166. Respondents contend that punitive damages, characterized as “windfalls” flowing from the culpable conduct of third parties, are not within the scope of the section. But Congress applied no limitations as to the source of taxable receipts, nor restrictive labels as to their nature. And the Court has given a liberal construction to this broad phraseology in recognition of the intention of Congress to tax all gains except those specifically exempted. Commissioner v. Jacobson, 336 U. S. 28, 49; Helvering v. Stockholms Enskilda Bank, 293 U. S. 84, 87-91. Thus, the fortuitous gain accruing to a lessor by reason of the forfeiture of a lessee’s improvements on the rented property was taxed in Helvering v. Bruun, 309 U. S. 461. Cf. Robertson v. United States, 343 U. S. 711; Rutkin v. United States, 343 U. S. 130; United States v. Kirby Lumber Co., 284 U. S. 1. Such decisions demonstrate that we cannot but ascribe content to the catchall provision of § 22 (a), “gains or profits and income derived from any source whatever.” The importance of that phrase has been too frequently recognized since its first appearance in the Revenue Act of 1913 to say now that it adds nothing to the meaning of “gross income.” Nor can we accept respondents’ contention that a narrower reading of § 22 (a) is required by the Court’s characterization of income in Eisner v. Macomber, 252 U. S. 189, 207, as “the gain derived from capital, from labor, or from both combined.” The Court was there endeavoring to determine whether the distribution of a corporate stock dividend constituted a realized gain to the shareholder, or changed “only the form, not the essence,” of his capital investment. Id., at 210. It was held that the taxpayer had “received nothing out of the company’s assets for his separate use and benefit.” Id., at 211. The distribution, therefore, was held not a taxable event. In that context — distinguishing gain from capital — the definition served a useful purpose. But it was not meant to provide a touchstone to all future gross income questions. Helvering v. Bruun, supra, at 468-469; United States v. Kirby Lumber Co., supra, at 3. Here we have instances of undeniable accessions to wealth, clearly realized, and over which the taxpayers have complete dominion. The mere fact that the payments were extracted from the wrongdoers as punishment for unlawful conduct cannot detract from their character as taxable income to the recipients. Respondents concede, as they must, that the recoveries are taxable to the extent that they compensate for damages actually incurred. It would be an anomaly that could not be justified in the absence of clear congressional intent to say that a recovery for actual damages is taxable but not the additional amount extracted as punishment for the same conduct which caused the injury. And we find no such evidence of intent to exempt these payments. It is urged that re-enactment of § 22 (a) without change since the Board of Tax Appeals held punitive damages nontaxable in Highland Farms Corp., 42 B. T. A. 1314, indicates congressional satisfaction with that holding. Re-enactment — particularly without the slightest affirmative indication that Congress ever had the Highland Farms decision before it — is an unreliable indicium at best. Helvering v. Wilshire Oil Co., 308 U. S. 90, 100-101; Koshland v. Helvering, 298 U. S. 441, 447. Moreover, the Commissioner promptly published his nonacquiescence in this portion of the Highland Farms holding and has, before and since, consistently maintained the position that these receipts are taxable. It therefore cannot be said with certitude that Congress intended to carve an exception out of § 22 (a)’s pervasive coverage. Nor does the 1954 Code’s legislative history, with its reiteration of the proposition that' statutory gross income is “all-inclusive," give support to respondents’ position. The definition of gross income has been simplified, but no effect upon its present broad scope was intended. Certainly punitive damages cannot reasonably be classified as gifts, cf. Commissioner v. Jacobson, 336 U. S. 28, 47-52, nor do they come under any other exemption provision in the Code. We would do violence to the plain meaning of the statute and restrict a clear legislative attempt to bring the taxing power to bear upon all receipts constitutionally taxable were we to say that the payments in question here are not gross income. See Helvering v. Midland Mutual Life Ins. Co., supra, at 223. Reversed. Mr. Justice Douglas dissents. Mr. Justice Harlan took no part in the consideration or decision of this case. 53 Stat. 9, 53 Stat. 574, 26 U. S. C. § 22 (a). For the bases of Glenshaw’s claim for damages from fraud, see Shawkee Manufacturing Co. v. Hartford-Empire Co., 322 U. S. 2701; Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U. S. 238. See Hartford-Empire Co. v. United States, 323 U. S. 386, 324 U. S. 570. See note 1, supra. 38 Stat. 114,167. The phrase was derived from Stratton’s Independence, Ltd. v. Howbert, 231 U. S. 399, 415, and Doyle v. Mitchell Bros. Co., 247 U. S. 179, 185, two cases construing the Revenue Act of 1909, 36 Stat. 11, 112. Both taxpayers were “wasting asset” corporations, one being engaged in mining, the other in lumbering operations. The definition was applied by the Court to demonstrate a distinction between a return on capital and “a mere conversion of capital assets.” Doyle v. Mitchell Bros. Co., supra, at 184. The question raised by the instant case is clearly distinguishable. 1941-1 Cum. Bull. 16. The long history of departmental rulings holding personal injury recoveries nontaxable on the theory that they roughly correspond to a return of capital cannot support exemption of punitive damages following injury to property. See 2 Cum. Bull. 71; 1-1 Cum. Bull. 92, 93; VII-2 Cum. Bull. 123; 1954-1 Cum. Bull. 179, 180. Damages for personal injury are by definition compensatory only. Punitive damages, on the other hand, cannot be considered a restoration of capital for taxation purposes. 68A Stat. 3 et seq. Section 61 (a) of the Internal Revenue Code of 1954, 68A Stat. 17, is the successor to § 22 (a) of the 1939 Code. H. R. Rep. No. 1337, 83d Cong., 2d Sess. a18; S. Rep. No. 1622, 83d Cong., 2d Sess. 168. In discussing § 61 (a) of the 1954 Code, the House Report states: “This section corresponds to section 22 (a) of the 1939 Code. While the language in existing section 22 (a) has been simplified, the all-inclusive nature of statutory gross income has not been affected thereby. Section 61 (a) is as broad in scope as section 22 (a). “Section 61 (a) provides that gross income includes ‘all income from whatever source derived.’ This definition is based upon the 16th Amendment and the word ‘income’ is used in its constitutional sense.” H. R. Rep. No. 1337, supra, note 10, at a18. A virtually identical statement appears in S. Rep. No. 1622, supra, note 10, at 168. 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_adminaction_is	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. AMERICAN ELECTRIC POWER CO., INC., et al. v. CONNECTICUT et al. No. 10-174. Argued April 19, 2011 Decided June 20, 2011 Peter D. Keisler argued the cause for petitioners. With him on the briefs were Carter G. Phillips, Quin M. Soren-son, F. William Brownell, Norman W. Fichthorn, Allison D. Wood, Shawn Patrick Regan, Martin H. Redish, Donald B. Ayer, Kevin P Holewinski, Thomas E. Fennell, and Michael L. Rice. Acting Solicitor General Katyal argued the cause for respondent Tennessee Valley Authority in support of petitioners under this Court’s Rule 12.6. With him on the briefs were Assistant Attorney General Moreno, Deputy Solicitor General Knccdlcr, Deputy Assistant Attorney General Shenkman, Curtis E. Gannon, Douglas N. Letter, Lisa E. Jones, H. Thomas Byron, Justin R. Pidot, Ralph E. Rodgers, Harriet A. Cooper, and Maria V. Gillen. Barbara D. Underwood, Solicitor General of New York, argued the cause for respondents. With her on the brief for respondents State of Connecticut et al. were Eric T. Schnei-derman, Attorney General of New York, Benjamin N. Gut-man, Deputy Solicitor General, Monica Wagner, Assistant Solicitor General, and Michael J. Myers, Morgan A. Costello, and Robert Rosenthal, Assistant Attorneys General, as well as Attorneys General George Jepsen of Connecticut, Kamala D. Harris of California, Thomas J. Miller of Iowa, Peter F. Kilmartin of Rhode Island, William H. Sorrell of Vermont, and Michael A. Cardozo. Matthew F. Pawa, David D. Doni- ger, Gerald Goldman, Michael K. Kellogg, and Gregory G. Rapawy filed a brief for respondents Open Space Institute, Inc., et al. Briefs of amici curiae urging reversal were filed for the State of Indiana et al. by Gregory F. Zoeller, Attorney General of Indiana, Thomas M. Fisher, Solicitor Cencral, and Heather Hagan McVeigh and Ashley Tai-man Harwel, Deputy Attorneys General, by William H. Ryan, Jr., Acting Attorney General of Pennsylvania, and by the Attorneys General for their respective Statos as follows! Luther Strange of Alabama, John J. Burns of Alaska, Thomas C. Horne of Arizona, Dustin McDaniel of Arkansas, John W. Suthors of Colorado, Pamela Jo Bondi of Florida, Samuel S. Olens of Georgia, Lawrence G. Wasden of Idaho, Derek Schmidt of Kansas, Jack Conway of Kentucky, James D. “Buddy” Caldwell of Louisiana, Chris Roster of Missouri, Jon Bruning of Nebraska, Wayne Stenehjem of North Dakota, Michael DeWine of Ohio, E. Scott Pruitt of Oklahoma, Alan Wilson of South Carolina, Marty Jackley of South Dakota, Mark L. Shurtleff of Utah, Darrell V. McGraw, Jr., of West Virginia, and Bruce A Salzburg of Wyoming; for the American Chemistry Council et al. by Richard 0. Faulk and John S. Gray; for the Association of Global Automakers et al. by Raymond B. T/ndwismoski; for the Business Roundtable by Robert P. Charrow, Laura Metcoff Kla/uo, and David G. Mandelbaum; for the Cato Institute by Megan L. Brown and Ilya Shapiro; for the Chamber of Commerce of the United States of America by Gregory G. Garre, Richard P. Bress, Gabriel K Bell, and Robin S: Conrad; for Chevron U. S. A., Inc., ot al. by Paul D. Clement, Ashley C. Parrish, Daniel P. Collins, Raynuoud Michael Ripple, Donna L. Goodman, Russell C. Swartz, Trade J. Ren-froe, Andrew B. Clubok, and Susan E. Engel; for the Consumer Energy Alliance et al. by Tristan L. Duncan and Jonathan S. Massey; for DRI— The Voice of the Defense Bar by R. Matthew Cairns, John Parker Sweeney, T. Sky Woodward, Michael T. Nilan, Peter Gray, Cynthia P. Arends, and Benjamin J. Rolf; for the Edison Electric Institute et al. by Christopher T. Handman, Dominic F. Parella, Edward H. Comer, William L. Fang, Susan N. Kelly, and Rao E. Gronmiller; for Law Profe33ors by David B. Rivkin, Jr., and Loo A. Casey; for the Mountain States Legal Foundation by Steven J. Lochnor; for the National Black Chamber of Commerce et al. by Peter S. Glaser, Mark E. Nagle, and Douglas A Henderson; for the National Federation of Independent Business Small Business Legal Center et al. by Victor E. Schwartz, Philip S. Goldberg, Christopher E, Appeli Karon R. Earned, Elizabeth Milito, and Douglas T. Nelson; for the Pacific Legal Foundation by R. S. Radford and Damien M. Schiff; for the Southeastern Legal Foundation, Ine., et al. by Shannon Lee Goessling, Harry W. MacDougald, and Edward A Kazmarek; for the Washington Legal Foundation by Daniel J. Popeo and Cory L. Andrews; for Nicholas Johnson by John P. Krill, Jr., and Christopher R Kratovil; and for Representative Fred Upton et al. by Mary B. Neumayr. Briefs of amici curiae urging affirmance were filed for the State of North Carolina et al. by Roy Cooper, Attorney General of North Carolina, Christopher G. Browning, Jr., Solicitor General, Jamos C. Guliok, Senior Deputy Attorney General, and Marc D. Bernstein, Special Deputy Attorney General, and by the Attorneys General for their respective States as follows: Lisa Madigan of Illinois, Douglas F. Gansler of Maryland, and Martha Coakley of Massachusetts; for AUEarth Renewables, Inc., et al. by Lori Potter; for Law Profeooors by Jamos R-. May and Stuart Banner; for the North Coant Rivero Alliance ct al. by Stephan C. Volkor; for Tort Law Scholars by Douglas A Kysar, pro se; and for the Unitarian Univer-salist Ministry for Earth et al. by Ned Miltenberg. Briefs of amici curiao woro filed for the American Farm Bureau Fedor ation et al. by Peter S. Glaser, Mark E. Nagle, Douglas A. Henderson, and Ellen Steen; for the American Petroleum Institute et al. by Charles Fried and Jeffrey Bates; for the Center for Constitutional Jurisprudence by John Eastman, Anthony T. Caso, and Edwin Moooo III; for Dofondcro of Wildlife et al. by Eric R. Glitzenstein, William S. Eubanks II, Jason C. Rylander, and Sean H. Donahue; for Environmental Law Professors by Amanda C. Leila, pro se; for the National Association of Home Builders by Amy C. Chai and Thomas J. Ward; and for James G. Anderson, Ph. D., et al. by Richard Webster, James M. Hecker, Matthew W. H. Wess-ler, and Arthur H. Bryant. Justice Ginsburg delivered the opinion of the Court. We address in this opinion the question whether the plaintiffs (several States, the city of New York, and three private land trusts) can maintain federal common-law public nuisance claims against carbon-dioxide emitters (four private power companies and the federal Tennessee Valley Authority). As relief, the plaintiffs ask for a decree setting carbon-dioxide emissions for each defendant at an initial cap, to be further reduced annually. The Clean Air Act and the Environmental Protection Agency action the Act authorizes, we hold, displace the claims the plaintiffs seek to pursue. H In Massachusetts v. EPA, 549 U. S. 497 (2007), this Court held that the Clean Air Act, 69 Stat. 322, as amended, 42 U. S. C. § 7401 et seq., authorizes federal regulation of emissions of carbon dioxide and other greenhouse gases. “[Naturally present in the atmosphere and... also emitted by human activities,” greenhouse gases are so named because they “trap... heat that would otherwise escape from the [Earth’s] atmosphere, and thus form the greenhouse effect that helps keep the Earth warm enough for life.” 74 Fed. Reg. 66499 (2009). Massachusetts held that the Environmental Protection Agency (EPA or Agency) had misread the Clean Air Act when it denied a rulemaking petition seeking controls on greenhouse gas emissions from new motor vehicles. 549 U. S., at 510-511. Greenhouse gases, we determined, qualify as “air pollutant[s]” within the meaning of the governing Clean Air Act provision, id., at 528-529 (quoting § 7602(g)); they are therefore within EPA’s regulatory ken. Because EPA had authority to set greenhouse gas emission standards and had offered no “reasoned explanation” for failing to do so, we concluded that the Agency had not acted “in accordance with law” when it denied the requested rule-making. Id., at 534-535 (quoting § 7607(d)(9)(A)). Responding to our decision in Massachusetts, EPA undertook greenhouse gas regulation. In December 2009, the Agency concluded that greenhouse gas emissions from motor vehicles “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare,” the Act’s regulatory trigger. § 7521(a)(1); 74 Fed. Reg. 66496. The Agency observed that “atmospheric greenhouse gas concentrations are now at elevated and essentially unprecedented levels,” almost entirely “due to anthropogenic emissions,” id., at 66517; mean global temperatures, the Agency continued, demonstrate an “unambiguous warming trend over the last 100 years,” and particularly “over the past 30 years,” ibid. Acknowledging that not all scientists agreed on the causes and consequences of the rise in global temperatures, id., at 66506, 66518, 66523-66524, EPA concluded that “compelling” evidence supported the “attribution of observed climate change to anthropogenic” emissions of greenhouse gases, id., at 66518. Consequent dangers of greenhouse gas emissions, EPA determined, included increases in heat-related deaths; coastal inundation and erosion caused by melting icecaps and rising sea levels; more frequent and intense hurricanes, floods, and other “extreme weather events” that cause death and destroy infrastructure; drought due to reductions in mountain snowpaek and shifting precipitation patterns; destruction of ecosystems supporting animals and plants; and potentially “significant disruptions” of food production. Id., at 66524-66535. EPA and the Department of Transportation subsequently issued a joint final rule regulating emissions from light-duty vehicles, see 75 Fed. Reg. 25324 (2010), and initiated a joint rulemaking covering medium- and heavy-duty vehicles, see id., at 74152. EPA also began phasing in requirements that new or modified “[mjajor [greenhouse gas] emitting facilities” use the “best available control technology.” § 7475(a)(4); 75 Fed. Reg. 31520-31521. Finally, EPA commenced a rule-making under § 111 of the Act, 42 U. S. C. § 7411, to set limits on greenhouse gas emissions from new, modified, and existing fossil-fuel fired powerplants. Pursuant to a settlement finalized in March 2011, EPA has committed to issuing a proposed rule by July 2011, and a final rule by May 2012. See 75 Fed. Reg. 82392; Reply Brief for Tennessee Valley Authority 18. II The lawsuits we consider here began well before EPA initiated the efforts to regulate greenhouse gases just described. In July 2004, two groups of plaintiffs filed separate complaints in the Southern District of New York against the same five major electric power companies. The first group of plaintiffs included eight States and New York City, the second joined three nonprofit land trusts; both groups are respondents here. The defendants, now petitioners, are four private companies and the Tennessee Valley Authority, 'a federally owned corporation that operates fossil-fuel fired powerplants in several States. According to the complaints, the defendants “are the five largest emitters of carbon dioxide in the United States.” App. 57, 118. Their collective annual emissions of 650 million tons constitute 25 percent of emissions from the domestic electric power sector, 10 percent of emissions from all domestic human activities, ibid., and 2.5 percent of all anthropogenic emissions worldwide, App. to Pet. for Cert. 72a. By contributing to global warming, the plaintiffs asserted, the defendants’ carbon-dioxide emissions created a “substantial and unreasonable interference with public rights,” in violation of the federal common law of interstate nuisance, or, in the alternative, of state tort law. App. 103-105,145-147. The States and New York City alleged that public lands, infrastructure, and health were at risk from climate change. Id., at 88-93. The trusts urged that climate change would destroy habitats for animals and rare species of trees and plants on land the trusts owned and conserved. Id., at 139-145. All plaintiffs sought injunctive relief requiring each defendant “to cap its carbon dioxide emissions and then reduce them by a specified percentage each year for at least a decade.” Id., at 110, 153. The District Court dismissed both suits as presenting non-justiciable political questions, citing Baker v. Carr, 369 U. S. 186 (1962), but the Second Circuit reversed, 582 F. 3d 309 (2009). On the threshold questions, the Court of Appeals held that the suits were not barred by the political question doctrine, id., at 332, and that the plaintiffs had adequately alleged Article III standing, id., at 349. Turning to the merits, the Second Circuit held that all plaintiffs had stated a claim under the “federal common law of nuisance.” Id., at 358, 371. For this determination, the court relied dominantly on a series of this Court’s decisions holding that States may maintain suits to abate air and water pollution produced by other States or by out-of-state industry. Id., at 350-351; see, e. g., Illinois v. Milwaukee, 406 U. S. 91, 93, (1972) (Milwaukee I) (recognizing right of Illinois to sue in federal district court to abate discharge of sewage into Lake Michigan). The Court of Appeals further determined that the Clean Air Act did not “displace" federal common law. In Milwaukee v. Illinois, 451 U. S. 304, 316-319 (1981) (Milwaukee II), this Court held that Congress had displaced the federal common-law right of action recognized in Milwaukee I by adopting amendments to the Clean Water Act, 33 U. S. C. § 1251 et seq. That legislation installed an all-encompassing regulatory program, supervised by an expert administrative agency, to deal comprehensively with interstate water pollution. The legislation itself prohibited the discharge of pollutants into the waters of the United States without a permit from a proper permitting authority. Milwaukee II, 451 U. S., at 310-311 (citing § 1311). At the time of the Second Circuit’s decision, by contrast, EPA had not yet promulgated any rule regulating greenhouse gases, a fact the court thought dispositive. 582 F. 3d, at 379-381. “Until EPA completes the rulemaking process,” the court reasoned, “we cannot speculate as to whether the hypothetical regulation of greenhouse gases under the Clean Air Act would in fact ‘spea[k] directly’ to the ‘particular issue’ raised here by Plaintiffs.” Id., at 380. We granted certiorari. 562 U. S. 1091 (2010). III The petitioners contend that the federal courts lack authority to adjudicate this case. Four Members of the Court would hold that at least some plaintiffs have Article III standing under Massachusetts, which permitted a State to challenge EPA’s refusal to regulate greenhouse gas emissions, 549 U. S., at 520-526; and, further, that no other threshold obstacle bars review. Four Members of the Court, adhering to a dissenting opinion in Massachusetts, id,., at 535 (opinion of Roberts, C. J.), or regarding that decision as distinguishable, would hold that none of the plaintiffs have Article III standing. We therefore affirm, by an equally divided Court, the Second Circuit’s exercise of jurisdiction and proceed to the merits. See Nye v. United States, 313 U. S. 33, 44 (1941). IV A “There is no federal general common law,” Erie R. Co. v. Tompkins, 304 U. S. 64, 78 (1938), famously recognized. In the wake of Erie, however, a keener understanding developed. See generally Friendly, In Praise of Erie — And of the New Federal Common Law, 89 N. Y. U. L. Rev. 383 (1964). Erie “le[ft] to the states what ought be left to them,” 39 N. Y. U. L. Rev., at 405, and thus required “federal courts [to] follow state decisions on matters of substantive law appropriately cognizable by the states,” id,., at 422. Erie also sparked “the emergence of a federal decisional law in areas of national concern.” 39 N. Y. U. L. Rev., at 405. The “new” federal common law addresses “subjects within national legislative power where Congress has so directed” or where the basic scheme of the Constitution so demands. Id., at 408, n. 119, 421-422. Environmental protection is undoubtedly an area “within national legislative power,” one in which federal courts may fill in “statutory interstices,” and, if necessary, even “fashion federal law.” Id., at 421-422. As the Court stated in Milwaukee I: “When we deal with air and water in their ambient or interstate aspects, there is a federal common law.” 406 U. S., at 103. Decisions of this Court predating Erie, but compatible with the distinction emerging from that decision between “general common law” and “specialized federal common law,” Friendly, supra, at 405, have approved federal common-law suits brought by one State to abate pollution emanating from another State. See, e. g., Missouri v. Illinois, 180 U. S. 208, 241-243 (1901) (permitting suit by Missouri to enjoin Chicago from discharging untreated sewage into interstate waters); New Jersey v. City of New York, 283 U. S. 473, 477, 481-483 (1931) (ordering New York City to stop dumping garbage off New Jersey coast); Georgia v. Tennessee Copper Co., 240 U. S. 650 (1916) (ordering private copper companies to curtail sulfur-dioxide discharges in Tennessee that caused harm in Georgia). See also Milwaukee I, 406 U. S., at 107 (post-Erie decision upholding suit by Illinois to abate sewage discharges into Lake Michigan). The plaintiffs contend that their right to maintain this suit follows inexorably from that line of decisions. Recognition that a subject is meet for federal law governance, however, does not necessarily mean that federal courts should create the controlling law. Absent a demonstrated need for a federal rule of decision, the Court has taken “the prudent course” of “adopting] the readymade body of state law as the federal rule of decision until Congress strikes a different accommodation.” United States v. Kimbell Foods, Inc., 440 U. S. 715, 740 (1979); see Bank of America Nat. Trust & Sav. Assn. v. Parnell, 352 U. S. 29, 32-34 (1956). And where, as here, borrowing the law of a particular State would be inappropriate, the Court remains mindful that it does not have creative power akin to that vested in Congress. See Missouri v. Illinois, 200 U. S. 496, 519 (1906) (“fact that this court must decide does not mean, of course, that it takes the place of a legislature”); cf. United States v. Standard Oil Co. of Cal., 332 U. S. 301, 308, 314 (1947) (holding that federal law determines whether Government could secure indemnity from a company whose truck injured a United States soldier, but declining to impose such an indemnity absent action by Congress, “the primary and most often the exclusive arbiter of federal fiscal affairs”). In the cases on which the plaintiffs heavily rely, States were permitted to sue to challenge activity harmful to their citizens’ health and welfare. We have not yet decided whether private citizens (here, the land trusts) or political subdivisions (New York City) of a State may invoke the federal common law of nuisance to abate out-of-state pollution. Nor have we ever held that a State may sue to abate any and all maimer of pollution originating outside its borders. The defendants argue that considerations of scale and complexity distinguish global warming from the more bounded pollution giving rise to past federal nuisance suits. Greenhouse gases once emitted “become well mixed in the atmosphere,” 74 Fed. Reg. 66514; emissions in New Jersey may contribute no more to flooding in New York than emissions in China. Cf. Brief for Petitioners 18-19. The plaintiffs, on the other hand, contend that an equitable remedy against the largest emitters of carbon dioxide in the United States is in order and not beyond judicial competence. See Brief for Respondent Open Space Institute et al. 32-85. And we have recognized that public nuisance law, like common law generally, adapts to changing scientific and factual circumstances. Missouri, 200 U. S., at 522 (adjudicating claim though it did not concern “nuisance of the simple kind that was known to the older common law”); see also D’Oench, Duhme & Co. v. FDIC, 315 U. S. 447, 472 (1942) (Jackson, J., concurring) (“federal courts are free to apply the traditional common-law technique of decision” when fashioning federal common law). We need not address the parties’ dispute in this regard. For it is an academic question whether, in the absence of the Clean Air Act and the EPA actions the Act authorizes, the plaintiffs could state a federal common-law claim for curtailment of greenhouse gas emissions because of their contribution to global warming. Any such claim would be displaced by the federal legislation authorizing EPA to regulate carbon-dioxide emissions. B “[Wjhen Congress addresses a question previously governed by a decision rested on federal common law,” the Court has explained, “the need for such an unusual exercise of law-making by federal courts disappears.” Milwaukee II, 451 U. S., at 314 (holding that amendments to the Clean Water Act displaced the nuisance claim recognized in Milwaukee I). Legislative displacement of federal common law does not require the “same sort of evidence of a clear and manifest [congressional] purpose” demanded for preemption of state law. 451 U. S., at 317. “'[D]ue regard for the presuppositions of our embracing federal system... as a promoter of democracy,’” id., at 316 (quoting San Diego Building Trades Council v. Garmon, 359 U. S. 236, 243 (1959)), does not enter the calculus, for it is primarily the office of Congress, not the federal courts, to prescribe national policy in areas of special federal interest, TVA v. Hill, 437 U. S. 153, 194 (1978). The test for whether congressional legislation excludes the declaration of federal common law is simply whether the statute “speakfs] directly to [the] question” at issue. Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, 625 (1978); see Milwaukee II, 451 U. S., at 315; County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S. 226, 236-237 (1985). We hold that the Clean Air Act and the EPA actions it authorizes displace any federal common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired powerplants. Massachusetts made plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the Act. 549 U. S., at 528-529. And we think it equally plain that the Act “speaks directly” to emissions of carbon dioxide from the defendants’ plants. Section 111 of the Act directs the EPA Administrator to list “categories of stationary sources” that “in [her] judgment... caus[e], or contribute] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” § 7411(b)(1)(A). Once EPA lists a category, the Agency must establish standards of performance for emission of pollutants from new or modified sources within that category. § 7411(b)(1)(B); see also § 7411(a)(2). And, most relevant here, § 7411(d) then requires regulation of existing sources within the same category. For existing sources, EPA issues emissions guidelines, see 40 CFR §§ 60.22, 60.23 (2009); in compliance with those guidelines and subject to federal oversight, the States then issue performance standards for stationary sources within their jurisdiction, § 7411(d)(1). The Act provides multiple avenues for enforcement. See County of Oneida, 470 U. S., at 237-239 (reach of remedial provisions is important to determination whether statute displaces federal common law). EPA may delegate implementation and enforcement authority to the States, §§ 7411(c)(1), (d)(1), but the Agency retains the power to inspect and monitor regulated sources, to impose administrative penalties for noncompliance, and to commence civil actions against polluters in federal court. §§ 7411(c)(2), (d)(2), 7413, 7414. In specified circumstances, the Act imposes criminal penalties on any person who knowingly violates emissions standards issued under §7411. See § 7413(c). And the Act provides for private enforcement. If States (or EPA) fail to enforce emissions limits against regulated sources, the Act permits “any person” to bring a civil enforcement action in federal court. § 7604(a). If EPA does not set emissions limits for a particular pollutant or source of pollution, States and private parties may petition for a rulemaking on the matter, and EPA’s response will be reviewable in federal court. See § 7607(b)(1); Massachusetts, 649 U. S., at 516-517, 529. As earlier noted, see supra, at 417-418, EPA is currently engaged in a § 7411 rule-making to set standards for greenhouse gas emissions from fossil-fuel fired powerplants. To settle litigation brought under § 7607(b) by a group that included the majority of the plaintiffs in this very case, the Agency agreed to complete that rulemaking by May 2012. 75 Fed. Reg. 82392. The Act itself thus provides a means to seek limits on emissions of carbon dioxide from domestic powerplants — the same relief the plaintiffs seek by invoking federal common law. We see no room for a parallel track. C The plaintiffs argue, as the Second Circuit held, that federal common law is not displaced until EPA actually exercises its regulatory authority, i. e., until it sets standards governing emissions from the defendants’ plants. We disagree. The sewage discharges at issue in Milwaukee II, we do not overlook, were subject to effluent limits set by EPA; under the displacing statute, “[e]very point source discharge” of water pollution was “prohibited unless covered by a permit.” 451 U. S., at 318-320 (emphasis deleted). As Milwaukee II made clear, however, the relevant question for purposes of displacement is “whether the field has been occupied, not whether it has been occupied in a particular manner.” Id., at 324. Of necessity, Congress selects different regulatory regimes to address different problems. Congress could hardly preemptively prohibit every discharge of carbon dioxide unless covered by a permit. After all, we each emit carbon dioxide merely by breathing. The Clean Air Act is no less an exercise of the Legislature’s “considered judgment” concerning the regulation of air pollution because it permits emissions until EPA acts. See Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1, 22, n. 32 (1981) (finding displacement although Congress “allowed some continued dumping of sludge” prior to a certain date). The critical point is that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from powerplants; the delegation is what displaces federal common law. Indeed, were EPA to decline to regulate carbon-dioxide emissions altogether at the conclusion of its ongoing § 7411 rule-making, the federal courts would have no warrant to employ the federal common law of nuisance to upset the Agency’s expert determination. EPA’s judgment, we hasten to add, would not escape judicial review. Federal courts, we earlier observed, see supra, at 425, can review agency action (or a final rule declining to take action) to ensure compliance with the statute Congress enacted. As we have noted, see supra, at 424, the Clean Air Act directs EPA to establish emissions standards for categories of stationary sources that, “in [the Administrator’s] judgment,” “caus[e], or contribute] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” §7411(b)(1)(A). “[T]he use of the word ‘judgment,’ ” we explained in Massachusetts, “is not a roving license to ignore the statutory text.” 549 U. S., at 533. “It is but a direction to exercise discretion within defined statutory limits.” Ibid. EPA may not decline to regulate carbon-dioxide emissions from powerplants if refusal to act would be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” § 7607(d)(9)(A). If the plaintiffs in this case are dissatisfied with the outcome of EPA’s forthcoming rulemaking, their recourse under federal law is to seek Court of Appeals review, and, ultimately, to petition for certiorari in this Court. Indeed, this prescribed order of decisionmaking — the first decider under the Act is the expert administrative agency, the second, federal judges — is yet another reason to resist setting emissions standards by judicial decree under federal tort law. 'The appropriate amount of regulation in any particular greenhouse gas-producing sector cannot be prescribed in a vacuum: As with other questions of national or international policy, informed assessment of competing interests is required. Along with the environmental benefit potentially achievable, our Nation’s energy needs and the possibility of economic disruption must weigh in the balance. The Clean Air Act entrusts such complex balancing to EPA in the first instance, in combination with state regulators. Each “standard of performance” EPA sets must “tak[e] into account the cost of achieving [emissions] reduction and any nonair quality health and environmental impact and energy requirements.” §§7411(a)(1), (b)(1)(B), (d)(1); see also 40 CFR § 60.24(f) (EPA may permit state plans to. deviate from generally applicable emissions standards upon demonstration that costs are “[Unreasonable”). EPA may “distinguish among classes, types, and sizes” of stationary sources in apportioning responsibility for emissions reductions. §§ 7411(b)(2), (d); see also 40 CFR § 60.22(b)(5). And the Agency may waive compliance with emission limits to permit a facility to test drive an “innovative technological system” that has “not [yet] been adequately demonstrated.” § 7411( j)(l)(A). The Act envisions extensive cooperation between federal and state authorities, see §§ 7401(a), (b), generally permitting each State to take the first cut at determining how best to achieve EPA emissions standards within its domain, see §§ 7411(c)(1), (d)(l)-(2). It is altogether fitting that Congress designated an expert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions. The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order. See generally Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 865-866 (1984). Judges may not commission scientific studies or convene groups of experts for advice, or issue rules under notice- and-comment procedures inviting input by any interested person, or seek the counsel of regulators in the States where the defendants are located. Rather, judges are confined by a record comprising the evidence the parties present. Moreover, federal district judges, sitting as sole adjudicators, lack authority to render precedential decisions binding other judges, even members of the same court. Notwithstanding these disabilities, the plaintiffs propose that individual federal judges determine, in the first instance, what amount of carbon-dioxide emissions is “unreasonable,” App. 103,145, and then decide what level of reduction is “practical, feasible and economically viable,” id., at 58, 119. These determinations would be made for the defendants named in the two lawsuits launched by the plaintiffs. Similar suits could be mounted, counsel for the States and New York City estimated, against “thousands or hundreds or tens” of other defendants fitting the description “large contributors” to carbon-dioxide emissions. Tr. of Oral Arg. 57. The judgments the plaintiffs would commit to federal judges, in suits that could be filed in any federal district, cannot be reconciled with the decisionmaking scheme Congress enacted. The Second Circuit erred, we hold, in ruling that federal judges may set limits on greenhouse gas emissions in face of a law empowering EPA to set the same limits, subject to judicial review only to ensure against action “arbitrary, capricious,... or otherwise not in accordance with law.” § 7607(d)(9). V The plaintiffs also sought relief under state law, in particular, the law of each State where the defendants operate powerplants. See App. 105, 147. The Second Circuit did not reach the state-law claims because it held that federal common law governed. 582 F. 3d, at 392; see International Paper Co. v. Ouellette, 479 U. S. 481, 488 (1987) (if a case “should be resolved by reference to federal common law[,]... state common law [is] pre-empted”). In light of our holding that the Clean Air Act displaces federal common law, the availability vel non of a state lawsuit depends, inter alia, on the preemptive effect of the federal Act. Id., at 489, 491, 497 (holding that the Clean Water Act does not preclude aggrieved individuals from bringing a “nuisance claim pursuant to the law of the source State”). None of the parties have briefed preemption or otherwise addressed the availability of a claim under state nuisance law. We therefore leave the matter open for consideration on remand. ^ ‡ ^ For the reasons stated, we reverse the judgment of the Second Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. Justice Sotomayor took no part in the consideration or decision of this case. In addition to carbon dioxide, the primary greenhouse gases emitted by human activities include methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. 74 Fed. Reg. 66499. For views opposing EPA's, see, e. g., Dawidoff, The Civil Heretic, N. Y. Times Magazine, Mar. 29, 2009, p. 32. The Court, we caution, endorses no particular view of the complicated issues related to carbon-dioxide emissions and climate change. California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, and Wisconsin, although New Jersey and Wisconsin are no longer participating. Brief for Respondent Connecticut et al. 3, n. 1. Open Space Institute, Inc., Open Space Conservancy, Inc., and Audubon Society of New Hampshire. American Electric Power Company, Inc. (and a wholly owned subsidiary), Southern Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
songer_genresp1	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. UNITED STATES of America, Plaintiff, Appellee, v. CERTAIN LAND LOCATED IN the COUNTY OF BARNSTABLE, etc., et al., Defendants, Appellees. Appeal of Grace E. BESSAY, Defendant. No. 88-2029. United States Court of Appeals, First Circuit. Heard May 4, 1989. Decided Nov. 17, 1989. Jeffrey B. Axelrod, with whom Cynthia L. Amara, Gregor I. McGregor, McGregor, Shea & Doliner, P.C., William P. Homans, Jr., and Homans, Hamilton, Dahmen & Marshall, Boston, Mass., were on brief, for appellant. David C. Shilton, Appellate Staff, Land & Natural Resources Div., Washington, D.C., with whom Donald A. Carr, Acting Asst. Atty. Gen., Jeremiah T. O’Sullivan, U.S. Atty., Nicholas C. Theodorou, Asst. U.S. Atty., Boston, Mass., Jacques B. Gelin, Maria A. Iizuka, Dept, of Justice, Washington, D.C., and Robin Lepore, Office of Sol., Dept, of Interior, Boston, Mass., were on brief, for U.S. Before BOWNES and TORRUELLA, Circuit Judges, and RE, Judge. The Honorable Edward D. Re, Chief Judge of the United States Court of International Trade, sitting by designation. RE, Judge: Defendant-appellant, Grace E. Bessay, appeals from a judgment of the United States District Court of the District of Massachusetts which held that her “cottage” was not “improved property,” and, therefore, was not exempt from condemnation under the Cape Cod National Seashore Act, 16 U.S.C. § 459b et seq. (1982) (the Act). The district court concluded that, “[fjirst, the cottage does not qualify as a one-family dwelling[,] [and] [s]econd, the evidence is insufficient to establish that the same person owned both the cottage and land on which it rested as of September 1, 1959.” United States v. Certain Land Located in the County of Barnstable, No. 67-988-N, slip op. at 6 (D.Mass. Sept. 15, 1988). The question presented on this appeal is whether the cottage owned by Bessay is “improved property” within the meaning of the Act, and, therefore, exempt from condemnation. Since we hold that the district court correctly held that Bessay’s cottage was not “improved property” because it did not qualify as a “one-family dwelling,” we affirm. Hence, it is unnecessary to decide the issue of the date of ownership of the cottage and the land. BACKGROUND This case is one of a series that resulted from the 1967 condemnation of 251 acres of land in Provincetown, Massachusetts, pursuant to the Act, by the United States Department of the Interior. It traces its origins to a dispute between Andrew Fuller, Bessay’s predecessor in interest, and adjoining landowners, who are referred to as the Beede Group. Fuller claimed ownership of a certain structure or “shack” and the surrounding land through the adverse possession of his predecessor in interest, Dorothy Fearing. On January 30, 1978, the Beede Group filed a petition for a determination of title, requesting a finding that they owned the entire 251 acres in question. The District Court for the District of Massachusetts issued an order “declaring the Beedes to be seised and possessed of a good title to the entire tract in fee simple.” United States v. Certain Land Located in the County of Barnstable, 491 F.Supp. 1252, 1256 (D.Mass.1980). The court also declared that “Mr. Fuller ha[d] failed to show that the Fearings acquired a good title by adverse possession, and ...[,] [therefore,] Fuller ha[d] no title to any land on the locus and owns only the shack itself.” Id. at 1257 (citations omitted). The executrix of Fuller, Grace Bessay, appealed to this court, and we reversed on the question of adverse possession. We held that “[t]he Beedes were not only not the true owners, they could not even claim prior constructive possession of the lot.... Bessay, on the other hand, ha[d] possessory title tracing back through Fuller to Dorothy Fearing_” United States v. Certain Land Located in the County of Barnstable, 674 F.2d 90, 95 (1st Cir.1982). On that appeal, we declined to “reach any claim against the government on account of the shack or lot being ‘improved property,’ ” and remanded the case to the district court. Id. at 96. On remand, the district court made certain determinations as to deed measurements and ownership of the land. Most pertinent here is its finding “that the cottage owned by Grace Bessay does not constitute ‘improved property’ under the Cape Cod National Seashore Act and is therefore subject to condemnation by the government.” Certain Land Located in the County of Barnstable, No. 67-988-N, slip op. at 9. In the present case, Bessay appeals only that portion of the decision of the district court which relates to the “improved property” exemption under the Act. DISCUSSION Because the increasing popularity of Cape Cod threatened to jeopardize the historic and scenic integrity of the area, in 1961, Congress established the Cape Cod National Seashore Act, 16 U.S.C. § 459b et seq. (1982), to ensure the preservation of the region. Rather than exclude all persons from owning or living on the land within the seashore, persons who had owned homes in the area for a certain period of time were permitted to remain. In pertinent part, the Act provides that the authority of the Secretary of the Interi- or to acquire property in the Cape Cod region shall: (1) ... be suspended with respect to all improved property located within such area in all of the towns referred to in section 459b of this title for one year following August 7, 1961. (2) Thereafter such authority shall be suspended with respect to all improved property located within such area in any one of such towns during all times when such town shall have in force and applicable to such property a duly adopted, valid zoning bylaw approved by the Secretary in accordance with the provisions of section 459b-4 of this title. 16 U.S.C. § 459b-3(b) (1982) (emphasis added). Under the Act, “improved property” is defined as: a detached, one-family dwelling the construction of which was begun before September 1, 1959 ... together with so much of the land on which the dwelling is situated, the said land being in the same ownership as the dwelling, as the Secretary shall designate to be reasonably necessary for the enjoyment of the dwelling for the sole purpose of noncommercial residential use, together with any structures accessory to the dwelling which are situated on the land so designated. The amount of the land so designated shall in every case be at least three acres in area, or all of such lesser amount as may be held in the same ownership as the dwelling.... 16 U.S.C. § 459b-3(d) (emphasis added). As we stated in our decision in United States v. 7.92 Acres of Land (I), 769 F.2d 4, 8 (1st Cir.1985), there is “no doubt that the ‘improved property’ exemption of the Act has been designed and interpreted to prevent the eviction of bona fide or actual homeowners from established residences, thereby accommodating ‘the legitimate interests of existing residents.’ ” (quoting S.Rep. No. 428, 87th Cong., 1st Sess., reprinted in 1961 U.S.Code Cong. & Admin. News 2212, 2220) (emphasis in original). In the present case the Town of Prov-incetown has enacted zoning ordinances approved by the Secretary. Consequently, in determining whether Bessay’s cottage qualified for the “improved property” exemption, the district court had to decide whether the cottage was a “detached, one-family dwelling” within the statutory definition. The district court held that the cottage did not qualify for the exemption. Bessay, in her brief, contends that the “plain language of the Act mandates that [the cottage] be classified as a dwelling entitled to improved property status.” In her reply brief she further argues that “[t]he Department improperly urges the [c]ourt to employ a theory of statutory interpretation that ignores the plain and ordinary meaning of the word ‘dwelling.’ ” We disagree. The nature and purpose of the Act, as well as the meaning of “dwelling,” is not new to this court. In 7.92 Acres of Land (I), Bessay acquired two tracts of land in 1963 where there existed the remains of a structure that had been built in the 1930’s. Bessay stated that, after 1959, but prior to 1963, the structure was partially burned. Sometime after 1963, the remaining portion of the structure was also burned. Bessay claimed that “since there [was] evidence that a ‘dwelling’ existed on her land prior to 1959, she ha[d] ‘rebuilding rights,’ and, therefore, [was] entitled to an exemption from condemnation [as ‘improved property’] under section 459b-3 of the Act.” 7.92 Acres of Land (I), 769 F.2d at 7. We held that “[s]ince there was no dwelling on Bessay’s land at the time of the taking, and the land [was] unbuildable, ... [Bessay] ha[d] no rebuilding rights.... ” Id. at 9. In addition, we noted that: [T]he structure ... was never served by utilities, had no waste disposal facilities, and permits for such services or facilities were never obtained or issued. Clearly, the legislative history and the case law interpreting the Act reveal that Congress did not intend to include within the definition of “improved property” the kind of structure which may have existed on Bessay’s land. Id. at 8; see generally P. Rohan & M. Reskin, Condemnation Procedures & Techniques § 14.04[4] (Supp.1988). In United States v. 7.92 Acres of Land (II), No. 86-1825, slip op. at 2 (1st Cir. Aug. 31, 1987) [831 F.2d 281 (table)], cert. denied, 484 U.S. 1011, 108 S.Ct. 711, 98 L.Ed.2d 661 (1988), the structure in question “consisted of a ten by ten foot shack. It contained no plumbing, no electricity, no septic system and no foundation.” (citations omitted). The structure contained a “chemical toilet [and] a primer stove.” Id. Bessay stated that she “used rain water for washing and brought in fresh water for drinking.” Id. In 1972, Bessay applied to the National Park Service for a Certificate of Suspension from condemnation on the ground that her property was “improved property” within the meaning of the Act. Her application was denied by the Department, and the district court held that the property was not “improved.” See United States v. 7.92 Acres of Land (II), No. 75-3546-C, slip op. at 6 (D.Mass. Mar. 31, 1982). In affirming, we noted that, in light of our discussion of “improved property” in 7.92 Acres of Land (I), and because of the lack of “permits for utility service or waste disposal,” it was evident that “Bessay’s property was not improved so as to suspend the Secretary’s condemnation powers.” 7.92 Acres of Land (II), No. 86-1825, slip op. at 2-3. The structure in the present case, which is referred to by Bessay as a “cottage,” consists of a two room wooden structure, eighteen and-a-half by sixteen-and-a-half feet, with a five foot wide porch along its length, on a foundation of wooden posts or pilings imbedded in the sand. The cottage has no plumbing, no electricity, no insulation, no built-in waste disposal or bathing facilities. It is lighted by kerosene lamps, and, is serviced by gas appliances, a water pump located approximately 200 feet east of the structure, and a portable chemical toilet. It cannot be questioned that, guided by what we have said in our prior cases, Bes-say’s cottage is not a “dwelling.” Bessay, nonetheless, claims that the cottage at issue in this case differs from the structures that we examined in the prior cases. In her reply brief, she argues that, unlike the structure in 7.92 Acres of Land (I), where “there was no existing structure on the property, at the time of the taking, and the land was unbuildable because it was a coastal bank,” here her cottage “has been located on the property at all times relevant to this appeal” and “has been inhabited continuously during the warmer months.... ” Furthermore, she adds that this case differs from the one in 7.92 Acres of Land (II) because in this case her “house and its foundation are significantly larger and more durable than those in [7.92 Acres of Land (II)]” and “[ejlectric utilities, have never been available at [this] site, whereas they were available at the ... site [in 7.92 Acres of Land (II)].” In our present inquiry it is noteworthy that the district court found that “[p]rior to trial, Bessay herself agreed that the structures in the present case and in United States v. 7.92 Acres of Land (II) ... were substantially similar.” Certain Land Located in the County of Barnstable, No. 67-988-N, slip op. at 7. Our examination of the record also confirms that, in a “Joint Status Report” prepared before trial, Bes-say did “agree that the structures in the present case and in [7.92 Acres of Land (II)] are substantially similar.” Hence, notwithstanding the distinctions that are stressed by Bessay on this appeal, the district court was correct in concluding that the distinctions “are insufficient to convert the cottage into ‘improved property.’ ” Id. Furthermore, from the description of the cottage and from what we said in our prior cases, it is clear that “Congress did not intend to include within the definition of ‘improved property’ the kind of structure which ... existed [here].” See 7.92 Acres of Land (I), 769 F.2d at 8. Notwithstanding the explanations offered at the trial and in Bessay’s appellate briefs, it is crystal clear that, without electricity and plumbing, the cottage did not meet the Minimum Standards of Fitness for Human Habitation promulgated by the Massachusetts Department of Public Health on March 8, 1955, and the Province-town Health Department Regulations adopted on July 15, 1957. The Provincetown Health Department Regulations require approved septic systems, piped in water supply and an adequate number of “water closets, lavatories, bathtubs or showers_” The Regulations also state that “[e]very kitchen sink, lavatory and bathtub or shower ... shall be properly connected to both hot and cold water lines.” (emphasis in original). Additionally, the Massachusetts Minimum Standards of Fitness for Human Habitation require “a kitchen sink in good working condition and properly connected to water and sewer systems ... [and] [w]here connection ... is not practicable, a dwelling shall be served by cesspools, septic tanks or other means of subsurface disposal of sewage. ...” At the trial, both Bessay and her witness, Peter Clemons, acknowledged that there are no pipes which connect a water supply to the cottage, that the kitchen sink is not connected to the water, that there is no bathtub or shower, and that there are no water heating facilities in the cottage. See Record at 60-61, 112, 116, Certain Land Located in the County of Barnstable (No. 67-988-N). Hence, Bessay’s contention that the cottage meets the criteria set forth in the Massachusetts Minimum Standards of Fitness for Human Habitation is contradicted by the facts and the trial testimony. In her reply brief, as an alternative argument, Bessay contends that the Department “incorrectly asserts that a structure must meet standards found in local and state health laws in order to be considered a ‘dwelling’_” (emphasis in original). According to Bessay, “[t]he Act merely provides that the Department shall issue regulations specifying standards for approval by the Department of a town’s zoning bylaws.” She asserts that “[t]he Provincetown Zoning Bylaw ... does not make any mention of local or state health statutes_” (emphasis in original). The Act provides that the authority of the Secretary to acquire property by condemnation shall be suspended as to all improved property “when such town shall have in force and applicable to such property a ... valid zoning bylaw approved by the Secretary_” 16 U.S.C. § 459b-3(b)(2). This provision, which suspends the Secretary’s power to condemn improved property during the existence of a valid zoning bylaw, was enacted because “Congress could not enact local zoning ordinances to avoid condemnation....” 7.92 Acres of Land (I), 769 F.2d at 8. The legislative history of the Act acknowledges that: If the Federal Government ... is to establish a national seashore in such a way as not to interfere with the continued ownership and enjoyment of ... property by private landowners ..., it is only reasonable that the communities involved adopt zoning laws which will assure that the property within the seashore will be used in a manner consistent with the purposes of the seashore. S.Rep. No. 428, 87th Cong., 1st Sess., reprinted in 1961 U.S.Code Cong. & Admin. News 2212, 2235. “Once such a bylaw is approved [by the Secretary], the Secretary becomes powerless to condemn improved property within that town[ ] ... as long as that improved property is put to a use consistent with the bylaw.” United States v. Certain Lands in Truro, 476 F.Supp. 1031, 1033 (D.Mass.1979). Prior case law had defined “improved property” consistently with the requirements of state and local law. It is not unreasonable, therefore, to look to this criteria when examining the cottage. Furthermore, as stated by the district court in United States v. 7.92 Acres of Land (II), “[w]hether a particular structure conforms with existing state health laws is pertinent, objective evidence with respect to its legal status as a dwelling.” No. 75-3546-C, slip op. at 6. CONCLUSION In agreement with our prior decisions as to the nature and purpose of the Act, and the findings and conclusions of the district court, we hold that the structure that is the subject of this litigation is not “improved property” within the meaning of the Cape Cod National Seashore Act. Since we agree with the district court that Bessay’s “cottage does not qualify as a one-family dwelling,” and, therefore, is not exempt from condemnation as “improved property,” we need not decide whether the land and building were in the same ownership in September of 1959. Therefore, the judgment of the district court is affirmed. Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_genresp2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. UNITED STATES of America, Plaintiff-Appellee, v. Gary E. HALLMAN, Defendant-Appellant. No. 78-1385. United States Court of Appeals, Ninth Circuit. March 28, 1979. Bruce I. Hochman (argued), of Hochman, Salkin & DeRoy, Beverly Hills, Cal., for defendant-appellant. Mark 0. Heaney, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee. Before WALLACE and ANDERSON, Circuit Judges, and INGRAM, District Judge. The Honorable William A. Ingram, United of California, sitting by designation. States District Judge for the Northern District PER CURIAM: Gary E. Hallman, hereinafter called appellant, appeals from his conviction after trial by court of violation of Title 26, U.S.C. § 7201, income tax evasion. Reversal is urged on the basis that the Government failed to meet its burden of proof in establishing adequately appellant’s opening net worth for each of the years in question. Specifically, appellant contends that the Government’s proof was deficient in three areas: 1) There was a failure to consider and investigate the opening net worth of appellant’s wife in establishing appellant’s net worth; 2) There was an insufficient investigation in making the computation of cash on hand in establishing the opening net worth figure; 3) There was an insufficient investigation in making the determination with respect to appellant’s securities or the proceeds of the sale thereof in establishing the opening net worth figure. We affirm the conviction. In contending that the Government’s determination of opening net worth is defective because it failed to take into account the net worth of his wife, appellant relies upon United States v. Meriwether, 440 F.2d 753 (5th Cir. 1971). That case holds that the Government must, in establishing its net worth theory, show with reasonable certainty a definite opening net worth of the joint income of the taxpayer and his spouse. The Government contends, correctly we believe, that it had no obligation to prove the spousal net worth because of the absence of any evidence that Mrs. Hallman had significant earnings, and because a stipulation of fact entered into between the parties expressly provided that appellant received no gifts, loans, inheritances or any other kind of non-taxable receipts during the calendar years 1969, 1970 and 1971. In addition, appellant furnished no “leads” to the Government explanatory of the source of any assets possessed by him. Thus, the issue here presented is whether the Government must establish the net worth of the spouse of the taxpayer as a part of its prima facie case, or whether the Government’s duty to investigate spousal assets arises under its obligation to negate reasonable explanations or leads furnished by the taxpayer. This court’s decision in Talik v. United States, 340 F.2d 138 (9th Cir. 1965) and United States v. Chikata, 427 F.2d 385 (9th Cir. 1970) appear to support the latter interpretation. In the latter case, the court found that no claim had ever been asserted that spousal assets in any way contributed to the net worth of the taxpayer, and that it was not error to fail to instruct the jury to consider the spousal net worth as well as taxpayer’s net worth. In the former case, the court indicated that a substantive question in a joint return case is whether a summation based on the net worth theory took account of spousal assets at the beginning of the taxable years for which the joint returns in issue were filed. The court then concluded that the existence of spousal assets is the proper subject of a lead, and that without such a lead the Government could not be required to negate every possible source of non-taxable income. Thus, the trend of decision in this Circuit supports the conclusion that proof of spousal net worth is not a part of the Government’s prima facie case, but rather falls under its obligation to negate explanations and leads. Notwithstanding appellant’s novel argument based on Lenske v. United States, 383 F.2d 20 (9th Cir. 1967), we do not agree that the possibility of a new wife bringing substantial assets to a marriage is itself per se a lead, of equal dignity to one furnished by the taxpayer. In short, we feel that evidence of the receipt of no funds from non-taxable sources as reflected in the stipulation of facts, no evidence of substantial earnings on the part of the spouse, and no leads do not require the Government, in the words of Talik, “[to] hypothesiz[e] them (spousal assets) out of nothing.” Appellant also contends that the Government’s proof of opening net worth was deficient because its proof of no cash on hand at the times in question was based upon a purported uncorroborated admission contained in a financial statement filed by appellant with a bank at a time prior to the investigation conducted by the Internal Revenue Service. In that statement, appellant made no express representation that he had no cash on hand, but rather left blank the spaces provided for revealing that information. We agree with the Government’s contention that the corroboration rule applies only to confessions or admissions made in the course of the commission of the offense or in the course of investigation. Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954); United States v. Bianco, 534 F.2d 501 (2nd Cir. 1976), cert. denied, 429 U.S. 822, 97 S.Ct. 73, 50 L.Ed.2d 84 (1976); Fowler v. United States, 352 F.2d 100 (8th Cir. 1965), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966). In addition to the bank statement, there was other evidence of financial difficulties, loan renewals and overdrawn checking accounts which constitute a totality of circumstances consistent with the position of the Government. Appellant contends finally that the Government did not conduct an investigation adequate to support its determination that appellant owned no securities at the net worth starting point. The evidence was that all of appellant’s prestarting point securities had been disposed of except two stocks which could not be traced. The Government with commendable candor concedes that appellant should have been credited with the ownership of those two stocks, but convincingly demonstrates that their inclusion as assets as of the opening date would not have materially altered the net worth computation. Finding no material deficiency in the Government’s method of proof or in its underlying investigation, we affirm. Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_appel1_7_5	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). Brian Dennis HUNT, Plaintiff-Appellant, v. NUCLEAR REGULATORY COMMISSION et al., Defendants-Appellees. No. 79-1647. United States Court of Appeals, Tenth Circuit. Argued Nov. 6, 1979. Decided Nov. 23, 1979. Certiorari Denied Feb. 25, 1980. See 100 S.Ct. 1084. Robert M. Hager, Tulsa, Okl., for plaintiff-appellant. Joseph B. Scott, Washington, D. C., and Leonard Schaitman, Dept, of Justice, Alice Daniel, Acting Asst. Atty. Gen., Washington, D. C., Hubert H. Bryant, U. S. Atty., Tulsa, Okl. (Stephen F. Eilperin, Sol., Washington, D. C., of counsel, and Steve Ostrach, Washington, D. C., on the brief), for Nuclear Regulatory Commission, defendant-appellee. Joseph Gallo of Isham, Lincoln & Beale, Washington, D. C., Kenneth W. East, Tulsa, Okl. (Martha E. Gibbs, Chicago, 111., of counsel and Peter Thornton of Isham, Lincoln & Beale, Chicago, 111., on the brief), for Public Service Co. of Oklahoma, defendantappellee. George L. Edgar and Kevin P. Gallen of Morgan, Lewis & Bockius, Washington, D. C. (F. Paul Thieman, Jr. and J. Kenton, Francy of Crowe & Thieman, Tulsa, Okl., of counsel and on the brief), for General Elec. Co., defendant-appellee. Before McWILLIAMS, BREITENSTEIN and DOYLE, Circuit Judges. McWILLIAMS, Circuit Judge. The issue here is whether the Government in the Sunshine Act, 5 U.S.C. § 552b, et seq. (1976), applies to an adjudicatory hearing before the Atomic Safety and Licensing Board. The trial court held that the Act did not apply. We agree. The Public Service Company of Oklahoma filed an application with the Nuclear Regulatory Commission, hereinafter generally referred to as the Commission, requesting that it be granted a construction permit to build and operate a nuclear power plant, to be located some 23 miles east of Tulsa, Oklahoma and known as the Black Fox Station. As a part of the Commission’s proceedings, the Commission’s adjudicatory arm, the Atomic Safety and Licensing Board, hereinafter generally referred to as the Board, commenced hearings on Public Service Company’s application, such hearings being held in Tulsa, Oklahoma. During the course of these hearings, an internal report of the General Electric Company, which company was under contract to supply the Nuclear Steam Supply System for the proposed Black Fox Station, became pertinent and relevant to the issues then under consideration by the Board. General Electric was reluctant to produce its report, known as the Reed Report, without protective orders, claiming that the report contained trade secrets. An agreement was worked out between the parties whereby the Reed Report, or at least the pertinent portions thereof, were produced with the understanding that the hearings of the Board which concerned the Reed Report would be held in camera, i. e., a closed hearing not open to the public. It was in this general setting that Brian Dennis Hunt, a resident of Tulsa, Oklahoma, brought the present action against the Commission and the Board. Jurisdiction was based on 5 U.S.C. § 552b(h)(l). The complaint generally alleged the background facts summarized in the paragraph immediately above. The gist of the complaint was that the Government in the Sunshine Act precluded the Board from holding hearings closed to the general public. The relief sought was a temporary restraining order, and a preliminary and permanent injunction enjoining the Board from holding closed hearings “on any matter relating to the Reed Report.” General Electric and the Public Service Company of Oklahoma were permitted to intervene as defendants. Each filed an answer, admitting that all hearings before the Board relating to the Reed Report were to be closed hearings, i. e., not open to the public, and denying that the Sunshine Act covered the hearings of the Board. A motion opposing the request for a temporary restraining order, as well as a motion to dismiss, were filed on behalf of the Commission and the Board. At the conclusion of a hearing on Hunt’s request for a temporary restraining order, the trial court, after denying the request for a temporary restraining order, indicated, with the apparent approval of all concerned, that the entire case boiled down to a single issue: Did the Sunshine Act cover and apply to the adjudicatory hearing then about to take place before the Board? The trial court stated that if the Act by its terms did apply, then injunctive relief was in order; but that if the Act did not cover the Board’s hearing, then the entire action should be dismissed. The parties were then granted three days to file simultaneous briefs, all concerned being desirous of a speedy determination of the matter. The trial court later ruled that the Sunshine Act by its terms did not encompass the hearings of the Board, and accordingly dismissed the action. The trial court’s order now appears as Hunt v. Nuclear Regulatory Commission, 468 F.Supp. 817 (N.D.Okl.1979). From that dismissal order Hunt prosecutes the present appeal. In this Court Hunt asked for an injunction pending final disposition of his appeal. In this regard Hunt sought an order of this Court enjoining the Commission from issuing a construction permit to Public Service Company for the construction and operation of the Black Fox Station, pending final disposition of the appeal. We declined to take immediate action on Hunt’s motion for injunction pending appeal, and accelerated the briefing of the appeal proper. Briefing is now complete and the case has been orally argued, again on an expedited basis. Accordingly, the appeal is itself ripe for final determination. Before examining the Sunshine Act, reference should first be made to the nature of both the Commission and the Board and the relationship between the two. The Atomic Energy Act of 1954, 42 U.S.C. § 2011, et seq., gave the Atomic Energy Commission the authority, among other things, to regulate nuclear power. The Energy Reorganization Act of 1974, 42 U.S.C. § 5801, et seq., transferred the licensing and related regulatory functions of the Atomic Energy Commission to the Nuclear Regulatory Commission. The Nuclear Regulatory Commission is composed of five members appointed by the President by and with the advice and consent of the Senate. 42 U.S.C. §§ 5841(a)(1) and 5841(b)(1). The 1974 Act also requires that “a quorum for the transaction of [Nuclear Regulatory Commission] business shall consist of at least three members present.” 42 U.S.C. § 5841(a)(1). Pursuant to statutory authority, the Nuclear Regulatory Commission provides a comprehensive agency process for consideration of the public health and safety and of the environmental aspects of nuclear power plant licensing. Utility companies wishing to construct or operate a nuclear power plant must make detailed héalth, safety, and environmental submissions. The Commission’s staff initially reviews these submissions and subsequent to that review the Commission participates as an independent party to the licensing process. In accordance with the Administrative Procedure Act, 5 U.S.C. § 551, et seq., adjudicatory hearings are then held on all construction permit applications. Any person whose interest may be affected by the proceeding may intervene as a party to such hearings. 42 U.S.C. § 2239(a). The hearings are conducted for the Commission by three-member Atomic Safety and Licensing Boards. Atomic Safety and Licensing Boards are provided for by 42 U.S.C. § 2241. That statute reads as follows: Atomic safety and licensing boards; establishment; membership; functions; compensation (a) Notwithstanding the provisions of 7(a) and 8(a) of the Administrative Procedure Act, the Commission is authorized to establish one or more atomic safety and licensing boards, each comprised of three members, one of whom shall be qualified in the conduct of administrative proceedings and two of whom shall have such technical or other qualifications as the Commission deems appropriate to the issues to be decided, to conduct such hearings as the Commission may direct and make such intermediate or final decisions as the Commission may authorize with respect to the granting, suspending, revoking or amending of any license or authorization under the provisions of this chapter, any other provision of law, or any regulation of the Commission issued thereunder. The Commission may delegate to a board such other regulatory functions as the Commission deems appropriate. The Commission may appoint a panel of qualified persons from which board members may be selected. (b) Board members may be appointed by the Commission from private life, or designated from the staff of the Commission or other Federal agency. . The composition of an Atomic Safety and Licensing Board varies from hearing to hearing and, we are informed, is typically composed of an environmental scientist, a nuclear engineer, and a lawyer. The licensing board in an individual case is selected by the Commission from a panel of some 60 full and part-time members. Advice and consent of the Senate is not required in this selection process. An appeal from a decision of an Atomic Safety and Licensing Board is heard by a three-member Atomic Safety and Licensing Appeal Board, also composed of scientists and' lawyers. The Nuclear Regulatory Commission itself has discretionary power to review a decision of an Appeal Board. Finally, the several Courts of Appeals have exclusive jurisdiction to review all final orders of the Commission entered in licensing proceedings. 42 U.S.C. § 2239 and 28 U.S.C. §§ 2341-44. See also Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). As above indicated, Hunt relies totally on the provisions of 5 U.S.C. § 552b of the so-called Sunshine Act in his effort to “open up” the Board’s hearings. That statute provides as follows: § 552b. Open Meetings (a) For purposes of this section— (1) the term “agency” means any agency, as defined in section 552(e) of this title, headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the President with the advice and consent of the Senate, and any subdivision thereof authorized to act on behalf of the agency; (2) the term “meeting” means the deliberations of at least the number of individual agency members required to take action on behalf of the agency where such deliberations determine or result in the joint conduct or disposition of official agency business, but does not include deliberations required or permitted by subsection (d) or (e); and (3) the term “member” means an individual who belongs to a collegial body heading an agency. (b) Members shall not jointly conduct or dispose of agency business other than in accordance with this section. Except as provided in subsection (c), every portion of every meeting of an agency shall be open to public observation. (Emphasis added.) Except as provided for in 5 U.S.C. § 552b(b), which provision we need not reach in the present case because of our view that the statute itself does not apply to the Atomic Safety and Licensing Board, the statute in the last clause thereof provides that “every portion of every meeting of an agency shall be open to public observation.” (Emphasis added.) However, in preceding sections of the statute the term “meeting of an agency,” is so defined as to clearly mean that the mandate for open hearings does not apply to an adjudicatory hearing before an Atomic Safety and Licensing Board, though it would apply to a meeting of the Nuclear Regulatory Commission itself. 5 U.S.C. § 552b(a)(l) defines the term “agency” as that word is used in 5 U.S.C. § 552b(b). The term “agency” as used in the statute is defined as meaning an agency which, inter alia, is headed by a collegial body composed of two or more individual members, a majority of whom are appointed by the President with the advice and consent of the Senate. An Atomic Safety and Licensing Board is clearly not an agency within the meaning of the statute. Members of such a Board are not appointed by the President, but by the Nuclear Regulatory Commission. The last clause in 5 U.S.C. § 552b(a)(l) provides that the mandate that all meetings of agencies be open applies not only to agencies whose members, or a majority thereof, are appointed by the President with the advice and consent of the Senate, but also applies to any subdivision of such collegial body authorized to act on behalf of such an agency. In our view, an Atomic Safety and Licensing Board is not a subdivision of the Nuclear Regulatory Commission. This is not an instance where an agency, i. e. a collegial body, a majority of whose members are appointed by the President, has divided itself into sub-groups to conduct the business of the agency. No member of the Commission is on the Board with which we are here concerned. Any possible doubt on this particular matter is cleared up by ensuing sections in the statute. 5 U.S.C. § 552b(a)(2) defines the term “meeting” as the deliberations of at least the number of individual agency members required to take action on behalf of the agency. This language is entirely consistent with the premise that the “subdivision” mentioned in 5 U.S.C. § 552b(a)(1) is a subdivision of the “collegial body” and that such subdivision must be composed of a sufficient number of the members of the collegial body as to permit action on behalf of the collegial body. If there still be any doubt on this partictílar matter, such should be resolved by the provision of 5 U.S.C. § 552b(a)(3). That particular section defines the term “member” as that term is used in the definition of both the term “agency” and the term “meeting.” The statute defines the term “member” as an individual “who belongs to a collegial body heading an agency.” No member of the present Board belongs to the “collegial body heading the agency.” Based on our reading of 5 U.S.C. § 552b we are of the definite view that the Sunshine Act does not apply to the Board here involved. Since Hunt relies totally on the provisions of 5 U.S.C. § 552b to open up the Board hearings involving the Reed Report, the trial court acted properly in dismissing the action. Our analysis of the statute parallels that of the trial court, and we therefore are generally in accord with the trial court’s reasoning. 