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songer_counsel2

F

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party Donald G. GRIFFIN, Petitioner-Appellant, v. WARDEN, MARYLAND CORRECTIONAL ADJUSTMENT CENTER; Attorney General of the State of Maryland, Respondents-Appellees. No. 91-6066. United States Court of Appeals, Fourth Circuit. Argued April 10, 1992. Decided July 28, 1992. Mark Lawrence Gitomer, Cardin & Gi-tomer, P.A., Baltimore, Md., argued, for petitioner-appellant. Gary Eugene Bair, Asst. Atty. Gen., Crim. Appeals Div., Baltimore, Md., argued (J. Joseph Curran, Jr., Atty. Gen. of Maryland, Crim. Appeals Div., on brief), for respondents-appellees. Before ERVIN, Chief Judge, and HALL and PHILLIPS, Circuit Judges. OPINION K.K. HALL, Circuit Judge: Donald Griffin appeals a final order of the district court denying his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Concluding that Griffin was denied the minimum level of effective assistance of counsel guaranteed to him by the Sixth Amendment, we reverse. I. At 3:45 p.m. on July 24, 1983, a Rite-Aid Drug Store in Baltimore, Maryland, was robbed by two men armed with handguns. Two security guards were shot and wounded during the robbery. Two days later, one of the security guards picked appellant Donald Griffin out of a photo array. When he learned that he was wanted in connection with the robbery, Griffin surrendered to police. He was charged with robbery and using a handgun during a crime of violence. Attorney Charles Howard entered an appearance for Griffin in December, 1983, and represented him when he tendered a not guilty plea. On or about February 22, 1984, Griffin and his mother, Dorothy Josey, provided attorney Howard with a list of five alibi witnesses. Howard failed to contact these witnesses or to respond to the state’s discovery requests, among which were requests to be notified of intent to rely on alibi and for the identities of alibi witnesses. See Md.Rule 4-263. From his personal standpoint, Howard had moré serious concerns than his representation of Griffin.' On June 1, 1984, he was disbarred for misappropriating client funds, commingling funds, failing to keep records, and neglecting a legal matter. In concluding that the ultimate sanction of disbarment was warranted, the Maryland Court of Appeals pointed out that it had previously reprimanded Howard for neglecting cases, including, on three occasions, failing to be present when a case was called. Attorney Grievance Comm’n v. Howard, 299 Md. 731, 737-738, 475 A.2d 466 (1984), citing, Attorney Grievance Comm’n v. Howard, 282 Md. 515, 385 A.2d 1191 (1978). George David, who shared office space with Howard, took over Griffin’s file. Howard advised David to “take a plea” for Griffin. David, expecting Griffin to plead guilty, did nothing. He contacted no witnesses, though he “imagine[s]” he “glanced” at the file, and he failed to confirm that the state’s discovery requests had been answered. At a hearing on October 25, 1984, four months after he entered his appearance in Howard’s stead, David met his client for the first time. At this hearing, David expected Griffin to plead guilty. Griffin refused. On November 19, 1984,' Griffin’s case was scheduled for trial. David still expected Griffin to change his mind and plead guilty, and he had done nothing more to prepare for trial. Instead, Griffin reiterated his not guilty plea and told the court he was “uncomfortable” with his attorney. Just before the jury was brought into the courtroom, this colloquy, a harbinger of the events we address today, ensued: THE COURT: Now, Mr. Griffin, have you had an opportunity to discuss your case adequately with Mr. David? Have you talked it over with him? THE DEFENDANT: Somewhat. I haven’t talked at all with him. THE COURT: Was there anything you wanted to tell him that you haven’t told him? THE DEFENDANT: I haven’t seen my true bill indictment papers or nothing. I ain’t seen nothing. THE COURT: All right. Show it to him, Mr. David. Anything else other than that? THE DEFENDANT: No, not really. I just wanted to know everything they charging me with. The state’s evidence at trial consisted of two eyewitness identifications by the security guards. Because David had failed to contact any of Griffin’s witnesses, only one — Dorothy Josey, Griffin’s mother— was present. She was there only because Griffin himself had been able to get a message to her through a cellmate that the trial was about to be held. Attorney David called Josey to the stand. When he asked a question that would have prompted alibi testimony, the state objected. At a bench conference, the court ruled that the testimony would not be permitted because of David’s (and Howard’s) failure to notify the state of Griffin’s intent to rely on an alibi. David offered two excuses for the failure to respond to the state’s discovery request, both of which were confessions of his own dereliction. First, he told the court that “any discovery ... would have been propounded to Charles Howard and I don’t know if he replied or not.” Moments later, he said “it’s been my impression ... that this case was going to be pleaded all the way up until this morning.” Unable to elicit the alibi evidence, David asked Griffin’s mother no further questions. Griffin then testified on his own behalf. He stated that he was at home in his pajamas at the time of the robbery, and that soon thereafter he went with Rodney Staples and Perry Payne to Eddie Williams’ house. On closing argument, the prosecutor attacked Griffin’s story, and specifically referred to the lack of corroboration of his alibi. In other words, the state got double mileage out of the failure to notify it of the alibi defense — it was able to exclude evidence corroborating Griffin’s story and then emphasize the lack of corroboration to the jury. Griffin was convicted of robbery and use of a handgun in connection with a crime of violence. He was sentenced to two consecutive twenty-year terms. He appealed. The Court of Special Appeals affirmed, holding that the trial court acted within its discretion in refusing to admit the alibi testimony. Griffin v. State, No. 166 (Md.Ct.Spec.App., October 21, 1985). The appellate court had harsh words for attorney David, however: “Appellant’s trial counsel’s excuse that he thought there would be a plea bargain is no justification for neglecting to discover alibi witnesses and reveal them to the State.” Griffin’s petition for certiorari to the Court of Appeals of Maryland was denied. On October 1, 1987, Griffin filed a petition for post-conviction relief in state trial court, in which he argued that he had been denied effective assistance of counsel. An evidentiary hearing was held, at which Griffin, his five alibi witnesses, and both attorneys — Howard and David — testified. The state court denied relief. Griffin v. State, P.C.P.A. No. 6113 (Baltimore (Md.) City Cir. Ct., June 1, 1988). The Court of Special Appeals denied leave to appeal on December 7, 1988. On December 6, 1990, Griffin filed this petition in district court under 28 U.S.C. § 2254. Adopting the reasoning of the state court, which we discuss below, the district court denied the petition without a hearing on April 2, 1991. Griffin appeals. II. The Supreme Court has devised a two-step inquiry to determine whether a lawyer’s poor performance has deprived an accused of his Sixth Amendment right to assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must show that his attorney’s performance was deficient. “Deficient performance” is not merely below-average performance; rather, the attorney’s actions must fall below the wide range of professionally competent performance. Second, the defendant must show that he was prejudiced by the substandard performance. “Prejudice” is a “reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068. Because effectiveness of counsel is a mixed question of law and fact, we owe no special deference to the finding of the state court on the question. Id. at 698, 104 S.Ct. at 2070. III. The “deficient performance” prong is easily met here. An attorney’s failure to present available exculpatory evidence is ordinarily deficient, “unless some cogent tactical or other consideration justified it.” Washington v. Murray, 952 F.2d 1472, 1476 (4th Cir.1991). Accord, Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir. 1990), appeal after remand 961 F.2d 113 (8th Cir.1992) (failure to interview alibi witnesses was deficient performance under first Strickland factor); Harris v. Reed, 894 F.2d 871, 878 (7th Cir.1990) (failure to call witnesses to contradict eyewitness identification of defendant was ineffective assistance); Grooms v. Solem, 923 F.2d 88, 90 (8th Cir.1991) (“it is unreasonable not to make some effort to contact [alibi witnesses] to ascertain whether their testimony would aid the defense”). As we will discuss below, the “cogent tactical considerations” that the state court bestowed on David for failing to present Griffin’s alibi witnesses are exercises in retrospective sophistry. From the attorney's perspective at the time of trial, no reasonable excuse for failing to notify the state of Griffin’s alibi and to secure the attendance of alibi witnesses appears or is even suggested in the evidentiary record. Indeed, David’s statements at the bench conference are unambiguous admissions of unpardonable neglect. We hold that counsel’s performance was deficient. IY. We thus turn to the second Strickland factor: was Griffin prejudiced, i.e., does the attorney’s deficient performance undermine confidence in the outcome? The state post-conviction court focused on this prong, but its decision invokes speculation and hindsight to evade the stark prejudice we find apparent. A synopsis of the state court’s analysis of the testimony of the alibi witnesses will illustrate. A. Joseph “Eddie” Williams and his mother, Beatrice Williams, both testified that Griffin arrived at their house at 4 p.m. on the date of the robbery, where he remained, watching sports and eating chicken, until nightfall. The state court concluded that this evidence did not establish an alibi because it “[did] not cover the period in question.” The court’s conclusion is strained, at best. The Williams’ house is three to four miles from the site of the robbery. Griffin testified that it takes twenty to twenty-five minutes to drive that distance because of numerous stoplights. Finally, the court ignored the trial testimony of one of the Rite Aid security guards, who testified that the robbers entered the store at 3:45 p.m. and did not leave until ten to fifteen minutes later. B. Rodney Staples testified that he arrived at Griffin’s house between 3:00 and 3:15 p.m. on the day of the robbery. He stated that soon thereafter he and Griffin went to the Williams’ house to watch sports. Inasmuch as this testimony clearly “covers” the period in question, the state court took a different tack. Staples had been picked out of a photo array by one of the security guards and identified as one of the robbers. Therefore, concluded the state court, it may have been sound trial strategy not to call Staples, i.e. if he were an accomplice, and the state could show that when he was on the stand, it could have hurt Griffin’s case. This reasoning is thoroughly disingenuous. David did not even talk to Staples, let alone make some strategic decision not to call him. Strickland and its progeny certainly teach indulgence of the on-the-spot decisions of defense attorneys. On the other hand, courts should not conjure up tactical decisions an attorney could have made, but plainly did not. The illogic of this “approach” is pellucidly depicted by this case, where the attorney’s incompetent performance deprived him of the opportunity to even make a tactical decision about putting Staples on the stand. A court should “evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689,104 S.Ct. at 2065. Tolerance of tactical miscalculations is one thing; fabrication of tactical excuses is quite another. Kimmelman v. Morrison, 477 U.S. 365, 386-387, 106 S.Ct. 2574, 2588-2589, 91 L.Ed.2d 305 (1986) (hindsight cannot be used to supply a reasonable reason for decision of counsel); Harris, 894 F.2d at 878 (same). C. Griffin’s mother testified that her son was at home until he left to go to the Williams’ shortly after 4:00 p.m. The state court faulted this testimony because of discrepancies between it and other alibi testimony in estimates of times. Inasmuch as the state court discounted all the other alibi evidence, the court’s insistence that Griffin’s mother’s testimony be strictly consistent with it is a plain fallacy. The state court also credited David’s testimony that he was afraid Griffin’s mother would commit perjury as a sound reason not to put her on the stand. Again, this retro-speculative reasoning (advanced, we must note, in the sworn testimony of an officer of the court) bizarrely ignores, and is utterly belied by, the actual course of the trial. David put Griffin’s mother on the stand. He tried to introduce her testimony establishing an alibi. He failed because of his disregard of professional duty. The tug on his conscience not to sponsor perjured testimony is revisionist history. D. Monica Tyson testified that she talked briefly with Griffin between 3:30 and 4:00 p.m., when Griffin was seated on his front porch in his pajamas. The state court ruled that this testimony “did not affirmatively demonstrate that [Griffin] was at home when the crime was committed.” This last quote brings us to a legal error that complements the tortured logic of the state court’s factual analysis — an overly-strict legal standard for the second Strickland prong. The court stated that Griffin had to “demonstrate affirmatively that, but for trial counsel’s unprofessional errors, the result would have been different.” Strickland is not so demanding. If a petitioner establishes a reasonable probability that the result would have been different, prejudice is established. Moreover, a “reasonable probability” is simply “a probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694, 104 S.Ct. at 2068. Our confidence in the outcome is very much undermined. Eyewitness identification evidence, uncorroborated by a fingerprint, gun, confession, or coconspirator testimony, is a thin thread to shackle a man for forty years. Moreover, it is precisely the sort of evidence that an alibi defense refutes best. Lawrence, 900 F.2d at 130; cf. Montgomery v. Petersen, 846 F.2d 407, 415-416 (7th Cir.1988) (where trial was “swearing match” between biased witnesses, counsel’s failure to call unbiased alibi witness was prejudicial); Harris, 894 F.2d at 879 (failure to call two witnesses who would have identified someone else as perpetrator prejudicial where prosecution relied on single eyewitness identification). This excerpt from the prosecutor’s closing argument, to which we referred earlier, demonstrates the narrow scope of the state’s case and the prejudice that resulted to Griffin from his inability to introduce alibi evidence (emphasis added): The entire case hinges on the credibility of the witnesses. Who do you believe? Do you believe ... the security officers, who were trained as security officers in identification, who have positively identified Donald Gary Griffin as the individual responsible for shooting them on July 24th, 1983 or do you believe Donald Gary Griffin, who makes the self-serving statement, I was at home at the time that the alleged incident took place, I had been out all night, I did not return home until seven o’clock that morning, I was in my pajamas at 3:30 in the afternoon when friends of mine, none of which you heard from, come in and they went to a friend’s house? The judgment of the district court is reversed, and the case is remanded with instructions to grant the writ. Unless the state elects to retry him within sixty days from the issuance of the writ, Griffin should be released. REVERSED AND REMANDED WITH INSTRUCTIONS. . A criminal defendant’s right to present witnesses is of course protected by the Compulsory Process Clause of the Sixth Amendment, and trial courts must take this right into account in sanctioning a defendant for noncompliance with a discovery rule. Since the Maryland courts considered Griffin’s direct appeal, the United States Supreme Court has held that the extreme sanction of preclusion is constitutional under some circumstances, and at least where a discovery rule is willfully violated by the defendant in hopes of gaining a tactical advantage. Taylor v. Illinois, 484 U.S. 400, 415, 108 S.Ct. 646, 656, 98 L.Ed.2d 798 (1988). In any event, Griffin has not asserted a Taylor-style compulsory process claim on collateral review in either the state or federal courts. . Staples has never been formally charged with complicity in the robbery. . Griffin’s mother corroborated that Tyson had spoken to her son, though she estimated the time as 3:20 to 3:30 p.m. . Because of our disposition of Griffin’s ineffectiveness claim, we do not address his contention that the state court unconstitutionally punished him, through an increased sentence, for exercising his right to a jury trial. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:

songer_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". ST. REGIS PAPER COMPANY, Plaintiff-Appellee, v. ROYAL INDUSTRIES, and Plas-Ties Subsidiary, Defendants-Appellants. ST. REGIS PAPER COMPANY, Plaintiff-Appellant, v. ROYAL INDUSTRIES, and Plas-Ties Subsidiary, Defendants-Appellees. Nos. 74-3268 and 74-3336. United States Court of Appeals, Ninth Circuit. April 19, 1977. Robert M. Newell, Newell & Chester, Los Angeles, Cal., argued, for defendants-appellants. Nicholas L. Coch, Anderson, Russell, Kill & Olick, New York City, argued, for plaintiff-appellee. Before ELY and WALLACE, Circuit Judges, and SOLOMON, District Judge. Honorable Gus J. Solomon, Senior United States District Judge for the District of Oregon, sitting by designation. SOLOMON, District Judge: This case involves the validity of a patent on a plastic tie strip and a method for manufacturing the product. It also involves a license agreement for the patent rights and for the know-how used to manufacture the patented tie strips. The District Court held the patent invalid and permitted rescission of the license agreement. The Court denied the licensor royalties after the filing of this action, denied the licensee recovery of royalties paid before the filing of this action, and granted the licensor some compensation for its know-how. Both parties appeal. Some time before June 1950, Gerald Bower formed a partnership to develop and market a plastic tie strip which could be used to tie bunches of fresh vegetables. In June 1950, the business was incorporated under the name of Plas-Ties Corporation (Plas-Ties). On June 2, 1952, Bower filed an application for a patent on a plastic tie strip and a method for making the tie strip. The Patent Office rejected all of Bower’s original claims, but he later succeeded by amendments to the application in getting some claims allowed on a narrower basis. A patent (U.S. Patent No. 2,767,113) was issued to Bower on October 16, 1956 (the Bower patent). The patented device consists of two plastic strips reinforced by a wire between them. The wire is embedded in one of the plastic strips and secured with a “cementitious substance” so that the casing cannot slide from or bunch up on the wire. The wire permits fastening the tie by merely twisting it. The plastic outer casing permits easy handling and prevents the wire from cutting the stalks of the vegetables. In April 1963, Bower assigned his patent to Royal Industries (Royal), and Royal acquired 80 per cent of the outstanding stock of Plas-Ties. Bower owned the remaining 20 per cent of the stock, and he became president of Plas-Ties. In 1965, Royal acquired Bower’s shares and Plas-Ties became a wholly owned subsidiary. St. Regis Paper Company (St. Regis) supplies wrapping paper to the bakery industry through one of its subsidiaries, Pollack Paper Company. The use of tie strips significantly changed the packaging of bakery products in the early 1960’s. The new method used a tie strip around one end of the package instead of having the package tightly sealed at both ends. St. Regis lacked the technical ability to manufacture tie strips. The Bower tie strips and the machines Bower developed were suitable for bakery packaging. On May 1, 1963, Royal and its subsidiary Plas-Ties (hereinafter referred to jointly as “Royal”) entered into a license agreement with St. Regis. Under this agreement, Royal licensed St. Regis to use the Bower patent and Royal’s know-how to manufacture and sell the patented tie strips. St. Regis agreed to pay Royal 10 per cent of its net dollar sales as royalties and also agreed to pay all reasonable expenses incurred by Royal in transferring its know-how to St. Regis. The agreement provided that it would terminate upon the expiration of the Bower patent in 1973. Royal did make its know-how available to St. Regis. From 1963 to 1967, St. Regis paid Royal $174,642.04 for royalties and expenses. Later, a dispute unrelated to this action arose between Royal and St. Regis on whether they had entered into an oral price fixing agreement. The dispute resulted in litigation between the parties. In preparing for that litigation, St. Regis discovered evidence which it believed showed that Bower’s patent was invalid. St. Regis stopped paying royalties after July 19,1967. On April 24, 1968, St. Regis brought this action against Royal and Plas-Ties to declare the Bower patent invalid, to rescind the license agreement, and to recover royalties it paid. In a counterclaim, Royal sued St. Regis for patent infringement. The District Court held the Bower patent invalid. It also dismissed Royal’s counterclaim. The Court held that St. Regis was entitled to rescind the license agreement, but denied St. Regis and Royal a money judgment against the other. In other words, the Court held that St. Regis could not recover the royalties it had paid, and Royal could not collect additional royalties under the license agreement. The Court awarded Royal the reasonable value of its know-how, but found that this amount had been fully satisfied by St. Regis. Both parties have appealed. The appeals raise four issues: (1) Is the Bower patent valid? (2) If the Bower patent is invalid, is St. Regis entitled to recover royalties it paid to use. the patent? (3) If the Bower patent is invalid, is Royal entitled to recover royalties for its know-how? (4) Is St. Regis entitled to attorney fees? I. VALIDITY OF THE PATENT The District Court held that the Bower patent was invalid for obviousness and because of a false oath, which failed to disclose that the patented product had been on sale for more than one year prior to the filing of the patent application. A condition of patentability under the Patent Act of 1952 is non-obviousness. Section 103 of the Act provides: “A patent may not be obtained . if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” 35 U.S.C. § 103. Royal contends on appeal that the District Court failed to apply the proper standard for determining obviousness. The issue of obviousness is ultimately a question of law, but the underlying analysis is one of fact. Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). The Supreme Court in Graham set forth the standard for determining obviousness under Section 103. The court must determine the scope and content of the prior art, the differences between the prior art and the claims at issue, and the level of ordinary skill in the pertinent art. Here, the District Court determined that the prior art consisted of two lines of teachings. One consisted of tie strips manufactured and sold for more than a year before Bower applied for his patent. The other consisted of seven patents which teach the use of a cementitious substance to bind wire or cord between two sheets of paper or other material. The Court compared the teachings of the prior art with the claims of the Bower patent. It found that it was undisputed that tie strips manufactured and sold by Plas-Ties for more than a year before Bower applied for his patent were identical to the claims of the Bower patent, except for the use of a “cementitious coating” in the Bower patent to bind the wire to the plastic strips. And the Court found that the Wisbrock, Schindler, Crosby, Wick, and French patents teach the use of a cementitious substance to secure wire or cord between pieces of paper or other materials in the same manner and for the same purpose as the Bower patent. Finally, the Court accepted the testimony of St. Regis’s expert witness (Dean Fischer) on the level of skill in the art. Fischer testified that in view of prior teachings and the prior public use of unbonded tie strips, the product claimed in the Bower patent would have been obvious to a person of ordinary skill in the art. Royal also argues that the Court failed to give proper weight to the presumed validity of a patent. Any such presumption would disappear, or at least be weakened, when it is shown that all the prior art had not been brought to the attention of the patent examiner. 35 U.S.C. § 282; Alcor Aviation, Inc. v. Radair, Inc., 527 F.2d 113, 115 (9th Cir. 1975), cert. denied, 426 U.S. 949, 96 S.Ct. 3170, 49 L.Ed.2d 1186 (1976). Claim 1 of the Bower patent describes a product which depends both on the position of the wire (embedded in one of the plastic strips) and the use of a “cementitious coating” to bind the wire to the plastic strips. The District Court, based on the file wrapper, found that the patent examiner was persuaded to allow claim 1, not because of the cementitious coating, but by the argument that Bower’s positioning of the wire was a novel solution to the problem of enabling the plastic to get a good grip on the wire. Nevertheless, at the trial Royal did not dispute that more than a year before the patent application, Plas-Ties manufactured and sold tie strips which conformed in every respect to the claims of the Bower patent except for the use of a cementitious coating on the wire. These findings at least raised an issue whether Bower misrepresented the state of the prior art in his patent application and weakened the presumption of validity. See Monroe Auto Equipment Co. v. Superior Industries, Inc., 332 F.2d 473, 482 (9th Cir.), cert. denied, 379 U.S. 901, 85 S.Ct. 190, 13 L.Ed.2d 175 (1964). We hold that the Bower patent is invalid for obviousness. Because we affirm the District Court’s holding of invalidity for obviousness, we need not reach the second ground, Bower’s false oath. II. THE LICENSE AGREEMENT Under the license agreement, Royal licensed St. Regis to manufacture plastic tie strips using the Bower patent and Royal’s know-how. In return, St. Regis agreed to pay Royal 10 per cent of net dollar sales in royalties. The agreement provided for the possibility that the Bower patent might be declared invalid. Section 12(b)(1) of the agreement stated: “12. This agreement shall terminate upon the expiration of United States Patent No. 2,767,113, which is October 16, 1973, unless sooner terminated as hereinafter provided . (b) Pollock may terminate this agreement after the expiration of three years from the effective date of this agreement by serving six months written notice on Royal to that effect, in the event that: (1) Said Patent No. 2,767,113 is held invalid or so restricted in scope as to substantially lessen the protection of said patent by the final judgment of a court from which no appeal has been or can be taken . . . .” St. Regis stopped all royalty payments on the basis of Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969), but it did not comply with the procedure for terminating the agreement set out in section 12(b)(1). The District Court held that section 12(b)(1) of the agreement was unenforceable under Lear, and that St. Regis did not have to pay royalties after the filing of this action. The Court also held that St. Regis was entitled to rescind the agreement because the patent was invalid and because Bower knew the patent was invalid, which knowledge was imputed to Royal. The Court found that Royal was entitled to compensation for the know-how it conveyed to St. Regis and fixed the value of the know-how at $53,088.90. But the Court denied Royal payment on the ground that this amount had been fully satisfied by the royalty payments of more than $174,000, which St. Regis had paid Royal from 1963 to 1967. The Court disallowed St. Regis’s claim for royalties paid before this action was filed. A. Refund of Royalties Paid In Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969), the Supreme Court rejected the doctrine of licensee estoppel which prohibited a licensee from challenging the validity of his licensor’s patent in an action for royalties under the license agreement. Under the Lear doctrine, a licensee can avoid payment of royalties withheld before the patent was declared invalid. The question here is whether a licensee can recover royalties on a patent paid before filing an action in which the patent was found to be invalid. The Court in Lear was not faced with this issue because the licensee had paid no royalties after the patent was issued. St. Regis contends that under California law it is entitled to restitution of all royalties paid to Royal under the license agreement less the value of Royal’s know-how. St. Regis relies on California Civil Code, Section 1692, which it contends provides for “automatic” restitution of benefits conferred when a contract is rescinded. Section 1692 provides: “§ 1692 Relief based on rescission The aggrieved party shall be awarded complete relief, including restitution of benefits, if any, conferred by him as a result of the transaction and any consequential damages to which he is entitled; but such relief shall not include duplicate or inconsistent items of discovery. If in an action or proceeding a party seeks relief based upon rescission, the court may require the party to whom such relief is granted to make any compensation to the other which justice may require and may otherwise in its judgment adjust the equities between the parties.” Section 1692 was designed to eliminate the confusing and complex duality of rescission procedures which existed in California by providing a single procedure to be followed in all cases where rescission is sought. Runyan v. Pacific Air Industries, Inc., 2 Cal.3d 304, 85 Cal.Rptr. 138, 466 P.2d 682 (1970). The provision permits a court in an action for rescission to grant any relief, including restitution and consequential damages, to which a party is entitled. It does not require restitution even when rescission is ordered. Restitution is discretionary with the court. We believe that St. Regis is not entitled to restitution in this case due to overriding federal patent law policies. The Sixth Circuit considered the Lear doctrine in light of the goals sought to be achieved and concluded that the federal policy which permits a licensee to assert invalidity of the underlying patent does not entitle the licensee to a refund of all royalties paid for the use of the invalid patent. See Troxel Mfg. Co. v. Schwinn Bicycle Co., 465 F.2d 1253 (6th Cir. 1972) (Troxel I); Troxel Mfg. Co. v. Schwinn Bicycle Co., 489 F.2d 968 (6th Cir. 1973), cert. denied, 416 U.S. 939, 94 S.Ct. 1942, 40 L.Ed.2d 290 (1974) (Troxel II); Atlas Chemical Industries, Inc. v. Moraine Products, 509 F.2d 1 (6th Cir. 1974). See also Zenith Laboratories, Inc. v. Carter-Wallace, Inc., 530 F.2d 508 (3d Cir. 1976), cert. denied, 429 U.S. 828, 97 S.Ct. 85, 50 L.Ed.2d 91 (1976). The Sixth Circuit noted that the Supreme Court in Lear rejected the estoppel doctrine on the ground that it effectively “muzzled” licensees who might be the only individuals with sufficient economic incentive to challenge the patentability of an invention. As stated in Lear, supra, 395 U.S. at 668, 89 S.Ct. at 1910 “federal law requires that all ideas in general circulation be dedicated to the common good unless they are protected by a valid patent.” This policy encourages full and free competition in the use of ideas which are in the public domain. Lear, therefore, is an inducement to an early adjudication of invalidity; but the Sixth Circuit cautioned that the possibility of a royalty refund might delay such a determination. The possibility of obtaining a refund of all royalties paid might induce a manufacturer to accept a license based on a patent of doubtful validity, derive the benefits of suppressed competition which the patent affords, and challenge validity only after the patent’s expiration. The licensee would have a chance to regain all the royalties paid while having enjoyed the fruits of the license agreement. Therefore, if a refund were permitted, licensees who were only recently unmuzzled by Lear would again be silenced by economic self-interest rather than by state law. We agree with the reasoning of the Sixth Circuit, and we hold that St. Regis is not entitled to the refund of royalties paid before it challenged the validity of the patent. In Troxel I, supra, at 1259, n. 5, the Court noted that it has been held without reliance on Lear that a licensee is entitled to recover royalties paid when the licensed patent was procured fraudulently. St. Regis, relying on that comment, asserts that it is entitled to restitution because Bower obtained the patent by fraud. Even if fraud is a proper basis for allowing recovery of royalties, here the District Court found there was no fraud. The findings of the Court on this issue are not clearly erroneous. B. Payment for Know-How Royal contends that the District Court erred when it held section 12(b)(1) unenforceable. It asserts that the Court failed to distinguish between the payment of royalties for the patent rights and payment for the know-how. Royal concedes that if the patent is invalid, it is not entitled to the payment of royalties for the patent rights on the basis of section 12(b)(1); but it contends that section 12(b)(1) is valid and enforceable on royalties for know-how. RoyaFs know-how consisted of the knowledge of how the machinery used to manufacture plastic tie strips was constructed, and how this machinery operated. It included detailed information of the process for manufacturing the patented tie strips, a list of material suppliers, and work room dimensions. An employee of St. Regis spent several weeks at Royal’s plant studying the manufacturing process. The District Court found that this know-how was fully revealed to St. Regis. The Court found that Royal’s know-how was not essential to the manufacture of the patented plastic tie strips, but was valuable to St. Regis because it permitted St. Regis to enter the plastic tie market sooner. St. Regis bargained both for the right to use the Bower patent and for the know-how needed to use the patent effectively. The know-how was closely related to the patent rights. This interdependence is reflected in the provision sought to be enforced. Section 12(b)(1) provides that St. Regis may terminate the agreement if the patent is declared invalid. Royal’s attempt to separate the know-how from the patent rights and to enforce the agreement for know-how alone is inconsistent with section 12(b)(1) and, we believe, contrary to the intent of the parties. When, as here, the patent rights and the know-how are so intimately intertwined, we believe that the same rule which makes royalties for patent rights uncollectible if the patent is invalid should apply with equal force to know-how. This does not mean Royal will be deprived of compensation for know-how; it merely means Royal is not entitled to royalties under the license agreement, which did not distinguish between royalties for patent rights and royalties for know-how. Royal urges us to address the broader question whether a contract for the payment of royalties for know-how is enforceable under Lear. But here we do not have a naked know-how license. In our view, the patent rights and know-how here are so intertwined that it would be unreasonable to enforce the agreement for one and not the other. We hold that section 12(b)(1) is unenforceable for both the patent rights and the know-how. Nevertheless, we believe that Royal is entitled to compensation for its know-how. The District Court valued the know-how at $53,088.90. Royal asserts it is worth much more. Although the Court ordered the contract rescinded, Royal urges us to value the know-how at one-half of the royalty rate because the parties placed this value on the know-how in discussions before the contract was executed. The contract as executed does not contain any such valuation. And the Court, after ordering rescission, was not required to place this value on the know-how even if it had been agreed to. Royal did not offer any other evidence on value. St. Regis suggested that the know-how be valued at $53,088.90, which represents a $20,000 advance on royalties paid by St. Regis before Royal permitted access to its know-how and one-half of the royalties paid through the second quarter of 1965, at which point the value of the know-how to St. Regis had become de minimus. The District Court accepted this valuation. In our view, it is fairly generous. And in any event, it was the only evidence on the value of the know-how before the Court. The Court had a rational basis for this valuation, and we affirm this holding. III. ATTORNEY FEES In exceptional patent cases, the court may award reasonable attorney fees to the prevailing party. 35 U.S.C. § 285. St. Regis contends that this is an exceptional case and that it is entitled to attorney fees. St. Regis asserts there are two factors which make this an exceptional case: Bower obtained his patent by fraud or material misrepresentation; and Royal knew or should have known that the Bower patent was invalid long before this litigation and yet it vigorously prosecuted this action. The District Court rejected St. Regis’s contentions and found that Bower’s representations to the Patent Office were not motivated by fraudulent intent and that Royal had no knowledge of the infirmity of the Bower patent before trial. The award of attorney fees is a matter of discretion, and a trial court may not be reversed except for abuse of discretion. Hayes Spray Gun Co. v. E. C. Brown Co., 291 F.2d 319, 327 (9th Cir. 1961); Pickering v. Holman, 459 F.2d 403, 408 (9th Cir. 1972). There was no abuse here. The judgment of the District Court is affirmed in all respects. . Royal Industries v. St. Regis Paper Co., 420 F.2d 449 (9th Cir. 1969). Royal brought the action against St. Regis for patent infringement and unfair competition. The District Court granted St. Regis’s motion for summary judgment, and we affirmed on appeal. . Wisbrock patent, U.S. Patent No. 1,474,699; Schindler patents, U.S. Patent Nos. 1,910,510, 1,929,903 and 2,290,386; Crosby patent, U.S. Patent No. 2,577,843; Wick et al. patent, U.S. Patent No. 2,228,332; French patent, U.S. Patent No. 918,218. . “1. A plant-tie comprising: two ribbons of polyvinyl chloride joined face to face in parallel to form a unified strip; a wire disposed between said ribbons lengthwise thereof; one of said ribbons being flat and the other of said ribbons having a channel at least as deep as the diameter of said wire, in which said wire is embedded; and a cementitious coating on said wire for bonding said wire to said ribbons.” . The patent examiner at first rejected claims 1-4 of Bower’s patent application. He was later persuaded to allow claim 4, which became claim 1 of the issued patent. . In Lear, the license agreement was entered into before a patent issued. Lear, the licensee, terminated all payment of royalties before the issuance of the patent. The Court held that Lear could avoid payment of royalties from the date of the issuance of the patent. In this case the license agreement was entered into more than six years after the patent issued. St. Regis paid royalties after the patent had issued, from 1963 to 1967, and it seeks to recover those royalties. . St. Regis contends that this issue was not properly raised on appeal because Royal made a binding election of remedies in its counterclaim when it implicitly accepted the termination of the license agreement and sued for patent infringement rather than for enforcement of the agreement. We do not agree. Royal did not specifically seek to enforce the agreement in its counterclaim, but the pretrial order lists as an issue whether St. Regis was entitled to rescind the agreement. Royal at the trial asserted that it had a contract with St. Regis, that St. Regis breached the contract, and that Royal was entitled to appropriate relief. This was sufficient to prevent Royal from being precluded from seeking to enforce the license agreement on appeal. 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_genapel2