468 F.Supp. 817 (N.D.Okl.1979). Wé could well let the entire matter rest at this point, since in our view the statute is clear and unambiguous. However, we would briefly note that our understanding of the statute is in accord with the legislative history of the Act, is in accord with regulations of the Commission implementing the Act, and is in accord with an “Interpretative Guide to the Government in the Sunshine Act,” published by the Office of the Chairman of the Administrative Conference of the United States. Reference to legislative history is said to be quite proper, “however clear” the language of a statute may appear to be. Such reference is permissible in order to make certain that the apparent “clearness” is not superficial in nature. Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 96 S.Ct. 1938, 48 L.Ed.2d 434 (1976) and United States v. . American Trucking Ass’ns, 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940). We do not propose to here dwell at length on the legislative history of the Sunshine Act. Such is fully reviewed in the trial court’s order. 468 F.Supp. 817, 820-21 (N.D.Okl.1979). The reader of this opinion is directed to the trial court’s order for legislative history. In promulgating its proposed regulations implementing the Sunshine Act, the Nuclear Regulatory Commission defined the term “commission” to mean “the collegial body of five commissioners or a quorum thereof . or any subdivision of that collegial body authorized to act on its behalf, and shall not mean any body not composed of members of that collegial body.” 41 Fed. Reg. 55882 (1976). In that regard the Commission commented: The definition of Commission is taken from the definition of ‘agency’ in the Act, 5 U.S.C. 552b(a)(1). Subdivisions of the Commission not composed of Commission members such as the Atomic Safety and Licensing Board, or the Advisory Committee on Reactor Safety, are specifically excluded from the definition. 41 Fed. Reg. 55880 (1976). This proposed regulation of the Nuclear Regulatory Commission as finalized provides that the “Commission” means the collegial body of five Commissioners and any subdivision of that collegial body, but does not “mean any body not composed of members of that collegial body.” 10 C.F.R. § 9.101(a) (1979). In line with the foregoing, the Commission commented that the legislative history of the Sunshine Act plainly supports the conclusion that an Atomic Safety and Licensing Board is not subject to the Act. 42 Fed.Reg. 12875 (1975). Under the Administrative Conference Act, 5 U.S.C. §§ 574(2), 575(c)(14) (1976), the Office of the Chairman of the Administrative Conference of the United States is generally charged with advising and assisting federal agencies on matters relating to administrative procedure. Under the Sunshine Act, the Office of the Chairman is specifically charged to consult with each agency subject to the Sunshine Act and to review any regulations proposed for promulgation under the Act by such agency. 5 U.S.C. § 552b(g). With regard to the question of the applicability of the open meeting requirement to lower-level agency boards and tribunals, the Office of the Chairman in the “Interpretative Guide to the Government in the Sunshine Act” commented as follows: It should be noted that ‘subdivision thereof’ refers back to ‘collegial body,’ not to ‘agency.’ Subdivisions made up entirely of employees other than members of the collegial body are not covered by the Act, even though they may be authorized to act on behalf of the agency. The basis for excluding subdivisions made up of agency employees is well stated in the Senate Report: ‘The agency heads are high public officials, having been selected and confirmed through a process very different from that used for staff members. Their deliberative process can be appropriately exposed to public scrutiny in order to give citizens an awareness of the process and rationale of decision-making.’ Since the judgment of the trial court is being affirmed, Hunt’s request for injunction pending appeal is rendered moot. Judgment affirmed. . The Board members in the instant case are two full-time Commission employees and one part-time consultant from private life. . At oral argument opposing counsel were in agreement that the ultimate question in this case is whether the term “any subdivision thereof’ as used in 5 U.S.C. § 552b(a)(1) means any subdivision of a “collegial body” or any subdivision of an “agency.” Hunt agreed that if the term “any subdivision thereof’ means any subdivision of a “collegial body,” then under such interpretation the Atomic Safety and Licensing Board is not a subdivision of the Nuclear Regulatory Commission. In our view the term “any subdivision thereof’ can only mean subdivision of a collegial body. In this statute we are not concerned with an “agency” in the broad sense of that word. The statute itself limits the Sunshine Act to any agency headed by a collegial body, a majority of whose members are appointed by the President with the advice and consent of the Senate. That is the only type of an agency covered by the Act. Hence, the term “any subdivision thereof’ can only mean a subdivision of the “collegial body” type of agency. . We are advised that a rule that the open meeting requirement of the Sunshine Act applies only to meetings in which members of the collegial body heading the agency are present and participating has been promulgated by such agencies as Civil Aeronautics Board, Civil Service Commission, Federal Trade Commission, Interstate Commerce Commission, National Labor Relations Board, United States Parole Commission, as well as numerous other agencies. . R. Berg and S. Klitzman, An Interpretative Guide to the Government in the Sunshine Act, Office of the Chairman of the Administrative Conference of the United States (June 1978). Question: 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_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. RICHMOND LEASING CO., and General Electric Credit Corp., Plaintiffs-Appellees, v. CAPITAL BANK, N.A., etc. and Chemical Bank & Chemcredit, Inc., Defendants-Appellants. No. 84-2565 Summary Calendar. United States Court of Appeals, Fifth Circuit. June 17, 1985. Winstead, McGuire, Sechrest & Minick, Jay J. Madrid, Dallas, Tex., for defendants-appellants. Zalkin, Rodin & Goodman, Henry L. Goodman, Andrew D. Gottfried, New York City, for Chemical Bank & Chemcredit. Sheinfeld, Maley & Kay, Myron M. Sheinfeld, John P. Melko, Houston, for Richmond Leasing. Gilpin, Maynard, Parsons, Pohl & Bennett, David M. Lacey, Houston, Tex., for General Elec. Before GEE, JOHNSON and DAVIS, Circuit Judges. PER CURIAM: In this Chapter 11 bankruptcy reorganization, the appellants, bank creditors of the debtor in possession, Richmond Leasing Company (RLC), challenge the district court’s affirmance of the bankruptcy court’s approval of RLC’s decision to assume an amended lease under § 365 of the Bankruptcy Code. We conclude that the district court did not err in approving the assumption of the lease as a valid business judgment of the debtor, and thus we affirm. The debtor in possession, RLC, is in the business of leasing railroad cars. It is a wholly-owned subsidiary of Richmond Tank Car (RTC), which manufactures railroad cars. The lease that forms the subject matter of this appeal is part of a larger transaction in which RLC and its parent corporation, RTC, both played a part. RTC manufactured and sold 402 railroad cars to General Electric Credit Corporation (GECC). GECC in turn leased the railroad cars back to RTC’s subsidiary, RLC, for a twenty-year term. Under the lease agreement between GECC and RLC, dated June 1, 1982, RLC agreed to pay GECC approximately $1.8 million every six months, beginning on June 30, 1983. RLC also granted GECC a security interest in RLC’s subleases of the cars to third parties. There was some suggestion at the hearing that GECC may have paid RTC a premium price for the ears and RLC may in turn have leased them from GECC at a premium. The 402 cars covered by the lease make up less than ten percent of RLC’s inventory. On January 7, 1983, before the first payment was due under this lease, RLC filed its petition in bankruptcy. In April 1983, RLC and GECC offered for court approval a renegotiated lease that RLC proposed to assume. Under the amended lease, GECC agreed to waive existing defaults in the lease and to reduce the rent due under the lease through 1986 to quarterly payments of $500,000 or 85% of the gross quarterly revenues generated by the 402 cars, whichever was less; however, the quarterly payments were not to average less than $400,000 for two consecutive quarters. From 1986 through 2002, the quarterly payments were to increase to $937,500. In exchange, RTC agreed to issue preferred stock to GECC periodically, and GECC placed restrictions upon RTC’s ability to encumber its property, buy stock, make loans, guarantee obligations, dilute its stock, dispose of its fixed assets at less than fair market value, lease property, merge with or be purchased by another company, or dispose of its receivables out of the ordinary course of business, without GECC’s consent. The amended lease designates RTC’s violation of these restrictions as an event of default. RTC’s bankruptcy is an event of default under both the original and the amended leases. After a hearing, the bankruptcy court approved the joint application of RLC and GECC for authority to amend and assume the lease. The court’s order provided that the automatic stay imposed by 11 U.S.C. § 362 would be lifted automatically in the event of RLC’s default, after GECC notified the court and all parties in interest. On appeal from the bankruptcy court, the district court affirmed the bankruptcy court’s approval of the assumption of the lease. The bank creditors raise several points in their appeal to this Court. We shall consider those points in turn. The Standard of Review The bank creditors argue that the district court improperly applied a “clearly erroneous” standard in its review of the bankruptcy court’s findings of ultimate facts and conclusions of law. Specifically, the bank creditors maintain that the district court reviewed under the clearly erroneous standard the bankruptcy court’s decisions regarding the correctness of RLC’s business judgment in assuming the amended lease, whether RLC had provided adequate assurance of performance, whether the amended lease implemented a sub rosa reorganization, and whether the assumption of the lease with some amendment favorable to GECC complied with § 365. We have examined the district court’s memorandum and order carefully, and we disagree. It is quite clear that the district court applied the appropriate de novo standard of review to the legal questions whether the amended lease implemented a sub rosa reorganization and whether the assumption of the amended lease complied with the standards set forth in § 365. Moreover, assuming that the district court applied a “clearly erroneous” standard when it reviewed the bankruptcy court’s decisions on business judgment and adequate assurance, we conclude that the disputes involving those issues centered on contested facts. No one denies that if RLC can generate sufficient income from GECC’s cars and from its unencumbered assets to meet the payments on the amended lease, then the lease represents a valid exercise of RLC's business judgment and RLC has offered adequate assurance of performance. The various financial experts and company officers who testified at the hearing on the application to assume the lease differed in the inferences they drew from RLC’s accounting data, upon the accuracy of which all agreed. Were we entirely without guidance on the application of the “clearly erroneous” standard in this situation, we would adopt that standard in deference to the bankruptcy court’s experience and expertise in resolving disputes between financial expert witnesses. In deciding this issue, however, we also have the benefit of the Supreme Court’s decision in Anderson v. City of Bessemer City, — U.S.-,-, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985), holding that an appellate court must review a finding of fact under the “clearly erroneous” standard of Rule 52(a) of the Federal Rules of Civil Procedure, even when the lower court’s findings of fact “do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts.” — U.S. at-, 105 S.Ct. at 1512 (emphasis added). The Court explained: The rationale for deference to the original finder of fact is not limited to the superiority of the trial judge's position to make determinations of credibility. The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge’s efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one; requiring them to persuade three more judges at the appellate level is requiring too much. Id. Rule 8013 of the Bankruptcy Rules, which we apply here, mandates the application of the “clearly erroneous” standard of review to the bankruptcy court’s findings of fact. Its language tracks that of Rule 52(a) of the Federal Rules of Civil Procedure almost verbatim. The Anderson reasoning is thus equally compelling in this case. RLC’s Exercise of Business Judgment and Adequate Assurance of Future Performance The bank creditors invite us to overturn the district court’s holding that the bankruptcy court did not clearly err when it found that RLC’s assumption of the amended lease was a proper exercise of its business judgment. The bank creditors urge us to hold that the business judgment question, as a mixed question of law and fact, is subject to de novo review. We have noted above that the decision whether assumption of the lease represented a proper exercise of business judgment depended entirely upon resolution of a factual dispute as to whether RLC could generate sufficient revenues in the future to cover its obligations under the lease. The parties did not dispute the legal standard to be applied in § 365 cases, nor could they. It is well established that “the question whether a lease should be rejected ... is one of business judgment.” Group of Institutional Investors v. Chicago, Milwaukee, St. Paul & Pacific Railroad Co., 318 U.S. 523, 550, 63 S.Ct. 727, 742, 87 L.Ed. 959 (1943). See also Matter of Minges, 602 F.2d 38, 42-43 (2d Cir.1979). “As long as assumption of a lease appears to enhance a debtor’s estate, court approval of a debtor-in-possession’s decision to assume the lease should only be withheld if the debtor’s judgment is clearly erroneous, too speculative, or contrary to the provisions of the Bankruptcy Code____” Allied Technology, Inc. v. R.B. Brunemann & Sons, 25 B.R. 484, 495 (Bankr.S.D.Ohio 1982). The parties did not dispute whether doubts about RLC’s financial stability had achieved a critical mass sufficient to render RLC’s assuming the lease an improper exercise of business judgment; instead they disputed whether the doubts about RLC’s financial status were justified. Thus this issue is properly considered under the “clearly erroneous” standard of review. The bankruptcy court heard extensive testimony on direct examination and cross-examination of financial experts and company officers. It was called upon to determine whether a projection of future income based on RLC’s revenues was more accurate than one based on cash flows, whether certain types of income were sufficiently assured to be considered as available to pay RLC’s lease obligations, whether an incipient upward turn in the railroad car leasing business was likely to continue in the long term, and whether the administrative claim that might result from RLC’s default on the amended lease would be so large that possible prejudice to RLC’s unsecured creditors mandated a more cautious business approach than that taken in assuming the lease. The bankruptcy court’s findings reflect its decisions on these disputed factual matters. It did not clearly err. Similarly, the parties do not dispute that 11 U.S.C. § 365(b)(1)(C) requires a debtor in possession to provide adequate assurance of future performance when it assumes a lease. Nor do they dispute the legal standard for determining adequate assurance. In In Re Sapolin Paints, Inc., 5 B.R. 412, 420-21 (Bankr.E.D.N.Y.1980), the court traced the phrase “adequate assurance” as it is used in § 365 to the “adequate assurance” defined in § 2-609(1) of the Uniform Commercial Code: The terms “adequate assurance of future performance” are not words of art; the legislative history of the Code shows that they were intended to be given a practical, pragmatic construction. The phrase first appears in the legislation proposed by the Commission on Bankruptcy Laws. ... The Commission Report explains the language “adequate assurance of future performance” as follows: “The language ‘is adopted from Uniform Commercial Code § 2-609(1).’ What constitutes ‘reasonable time thereafter’ for curing defaults or an ‘adequate assurance of future performance’ must be determined by consideration of the facts of the proposed assumption. Cf. Official Comment 4 to Uniform Commercial Code § 2-609 (1972 Edition). It is not intended, however, that any non-debtor party should acquire greater rights in a ease under the act than he has outside the act.” Report of the Commission on Bankruptcy Laws of the United States, H.R. Doc. No. 93-137, 93d Cong., 1st Sess. Pt. II 156-57 (1973). Section 2-609 of the Uniform Commercial Code, from which the bankruptcy statute borrows its critical language, provides that “when reasonable grounds for insecurity arise with respect to the performance of either party, the other may in writing demand adequate assurance of future performance .... ” The Commentaries to the Code note that “ ‘adequate’ assurance is to be ‘defined by commercial rather than legal standards.’ ” Official Comment 3 To Uniform Commercial Code § 2-609 (1972 Ed.). What constitutes “adequate assurance” is to be determined by factual conditions; the seller must exercise good faith and observe commercial standards; his satisfaction must be based upon reason and must not be arbitrary or capricious. Courts have consistently determined whether a debtor offered adequate assurance of future performance by considering whether the debtor’s financial data indicated its ability to generate an income stream sufficient to meet its obligations, the general economic outlook in the debt- or’s industry, and the presence of a guarantee. See, e.g., Seacoast Products, Inc. v. Spring Valley Farms, 34 B.R. 379, 381 (Bankr.M.D.N.C.1983); In re Berkshire Chemical Haulers, Inc., 20 B.R. 454, 458-59 (Bankr.Mass.1982); In re Lafayette Radio Electronics Corp., 9 B.R. 993, 1000 (Bankr.E.D.N.Y.1981). The bankruptcy court considered just such factual matters in this case. The bank creditors contend that the bankruptcy court erred when it credited the testimony of RLC’s witnesses projecting RLC’s future profitability rather than the testimony of the bank creditors’ witnesses. That dispute is essentially factual and is subject to review under the “clearly erroneous” standard. We affirm the district court’s holding that the bankruptcy court did not clearly err when it made this determination. RLC’s' Granting GECC Greater Rights Under the Amended Lease The bank group contends that the bankruptcy court erred when it approved RLC’s assumption of the amended lease on the ground that § 365 of the Bankruptcy Code requires that the debtor grant the creditor no greater rights under the amended lease than under the original lease. This argument misconstrues the requirements of § 365. We first observe that the amended lease significantly reduces RLC’s short-term obligations to GECC. In exchange for this concession, GECC receives additional benefits under the amended lease largely from RLC’s parent corporation, RTC, in the form of stock and increased control over the way RTC conducts its business. The consideration flowing from RTC to GECC cannot affect any interest of the bank creditors that RLC’s bankruptcy proceeding protects. Under the amended agreement, RLC provides GECC additional consideration only in the sense that it agrees that RTC’s default on its new obligations to GECC will permit GECC to terminate the agreement and repossess its cars from RLC. Section 365 is intended to provide a means whereby a debtor can force another party to an executory contract to continue to perform under the contract if (1) the debtor can provide adequate assurance that it, too, will continue to perform, and if (2) the debtor can cure any defaults in its past performance. The provision provides a means whereby a debtor can force others to continue to do business with it when the bankruptcy filing might otherwise make them reluctant to do so. The section thus serves the purpose of making the debtor’s rehabilitation more likely. In this context, it becomes clear that in the typical case under § 365, if anyone objects to the debtor’s assumption of the contract it will be the other party to the executory contract, not the debtor’s creditors who are strangers to the transaction. Thus, the often-repeated statement that the debtor must accept the contract as a whole means only that the debtor cannot choose to accept the benefits of the contract and reject its burdens to the detriment of the other party to the agreement. See In re Holland Enterprises, Inc., 25 B.R. 301 (Bankr.E.D.N.C.1982); In re LHD Realty Corp., 20 B.R. 717 (Bankr.S.D.Ind.1982). Similarly, the other party cannot hold out for concessions from the debtor beyond those required to provide adequate assurance. See In re Lafayette Radio Electronics Corp., 9 B.R. 993, 998 (E.D.N.Y.1981). We conclude that RLC’s recognizing an event of default in RTC’s failure to perform the new covenants, which were included in the amended lease in order to assure GECC that RTC would perform its guarantee, is part of RLC’s offer of adequate assurance of future performance to GECC. See In re Kennesaw Dairy Queen Brazier, 28 B.R. 535, 536 (N.D.Ga.1983) (stating, “The fact that debtors may cure defaults and reinstate contracts or leases also is perhaps the clearest example of the modification of an executory contract or unexpired lease.”). Moreover, to the extent that the amended lease represents a true renegotiation of the obligations of RLC, RTC and GECC, it falls entirely outside of § 365’s concern. 11 U.S.C. §§ 1107 and 1108, taken together, authorize a debtor in possession to operate the business of the debtor. Nothing in the Code suggests that the debtor may not modify its contracts when all parties to the contract consent. Although § 1107 provides that a court may limit the debtor’s exercise of the rights of the trustee, including the § 1108 right to operate the business, in the absence of special circumstances or a specific Code provision, we see no reason to require the debtor to do more than justify its actions under the “business judgment” standard if creditors object. More exacting scrutiny would slow the administration of the debt- or’s estate and increase its cost, interfere with the Bankruptcy Code’s provision for private control of administration of the estate, and threaten the court’s ability to control a case impartially. See In re Airlift International, Inc., 18 B.R. 787, 789 (Bankr.S.D.Fla.1982); In re Curlew Valley Assocs., 14 B.R. 506, 509-514 (Bankr.D.Utah 1981). This business judgment standard thus does not differ from the business judgment inquiry already undertaken and resolved in favor of the amended lease under § 365. Accordingly, the bankruptcy court did not err in approving the lease as amended, and we affirm the district court’s order on this point. Lease as a Sub Rosa Plan of Reorganization The bank creditors contend that the amended lease goes beyond what is permissible in the assumption of a lease and establishes, sub rosa, a plan of reorganization, allowing GECC and RLC to circumvent the plan confirmation requirements of Chapter 11. The bank creditors complain that the lease does not expressly restrict payment due under the amended lease to the revenues generated by the GECC rail cars; the order approving the lease provides for the automatic lifting of the § 362 stay if there is a default; in the event of default, the lease permits GECC to assert a large administrative claim that would affect the proportion of assets that could be allocated to other creditors under a plan of reorganization; and the amended lease restricts RTC’s actions and names as an event of default RTC’s filing for bankruptcy, so that, in the event of RTC’s bankruptcy, a consolidation with RLC’s case would be more difficult. We do not doubt that a debtor can assume a lease under its original, prebankruptcy terms without creating a sub rosa plan of reorganization, so long as such an assumption is a valid exercise of a debtor’s business judgment. Thus, we need not greatly concern ourselves with the alleged debilitating effects of GECC’s rights, under the amended lease, to look to sources other than revenues from the GECC cars for payment, to assert a large administrative claim in the event of default, or to consider RTC’s bankruptcy as an event of default; the original lease afforded GECC all those advantages, and the bankruptcy court determined that they do not render assumption of the amended lease an improper business decision. The lifting of the automatic stay and the restrictions on RTC’s actions, even were we to combine them with the advantages under the original lease, do not alter creditors’ rights, dispose of assets, and release claims to the extent proposed in the wide-ranging transaction disapproved in In re Braniff Airways, Inc., 700 F.2d 935 (5th Cir.1983). Although the disposition of a “crown jewel” asset might, in combination with other factors, severely restrict a future reorganization plan so as to amount to a sub rosa plan of reorganization even though all or substantially all of the debt- or’s assets were not involved in the transaction, that is not the case here. We will not make a mountain out of the molehill of restrictions included in the amended lease. Lifting of Automatic Stay in the Event of Default The bank creditors contend that the bankruptcy court erred in conditionally lifting the automatic stay in the event of default without a showing of adequate cause. 11 U.S.C. § 362(d)(2) permits the court to lift the automatic stay, after notice and a hearing, if the debtor does not have an equity in the property that the movant seeks to recover and the property is not necessary to an effective organization. The order lifting the automatic stay was part and parcel of the amended lease transaction here, and the parties offered testimony concerning its effect at the hearing on the application to assume the lease. Although the bankruptcy court did not make findings of fact with respect to the requirements of 11 U.S.C. § 362(d)(2), it did order the lifting of the automatic stay “[p]ursuant to the Joint Application.” When a court has not entered findings of fact in accordance with Rule 52(a) of the Federal Rules of Civil Procedure, the appellate court ordinarily vacates the judgment and remands the case for appropriate findings. Remand is unnecessary, however, if “all the facts relied upon to support the judgment are in the record and are undisputed, or if the record as a whole presents no genuine issue as to any material fact.” Armstrong v. Collier, 536 F.2d 72 (5th Cir.1976) (quoting King v. Commissioner of Internal Revenue, 458 F.2d 245, 249 (6th Cir.1972)). It is undisputed that RLC has no equity in GECC’s cars. Under § 362(g), the party opposing the lifting of the stay bears the burden of proof on all issues other than the issue of the debtor’s equity in the property. There is no evidence on record to suggest that GECC’s railroad cars, which make up less than ten percent of RLC’s inventory, are necessary to an effective reorganization of RLC. Therefore, the bankruptcy judge did not err in lifting the automatic stay. Because we have found no error in the district court’s decision in this case, its order is AFFIRMED. . 11 U.S.C. § 365. . The district court correctly held that RLC was not in default of its obligations under the lease, since no payment was yet due. RLC’s filing for bankruptcy was an event of default under the lease, but under the provisions of 11 U.S.C. § 365(b)(2), that default would have had no effect in bankruptcy. However, RLC's bankruptcy would have triggered RTC’s obligations as a guarantor of the June 1982 lease, so the waiver of defaults represented some consideration flowing from GECC to RTC. . We do not doubt that the district court regarded the bankruptcy court’s decision as sustainable under either a "clearly erroneous" or de novo standard of review. The district court held that the evidence taken during the hearing "amply support[ed]" the bankruptcy judge's findings. . We might reach a different result had we concluded that "an error of law [had] impaired the judgment of the trial court on a mixed question of law or fact....” 9 C.A. Wright & A. Miller, Federal Practice and Procedure § 2589 at 755 (1971). . "[A] finding is ‘clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson, — U.S. at -, 105 S.Ct. at 1511 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed.2d 746 (1948)). . The Court's reasoning in Anderson parallels that found in 9 C.A. Wright & A. Miller, Federal Practice and Procedure § 2587 at 747-749 (1971). . A debtor in possession enjoys the powers of a trustee under 11 U.S.C. § 1107, except those withheld by 11 U.S.C. § 1106. . The bank creditors contend that RTC, to which they have also lent money, is itself in default of its obligations to them and may file for bankruptcy in the future. If the bank creditors want court supervision of RTC’s activities, they can commence an involuntary bankruptcy case against RTC if the requirements of 11 U.S.C. § 303 are met. . 11 U.S.C. § 1104 permits the appointment of a trustee, of course, in the event of debtor misconduct. . Although the Curlew case suggests that a debtor-in-possession’s decisions should be subject to greater supervision by the bankruptcy court than a trustee’s, 14 Bankr. at 509-511, we see no reason to invoke in the ordinary case the greater supervision permitted by 11 U.S.C. § 1107. Our view is consonant with the House and Senate Reports on § 1107(a), which state that: This section places a debtor in possession in the shoes of a trustee in every way. The debtor is given the rights and powers of a chapter 11 trustee. He is required to perform the functions and duties of a chapter 11 trustee (except the investigative duties). He is also subject to any limitations on a chapter 11 trustee, and to such other limitations and conditions as the court prescribes. H.R.REP. No. 595, 95th Cong., 1st Sess. 404 (1977), reprinted in 1978 U.S.CODE CONG. & AD.NEWS 5787, 5963, 6360; S.REP. No. 989, 95th Cong., 2d Sess. 116 (1978), reprinted in 1978 U.S.CODE CONG. & AD.NEWS 5787, 5902 (citation omitted). 11 U.S.C. § 363(c) permits a trustee operating the debtor’s business to sell property of the estate in the ordinary course of business without notice or court approval. Even assuming that a lease agreement increasing the debtor’s inventory by less than ten percent represents a transaction not in the ordinary course of the debtor’s business, 11 U.S.C. § 363(b) authorizes the debtor to sell or exchange property of the estate (i.e., its right to receive rentals from subleases of the cars it holds under the original lease agreement) with court approval. Even for a sale of all the debtor’s assets, a considerably more radical action that the modification of a lease, those courts that have permitted such a sale under § 363(b) read the section as requiring only that the bankruptcy court consider whether there is an emergency, whether other buyers have been solicited, and whether the sale is in the best interests of the estate. In re Ancor Exploration Co., 30 B.R. 802, 808 (Bankr.N.D. Okia.1983). See also In re Charlesbank Laundry Co., 37 B.R. 20, 22 (Bankr.Mass.1983). The question whether a sale of all assets may be approved under § 363(b) of course remains open in this Circuit. See In re Braniff Airways, Inc., 700 F.2d 935, 939 (5th Cir.1983). . Matter of Southern Biotech, Inc., 37 B.R. 318 (Bankr.M.D.Fla.1983), adopts an "economic soundness" standard for the approval of a trustee’s proposal to purchase assets, other than in the ordinary course of business, in order to continue to operate the debtor’s business. That proposed transaction resembles the debtor’s offer here to lease assets in order to maintain its pre-bankruptcy level of inventory, although we are disinclined to hold, on the record before us, that the proposed lease is a transaction outside of the ordinary course of business. In announcing the "economic soundness” test, the Biotech court evidently meant to scrutinize the transaction more carefully than it would under the "business judgment” standard. Upon examination of the analysis that the court actually applied in that case, however, we are unable to detect any difference between the analysis undertaken under the “economic soundness" test and that which we would undertake in applying the business judgment test in the circumstances of the case. The court considered the risks of the proposed transaction, the available alternatives, and the danger of prejudice to the objecting parties, who, like the creditors here, had no protected interest in the cash to be expended to purchase the assets. See infra note 12. It concluded, as we would, that the purchase was a valid business decision. Because we cannot clearly demarcate the difference between an "economic soundness" and a “business judgment” analysis, we see no reason to muddy the waters by introducing another level of scrutiny into the approval process. . Nothing in the record suggests to us that the bank creditors here have an interest in rentals received from subleases of GECC cars or cash generated in the future by unencumbered cars that would make the transaction subject to the strictures on disposition of cash ■ collateral in § 363(c)(2). See In re George Ruggiere Chrysler-Plymouth, 727 F.2d 1017, 1019 (11th Cir.1984). . We believe that the bankruptcy court’s discretion under 11 U.S.C. § 503 is broad enough to reject administrative claims that result from inequitable conduct, including entering into agreements in bad faith, when the inequitable conduct prevents the estate’s receiving the benefit that the court envisioned when it approved an agreement. See generally In re Allied Artists Industries, Inc., 35 B.R. 737 (Bankr.S.D.N.Y.1983). The bankruptcy court’s order in this case astutely reserves the right to exercise this discretion when and if GECC presents an administrative claim. If, as the bank creditors fear, GECC engages in the sharp practice of urging one interpretation of the amended lease’s waiver of existing defaults before bankruptcy court approval and another thereafter, principles of estoppel should come into play. Moreover, we keep in mind that creditor misconduct has traditionally formed the basis for equitable subordination of a creditor’s priority status. See generally Allied Technology, Inc. v. R.B. Brunemann & Sons, 25 B.R. 484, 499 (Bankr.S.D.Ohio 1982); Matter of Multiponics, Inc., 622 F.2d 709 (5th Cir.1980). . The bankruptcy court's order requires GECC to notify all parties in interest and the court before it declares a default under the amended lease. The broad equitable powers granted the bankruptcy court under 11 U.S.C. § 105 permit any party in interest to apply to the court to rescind its order lifting the stay in the event rehabilitation of the debtor requires such action. 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_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. S. L. CROOK CORPORATION v. POTTER et al. No. 9764. Circuit Court of Appeals, Sixth Circuit. Nov. 6, 1944. S. D. Hodge, of Princeton, Ky., and Charles Ferguson, of Smithland, Ky., for appellant. C. A. Pepper, of Princeton, Ky., for appellees. Before SIMONS, ALLEN, and McALLISTER, Circuit Judges. PER CURIAM. The above cause coming on to be heard upon arguments, briefs of counsel, and transcript of the record, it appears that appellee Potter is the assignee of a judgment of foreclosure against property of appellant; that upon appellee’s motion for an order of sale in such foreclosure proceedings, appellant filed answer and counterclaim, setting forth that appellee had entered into a contract to extend the time for payment of the judgment, that such extended period had not yet expired, and that appellee owed appellant, by virtue of the terms of a lease of the property in question, more than enough to pay the judgment debt. It appears from the pleadings that appellee is not a resident of the State of Kentucky and owns no property located therein. Section 378 of the Civil Code of Practice of Kentucky permits a judgment debtor to enjoin the enforcement of a judg- • ment against him if he has an action pending in which the judgment could be used as a set-off against the judgment creditor, where it is necessary to do so in order to prevent loss by insolvency, non-residence, or otherwise; and Section 285 of the Civil Code of Practice of Kentucky requires that the action seeking such injunction be brought in the court in which the judgment was rendered. But it appears that appellant has made no application to enjoin the enforcement of the judgment. The trial court correctly held that appellant could not, in proceedings for sale under judgment of foreclosure, and without injunctive proceedings, stay such proceedings and litigate its claim against appellee by way of answer and counter-claim. Wherefore, the judgment of the district court 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_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. Phyllis K. SHEPHERD and Douglas T. Shepherd, Plaintiffs-Appellees, v. John P. PUZANKAS, Defendant-Appellant. No. 16336. United States Court of Appeals Sixth Circuit. Feb. 1, 1966. R. Hunter Cagle, Knoxville, Tenn. (Arthur D. Byrne, Thearon Chandler, Knoxville, Tenn., on the brief; Poore, Cox, Baker & MeAuley, Knoxville, Tenn., of counsel), for appellant. Creed A. Daniel, Rutledge, Tenn. (W. I. Daniel, Rutledge, Tenn., on the brief; Daniel & Daniel, Rutledge, Tenn., of counsel), for appellees. Before EDWARDS, Circuit Judge, CECIL, Senior Circuit Judge, and KENT, District Judge. CECIL, Senior Circuit Judge. This appeal arises out of an automobile accident which occurred on U. S. Highway 11W, in the state of Tennessee, on April 28, 1963. The plaintiff-appellee, Phyllis K. Shepherd, was driving her automobile west on the highway at the time and place of the accident. John P. Puzankas, defendant-appellant, traveling east on the highway, lost control of his automobile and collided with the Shepherd automobile in its lane of traffic. Phyllis Shepherd and her husband, Douglas T. Shepherd, were residents of Texas. John P. Puzankas, hereinafter called the defendant, was a resident of New York. The Shepherds brought an action against the defendant in the United States District Court for the Eastern District of Tennessee, Northern Division. Jurisdiction was based on diversity of citizenship. (Section 1332(a), Title 28, U.S.C.) The case was tried to a jury and resulted in a verdict of $25,-000 for Phyllis Shepherd, and a verdict of $2000 for her husband. The defendant appealed. It is alleged in the complaint that “The defendant operated his aforesaid described motor vehicle at a high, reckless, dangerous and negligent rate of speed and without the exercise of due care or caution or to circumspection and without keeping a proper lookout ahead, without having said motor vehicle under proper or adequate control, and said defendant did in the reckless, negligent and wanton manner aforede-scribed, operate said motor vehicle in such manner as to lose control of same after passing another vehicle proceeding in the same direction, cross the center line of said highway and to strike the automobile operated by the plaintiff, Phyllis K. Shepherd, headon in her right and proper lane of travel, striking the same with great force and violence.” It is further alleged that the defendant operated his motor vehicle “in open, willful and flagrant violation of certain statutes of the State of Tennessee.” There was evidence in the record that the highway was wet and slick and that the defendant was traveling at a high rate of speed, that he passed three ears and that he cut back in his lane of traffic just ahead of a car immediately ahead of the Shepherd automobile. It was at this point that he lost control of his car and crossed into the lane of the oncoming Shepherd vehicle. The trial judge instructed the jury, “(I)f you find that this defendant was guilty of willful, wanton, gross negligence you have the right to assess what is known in the law as punitive damages.” He then correctly explained gross negligence and punitive damages. Objection is made on behalf of the defendant that the court erred in instructing the jury that it had the right to assess punitive damages. In support of this objection, it is claimed that the proof did not sustain such a charge and that the plaintiffs did not contend in their complaint, the pretrial order or upon the trial that the defendant was guilty of gross negligence or that they were entitled to punitive damages. The language of the complaint is broad enough to cover a charge of gross negligence and there is ample evidence in the record to support such a charge. There is nothing in the pretrial order which would prohibit an instruction on gross negligence and punitive damages. Under the law of Tennessee where gross negligence is pleaded and there is evidence to support it, the question of punitive damages is properly submitted to the jury. In American Lead Pencil Co. v. Davis, 108 Tenn. 251, 254, at page 255, 66 S.W. 1129, at page 1130, the court said: “Gross negligence, then, is undoubtedly one ground for the allowance of punitive or exemplary damages ; * * * ” See also Memphis Street Railway v. Shaw, 110 Tenn. 467, 478, 75 S.W. 713; Choctaw, Oklahoma and Gulf Railroad Co. v. Hill, 110 Tenn. 396, 406, 75 S.W. 963; Lazenby v. Universal Underwriters Ins. Co., 214 Tenn. 639, 646, 383 S.W.2d 1; Caccamisi v. Thurmond, 39 Tenn.App. 245, 270, 282 S.W.2d 633. In Caccamisi v. Thurmond, heretofore cited, at p. 272, 282 S.W.2d at p. 646, the court quoted from Baker v. Bates, 4 Tenn.Civ.App. 175, as follows: “It is not necessary that these damages (punitive damages) be claimed eo nomine. It is sufficient, if the facts alleged justify their recovery.” Assuming that the trial judge was in error in instructing the jury on punitive damages, it was a harmless error and did not affect the substantial rights of the defendant. Rule 61 Federal Rules of Civil Procedure. American Lead Pencil Co. v. Davis, supra, 108 Tenn. at 257, 66 S.W. 1129; Butler v. Barrett & Jordan, C.C., 130 F. 944, 949; Philadelphia & W. C. Traction Co. v. Kordiyak, 171 F. 315, 318, C.A. 3; Sucher Packing Co. v. Manufacturers Casualty Ins. Co., 245 F.2d 513, 522, C.A. 6, cert. den. 355 U.S. 956, 78 S.Ct. 541, 2 L.Ed.2d 531; Gillis v. Keystone Mut. Casualty Co., 172 F.2d 826, 830, 11 A.L. R.2d 455, C.A. 6, cert. den. 338 U.S. 822, 70 S.Ct. 67, 94 L.Ed. 499; E. I. Dupont De Nemours & Co. v. Wright, 146 F.2d 765, 768, C.A. 6, cert. den. 324 U.S. 873, 65 S.Ct. 1017, 89 L.Ed. 1426; DeAddio v. Darling & Co., D.C., 112 F.Supp. 166, 167, affirmed 204 F.2d 272, C.A. 6. In returning the verdict, the foreman of the jury specifically stated that the jury did not allow anything by way of punitive damages. We agree with the trial judge that since the jury disallowed punitive damages the issue has become moot. Another assignment of error is that the amount of damages awarded to Phyllis Shepherd by the jury is excessive and that the trial judge abused his discretion in not granting a new trial. The trial judge heard the evidence and he had an opportunity to observe the plaintiff Phyllis Shepherd on the witness stand. In denying the motion for new trial he enumerated her injuries which were supported by the record and were such as to justify the verdict of the jury. In Montgomery Ward & Co. v. Morris, 273 F.2d 452, 453, C.A. 6, we said: “The power of this Court to review and set aside an order of the District Court overruling a motion for a new trial based on alleged excessive damages, is very limited. (Citations omitted) It is not sufficient that the verdict is considerably larger than we think it should have been. In the absence of a showing of passion and prejudice on the part of the jury, the trial court’s action in overruling a motion for a new trial where a factual question is involved, will not be reviewed by this Court unless it involves an abuse of discretion.” See also Morton Butler Timber Co. v. United States, 91 F.2d 884, 891, C.A. 6; Spero-Nelson v. Brown, 175 F.2d 86, 89, C.A. 6; Werthan Bag Corp. v. Agnew, 202 F.2d 119, 122-123, C.A. 6; Cross v. Thompson, 298 F.2d 186, 187, C.A. 6; Fairmount Glass Works v. Fork Coal Co., 287 U.S. 474, 481-483, 53 S.Ct. 252, 77 L.Ed. 439; United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 247, 60 S.Ct. 811, 84 L.Ed. 1129; Tennant v. Peoria & Pekin Union Railway Co., 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520. We find no abuse of discretion here on the part of the trial judge, in denying the motion for a new trial on the ground of excessive damages. The judgment of the District Court is affirmed., . Section 59-816, Tenn.Code Ann., Passing vehicles proceeding in opposite directions. Section 59-823, Tenn.Code Ann., Driving on roadways laned for traffic. Section 59-858, Tenn.Code Ann., (a) Any person who drives any vehicle in. willful or wanton disregard for the safety of persons or property is guilty of reckless driving. (b) Penalty provisions. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_numappel	3	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. 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. PENNSYLVANIA LUMBERMENS MUTUAL FIRE INS. CO. OF PHILADELPHIA, PA., et al. v. BARFIELD. No. 10741. Circuit Court of Appeals, Fifth Circuit. Oct. 20, 1943. Rehearing Denied Dec. 3, 1943. C. Baxter Jones, of Macon, Ga., for appellants. Harry S. Strozier and J. Douglas Car-lisle, both of Macon, Ga., for appellee. Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges. SIBLEY, Circuit Judge. H. Lee Barfield had three policies of fire insurance upon an apartment house in Macon, Ga., which was partially destroyed by fire. The policies had similar provisions, including one for the appointment of appraisers and an umpire to ascertain the amount of the loss in case of disagreement. There was a disagreement extending to the proper basis for estimating the sound value and loss, and the insurers wrote the insured nominating an appraiser and requesting him to nominate one and submit the amount of the loss to appraisement “as the conditions of the policy provide”. The insured nominated his appraiser on a usual form of agreement for submission to appraisers, but added a long provision which stated what the appraisers and umpire should do, and defined in great detail all the elements they should consider in arriving at a “market price”. On account of this added matter the insurers rejected the-tendered agreement as not being according to the terms of the policy,'and tendered a form which provided only that the appraisers should proceed in the manner provided in the policies. The insured rejected this'on the ground that there was a difference of opinión as to, how far replacement cost less depreciation ought to govern, which difference ought, first to be settled. The insurers replied that they had' urged the insured to accept replacement' cost less depreciation as a fair and proper basis, ;but had never suggested or required that the appraisers be bound to the insurers’ estimates, or to any particular factor to be considered by them in making their award, except as they and the parties are bound by the policy terms; and they assumed the demand for an appraisal under the terms of the policy had been refused,'but'they renewed the demand and- insisted on it.. Thereupon the insured sought in. the district court a declaratory judgment whether the submission agreement he had proposed was legally valid, and whether the refusal of the insurers to accept it was a waiver of their right to insist on an appraisal; and whether the insured was bound to accept the insurers’ demand for an appraisal, and whether if he declines, it will be a breach of the appraisal provisions of- the policies. The answer admitted the facts as above stated, denied that a case for declaratory judgment was presented, unless on the question whether the insurers had made a valid demand for appraisál, and they asked, an affirmative reply to that question. The court decreed that the insured was not bound to' accept the insurers’ agreement for submission; that the insured’s agreement was in accord with the policies and the law; that by rejecting the latter the insurers had waived their right to an appraisal, but that they might, because of misunderstanding, have fifteen days to accept the insured’s proposed agreement. The insurers appeal. The controlling policy provisions are these: “This Company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash-value, with proper deduction for depreciation however caused, and shall in no event exceed what it would then cost the insured to replace the same with material of like kind and quality; such ascertainment or estimate shall be made by the insured and this Company, or if they differ then by appraisers as hereinafter provided. * * * In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this Company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and. damage, and failing to agree shall submit their differences to the umpire ; and the award of any. two shall determine the amount of such loss. * * * No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance with all the foregoing requirements nor unless commenced within twelve months next after the fire.” The agreement for an appraisal is found in the policy itself. No other agreement was necessary or permissible unless consented to by both parties. A disagreement as to the amount of the loss having arisen, nothing needed to be done except for each to select an appraiser and to hand them the policy with the evidence of their selection. No written submission was needed. United States F. & G. Co. v. Corbett, 35 Ga.App-. 606, 134 S.E. 336. What the appraisers are to do is simply and clearly stated in the policy. The appraisers may hear the contentions of the parties, and such evidence as they may present. They usually inspect what is left of the insured property. They are then to exercise their judgment as to what “the actual cash value” of the property was before the fire, with proper deduction for depreciation, and find the sound value and the loss, not exceeding the cost of replacement. No formal trial is contemplated. It is not a common law arbitration. Universal Laundry & Cleaners, Inc. v. General Ins. Co., 64 Ga.App. 68, 12 S.E.2d 181; Eberhardt v. Fed. Ins. Co, 14 Ga.App. 340, 80 S.E. 856; Bankers Mtg. B. & L. Ass’n v. Simpson, 5 Cir, 93 F.2d 196, 114 A.L.R. 1368. No judge is to instruct them. The whole purpose of the appraisal is to escape the delay and cost and technicality of court procedure. The decree which has here been rendered would not bind the appraisers who are not parties to it, nor, like jurors, under the guidance of the judge. To force the parties to make an agreement, beyond that already made in the policy, is not the function of a court. We doubt if there exists any actual controversy between these parties within the meaning of the declaratory judgments Act. 28 U.S.C.A. § 400. Neither had claimed that the other had finally forfeited the right to an appraisal, but each was still desiring it on his terms. They had never reached any disagreement with the appraisers as to the basis of ap-praisement. The purpose and effect of the proceeding for declaratory decree was to get an instruction from the judge as to what the appraisers should consider, which to some extent would substitute a judicial proceeding for the simple appraisal agreed on. If this remedy be available, we think the court should have ruled that neither side was under obligation to sign any further agreement, but only to appoint their appraisers, to notify them, and hand them the policy. See Hamilton v. Liverpool, London & Globe Ins. Co., 136 U.S. 242, 10 S.Ct. 945, 34 L.Ed. 419. We reverse the judgment and direct the dismissal of the petition. Reversed. Question: What is the total number of appellants in the case? Answer with a number. Answer:
songer_genapel1	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. Joseph Donald THORNBLAD, Appellant, v. Larry OLSON, M.D., Medical Director of Willmar Regional Treatment Center, Appellee. No. 91-1577. United States Court of Appeals, Eighth Circuit. Submitted Nov. 12, 1991. Decided Jan. 2, 1992. Heide H. Crissey, Stillwater, Minn., argued, for appellant. Kathy Meade Hebert, St. Paul, Minn., argued (Hubert H. Humphrey, III and Kathy Meade Hebert, St. Paul, Minn., on the brief), for appellee. Before LAY, Chief Judge, ARNOLD, Circuit Judge, and STUART, Senior District Judge. The Hon. William C. Stuart, Senior United States District Judge for the Southern District of Iowa, sitting by designation. ARNOLD, Circuit Judge. This is a petition for habeas corpus brought by Joseph D. Thornblad, who has been held by the State of Minnesota since November 21, 1989, under a series of involuntary commitment orders. Thornblad argues that he is being deprived of his liberty without due process in violation of the Fourteenth Amendment to the United States Constitution because the evidence of mental illness presented at the commitment hearings was not clear and convincing, as required by Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). We disagree, and affirm the District Court’s judgment of dismissal. On August 26, 1988, Thornblad assaulted two Hennepin County District Court Judges. He pleaded guilty to third-degree assault and was sentenced to fifteen months’ imprisonment with an anticipated release date of November 25, 1989. While in prison, Thornblad began to show signs of mental illness, which centered around his delusions of power and control over both the legal system and state government. Because of these delusions, the State filed a petition for involuntary commitment. An evidentiary hearing was held, and the Washington County District Court concluded that the evidence was clear and convincing that Thornblad was mentally ill, and that no viable less restrictive alternatives to civil commitment existed. On November 21, 1989, the petitioner was transferred from prison to the Minnesota Security Hospital. Since that time, he has remained civilly committed by virtue of re-commitment orders entered for successive six-month periods. There is some doubt as to whether either the initial commitment or the first recom-mitment is properly before us. The District Court dismissed petitioner’s case for failure to present any constitutional claim to the state courts, failure to exhaust available state remedies, and because the case was moot. We decline to address those procedural issues, assume for purposes of this opinion that the petitioner is entitled to a review of his claims, and reject those claims on the merits. We take this course because the issues of procedural bar, exhaustion, and mootness are complicated and doubtful. The merits, on the other hand, are simple and plain. See Long v. Iowa, 920 F.2d 4, 6 n. 2 (8th Cir.1990). Our choosing to decide the merits makes our own work easier. By doing so, we intend no disrespect for the state courts as interpreters of federal law. The procedures and requirements to commit a person initially and to continue that commitment are almost identical. Both procedures require the committing court to find by clear and convincing evidence that the patient is “mentally ill.” Minnesota defines a “mentally ill person” as follows: Subd. 13. Mentally ill person. “Mentally ill person” means any person who has an organic disorder of the brain or a substantial psychiatric disorder of thought, mood, perception, orientation, or memory which grossly impairs judgment, behavior, capacity to recognize reality, or to reason or understand, which (a) is manifested by instances of grossly disturbed behavior or faulty perceptions; and (b) poses a substantial likelihood of physical harm to self or others as demonstrated by: (i) a failure to obtain necessary food, clothing, shelter, or medical care as a result of the impairment, or (ii) a recent attempt or threat to physically harm self or others. This impairment excludes (a) epilepsy, (b) mental retardation, (c) brief periods of intoxication caused by alcohol or drugs, or (d) dependence upon or addiction to any alcohol or drugs. Minn.Stat. § 253B.02. If the State seeks to continue the involuntary commitment at the end of the initial commitment period, in addition to showing that the patient continues to be mentally ill, the State must show by clear and convincing evidence that “involuntary commitment is necessary for the protection of the patient or others ... and ... there is no alternative to involuntary commitment.” Minn.Stat. § 253B.12, Subd. 4. In Jackson v. Virginia, 443 U.S. 307, 99 5.Ct. 2781, 61 L.Ed.2d 560 (1979), the Supreme Court held that a federal constitutional claim is stated if a criminal defendant alleges that no rational jury could have found him guilty beyond a reasonable doubt. Thornblad’s theory in the present case is analogous: the federal Constitution, see Addington v. Texas, supra, requires that the facts justifying a civil commitment be proved by clear and convincing evidence. It follows, he argues, that he is entitled to relief in federal habeas if he can show that no rational finder of fact could have found those facts by clear and convincing evidence. We assume without deciding that this theory is legally viable. The question that we must answer then is whether a rational person could have found by clear and convincing evidence that Thornblad was mentally ill and continued to be so, that his “commitment [was] necessary for the protection of [himself] or others,” Minn.Stat. § 253B.12, Subd. 4, and that “there [was] no alternative to involuntary commitment.” Id. Several psychiatrists and psychologists testified at each commitment hearing that Thornblad suffered from a delusional disorder, grandiose type, which substantially affected his thought, mood, perception, and orientation and grossly impaired his judgment, behavior, capacity to recognize reality, and ability to reason or understand. He also has an anti-social personality disorder. The basis for their opinions was the history of Thornblad’s behavior. For example, he asserted that he was in charge of the prison, that he either was or had the power of a judge, that he had the authority to remove the Governor and become Governor himself, and that he could change the law at will and might choose to abolish murder as a crime. He also threatened to kill the warden, various police officers, and an unidentified woman. He has since threatened the Governor as well as several judges with remarks like, “I’ll teach these dum [sic] Judge’s [sic] something they are not going to like and I dont [sic] care and dont [sic] mess with me or anyone ever again.” Washington County District Court Order for Recommitment, No. P2-89-3912, at 3 (June 15, 1990). He also explained to several judges who received letters from him that he is the “boss of the laws” and has authority to control the court system. Id. Certainly a rational person could find that the threatening letters to judges, the threats to the Governor and others, and the petitioner’s belief that he was either above the law or the “boss of the law” amounted to “grossly disturbed behavior or faulty perceptions” as required by Minnesota Statute § 253B.02, Subd. 13(a). Additionally, the petitioner has no understanding of his mental illness and has admitted that he would not obtain the medical care necessary to control his mental illness if released from the State’s custody. He feels that he has no mental illness to control. In the Matter of: Joseph Donald Thornblad, No. MI-04222, Transcript of Proceedings, at 52 (June 3, 1991). He has also recently assaulted a judge. Either of these facts is a sufficient basis for a rational person to conclude that Minnesota Statute § 253B.02, Subd. 13(b) (likelihood of harm to self or others) has been met. Having determined that it was reasonable for the initial committing court to find there was clear and convincing evidence that Thornblad was a “mentally ill person,” we next consider the requirements for his continued commitment. It was not unreasonable to conclude that Thornblad, if released, might injure one of the persons he has threatened. Nor was it unreasonable for the state district court judges to believe that the result of Thornblad’s refusal to take his medication if released might be harmful to him. Therefore, the State proved that “involuntary commitment [was] necessary for the protection of the patient or others” as required by Minnesota Statute § 253B.12, Subd. 4(2). Finally, we will not disturb the state district courts’ findings that there was no immediate alternative to involuntary commitment. They weighed the alternatives to involuntary commitment as well as the varying types of commitment. Several doctors who testified indicated that it would probably be possible at some point in the near future to move petitioner to a less restrictive, less structured environment. In fact, he was moved to Willmar Regional Treatment Center on August 1, 1991. Appellant’s Brief to the Minnesota Court of Appeals, In the Matter of: Joseph Donald Thornblad, No. C9-91-1501, at 4 (Sept. 14, 1991). At oral argument the State indicated that he might soon be released. But at the time of commitment and recommitment, there was sufficient evidence from which the judges could have concluded, as they did, that there was no immediate alternative to commitment. In sum, we hold that a rational person could have found by clear and convincing evidence that Thornblad was a “mentally ill person” when initially committed, and that he continued to suffer from a mental illness, as required by state law in order to commit or recommit a person involuntarily in Minnesota. Therefore, the judgment of the District Court dismissing the petition for habeas corpus is affirmed. . The Hon. David S. Doty, United States District Judge for the District of Minnesota. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_applfrom	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). FLEMING v. MYERS. No. 11405. Circuit Court of Appeals, Ninth Circuit. Feb. 4, 1947. George Moncharsh, Deputy Adm. of Enforcement, David London, Director, Litigation Division, Albert M. Dreyer, Chief, Appellate Branch, Nathan Siegel, Sp. Appellate Attorney, and Abraham H. Mailer. Special Appellate Attorney, OPA, Office of Temporary Controls, all of Washington, D. C., William B. Wetherall, Regional Litigation Attorney, OPA, Office of Temporary Controls, of San Francisco, Cal., for appellant. Knapp, Boyle, Bilby & Thompson, B. G. Thompson and Arthur Henderson, all of Tucson, Ariz., for appellee. Before GARRECHT, DENMAN, and ORR, Circuit Judges. ORR, Circuit Judge. Appellant, the Administrator, in a complaint for treble damages, charged appellee, a wholesaler of malt beverages, with violations of Maximum Price Regulation No. 259 by reason o-f sales, during the period December 1, 1943 to August 26, 1944, at prices in excess of those permitted by said Regulation. The parties, by a “Stipulation for Judgment”, submitted the case to the trial court without further evidence. By the stipulation the parties agreed that March 1942 should be considered the “base period” and that during March 1942 appel-lee did not pay the cost of return freight on empty beer bottles and cases to his supplier and, further, that during that month appellee did not pay any brokerage commissions in connection with the purchase of any malt beverage handled by him during that month. It was also provided in paragraph 6 of the stipulation that the proper method of computing maximum prices on brands of beer sold by appellee later than, but not during, March 1942 “shall be as provided by Section 3(a) (§ 1499.3(a)) of the General Maximum Price Regulation.” The Administrator in his brief concedes that appellee’s “sales without dispute fall within” this section, that is, that the sales involved here were of commodities sold by appellee for the first time subsequent to the base period. Section 1499.3 so stipulated to be controlling, reads, in part, as follows: “(a) Sales at wholesale or retail. In the case of a sale at wholesale or retail, the seller (1) shall select * * * the comparable commodity * * ; (2) shall divide his maximum price for that commodity by his replacement cost of that commodity; and (3) shall multiply the percentage so obtained by the cost to him of the commodity being priced under this paragraph. * * “(n) ‘Replacement cost’ shall be the net price paid by the seller after May 18, 1942, or the net price which the seller would have to pay to replace such commodity after such date”. (Emphasis supplied.) The determination of the question of whether, under that regulation, appellee was entitled to include return freight and brokerage fees actually paid by him as part of his costs where it was not disputed that appellee had not paid such charges during the base period on his “comparable commodity”, was the legal question submitted to the trial court. Apart from those two controverted charges some overcharges were admitted by appellee and it was stipulated that if the trial court construed the controlling regulation so as to permit appellee to include the disputed charg.e of return freight judgment should be reduced in the sum of $4,223.30, and “that in the event the trial court should find both return freight and commissions, brokerage charges, and finder’s fees paid by said defendant in connection with the purchase of the * * * commodities constitute proper elements of net unit cost,” judgment should be entered for the Administrator in the sum of $18,-329.20. In the event the trial court sustained the Administrator’s interpretation, judgment should be entered for him in the sum of $27,426.14. The trial court entered judgment for the Administrator in the sum of $18,329.20, which compels the conclusion that said court construed the regulation as permitting appellee to include as an item of his costs all disputed items. The Administrator contends, despite the plain definition of “replacement cost” in § 1499.3 as the “net price paid by the seller after May 18, 1942, or the net price which the seller would have to pay to replace such commodity after such date”, that Maximum Price Regulation No. 259 permits a seller to pay his supplier only the charges imposed by the supplier during the base period (March 1942). His argument is that the term “net price” in the definition of “replacement cost” in § 1499.3 means “legal net price”; that is, that although said regulation provides that “the net price which the seller would have to pay to replace such commodity after such date [i.e. May 18, 1942]” it should be construed to mean that the seller could pay such charges only as were lawfully imposed on him, under Maximum Price Regulation No. 259, by his supplier. Under the stipulation § 1499.3 is the controlling regulation. That section uses the words “cost to him [seller]” without qualification, and defines “replacement cost” as including net cost after May 18, 1942. The interpretation placed upon the section by appellee, namely, that he was permitted to include the two disputed charges since they were part of the cost of the beer to him, and part of the net price paid by him after May 18, 1942, is reasonable. It seems the normal interpretation to be placed on such language; in fact it is the interpretation which the Administrator’s Regional Office adopted and so notified appellee. Later, a contrary ruling was received from Washington. If there is ambiguity or conflict between the stipulated regulation § 1499.3, and other regulations, § 1499.3 must control under the stipulation submitted to the trial court. Said regulation permits appellee to include return freight charges which he paid his supplier, and other elements of the net price which he would have to pay after May 18, 1942 “to replace such commodity”. There is nothing in said section which forbids the payment of brokerage fees, if those are part of the net cost of the beer to appellee. It was not until December 18, 1944, long after the last sale involved here, that the addition of § 5.3 to Regulation 259 specifically forbade the addition of brokerage fees to the seller’s maximum price. We are unable to agree with the argument that the practice of paying such fees to secure beer was forbidden by implication prior to the adoption of the specific regulation on the subject. It was contended by the Administrator, at the oral argument, that by the stipulation appellee has accepted the burden of proving that he did not violate the regulations and that because, as it is said, there is no evidence “in the record showing that appellee actually paid the two disputed charges, or that his supplier lawfully imposed such charges, judgment must be entered for the Administrator in the larger sum. The stipulation clearly, provides in paragraph 11 that: “In the event the court should find that return freight is a proper and legitimate element of net unit cost for the purpose of computing maximum prices of the commodities * * * the actual amount of the overcharges are to be reduced by the sum of $4,223.30; that in the event the court should find that both return freight and commissions, brokerage charges, and finder’s fees paid by said defendant [appellee] in connection with the purchase of the aforesaid commodities constitute proper elements of net unit cost, the said actual overcharges on accom%t thereof shall be reduced by the total sum of $9,086.14 * * Under the stipulation the facts are agreed upon and no further proof is necessary. The reasonable interpretation to be placed upon the provision of the stipulation that, in the event the court found the return freight charge to be legal that the judgment be reduced $4,223.30, is that the amount of such freight charges was $4,-223.30. It is not reasonable to assume that the Administrator would agree to the reduction of his judgment in said amount, in any event, unless he conceded the amount to have been paid. The same may be said relative to the agreed reduction of $9,086.-14 in the event of a ruling adverse to the Administrator on other legal questions. The facts have been agreed upon. The burden of proof has not been shifted but 'has been lifted. Perhaps we can make our meaning more clear by the statement that had proof been adduced, independent of the stipulation, that not one of the charges had been paid, the Administrator, having had the legal questions decided adversely to his contentions, would be compelled to accept the stipulated reductions in the judgment. Judgment affirmed. 7 F.R. 8950. 7 F.R. 3153-4, 3156. 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. Robert H. BURNHAM, Defendant, Appellant, v. UNITED STATES of America, Appellee. No. 5873. United States Court of Appeals First Circuit. Heard Dec. 5, 1961. Decided Dec. 29, 1961. Melvin Norris and Raymond E. Bernard, with whom Freeman & Norris was on brief, for appellant. James W. Noonan, Asst. U. S. Atty., Boston, Mass., with whom W. Arthur Garrity, Jr., U. S. Atty., Boston, Mass., and John F. Curley and Bernard A. Gould, Attys., I. C. C., Washington, D. C., were on brief, for appellee. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. ALDRICH, Circuit Judge. This is an appeal by a defendant convicted on a fifteen-count information under 49 U.S.C.A. § 322(a) for aiding and abetting a partnership of whiph he was the managing member in operating as a contract carrier by motor vehicle in interstate commerce without a permit in violation of Title 49, § 309(a). The defendant has a permit for moving goods in interstate commerce, but only within Massachusetts. The basic facts concerning out-of-state operation, and the lack of a further permit, were admitted. The defense was that the operation in question was pursuant to a valid lease of the equipment which caused the shipper to become a private carrier under the Act. The defense centers, however, around two preliminary matters. One is that the ICC representative obtained the documents upon which the claim of violation is based by unlawful search and seizure. The other is a claim, in various forms, that “primary jurisdiction” is. in the ICC. There is nothing in either point. On February 5, 1960, one Martin, a district supervisor for the ICC, Bureau of Motor Carriers, came to the combined place of business and home of the defendant and requested admission. I-Ié introduced himself, showing his credentials, and stated that the purpose of his visit was to make a routine compliance survey and a safety survey. He was invited in and offered full access to - the defendant’s records. According to the defendant’s own testimony, when Martin discovered' the so-called leases and learned that defendant was operating thereunder outside the state he abandoned all other inquiries and concentrated on that subject, telling defendant that in his opinion the lease operation was “illegal.” On two subsequent days that month Martin returned. Defendant made no objection and allowed him to take the pertinent documents for copying. The basis of defendant’s constitutional complaint is not clear. He testified that an attorney for the shipper had informed him that the leases were “all right,” and consequently he did not realize that his cooperation with Martin might lead to his present difficulties. Seemingly, he thinks Martin should have disabused him more fully. There was no such duty, at least where there was no misleading by the agent. United States v. Sclafani, 2 Cir., 1959, 265 F.2d 408, 414-415, cert. den. 360 U.S. 918, 79 S.Ct. 1436, 3 L.Ed.2d 1534; cf. Chieftain Pontiac Corp. v. Julian, 1 Cir., 1954, 209 F.2d 657. He also testified that it was his belief that Martin was entitled to the information furnished. This belief was, of course entirely correct. 49 U.S.C.A. § 320(d); United States v. Alabama Highway Express, D.C.N.D.Ala.1942, 46 F.Supp. 450. There was no violation of defendant’s constitutional rights. It is true that under a doctrine sometimes miscalled “primary jurisdiction” it is occasionally appropriate for the court to call first upon the expertise of the administrative agency rather than resolve some specialized question itself. See Far East Conference v. United States, 1952, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576; 3 Davis, Administrative Law §§ 1901, 1902 (1958). Whatever may be the force of this principle, particularly in criminal cases, cf. United States v. Pacific & Arctic Ry. & Nav. Co., 1913, 228 U.S. 87, 107, 33 S.Ct. 443, 57 L.Ed. 742, it cannot go beyond its stated purpose. In the case at bar the court needed no instructions from the ICC to conclude that the document under which the partnership was operating was not a lease. The lease, although described as for the term of one year, was per job only, the lessor operating on its own account except when a particular shipment was tendered. The lessor paid all operating expenses, including registration, taxes and insurance (which was in its name alone) and attended to the loading, unloading, driving, departure time and route. The shipper as “lessee,” had no possession of the vehicle. All it did was to furnish the goods, state the destination, and pay a fixed charge per freight mile. The court required no advice from the administrative agency to conclude that the defendant was a contract carrier within the plain statutory definition. 49 U.S. C.A. § 303(a) (15). Affirmed. . If a distinction is to be drawn between inspecting and borrowing to copy, the short answer is that the defendant voluntarily permitted the latter. Centracchio v. Garrity, 1 Cir., 1952, 198 F.2d 382, cert. den. 344 U.S. 866, 73 S.Ct. 108, 97 L.Ed. 672. 