G

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant. MONTGOMERY et al. v. ATCHISON, T. & S. F. RY. CO. No. 1473. Circuit Court of Appeals, Tenth Circuit. March 26, 1937. Suits & Jeffrey, of Oklahoma City, Okl., and Gordon Stater, of Los Angeles, Cal., for appellants. Robert M. Rainey, Streeter B. Flynn, and Geo. M. Green, all of Oklahoma City, Okl., for appellee. Before PHILLIPS and BRATTON, Circuit Judges, and JOHNSON, District Judge. BRATTON, Circuit Judge. This is an action to recover damages from the Atchison, Topeka & Santa Fé Railway Company for the asserted wrongful discontinuance and removal of a switch or industrial track, and for the alleged wrongful obstruction o'f a roadway over and across the right of way of the company. These facts were set forth in the amended petition with its attached exhibits: Plaintiffs own lots 25 and 26 in block 7 in Oklahoma City. The city passed ordinance No. 203 in 1899, authorizing the company to build, maintain, and operate a switch in the alley running east and west through block 7, beginning at the west line of the company’s right of way and extending west to the west line of lot 5. It provided that the company should cease to operate the switch upon the desire and request of the owners of two-thirds of the abutting property. The switch was built in 1899, and the property owners have not requested its discontinuance and removal. The city and the company entered into a contract in 1927, which provided for the elevation of the tracks of the company in order to eliminate grade crossings. The contract expressly provided that it was subject to the approval of the Corporation Commission of the state. While engaged considering the matter of the elimination of grade crossings within the city, the commission took up the contract. Hearings were conducted and in January, 1931, the commission entered its order disapproving the contract, but directing and ordering the company to elevate its tracks and construct specified subways at First, Second, Third, Fourth, Fifth, Sixth, Fifteenth, Seventeenth, and Main streets, and at Chickasaw, Choctaw, Grand, and Reno avenues, in accordance with its plan Z-3. In March thereafter, the city passed ordinance No. 4201 granting the company the right and authority to construct, maintain, and operate an elevated track in the alley. The ordinance provided that it should not become effective unless the company filed a written acceptance of its terms within fifteen days; and the acceptance was filed within that time. The elevated track was not constructed and use of the switch was discontinued in August, 1933. A five-story building was constructed on the lots belonging to plaintiffs and used for wholesale purposes. It was dependent on the switch for the movement of incoming and outgoing freight in connection with the conduct of the business, and it would not have been constructed except for reliance upon the existence, maintenance, and operation of the switch. For about thirty years, a roadway extending southward from the east end of the alley upon and along the right of way to a point of intersection with Main street had been in common use. Plaintiffs and other owners of abutting property had ingress and egress to the alley, and to their property through its use. The company knew of such use and acquiesced in it; and it leased portions of its right of way adjacent to such roadway to persons, firms, and corporations who used the roadway in common with owners of -abutting property and the public. In June, 1934, the company closed the alley at its east end by a barrier or guard consisting of steel rails driven into the ground several feet, and later caused a building to be erected across it. The alley is so narrow that vehicles traveling eastward to and from the property of plaintiffs cannot be turned around at the east end, it thus becoming a dead-end alley. Plaintiffs and other owners of abutting property were thus denied use of the roadway and their- property became bottled up. Plaintiffs’ property suffered a diminution in value as the result of the removal of the switch and the termination of use of the road along the right of way. The court sustained a demurrer to the amended petition. A written election to stand upon the pleading was filed, and judgment was entered dismissing the action. Plaintiffs press the contention that 'the two ordinances and the written acceptance of the latter constituted an agreement between the city and the company for the benefit of the public; that the company wrongfully breached it by discontinuing and removing the switch for which plaintiffs are entitled to recover damages for the decrease in value of their property. The company, as well as its predecessor, the Southern Kansas Railway Company, was organized under the laws of Kansas. Its general corporate functions are the construction, maintenance, and' operation of a commercial railroad system with its tracks, stations, terminal facilities, and rolling equipment. The right essential to the exertion of those general functions was granted by the state of Kansas. The right to construct its lines and engage in business in the then Indian Territory came from the United States, Act July 4, 1884, 23 Stat. 73; and all rights which existed at the time of statehood were continued unaffected by the change in form of government. Oklahoma Constitution, Schedule § 1. The state is the sovereign ordinarily clothed with' authority to grant such a right, not a city or town. The privilege of constructing, maintaining, and operating the switch or industrial track in question was not essential to the exercise of the general functions and purposes of the corporation. Instead, it was in essence and effect an incidental and local privilege which the city was empowered to grant or withhold. Although such a grant is sometimes inaccurately called a franchise, it is a license in the nature of an easement. McPhee & McGinnity Co. v. Union Pac. R. Co. (C.C.A.) 158 F. 5; Belington & N. R. Co. v. Town of Alston, 54 W.Va. 597, 46 S.E. 612; Lincoln St. Ry. Co. v. City of Lincoln, 61 Neb. 109, 84 N.W. 802; Chicago City Ry. Co. v. People, 73 Ill. 541. It is unnecessary to cite and discuss the cases in which it is held that, if a public service corporation wrongfully ceases to perform its corporate functions, such as the distribution of water, gas, or electric energy during the existence of its franchise, persons who suffer loss in property values as the direct and proximate result of such breach may recover damages, because such cases have no application here. The privilege of constructing, maintaining, and operating the switch as a mere incident to the exercise of the general corporate functions of the company was a license without fixed duration. In the absence of a controlling constitutional provision or statute, the removal of a switch constructed and operated under such a license is no basis in law for the recovery of damages for loss in value of abutting or adjacent property. Jones v. Newport News & M. V. Co. (C.C.A.) 65 F. 736. Our attention has been directed to only one provision of the Constitution or statutes in Oklahoma which relates to the construction and operation of switches or industrial tracks for the benefit of private industries. Section 33, article 9 of the Constitution, provides in substance that, when the Corporation Commission shall reasonably determine that the business of any person, firm, or corporation owning or operating any coal, lead, iron, or zinc mine, sawmill, grain elevator, or other industry is sufficient to justify it, such person, firm, or corporation may, at its own expense, build and keep in repair a switch leading from the railroad to the mine, mill, elevator, or other industry; that the railroad company shall furnish the switch stand, frog, and other necessary materials for making connection with the switch under such reasonable regulations as the commission may prescribe and shall make connection therewith, but the owner of the industry shall pay the actual cost thereof; and that the company shall be subject to a penalty if it fails to furnish and place such materials and operate the switch. Two essentials are requisite to invoke the provisions of that section. One is that the quantity of business be sufficient to justify the switch, and the other is that the owner of the industry defray the expense of construction and repair. Chicago, R. I. & P. Ry. Co. v. State, 23 Okl. 94, 99 P. 901; Atchison, T. & S. F. Ry. Co. v. State, 24 Okl. 616, 104 P. 908; St. Louis & S. F. R. Co. v. Haywood, 25 Okl. 417, 106 P. 862; St. Louis & S. F. R. Co. v. Zalondek, 28 Okl. 746, 115 P. 867; Chicago, R. I. & P. Ry. Co. v. State, 83 Okl. 161, 201 P. 260. Plaintiffs failed to allege the quantity of business which would be furnished or their willingness to bear the cost of maintenance and repair. Manifestly they made no attempt to bring themselves within the requirements of the provision and they do not attempt to invoke its terms. It is urged that the order of the commission required the company to elevate its tracks in accordance with plan Z-3, which included an elevated switch or track in the alley. Conceding that the plan included an elevated switch in the alley, and assuming without deciding that the commission was clothed with authority to require the company to elevate the switch, we do not share that construction of the order. It required the company to elevate its tracks and to construct suitable and proper subways at the intersection of its line of railway with the streets previously enumerated as provided in plan Z-3; but compliance with the plan was confined to elevation at those streets. It did not include the switch. The terms of the order are plain and they lend no support to the argument. The switch was constructed with reference to conditions existing at that time. The thirty-four years which intervened prior to its discontinuance brought rapid growth and wide expansion in Oklahoma City which, in the judgment of the commission, necessitated elevation of the tracks in the interest of public safety and welfare. That elevation made discontinuance of the switch or its elevation inescapable. It was discontinued in such circumstances and tjie company was not subjected to liability for decrease in value of abutting property. Jones v. Newport News & M. V. Co., supra; Otis Elevator Co. v. City of Chicago, 263 Ill. 419, 105 N.E. 338, 52 L.R.A.(N.S.) 192; Palmer v. Delaware, L. & W. R. Co., 277 Pa. 1, 120 A. 668; Helena & L. Smelting & R. Co. v. Northern P. R. Co., 62 Mont. 205, 204 P. 370, 23 A.L.R. 546, and notes. The remaining question is whether by long-continued use plaintiffs and others acquired a prescriptive right of passageway over and along the right of way from the east end of the alley southward to Main street. It is stated in the brief of the company, and not challenged in the reply brief of plaintiffs, that the right of way in question is a part of that acquired under the terms of the Act of July 4, 1884. 23 Stat. 73, supra. That statute expressly vested in the Southern Kansas Railway Company the right to acquire a right of way through the Indian Territory; specified the manner in which the Indian nations should be compensated; and provided that full compensation should be made before the railway was constructed through lands held by individual occupants; that no part of the land granted should be used except for railroad, telegraph, and telephone lines; and that, if any portion should cease to be so used, such portion should revert to the nation of Indians from which it came. Individuals cannot acquire for private purposes a prescriptive right by long use or occupancy in lands which were specifically granted in that manner and with such limitations, without the sanction of the United States. Northern Pacific Ry. Co. v. Smith, 171 U.S. 260, 18 S.Ct. 794, 43 L.Ed. 157; Northern Pacific Ry. Co. v. Townsend, 190 U.S. 267, 23 S.Ct. 671, 47 L.Ed. 1044; Northern Pacific Ry. Co. v. Ely, 197 U.S. 1, 25 S.Ct. 302, 49 L.Ed. 639; Union Pac. R. Co. v. Snow, 231 U.S. 204, 34 S.Ct. 104, 58 L.Ed. 184; Rio Grande Western Ry. Co. v. Stringham, 239 U.S. 44, 36 S.Ct. 5, 60 L.Ed. 136; Great Northern Ry. Co. v. Steinke, 261 U.S. 119, 43 S.Ct. 316, 67 L.Ed. 564; Kindred v. Union Pac. R. Co. (C.C.A.) 168 F. 648; St. Louis-San Francisco Ry. Co. v. McBride, 104 Okl. 216, 231 P. 284. It is not contended that such sanction has been given in any manner. The judgment is 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_fedlaw

D

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. DEERING MILLIKEN RESEARCH CORPORATION, Appellant, v. TEXTURED FIBRES, INC., Virginia Mills, Inc., and Throwing Corporation of America, Appellees. No. 13214. United States Court of Appeals Fourth Circuit. Argued June 9, 1969. Decided Sept. 11, 1969. See also D.C., 302 F.Supp. 487. Kurt Shaffert, New York City (Robert F. Conrad, Washington, D. C., and Thomas A. Evins, and Means, Evins, Browne & Hamilton, Spartanburg, S. C., on the brief), for appellant. Edward P. Perrin, Spartanburg, S. C. (Perrin & Perrin, Spartanburg, S. C., Smith, Moore, Smith, Schell & Hunter, Greensboro, N. C., and Pell & Leviness, New York City, on the brief), for appel-lees. Before HAYNSWORTH, Chief Judge, WINTER and BUTZNER, Circuit Judges. BUTZNER, Circuit Judge: Deering Milliken Research Corp. appeals from an order of the district court quashing service of process on Textured Fibres, Inc., Virginia Mills, Inc., and Throwing Corp. for want of personal jurisdiction. We hold that South Carolina’s long-arm statute confers jurisdiction over a person who breaches a contract after the effective date of the statute, although the contract was made before that date. Accordingly, we reverse and remand. In May 1964, Deering Milliken licensed the defendants to use a process it had developed. The licensees agreed to pay Deering Milliken a percentage of the price of all yarn produced by the process. In its complaint, Deering Milliken alleged a series of underpayments from January 1, 1966 through March 31, 1968. It filed suit in the United States District Court for the District of South Carolina alleging diversity of citizenship and obtaining service of process under South Carolina’s long-arm statute, S. C. Code Ann. § 10.2-801 to -809 (1966), and Fed. R.Civ.P. 4(e). On a motion to quash service of process under Fed.R.Civ.P. 12(b), the district judge held South Carolina’s long-arm statute did not apply to a contract entered into before January 1, 1968. South Carolina's pertinent statutes are: “A court may exercise personal jurisdiction over a person who acts directly or by an agent as to a cause of action arising from the person’s “(g) entry into a contract to be performed in whole or in part by either party in this State * * *." * * * * * * “This act shall become effective at 12:01, January 1, 1968. It applies to transactions entered into and events occurring after that date.” The licensees reason that because entry into a contract is necessary to subject a person to the court’s jurisdiction, entry must also mark the date for application of the long-arm statute. However, we do not read the language of the South Carolina law so restrictively. The provisions governing the effective date are not limited to transactions entered into after January 1, 1968. They also embrace “events occurring after that date.” Literally, the breach of a contract and the simultaneous accrual of a cause of action are events. And, since a literal construction of “events” is consistent with the intention of the South Carolina legislature to expand the state’s jurisdiction, we are not at liberty to deny effect to this part of the statute. Washington Market Co. v. Hoffman, 101 U.S. 112, 115, 25 L.Ed. 782 (1879). Here the alleged underpayments were significant breaches of the licensing agreement, and with each a new cause of action accrued. Those underpayments that occurred after January 1, 1968 were, we hold, events sufficient to bring the long-arm statute into effect. The licensees rely upon Johnson v. Baldwin, 214 S.C. 545, 53 S.E.2d 785 (1949), and related cases, to support their argument that South Carolina does not give retrospective effect to statutes dealing with service of process. But here, in contrast to Johnson, the statute applies prospectively, because the breach of contract that caused the action to accrue occurred after the statute’s effective date. Sampson Constr. Co. v. Farmers Co-op. Elevator Co., 382 F.2d 645, 649 (10th Cir. 1967); Annot., 19 A.L.R.3d 138, 161 (1968). The licensees also argue that since there has been no proof that the alleged underpayments occurring after January 1, 1968 aggregated $10,000, the jurisdictional amount required by 28 U.S.C. § 1331 is lacking. This argument confuses jurisdiction over the person with jurisdictional amount. Once jurisdiction over the person is obtained, tKe entire subject matter of the controversy between the parties comes before the court. Therefore, to determine the jurisdictional amount, the total underpayments, those occurring before and after January 1, 1968 — here alleged to be $45,000 — should be considered. The licensees asserted a number of other grounds in their motion to quash. Since the district judge believed the long-arm statute was inapplicable, he did not pass on them. Some will require findings of fact. In any event, we believe that all should be decided on remand so that piecemeal litigation on appeal may be avoided. Reversed and remanded. . S.C.Code Ann. § 10.2-803(1) (g) (1966). . S.C.Code Ann. § 10.10-101 (1966). This statute fixes the effective date for the entire South Carolina Uniform Commercial Code, -which includes the long-arm statute. . In Johnson v. Baldwin, the court held that a statute providing that a nonresident director of a domestic corporation shall be held to have appointed the Secretary of State as his attorney for service of process could not apply retroactively to sustain jurisdiction over two nonresident directors who had resigned before the effective date of the statute. . Among these issues are additional questions posed by service under the long-arm statute: whether the contract was to he performed in whole or in part by either party in South Carolina, within the meaning of S.C.Code Ann. § 10.2-803(1) (g); and whether' the defendants have the minimum contacts with South Carolina required by the due process clause of the Fourteenth Amendment, International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In the absence of findings of fact necessary for decision of these issues, we express no opinion concerning them. 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_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. GREAT ATLANTIC & PACIFIC TEA CO. v. JONES. No. 5956. United States Court of Appeals Fourth Circuit. Argued Oct. 7, 1949. Decided Oct. 10, 1949. J. E. Belser, Jr., Columbia, S.C., for appellant. Henry H. Edens, Columbia, S.C. (Henry Hammer, Columbia, S.C., on the brief), for appellee. Before PARKER, Chief Judge, and SOPER, and DOBIE, Circuit Judges. PER CURIAM. This appeal is taken from a judgment of the District Court in a case tried without a jury wherein the District Judge found that injuries suffered by the plaintiff in the defendant’s store were caused by the carelessness of one of its employees. Under Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., the findings of the District Judge in such a suit may not be set aside unless clearly erroneous. In our opinion, the conclusion reached by the District Judge was clearly correct. He made in effect the following findings of fact which were fully supported by the evidence. On the occasion of the accident the plaintiff, an elderly woman, was a customer in the store when an employee in the course of his work pushed a truck, mounted on four small wheels and loaded with three cases of oil each weighing twenty-five pounds, to a point near the plaintiff and behind her and slightly to her right. The employee then without observing the plaintiff started to unload the truck and in doing so one of the cases was dislodged and fell upon the plaintiff’s ankle causing painful and serious injuries. From these findings the Judge reached the inevitable conclusion that the injuries were due to the failure of the employee to use due care. The plaintiff had no warning before she was struck and the employee was unable to explain how the case fell upon her ankle. The defendant therefore contends that the plaintiff’s cause must fail because the courts of South Carolina do not recognize the doctrine of res ipsa loquitur. Gilland v. Peter’s Dry Cleaning Co., 195 S.C. 417, 11 S.E.2d 857. It is plain, however, that there is no need for the plaintiff to rely on this doctrine in this case because the evidence clearly shows that the accident was caused by the action of the employee in unloading the truck, and that the fall of the heavy case must have been due to his negligence. At the conclusion of the testimony the judge permitted the plaintiff, over the objection of the defendant, to amend her complaint to show that she was injured not by being run into by the truck, as alleged in the original complaint, but by the fall of the case during the process of unloading the truck, as shown by the testimony of tne defendant’s employee. This ruling of the court was clearly in harmony with Rule 15(a) of the Federal Rules of Gvil Procedure which ' provide that leave to amend shall be freely given when justice so requires. The defendant was not taken by surprise by the amendment for the new matter was furnished by its own witness. The judgment of the District Court is Affirmed. Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:

songer_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). Dawn Elaine BROWN, by and through Gayle (Brown) Marden, as her mother and next friend, et al., Plaintiffs-Appellants, Cross Appellees, v. Dixie Herlong CHASTAIN et al., Defendants-Appellees, Cross Appellants. No. 26848. United States Court of Appeals Fifth Circuit. Aug. 4, 1969. Rehearing Denied and Rehearing En Banc Denied Oct. 2, Tobias Simon, Miami, Fla., for appellants. Thomas C. Britton, County Atty., John G. Fletcher, Joseph D. Komansky, Asst. Co. Attys., Miami, Fla., for appellees. Before RIVES, BELL and DYER, Circuit Judges. DYER, Circuit Judge: We are here presented with the question whether the District Court had jurisdiction to directly review a final determination of federal constitutional questions voluntarily submitted to and decided by the state courts of Florida in connection with litigation pending in the state courts, no review by the United States Supreme Court having been sought. The District Court had no jurisdiction, and we reverse. In 1961 Gayle and James Brown were divorced. Gayle was awarded custody of their child, Dawn Elaine Brown. In 1966 James Brown filed suit in the Juvenile and Domestic Relations Court of Dade County, Florida, and on May 8, 1967, an order was entered changing the custody of the child from the mother to the father. An appeal was filed in the Florida Third District Court of Appeal, but counsel for the mother and child soon discovered that the cost of preparing a transcript of the testimony in the lower court was beyond the financial means of the mother and child. A petition to the Juvenile Court praying that either the State of Florida or the father be required to pay for the transcript was denied; a similar petition in the Court of Appeal was denied; and finally an appeal to the Supreme Court of Florida from the order denying a free transcript was dismissed. No attempt for direct Supreme Court review of the state court decisions through certiorari under 28 U.S.C.A. § 1257 was made. The appellants then filed their complaint in the District Court alleging that the denial by the State of a free transcript for use in their state civil appeal constituted a violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the very same allegation which the state courts had considered and rejected. The complaint prayed for relief in the form of a mandatory injunction requiring the State of Florida to provide a transcript at the expense of the State or the father, or alternatively to strike the order changing the custody of the child. Soon afterwards a hearing was held. In open court the parties stipulated that the facts alleged in the complaint were correct and further that the defendants did not have to file an answer or other response. The District Court then entered judgment on the merits in favor of the defendants based on the pleadings, and this appeal ensued. It is obvious from the complaint and the requested relief that the appellants are here attempting to re-litigate their federal constitutional claims by obtaining a form of direct federal district court review of the state decisions, since independent equitable proceedings to prevent the enforcement of a judgment are considered a direct attack upon it. See Restatement, Judgments § 11, comment a (1942). The District Court was patently without jurisdiction to engage in such a review. As noted in Rooker v. Fidelity Trust Co., 1923, 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362: If the constitutional questions stated in the . . . [complaint] actually arose in the cause, it was the province and duty of the state courts to decide them; and their decision, whether right or wrong, was an exercise of jurisdiction. If the decision was wrong, that did not make the judgment void, but merely left it open to reversal or modification in an appropriate and timely appellate proceeding. Unless and until so reversed or modified, it would be an effective and conclusive adjudication. [Citations omitted] Under the legislation of Congress, no court of the United States other than this [the Supreme] Court could entertain a proceeding to reverse or modify the judgment for errors of that character. [Citations omitted] To do so would be an exercise of appellate jurisdiction. The jurisdiction possessed by the District Courts is strictly original. * * * Id., at 415-416, 44 S.Ct. at 150. As stated in Pilkinton v. Pilkinton, 8 Cir. 1968, 389 F.2d 32, “[i]t is plainly evident that what appellant seeks in this original action is a review by the federal courts of the proceedings of the . . . [Florida] State Courts in the divorce action. Federal courts are without authority to. function as an appellate arm of the state courts.” Id. at 33. The decision of a federal constitutional question by a state court does not warrant a mandatory injunction in the nature of mandamus nor an order striking its decision even if erroneous. “State courts are competent to decide questions arising under the federal constitution, and federal courts most assuredly do not provide a forum in which disgruntled parties can re-litigate federal claims which have been presented to and decided by state courts.” Deane Hill Country Club, Inc. v. City of Knoxville, 6 Cir. 1967, 379 F.2d 321, 325. See generally Evanson v. Northwest Holding Co., 8 Cir. 1966, 368 F.2d 531; Coral Gables First Nat. Bank v. Constructors of Florida, Inc., 5 Cir. 1962, 299 F.2d 736; Hanna v. Home Ins. Co., 5 Cir. 1960, 281 F.2d 298; Norwood v. Parenteau, 8 Cir. 1955, 228 F.2d 148; Parnacher v. Mount, 10 Cir. 1953, 207 F.2d 788, cert. denied, 1954, 347 U.S. 917, 74 S.Ct. 515, 98 L.Ed. 1073; Williams v. Tooke, 5 Cir. 1940, 108 F.2d 758, cert. denied, 1940, 311 U.S. 655, 61 S.Ct. 8, 85 L.Ed. 419; Moran v. Paine, Webber, Jackson & Curtis, W.D.Pa.1967, 279 F.Supp. 573, aff’d 3 Cir. 1968, 389 F.2d 242; Lenske v. Sercombe, D.Or.1967, 266 F.Supp. 609; Chirillo v. Lehman, S.D.N.Y.1940, 38 F.Supp. 65, aff’d 1941, 312 U.S. 662, 61 S.Ct. 741, 85 L.Ed. 1108. See also City of Greenwood v. Peacock, 1966, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944; England v. Louisiana State Bd. of Medical Examiners, 1964, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440; Angel v. Bullington, 1947, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832; Jones v. Hulse, 8 Cir. 1968, 391 F.2d 198; Stevens v. Frick, 2 Cir. 1967, 372 F.2d 378; Tomiyasu v. Golden, 9 Cir. 1966, 358 F.2d 651. Appellants’ reliance upon verbiage in Fay v. Noia, 1963, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, is misplaced. Fay involved a habeas corpus action instituted in the federal district court as an original proceeding for which there is specific statutory authority. Habeas corpus is an exception to ordinary rules of res judicata. See Note, Developments in the Law — Res Judicata, 65 Harv.L.Rev. 818, 851 (1952). Neither do we consider the instant action as a collateral attack rather than direct, since appellants waived the requirement of an answer to the complaint, in which the affirmative defense of res judicata could have been pleaded, and since the defense affirmatively appeared in the body of the complaint itself. The District Court should have dismissed the complaint for lack of jurisdiction to review the state courts’ action rather than entering judgment on the merits. Therefore the case is reversed and remanded to the District Court with instructions to dismiss the complaint for lack of jurisdiction. Reversed and remanded. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:

sc_certreason

L

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. HATAHLEY et al. v. UNITED STATES. No. 231. Argued March 26-27, 1956. Decided May 7, 1956. Norman M. Littell argued the cause for petitioners. With him on the brief were Marvin J. Sonosky and Frederick Bernays Wiener. Roger P. Marquis argued the cause for the United States. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Morton and S. Billingsley Hill. Mr. Justice Clark delivered the opinion of the Court. Petitioners, eight families of Navajo Indians, seek damages under the Federal Tort Claims Act for the destruction of their horses by agents of the Federal Government. The District Court allowed damages of $100,000 and enjoined the Government and its agents from further interference with petitioners. The Court of Appeals for the Tenth Circuit reversed, 220 F. 2d 666, on the ground that the Utah abandoned horse statute, Utah Code Ann., 1953, 47-2, was properly invoked by the government agents. We do not agree with the Court of Appeals. Petitioners are wards of the Government. They have lived from time immemorial in stone and timber hogans on public land in San Juan County, Utah. This bleak area in the southeastern corner of the State is directly north of the Navajo Indian Reservation. While some Indian families from the reservation come into the area to graze their livestock, petitioners claim to have always lived there the year round. They are herdsmen and for generations they have grazed their livestock on this land. They are a simple and primitive people. Their living is derived entirely from their animals, from the little corn they are able to grow in family plots, and the wild game and pine nuts that the land itself affords. The District Court found that horses, as petitioners’ beasts of burden and only means of transportation, were essential to their existence. In 1934 the Government enacted the Taylor Grazing Act, 48 Stat. 1269, 43 U. S. C. § 315, which provided for the regulation and use of these public lands. Grazing permits were issued to white livestock operators, and for a number of years these permittees grazed their livestock in common with petitioners, who continued in peaceable occupation and use of the land they claimed as their ancestral home. Limited forage made disputes between the stockmen and the Indians inevitable, and about 1950 both the Government and the white livestock operators filed suits to remove the Indians from this land. In addition to legal proceedings, another method was employed by the government agents. Beginning in September 1952 and continuing until sometime after the present suit was filed in the District Court, the Department of Interior’s range manager vigorously prosecuted a campaign to round up and destroy petitioners’ horses. This action was taken pursuant to the Utah abandoned horse statute, Utah Code Ann., 1953, 47-2, which provides that the Board of County Commissioners may authorize the elimination of “abandoned” horses on the open range. An “abandoned” horse is defined as one running at large on the open range which is either not branded or, if branded, one on which the tax for the preceding year has not been paid. During the roundup a total of 115 horses and 38 burros belonging to petitioners were taken and sold or destroyed. Some horses were sold locally. Some were shot and their carcasses left on the range. Most of the animals, however, were trucked some 350 miles away to Provo, Utah, where they were sold to a horse-meat plant or a glue factory. The total amount derived from such sales, about $1,700, has been retained by the District Advisory Board composed of local stockmen. No part of it has been paid or offered to petitioners. There is considerable evidence in the record to show that the Utah abandoned horse statute was applied dis-criminatorily against the Indians. In one instance the assistant range'manager watched from a bluff while petitioner Hosteen Sakezzie released his horses from their corral. Later, a short distance away, the same government agent supervised a roundup of these horses and drove them 35 miles through the night to another corral from which they were loaded into trucks for the horse-meat plant. Sakezzie and three other Indians trailed the horses to the entrucking point but were not allowed to reclaim them. On another occasion five horses taken during the roundup which belonged to white stockmen were returned to their owners on the payment of a nominal $2.50 a head, but petitioner Little Wagon was told that to reclaim his horses the charge would be $60 a head, an amount known to be far above his means. For the most part, these and other facts found by the District Court were unchallenged in the Court of Appeals and are unchallenged here. The Court of Appeals did not reach the question of liability under the Federal Tort Claims Act, since it concluded that the government agents’ actions were authorized by the Utah abandoned horse statute. We cannot dispose of this case so easily. The Taylor Grazing Act seeks to provide the most beneficial use of the public range and to protect grazing rights in the districts it creates. Chournos v. United States, 193 F. 2d 321. Section 2 of the Act, 48 Stat. 1270, 43 U. S. C. § 315a, provides that the Secretary of the Interior shall “make such rules and regulations . . . and do any and all things necessary to accomplish the purposes of this Act.” Pursuant to this authorization the Secretary has issued the Federal Range Code, 43 CFR § 161.1 et seq. Unauthorized grazing on the federal range and the removal of trespassing livestock is expressly provided for by § 161.11 (b) of this Code: “(b) Unlawful grazing on Federal range; removal of livestock; impoundment. Whenever the charge consists of unlawfully grazing livestock on the Federal range, the notice served on the alleged violator . . . will order the alleged violator to remove the livestock or to cause them to be removed immediately or within such reasonable time as may be specified. If the alleged violator fails to comply with the notice the range manager may proceed to exercise the proprietary right of the United States in the Federal range, under local impoundment law and procedure, if practicable; otherwise he may refer the matter through the usual channels for appropriate legal action by the United States against the violator.” Whenever the charge consists of unlawfully grazing livestock, this section requires that written notice, as provided by § 161.11 (a), together with an order to remove the livestock, be served on the alleged violator. Only “if the alleged violator fails to comply with the notice” may the range manager proceed under local impoundment law and procedure. It is clear that both the written notice and failure to comply are express conditions precedent to the employment of local procedures. The Code is, of course, the law of the range, and the activities of federal agents are controlled by its provisions. They are required to follow the procedures there established. The Court of Appeals held that there was no inconsistency between the federal regulation and the state statute because the regulation pertained to individual owners while the statute was aimed at “abandoned” horses running loose on the range. We cannot agree. As we read it, the Utah statute is directed not to horses abandoned in the sense that they are ownerless, or that their owners cannot be located, but rather to horses considered “abandoned” under an express statutory definition. As applied to horses “at large upon the open range,” this definition depends only on branding and payment of prior tax assessment without any consideration of whether the horses are owned by someone and, if so, whether such owner is known or can be located. As the Court of Appeals itself recognized: “The dictionary definition of the term ‘abandoned’ has no application.” 220 F. 2d, at 672. Furthermore, the record is replete with evidence that in this case the government agents actually did know that the horses belonged to petitioners and had not been abandoned. The District Court found that, “said agents knew beyond any possible doubt to whom said horses belonged”; that “the said agents and employees of defendant knew these brands to be the brands used by plaintiffs as well as they knew that the horses belonged to plaintiffs”; and concluded that the horses “were used daily in the performance of the work of their owners, the plaintiffs, and this was well known by defendant’s said agents and employees.” In the face of these findings, not disturbed by the Court of Appeals, it cannot be contended that the government agents were unable to comply with the specific provision for notice which regulated their actions. Nor has the Government contended that there was an attempt at any time to comply with the notice provisions of the Federal Range Code. For these reasons we hold that the Utah abandoned horse statute was not properly invoked. The circumstances of this case were specifically provided for by § 161.11 (b) of the Federal Range Code, and the government agents failed to comply with the terms of that section because the requisite notice was not given. But, having concluded that there was no statutory authority, we are faced with the question whether the Government is liable under the Federal Tort Claims Act for wrongful and tortious acts of its employees committed in an attempt to enforce a federal statute which they administer. We believe there is such liability in the circumstances of this case. Section 1346 (b) of Title 28, United States Code, authorizes suits against the Government for “loss of property . . . caused by the negligent or wrongful act . . . of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act . . . occurred.” It is clear that the federal agents here were acting within the scope of their •employment under both state and federal law. Under the law of Utah an employer is liable to third persons for the willful torts of his employees if the acts are committed in furtherance of the employer’s interests or if the use of force could have been contemplated in the employment. Cf. Barney v. Jewel Tea Co., 104 Utah 292, 139 P. 2d 878. Both of these conditions obtained here. The federal agents were attempting to enforce the federal range law, and such enforcement must contemplate at least the force used in removal of stock from the range. The fact that the agents did not have actual authority for the procedure they employed does not affect liability. There is an area, albeit a narrow one, in which a government agent, like a private agent, can act beyond his actual authority and yet within the scope of his employment. We note also that § 1346 (b) provides for liability for “wrongful” as well as “negligent” acts. In an earlier case the Court has pointed out that the addition of this word was intended to include situations like this involving “ ‘trespasses’ which might not be considered strictly negligent.” Dalehite v. United States, 346 U. S. 15, 45. Nor does 28 U. S. C. § 2680 bar liability here. This section provides that: “The provisions of this chapter and section 1346 (b) of this title shall not apply to— “ ('a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” The first portion of section (a) cannot apply here, since the government agents were not exercising due care in their enforcement of the federal law. “Due care” implies at least some minimal concern for the rights of others. Here, the agents proceeded with complete disregard for the property rights of the petitioners. Nor can the second portion of (a) exempt the Government from liability. We are here not concerned with any problem of a “discretionary function” under the Act, see Dalehite v. United States, supra. These acts were wrongful trespasses not involving discretion on the part of the agents, and they do give rise to a claim compensable under the Federal Tort Claims Act. The District Court awarded damages in the lump sum of $100,000, the amount sought by petitioners jointly. Apparently this award was based on the value of the horses, consequential damages for deprivation of use and for “mental pain and suffering.” Under the Federal Tort Claims Act, damages are determined by the law of the State where the tortious act was committed, 28 U. S. C. § 1346 (b), subject to the limitations that the United States shall not be liable for “interest prior to judgment or for punitive damages,” 28 U. S. C. § 2674. But it is necessary in any case that the findings of damages be made with sufficient particularity so that they may be reviewed. Here the District Court merely awarded the amount prayed for in the complaint. There was no attempt to allot any particular sum to any of the 30 plaintiffs, who owned varying numbers of horses and burros. There can be no apportionment of the award among the petitioners unless it be assumed that the horses were valued equally, the burros equally, and some assumption is made as to the consequential damages and pain and suffering of each petitioner. These assumptions cannot be made in the absence of pertinent findings, and the findings here are totally inadequate for review. The case must be remanded to the District Court for the appropriate findings in this regard. Since the District Court did not possess the power to enjoin the United States, neither can it enjoin the individual agents of the United States over whom it never acquired personal jurisdiction. That part of the Court of Appeals judgment dissolving the injunction is affirmed. The remainder of the judgment is reversed and remanded to the District Court for proceedings not inconsistent with this opinion. Reversed and remanded. For example, No. 13 of the Findings of Fact made by the District Court states: “Wood is the only fuel available to plaintiffs as a fuel for their fires, and it is necessary at certain times to travel by horse up to 15 or 20 miles to drag or haul wood to the camps or hogans. Water is also scarce and this must be carried by horse and burro for distances up to 10 miles from the camps. Trips to reach the pine nuts areas often require trips by horse for 150 miles, and to reach sites of certain ceremonies and other functions among the Navajo people often require plaintiffs and their families to travel on their horses for 150 miles. Seventy-five mile trips are required in their hunting expeditions which can only be done on horses. That the same use is made of burros as of horses by plaintiffs and the burro is held in the same esteem by them as are horses.” The suit by the United States was dismissed by the District Court, 93 F. Supp. 745. The Court of Appeals reversed the dismissal and reinstated the complaint, United States v. Hosteen Tse-Kesi, 191 F. 2d 518. The suit was later dismissed by the District Court on June 27, 1953, for the reason that it was moot because the Indians had moved to the reservation and were no longer on the public lands. The suit brought by several white stockmen in a Utah state court resulted in an order enjoining certain Navajo Indians, including some of the petitioners, from trespassing and grazing livestock on the lands in question. Young v. Felornia, 121 Utah 646, 244 P. 2d 862. A petition for certiorari in this suit was pending before this Court at the time the roundup was started. Certiorari was subsequently denied, 344 U. S. 886. While the Government does not challenge particular findings, it does level a general charge that the trial was conducted in such an atmosphere of bias and prejudice that no factual conclusions of the court should be relied on. The Court of Appeals noted “that the case was tried in an atmosphere of maximum emotion and a minimum of judicial impartiality.” 220 F. 2d, at 670. After oral argument and a thorough consideration of the record, however, we do not find that the trial was conducted so improperly as to vitiate these findings. See Labor Board v. Donnelly Co., 330 U. S. 219, 236-237. “§161.11 Procedure for enforcement of rules and regulations— (a) Service of notice. Whenever it appears that there has been any willful violation of any provision of the act or of the Federal Range Code for Grazing Districts, the range manager will cause the alleged violator ... to be served with a written notice, which will set forth the act or acts constituting such violation and in which reference will be made to the provision or provisions of the act or the Federal Range Code for Grazing Districts alleged to have been violated. Such notice may be served in person or by registered mail and the affidavit of the person making personal service or the registry receipt shall be preserved.” Section 16 of the Taylor Grazing Act, 48 Stat. 1275, 43 U. S. C. § 315n, reserves the power of the States to enforce “statutes enacted for police regulation” on the public range. Section 161.11 (b) of the Range Code provides the exclusive procedure for the invocation of such state statutes by federal agents. 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:

sc_casesource

059

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. INDIANA EMPLOYMENT SECURITY DIVISION et al. v. BURNEY No. 71-1119. Argued December 7, 1972 Decided January 17, 1973 Darrel K. Diamond, Deputy Attorney General of Indiana, argued the cause for appellants. With him on the briefs was Theodore L. Sendalc, Attorney General. Ivan E. Bodensteiner argued the cause for appellee. With him on the brief were Stephen P. Berzon, Stefan M. Rosenzweig, and Fred H. Altshuler. Briefs of amici curiae urging reversal were filed by Evelle J. Younger, Attorney General, Elizabeth Palmer, Assistant Attorney General, and Asher Rubin, Deputy Attorney General, for the State of California, and by Harry T. Ice for College University Corp. et al. Briefs of amici curiae urging affirmance were filed by J. Albert Woll, Laurence Gold, and Thomas E. Harris for the American Federation of Labor and Congress of Industrial Organizations, and by Dennis R. Yeager, E. Richard Larson, Howard I. Rosenberg, James H. Seck-inger, John M. Levy, Marttie Louis Thompson, Joseph A. Matera, C. Christopher Brown, and C. Lyonel Jones for National Employment Law Project et al. Per Curiam. We noted probable jurisdiction in this case, 406 U. S. 956, to review the judgment of a three-judge district court, holding that Indiana’s system of administering unemployment insurance was in conflict with § 303 (a)(1) of the Social Security Act, 49 Stat. 626, as amended, 42 U. S. C. §503 (a)(1). Before the three-judge court entered its injunction, Indiana’s practice was to discontinue unemployment benefits upon a determination of ineligibility, that determination taking place without the benefit of a full hearing for the erstwhile beneficiary. After several months of effort, however, the class representative in this litigation, Mrs. Burney, succeeded in obtaining a reversal of the initial determination of ineligibility. She has now received full retroactive compensation. The full settlement of Mrs. Burney’s financial claim raises the question whether there continues to be a case or controversy in this lawsuit. Though the appellee purports to represent a class of all present and future recipients of unemployment insurance, there are no named representatives of the class except Mrs. Burney, who has been paid. Cf. Bailey v. Patterson, 369 U. S. 31, 32-33. Accordingly, the judgment is vacated and the case is remanded to the District Court to consider whether it has become moot. It is so ordered. The three-judge court was convened pursuant to 28 U. S. C. §§ 2281, 2284, to consider the prayer for an injunction against enforcement of the Indiana statute, Ind. Ann. Stat. § 52M542a (e) (Supp. 1970), on the grounds that it violated the appellee’s right to due process under the Fourteenth Amendment. The District Court did not reach this issue. The District Court entered a temporary restraining order against the appellants on May 7,1971. Presumably, the appellee’s payments were then restored pending the outcome of her hearing before a referee, which took place, on July 1, 1971. On July 13, 1971, the referee affirmed the determination of ineligibility. Mrs. Burney then appealed to the Division Review Board. After the judgment and injunction were entered by the District Court, the Review Board reversed the referee and awarded payments to Mrs. Burney. This latter determination was unrelated to the injunction. Question: What is the court whose decision the Supreme Court reviewed? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims Answer:

songer_casetyp1_1-3-2

A

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "criminal - state offense". Edna Mae BOOKER, Appellant, v. Miriam B. PHILLIPS, Superintendent, Kansas State Industrial Reformatory for Women, Appellee. No. 132-68. United States Court of Appeals Tenth Circuit. Nov. 12, 1969. Russell Shultz, Wichita, Kan., for appellant. Edward G. Collister, Jr., Asst. Atty. Gen., Topeka, Kan. (Kent Frizzell, Atty. Gen., Topeka, Kan., on the brief), for appellee. Before BREITENSTEIN, HILL and HOLLOWAY. Circuit Judges. HILL, Circuit Judge. Edna Mae Booker filed this petition for habeas corpus seeking release from the Kansas State Industrial Farm for Women. The district court, without conducting an evidentiary hearing, denied the writ and dismissed the petition. We are thus faced with the question of whether the court erred in determining that appellant’s present conviction was not obtained in violation of that portion of the Fifth Amendment that protects an individual against being twice placed in jeopardy for the same criminal offense. In March, 1965, the appellant was charged in the district court of Sedgwick County, Kansas, with the first degree murder of her husband. She entered a plea of not guilty and both sides presented evidence to the jury. The jury was then instructed that the charge of first degree murder encompassed the lesser included offenses of second degree murder and first, third and fourth degree manslaughter. After deliberation, the jury found appellant guilty of first degree manslaughter. On appeal it was determined that an instruction relating to the carrying of a concealed weapon was erroneous and the conviction was reversed. State v. Booker, 197 Kan. 13, 415 P.2d 411 (1966). On remand the appellant was again charged with first degree murder. However, before the second trial began, the defense of double jeopardy was raised based on the contention that appellant could not be reprosecuted for any degree of homicide greater than first degree manslaughter. The objection was overruled, appellant was once more tried for first degree murder, and was again convicted of first degree manslaughter. In a second appeal to the Kansas Supreme Court, the double jeopardy defense was rejected and the sentence which appellant is presently serving was approved. State v. Booker, 200 Kan. 166, 434 P.2d 801 (1967). Subsequent to this decision of the Kansas Supreme Court and the decision of the district court in this case, the Supreme Court held in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L. Ed.2d 707 (1969) that the Fifth Amendment guarantee against double jeopardy applies to the states through the Fourteenth Amendment. Justifiably, those two distinguished courts relied upon the law as enunciated by Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288, and the line of cases following, but which cases are now overruled by the Benton case. Accordingly, it is now clear that the validity of appellant’s conviction must be judged under the federal double jeopardy standards enunciated inter alia, in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). That case invalidated a conviction for first degree murder obtained in a retrial after a previous conviction for second degree murder had been reversed on appeal. The Court observed: “[T]his second trial for first degree murder placed Green in jeopardy twice for the same offense in violation of the Constitution. Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gantlet once on that charge and the jury refused to convict him. * * * Therefore * * * Green’s jeopardy for first degree murder came to an end when the jury was discharged so that he could not be retried for that offense.” 355 U.S. at 190-191, 78 S.Ct. at 225. Similarly, in the case at bar, appellant was forced to run the gantlet for first and second degree murder at the first trial and could not thereafter be required to run the gantlet again. Consequently, the second trial for first degree murder after a previous conviction for manslaughter had been reversed, was in direct violation of the Fifth Amendment and cannot stand. The fact that unlike the situation in Green v. United States, the appellant here has not been convicted of a greater offense at the second trial is of no consequence. In United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844 (2d Cir. 1965) the then Circuit Judge Marshall squarely faced this issue and concluded that a defendant convicted of second degree murder, retried for first degree murder, and again convicted of second degree murder, had been twice placed in jeopardy. The reasoning underlying that conclusion is aptly stated in that opinion and need not be repeated here, except perhaps to note that it is not the conviction of the greater offense but the reprosecution for the offense that is repugnant to the Constitution. Stated conversely, it is not important that the defendant may have successfully run the gantlet for a second time; what is critical is that he should not have been required to run again at all. “[T]he State was constitutionally forbidden to prosecute him for first degree murder following the completion of the first trial.” 348 F.2d at 864. There remains for consideration the question of whether the holding in Benton should be denied retroactive effect. “We * * * must resolve the problem with full recognition that only the Supreme Court can give the final answer.” Gaitan v. United States, 317 F.2d 494, 497 (10th Cir. 1963). Since Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Supreme Court has reviewed the retroactivity of decisions expounding new constitutional rules affecting criminal trials as a function of three criteria: (1) the purpose to be served by the new standards, (2) the extent of the reliance by law enforcement authorities on the old standards, and (3) the effect on the administration of justice of a retroactive application of the new standards. “Foremost among these factors is the purpose to be served by the new constitutional rule.” Desist v. United States, 394 U.S. 244 at 249, 89 S.Ct. 1030, at 1033, 22 L.Ed.2d 248. The purpose of the rule announced in Benton, “one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense, and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possbility that even though innocent he may be found guilty.” It is precisely this effect that “ ‘went to the basis of fair hearing and trial because the procedural apparatus never assured * * * a fair determination’ of his guilt or innocence.” Roberts v. Russell, 392 U.S at 294, 88- S.Ct. at 1922. The extent of reliance by law enforcement officials and the effect on the administration of justice — the second and third factors to be considered — also suggest that Benton should be given retroactive effect. The element of reliance is not persuasive because the case overruled by Benton, Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937), has been, under serious attack and has been rejected by several courts. In sum, we conclude that Benton is to be given retroactive effect so as to require the application of federal double jeopardy standards to previous state criminal convictions. It follows then as stated above, that appellant’s reprosecution for first and second degree murder was constitutionally invalid. The order denying the petition for habeas corpus is reversed with instructions that the writ be granted unless, within a reasonable time, Kansas affords appellant a new trial that conforms to the principles set forth herein. . The jury was instructed as follows: . “The information in this case charges the defendant with murder in the first degree. This charge includes not only murder in the first degree but murder in the second degree, manslaughter in the first, degree, manslaughter in the third degree and manslaughter in the fourth degree. “You should therefore, first determine whether, under the evidence and instructions of the court, the defendant is guilty of murder in the first degree. If the defendant is not * * * you should proceed to determine whether she is guilty of murder in the second degree. * * * [If the defendant is not guilty of second degree murder] you should then consider whether or not she has been proved to be guilty of manslaughter in the first degree * * . As the Court indicated in Benton: “The validity of petitioner’s larceny conviction must be judged * * * under this Court’s interpretations of the Fifth Amendment double jeopardy provision.” 395 U.S. at 796, 89 S.Ct. at 2063. . In a clearly analogous situation an interpretation of a double jeopardy has been held to apply retrospectively. Application of McNeer, 173 Cal.App.2d 530, 343 P.2d 304 (1959). But of. United States ex rel. Wolak v. Yeager, 385 F.2d 478 (3d Cir. 1967). . Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030 (1969); DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968); Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968) ; Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) ; Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966) ; See generally, Annot., 10 A.L.R.3d 1371 (1966) and Annot., 14 L.Ed.2d 992 (1966). . Benton v. Maryland, 395 U.S. at 796, 89 S.Ct. at 2063, quoting Green v. United States, 355 U.S. at 187-188, 78 S.Ct. 221. . Cf. Koberts v. Russell, 392 U.S. at 295, 88 S.Ct. 1921. . United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844 .(2d Cir. 1965) cert. den. Mancusi v. Hetenyi, 383 U.S. 913, 86 S.Ct. 896, 15 L.Ed.2d 667; Patton v. No. Carolina, 381 F.2d 636 (4th Cir. 1967) ; Shear v. Boles, 263 F.Supp. 855, 859 (N.D.W.Va. 1967). Question: What is the specific issue in the case within the general category of "criminal - state offense"? A. murder B. rape C. arson D. aggravated assault E. robbery F. burglary G. auto theft H. larceny (over $50) I. other violent crimes J. narcotics K. alcohol related crimes, prohibition L. tax fraud M. firearm violations N. morals charges (e.g., gambling, prostitution, obscenity) O. criminal violations of government regulations of business P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery) Q. other state crimes R. state offense, but specific crime not ascertained Answer:

songer_numappel

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. McWILLIAMS v. SHEPARD et al. No. 7942. United States Court of Appeals for the District of Columbia. Argued March 10, 1942. Decided April 6, 1942. Samuel J. McWilliams, pro se. Mr. Burton A. McGann, of Washington, D. C., for appellees. Before GRONER, Chief Justice, and MILLER and EDGERTON, Associate Justices. PER CURIAM. This is an appeal from a judgment of the District Court entered upon the verdict of a jury awarding $4,500 and $3,000, respectively, to Ruth Shepard, a minor, and George Shepard, her father, in an action to recover damages for personal injuries resulting from an automobile collision alleged to have been caused by the negligence of appellant. Appellant is a resident of the District of Columbia. Appellees are residents of Connecticut. The accident occurred in Plymouth, Massachusetts. Appellant was driving his own car. Appellee Ruth Shepard was a guest rider in a car driven by a resident of Plymouth. The collision occurred on North Russell Street at the intersection of a driveway from a public parking lot and that street. The car in which appellee was riding was proceeding west along North Russell Street, which at the point of collision is approximately 24 feet wide. The evidence as to how the accident happened is conflicting. That of the appellant is that he drove out of the parking lot in a northerly direction onto North Russell Street; that he stopped at the curb and looked in both directions; that he saw no cars approaching; that he then went forward in second gear at about 5 or 6 miles an hour; that when he was about 8 feet into the street the car in which appellee was riding came around a curve from the east traveling at about 35 or 40 miles an hour; that it veered slightly to the north, but did not slacken its speed; that the two cars collided, the car in which appellee was riding being thrown into a telephone pole on the north curb line of the street. Appellee’s evidence was to the effect that the car in which she was riding proceeded about 15 miles an hour in a westerly direction along North Russell Street toward the intersection of the street and the parking lot driveway; that she was watching out and as she approached the intersection there was no car in view; that the collision occurred in the middle of the intersection; and that she was thrown out of the car and taken away in an unconscious condition. Another witness, who was on the street close to the point, of collision, said: “I saw this big car [appellant’s car] coming up South Russell Street, and turned through the Parking Space; I saw the Curtin car [the car in which appellee was riding] coming up North Russell-Street, and in an instant they both came together. * * * As near as I can tell, one was coming up South Russell Street and the other was coming through the Parking Space, and came together about the middle of the intersection; he [appellant] hit her. I could see the Curtin car wave over and bang into the post; if the post wasn’t there it would have tipped over.” Another witness testified that appellant’s car was as nearly as he could judge traveling 10 or 12 miles an hour. Still another placed his speed at 5 or 6 miles an hour. Appellant’s car struck the car in which appellee was riding at the rear left hand side. The Massachusetts law requires the driver of a motor vehicle approaching an intersection to grant the right-of-way to a vehicle which has already entered an intersection, and also to grant the right-of-way to a vehicle entering from the right at approximately the same time. On this appeal, the question is whether the trial court erred in overruling appellant’s motion for a directed verdict and in denying appellant’s motion to set aside the verdict and judgment and enter judgment for the defendant. Judge Pine, who heard the case, denied the motions, on the ground that where, by reason of a conflict in the testimony, there is uncertainty as to the existence of negligence, the question is one to be settled by the jury. He thought there was such conflict. This is a correct statement of the law. On a motion for a directed verdict, if fair minded men may honestly draw different conclusions as to the existence or non-existence of the negligence charged, the question is not one of law for the court but of fact for the jury. Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720. In this case there was an unquestioned conflict in the testimony. There was in addition the damaged condition of appellee’s car caused by the impact. "We agree with the trial judge that there was enough to take the case to the jury. Boaze v. Windridge & Handy, 70 App.D.C. 24, 102 F.2d 628. The refusal of the trial court to set aside the verdict was within the court’s discretion. Frye v. Lyon, 55 App.D.C. 48, 299 F. 926. Ordinarily, the motion ought not to be granted except where the evidence is so one-sided as to leave no room for doubt, and where the evidence is conflicting, it is not error to deny the motion. Pinn v. Lawson, 63 App.D.C. 370, 72 F.2d 742. Affirmed. Question: What is the total number of appellants in the case? Answer with a number. Answer:

sc_lcdisposition

B

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. PENSICK & GORDON, INC., v. CALIFORNIA MOTOR EXPRESS et al. No. 222. Decided December 3, 1962. Carl M. Gould for petitioner. Theodore W. Russell, George L. Catlin and Joseph P. Loeb for respondents. Per Curiam. The petition for writ of certiorari is granted. The judgment is vacated and the case is remanded to the Court of Appeals for further consideration in light of Hewitt-Robins Inc. v. Eastern Freight-Ways, Inc., ante, p. 84. Mr. Justice Harlan, Mr. Justice Stewart, and Mr. Justice White would affirm the judgment below for the reasons given in the dissenting opinion in Hewitt-Robins. Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? A. stay, petition, or motion granted B. affirmed C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. modify K. remand L. unusual disposition Answer:

songer_usc1

29

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. Charles GOLDSTEIN, Appellant, v. Megerdich DABANIAN and Emma K. Dabanian t/a East Tioga Check Service. Louis SERNOVITZ, Herbert Sabulsky and Sidney Singer, Appellants, v. Irving HERTZ, t/a Terminal Check Service. Nos. 13470, 13471. United States Court of Appeals Third Circuit. Argued May 1, 1961. Decided June 2, 1961. Rehearing Denied June 29, 1961. Stanley Bernard Singer, Philadelphia, Pa., for appellants. Robert E. Nagle, Washington, D. C. (Charles Donahue, Solicitor, Bessie Margolin, Asst. Solicitor, U. S. Dept, of Labor, Washington, D. C., Ernest N. Votaw, Regional Atty., Chambersburg, Pa., on the brief), for Secretary of Labor, amicus curiae. Oscar Spivack, Charles W. Woolever, Philadelphia, Pa. (Raymond L. Shapiro, Wexler, Mulder & Weisman, Philadelphia, Pa., on the brief), for appellees. Before GOODRICH, STALEY and FORMAN, Circuit Judges. GOODRICH, Circuit Judge. These two appeals present the same question, namely, whether employees of the two defendants are engaged in interstate commerce or the production of goods for commerce under the Fair Labor Standards Act, 29 U.S.C.A. § 206(a). The plaintiffs sued to recover unpaid overtime compensation, liquidated damages and counsel fees. The district court held that they were not engaged in commerce or the production of goods for commerce and dismissed the action. The decision is unreported. It is agreed by all persons concerned that the question here is not determined by the nature of the business in which the employer is engaged but by the duties of the individual employees. Mitchell v. H. B. Zachry Co., 1960, 362 U.S. 310, 80 S.Ct. 739, 4 L.Ed.2d 753; Mitchell v. Household Finance Corporation, 3 Cir., 1953, 208 F.2d 667. These employees did three things for their respective employers. One, for a fee they cashed non-personal checks presented to them. These checks, usually but not always, are payroll checks. Two, they issued money orders drawn on American Express or National Express. Three, they accepted payment, for a small fee, of utility company bills. Most of the customers were persons who did not have individual bank accounts of their own. The trial court decided that these plaintiffs were not engaged in commerce or the production of goods for commerce. He found it unnecessary to determine whether they qualified under exceptions to the rule for coverage described in the statute. Contrary to the district court’s determination we think that these employees fell within the general coverage of the act. What they did was to cash these checks and at the end of a business day total them up for deposit in the employer’s bank account. While 91% of the checks were drawn on local banks in Pennsylvania, 9% of them were drawn on banks out of the state. That the checks are “goods” within the meaning of the statute was decided by the Second Circuit in Bozant v. Bank of New York, 1946, 156 F.2d 787, applying Western Union Telegraph Co. v. Lenroot, 1945, 323 U.S. 490, 65 S.Ct. 335, 89 L.Ed. 414. The Bozant case was discussed and approved in our decision, Mitchell v. Household Finance Corporation, supra. Nine percent of the checks had an out-of-state destination for presentment and payment. This, of course, constitutes interstate commerce on the part of the employer. See Mabee v. White Plains Publishing Co., 1946, 327 U.S. 178, 66 S.Ct. 511, 90 L.Ed. 607. The handling of the checks by these employees was also a part of interstate commerce. In cashing the checks and making the deposits in the appropriate bank, these employees were forwarding goods in interstate commerce just as truly as an initiating intrastate carrier is part of the process of interstate commerce when it delivers the goods consigned to an out-of-state destination to the carrier who takes them to the place of delivery. What the employees did, in other words, was to start these checks on the first lap of an interstate journey by depositing them in a local bank. That being so, the employees are covered by the act unless excluded by the exemptions. The next question, therefore, is whether the plaintiffs are exempt by reason either of being administrative employees or employees of a retail establishment. 29 U.S.C.A. §§ 213(a) (1), (2). Let us turn first to the administrative question and see what these employees did. The district court in its consideration of the case was not called upon to decide this question because it considered that the plaintiffs’ work was not part of interstate commerce. There is no fact question presented, however. There is no dispute as to what took place. The difference of opinion concerns the effect of the acts done. Administrative employees are defined in regulations of the Secretary. These employees had no one to direct in the operation of their part of the business. They were the sole employees in the several offices maintained by the employers. Their primary duty was certainly not manual labor and they were paid $75.00 or more per week. They determined the identity of a person who wished to cash a check. For this purpose there were office files of signatures for many of the habitual customers. If a person was not listed in the file he was required to identify himself by some other means. At the end of the day the cashed checks were made up into a list and deposited at the appropriate bank. The employees alone determined the amount of currency needed for the day’s business. It would not be disputed that a certain amount of discretion was involved in making an estimate of the cash needs for the day and also determining the identity of the customers who wished to have their checks cashed. But such activity does not place the employees in the administrative group. Indeed, the discretion to be exercised is less than that of a top mechanic employed in an automobile service station whose judgment about diagnosing the ailment of a motor car and prescribing for its cure calls for a high degree of technical competence. The scope of the discretion here is much too narrow to place the employees in the administrative class. We turn, then, to the final question whether these plaintiffs were engaged in a retail establishment. The Government says that this question is determined by the Supreme Court decision in Mitchell v. Kentucky Finance Co., Inc., 1959, 359 U.S. 290, 79 S.Ct. 756, 3 L.Ed.2d 815. In this case it was'held that the business of making small personal loans and purchasing conditional sales contracts from dealers did not constitute an exemption from the coverage of the statute following the amendment of 1949. The Supreme Court also pointed out that exemptions from this statute are to be narrowly construed. In the present case more than 50% of the business handled by these plaintiffs was local business. They served customers in the community. They sold no goods but they did provide a service as a convenience to their customers for which the latter paid. There are affidavits that the trade considered this to be a retail enterprise. This case is not determined by the Supreme Court decision in Mitchell v. Kentucky Finance Co. just cited. These employees are not bankers nor dealers in finance. They do not make loans; they do not extend credit. Their functions have none of the features which go along with orderly banking or financial institution enterprises except for the cashing of checks. But that cashing for their customers is a purely local, personal service for the neighborhood people who patronize them. They perform a retail service. They do not fall within those statements which exclude financial agency transactions from the exemptions of the statute. The issuance of money orders and payment of utility bills are clearly within the retail service concept. This conclusion brings us into agreement with the result reached by the district judge but for a different reason. The judgment of the district court will be affirmed. . The Secretary of Labor submitted a brief to this Court as amicus curiae. . Some personal checks in amounts up to twenty dollars were also cashed for persons known by the particular employees. . “The term ‘employee employed in a bona fide ® * * administrative * * * capacity’ in section 13(a) (1) of the act shall mean any employee: “(a) Whose primary duty consists of the performance of ofliee or nonmanual field work directly related to management policies or general business operations of his employer or his employer’s customers ; and “(b) Who customarily and regularly exercises discretion and independent judgment ; and “(c) (1) Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity (as such terms are defined in this subpart); or “(2) Who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or “(3) Who executes under only general supervision special assignments and tasks; and “(d) Who does not devote more than 20 percent of his hours worked in the workweek to activities which are not directly and closely related to the performance of the work described in paragraphs (a) through (c) of this section; and “(e) Who is compensated for his services on a salary or fee basis at a rate of not less than $75 [now $95] per week * * * exclusive of board, lodging, or other facilities: “Provided, That an employee who is compensated on a salary or fee basis at a rate of not less than $100 [now $125] per week (exclusive of board, lodging, or other facilities), and whose primary duty consists of the performance of office or nonmanual field work directly related to management policies or general business operations of his employer or his employer’s customers, which includes work requiring the exercise of discretion and independent judgment, shall be deemed to meet all of the requirements of this section.” 29 O.B’.R. § 541.200. . On occasional busy days part-time employees were hired to assist them. . The district court found that supervision of these employees “was unnecessary because [their] duties were routine and followed a set pattern.” See Rothman v. Publicker Industries, Inc., 3 Cir., 1953, 201 F.2d 618. . In this case the concept “retail” seems rather artificial since but for this statute we would find difficulty in conceiving how any question would arise whether this type of activity is “retail,” “wholesale” or whatever. The Secretary’s regulations provide: “It will be observed that the sponsors of the amendment, in classifying industries on the basis of the applicability of the retail concept to their selling or servicing, did so on the basis of common knowledge as to what is recognized and what is not recognized as retail selling or servicing in the light of the objectives and purposes of the exemption as to the type of establishment it is intended to exempt. Thus, the dividing line between sales and services to which the retail concept is applicable and those to which it is not applicable is the general and common understanding of people of what constitutes a retail sale or service in the traditional sense. * * * ” 29 G.P.R. § 779.9(c). We doubt very much whether this type of activity is or is not considered “retail” in the common understanding of the public. However, the regulations go on to describe the “characteristics” of a retail establishment. “Typically a retail or service establishment is one which sells goods or services to the general public. It serves the everyday needs of the community in which it is located. The retail or service establishment performs a function in the business organization of the nation which is at the very end of the stream of distribution, disposing in small quantities of the products and skills of such organization and does not take part in the manufacturing processes.” 29 C.P.R. § 779.9 (d). In attempting to analogize to activities which clearly fall within and without the exemption, we think this check cashing service more nearly approximates a hotel or barber shop than it does a bank or personal loan company. See 29 C.F.It. § 779.10(a), (b). It “serves the everyday needs of the community in which it is located.” . See the administrative regulation describing the impact of the legislative history. 29 C.F.R. § 779.9(b). Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:

sc_casesource

028

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. WONG SUN et al. v. UNITED STATES. No. 36. Argued March 29 and April 2, 1962. Restored to calendar for reargument June 4, 1962. Reargued October 8, 1962.— Decided January 14, 1963. Edward Bennett Williams, acting under appointment by the Court, 368 U. S. 973, reargued the cause and filed a supplemental brief for petitioners. Sol A. Abrams also filed a brief for petitioners. J. William Doolittle reargued the cause for the United States. On the brief were Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and /. F. Bishop. Mr. Justice Brennan delivered the opinion of the Court. The petitioners were tried without a jury in the District Court for the Northern District of California under a two-count indictment for violation of the Federal Narcotics Laws, 21 U. S. C. § 174. They were acquitted under the first count which charged a conspiracy, but convicted under the second count which charged the substantive offense of fraudulent and knowing transportation and concealment of illegally imported heroin. The Court of Appeals for the Ninth Circuit, one judge dissenting, affirmed the convictions. 288 F. 2d 366. We" granted certiorari. 368 U. S. 817. We heard argument in the 1961 Term and reargument this Term. 370 U. S. 908. About 2 a. m. on the morning of June 4, 1959, federal narcotics agents in San Francisco, after having had one Horn Way under surveillance for six weeks, arrested him and found heroin in his possession. Horn Way, who had not before been an informant, stated after his arrest that he had bought an ounce of heroin the night before from one known to him only as “Blackie Toy,” proprietor of a laundry on Leavenworth Street. About 6 a. m. that morning six or seven federal agents went to a laundry at 1733 Leavenworth Street. The sign above the door of this establishment said “Oye’s Laundry.” It was operated by the petitioner James Wah Toy. There is, however, nothing in the record which identifies James Wah Toy and “Blackie Toy” as the same person. The other federal officers remained nearby out of sight while Agent Alton Wong, who was of Chinese ancestry, rang the bell. When petitioner Toy appeared and opened the door, Agent Wong told him that he was calling for laundry and dry cleaning. Toy replied that he didn’t open until 8 o’clock and told the agent to come back at that time. Toy started to close the door. Agent Wong thereupon took his badge from his pocket and said, “I am a federal narcotics agent.” Toy immediately “slammed the door and started running” down the hallway through the laundry to his living quarters at the back where his wife and child were sleeping in a bedroom. Agent Wong and the other federal officers broke open the door and followed Toy down the hallway to the living quarters and into the bedroom. Toy reached into a nightstand drawer. Agent Wong thereupon drew his pistol, pulled Toy’s hand out of the drawer, placed him under arrest and handcuffed him. There was nothing in the drawer and a search of the premises uncovered no narcotics. One of the agents said to Toy “. . . [Horn Way] says he got narcotics from you.” Toy responded, “No, I haven’t been selling any narcotics at all. However, I do know somebody who has.” When asked who that was, Toy said, “I only know him as Johnny. I don’t know his last name.” However, Toy described a house on Eleventh Avenue where he said Johnny lived; he also described a bedroom in the house where he said “Johnny kept about a piece” of heroin, and where he and Johnny had smoked some of the drug the night before. The agents left immediately for Eleventh Avenue and located the house. They entered and found one Johnny Yee in the bedroom. After a discussion with the agents, Yee took from a bureau drawer several tubes containing in all just less than one ounce of heroin, and surrendered them. Within the hour Yee and Toy were taken to the Office of the Bureau of Narcotics. Yee there stated that the heroin had been brought to him some four days earlier by petitioner Toy and another Chinese known to him only as “Sea Dog.” Toy was questioned as to the identity of “Sea Dog” and said that “Sea Dog” was Wong Sun. Some agents, including Agent Alton Wong, took Toy to Wong Sun’s neighborhood where Toy pointed out a multifamily dwelling where he said Wong Sun lived. Agent Wong rang a downstairs door bell and a buzzer sounded, opening the door. The officer identified himself as a narcotics agent to a woman on the landing and asked “for Mr. Wong.” The woman was the wife of petitioner Wong Sun. She said that Wong Sun was “in the back room sleeping.” Alton Wong and some six other officers climbed the stairs and entered the apartment. One of the officers went into the back room and brought petitioner Wong Sun from the bedroom in handcuffs. A thorough search of the apartment followed, but no narcotics were discovered. Petitioner Toy and Johnny Yee were arraigned before a United States Commissioner on June 4 on a complaint charging a violation of 21 U. S. C. § 174. Later that day, each was released on his own recognizance. Petitioner Wong Sun was arraigned on a similar complaint filed the next day and was also released on his own recognizance. Within a few days, both petitioners and Yee were interrogated at the office of the Narcotics Bureau by Agent William Wong, also of Chinese ancestry. The agent advised each of the three of his right to withhold information which might be used against him, and stated to each that he was entitled to the advice of counsel, though it does not appear that any attorney was present during the questioning of any of the three. The officer also explained to each that no promises or offers of immunity or leniency were being or could be made. The agent interrogated each of the three separately. After each had been interrogated the agent prepared a statement in English from rough notes. The agent read petitioner Toy’s statement to him in English and interpreted certain portions of it for him in Chinese. Toy also read the statement in English aloud to the agent, said there were corrections to be made, and made the corrections in his own hand. Toy would not sign the statement, however; in the agent’s words “he wanted to know first if the other persons involved in the case had signed theirs.” Wong Sun had considerable difficulty understanding the statement in English and the agent restated its substance in Chinese. Wong Sun refused to sign the statement although he admitted the accuracy of its contents. Horn Way did not testify at petitioners’ trial. The Government offered Johnny Yee as its principal witness but excused him after he invoked the privilege against self-incrimination and flatly repudiated the statement he had given to Agent William Wong. That statement was not offered in evidence nor was any testimony elicited from him identifying either petitioner as the source of the heroin in his possession, or otherwise tending to support the charges against the petitioners. The statute expressly provides that proof of the accused’s possession of the drug will support a conviction under the statute unless the accused satisfactorily explains the possession. The Government’s evidence tending to prove the petitioners’ possession (the petitioners offered no exculpatory testimony) consisted of four items which the trial court admitted over timely objections that they were inadmissible as “fruits” of unlawful arrests or of attendant searches: (1) the statements made orally by petitioner Toy in his bedroom at the time of his arrest; (2) the heroin surrendered to the agents by Johnny Yee; (3) petitioner Toy’s pretrial unsigned statement; and (4) petitioner Wong Sun’s similar statement. The dispute below and here has centered around the correctness of the rulings of the trial judge allowing these items in evidence. The Court of Appeals held that the arrests of both petitioners were illegal because not based on “ 'probable cause’ within the meaning of the Fourth Amendment” nor “reasonable grounds” within the meaning of the Narcotic Control Act of 1956. The court said as to Toy’s arrest, “There is no showing in this case that the agent knew Horn Way to be reliable,” and, furthermore, found “nothing in the circumstances occurring at Toy’s premises that would provide sufficient justification for his arrest without a warrant.” 288 F. 2d, at 369, 370. As to Wong Sun’s arrest, the Court said “there is no showing that Johnnie Yee was a reliable informer.” The Court of Appeals nevertheless held that the four items of proof were not the “fruits” of the illegal arrests and that they were therefore properly admitted in evidence. The Court of Appeals rejected two additional contentions of the petitioners. The first was that there was insufficient evidence to corroborate the petitioners’ unsigned admissions of possession of narcotics. The court held that the narcotics in evidence surrendered by Johnny Yee, together with Toy’s statements in his bedroom at the time of arrest corroborated petitioners’ admissions. The second contention was that the confessions were inadmissible because they were not signed. The Court of Appeals held on this point that the petitioners were not prejudiced, since the agent might properly have testified to the substance of the conversations which produced the statements. We believe that significant differences between the cases of the two petitioners require separate discussion of each. We shall first consider the case of petitioner Toy. I. The Court of Appeals found there was neither reasonable grounds nor probable cause for Toy’s arrest. Giving due weight to that finding, we think it is amply justified by the facts clearly shown on this record. It is basic that an arrest with or without a warrant must stand upon firmer ground than mere suspicion, see Henry v. United States, 361 U. S. 98, 101, though the arresting officer need not have in hand evidence which would suffice to convict. The quantum of information which constitutes probable cause — evidence which would “warrant a man of reasonable caution in the belief” that a felony has been committed, Carroll v. United States, 267 U. S. 132, 162 — -must be measured by the facts of the particular case. The history of the use, and not infrequent abuse, of the power to arrest cautions that a relaxation of the fundamental requirements of probable cause would “leave law-abiding Citizens at the mercy of the officers’ whim or caprice.” Brinegar v. United States, 338 U. S. 160, 176. Whether or not the requirements of reliability and particularity of the information on which an officer may act are more stringent where an arrest warrant is absent, they surely cannot be less stringent than where an arrest warrant is obtained. Otherwise, a principal incentive now existing for the procurement of arrest warrants would be destroyed. The threshold question in this case, therefore, is whether the officers could, on the information which impelled them to act, have procured a warrant for the arrest of Toy. We think that no warrant would have issued on evidence then available. The narcotics agents had no basis in experience for confidence in the reliability of Horn Way’s information; he had never before given information. And yet they acted upon his imprecise suggestion that a person described only as “Blackie Toy,” the proprietor of a laundry somewhere on Leavenworth Street, had sold one ounce of heroin. We have held that identification of the suspect by a reliable informant may constitute probable cause for arrest where the information given is sufficiently accurate to lead the officers directly to the suspect. Draper v. United States, 358 U. S. 307. That rule does not, however, fit this case. For aught that the record discloses, Horn Way’s accusation merely invited the officers to roam the length of Leavenworth Street (some 30 blocks) in search of one “Blackie Toy’s” laundry — and whether by chance or other means (the record does not say) they came upon petitioner Toy’s laundry, which bore not his name over the door, but the unrevealing label “Oye’s.” Not the slightest intimation appears on the record, or was made on oral argument, to suggest that the agents had information giving them reason to equate “Blackie” Toy and James Wah Toy — e. g., that they had the criminal record of a Toy, or that they had consulted some other kind of official record or list, or had some information of some kind which had narrowed the scope of their search to this particular Toy. It is conceded that the officers made no attempt to obtain a warrant for Toy’s arrest. The simple fact is that on the sparse information at the officers’ command, no arrest warrant could have issued consistently with Rules 3 and 4 of the Federal Rules of Criminal Procedure. Giordenello v. United States, 357 U. S. 480, 486. The arrest warrant procedure serves to insure that the deliberate, impartial judgment of a judicial officer will be interposed between the citizen and the police, to assess the weight and credibility of the information which the complaining officer adduces as probable cause. Cf. Jones v. United States, 362 U. S. 257, 270. To hold that an officer may act in his own, unchecked discretion upon information too vague and from too untested a source to permit a judicial officer to accept it as probable cause for an arrest warrant, would subvert this fundamental policy. The Government contends, however, that any defects in the information which somehow took the officers to petitioner Toy’s laundry were remedied by events which occurred after they arrived. Specifically, it is urged that Toy’s flight down the hall when the supposed customer at the door revealed that he was a narcotics agent adequately corroborates the suspicion generated by Horn Way’s accusation. Our holding in Miller v. United States, 357 U. S. 301, is relevant here, and exposes the fallacy of this contention. We noted in that case that the lawfulness of an officer’s entry to arrest without a warrant “must be tested by criteria identical with those embodied in 18 U. S. C. § 3109, which deals with entry to execute a search warrant.” 357 U. S., at 306. That statute requires that an officer must state his authority and his purpose at the threshold, and be refused admittance, before he may break open the door. We held that when an officer insufficiently or unclearly identifies his office or his mission, the occupant’s flight from the door must be regarded as ambiguous conduct. We expressly reserved the question “whether the unqualified requirements of the rule admit of an exception justifying noncompliance in exigent circumstances.” 357 U. S., at 309. In the instant case, Toy’s flight from the door afforded no surer an inference of guilty knowledge than did the suspect’s conduct in the Miller case. Agent Wong did eventually disclose that he was a narcotics officer. However, he affirmatively misrepresented his mission at the outset, by stating that he had come for laundry and dry cleaning. And before Toy fled, the officer never adequately dispelled the misimpression engendered by his own ruse. Cf. Gouled v. United States, 255 U. S. 298; Gatewood v. United States, 209 F. 2d 789. Moreover, he made no effort at that time, nor indeed at any time thereafter, to ascertain whether the man at the door was the “Blackie Toy” named by Horn Way. Therefore, this is not the case we hypothesized in Miller where “without an express announcement of purpose, the facts known to officers would justify them in being virtually certain” that the person at the door knows their purpose. 357 U. S., at 310. Toy’s refusal to admit the officers and his flight down the hallway thus signified a guilty knowledge no more clearly than it did a natural desire to repel an apparently unauthorized intrusion. Here, as in Miller, the Government claims no extraordinary circumstances— such as the imminent destruction of vital evidence, or the need to rescue a victim in peril — see 357 U. S., at 309— which excused the officer’s failure truthfully to state his mission before he broke in. A contrary holding here would mean that a vague suspicion could be transformed into probable cause for arrest by reason of ambiguous conduct which the arresting officers themselves have provoked. Cf. Henry v. United States, 361 U. S. 98, 104. That result would have the same essential vice as a'proposition we have consistently rejected- — -that a search unlawful at its inception may be validated by what it turns up. Byars v. United States, 273 U. S. 28; United States v. Di Re, 332 U. S. 581, 595. Thus we conclude that the Court of Appeals’ finding that the officers’ uninvited entry into Toy’s living quarters was unlawful and that the bedroom arrest which followed was likewise unlawful, was fully justified on the evidence. It remains to be seen what consequences flow from this conclusion. II. It is conceded that Toy’s declarations in his bedroom are to be excluded if they are held to be “fruits” of the agents’ unlawful action. In order to make effective the fundamental constitutional guarantees of sanctity of the home and inviolability of the person, Boyd v. United States, 116 U. S. 616, this Court held nearly half a century ago that evidence seized during an unlawful search could not constitute proof against the victim of the search. Weeks v. United States, 232 U. S. 383. The exclusionary prohibition extends as well to the indirect as the direct products of such invasions. Silverthorne Lumber Co. v. United States, 251 U. S. 385. Mr. Justice Holmes, speaking for the Court in that case, in holding that the Government might not make use of information obtained during an unlawful search to subpoena from the victims the very documents illegally viewed, expressed succinctly the policy of the broad exclusionary rule: “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.” 251 U. S., at 392. The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion. It follows from our holding in Silverman v. United States, 365 U. S. 505, that the Fourth Amendment may protect against the overhearing of verbal statements as well as against the more traditional seizure of “papers and effects.” Similarly, testimony as to matters observed during an unlawful invasion has been excluded in order to enforce the basic constitutional policies. McGinnis v. United States, 227 F. 2d 598. Thus, verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers’ action in the present case is no less the “fruit” of official illegality than the more common tangible fruits of the unwarranted intrusion. See Nueslein v. District of Columbia, 115 F. 2d 690. Nor do the policies underlying the exclusionary rule invite any logical distinction between physical and verbal evidence. Either in terms of deterring lawless conduct by federal officers, Rea v. United States, 350 U. S. 214, or of closing the doors of the federal courts to any use of evidence unconstitutionally obtained, Elkins v. United States, 364 U. S. 206, the danger in relaxing the exclusionary rules in the case of verbal evidence would seem too great to warrant introducing such a distinction. The Government argues that Toy’s statements to the officers in his bedroom, although closely consequent upon the invasion which we hold unlawful, were nevertheless admissible because they resulted from “an intervening independent act of a free will.” This contention, however, takes insufficient account of the circumstances. Six or seven officers had broken the door and followed on Toy’s heels into the bedroom where his wife and child wTere sleeping. He had been almost immediately handcuffed and arrested. Under such circumstances it is unreasonable to infer that Toy’s response was sufficiently an act of free will to purge the primary taint of the unlawful invasion. The Government also contends that Toy’s declarations should be admissible because they were ostensibly exculpatory rather than incriminating. There are two answers to this argument. First, the statements soon turned out to be incriminating, for they led directly to the evidence which implicated Toy. Second, when circumstances are shown such as those which induced these declarations, it is immaterial whether the declarations be termed “exculpatory.” Thus we find no substantial reason to omit Toy’s declarations from the protection of the exclusionary rule. III. We now consider whether the exclusion of Toy’s declarations requires also the exclusion of the narcotics taken from Yee, to which those declarations led the police. The prosecutor candidly told the trial court that “we wouldn’t have found those drugs except that Mr. Toy helped us to.” ' Hence this is not the case envisioned by this Court where the exclusionary rule has no application because the Government learned of the evidence “from an independent source,” Silverthorne Lumber Co. v. United States, 251 U. S. 385, 392; nor is this a case in which the connection between the lawless conduct of the police and the discovery of the challenged evidence has “become so attenuated as to dissipate the taint.” Nardone v. United States, 308 U. S. 338, 341. We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Maguire, Evidence of Guilt, 221 (1959). We think it clear that the narcotics were “come at by the exploitation of that illegality” and hence that they may not be used against Toy. IV. It remains only to consider Toy’s unsigned statement. We need not decide whether, in light of the fact that Toy was free on his own recognizance when he made the statement, that statement was a fruit of the illegal arrest. Cf. United States v. Bayer, 331 U. S. 532. Since we have concluded that his declarations in the bedroom and the narcotics surrendered by Yee should not have been admitted in evidence against him, the only proofs remaining to sustain his conviction are his and Wong Sun’s unsigned statements. Without scrutinizing the contents of Toy’s ambiguous recitals, we conclude that no reference to Toy in Wong Sun’s statement constitutes Question: What is the court whose decision the Supreme Court reviewed? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. 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Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims Answer:

songer_dueproc

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 the requirements of due process 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". ROBINSON v. COMMISSIONER OF INTERNAL REVENUE. No. 6125. Circuit Court of Appeals, Sixth Circuit. March 17, 1933. A. J. Levin, of Detroit, Mich. (Butzel, Levin & Winston, of Detroit, Mich., and Frederick L. Pearce, of Washington, D. C., on the brief), for petitioner. J. Louis Monarch, of Washington, D. C. (G. A. Youngquist, Sewall Key, Wm. Cutler Thompson, C. M. Charest, and Frank T. Horner, all of Washington, D. C., on the brief), for respondent. Before MOORMAN, HICKENLOOPER, and SIMONS, Circuit Judges. MOORMAN, Circuit Judge. Bernard Wurzburger and Ms wife, Laura Wurzburgor, were residents of Michigan from 1910 until his death on July 10, 1926. Prior to September 8, 1916, the effective date of the first federal estate tax (39 Stat. 777), they acquired two pieces of real estate as tenants by the entirety. Upon the death of the husband the Commissioner assessed an estate tax against the properties. The Board of Tax Appeals affirmed (21 B. T. A. 1373), and the petitioner, executor of the husband’s estate, appeals, contending that section 302 (e) (h) of the Revenue Aet of 1924 (43 Stat. 304, 305 (26 USCA § 1094 note) is unconstitutional, in so far as it requires the inclusion in the gross estate of a decedent of the value of real estate acquired by a decedent and spouse as tenants by the entirety prior to September 8, 1916. “Tho clear language of the 1924 statute repels the notion that it has no application to joint tenancies created prior to September 8, 1916.” Gwinn v. Commissioner of Internal Revenue, 287 U. S. 224, 53 S. Ct. 157, 158, 77 L. Ed.- (December 5, 1932). Whether its application in the present case is within the limitations of the Constitution depends upon the existence of a taxable event after September 8> 1916, to which it may attach. The death occurred after that date, and if it was a “generating source of definite accessions to the survivor's property rights,” then the tax was constitutionally levied. Sueh was held to he the effect of the death of the joint tenant in the Gwinn Case and in Third National Bank v. White, Collector, 53 S. Ct. 290, 77 L. Ed. -. In the latter ease, the Supreme Court affirmed the decision of the Court of Appeals [58 F.(2d) 1085] sustaining a'judgment of the District Court applying the tax to a tenancy created prior to 1916 [45 F.(2d) 911], The petitioner relies upon a statement in the Gwinn Case to the effect that under the laws of California the estate could have been terminated by conveyance by either party, through proceedings for partition, or by involuntary alienation by execution. The Third National Bank Case he seeks to distinguish upon tho authority of a brief filed in that ease, citing Massachusetts eases holding that the rights of tho wife in property held by the entirety are subordinate to those of her husband. It does not seem necessary to examine into the details of the rights of tenants by the entirety under the laws of Massachusetts and California as compared with those in Michigan. The law of Michigan is that prior to the- death. of one tenant neither can convey “without the .other joining in the conveyance.” Naylor v. Minock, 96 Mich. 182, 184, 55 N. W. 664, 665, 35 Am. St. Rep. 595. In Tyler v. United States, 281 U. S. 497, 503, 504, 50 S. Ct. 356, 359, 74 L. Ed. 991, 69 A. L. R. 758, it was said': “Before the death .of. the husband- (to take the Tyler Case, No. 428) the wife had the right to possess and use the whole property, but, so also, had her husband; she could not dispose of the property except with her husband’s concurrence; her rights were hedged about at all points by the equal rights of her husband. At his death, however, and because of it, she, for the first time, became entitled to exclusive possession, use and enjoyment; she ceased to hold the property subject to qualifications imposed by the law relating to tenancy by the entirety, and became entitled to hold and enjoy it absolutely as her own; and then, and then only, she acquired the power, not theretofore possessed, of disposing of the property by an exercise of her sole will. Thus tlje death of one of the parties to the tenancy became the ‘generating source’ of important and definite accessions to the property rights of the other.” It is also the law of Michigan that an estate by entirety cannot be devised. Webber v. Webber, 217 Mich. 178, 185 N. W. 761. Upon the death-, therefore, of the decedent, his wife for the first time ceased to hold her interest in the property subject to the disabilities' and qualifications imposed by the grant and became entitled to exclusive possession, use, and enjoyment of the whole property. This was,a definite accession to her propei*ty rights under the rulings in the Tyler 'and Gwinn Cases. Cf. O’Shaughnessy v. Commissioner, 60 F.(2d) 235, 237 (6 C. C. A.). The second question involved in the case relates to a bank deposit in the joint names of the decedent and his wife, payable to both or either or the survivor. The Revenue Act, section 302 (e), 26 USCA § 1094 note, requires that there be included in the estate of a decedent the entire amount of joint bank deposits, “except such part thereof as may be shown to have originally belonged” to the. survivor. No evidence was offered tending to show that any part of this deposit belonged to Laura Wurzburger. The contention is that, in- the absence of proof that it did or did not belong to her, the presumption of equal ownership created by the Compiled' Laws of Michigan, 1915, § 8040, must prevail, Murphy v. Michigan Trust Co., 221 Mich. 243, 246, 190 N. W. 698. It is accordingly contended that one-half of the amount on deposit should have been excluded from decedent’s gross estate. But the Revenue Act provides that all of the amount of such deposit shall be included in the decedent’s estate, except such part as may be shown to have originally belonged to the survivor. This provision cannot, we think, be vitiated by a state court decision construing a state statute as giving rise to a presumption. Burk-Waggoner Oil Ass’n v. Hopkins, 269 U. S. 110, 46 S. Ct. 48, 70 L. Ed. 183; Weiss v. Wiener, 279 U. S. 333, 49 S. Ct. 337, 73 L. Ed. 720. As said in New Orleans & N. E. R. Co. v. Harris, 247 U. S. 367, 372, 38 S. Ct. 535, 536, 62 L. Ed. 1167, “the question of burden of proof is a matter of substance and not subject to control by laws of the several states.” Commissioner v. Olds (C. C. A.) 60 P. (2d) 252, 254, is not to the contrary. All that was held there was that the Board of Tax Appeals had the right to receive evidence that would have been admissible in the courts of the state where the contract was to be performed. The order of the Board is affirmed. Question: Did the interpretation of the requirements of due process by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_usc2

28

What follows is an opinion from a United States Court of Appeals. The most frequently cited title of the U.S. Code in the headnotes to this case is 11. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times. ISAACS v. HOBBS TIE & TIMBER CO. No. 7656. Circuit Court of Appeals, Fifth Circuit. March 15, 1935. William R. Watkins, of Fort Worth, Tex., for appellant. Norman A. Dodge, of Fort Worth, Tex., and W. N. Ivie, John R. Duty, Claude Duty, and Jeff Duty, all of Rogers, Ark., for appellee. Before BRYAN, HUTCHESON, and WALKER, Circuit Judges. Rehearing denies April 8, 1935. Writ of certiorari denied 55 S. Ct. 834, 79 L. Ed. —. WALKER, Circuit Judge. On August 7, 1928, Henrietta E. Cunningham was adjudged bankrupt in the Northern District of 'Texas. Her estate included lands located in the Western District of Arkansas which were subject to a mortgage given to secure a debt. A short time after the bankruptcy adjudication and an order requiring the sale, by the trustee, of all the bankrupt’s property were made, the appellee, Hobbs Tie & Timber Company, bought that mortgage from the then owner thereof, paying $30,000 therefor, and in December, 1928, brought suit in an Arkansas state court for the foreclosure of that mortgage; the bankrupt and the trustee of the bankrupt estate being made parties defendant to the suit. On the petition of the bankrupt and the trustee that suit was removed to the United States District Court for the Western District of Arkansas. In that court the right of the appellee to maintain its foreclosure suit was unsuccessfully resisted, and that court rendered a decree of foreclosure and sale. From that decree an appeal to the United States Circuit Court of Appeals for the Eighth Circuit was taken. That court certified to the Supreme Court the question of appellee’s right to maintain the foreclosure suit in the circumstances stated. 282 U. S. 734, 51 S. Ct. 270, 75 L. Ed. 645. The decision of the Supreme Court was to the effect that the Arkansas foreclosure suit was not maintainable save by consent of the bankruptcy court; arid the decree of the District Court for the Western District of Arkansas was reversed, and the ■ cause was remanded to that court, for further proceedings in conformity with the opinion. Isaacs v. Hobbs Tie & T. Co., 282 U. S. 734, 51 S. Ct. 270, 75 L. Ed. 645. Following the remandment of the foreclosure suit, the appellee filed in the court below a petition which asserted that it was entitled as of right to proceed with its foreclosure in the suit pending in Arkansas, and prayed the court’s consent to do so. The denial of that petition by the court below was affirmed by this court, without prejudice to the right of petitioner (appellee here) to further apply to the bankruptcy court for such relief as it may be advised it can show itself entitled to. Hobbs Tie & Timber Co. v. Isaacs (C. C. A.) 61 F.(2d) 1006. While the last-mentioned proceeding was pending on appeal, the appellee filed in the court below its petitition praying that it be permitted to proceed with its foreclosure suit in the Western District of Arkansas, and for all other relief to which petitioner is entitled. That petition contained allegations to the effect that since 1928 the trustee in bankruptcy has failed to pay taxes on the mortgaged lands, that appellee has paid such taxes, amounting to more than $5,000, to prevent the forfeiture and sale of such lands because of nonpayment of taxes, that the value of said lands is far less than the amount of the debt secured by the mortgage thereon, that the trustee in bankruptcy has been in possession of said lands since 1928, has been unable to sell those lands or any part thereof, and is now attempting to sell some of the timber on said lands and some of the land in small parcels and for small prices. To that petition the appellant interposed an “answer, set-off and counterclaim,” which, after answering allegations of the petition, set up a counterclaim which charged in effect that appellee’s conduct in instituting and prosecuting the foreclosure suit and asserting its claim to the mortgaged property in the possession of the trustee in bankruptcy constituted contempt of court; and the appellant prayed that he “recover, for the use and benefit of the estate herein, the sum of, to-wit, $150,000.00 by way of punishment for its interference with this court and its trustee, and/or' as compensation and reimbursement to the estate of the damages sustained by the trustee in the premises.” The court appointed a master to hear the facts, and report his findings of fact and conclusions of law in connection with the controversy raised by appellee’s petition and appellant’s answer and counterclaim. After hearing evidence the master made a report, containing findings of fact and conclusions of law; his conclusions being favorable to the appellant. The appellant filed exceptions to that report. No exceptions were filed to findings and conclusions of the master to the following effect: “That at the present time, the mortgage indebtedness alleged by said petitioner was a valid lien against the property and that if no set-off or counterclaim was allowed as prayed for by the trustee, then there was no equity in the land for the creditors of the bankrupt estate. And further found that except for the wrongful acts of Hobbs Tie & Timber Company as alleged, there was no equity in said lands and property for the creditors of said bankruptcy estate, and that it was the duty of the trustee to disclaim said property as burdensome and concluded that said petitioner’s claim in the sum of $55,885.49 with 7% interest from May .21, 1927, was justly due and unpaid, and that the said' Hobbs Tie & Timber Company was the legal and equitable owner and holder thereof, and that it had a valid and subsisting lien on the property involved to secure the payment of said indebtedness and the taxes paid by it in the sum of $5,000, and that said note and mortgage was not barred by the statute of limitations.” By its decree the court sustained the ap-pellee’s exceptions to the master’s report, and adjudged: “That the petitioner, Hobbs Tie and Timber Company, has a valid subsisting lien debt on the property described in its petition, not barred by limitation, the amount of which is in excess of the value of the land, which lien it is entitled to foreclose, and- petitioner be and is hereby granted leave to foreclose its said lien in any court of competent jurisdiction and/or to proceed with its foreclosure suit in the Western Judicial District Court of Arkansas, Fort Smith Division thereof, as it may be advised, and to make B. K. Isaacs as Trustee in Bankruptcy herein a party defendant therein. “That the estate in bankruptcy has no equity .in said property and the said Trustee is directed to relinquish and surrender said property as burdensome to the estate and disclaim interest therein in any foreclosure suit begun or prosecuted by the petitioner. That the order of Court heretofore entered authorizing the Trustee to sell the assets of the estate in bankruptcy insofar as it embraced" and/or related to said property be and it hereby is set aside. “That the petitioner is not guilty of contempt of court; that the acts of petitioner complained of by the Trustee do not constitute grounds, nor does any pf them constitute a ground, for imposition of fine or recovery of penalties or damages against pé-titioner as for contempt of court. “That the Trustee in Bankruptcy be and hereby is denied recovery against petitioner on account of each and. everything set up and/or prayed for in his pleadings, and the petitioner be denied recovery against the Trustee other than as he.reby specifically decreed except in the plea and claim of petitioner for an accounting and ascertainment and recovery of damages against the Trustee for alleged conversion of a part of its mortgage security which is pretermitted and left open for further consideration, also the matter of taxing the costs is left open for later determination.” The decree is complained of only in so far as it had the effect of disallowing the counterclaim based on the charge that ap-pellee was guilty of contempt. The brief of counsel for the appellant contains the statement: “It may be assumed that the property in controversy is now worth less than the lien against it and but for the contempt of the appellee the judgment would be right.” What was relied on' as constituting contempt was the institution and prosecution by the appellee of -its foreclosure suit, and its conduct in having watched parts of the 12,311 acres of unhábited timberlands covered by the mortgage held by it, while those-lands were in the possession of the trustee, for the purpose' of becoming informed of the removal from those lands of timber or other things thereon. No evidence indicated that the' appellee in any way interfered with-the trustee’s possession of the mortgaged land, or procured the levy of any writ or process on those lands or any part thereof, or attempted to thwart or obstruct any order or process of the bankruptcy court. No evidence adduced furnished any ground for a claim that the appellee was guilty of any such interference with property in the custody of the court as is comparable to what was disclosed in cases principally relied on by counsel for the appellee, notably Ex parte Tyler, 149 U. S. 164, 13 S. Ct. 785, 37 L. Ed. 689, and Hitz v. Jenks, 185 U. S. 155, 22 S. Ct. 598, 46 L. Ed. 851. Certainly it could not seriously or plausibly be contended that appellee was guilty of contempt of court in seeking to keep itself informed as to the removal from the mortgaged lands, while they were in the possession of the appellant, of timber or other things thereon. It appears that upon the appellant being informed of the institution of the foreclosure suit he elected not to apply to the bankruptcy court for an injunction restraining the prosecution of that suit, as it was open to him to do (Ex parte Baldwin, 291 U. S. 610, 615, 54 S. Ct. 551, 78 L. Ed. 1020), but procured the removal of that suit to the District Court of the United States for the Western District of Arkansas, and in that court sought a postponement of the foreclosure, and contended that that court should proceed no further than to ascertain the interest of the defendants, the validity of the mortgage lien, and the amount of the debt, and prayed that after those preliminary steps the court should refuse the order of sale. Isaacs v. Hobbs Tie & T. Co., supra. It was not even claimed that appellee did anything constituting contempt under the provision of the Bankruptcy Act on that subject (11 USCA § 11); and no evidence supported a claim that appellee did anything constituting a contempt under the statute (28 USCA § 385) which defines the power of federal courts to punish for contempt. In the matter of punishment for contempt the bankruptcy court possesses no broader powers than are conferred on other federal courts. Boyd v. Glucklich (C. C. A.) 116 F. 131. Though the foreclosure suit was not maintainable without the consent of the bankruptcy court, which had in its custody the lands sought to be foreclosed, the mere bringing of the suit without such consent, unaccompanied by any interference.with the possession of the property in the court’s custody, or by any disobedience or evasion of the - court’s orders or process, is not to be classed as a contempt; the ordinary consequence of bringing a suit which is. not maintainable, where the plaintiff is not chargea.ble with both malice and want of probable cause, being that the defendant is not entitled to redress, other than an .award against the plaintiff of the taxable costs of the suit. 1 Corpus Juris, 967. It appears that, upon the removal of' the foreclosure suit to the District Court for the Western District of Arkansas, the principal object of the appellant was to secure a postponement of the foreclosure in order to afford to the appellant and his counsel further time to make investigation as to the most favorable method of making a sale of the mortgaged property, and because the economic conditions existing at that time (December, 1928, and January, 1929) made it impossible and impracticable to sell the mortgaged land for anything near its value. When, after the question of appellee’s right to proceed with its foreclosure had been resisted for several years, the appellee made the former application to the bankruptcy court for leave to foreclose its mortgage in the District Court for the Western District of. Arkansas, which application was passed on by this court, the appellant, in resisting that application, recognized that it was impracticable to sell the ' land in a body for enough to pay the mortgage debt, and suggested the plan of trying to sell the land in small tracts of forty acres and upwards, and in some instances if possible to sell the timber separately, reserving the land, the counsel for the appellant being examined as a witness and stating: “The idea of the. Trustee at this time is that an equity exists in the property if it is handled in that manner. How long it will take to accomplish that purpose, it is impossible to tell, but the prospects are increasing and the activity in the way of getting offers and getting down to the point of making a deal is increasing and it should not take more than a reasonable time, considering the amount of land and the amount- of money ■ involved, to dispose of it. * * * ” At the time the appellee filed the petition under which the -decree appealed from wás rendered, it appears that appellant did not seriously contend that the mortgaged land could be sold for enough to pay the mortgage debt, and relied on its charge that the appellee was guilty of .contempt of court, and on the contention that- for that offense the appellee should by the judgment of the court be required to pay the appellant an amount-¡greatly -more than twice the value which the evidence indicated the mortgaged land possessed when the ''.foreclosure suit was instituted, when the -decr.ee appealed from was rendered, or at any intervening time. No evidence indicated that the former owner of the mortgage would have sold it to the appellee, shortly befare the foreclosure suit was instituted, for the sum of $30,000 if the mortgaged land had been salable for more than that sum. If the appellant had applied to the bankruptcy court for an order staying the foreclosure, it reasonably may be supposed that if that application had been favorably acted on the stay granted would have been for a reasonable time only, to enable the trustee to act advisedly in determining whether he would resist the foreclosure or recommend that the interest of the bankrupt estate in the mortgaged land be abandoned as burdensome. First Trust Co. v. Baylor (C. C. A.) 1 F.(2d) 24, 28. After it became apparent that the mortgaged land could not presently be sold for enough to pay the mortgage debt, it would have been unreasonable and unfair to the appellee for the court to stay the foreclosure for an indefinite period to enable the trustee to experiment in efforts to sell the mortgaged land or timber therefrom in small quantities. In re Morris White Holding Co. (D. C.) 52 F.(2d) 499. It is fairly to be inferred from the evidence that throughout the period during which the appellant successfully resisted appellee’s efforts to get its mortgage foreclosed the bankrupt estate had no equity in the mortgaged lands, because they were worth substantially less than the balance owing on the debt for the security of which the mortgage was given. During all that time appellant paid no taxes on the mortgaged land, such taxes being paid by the appellee in order to prevent the sale of the land for taxes, or the forfeiture thereof for the nonpayment of taxes. It is fairly inferable from the evidence that at no time would the foreclosure have caused loss or damage to the bankrupt estate, because the mortgaged land was worth less than the amount of the mortgage debt, and that there was no reasonable justification for the appellee’s prolonged successful resistance to the foreclosure. It is also fairly inferable from- the evidence that the appellee was substantially injured by the prolonged postponement of the foreclosure, during the period of such postponement the appellee having to pay taxes on the mortgaged land and the expenses of the litigation, while it could get, no benefit from the land. In the circumstances disclosed by the record the claim asserted by the appellant- that the court should adjudge that the appellee pay to the appellant the sum of $150,000, with the result of the appellee being subjected to the loss of a' sum greatly in excess of the value of the subject of the litigation, has a quite bizarre aspect. We conclude that that claim was properly disallowed, and that there was no error in the decree appealed from. That decree is affirmed. Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 11. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number. Answer:

songer_geniss

G

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". A.J. CARLSON and Stener Carlson, Executors of the Estate of Ruth Evenson, Deceased, Appellants, v. Clifford PETERSON, d/b/a Cliffs Texaco, Appellee. No. 84-1730. United States Court of Appeals, Eighth Circuit. Submitted Oct. 11, 1984. Decided March 5, 1985. Steven C. Beardsley, Rapid City, S.D., for appellants. Wayne Gilbert, Rapid City, S.D., for ap-pellee. Before ARNOLD, FAGG, and BOWMAN, Circuit Judges. FAGG, Circuit Judge. A.J. and Stener Carlson, on behalf of the estate of their mother, Ruth Evenson, appeal a judgment entered on a jury verdict in favor of Clifford Peterson. Mrs. Even-son died after a fall at Peterson’s gasoline service station in April 1980. The Carlsons claim that the trial court committed several errors, including instructing the jury on the defense of assumption of the risk when no evidence supports such a charge. We affirm. Cliff Peterson owned and operated a Texaco service station in Lemmon, South Dakota, until he retired shortly before trial. On April 10, 1980, a friend drove Ruth Evenson, in Evenson’s car, to Peterson’s station to have her snow tires removed. To do the job, Peterson raised the car or; a hoist about six inches, while Evenson remained in the passenger seat. Peterson finished the job, and Evenson and her friend drove away. A short time later, Evenson and her friend returned to the station upon discovering a noise coming from underneath the car. Peterson said he would have to raise the car to check underneath and inquired whether Evenson would like to get out. She declined, expressing a desire to stay in the car and read the newspaper. Peterson raised the car over five feet in the air. As Peterson began work on a detached muffler, he saw Evenson tumble from the car to the ground. Evenson suffered head injuries from which she later died. At trial, Peterson introduced into evidence testimony of a private investigator who rode up on the same hoist. The witness testified that the sights, sounds, and sensations surrounding the upward movement of the hoist made it obvious that he sat five or six feet above the ground. From that evidence, Peterson claims that Mrs. Evenson had constructive knowledge of her peril, yet chose to encounter it and thus assumed the risk of her injury. See Myers v. Lennox Co-op Ass’n, 307 N.W.2d 863, 864-65 (S.D.1981). We agree. In South Dakota, the defense of assumption of the risk bars recovery if the injured party had knowledge, either actual or constructive, of the danger involved in a situation; appreciated the risk of that situation; and voluntarily accepted that risk. Id.; Stenholtz v. Modica, 264 N.W.2d 514, 517-18 (S.D.1978). One has constructive knowledge of a risk if the risk is so plainly observable that anyone of competent faculties will be charged with knowledge of it. E.g., Bartlett v. Gregg, 77 S.D. 406, 92 N.W.2d 654, 657 (S.D.1958); Prosser, Torts § 68, at 448 (4th ed. 1971). In addition, there are risks the appreciation of which no adult can deny, such as the danger of falling from a height. E.g., Prosser, supra, at 448; Restatement (Second) of Torts § 496D comment d (1965). Finally, voluntariness can be established by demonstrating that the injured party had enough time, knowledge and experience to make an intelligent choice. Myers, 307 N.W.2d at 864. The Carlsons claim that the evidence does not support an instruction on assumption of the risk. They rely on Peterson’s failure to warn Mrs. Evenson of the precise height to which he planned to raise the car and on Mrs. Evenson’s experience one-half hour before the accident when Peterson raised her car only six inches. On the other hand, Peterson testified that he told Mrs. Evenson he was going to raise the car to check underneath. From the evidence of the sights, sounds, and sensations involved in riding up the hoist, a jury could find that Mrs. Evenson knew of and appreciated her peril. That she may have momentarily forgotten where she was does not preclude a finding of assumption of the risk. Prosser, supra, at 449. Mrs. Evenson was an alert individual, suffering from no infirmities, and nothing suggests she was forced to get out of the car. We are satisfied that the trial judge committed no error by submitting the defense of assumption of risk to the jury- The Carlsons also claim that the trial judge committed error by instructing the jury that Peterson had a duty to exercise care for Mrs. Evenson’s safety and rejecting a proposed instruction that Peterson had a specific duty to warn his invitees of dangerous conditions. We do not consider this reversible error because the instruction given to the jury was a correct, albeit brief, statement of South Dakota law. See South Dakota Pattern Jury Instructions, Civil §§ 120.06A, 120.06B (1968). We have carefully considered the other claims made by the Carlsons and find them lacking in merit. Accordingly, the judgment of the district court is affirmed. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:

songer_typeiss

D

What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. SMITH v. JIM DANDY MARKETS, Inc. et al. CENTRAL MFRS. MUT. INS. CO. et al. v. JIM DANDY MARKETS, Inc. No. 11982. United States Court of Appeals Ninth Circuit. Feb. 11, 1949. Rehearing Denied March 10, 1949. Clyde Thomas and Milan Medigovich, both of Los Angeles, Cal., for appellant Smith. Thomas P. Menzies and Harold L. Watt, both of Los Angeles, Cal., for appellants Central Mfg. Mut. Ins. Co. and others. Harry G. Sadicoff, of Los Angeles, Cal., for appellee Jim Dandy Markets. E. Eugene Davis and W. W. Hindman, both of Los Angeles, Cal., for appellee, Fireman’s Fund Ins. Co. Before STEPHENS, BONE and ORR, Circuit Judges. ÓRR, Circuit Judge. Appellants, Central Manufacturers’ Mutual Insurance Company, hereinafter called Central, and Indiana Lumbermen’s Mutual Insurance Company, hereinafter called Indiana, some time during the year 1946, issued insurance policies to appellee Jim Dandy Markets, Inc., on a building known as the Atlantic Market. Appellee Fireman’s Fund Insurance Company, a corporation, hereinafter referred to as Fireman’s, issued a policy to appellant Smith on the same building. The building was subsequently destroyed by fire. Uncertainty existing as to their liability, if any, Central and Indiana brought an action pursuant to the Declaratory Judgment Act, 28 U.S.C.A. § 400 [now §§ 2201, 2202], The facts are: Smith leased two adjoining lots situate in Bell, California. The period of the lease was from August 1, 1942, to August 1, 1947, with an option to extend the period for an additional five years. One of the provisions of the lease was that existing improvements on the premises and those added during the term of the lease were the property of Smith and could be removed by him at the expiration of the lease. In July 1945 the Atlantic Market, and seven others owned or leased by Smith, including fixtures, machinery and equipment, were by him leased or subleased to Jim Dandy Markets who operated them under that arrangement for approximately one year. Later Smith and Jim Dandy Markets entered into a supplementary agreement for the sale of Smith’s interest in the various properties and leases connected with the business. By the terms of the agreement Jim Dandy Markets agreed to buy “ * * * all of the fixtures, machinery and equipment located and contained in all of the markets * * * ”, and it was further agreed that the original leases under which some of the lots, including the Atlantic Market, were held by Smith, were to be assigned to Jim Dandy Markets. The total consideration for the transfer was $225,000. Under the earlier agreement Jim-Dandy Markets was given an option to buy-fixtures and equipment at the termination of the ten year lease for the sum of $192,-500. The Atlantic Market building, which was severed from the realty by the original lease, was not specifically mentioned in the assignment which, in part, reads: “ * * * I, E. F. Smith * * * do hereby sell, assign and set over * * * a certain indenture and lease * * * subject to the rents, covenants and conditions contained in said lease * * * Subsequent to the 1945 sub-lease, but prior to the 1946 supplementary agreement, Smith insured the Atlantic Market with Fireman’s in the sum of $16,700 against loss by fire, and it was subsequent to the execution of the supplementary agreement that Jim Dandy. Markets secured fire insurance policies on the Atlantic Market from Central and Indiana, each policy being in the sum of $12,-500. Each of the above mentioned policies conform to § 2071, California Insurance Code. The Atlantic Market was destroyed by fire on January 14, 1947. At the time of the fire, insurance premiums on each of the1 above mentioned policies-were paid to date’. Jim Dandy Markets had made all payments due Smith under the terms of the supplementary agreement. These payments were completed on July 30, 1947, and all documents relating to the transaction, which had theretofore been placed in escrow, were delivered to Jim Dandy Markets. Central and Indiana, in bringing the declaratory relief action, named as parties Jim Dandy Markets, Fireman’s and Smith. An answer was filed by Smith and he also filed a cross-complaint against, Jim Dandy Markets wherein he demanded reformation of the lease, should the court determine that the assignment transferred the title of the Atlantic Market to Jim Dandy Markets. In approaching a determination of the liabilities of the insurance companies under the respective policies the question of whether or not the 1946 assignment of the lease which Smith executed to Jim Dandy Markets included the Atlantic Market building is of first importance. If it did not, and Smith remains the owner, then he had an insurable interest and suffered the loss incurred by the fire. The assignment did not expressly mention the building, nor would such mention be expected in the usual situation where the building is part of the realty. The original lease given Smith provided that improvements on the land should belong to the lessee (Smith) and he (Smith) was given the right to remove them at the termination of the lease. An analogous factual situation is found in California Annual Conf. of Methodist, Episcopal Church v. Seitz, 74 Cal. 287, 15 P. 839. There, a lessee owned buildings on land held by him under a lease, and later assigned “ * * * all my right, title, and interest in and to the within lease * * * It was held that this instrument transferred title to the buildings to the assignee. The rationale of the court’s opinion was that in .light of the circumstances of that case the assignment manifested an intent by both parties that ownership of the buildings was to be transferred. It was not held that every such assignment carries with it interests in buildings which have been severed from the land. We must, therefore, look to the circumstances of this case- to determine the intent of Smith and Jim Dandy Markets in executing the written assignment. The trial court found that the assignment was intended by both parties to convey Smith’s interest in the building as 'well as the land to Jim Dandy Markets. A series of agreements between the two parties culminated in the assignment. In the agreements executed by them we find no reference to rent for the Atlantic Market, which would reasonably be expected if Smith intended to- reserve ownership of the building while Jim Dandy Markets remained in occupancy. It is also significant 'that the land lease, fixtures, equipment and machinery had no usefulness apart from the building. The supplementary agreement between the parties evidences an understanding that Jim' Dandy Markets was to buy out Smith’s interest in the eight ■stores .in order, to gain complete control Over' the facilities .by. which it carried on its grocery business. This purpose could not be attained through the transfer of the land and equipment, but not the store building. A reservation by the assignor of the right to remove the building, which is an essential part of the entire business, would plunge the agreement into inconsistency and confusion. These factors give weight to a construction of the assignment that includes a transfer of all of Smith’s rights growing out of the assigned lease and support the trial court’s finding that at the time of the fire Smith had conveyed the building to Jim Dandy Markets, conditioned on payment of the sales price. The finding of the trial court that the assignment manifested the intent of both parties that the building should be transferred being upheld, it follows that no reformation of the assignment may be had. Reformation requires clear and convincing evidence of a mutual mistake. Calif.Civ. Code, §§ 3399, 3400, 3401; Burt v. Los Angeles Olive Growers Ass’n, 175 Cal. 668, 675, 166 P. 993. In California, Jim Dandy Markets, as conditional vendee in possession of personalty, had an insurable interest as the sole owner of the property within the meaning of the policies issued by Central and Indiana. Savage v. Norwich Union Fire Insurance Society, 125 Cal.App. 330, 13 P.2d 955; Votaw v. Farmers Automobile Inter-Insurance Exchange, Cal.Sup., 85 P.2d 872. The vendee bears the risk of loss and is entitled to recover on his policies with appellant insurance companies. It is argued that even if the assignment transferred the building to Jim Dandy Markets, Smith had an insurable interest .in the building because of his lien thereon for the payment of the balance of the purchase price, and therefore should recover on his policy with Fireman’s Fund Insurance Co. This argument fails because, regardless of Smith’s interest in the building, he suffered no loss from its destruction. Under California law, which we are required to follow, a fire insurance poli■cy is a personal indemnity contract and a showing of pecuniary damage is prerequisite to recovery thereon. Davis v. Phœnix Insurance Co., 111 Cal. 409, 415, 43 P. 1115; Alexander v. Security-First Nat’l. Bank, 7 Cal.2d 718, 723, 62 P.2d 735; 14 Cal.Jur. 464, § 37. Judgment 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_casetyp1_2-2

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 "civil rights". UNITED STATES ex rel. DANIKAS v. DAY, Commissioner of Immigration, and three other cases. Circuit Court of Appeals, Second Circuit. July 20, 1927. Nos. 240, 384, 385, 387. 1. Aliens <3=54(5) — Warrant for deportation of alien seaman unlawfully remaining in country must issue within three years, rather than five, under statute (Immigration Act 1917, §§ 19, 34 [Comp. St. §§ 4289'AÜ. 4289'/4s]). Under Immigration Act 1917, § 34 (Comp. St. § 4289%s), providing that any alien seaman landing contrary to provisions of such act shall be deemed to be unlawfully in the United States, “and shall at any time within three years thereafter, upon the warrant of the Secretary of Labor, be taken into custody * * * for examination, and if not admitted shall be deported,” warrant for deportation of seaman unlawfully entering must issue within three years, notwithstanding section 19 (section 428914X1), establishing a five-year limitation as to other aliens. 2. Aliens <3=54(5) — Under statute, date when alien is taken Into custody, rather than date of issuance of warrant of arrest, determines whether proceedings were commenced within three-year period of limitation (Immigration Act 1917, § 34 [Comp. St. § 4289'/4s]). Under Immigration Act 1917, § 34 (Comp. St. § 428914s), providing that alien seaman landing contrary to provisions of such act shall be deemed unlawfully in the United State*, “and shall at any time within three years thereafter, upon the warrant of the Secretary of Labor, be taken into custody” for examination, and if not admitted shall be deported, the date on which the alien is taken into custody, and not that on which the warrant of arrest is issued, determines whether proceedings are commenced within three-year period. 3. Appeal and error <3=345(1) — 'Time for appeal does not run until motion for rehearing is disposed of. Time within which an appeal must be taken does not begin to run until motion for rehearing has been disposed of. 4. Habeas corpus <@=II3(3) — Appeal from order denying roargument in habeas corpus proceeding held improperly taken, and dismissible. In habeas corpus proceeding on relation of alien held for deportation, appeal by government from order denying motion for reargument held improperly taken, and dismissible. 5. Appeal and error <S=77(I) — Order denying reargument in habeas corpus proceeding is not final and appealable. jn habeas corpus proceeding, order denying reargument is not final and appealable. Appeals from, the District Court of the United States for the Southern District of New York. Writs of habeas corpus were granted on the relation of Yasillios Danikas, of Yineenzo Di Giacomo, of George Depastas, and of Mauro Lorusso against Benjamin M. Day, Commissioner. Orders were granted in each ease, sustaining the writ and discharging the relator, and respondent appeals. Appeal in Danikas Case dismissed, and the orders in the other cases affirmed. Danikas. The relator, an alien, is a native and subject of Greece. On January 2, 1922, he arrived at the port of New York as a member of the crew of the steamship Constantinople and deserted his ship. He was not examined by the immigration authorities for permanent admission to the United States at the time of his arrival, nor was he charged to the quota allotted to Greece for the fiscal year ending June 30, 1922. After his desertion he remained in this country, and on October 30, 1924, voluntarily appeared at Ellis Island for inspection at the suggestion of his attorney, and requested that his entry be legalized. On the facts ascertained as to the manner and time of his entry, a warrant of arrest was issued November 13, 1924, but ho was not arrested under the warrant until January 22, 1926. He was charged in the warrant with being liable to deportation under the Immigration Act of May 26, 1924 (Comp. St. §§ 4289%-4289%nn), in that he was not in possession of an unexpired immigration visa, and that he had been found in the United States in violation of the Immigration Act of February 5, 1917, because he was likely to become a public charge at the time of his entry, and had entered at a time or place other than as designated by immigration officials. On January 22, 1926, the alien was brought before a Board of Special Inquiry for examination, pursuant to section 34 of the Act of February 5, 1917 (Comp. St. § 42891,4s). The board failed to sustain the charge that he was in the United States in violation of the act of 1924, hut a warrant of deportation was issued on the ground that he entered the United States without being admitted and charged to the quota allotted to the country of which he was a native for the fiscal year ended June 30, 1922, and because he entered by water at a place other than as designated by immigration officials and was a person likely to become a public charge at ' the time of his entry. A writ of habeas corpus was then sued out, whieh was sustained by order of March 31, 1926. The judge who made this order thereafter issued ap order to show cause why the order of March 31st should not be vacated, and the alien should not be allowed to amend his return. This motion was denied by order of June 11, 1926, and the Commissioner of Immigration filed a petition of appeal from the order of June 11. Di Giacomo. This relator is a native and subject of Italy. On October 14,1922, he arrived at the port of New York on the steamship Guglielmo Pierce as a member of the crew, and deserted his vessel and remained in the United States. On October 13, 1925, after an investigation that disclosed he was illegally in the country, a warrant of arrest issued on October 14, 1925, on the ground that he was in the country in excess of quota, and had entered at a time and place other than as designated by the immigration officials. As he had gone to Philadelphia he was not taken into custody under the warrant until January 6,1926, after his return. The alien stated that when his ship arrived he went to visit some relatives in Long-Island, became sick, and stayed there about two weeks. On his return he found his ship had gone, looked for another ship, and then looked for work. A warrant of deportation was then issued, after a hearing before a Board of Special Inquiry, because he entered the United States without being admitted and charged to the quota of the country of whieh he was a native for the fiscal year ending June 30, 1923, and because he entered by water at a time or place other than as designated by immigration officials. A writ of habeas corpus was thereafter sued out, whieh was sustained, and from the order sustaining the writ this appeal has been taken. Depastas. This relator is a native and subject of Greece. On January 30, 1922, he arrived at the port of New York on the steamship King Alexander as a member of the crew. Upon arrival he deserted the ship and entered this country, obtained employment, and has remained here ever since. On June 10, 1924, a warrant of arrest was issued, but he was not arrested until November, 1926. He was given a hearing before an immigrant inspector, and ordered deported by warrant dated November 29, 1926, on the ground that the quota for the year ended June 30, 1922, allotted to the country of whieh he was a native, was exhausted. A writ Of habeas corpus was thereafter sued out which was sustained, from the order sustaining whieh this appeal has been taken. Lorusso. This relator arrived in this country on the steamship Presidente Wilson as a member of the crew, on March 14,1923. He was reported as a deserter on March 18, 1923, but the warrant for his arrest did not issue until November 11, 1926, and was apparently not served until December 7, 1926, when he was brought to Ellis Island and given a hearing before an inspector of immigration. He was ordered deported, by warrant dated January 6, 1927, on the ground that he entered the United States without being admitted and charged to the quota allotted to the country of which he was a native, for the fiscal year ended June 30, 1923. A writ of habeas corpus was thereafter sued out, whieh was sustained, from the order sustaining which this appeal has been taken. Charles H. Tuttle, U. S. Atty., of New York City (Edward Eeldman, Asst. U. S. Atty., of New York City, of counsel), for appellant. Charles J. Gerlieh, Jr., of New York City, for appellees Danikas and Depastas. Harry H. Hoffnagle, of New York City (MeCready Sykes, of New York City, of counsel), for appellee Di Giacomo. - Isaac Shorr, of New York City (Carol Weiss King, of New York City, of counsel), for appellee Lorusso. James C. Thomas, of New York City, amicus curias. Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges. AUGUSTUS N. HAND, Circuit Judge (after stating the facts as above). The main question discussed in each-of the foregoing eases is whether the warrant of deportation issued too late. Section 34 of the Immigration Act of 1917 provides: “That any alien seamen who shall land in a port of the United States contrary to the provisions of this act shall be deemed to be unlawfully in the United States, and shall, at any time within three years thereafter, upon the warrant of the Secretary of Labor, be taken into eustody and brought before a board of special inquiry for examination as to his qualifications for admission to the United States, and if not admitted said alien seaman shall be deported at the expense of the appropriation for this act as provided in section twenty of this act.” This section, naturally read, would seem to require the Secretary of Labor to arrest a seaman within three years after unlawfully landing in the country, if he sought to deport him; but the government, in spite of the quite unqualified language, contends that the section only determines the admissibility of a seaman, as sections 12-17 (Comp. St. §§ 4289%g-4289%,ii) do of other classes, and that seamen, as well as all other persons, are subject to deportation under section 19 (Comp. St. § 42891/4jj), which contains a live-year statute of limitation for excludable persons, except in the ease of irregular entry, where the time is three years. Certainly this contention is not sound as to causes such as insufficiency of quota, which is an irregularity connected with entry, even if the provisions of section 19 may bo thought to apply to deportation of seamen for offenses subsequent to their arrival. One of the provisions of section 19 is that “ * * * at any time within three years after entry, any alien who shall have entered the United States by water at any time or place other than as designated by immigration officials, or by land at any place other than'one designated as a port of entry for aliens by the Commissioner General of Immigration, or at any time not designated by immigration officials, or who enters without inspection, shall, upon warrant of the Secretary of Labor, be taken into eustody and deported. * * * ” The government in its brief says that: “Section 34 is simply an exception to this provision of section 19. An alien seaman arrested within three years after an unlawful entry may not be deported on that ground. * * • In that respect, and in that respect only, we submit, is the status of an alien seaman in this country different from that of an ordinary alien.” We can, however, see nothing in section 34 which limits its purpose to giving a hearing to seamen as to their admissibility. Indeed, it is not true, as claimed, that persons, other than seamen, are in all cases denied belated hearings on their qualifications for admission. On April 20, 1926, the Bureau of Immigration promulgated upon the subject of “nunc pro tune examinations” a first amendment to General Order No. 37. That amendment provided for such hearings to determine the status of aliens, when entries were before July, 1921, and between July 1, 1921, and July 1, 1924, where the alien might have been admitted for permanfent residence as exempt from quota. It must be remembered that it had been held by the Supreme Court in Taylor v. United States, 207 U. S. 120, 23 S. Ct. 53, 52 L. Ed. 130, that deserting seamen did not come within the immigration laws. The provisions of the act of 1917, including section 34 under discussion, wore enacted to bring them within the law, and that was the only act prior to that of 1924 that' dealt with them in terms. Section 34 provides that seamen who land “contrary to the provisions of this act,” not merely those who land without inspection, can be deported within three years, if they cannot establish their qualifications for admission to the satisfaction of a Board of Special Inquiry. Indeed, section 19 provides for only a three-year limitation in respect to entry of any person without inspection, so that section 34 was not needed to cover mere irregular entry by seamen, if they were deportable under section 19. The view that section 34 alone regulates the deportation of seamen was taken by Judge Learned Hand in United States ex rel. Filippini v. Day, 18 F.(2d) 781, decided in the District Court December 3, 1926. There is strong ground for this, as nothing else dealt with them in terms, and prior to the act of 1917, by reason of the decision in Taylor v. United States, supra, they wore not deport-able. The Circuit Court of Appeals of the Ninth Circuit, in Nagel v. Hansen, 17 F.(2d) 557, seems to have reached the same result. We can in any event see no escape from the conclusion that section 34 regulates the deportation of seamen in all eases relating to improper entry sueh as entry in excess of quota. Moreover, if the strict language of section 19 be considered, it seems unlikely that a seaman can be regarded as a person “who at the time of entry was a member of one or more of the classes excluded by law.” It is his change of status by remaining which makes his presence here unlawful. Two other questions are said to have been decided erroneously by the court below. The first is that, even if the three-year statute1 of limitation be taken to apply to any of these eases, the proceedings in the Danikas, the Di Giacomo, and the Depastas Cases were all commenced within the three-year period. The date which the government insists is the eritical one is that when the warrant of arrest is issued, and not when the alien is taken into custody. The other point is raised by the relator Danikas, who contends that the appeal in his case was not timely, and that the order sustaining the writ is not brought up for review. The proceedings were in each case taken too late. As was said in United States ex rel. Filippini v. Day, supra, “it is now the arrest which counts,” and not the date of issue of the warrant or the time of the actual deportation. In United States ex rel. David v. Tod (C. C. A.) 289 F. 60, and United States ex rel. Patton v. Tod (C. C. A.) 297 F. 385, the proceedings were under sections 19 and 20 of the Immigration Act (Comp. St. §§ 4289%jj, 4289%k), and did not relate to seamen. In each case the arrest was within the statutory limit of five years from the date of entry. It was held that section 20, providing, as it did, “if deportation proceedings are instituted at any time within five years after the date of entry,” was satisfied where the warrant was issued and served within the five years. Section 34 is much plainer, for it says nothing about the institution of proceedings, but provides that “any alien seaman who shall land in a port of the.United States contrary to the provisions of this act, * * * and shall at any time within three years thereafter, upon the warrant of the Secretary of Labor, be taken into custody, * * * shall be deported.” This, by the plainest language, makes the taking “into custody” within three years from landing the critical factor. In the Danikas Case the appeal was seasonable, because the time did not begin to run until the motion for a rehearing was disposed of (Aspen Mining & Smelting Co. v. Billings, 150 U. S. 31, 14 S. Ct. 4, 37 L. Ed. 986; Northern Pacific R. R. v. Holmes, 155 U. S. 137, 15 S. Ct. 28, 39 L. Ed. 99), but there was no appeal from the order sustaining the writ, inasmuch as the petition on appeal referred only to the order denying the motion for a reargument. It is fortunate that we find no error in the disposition of the writ, for the appeal as taken does not cover the order sustaining it, and the order denying the motion for a reargument, from which alone the appeal has been taken, is not appealable, because it is not a final order. The appeal in the Danikas* Case must accordingly be dismissed. The orders sustaining the writs on behalf of Di Giacomo, Depastas, and Lorusso are affirmed. Question: What is the specific issue in the case within the general category of "civil rights"? A. civil rights claims by prisoners and those accused of crimes B. voting rights, race discrimination, sex discrimination C. other civil rights Answer:

songer_capric

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 courts's use or interpretation of the arbitrary and capricious standard support the government? Note that APA allows courts to overturn agency actions deemed to be arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. Overton Park emphasized this is a narrow standard, and one must prove that agency's action is without a rational basis. This also includes the "substantial justification" doctrine. 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". PUBLIC SERVICE COMPANY OF COLORADO, a corporation; Western Slope Gas Company, a corporation; and Public Service Company of Colorado, Successor by Merger to Pueblo Gas and Fuel Company, a corporation, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. No. 85-1049. United States Court of Appeals, Tenth Circuit. April 15, 1987. Timothy Fox of Kelly, Stansfield & O’Donnell, Denver, Col., for plaintiffs-appellants. Roger M. Olsen, Asst. Atty. Gen., Michael L. Paup, Jonathan S. Cohen, and Francis M. Allegra, Tax Division, Dept, of Justice, Washington, D.C., of counsel, Robert N. Miller, U.S. Atty., Denver, Col., for defendant-appellee. Before LOGAN, SEYMOUR, and MOORE, Circuit Judges. LOGAN, Circuit Judge. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R. App.P. 34(a); Tenth Cir.R. 34.1.8(c) and 27.-1.2. The cause is therefore ordered submitted without oral argument. In this appeal we decide whether an Internal Revenue Service classification of certain vehicles as truck-trailer combinations was contrary to the Highway Revenue Act, 26 U.S.C. § 4481-84. Section 4481(a) of the Act, before amendments effective in 1984, provided, in part, as follows: “A tax is hereby imposed on the use of any highway motor vehicle which (together with the semitrailers and trailers customarily used in connection with highway motor vehicles of the same type as such highway motor vehicle) has a taxable gross weight of more than 26,000 pounds____” (Emphasis added). The term “taxable gross weight” was defined in § 4482(b) as the sum of “(1) the actual unloaded weight of— (A) such highway motor vehicle fully equipped for service, and (B) the semitrailers and trailers (fully equipped for service) customarily used in connection with highway motor vehicles of the same type as such highway motor vehicle, and (2) the weight of the maximum load customarily carried on highway motor vehicles of the same type as such highway motor vehicle and on the semitrailers and trailers referred to in paragraph (1)(B). Taxable gross weight shall be determined under regulations prescribed by the Secretary (which regulations may include formulas or other methods for determining the taxable gross weight of vehicles by classes, specifications, or otherwise).” (Emphasis added). Treas.Reg. § 41.4482(b)-l, adopted under authority of § 4482(b), established weight classifications based upon how the vehicles were equipped for use, and treated vehicles equipped for use in combination with trailers or semitrailers as taxable according to the gross weight of the combination. Revenue Ruling 76-294,1976-2 C.B. 364, interpreting the regulation, classified utility trucks equipped with pintle hooks capable of towing heavyweight trailers as “equipped for use in combinations” and taxable, under § 4481, as truck-trailer combinations Id. at 365. Plaintiffs, Public Service Company of Colorado and Western Slope Gas Company, seek to recover highway motor vehicle use taxes assessed under § 4481 for the years 1972 to 1975 on plaintiffs’ trucks equipped with pintle hooks. Plaintiffs assert that classification of these vehicles as truck-trailer combinations merely because they are “equipped for use” with heavyweight trailers, without a factual determination as to “customary use,” is contrary to §§ 4481 and 4482. The district court disagreed and granted summary judgment for the government, finding that the pintle hook classification was “neither arbitrary nor inconsistent with the statute.” R. II, 338. Whether trucks equipped with pintle hooks permitting use with heavyweight trailers should be taxed as specified in Rev. Rul. 76-294 has already been addressed by five other circuits. Consolidated Edison Company of New York, Inc. v. United States, 782 F.2d 322 (2d Cir.1986); Minnesota Power and Light Co. v. United States, 782 F.2d 167 (Fed.Cir.1986); Northern Illinois Gas Co. v. United States, 743 F.2d 539 (7th Cir.1984), cert. denied, 472 U.S. 1027, 105 S.Ct. 3501, 87 L.Ed.2d 632 (1985); Northern States Power Co. v. United States, 663 F.2d 55 (8th Cir.1981), aff'g 503 F.Supp. 1182 (D.Minn.1981), cert. denied, 456 U.S. 965, 102 S.Ct. 2045, 72 L.Ed.2d 490 (1982); Pacific Gas and Electric Co. v. United States, 664 F.2d 1133 (9th Cir.1981). Only one of these opinions rejects the Secretary’s choice of “equipped for use” as a basis for taxation under § 4481. Pacific Gas and Electric, 664 F.2d at 1135. We find ourselves in agreement with the four other circuits that have accepted the Secretary’s interpretation. The provision in § 4482(b) that explicitly allows the Secretary to use “formulas or other methods for determining the taxable gross weight of vehicles by classes, specifications, or otherwise,” in effect gives the Secretary of the Treasury “legislative” rulemaking power, so long as the Secretary acts within the parameters of the statute. As the Federal Circuit in Minnesota Power & Light Co. stated: “ ‘The “customarily used” language ... [of § 4481] must be read in combination with the language in section 4482(b), which authorizes the Secretary to develop “formulas and other methods” for determining the taxable gross weight of vehicles. Because the “customarily used” requirement is integral to the determination of taxable gross weight, we read section 4482(b) as permitting the Secretary to develop a short-hand method for determining whether a certain type of vehicle is customarily used in combination with heavy trailers.’ ” 782 F.2d at 172 (quoting Northern Illinois Gas Co., 743 F.2d at 542). We will sustain an agency’s interpretation of a statute it is charged with administering unless the interpretation is unreasonable or inconsistent with the governing statute. See King v. United States, 545 F.2d 700, 706 (10th Cir.1976); Minnesota Power and Light Co., 782 F.2d at 170. The Secretary’s classification according to how the vehicle is equipped for use — its capacity — seems a more administratively feasible approach than a system which requires individual inquiry as to the actual use of each vehicle by each owner. We cannot find the legislative regulation to that effect beyond the power of the Secretary. The pintle hook revenue ruling seems a reasonable construction of the regulation, not inconsistent with the statute. Our affirmance of the Secretary’s interpretation is supported by recent congressional action. The Highway Revenue Act of 1982, Pub.L. No. 97-424, tit. V, 96 Stat. 2168, provides an express clarification of the “customary use” language: “(c) CLARIFICATION OF TRAILERS CUSTOMARILY USED IN CONNECTION WITH HIGHWAY MOTOR VEHICLES.— (1) Subsection (c) of section 4482 is amended by adding at the end thereof the following new paragraph: ‘(5) CUSTOMARY USE. — A semitrailer or trailer shall be treated as customarily used in connection with a highway motor vehicle if such vehicle is equipped to tow such semitrailer or trailer.’ ” Id., § 513(c), 96 Stat. 2179, codified at 26 U.S.C. § 4482(c)(5). The legislative history accompanying the 1982 Act emphasizes that the amendment is a clarification of congressional intent, not a modification. “The definition of taxable gross weight is not modified by the bill. However, the bill makes it clear that a semitrailer or trailer is to be treated as customarily used in connection with a highway motor vehicle if the vehicle is equipped to tow the semitrailer or trailer.” H.R.Rep. No. 945, 97th Cong., 2d Sess. 17-18 (1982). Subsequent legislation such as this “declaring the intent of an earlier statute is entitled to great weight in statutory construction.” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-81, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969) (footnote omitted). For the foregoing reasons we hold that the Secretary’s interpretation of customary use is not unreasonable or plainly inconsistent with §§ 4481 and 4482. AFFIRMED. . A pintle hook is a mechanism that can be attached to the back of a truck or other motor vehicle which will enable that vehicle to pull a trailer or other piece of equipment, provided the trailer or equipment has an eye that will attach to the hook. . Rev.Rul. 76-294 either modified or clarified the IRS’s earlier classification of utility trucks equipped with pintle hooks. See Rev.Rul. 57-547, 1957-2 C.B. 789. The district court allowed retroactive application of the 1976 ruling. No issue of retroactivity has been argued in this appeal. Question: Did the courts's use or interpretation of the arbitrary and capricious standard support the government? Note that APA allows courts to overturn agency actions deemed to be arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. Overton Park emphasized this is a narrow standard, and one must prove that agency's action is without a rational basis. This also includes the "substantial justification" doctrine. A. No B. Yes C. Mixed answer D. Issue not discussed 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. GIBSON v. VINTON et al. Circuit Court of Appeals, Eighth Circuit. July 28, 1927. No. 7738. 1. Courts <©=>264(3) — Federal court has jurisdiction of ancillary suit by its receiver, irrespective of parties’ citizenship or amounts involved. , Federal court has jurisdiction of an ancillary suit by its receiver, without regard to citizenship of -the parties or amounts involved. 2. Abatement and revival <©=>45 — Receiver’s suit to wind up affairs of corporation held not abated by decree directing return of property to corporation. A suit brought by a receiver of a federal court in winding up affairs of the receivership, or for the collection of assets, was not abated by a decree directing return of the property held by the receiver to defendant corporation, where court retained jurisdiction of the suit by the express terms of the decree. 3. Sales <©=>202(6) — Goods shipped, consigned to seller, with draft attached to bill óf lading, remain property of seller until draft is paid, as regards liability for loss. Where a seller ships goods consigned to himself, with sight draft for the price attached to bill of lading, he retains title and possession until draft is paid, and any loss from damage to the goods before that time falls on him. In *Error to the District Court of the United States for the Eastern District of Arkansas; Jacob Trieber, Judge. Action at law by T. 0. Vinton, receiver, and another, against John K. Gibson. Judgment for plaintiffs, and defendant brings error. Affirmed. Basil Baker, of Jonesboro, Ark., and G. M. Gibson, of Walnut Ridge, Ark., for plaintiff in error. R. G. Brown, of Memphis, Term., for defendants in error. Before KENYON, Circuit Judge, and MOLYNEAUX and JOHN B. SANBORN, District Judges. MOLYNEAUX, District Judge. This action was brought by T. 0. Vinton, as receiver for the National Cottonseed Products Corporation, against the defendant, John K. Gibson, to recover damages in the sum of $1,710.71, on account of the damaged condition of two cars of cottonseed shipped under conditions hereinafter stated. The National Cottonseed Products Corporation, hereinafter referred to as “National,” was placed in the hands of four receivers in the federal courts for the Western district of Tennessee and the Eastern district of Arkansas, September 16, 1925. T. 0. Vinton, succeeding' the four receivers, was appointed receiver of the National on the 7th day of October, 1925, by the District Court of the United States for the Western District of Tennessee, Western Division, and a similar order was entered in the District Court of the United States for the Eastern District of Arkansas, Little Rock Division. Vinton qualified in accordance with the orders of said court. He, as such receiver, brought this action. At the time the receivers were appointed on the 16th day of September, 1925, John K. Gibson, defendant, was indebted to the corporation in the sum of $5,000, evidenced by note. In September, 1925, A. G. Ba.ttison, manager of the Roberts Cotton Oil Mill, located at Jonesboro, Ark., one of the properties of: the National, made a verbal contract with Gibson to ship five ears of cottonseed to the Roberts mill at a price of $40 per ton, f. o. b., the proceeds to be credited upon said note. Written confirmation of this purchase was drawn up by Pattison and forwarded to Gibson, who executed the same on September 21st, 1925. After confirmation was sent to Gibson, a clause was added as follows: “This contract is accepted with the understanding that should the Roberts Cotton Oil Company fail to get into position to operate they will take these seed at the Dixie mill in Memphis, and that I will be protected from all loss or damage on account of receivership which these two mills are contemplated to be operated under.” Gibson testified that he had a telephone conversation with James Roberts, manager of the Dixie mill, as a result of which the memorandum was placed on the confirmation. This conversation took place September 22d, as shown by Gibson’s letter of that date. On that date Gibson shipped a ear of seed (not one of the five embraced in the contract sued upon), the shipment being made to shipper’s order, sight draft, bill of lading attached. September 24th, Roberts wrote to Gibson as follows: “Memphis, Tenn., September 24, 1925. “Jno. K. Gibson, Lauratown, Tenn. [should be Arkansas] — Dear Sir: We have yours of the 22d, and have just talked to you over the phone. You may feel assured that I am going to take care of your interests. I had the receivers write you a letter yesterday stating that the cars you care to ship in on open bill of lading lo us would be applied against your note now hold at Jonesboro, so that it would relieve any undue anxiety on your part that the funds would not reach the proper source. I appreciate your friendship a good deal more than to get you in trouble over a shipment of cottonseed, and therefore, should I see anything coming up that would hinder me from carrying out what I say, I would certainly not allow your seed to come in to this plant and he unloaded. “Yours truly, James Roberts, “Manager.” Gibson’s answer to this letter is hereinafter referred to. October 1, 1925, Gibson shipped two cars of cottonseed to the Dixie mill in Memphis, car S. L. S. F. No. 36213, which reached destination October 8th, and car K. C. F. S. & M., No. 43010, the contents of which reached Memphis in two ears on October 11th. These cars were consigned by Gibson to his own order, with sight draft attached to bill of lading. Neither of the bills of lading were indorsed or assigned by the shipper. Defendant’s proof, which is uncontradieted, shows that the seed was in good condition when it left Portia. Plaintiff’s proof, which is uncontradicted, shows that all of the seed was in very had condition when the cars reached Memphis. There appears to be no dispute as to the amount of the damages. A jury returned a verdict by the direction of the court for the amount prayed for in the complaint. The original contract for shipment of the seed was made with the four receivers who were first appointed, and who were succeeded by T. O. Vinton. The seed were shipped during the incumbency of the four receivers, and reached Memphis after the appointment of Vinton and the discharge of the four reeeivr ers. Thfe receiver paid for the seed before it reached Memphis and before he discovered '' that it was damaged. He, as such receiver, sued the shipper in the .United States court by order of the .court.' The amount involved was less than $3,000. On June 23, 1926, long after this action was brought, a decree was entered in said receivership suit in the District Court for the Western District of the Western Division of Tennessee, in which it was decreed that the receiver should turn over to the' National Cottonseed Products Corporation and convey to it all of the property of said corporation held by the receiver, and required the receiver to relinquish and turn over to said corporation the management and control of the business and affairs of said corporation. The court, however, did not discharge the receiver, and reserved jurisdiction of this suit. Again, section 9 provides for the corporation to be “substituted” for the receiver in all suits where he was the defendant and to be “joined” with him in all suits where he was the plaintiff. The receiver was not discharged. Accordingly the corporation was, on the motion of the receiver, made a party plaintiff with the receiver by order of the court. On November 23, 1926, the appellant, Gibson, moved the lower court to dismiss the action assigning as grounds therefor, the provision of said decree before mentioned, and that in compliance therewith the corporation had taken over all of the assets as ordered. This motion was denied, and exceptions were reserved by the appellant. Counsel for appellant have made 11 specifications of error, but in their brief they have argued and relied o,n but 2,' and the court will therefore only consider those 2, which may be summarized as follows: (1) That the lower court had no jurisdiction to try the ease after the corporation was made .plaintiff, since the matter in dispute was less than the sum of $3,000. (2) That the seed became the property of the receiver when shipped at' Portia, and that the quality of the seed when shipped, not the condition when received, controlled. [1] 1. Defendant urges that the court did not have jurisdiction of the matters in controversy at the time of the trial. The receiver filed his petition as ancillary to the suit under which he was appointed. It is settled law that a federal court has jurisdiction of an ancillary suit by its receiver, without regard to the citizenship of the parties or the amounts involved, and that any suit by a receiver in winding up the affairs of a receivership, or for the collection of assets, or in defense of the property in his hands as receiver, is to be regarded as ancillary to the main suit, and is cognizable in the federal court, regardless either of citizenship or the amount in controversy. Wilson v. K. C. Light Co. (D. C.) 300 F. 185, and authorities there cited. White v. Ewing, 159 U. S. 36, 15 S. Ct. 1018, 40 L. Ed. 67; Kelley v. Gill, 245 U. S. 116, 38 S. Ct. 38, 62 L. Ed. 185; Rose’s Fed. Jur. (3d Ed.) 417, 418. 2. It is contended by the defendant that thfe action abated upon the entry, of the decree of June 26, 1926. In that decree the receiver was ordered to turn over to the corporation possession of all its property which was in his possession, and also to turn over to it the management and control of the business. However, the receiver was not discharged by the decree, and it was expressly provided by section 7 of the decree as follows: “Should there be any property now properly belonging to the receiver, and which should hereunder have been conveyed and delivered to the National Corporation, which shall not be delivered as by right it should have been, there is hereby vested in the said National Corporation full right and title to sue for and recover the same in this court in this cause, and jurisdiction to that end is hereby specifically retained.” »Again, section 9 of the decree provides for the corporation to be “substituted” for the receiver in all suits where he was defendant and be “joined” with him in all suits where he was plaintiff. It thus appears that the lower court retained jurisdiction of this suit by the express terms of the decree. Moreover, it is a rule: “A fortiori an action by or against a receiver will not abate because of an order of the court restoring the property to the possession of the corporation, but not discharging the receiver.” Volume 1, C. J. under the head of “Abatement and Revival,” § 232, pp. 147,138, and authorities there cited. In Cowen v. Merriman, 17 App. D. C. 186, the court held that an order of the Supreme Court of the District of Columbia, sitting as an equity court, passed in a cause in which receivers of a railroad company were appointed, directing the railroad property to be returned to the possession of the company, but not finally discharging the receivers, would not abate an action previously commenced on the law side of the court against the receivers, for the negligent killing of plaintiff’s intestate, but such action might proceed to judgment notwithstanding such order. We think the action was not abated by the decree in question. 3. The main question to bo decided is: Was the cottonseed plaintiff’s property or defendant’s property when placed on board the cars and shipped from Portia? The evidence bearing upon that question does not seem to be conflicting. Gibson owed the National $5,000, borrowed money, represented by a note, and agreed verbally with Pattison, manager of the Jonesboro mill, to ship five cars of “good, sound, dry, clean cottonseed” at $40 per ton, f. o. b.' ears, proceeds to be applied to the payment of the note, settlement to be based on mill weights. This contract was reduced to writing and was signed by Gibson on September 21, 1925. Prior to the signing of the written contract, Gibson had a telephone conversation with James Roberts, manager of the Dixie mill, in Memphis, in which defendant had stated that he wanted to have the proceeds of these five ears applied to the payment of his note. Roberts agreed to this, and had tho receivers write to Mr. Gibson to that effect. This letter crossed in the mails a letter written by Gibson to the Dixie Cotton Oil Company on September 22d, which letter was mainly in regard to a car of seed Gibson had sold to Roberts over the telephone on September 21st, for delivery to the Dixie mill, and which Roberts had agreed might he shipped to shipper’s order, sight draft, with hill of lading attached. This sale had no connection with the contract made with Mr. Pattison some days before for the delivery of five ears of seed, proceeds to be applied to the payment of Mr. Gibson’s $5,-000 note. This is shown by the last sentence of the letter which reads as follows: “Kindly call me np as soon as yon can take seed at Jonesboro, and I will ship the five ears in there that I sold yon yesterday over the telephone.” This letter reached Mr. Roberts on September 24th, and Mr. Gibson had another telephone conversation on tho same date, as shown by Mr. Roberts’ letter of that date, which reads as follows: “We have yours of the 22d, and have just talked to you over tho phone. You may feel assured that I am going to take care of your interest. I had the receivers write you a letter yesterday stating that the cars you care to ship in on open hill of lading to ns would be applied against your note now hold at Jonesboro, so that it would relieve any undue anxiety on your part that the funds would not reach the proper source. * * * 39 Mr. Roberts’ letter was received by the defendant on September 25th, and on that date ho wrote Mr. Roberts as follows: “I am in receipt of your letter of the 24th and I note very carefully what you have to say in regard to shipment of cottonseed to you, and I would like the best in the world to ship you every seed I have got; hut I do not want to take a chance on getting a car of seed tied np over there and having trouble over there. I know very well you would not intentionally get me into any trouble, but you have got a bunch around you; some of them would do anything. I wish you were hack at Jonesboro running your Roberts Cotton Oil Company. I believe you would make more money by doing so. If I ship any seed in there, I feel that you should get an order from court instructing you to accept the seed and apply them on the note which you hold of mine. Now, if you will do this, and mail me a copy of the order, I will pay that note off, just as soon as it quits raining, with shipments of cottonseed. I would be very glad indeed to hear that you were out of the hands of the receivers and everything straightened up as it should he. Let me hear from you further in regard to this order, and I will start cottonseed to you. You understand my position in this matter. I am not afraid of you. If you were the only man I had to deal with over there, I would take your word, or do anything in the world I could do for you; but there are so many mixed up in this company of yours that you can’t tell what one day will bring forth, and I am sorry, too, and hope you will get straightened out. “Your friend, Jno. K. Gibson.” Mr. Roberts did not get an order of court instructing him to accept the seed and apply them on the note, as was requested by the above letter, and defendant shipped another ear of seed, C. N. 322,555, consigned to shipper’s order, with sight draft attached to bill of lading. Mr. Roberts took up tho draft, although the seed had not arrived, and on September 29th wrote defendant as follows: “It is perfectly right, Mr. Gibson, for you to draw on us. There is no criticism to offer, except that we have orders from tho receiver to unload our seed before paying for them; but in this ease I am making this concession.” On October 1,1925, the defendant shipped two ears of cottonseed from Portia, Ark., to Memphis, consigned to himself, and drew two drafts on the plaintiff, to which unindorsed bills of lading were attached. It conclusively appears from the evidence in this ease that the appellant, Gibson, did not ship tbe two ears in question to be applied upon Ms $5,000 note, according to Ms previous arrangement; but, on tbe contrary, it conclusively appears that tbe two cars in question were shipped by him on an umndorsed bill of lading by which the cars were consigned to himself, with sight drafts attached, for the purchase price of the goods. These drafts were paid upon presentation. It thus appears that the plaintiff did not sMp or apply these cars upon his $5,000 note, but shipped them on a cash basis and received the cash. Where goods are shipped, consigned by bill of lading to the seller, or his agent, or to the order of the seller or his agent, the seller thereby reserves the property in the goods. Where a seller ships goods consigned to himself, with sight draft for the purchase price attached to the bill of lading, it shows an intention to retain the title and possession of the property in himself until the draft is paid. The law on this subject is stated as follows in 35 Cyc. 332: “b. Consignment to Seller or Ifis Order. —Where goods are shipped and by the bill of lading or shipping receipt are deliverable to the seller or his agent, or to the order of the seller or his agent, the seller thereby reserves the property in the goods, even though the shipment is in care of the buyer. But the evidence afforded by the inode of shipment as to the seller’s intention is not conclusive, and the property in the goods will be held to have passed to the buyer if such appears to have been the intention of the parties, as for instance where the person who is apparently the seller is in fact the buyer’s agent in the transaction, or the goods are shipped for the account and at the risk of the buyer. But on the other hand, even in such eases an intention that the property shall not pass may appear from other circumstances and should be given effect.” “d. Bill of Ladmg with Draft Attached. —If where there is a consignment to the seller, his agent, or order, the bill of lading is forwarded to the seller’s agent with draft attached to be delivered to the buyer on payment, the seller thereby manifests an intention to reserve the property in the goods, and the property does not pass until the draft is paid. And even when the buyer is named as consignee, if the bill of lading with draft attaehed-is sent to the seller’s agent or bank for collection the property in the goods is reserved and does not pass to the buyer until payment. A different intention may, however, be indicated by the circumstances of the transaction and will of course control, but an intention to pass the property will not be inferred from the delivery of an invoice to the buyer.” See authorities there cited. There were no circumstances in this case wMch would indicate that it was not the intention of the seller, Gibson, to retain the possession and title to the goods until the draft which was attached to the bill of lading, was paid. Indeed, the defendant testified repeatedly that he intended to reserve the title and possession until his drafts were paid. It conclusively appears that the title to the possession of the goods was in Gibson when the goods left Portia, and until the bill of lading was delivered to the receiver, and the draft was paid by him. So, the property being at the time it was delivered to the receiver in a damaged and spoiled condition, contrary to the agreement to deliver “good, sound, dry, clean cottonseed,” the plaintiff’s right to recover conclusively appears. The amount of the damage is not disputed. We find no reversible error, and the judgment of the lower court is affirmed. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:

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 Julia SUMPTER, Appellant, v. Robert HARPER, Appellee. No. 81-2002. United States Court of Appeals, Fourth Circuit. Argued June 10, 1982. Decided July 21, 1982. Rehearing Denied Aug. 20, 1982. Edward M. Brown, Charleston, S. C. (Moore, Brown & Davis, Charleston, S. C., on brief), for appellant. William W. Doar, Jr., Georgetown, S. C., for appellee. Before BRYAN, Senior Circuit Judge, and BUTZNER and RUSSELL, Circuit Judges. ALBERT V. BRYAN, Senior Circuit Judge: Plaintiff Julia Sumpter appeals the District Court’s dismissal of her complaint for lack of subject matter jurisdiction, see Fed. R.Civ.P. 12(b), and for failure to state a claim upon which relief could be granted, see id. 12(b)(6). Determining the judgment of the Court to be beyond reproach, we affirm. I With her complaint viewed most favorably, it appears that Julia Sumpter was a patient of defendant physician Robert Harper from 1963 until at least February 7, 1980. On the latter date, she visited Dr. Harper’s office with a blood pressure problem. The defendant then, she alleges, improperly diagnosed her as having breast cancer and thereupon recklessly performed a mastectomy without proper facilities or concern for her health and welfare. In addition to these accusations which, if true, would constitute medical malpractice, plaintiff asserted that Dr. Harper maintained segregated waiting rooms and otherwise treated blacks discriminatorily. Specifically, his allegedly outrageous conduct towards her on February 7 was said to be a product of racial animus. Charging that Dr. Harper was licensed by the State of South Carolina and that he received Federal Medicare-Medicaid funds, plaintiff sought to establish causes of action under the Thirteenth and Fourteenth Amendments as well as under 42 U.S.C. §§ 1981, 1983, and 2000d (1976). After argument ore tenus, the District Court granted defendant’s motion to dismiss. It observed that both parties are residents of South Carolina, thus concluding that unless the plaintiff could demonstrate the existence of a Federal claim, the suit must be dismissed. Rather than finding a well-pleaded Federal cause of action, the decision was that plaintiff’s complaint actually alleged nothing more than a tort under State law, compelling dismissal. On this appeal, the District Court’s judgment is challenged in each respect save as to the decision as to § 1981. II Under both the Fourteenth Amendment and § 1983, a plaintiff charging an unconstitutional deprivation of civil rights (§ 1983), or denial of equal protection (Fourteenth Amendment), must plead and prove, inter alia, action under color of State law. To keep within these straits, plaintiff pleads that South Carolina’s grant of a license to practice medicine establishes an adequate nexus between the State and an otherwise private party to convert his behavior into that of the State’s. This contention, however, is foreclosed by our decision in Hall v. Quillen, 631 F.2d 1154 (4th Cir. 1980), cert. denied, - U.S. -, 102 S.Ct. 999, 71 L.Ed.2d 293 (1982). In Hall, we reviewed the dismissal of a § 1983 action against a State judge who issued an involuntary commitment order, the court-appointed physician who examined the plaintiff, and the attorney appointed to represent the plaintiff. Although the District Court had dismissed the action against all defendants on immunity grounds, we concluded that it properly should have been dismissed because no State action was disclosed. Citing decisions of six other Circuits, we held that a physician, even when acting under court appointment, does not do so ‘under color of State law’ by merely practicing medicine. A fortiori, where the only link is a State license to practice, there is no sufficient ground for concluding that a private physician can be sued under § 1983 for fault in treating his patients. See also Polk County v. Dodson, - U.S. -, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981). Plaintiff’s assertion that the defendant may be guilty of violating the Thirteenth Amendment also is meritless. That Amendment, of course, prohibits slavery and involuntary servitude. While it restrains the conduct of private parties, as well as public entities, there simply is no representation in plaintiff’s complaint that she was subjected to these impositions. Rather, her contention seems to be that defendant’s conduct saddles her with a ‘badge or incident of slavery.’ True or not, defendant’s behavior violates Federal law if, but only if, it breaches some statute enacted pursuant to Section 2 of the Amendment. As noted, however, the claim under § 1983, a key enforcement vehicle for the Thirteenth and Fourteenth Amendments, fails for want of State action. Finally, we turn to plaintiff’s demand that a trial be had on her claim under Title VI of the Civil Rights Act of 1964,42 U.S.C. §§ 2000d to 2000d-4 (1976). We are unpersuaded; instead, we agree with the District Court’s conclusion that plaintiff failed to posit a tenable Federal claim. In relevant part, § 2000d declares simply that “[n]o person . . . shall, on the ground of race, color, or national origin, ... be subjected to discrimination under any program or activity receiving Federal financial assistance.” From these words, it seems plain that Congress sought to ensure that all persons be entitled to participate in Federal and Federally-subsidized programs regardless of their race, color, or national origin. Moreover, through the enforcement mechanisms scrupulously ordained in §§ 2000d-l and 2000d-2, Congress made it clear that the policy of the United States henceforth would be to refrain from funding any program which permitted discrimination on a prohibited basis. What seems equally clear by negative implication is that Congress did not intend Title VI to establish a broad right of action for persons, who are aggrieved by the failure of some Federal program, to seek redress in the Federal courts. For those deficiencies, resort simply must be had to some other Federal legislation authorizing private enforcement or the general statutory and common law of the States. Illustrating this point is the Fifth Circuit’s recent decision in Drayden v. Needville Independent School District, 642 F.2d 129 (5th Cir. 1981). The Court there held that, at most, § 2000d authorizes suits for declaratory and injunctive relief. Id. at 133. Actions for back pay and other losses were held to be outside the scope of Title VI. Thus, suits for money damages could be maintained, if at all, only under some other Federal or State law. Similarly, while Title VI might allow this plaintiff to seek to enjoin defendant from discriminating against her in the provision of medical care under Medicare or Medicaid, it clearly affords her no right to seek redress for injuries sustained on account of allegedly negligent or reckless treatment by the defendant doctor. His diagnostic and surgical skills, however, are not subjects of adjudication under Title VI. We accordingly hold that plaintiff, complaining of little more than medical malpractice, lacks standing to prosecute this claim under § 2000d, in an effort to recover money damages. See Taylor v. Cohen, 405 F.2d 277, 282 (4th Cir. 1968) (en banc). Affirmed. . This provision states: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. 42 U.S.C. § 1981 (1976). . Under this statute, Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. Id. § 1983. . This section declares: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. Id. § 2000d. . Given our conclusion that plaintiff may not prosecute this claim under Title VI, we eschew any resolution of the broader question of whether any right of action is available to a private litigant under this statute. . Neither party pressed the question before us, so we assume that defendant’s participation in Medicare and Medicaid constitutes participation in a “program or activity receiving Federal financial assistance” within the meaning of § 2000d. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:

songer_stpolicy

D

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". UNITED STATES of America, Appellee, v. Fernando Luis RODRIGUEZ-SANDOVAL, Defendant, Appellant. No. 72-1003. United States Court of Appeals, First Circuit. Argued Feb. 5, 1973. Decided March 23, 1973. Gerardo Ortiz Del Rivero, San Juan, P. R., by appointment of the Court, for appellant. Jorge Rios Torres, Asst. U. S. Atty., with whom Julio Morales Sanchez, U. S. Atty., was on brief, for appellee. Before COFFIN, Chief Judge, MeENTEE and CAMPBELL, Circuit Judges. . “Indeed the better practice would be to instruct the jurors that they may draw the inference unless the evidence in the case provides a satisfactory explanation for the rproved fact], omitting any explicit reference to the statute itself in the charge.” United States v. Gainey, supra at 71 n. 7, 85 S.Ct. at 759. McENTEE, Circuit Judge. Fernando Luis Rodriguez Sandoval was tried and convicted for the purchase, sale, concealment and transportation of heroin in violation of 26 U.S.C. §§ 4704 (a), 4705(a), 21 U.S.C. § 174, and was sentenced to concurrent terms of fifteen years imprisonment. He appeals from this conviction as well as from the district court’s denial of his motion for a reduction of sentence. We affirm. Sandoval’s primary contention on appeal relates to the prosecution’s alleged misuse of the evidentiary presumptions written into 26 U.S.C. § 4704(a) and 21 U.S.C. § 174. The latter section authorizes conviction upon evidence that the defendant had possession of a narcotic drug “unless the defendant explains the possession to the satisfaction of the jury.” Similarly, § 4704(a) provides that “the absence of appropriate taxpaid stamps from narcotic drugs shall be prima facie evidence of a violation of this subsection by the person in whose possession the same may be found.” In making his opening statement, the United States Attorney informed the jury that the government would rely on these presumptions, which he said would “authorize conviction unless the possession [of heroin] is explained to you by the defendant to your satisfaction.” In addition to these comments, the prosecutor made several similar references to the presumptions, both in his opening statement and in his summation. Appellant contends that these statements necessarily and impermissibly drew the jury’s attention to the defendant’s failure to testify, and that his conviction must therefore be reversed under our decision in United States v. Flannery, 451 F.2d 880 (1st Cir. 1971). This argument is without merit. When read in context, it is clear that the prosecutor’s remarks were intended only to explain to the jury what the government’s evidence would be and the theory under which it would press for conviction. Such an explanation could hardly have been made without some reference to the presumptions on which the government intended to rely. While the avoidance of any language having even a slight tendency to highlight the defendant’s failure to testify or produce evidence would have been preferable, cf. United States v. Gainey, 380 U.S. 63, 71 n. 7, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965), we do not believe that the prosecutor’s statements caused appellant to suffer any substantial prejudice. The district court took great pains to instruct the jury that the defendant did not have to testify or call witnesses and that the “explanation” of his possession of narcotics could come from any of the facts and circumstances revealed by the evidence. In view of these instructions, the prosecutor’s accurate explanation of the statutory presumptions involved in this case does not warrant reversal. Appellant also objects to the court’s instructions to the jury on the ground that they made explicit reference to the statutory presumptions in issue, contrary to the “better practice” suggested by the Supreme Court in United States v. Gainey, supra, at 71, n. 7, 85 S.Ct. 754. While the “better practice” was admittedly not followed, Gainey does not require reversal if the “overall reference [of the charge] was carefully directed to the evidence as a whole, with neither allusion nor innuendo based on defendant’s decision not to take the stand.”. Id. at 71, 85 S.Ct. at 759. As noted above, the court carefully instructed the jury that the statutory presumptions did not have to be rebutted by the defendant’s own testimony or evidence in his behalf, but could be overcome by any evidence in the case. These instructions amply met the standard set forth in Gainey, supra. See United States v. Armone, 363 F.2d 385 (2d Cir.), cert. denied, 385 U.S. 957, 87 S.Ct. 391, 17 L.Ed.2d 303 (1966). The only other matter which warrants our consideration is the question of whether the court contravened the holdings of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) and Marano v. United States, 374 F.2d 583 (1st Cir. 1967) in sentencing appellant to a term of fifteen years imprisonment when he had received only a ten year sentence following his first conviction of the charges involved in this case. In Maraño, supra, we set forth the general principle that a defendant may not be given a more severe sentence upon retrial than he received following his original conviction. We recognized, however, that a trial judge may properly consider the defendant’s conduct subsequent to the reversal of his first conviction in deciding what sentence to impose after retrial. In the present case, the relevant facts are as follows. Following appellant’s conviction below, a sentencing hearing was held on November 26, 1971, at which time the United States Attorney informed the court that Sandoval had been twice arrested in New York for narcotics violations while on bail pending retrial. The court specifically stated, however, that it would not consider this information in imposing sentence, adding somewhat cryptically that “what I have before me is enough.” The court then proceeded to sentence appellant to six concurrent terms of fifteen years imprisonment. After the appeal in this case had been filed, defendant made a motion in the district court for a reduction of sentence. In response, the trial judge issued a certificate to this court requesting that the case be remanded for resentencing, on the grounds that the sentence of November 26 might have been illegal under North Carolina v. Pearce, supra and Marano v. United States, supra. We remanded the ease for the limited purpose of considering the motion to reduce sentence, without prejudice to the government’s arguing that the court could consider subsequent conduct as defined in Maraño although it had declined to consider it at the time of the original re-sentencing. At a subsequent hearing, the district court clearly indicated that it was now considering a portion of the pre-sentence report which related subsequent circumstances concerning Sandoval’s New York drug arrests and two forfeitures of bail for his failure to appear as ordered, and proceeded to deny the motion on the basis of appellant’s conduct while free on bail pending retrial. Appellant appears to argue that the court’s initial failure to consider his subsequent conduct irretrievably tainted any increase in his sentence. We do not agree. The record clearly indicates that on remand the court reconsidered the November 26 sentence in light of Maraño and Pearce, read the presentence report it relied on, gave appellant an opportunity to respond, and affirmatively stated its reliance on subsequent conduct in reaffirming the increased sentence. Although this decision was made on a motion to reduce, the nature of the district court’s certificate and our remand make it perfectly clear that the decision was equivalent to a full reconsideration and resentencing. Since the court applied the proper standard on remand, we will not disturb on appeal its decision as to appellant’s sentence. Affirmed. . Repealed, Act of Oct. 27, 1970, Pub.L. No. 91-513, title III, § 1101(b)(3)(A), 84 Stat. 1292, effective date of repeal being May 1, 1971, Pub.L. 91-513, § 1105(a). The subsection provided in relevant part: “It shall bo unlawful for any person to purchase, sell, dispense, or distribute narcotic drugs except in the original stamped package or from the original stamped package; . . . . ” . Repealed, Act of Oct. 27, 1970, Pub.L. No. 91-513, title III, § 1101(b)(3)(A), 84 Stat. 1292, effective date of repeal being May 1, 1971, Pub.L. 91-513, § 1105 (a). The subsection provided in relevant part: “It shall be unlawful for any person to sell, barter, exchange, or give away narcotic drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Secretary or his delegate.” . Repealed, Act of Oct. 27, 1970, Pub.L. No. 91-513, title III, § 1101(a)(2), (4), 84 Stat. 1291, effective date of repeal being May 1, 1971, Pub.L. 91-513, § 1105 (a). The section provided as follows: “Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, or conspires to commit any of such acts in violation of the laws of the United States, shall be imprisoned not less than five or more than twenty years and, in addition, may be fined not more than 820,000.” . Even if we were to accept appellant’s analogy between the circumstances of this case and Flannery, that decision would not be relevant in the present context. Flannery is applicable only to cases going to trial after November 12, 1971; trial in the instant case began on September 20, 1971. . Appellant’s original conviction was reversed by this court in Rodriguez-Sandoval v. United States, 409 F.2d 529 (1st Cir. 1969). 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_initiate