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	L	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. NATIONAL ASSOCIATION OF RECYCLING INDUSTRIES, INC., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Association of American Railroads, et al., Aluminum Association, Inc., Intervenors. NATIONAL ASSOCIATION OF RECYCLING INDUSTRIES, INC., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Atchison, Topeka and Santa Fe Railway Co., et al., Institute of Scrap Iron and Steel, Inc., National Steel Corporation (79-1582) American Paper Institute, Inc. (79-1590), Intervenors. Nos. 81-1051, 79-1393, 79-1395, 79-1582, 79-1583, 79-1590, 79-1611, 79-1620, 79-1838, 79-1839, 79-1860, 79-1970 and 79-1984. United States Court of Appeals, District of Columbia Circuit. Argued April 27, 1981. Decided July 15, 1981. Edward L. Merrigan, Washington, D. C., for petitioner. Ellen K. Schall, Deputy Associate Gen. Counsel, I. C. C., Washington, D. C., with whom Richard A. Allen, Gen. Counsel and Robert S. Burk, Deputy Gen. Counsel, I. C. C., Washington, D. C., were on the brief, for respondent, Interstate Commerce Commission. John J. Powers, III and Kenneth P. Kolson, Attys., Dept. of Justice, Washington, D. C., entered appearances for respondent, United States of America. Michael Boudin, Washington, D. C., with whom Timothy A. Harr, James L. Tapley, Washington, D. C., James L. Howe, III, Richmond, Va., Harry N. Babcock, Cleveland, Ohio, Richard W. Kienle, Roanoke, Va., William C. Leiper and John A. Dailey, Philadelphia, Pa., were on the brief for intervenors, Association of American Railroads, et al. Dickson R. Loos, Washington, D. C., was on the Statement in lieu of brief, for intervenor, Aluminum Association. Edward L. Merrigan, Washington, D. C., was on the brief for petitioner National Association of Recycling Industries, in case No. 79-1393. David Reichert, Howard Gould and Stephen D. Strauss, Cincinnati, Ohio, were on the brief, for the petitioner Institute of Scrap Iron and Steel, Inc. in case No. 79-1395. John F. Donelan, and John K. Maser, III, Washington, D. C., for Armco, Inc., Inland Steel Co., Republic Steel Corp. and Youngstown Sheet and Tube Co., and Engene T. Liipfert, Fritz R. Kahn and L. John Osborn, Washington, D. C., for National Steel Corp. and Paul V. Miller, Bethlehem, Pa., for Bethlehem Steel Corp., were on the joint opening brief, for Armco, Inc., Inland Steel Co., Republic Steel Corp., and Youngstown Sheet and Tube Co. (petitioners in No. 79-1582), and Bethlehem Steel Corp. and National Steel Corp. (intervenors in No. 79-1582). John F. Donelan, John K. Maser, III, and Renee D. Rysdahl, Washington, D. C., were on the brief, for petitioner American Paper Institute, Inc., in case No. 79-1583. Michael Boudin, Timothy A. Harr, Washington, D. C., Richard W. Kienle, Roanoke, Va., and John A. Dailey, Philadelphia, Pa., were on the brief, for petitioner Railroads in case No. 79-1590. Dickson R. Loos, Washington, D. C., were on the brief for petitioner Aluminum Association, Inc., in case No. 79-1611. C. Michael Loftus, William L. Slover and Donald G. Avrey, Washington, D. C., were on the brief, for petitioner Fort Howard Paper Co., in case No. 79-1620. Robert N. Kharasch, Edward D. Green-berg, Washington, D. C., was on the brief, for petitioner Southern Paper Traffic Conference in case No. 79-1838, petitioner Southwestern Paper Traffic Conference in case No. 79-1839, petitioner Wisconsin Paper and Pulp Manufacturers Traffic Association in case No. 79-1860, and petitioner Western Paper Traffic Conference in case No. 79-1970. Michael M. Briley, Louis E. Tosi and Stephen B. Mosier, Toledo, Ohio, were on the brief, for petitioner Glass Packing Institute in case No. 79-1984. Robert S. Burk, Deputy Gen. Counsel and David Popowski, Atty., I. C. C., Washington, D. C., were on the brief for respondent, ICC. Kenneth G. Caplan and Frederick W. Read, III, Attys., I. C. C., Washington, D. C., also entered appearance for respondent, ICC. Barry Grossman, John J. Powers, III and Robert Lewis Thompson, Attys., Dept. of Justice, Washington, D. C., were on the brief, for respondent Department of Justice. Before MacKINNON and WALD, Circuit Judges, and RONALD N. DAVIES , United States Senior District Judge for the District of North Dakota. Sitting by designation pursuant to 28 U.S.C. § 294(d). Opinion for the Court filed by Senior District Judge RONALD N. DAVIES. RONALD N. DAVIES, Senior District Judge: Presenting a matter of statutory construction, the National Association of Recycling Industries, Inc. (NARI), in its petition for review of a final report and order of the Interstate Commerce Commission (Commission) issued December 30, 1980, Ex Parte 394, challenges the Commission finding that Section 204 of the Staggers Rail Act of 1980 is ambiguous. The Act, signed into law by the President October 14, 1980, was passed by Congress to provide guidelines under which the Commission would develop a new revenue-to-variable cost standard for certain recyclables: TRANSPORTATION OF RECYCLABLE MATERIALS SEC. 204. Section 10731 of title 49, United States Code, is amended by adding at the end thereof the following new subsection: (e) Notwithstanding any other provision of this title or any other law, within 90 days after the effective date of the Staggers Rail Act of 1980, all rail carriers providing transportation subject to the jurisdiction of the Commission under sub-chapter I of chapter 105 of this title shall take all actions necessary to reduce and thereafter maintain rates for the transportation of recyclable or recycled materials, other than recyclable or recycled Iron or steel, at revenue-to-variable cost ratio levels that are equal to or less than the average revenue-to-variable cost ratio that rail carriers would be required to realize, under honest, economical, and efficient management, in order to cover total operating expenses, including depreciation and obsolescence, plus a reasonable and economic profit or return (or both) on capital employed in the business sufficient to attract and retain capital in amounts adequate to provide a sound transportation system in the United States. As long as any such rate equals or exceeds such average revenue-to-variable cost ratio established by the Commission, such rate shall not be required to bear any further rate increase. The Commission shall have jurisdiction to issue all orders necessary to enforce the requirements of this subsection. On November 18, 1980, a notice was issued by the Commission instituting Ex Parte 394 for the purpose of establishing an average revenue-to-variable cost ratio. Also requested were comments on the Commission’s interpretation of the Act relating to rate reduction requirements: Section 204 requires the railroads, within 90 days, to take all actions necessary to “reduce and thereafter maintain” rates for recyclables, other than scrap iron and steel, at cost ratio levels equal to or less than the defined average ratio. This wording implies that the carriers are to reduce immediately any above-average recyclable rates. However, section 204 goes on to state that as long as a rate exceeds the average cost ratio, the rate cannot be increased. This suggests that rates do not have to be decreased immediately. This interpretation is supported by the Joint Explanatory Statement of the Committee of Conference, which states the bill would prohibit increases for rates which are currently above the threshold until such time as the rate falls below the average revenue-to-variable cost threshold. Because of the legislative history, we are inclined toward the interpretation that immediate reductions are not required. However, we invite the public to comment upon the question. In its final decision the Commission computed the average revenue-to-variable cost ratio to be 146% and concluded that “rates above the calculated average may not bear any further increases but need not be reduced.” In the present highly inflationary climate, the statutory prohibition against increasing rate levels is equivalent to a substantial constant dollar rate decrease. We conclude that the Congress had inflation in mind as the mechanism by which recyclable rates would be reduced to the threshold level. Rates currently above the threshold will, over time, fall below the average revenue-to-variable cost threshold by virtue of prohibiting increases to such recyclable rates. We think this interpretation is consistent with what we believe to be major Congressional policy objective of the Staggers Act. The new law is designed to eliminate unnecessary Federal regulation and permit railroad management to improve the revenue position of the railway system by adopting new service and pricing strategies to retain and attract traffic. Requiring rate reductions on such services as transportation of recyclables in an industry that is financially weak would be contrary to this overriding policy objective. Two of the five Commissioners participating dissented, contending that the Act clearly required rail carriers to immediately reduce and maintain rates equal to or less than 146% and if the reductions were averaged (by commodity and/or geographic level), individual rates would be both above and below 146% and those above would not be required to bear any further increases until they fell below the established ratio. We are fully aware of the deference due the construction placed on a statute by an agency charged with the responsibility for administering it. SEC v. Sloan, 436 U.S. 103, 98 S.Ct. 1702, 56 L.Ed.2d 148 (1978); Train v. Natural Resources Defense Council, 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975); Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). However, to accord deference is not to abdicate our duty to construe the statute, for “the courts are the final authorities and ‘are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.’ ” SEC v. Sloan, supra; Ft. Pierce Utilities Authority v. United States, 606 F.2d 986 (D.C.Cir. 1979), cert. denied, 444 U.S. 842, 100 S.Ct. 83, 62 L.Ed.2d 54. In any case concerning the interpretation of a statute the “starting point” must be the language of the statute itself, Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), and it is a fundamental principle of statutory construction that “ ‘effect must be given, if possible, to every word, clause and sentence of a statute.’ . . . so that no part will be inoperative or superfluous, void or insignificant.” In re Surface Min. Regulation Litigation, 627 F.2d 1346 (D.C.Cir.1980) quoting from 2A Sutherland, Statutory Construction § 46.06. The first sentence of Section 204(e) is clear, explicit and mandatory. It requires all rail carriers, within 90 days after the effective date of the Act, to “take all actions necessary to reduce and thereafter maintain rates ... at revenue-to-variable cost ratio levels that are equal to or less than ...” the average ratio of 146% established by the Commission. If the Commission had so ordered and followed its past practice of requiring rate reductions to be averaged by commodity and/or geographic area, as suggested by the dissenting commissioners, the second sentence becomes equally clear and explicit. Simply stated, it merely prevents any single rate that “equals or exceeds” 146% to be increased until it has gone below that level. The Commission’s interpretation, in contrast, gives unwarranted emphasis to the phrase “equals or exceeds” to justify a strained interpretation resulting in negation of the Congressional mandate contained in the first sentence. This construction ignores the requirement that every statute must be viewed in its entirety so that each part has a sensible and intelligent effect harmonious with the whole. It is not to be presumed that Congress intended any part of a statute to be without reasonable meaning. Payne v. Panama Canal Co., 607 F.2d 155 (5th Cir. 1979). To interpret Section 204 in the manner suggested by the Commission would render the first sentence not only superfluous but also meaningless in light of what Congress sought to achieve, an immediate reduction in rates. Nor can we countenance the Commission’s effort to justify its order by relying on what it believed to be a major Congressional policy objective of the Act. While it is true that its overall purpose is to provide the opportunity for railroads to obtain adequate earnings, it is equally true that Section 204 requires the Commission to enforce its requirements “notwithstanding any other provision of this title or any other law . . . . ” Congress deliberately chose to single out recyclable or recycled materials, other than iron or steel, for special treatment and thereby created a specific exemption from the general purpose of the Act. While we feel that Section 204(e) is free from ambiguity, our interpretation comports with congressional purpose as evidenced in its legislative history. Its predecessor was introduced by NARI during hearings held by the Senate Committee on Commerce, Science and Transportation while considering Senate bill S. 1946, the Railroad Policy Act of 1979. NARI’s proposal, with minor changes, was incorporated into the bill: (e) Not withstanding any other provision of this Act or any other statute, within ninety days after enactment of the Railroad Transportation Policy Act of 1979, all rail carriers subject to jurisdiction of the Interstate Commerce Commission shall take all actions necessary to reduce and thereafter maintain rates for the transportation of recyclable or recycled materials at revenue-to-variable cost ratio levels that are equal to or less than the average revenue-to-variable cost ratios initially established and thereafter published annually by the Commission pursuant to Section 102 of the Railroad Transportation Policy Act of 1979 and any such rate which equals or exceeds the average revenue-to-variable cost ratio established by the Commission as aforesaid shall not be required to bear any further rate increases. The Interstate Commerce Commission shall have jurisdiction to issue all orders necessary to enforce the requirements of this Subsection. In its Report on the bill, Sen. Rep. 96-470, 96th Cong., 1st Session (1980), the Committee stated: The freight rate issue has been a key in legislation attempting to encourage increased recycling as a way to mitigate the problem of energy and resource conservation. Rail freight rates are an important factor in the economics of recycling. Often the rates on these commodities equal or substantially exceed the value of the recyclable materials and thereby make it economically impossible for these materials to be marketed competitively. This is inconsistent with the national interests incorporated in and comprise the focal point of the energy resource legislation described above. This Committee and Congress, through section 603 of the Regional Rail Reorganization Act of 1973 and section 204 of the 4R Act, issued statutory mandates to the Interstate Commerce Commission to remove all unreasonable, discriminatory freight rates for recyclables. Congress’ concern then, as it is now, was with the disparity of rates charged to ship recyclable and competing virgin materials. Unless such rate disparities were cost justified, they were to be eliminated without regard to the railroad’s general revenue needs. The need for this additional legislation arises because the Interstate Commerce Commission initially failed to properly comply with the clear congressional mandates, with the result that its proposed actions were unanimously reversed, vacated and set aside by the United States Court of Appeals in Washington in 1978. [National Ass’n. of Recycling, etc. v. I.C.C., 190 U.S.App.D.C. 118, 585 F.2d 522 (1978), cert. denied, 440 U.S. 929, 99 S.Ct. 1266, 59 L.Ed.2d 485.] In response to the court’s remand of (sic) the Interstate Commerce Commission recently proposed to place a “cap” on freight rates for recyclables at 180 percent of variable cost. At the time this “cap” was imposed it exceeded the average revenue/variable cost level for all traffic moving by rail by 53 points, the rebuttable market dominance presumption under the Commission’s rules by 20 points and approximately 30 points above the reasonable levels that would be fixed by section 102 of S. 1946. The Committee notes that the Department of Justice, the Department of Energy and the Environmental Protection Agency have all filed briefs in opposition to the ICC’s proposed cap. It is therefore the Committee’s belief that after a full 6 years since the clear mandate to remove those economic barriers to the promotion of recyclable materials was first issued, it is now necessary to insure reasonable and nondiscriminatory rate levels on these vital commodities by statutory proscription. The Committee’s provision is quite simple: it merely reduces the Commission’s cap on recyclables from the 180 percent revenue/variable cost ratio level to the ratio level established by section 102 of S. 1946. At the estimated level of 140 percent to 160 percent, to be established under this section, the railroads would receive revenues that exceed their variable costs by 40 percent to 60 percent and at that level they should be able to make a profit on this recyclable traffic. At this level, neither the railroads nor any other traffic will be “subsidizing” recyclables. This traffic will be paying its full way — including all costs, plus a reasonable rate of return to the railroads. It is the Committee’s intent that the railroads be afforded their full cost plus a reasonable return on the movement of recyclables and therefore the applicable ratio under this provision will be recomputed by the Commission each year, just as the same ratio is to be recomputed annually under section 102 of the bill. This level, however, will represent a “maximum level of reasonableness” for recyclables, and as long as rates charged for the transportation of these materials of such vital importance to the United States are at this level, there can be no further rate increases above such revenues to variable cost ratios. It is obvious that the Committee, in adopting Section 204, expected (1) that “within 90 days ... all rail carriers . . . shall take all action necessary to reduce and thereafter maintain rates ... at revenue-to-variable cost ratio levels equal to or less than the average revenue-to-variable cost ratio . . .(2) that the ratio would thereafter be recomputed annually, and (3) that if, in any given year, a rate was equal to or exceeded the recomputed ratio, “such rate shall not be required to bear any further rate increase.” The Senate bill, as amended, was passed by Congress as the Staggers Rail Act of 1980. The most important change in relation to Section 204 was the deletion of the requirement that the revenue-to-variable cost ratio be recomputed annually. No specific reason was given for this action by the Committee of Conference, House Conference House Report No. 96-1430, 96th Cong. 2d Sess. (1980), U.S.Code, Cong. & Admin. News, 1980, pp. 3978, 4128: Senate bill. — The Senate bill requires that rates for recyclable or recycled materials be no higher than the average revenue to variable cost ratio of all rates for railroad transportation. Any rate which exceeds that threshold shall not be required to bear further rate increases. House amendment. — No provision. Conference substitute. — The Conference substitute adopts the Senate bill with certain changes. The substitute excludes recyclable or recycled iron and steel from this provision. Rates which are currently above the threshold would be prohibited from increases until such time as the rate falls below the average revenue to variable cost threshold. The standard for establishing the average revenue to variable cost threshold is the standard used in the Senate bill. In response to the Commission’s invitation for comments on its proposed interpretation that “immediate reductions are not required,” both the House and Senate sponsors of the Act submitted letters in which they, in most emphatic terms, stated that it was the intent of Congress that immediate reductions in rates were required on recyclables and that thereafter the rates were to be maintained below the level established annually by the Commission. While post-passage remarks of legislators cannot serve to change the legislative intent of Congress expressed before the Act’s passage, Regional Rail Reorganization Act Cases, 419 U.S. 102, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974), post hoc interpretations by the principal sponsors are entitled to some consideration. Citizens to Save Spencer Cty. v. U. S. Environ., etc., 600 F.2d 844 (D.C.Cir.1979). The Commission realized that the revenue-to-variable cost ratio would have to be recomputed and so stated in its notice instituting proceedings in Ex Parte No. 394: Although section 204 does not specifically direct the Commission to develop this average ratio, it does state that the Commission shall have jurisdiction to issue all orders necessary to enforce the requirements of the section. The legislative history also indicates that Congress intended the Commission to establish the standard. H.R.Rep.No.96-1430, 96th Cong., 2d Sess. 96 (1980); S.Rep.No.96-470, 96th Cong., 1st Sess. 18-19, 33-34, 51, 61-62 (1979). We anticipate periodic recalculations of the average ratio. (Emphasis added.) The Commission’s only error was in not requiring the railroads to immediately reduce rates for the transportation of recyclable or recycled materials to the 146% level. It necessarily follows that railroads are required to immediately reduce rates and, once this has been accomplished, thereafter maintain rates at levels equal to or less than the ratio level periodically recomputed by the Commission. We vacate the order entered in Ex Parte No. 394, maintain our continuing jurisdiction and remand for immediate action consistent with this opinion. . In No. 79-1393, we reviewed a final report and order of the Commission, Ex Parte No. 319, and in our decision, National Ass’n. of Recycling Industries v. I. C. C., 627 F.2d 1328 (D.C. Cir.1980), modified sub nom., Consolidated Rail Corp. v. National Association of Recycling Industries, Inc., 449 U.S. 609, 101 S.Ct. 775, 66 L.Ed.2d 776 (1981), we retained jurisdiction and ordered the Commission to comply with Congressional directives by determining a level of reasonableness for rates on recyclables and to define permissible remedies for discrimination. Stressed was “the importance of expedition as mandated by Congress in section 204” of the Railroad Revitalization and Regulatory Reform Act of 1976. Motions seeking orders directing the Commission to take affirmative action were filed by the National Association of Recycling Industries, Inc., and jointly by Armco, Inc., Inland Steel Company, Republic Steel Corporation, and Youngstown Steel & Tube Company. To expedite review, we entered an order consolidating No. 79-1393 with No. 81-1051, the instant case. After the motion was filed and our order of consolidation entered the Commission instituted further proceedings in Ex Parte 319 and urged “the parties to be as helpful as possible in their comments so that we may conclude this proceeding expeditiously.” Our consideration of the motions, pending a final report and order by the Commission, would be premature and therefore the motions are denied. . Pub.L. 96-448, 94 Stat. 1895, codified 49 U.S.C. § 10731(e). . The revenue-to-variable cost ratio is the ratio of the revenue generated by the commodity to a portion of the total cost of carrying the commodity, i. e., those costs that vary with the volume of traffic. Brief of Intervenors, Association of American Railroads, et al„ N. at p. 4. . Designated, with certain exceptions, as October 1, 1980. . See National Ass’n. of Recycling Industries v. I.C.C., supra, N. 1. 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_weightev	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". SOCIETE SUISSE POUR VALEURS DE METAUX v. CUMMINGS, Atty. Gen., et al. No. 6978. United States Court of Appeals for the District of Columbia. Argued April 11, 1938. Decided July 25, 1938. Frederic D. McKenney, John S. Flannery and G. Bowdoin Craighill, all of Washington, D. C., for appellant. Sam E. Whitaker, Asst. Atty. Gen., and Harry LeRoy Jones, Brice Toole, and Enoch E. Ellison, Attys., Department of Justice, all of Washington, D. C., for appellees. Before GRONER, Chief Justice, and STEPHENS and EDGERTON, Associate Justices. GRONER, C. J. Societe Suisse Pour Valeurs De Met-aux (called herein Swiss Corporation) filed its bill in the court below September 4, 1930, against the Attorney General (as Acting Alien Property Custodian) and the Treasurer of the United States to recover the sum of $643,595.81, which had accrued as interest on money received by the Custodian from the sale of shares of stock of American Metal Company taken over by him during the war. Metallgesellschaft ,and Metallbank, two German corporations, were at the outbreak of the war record holders of 49% of the capital stock of American Metal Company, a New York corporation. The shares were seized pursuant to the Trading with the Enemy Act, 50 U.S.C.A. Appendix § 1 et seq. and were subsequently sold by the Custodian. In September, 1921 the Custodian caused to be paid to Swiss Corporation in money and government bonds the sum of $6,967,987.-30, representing the aggregate principal amount of the sale of the shares. At the time of payment there had been no allocation of the interest accrued during the period of seizure, but subsequently under Section 15 of the Act of March 10, 1928, the Custodian set aside under two trusts the sum of $643,595.81 from that source. He declined, however, to pay this sum to Swiss Corporation because in May, 1926 the former Custodian and the former Attorney General had been indicted in the Southern District of New York for having fraudulently and unlawfully paid to Swiss Corporation the original principal sum. After the instant suit was begun the Attorney General and Treasurer filed an answer and a counterclaim. In the former they denied that any sum was due or payable to Swiss Corporation and in the latter sought restitution of the amount previously paid on the ground that the original claim was fraudulent and the money and bonds procured thereby unlawfully obtained. On motion the trial court entered an order striking the counterclaim and denying the right to cross relief. We allowed a special appeal and in June, 1936 reversed the order with instructions to the lower court to permit the counterclaim to be filed. Thereafter the cause was tried before Judge O’Donoghue, and in February, 1937 a decree was entered dismissing the bill and decreeing in favor of the United States on the counterclaim in the sum of $6,967,987.30. The findings of facts and conclusions of law were announced immediately at the close of the argument. Counsel for Swiss Corporation, excepted to the findings on the ground that they were inadequate, insufficient, and did not meet the requirements of Federal Equity Rule 70% (296 U.S. 671), 28 U.S.C.A. following section 723 and unsuccessfully urged the court, to make additional findings, and they now claim error as the result of the court’s refusal to amplify the findings. Undoubtedly the findings leave much to be desired. We have had occasion recently to emphasize the necessity of compliance with the rule (Boss v. Hardee, 68 App.D.C. 75, 93 F.2d 234), and the Supreme Court more recently still, Interstate Circuit, Inc. et al. v. United States, 304 U.S. 55, 58 S.Ct. 768, 82 L.Ed. 1146 (decided April 25, 1938), has called attention to the fact that an opinion by the trial judge is not a substitute for the required findings nor a discussion of-the evidence and the court’s reasoning in its opinion, sufficient to constitute the special and formal findings by which it is the duty of the court appropriately and specifically to determine all the issues which the case presents. In cases requiring findings of facts it is the better practice to insist that counsel for the prevailing party submit to the court and to the adverse party proposed findings. Thereafter a time should be set at which objections and proposed modifications, eliminations, or additions may be submitted and then, if necessary, a hearing had and the findings settled. In the instant case it would have been better if the findings had not been interwoven with conclusions of law and interspersed with expressions of the court’s opinion on the merits; but by disregarding the extraneous matter there is enough left to enable us to determine the issues which the case presents. As' a matter of real fact there is but a single issue involved, for in the view we take of the case, the question whether Richard Merton ■ as the representative of Swiss Corporation was privy to the bribery of Miller, the Custodian, need not be decided. So far as is involved here we shall assume that Swiss Corporation was at all times during the period of the war an alien friend. In that view if the shares of stock of the American Metal Company seized by the Custodian during the war rightfully belonged to it before April 6, 1917, the seizure was unlawful, the restitution made in 1921 was proper, and the accumulated interest allocated to the trusts should now be paid to it. Contrarily, if the stock of American company did not then belong to Swiss Corporation, but belonged to Metallbank and Metallgesellschaft, alien enemies, the payment in 1921 was in fact unlawful, whether induced by bribery or not. And this brings us to a consideration of the evidence. Metallgesellschaft was formed in 1881 under the laws of Germany as a trading company in metals. It was organized and controlled by the Merton family. Metallbank was formed prior to the war, also by the Merton family, with the idea of keeping separate the industrial and financial sides of the family business. The boards of the two companies were much the same, and Richard Merton was managing director of Metallgesellschaft, and his father of Metallbank. On the death of his father, Richard became chairman of the board of Metallbank. Swiss Corporation was organized in 1910, mainly by the elder Merton, as a holding company, and it acquired by purchase from the two German companies several million dollars of their capital shares. The latter companies held 51% of the capital of Swiss Corporation at all times during the period with which we are concerned. Long prior to the World War the two German companies acquired 49% of the capital stock of American Metal Company. The share certificates were deposited for the account of the German corporations with the American corporation at its New York office. After the United States entered the war the president of American company reported this enemy ownership of stock to the Alien Property Custodian, who took possession of the certificates under the Trading with the Enemy Act (40 Stat. 411, 50 U.S.C.A. Appendix § 1 et seq.). The stocks were subsequently sold by the Custodian. Richard Merton came to the United States in March, 1921 and consulted Mr. Dulles, a New York lawyer, relative to filing a claim in the name of Swiss Corporation for the fund held by the Custodian. Dulles went to Washington and made an investigation and informed Merton that the claim would not b§ allowed without litigation. Merton thereafter met John T. King, a Connecticut politician, whom he interested in the case, and through King he was introduced to Jess Smith, of Ohio, a friend of the then Attorney General, and to Miller, the Custodian. By this means Merton had an interview with George E. Williams of the Custodian’s office and obtained the information which he thought necessary in the preparation of the claim of Swiss Corporation. He then returned to Europe and later brought back with him to this country the prepared claim papers which were submitted to the Custodian through either King or Smith. One or the other told Merton “that he had put up the claim in the wrong way” and not as he had been told, as the result of which he asked for and had a further conference with Williams to find out what was wrong. Williams apparently explained that the papers as prepared showed a “debt claim” rather than an “ownership claim” to the seized property and for that reason could not be allowed. Merton was permitted to withdraw the papers and to take them with him to Switzerland for redrafting. He returned to Washington with the new claim papers the last of August or the first of September, 1921, and within two or three days after their delivery to the Custodian he was notified by either King or Smith that the claim had been allowed; and at the suggestion of Smith or King a dinner party was arranged at the Ritz-Carlton in New York City, attended by Merton, Miller, Smith, and King. At that time treasury checks in the amount of approximately six and a half million dollars were delivered to Merton, followed by the delivery the next day or the day after of Liberty Bonds in the amount of approximately $500,000. Merton paid King for his services about $400,000 in government bonds, — having previously paid him $50,000 in cash, — and a week or ten days later returned to Europe., In 1926 Miller, Attorney General Daugherty, and King were indicted on account of the transaction just described, for violation of Section 37 of the Criminal Code, 18 U.S.C.A. § 88. King died, Miller was convicted, and the jury disagreed as to Daugherty. Miller appealed, and the judgment of conviction was affirmed February 6, 1928. In the criminal trial Merton testified as a witness for the United States, insisting in his testimony, however, that he had never authorized King or Smith to make any payments to any officials of government to expedite or to allow the claim. Thus the matter remained until the present suit was begun. The United States insist that Swiss Corporation never was owner of the American Metal Company stock, but that the shares belonged at all times to the two German companies; that the statement of claim of Swiss Corporation filed and allowed in 1921 by the Custodian was false and fraudulent; and that its allowance was obtained by bribery. Swiss Corporation, on the other hand, insists that it acquired the stock by assignment prior, to the entry of the United States into the World War; that it was entitled to make the claim; that the United States' have wholly failed in this case to prove that its claim was fraudulent; and that in any case the allowance of the claim by the Attorney General was final. But in the view we take of this caseJ the government was not required to prove that the claim made in 1921 was fraudulent, — for the reason that Swiss Corporation was entitled to the money it received only if it was, prior to the commencement of the war, the owner of the American company stock. The answer to this question will, without more, determine whether the government may now prevail on its counterclaim. And this brings us back to the point from which we started. The trial in the court below was on depositions and oral testimony. Ordinarily we should be satisfied to follow the general rule and accept the findings unless clearly wrong. Hearst Radio, Inc. v. Good, 67 App.D.C. 250, 91 F.2d 555. In view, however, of the important nature of the deposition and documentary evidence, we have considered it our duty to weigh the whole evidence, for as to the former we are as able to determine its effect as was the trial court. Photoplay Pub. Co. v. La Verne Pub. Co., 3 Cir., 269 F. 730, 732. We find here a case in which a Swiss company secured payment of a supposedly valid claim to seized property by representing that it was the lawful owner. As we have already said, if it really was not the lawful owner, it was not entitled to the money it received. Not being satisfied with what it got by the allowance of its claim, it brought this suit in order to compel the government to pay over to it the retained interest accumulation. In our decision on the former appeal, we said: “When the corporation brought this suit, it invited the court to which it submitted itself to go behind the settlement, and at the instance of the United States, the real parties in interest, to re-examine all the questions arising out of the original claim.” We think this is a correct statement of the law, and hence that the United States are not foreclosed by the action of the former Attorney General. McElrath v. United States, 102 U.S. 426, 440, 441, 26 L.Ed. 189. Swiss Corporation insists that the United States, as the parties alleging fraud,must prove it by clear, unequivocal, and convincing testimony, and that such proof will not arise from a bare preponderance of evidence which leaves the issue in doubt. But we think the rule is not applicable in the view we have taken of the case and in the narrow limits to which we have confined it. Here, as we have seen, the question is: — Were the shares of stock the property of Swiss Corporation ? If not, the only answer is that Swiss ’ Corporation was not entitled to receive the proceeds of their sale. And so the question of actual fraud may be said to be out of the case. We go far enough when we hold, as we do, that the United States as to the counterclaim had the burden throughout. As we understand the evidence and the arguments, the case for Swiss Corporation is as follows: The German corporations owned the American 'company stock prior to 1910. In that year those two corporations desired to increase their capital and to strengthen their cash position and accordingly formed the Swiss Corporation and sold to it large blocks of their own stocks. At the time of these sales “representatives” of the German corporations exhibited to Swiss Corporation their financial statements for the purpose' of showing the value of their stocks, and as an inducement to the purchase. On the strength of these representations and on its holdings of - the German corporations’ stocks, the Swiss Corporation issued debentures which were sold to the public. In March, 1916, because of the depression resulting from the war, the Swiss Corporation called upon the German corporations for assurances of the value of their stocks, and the German corporations thereupon orally acknowledged their obligations and orally referred to their holdings of American company stock as evidence of continuing value. Later,' and in consequence of further depreciation, negotiations were resumed between the Swiss and German corporations in February and - March, 1917 (a time when the United States and Germany had severed diplomatic relations), - and the German corporations verbally transferred to the - Swiss Corporation their -interest in the American company stock. All these things are said to have happened in Switzerland, where the agreements were to be performed. Accordingly, it is contended that the Swiss law governs their validity, and that under’ Swiss law a verbal guaranty of the value of stock and a verbal transfer of ownership of stock are valid and enforceable, — so that before the United States entered the war the Swiss Corporation was legal owner of the American company stock. This, we say, is the story which Swiss Corporation told in its claim papers and in the annexed and supporting affidavits which it submitted to the court below, including the expert opinion certificate of the Swiss lawyer, and on the strength of the case thus made it insists the payment in 1921 was lawful and proper. Looking at the other side, we find that attached to the claim paper was a writing, called a cession, dated November 20, 1919, — after the war ended, — in the following words: “The Metallbank and the Metallgesellschaft do hereby assign to the Swiss Bank Corporation [fiscal agent for Swiss Corporation] all their claims to the payment of the dividends and interests paid to the Custodian and their claims to the payment of the proceeds of the sale or future sale of said shares, which claims they have against the Custodian or the Government of' the United States of America or against any person who is liable for the payment of the sums received by the Custodian.” Swiss Corporation contends this cession was a confirmation of the verbal transfer, although nowhere in it is any reference made to a prior transaction, verbal or written. Further, there was evidence submitted to the lower court, oral and documentary, showing that early in 1918, when the seizure of the American company stock by the Custodian was imminent, Julian B. Beaty and Henry Bruere, Treasurer and Vice-President of the American company, suggested to the Custodian the possibility of purchasing the interest of the German companies; and that in May, 1918, under licenses permitting them to trade with the enemy, they went to Switzerland and negotiated to that end with Alfred Merton, George Schwartz, and Rudolph Euler, representing the German companies. The parties framed a contract, in the presence of representatives of the Swiss Corporation, wherein the German companies were described as owners of the American company stock in question and whereby they agreed to sell it to Beaty and Bruere. The purchase money, however, was not to be paid over to the German corporations until the close of the war. Because the consent of the United States government to the sale could not be obtained, the transaction was abandoned. Other evidence submitted below showed that when the Swiss Corporation first sought to collect the proceeds of the sale of the American company stock from the Custodian it wrote (Dec. 1920) to Mr. Dulles, an attorney, and told him that it had acquired its claim on November 20, 1919 (the date of the cession), from the German companies. With this brief summary of a part of the evidence introduced below, we turn to the findings of the trial court, which were: 1. Before the year 1910 the stock of the American company was owned by the two German companies. 2. The two German companies have nothing in their minutes with regard to the alleged oral guaranty or the alleged oral transfer of the American company stock and the Swiss company has nothing in its minutes in regard to those two transactions. The German companies filed their annual reports and accounts, as required by law, during several years after 1910 and before 1920, therein expressly or impliedly indicating that the American company stock still belonged to them. 3. In 1918, after the Alien Property Custodian had seized the American company stock, the two German companies entered into a formal contract for the sale of the American company stock, putting themselves in the position of the owners thereof. The terms and conditions of this contract were known to Swiss Corporation and to some of its officers but Swiss Corporation asserted no claim to the stock and allowed the German companies to act as the owners thereof. This agreement fell through. 4. Later in 1918 the Alien Property Custodian sold the American company stock which he had seized. 5. In November 1919 the German companies executed a written assignment, transferring or undertaking to transfer to Swiss Corporation’s fiscal agent the American company stock or the proceeds of the sale thereof that were held by the Alien Property Custodian. This assignment did not mention the alleged oral guaranties of 1910 or 1912, nor did it purport to be a confirmation of the transfer of the American company stock to Swiss Corporation in March 1917, nor did it state that in consideration of the assignment the German companies were being released from their guaranties. 6. In 1920 Swiss Corporation employed New York counsel in connection with its supposed claim and informed that counsel that it became the owner of the American company stock, or the proceeds of the sale thereof, by the assignment of November, 1919. Swiss Corporation did not mention to its counsel the guaranties of 1910 or 1912, or any transfer of the title or interest in this stock in March 1917. On the basis of these evidential facts the court made a conclusion of law and fact: — ■ that the title of the American company stock did not pass from the German companies to Swiss Corporation and that in 1921, when Swiss Corporation secured allowance of its claim, the German companies owned the stock. The attempted assignment of 1919 was ineffectual because it could not operate on property seized and held by the Custodian. Are these findings supported by the evidence and are they sufficient to support the conclusions reached by the trial court ? We think they are. We shall refer later to other matter which the trial judge did not mention, and which in our opinion strengthens the grounds of his holding Some objections to parts of the evidence upon which the findings are based were made below and have been argued here; but we shall not discuss them because we are convinced they are technical and, in or out of the record, do not affect the result. In final analysis Swiss Corporation’s contention is that its evidence is true, that the oral guaranties and the oral transfer of the American company stock were really made just as it says they were made. If we had before us nothing but the evidence of Swiss Corporation as it was revealed to the administrative officers of government in the claim papers, and if we could assume that the asserted verbal agreement to transfer the shares was the valid act of the German corporations and was enforceable under German and Swiss law, we might easily reach a different conclusion from that which we have expressed above. But the contrary of all of this is the case. The government, as we have pointed out, has brought to light positive evidence of acts and conduct inconsistent with the story which Swiss Corporation tells; there is no proof of acts of the German corporations which would justify our holding that there was valid corporate action authorizing a verbal transfer; and there is no proof of German law and- insufficient proof of Swiss law upon which to declare that the alleged verbal transfer was binding and enforceable. Hence we must make our decision upon more than the statements found in the claim papers, and viewed in this aspect we are unable to find any evidence that at any time prior to the seizure was Swiss Corporation the true and lawful owner of .the American company stock. On the contrary, we are of opinion that the finding of the lower court, that not until November 20," 19Í9, did the German corporations, undertake to assign to Swiss Corporation their interest in the American company stock, is sustained by a preponderance of the evidence. In all that we have said heretofore it has been assumed that under the Trading with the Enemy Act no assignment by an enemy alien of property in the hands of the Custodian was valid so as to create title in -the assignee unless the assignment was made prior to the time the United States, entered the war. We think this is a correct assumption. Schrijver v. Sutherland, 57 App.D.C. 214, 19 F.2d 688; Sturchler v. Hicks, D.C.N.Y., 17 F.2d 321. Swiss Corporation, while admitting the correctness of the rule, says it has no applicability here because, though the written assignment of November 20, 1919, was executed after the property had been seized and was in the hands of the Custodian, the previous transactions between the German' companies and itself, which it claims began in 1910, continued through 1917, and were consummated in 1919, created definite rights in the property as to which the 1919 writing is merely the evidence. The lower court rejected this contention, and we think correctly: First, because we think the evidence shows that the representations which it is claimed were made in 1910 by the German corporations were nothing more than assurances of the sound value of the shares which Swiss Corporation acquired. The supporting affidavit states that, before the sale took place, the representatives of the German corporations did at various times declare that they guaranteed the value of the shares and the amount of the dividends of such shares and stated particularly that the real value of the shares was more than the price asked. But the “representatives” referred to in this affidavit could have been no others than the Merton family, who then controlled both corporations. There is no showing of formal corporate action, and there is a total absence of any writing or even a minute in the German or Swiss corporations’ . records by which the corporations themselves could be bound. Furthermore, in view of the testimony of experts on German law that a corporation could not lawfully guarantee the value of its own stock, we think it would be unjustifiable to assume, in the very teeth of the German law forbidding it, that the German corporations made a binding guaranty. We are fortified in this conclusion by the published statements of the boards of the companies in April, 1910, issued to facilitate sale of the Swiss Corporation’s debentures, and which go no further than to state the opinion that the shares they were selling were amply secured because of the German corporations’ sound financial condition and the fact that the dividends paid over the previous five years on the German corporations’ stocks were three times more than was necessary to pay interest on the.debentures. The subsequent proceedings described by Zahn-Geigy are to the effect that in 1916 the representatives of the German corporations agreed that the holdings of those companies in the American company should serve as security for their previous representation of value, and that in 1917 they stated that they would hold their interest in the stocks of the American company to provide against a loss to Swiss Corporation. Though we were to regard this statement as a deliberate attempt on the part of these “representatives” to transfer title to the shares, it would still be true that we have no record of any corporate act authorizing or ratifying the transfer, and equally it would still be true that under German law no such transfer could lawfully be made. On the other hand, in the report of the German companies covering the business year October 1, 1917, to September 30, 1918, the statement is made to stockholders that “our stock” in the American Metal Company, including the dividends declared and 'paid since the war began, remain in the hands of the American trustee for enemy property. This statement is inconsistent with the present position of Swiss Corporation that in 1916 and in 1917 the German companies had by verbal agreement transferred their entire interest in those stocks to it. We think it beyond question that, if a seller in a supposed sale continues to hold itself out as being still the owner of the property in question, considerable doubt is thrown on the buyer’s claim of title. And so again, the agreement of sale of the 11th of May, 1918, to American interests was made and entered into on the written assurance by the German corporations to Bruere and Beaty that the German corporations were the owners of the stock and were fully authorized to make the sale. And, finally, the written agreement made in November, 1919 is a complete document within itself. It recites the ownership of the American Metal Company stock by the German corporations, the accretion due to the issuance of new shares by the American company, and states that in 1917 by reason of these accretions the total number of shares held by both corporations since 1917 is 31,570 shares. And the proceeds of the sale of all the shares are by that instrument assigned to Swiss Corporation. But this was done long after the seizure and at a time when an assignment was ineffective. On the whole case we think the facts we have just outlined overcome the prima facie case made by Swiss Corporation and establish as clearly as a matter of this kind is capable of being established, the falsity of the claim that there was an actual transfer of the interest in the American Metal Company stock prior to November 20, 1919. In reaching this conclusion we have not found it necessary to determine the correctness of the claim of Swiss Corporation that a verbal agreement of transfer of stocks, without delivery of the certificates, by a German corporation to a Swiss corporation is as valid as a written agreement. We do comment in passing, however, on the testimony of all the experts on foreign law to the effect that under the laws of Germany it was unlawful for Metallbanlc and Metallgesellschaft to transfer any of their securities or assets to a foreign corporation during the period of the war, and we should be very slow to hold that those corporations had attempted to do so, — certainly that they had done so,- — by a verbal representation on the part of their “representatives”. In addition to this, — and as we have pointed out above, —there is the testimony that a German corporation cannot lawfully guarantee the value of its own stock. Whether a Swiss court would enforce such a guaranty if it had jurisdiction of the parties is a matter beside the point; for we regard the illegality of the alleged transaction as merely another reason for concluding that it did not in fact take place. In saying this we are not unmindful, of course, that what Swiss Corporation claims was done could, factually, have been done. But if it was done, with the intent said to have accompanied the transaction, then not only did the corporations concerned act unlawfully, but their other contrary acts and conduct arc virtually inexplicable. Because of the nature of the case and of the positions which the parties have taken, we must decide the controversy on the strength of 'that evidence which not only is the subject of the more convincing proof but also has the greater probative force. Upon the whole record we think there can be no doubt that during the period involved here the German companies and not Swiss Corporation owned the American company stock. We think there is no basis for the claim of laches on the part of the government. No rule is better established than that the United States are not bound by limitations or barred by laches where they are asserting a public right. United States v. Beebe, 127 U.S. 338, 8 S.Ct. 1083, 32 L.Ed. 121; United States v. Porto Rico Fruit Union, 1 Cir., 12 F.2d 961, 962. Here the United States are not seeking the. return of money unlawfully paid “as a, mere conduit of title for private persons”, as counsel suggest. The property and money delivered to Swiss Corporation in 1921 was, in our opinion, enemy property, and it is settled that under the Trading with the Enemy Act enemy property after seizure belonged to the United States to be' disposed of as they pleased. Cummings v. Deutsche Bank, 300 U.S. 115, 57 S.Ct. 359, 81 L.Ed. 545. The contention is urged by Swiss Corporation that, if its “ownership” claim is rejected, recovery is still sustainable on the theory that the German companies were liable to Swiss Corporation on the guaranty, — that is to say, that recovery may be had as on a “debt” claim. We think the preceding discussion amply disposes of this contention, for in our view of the case the one claim must fall with the other. Affirmed. 45 Stat. 254, 273, 50 U.S.C.A.Appendix § 26 et seq. 66 App.D.C. 121, 85 F.2,d 287. Miller v. United States, 2 Cir., 24 F. 2d 353. Schrijver v. Sutherland, 57 App.D.C. 214, 19 F.2d 688. Public Motor Service, Inc. v. Standard Oil Company, 69 App.D.C. 89, 99 F.2d 124, decided by‘ us June 20. 1938; Maxwell Land-Grant Case, 121 U.S. 325, 381, 7 S.Ct. 1015, 30 L.Ed. 949; Equitable Life Assur. Soc. v. Johnson, 6 Cir., 81 F.2d 543. Question: 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:

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