A

What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. BRUNER v. UNITED STATES. No. 13411. United States Court of Appeals Fifth Circuit. June 1, 1951. Denmark Groover, Jr., Thos. W. Johnson, Macon, Ga., for appellant Irvin M. Gottlieb, Atty. Department of Justice, Washington, D. C., John P. Co-wart, U. S. Atty., James H. Fort, Asst. U. S. Atty., Macon, Ga., for appellee. Before HUTCHESON, Chief Judge, and SIBLEY and STRUM, Circuit Judges. PER CURIAM. Brought under the Tucker Act, 28 U.S.C. § 1346(d) (2), to recover moneys claimed to be due plaintiff for services rendered under contract with the United States and not paid for, plaintiff’s suit was met by a motion to dismiss on the ground that, under the controlling decision in this circuit, Kennedy v. United States, 146 F.2d 26, plaintiff was an officer of the United States, and the court was without jurisdiction. The district judge, on evidence sufficient to support his conclusion, found: that the plaintiff was appointed by the Secretary of War, pursuant to Art. II, Sec. 2, Clause 2, of the Constitution; that he was an officer of the United States; and that the court was without jurisdiction of his claim. So determining, he dismissed the suit on that ground, and this appeal followed. We agree that the case is ruled by Kennedy v. United States, supra, and that the judgment should be affirmed. Affirmed. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:

songer_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. AMERICAN DREDGING COMPANY, Appellant v. LOCAL 25, MARINE DIVISION, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO and Stephen J. Leslie, Joseph F. Erhmann, William F. Zenga and Vincent Motzel, Individually and as Trustees. No. 14710. United States Court of Appeals Third Circuit. Argued Feb. 20, 1964. Decided Oct. 30, 1964. Rehearing Denied Dec. 14, 1964. Hastie, Circuit Judge, dissented. Harvey B. Levin, Lazarus & Levin, Philadelphia, Pa. (Krusen Evans & Byrne, Philadelphia, Pa., on the brief), for appellant. Marshall J. Seidman, Weiner, Baseh, Lehrer & Cheskin, Philadelphia, Pa., for appellee. Before KALODNER and HASTIE, Circuit Judges and KIRKPATRICK, District Judge. KALODNER, Circuit Judge. The District Court here denied the plaintiff’s motion to remand to the state court from which it had been removed, a suit, based solely on a state-created right, to enjoin the defendant union’s violation, in the course of a labor dispute, of the “no-strike” provision of its collective bargaining agreement, and subsequently denied the plaintiff’s motion for injunctive relief. It premised its denial of remand on the ground that it had original jurisdiction under § 301(a) of the Labor Management Relations Act,, of a suit for violation of a labor contract, and § 1441 of the Removal Statute permits the removal to a federal district court of a civil action of which it has original jurisdiction under a law of the United States. It based its denial of plaintiff’s motion for an injunction on the ground that it was “without power to grant injunctive relief because of § 4 of Norris-LaGuardia [Norris LaGuardia Act], since this is a 'case involving or growing out of a labor dispute,’ within the meaning of the Act. Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 182 S. Ct. 1328, 8 L.Ed.2d 440 (1962).” The sum of the District Court’s view is that the Norris-LaGuardia limitations on jurisdiction of federal district courts, which the Supreme Court held in Sinclair extends to § 301 in cases growing out of labor disputes, do not divest these courts of subject matter jurisdiction of such cases, viz., the capacity to take cognizance of, or to entertain, but merely strip them of power to grant injunctive relief. The view stated disregards the critical fact that in Sinclair, the Supreme Court, in holding that the jurisdiction conferred by § 301 was subject to the jurisdictional limitations enacted by the earlier NorrisLaGuardia Act, expressly ruled at page 215, 82 S.Ct. at page 1339: “The District Court was correct in dismissing Count 3 of petitioner’s complaint for lack of jurisdiction under the Norris-LaGuardia Act.” (emphasis supplied) We can only construe the phrase “lack of jurisdiction” as embracing within its ambit subject matter jurisdiction and accordingly hold that the District Court erred in failing to grant the motion to remand in the instant case on its reasoning that it had subject matter jurisdiction under § 301 within the “original jurisdiction” provisions of § 1441. It merits observation that the background factual situation which constituted the basis of the injunctive action in Sinclair was on all fours with that existing here, as appears in Note 9. It may be pointed out anent the holding in Sinclair, that the Supreme Court, some 36 years earlier, in General Investment Company v. New York Central Railroad Company, 271 U.S. 228, p. 230, 46 S.Ct. 496, p. 497, 70 L.Ed. 920 (1926) succinctly defined jurisdiction as follows: “By jurisdiction we mean power to entertain the suit, consider the merits and render a binding decision thereon * * *.” (emphasis supplied) It is fair to assume that Congress in its use of the word “jurisdiction” in the Norris-LaGuardia Act in 1932 was aware of the Supreme Court’s definition of “jurisdiction” six years earlier, in the foregoing case. The Norris-LaGuardia Act in its title declared that it was: “AN ACT “To amend the Judicial Code and to define and limit the jurisdiction of courts sitting in equity, and for other purposes.” In Section 2 — “Declaration of the public policy of the United States” — it was stated in relevant part: “In the interpretation of this Act and in determining the jurisdiction and authority of the courts of the United States, as such jurisdiction and authority are herein defined and limited, the public policy of the United States is hereby declared as follows: “ * * * therefore, the following definitions of, and limitations upon, the jurisdiction and authority of the courts of the United States are hereby enacted.” (emphasis supplied). In State of Minnesota v. Northern Securities Company, 194 U.S. 48, 24 S.Ct. 598, 48 L.Ed. 870 (1904) the Supreme Court made it clear that the term jurisdiction as used in the Removal Statute means the power to take cognizance of the case upon removal from a state court and to decide it upon its merits. There, an action was brought by the State of Minnesota against the defendants, to annul an agreement and suppress a combination alleged to exist between the defendant corporations, upon the grounds that the agreement and combination were in violation of the laws of Minnesota, and of the anti-trust laws of the United States. The action was removed from the state court to the circuit court of Minnesota on the ground that it was “one arising under the Constitution and laws of the United States,” and was subsequently dismissed by the circuit court on its merits. The Supreme Court sua sponte raised the question as to whether the case was removable although all the parties to the action “deemed the case a removable one.” In so doing it stated at page 63, 24 S.Ct. at page 601: “If the record does not affirmatively show jurisdiction in the circuit court, we must, upon our own motion, so declare, and make such order as will prevent that court from exercising an authority not conferred upon it by statute. * * * “We proceed, therefore, to inquire whether the circuit court could take cognizance of this case upon removal from the state court, and make a final decree upon the merits.” (emphasis supplied) After noting that it was the “general policy of these acts [removal statutes], manifest upon their face, and often recognized by this court, to contract the jurisdiction of the circuit [district] courts of the United States”, it was said at pages 64-65, 24 S.Ct. at page 602: “These cases establish, beyond further question in this court, the rule that, under existing statutes regulating the jurisdiction of the courts of the United States, a case cannot be removed from a state court as one arising under the Constitution or laws of the United States, unless the plaintiff’s complaint, bill, or declaration shows it to be a case of that character. ‘If it does not appear at the outset,’ this court has quite recently said, ‘that the suit is one of which the circuit court at the time its jurisdiction is invoked could properly take cognizance, the suit must be dismissed.’ Third Street & Suburban R. Co. v. Lewis, 173 U.S. 457, 460, 43 L.ed. 766, 767, 19 Sup.Ct. Rep. 451.” (emphasis supplied) It_is of compelling significanee-here that in Northern Securities, the Supreme Court reversed the denial of remand below on the ground that the removed action did not “really and substantially involve a dispute or controversy within the jurisdiction of the circuit court for the purposes of a final decree * * * ” and, “That being the case, the circuit court, following the mandate of the statute [predecessor of the present § 1447 (c)], should not have proceeded therein, but should have remanded the cause to the state court.” (emphasis supplied) In the instant case the complaint alleged that the union had violated the “no-strike” clause of its collective bargaining agreement in the course of a labor dispute, and thus it appeared “at the outset” that the District Court could not, under Sinclair, “properly take cognizance of this case upon removal from the state court, and make a final decree upon the merits.” It cannot be gainsaid that had the plaintiff initially brought suit in the District Court under § 301, alleging in its complaint a cause of action for breach of its collective bargaining agreement, in the course of a labor dispute, and praying for injunctive relief, that the action would have been dismissed for lack of jurisdiction under Sinclair. To say then that a District Court has subject matter jurisdiction of a cause of action, so as to authorize it to take cognizance of it under the provisions of the Removal Statute, when it does not in the first place have jurisdiction to entertain and decide it upon its merits, is to give sanction to an exercise in futility. Or putting it another way, for a court to say that it has subject matter jurisdiction enabling it to take cognizance of a case, and then to rule that although the case has merit, it is without judicial power, viz., jurisdiction, to grant a final decree on the merits, is to pursue, what Mr. Justice Frankfurter once character-’ ized, in another context, “a fox-hunting theory of justice that ought to make Bentham’s skeleton rattle,” and to do violence to the holding in General Investment Company v. New York Central Railroad Company, supra, that “By jurisdiction we mean power to entertain the suit, consider the merits and render a binding decision thereon.” It has been settled for almost a century that federal statutes should be construed and applied so as to avoid “injustice” or “absurd consequences.” In United States v. Kirby, 7 Wall. 482, pp. 486, 487, 74 U.S. 482, pp. 486, 487, 19 L.Ed. 278 (1869) it was said: “The authority by which judicial officers take cognizance of and decide causes * * * the power to hear and determine a cause. * * * ” “All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. * * * The reason of the law, in such eases, should prevail over its letter.” In United States v. Katz, 271 U.S. 354, p. 357, 46 S.Ct. 513, p. 514, 70 L.Ed. 986 (1926) in which Kirby was cited with approval, it was said: “All laws are to be given a sensible construction; and a literal application of a statute, which would lead to absurd consequences, should be avoided whenever a reasonable application can be given to it, consistent with the legislative purpose. * * * In ascertaining that purpose, we may examine the title of the act (citing eases) * * * and the legislative scheme or plan by which the general purpose of the act is to be carried out. (citing cases).” Here the denial of remand not only led to the “absurd consequence” of leaving the District Court with a case on its judicial hands without judicial power to “make a final decree on its merits”, but also to these serious consequences: It rendered an “injustice” to the plaintiff in that it deprived it of the benefit of the temporary injunctive relief granted by the state court under state law, prior to the case’s removal, and foreclosed it from the available remedy of a permanent injunction; it ousted the state court of its jurisdiction to apply state law in a field not pre-empted by Congress, in contravention of the historic comity doctrine which proscribes avoidable direct conflicts between federal and state courts; and it thwarted the Congressional policy intended to have § 301(a) “supplement” and “not to displace” or “to encroach upon the existing jurisdiction of the state courts” in suits for violation of collective bargaining contracts in industries affecting interstate commerce. Charles Dowd Box Co., Inc. v. Courtney, 368 U.S 502, 509, 511, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962). “Tie common sense of man approves the judgment mentioned by Puffendorf, that the Bolognian Law which enacted, ‘That whoever drew blood in the streets should be punished with the utmost severity,’ did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling cited by Plowden, that the Statute of 1 Edward II., which enacts that a prisoner who breaks prison shall be guilty of a felony, does not extend to a prisoner wlio breaks out when the prison is on fire— ‘for he is not to be hanged because lie would not stay to be burnt.’ And we think that a like common sense will sanction the ruling we make, that the Act of Congress which punishes the obstruction or retarding of the passage of the mail, or its carrier, does not apply to a case of temporary detention of the mail caused by the arrest of the carrier upon an indictment for murder.” Elaboration of these serious consequences must yield the right of way to the resolution of this transcending question: Assuming, arguendo, that the NorrisLaGuardia Act did not deprive the District Court of § 301(a) subject matter jurisdiction, was the action here “founded on a claim or right arising under the Constitution, treaties or laws of the United States”, so as to make it removable, “without regard to the citizenship or residence of the parties”, within the meaning of § 1441(b) of the Removal Statute? If the answer to that question is that the removed state action was not “founded on a claim or right arising under” § 301(a), it will require the reversal of the denial of remand, independent of the resolution of all the other questions presented by this appeal. In 1821 the Supreme Court was first called upon to decide when a case “arises under a law of the United States” in the landmark case of Cohens v. Virginia, 6 Wheat. 264, 5 L.Ed. 257. Speaking for the Court, Mr. Chief Justice Marshall there said (p. 379): “A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the constitution or a law of the United States, whenever its correct decision depends on the construction of either.” (emphasis supplied) \ It is of compelling significance here that in so holding the Supreme Court rejected the contention that a case arises under the Constitution or a law of the United States merely because it is founded on a right conferred by the Constitution or a federal law. 1 In doing so the Chief Justice said (p. 379): “If it [the intention of the contention] be to maintain that a case arising under the constitution, or a law, must be one in which a party comes into court to demand something conferred on him by the constitution or h law, we think the construction too narrow.” (emphasis supplied) In amplification of the rule stated, Mr. Chief Justice Marshall, speaking for the Court, in Osborn v. Bank of United States, 9 Wheat. 738, 822, 6 L.Ed. 204 (1824), declared that a case arises under the constitution or laws of the United States when “the title or right set up by the party may be defeated by one construction of the constitution of law of the United States and [o?-] sustained by the opposite construction.” (emphasis supplied) More than a half century later, the Supreme Court, in Little York Gold-Washing and Water Company, Limited v. Keyes, 96 U.S. 199, 24 L.Ed. 656 (1878), applied the principles declared in Cohens and Osborn, in construing a provision in the Eemoval Act of 1875, for removal of suits “arising under the Constitution or laws of the United States.” It there held (pp. 203-204): “A cause cannot be removed from a State Court simply because, in the progress of the litigation, it may become necessary to give a construction to the Constitution or laws of the United States. The decision of the case must depend upon that construction. The suit must, in part at least, arise out of a controversy between the parties in regard to the operation and effect of the Constitution or laws upon the facts involved. ****** “Before, therefore, a circuit court can be require to retain a cause under this jurisdiction, it must in some . form appear upon the record, by a statement of facts, ‘in legal and logical form,’ such as is required in good pleading, 1 Chit.Pl. 213, that the suit is one which ‘really and substantially involves a dispute or controversy’ as to a right which depends upon the construction or effect of the Constitution, or some law or treaty of the United States.” (emphasis supplied) In Starin v. New York City, 115 U.S. 248, 6 S.Ct. 28, 29 L.Ed. 388 (1885) orders of the circuit court remanding a case which had been removed from a New York court, were appealed on the ground that the suit was one arising under the Constitution and laws of the United States. With respect to that contention the Court said (p. 257, 6 S.Ct. p. 31): “We will first consider whether the suit is one which arises under the constitution or laws of the United States; for, if it is not, the order to remand was right * * *. “The character of a case is determined by the questions involved. Osborn v. Bank of U. S., 9 Wheat. 824 [22 U.S. 824, 6 L.Ed. 224], If from the questions it appears that some title, right, privilege, or immunity, on which the recovery depends, will be defeated by one construction of the constitution or a law of the United States, or sustained by the opposite construction, the case will be one arising under the constitution or laws of the United States, within the meaning of that term as used in the act of 1875 [the then extant Removal Act]; otherwise not. Such is the effect of the decisions on this subject.” In affirming the circuit court’s remand of the removed case, the Court further stated (p. 258, 6 S.Ct. p. 32) : “The decision of these questions [presented by the removed ease] does not depend on the constitution or laws of the United States. There is nothing in the constitution or laws of the United States entering into the determination of the cause, which, if construed one way, will defeat the defendants, or, in another, sustain them.” (emphasis supplied) In Shulthis v. McDougal, 225 U.S. 561, 569, 32 S.Ct. 704, 706, 56 L.Ed. 1205 (1912) the Court, following its declaration that “jurisdiction cannot rest on any ground that is not affirmatively and distinctly set forth” in the complaint, said: “A suit to enforce a right which takes its origin in the laws of the United States is not necessarily, or for that reason alone, one arising under those laivs, for a suit does not so arise unless it really and substantially involves a dispute or controversy respecting the validity, construction, or effect of such a law, upon the determination of which the result depends.” (emphasis supplied) In Gully v. First National Bank in Meridian, 299 U.S. 109, at p. 115, 57 S. Ct. 96, at p. 99, 81 L.Ed. 70 (1936), where the doctrine of Shulthis, Starin, and its predecessors, was cited and applied in reversing for failure to remand a removed case to the state courts, it was said: “Not every question of federal law emerging in a suit is proof that a federal law is the basis of the suit.” At pages 112-113, 57 S.Ct. at page 97-98 the Court said: “How and when a ease arises ‘under the Constitution or laws of the United States’ has been much considered in the books. Some tests are well established. To bring a case within the [removal] statute, a right or immunity created by the Constitution or laios of the United States must be an element, and an essential one of the plaintiff’s cause of action (citing Starin and First National Bank of Canton, Pa. v. Williams, 252 U.S. 504, 512, 40 S.Ct. 372, 64 L.Ed. 690 [1920]). The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another (citing cases). A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto (citing cases), and the controversy must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal. (citing cases).” (emphasis supplied) What was said, three years ago, in Pan American Petroleum Corporation v. Superior Court of Delaware In and For New Castle County, 366 U.S. 656, 662-663, 81 S.Ct. 1303, 6 L.Ed.2d 584 (1961) is of significant pertinence in the instant case. There, in re-affirming the doctrines spelled out in Gully, these settled jurisdictional principles were stated and applied: 1. “[Qjuestions of exclusive federal jurisdiction and ouster of jurisdiction of state courts are, under existing jurisdictional legislation, not determined by ultimate substantive issues of federal law.” 2. “The answers depend on the particular claims a suitor makes in a state court — on how he casts his action. Since ‘the party who brings a suit is master to decide tohat law he will rely upon,’ The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716.” 3. It is “immaterial * * * that the plaintiff could have elected to proceed on a federal ground”, and “if the plaintiff decides not to invoke a federal right, his claim belongs in a state court.” 4. “It is settled doctrine that a case is not cognizable in a federal trial court, in the absence of diversity of citizenship, unless it appears from the face of the complaint that determination of the suit depends upon a question of federal law. * * * Apart from diversity jurisdiction, ‘a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff’s cause of action. * * * and the controversy must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal. * * * ’ Gully v. First National Bank, 299 U.S. 109, 112-113, 57 S.Ct. 96, 97, 81 L.Ed. 70.” (emphasis supplied). Applying the principles stated to the instant case we can only conclude that it was not one “arising under” § 301(a), or any other law of the United States, so as to permit removal under § 1441, since the complaint was cast solely on a state-created right to bring suit for violation of a collective bargaining agreement and sought only a remedy available under state law, and there was nothing in the complaint which even remotely suggested that it asserted a claim based on § 301(a), or that it presented a “dispute or controversy respecting the validity, construction, or effect” of § 301 (a), “upon the determination of which the result [of the suit] depends.” We now revert to the “serious consequences”, earlier highlighted, which flowed from the denial of remand. That denial effectively wrote “finis” to the plaintiff’s action for injunctive relief, available in the state courts, but unavailable in the federal courts. It was an “injustice” to the plaintiff because it denied it its right, under settled law, to be “master of its own case”, viz., the right to cast its action on state-created rights rather than on rights available under federal law, to wit, § 301(a); and it deprived it of the right to proceed in a state court despite the specific holding in Dowd that Congress, in enacting § 301(a), did not make that statute’s jurisdiction “exclusive”, nor did it intend “to deprive a party to a collective bargaining contract of the right to seek redress for its violation in an appropriate state tribunal.” The denial of remand ousted the state court of its jurisdiction not only in contravention of the historic comity doctrine which proscribes avoidable conflicts between federal and state courts, but in disregard of Dowd’s specific holding that Congress did not intend in § 301(a) “to deprive the state courts of a substantial segment of their established jurisdiction over contract actions,” and “expressly intended not to encroach upon the existing jurisdiction of the state courts,” (emphasis supplied) in suits for violation of collective bargaining agreements in industries affecting interstate commerce. The specific question presented in Dowd, as the Court put it, was “whether this federal statute [§ 301(a)] operates to divest a state court of jurisdiction over a suit for violation of a contract between an employer and a labor organization.” The question arose reason of the fact that a Massachusetts trial trial court had rejected an attack upon its jurisdiction in an action by a union against an employer seeking money damages for violation of a collective bargaining agreement, and had subsequently rendered a money judgment in favor of the union. The Supreme Judicial Court of Massachusetts affirmed, ruling that' § 301(a) had not granted the federal courts exclusive jurisdiction over suits for violation of labor contracts in industries affecting interstate commerce. In affirming the Massachusetts Court’s ruling, the Court said: “We start with the premise that nothing in the concept of our federal system prevents state courts from enforcing rights created by federal law. Concurrent jurisdiction has been a common phenomenon in our judicial history, and exclusive federal court jurisdiction over cases arising under federal law has been the exception rather than the rule. * * * The legislative history makes clear that the basic purpose of § SOI (a) was not to limit, but to expand, the availability of forums for the enforcement of contracts made by labor organizations.” 368 U.S. 502, 507-509, 82 S.Ct. 519, 522-523, (emphasis supplied) “The clear implication of the entire record of the congressional debates in both 1946 and 1947 is that the purpose of conferring jurisdiction upon the federal district courts was not to displace, but to supplement, the thoroughly considered jurisdiction of the courts of the various States over contracts made by labor organizations.” Id. page 511, 82 S.Ct. page 525 (emphasis supplied) The Congressional purpose, “not to limit” or “to displace” state court jurisdiction over labor contracts, when it enacted § 301(a), was nullified by the denial of remand since it effectively sounded the death-knell of the state court’s jurisdiction over the removed action. Thus the denial made the Congressional purpose a co-victim with the plaintiff, which was deprived of its right to seek redress in a state court, and the state court, which was ousted of its concurrent jurisdiction. In a removal proceeding under § 1441 that statute must be harnessed in a real sense to the specific federal law (here § 301(a)) relied upon as conferring original jurisdiction upon the District Court. To hold that § 1441 may be recruited to defeat the Congressional purpose in enacting § 301(a) would be to mock reason and to deny justice, where as here, the complaint was based solely on state-created rights and did not, within its four corners, raise or present any controversy with respect to the validity, construction or effect of § 301(a) upon the determination of which the result of the action depended. There remains for disposition the District Court’s holding that it also had original jurisdiction because other than injunctive relief — money damages— could be granted to the plaintiff under Rule 54(c) of the Federal Rules of Civil Procedure, and a general prayer for “such other relief as the Court may deem appropriate”, which followed the plaintiff’s prayers for specific injunctive relief in its complaint at the time of the removal. With respect to the District Court’s reliance on Rule 54(c) we need only to call attention to the fact that Rule 82 of the Federal Rules specifically provides that “These rules shall not be construed to extend or limit the jurisdiction of the United States district courts or the venue of actions therein.” (emphasis supplied) Rule 54(c) does not confer jurisdiction upon federal district courts and the District Court erred in holding to the contrary It also erred in holding that the prayer for “such other relief” created original jurisdiction. The holding could only be sustained on the theory that a complaint based on a single ground of breach of contract presents two separate and independent causes of action when it seeks two remedies — injunctive relief and money damages (assuming arguendo that this complaint can be construed as seeking money damages). On this score it was recently held that: “The prayer for relief is no part of the cause of action and should not be considered in determining whether such cause of action is ‘separate and independent’.” Puritan Fashions Corp. v. Courtaulds Limited, 221 F.Supp. 690, 695 (S.D. N.Y.1963). While the District Court did not advert to the provisions of sub-section (c) of § 1441, it must be assumed that it had them in mind when it inferentially held that the “such other relief” prayer presented a cause of action for damages, “separate and independent”, from a cause of action seeking injunctive relief. Section 1441(c) provides: “Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.” What was said in American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S. Ct. 534, 95 L.Ed. 702 (1951) in construing § 1441(c) is dispositive here: “One purpose of Congress in adopting the ‘separate and independent claim or cause of action’ test for removability by .§ 1441(c) of the 1948 revision in lieu of the provision for removal of 28 U.S.C. (1946 ed.) § 71, was by simplification to avoid the difficulties experienced in determining the meaning of that provision. Another and important purpose was to limit removal from state courts. * * * ” 341 U.S. 9, 10, 71 S.Ct. 538. “A separable controversy is no longer an adequate ground for removal unless it also constitutes a separate and independent claim or cause of' action. * * * Congress has authorized removal now under § 1441 (c) only when there is a separate Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:

sc_casesourcestate

02

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed. WATTS et al. v. SEWARD SCHOOL BOARD et al. No. 923. Decided May 3, 1965. George Kaufmann for petitioners. George N. Hayes for respondent Seward School Board. Per Curiam. Petitioners Watts and Blue were dismissed from their positions as schoolteachers in Seward, Alaska, on grounds of “immorality,” which under Alaska Statutes 1962, § 14.20.170 was defined as “conduct of the person tending to bring the individual concerned or the teaching profession into public disgrace or disrespect.” Petitioners’ dismissals were upheld by the Alaska Superior Court (Third Judicial District), and on appeal the Alaska Supreme Court affirmed the Superior Court’s decision. 395 P. 2d 372. The Alaska Supreme Court noted that “[t]he immoral conduct complained of as to the appellant Watts was his holding of private conversations with various teachers in which he solicited their support in an attempt to oust the school superintendent from his job. The allegedly immoral conduct of the appellant Blue was his making of a speech to a labor union at Seward in which he stated, We have been unable to get rid of the [school] Superintendent, so we are going to get rid of the Board/ or words to that effect.” 395 P. 2d, at 374. The Alaska Supreme Court held that this conduct “had a tendency to bring the [petitioners] . . . and the teaching profession into public disgrace or disrespect,” within the terms of the statute, 395 P. 2d, at 375, and it therefore sustained their dismissals. Petitioners contend that their dismissals for engaging in the conduct here described unconstitutionally infringe their rights to political expression guaranteed by the First and Fourteenth Amendments to the United States Constitution. We need not consider petitioners’ contentions at this time, for since their petition for certiorari was filed Alaska has amended its statutes in this area. House Bill 27, adopted by the Alaska Legislature and signed by the Governor on March 31, 1965, now defines “immorality” as grounds for revocation of a teaching certificate, as “the commission of an act which, under the laws of the state, constitutes a crime involving moral turpitude.” Moreover, Alaska Statutes, Tit. 14, c. 20, have been amended by the addition of a new section which reads: “Sec. 14.20.095. Right to Comment and Criticize Not to be Restricted. No rule or regulation of the commissioner of education, a local school board, or local school administrator may restrict or modify the right of a teacher to engage in comment and criticism outside school hours, relative to school administrators, members of the governing body of any school or school district, any other public official, or any school employee, to the same extent that any private individual may exercise the right.” This Court has held that supervening changes in state law that may be relevant to the disposition of a case may require that the cause be remanded for appropriate action by the state court. See, e. g., Missouri ex rel. Wabash R. Co. v. Public Service Comm’n, 273 U. S. 126, 131. Cf. Trunkline Gas Co. v. Hardin County, 375 U. S. 8, Accordingly, it is appropriate to allow the Alaska court to consider the effect of the new Alaska statutes upon this case. To that end, the petition for certiorari is granted, the judgment of the Supreme Court of Alaska is vacated, and this case is remanded to that court for such further consideration as may be deemed appropriate by that court under Alaska law. Vacated and remanded. Question: What is the state of the court whose decision the Supreme Court reviewed? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:

songer_usc2

18

What follows is an opinion from a United States Court of Appeals. The most frequently cited title of the U.S. Code in the headnotes to this case is 18. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times. UNITED STATES of America, Appellee, v. John D. McGREGOR et al., Appellants. No. 74-1347. United States Court of Appeals, Eighth Circuit. Submitted Sept. 11, 1974. Decided Oct. 7, 1974. Jack S. Nordby, St. Paul, Minn., for appellants. Thorwald Anderson, Asst. U. S. Atty., Minneapolis, Minn., for appellee. Before LAY, ROSS and WEBSTER, Circuit Judges. ROSS, Circuit Judge. John D. McGregor, Robert Fletcher, and Fountain Agency, Inc. were each charged in a twenty-six count indictment with the use of the mail for the purpose of executing a scheme to defraud in violation of 18 U.S.C. § 1341. Specifically, the indictment alleged that the defendants, acting as agents for Northland Insurance Co., caused notification of insurance policy cancellations to be sent to Northland for the purpose of obtaining premium refunds from Northland. However, the defendants’ customers, whose policies were cancelled, were never informed of the cancellation. From a verdict finding them guilty of all twenty-six counts, McGregor, Fletcher and Fountain appeal contending that the court erred in denying their motion for transfer to another district and that the evidence was insufficient to establish that they acted with intent to defraud. During the relevant time period, Fountain Agency, Inc., an insurance agency incorporated in Louisiana, was primarily involved in selling automobile collision insurance, generally on vehicles newly purchased by high risk drivers. The policies were often written by the auto dealer himself acting as Fountain’s subagent and financed together with the purchase price of the auto through finance companies such as General Motors Acceptance Corporation. Fountain, itself, was not the insurer, but merely the agent for several insurance companies, chief among which was Northland Insurance Co., a licensed insurance company in Minnesota. Fountain had negotiated a retrospective contract with Northland, under the terms of which Fountain earned 80% of the premium and Northland earned 20%. The total premium, however, was forwarded to Northland; the 80% was credited to Fountain’s account at North-land and used as a fund out of which all claims by Fountain’s insureds were paid. After claims adjustment, if the losses did not exceed the agent’s earned premium pool, Northland would refund a pro rata amount of earned premium to Fountain. These retrospective contracts added to cash flow problems already suffered by Fountain. Not only did Fountain experience a need for revenues to pay operating expenses but it also negotiated collateral contracts with subagents who sold policies under which the subagent, usually the automobile dealer, could retain 20% of the face value of the insurance premium as a commission for the sale of the insurance policy. Fountain thus committed 120% of the premium at the outset. After it was realized that expanding its business under retrospective contracts did nothing to remedy the cash flow problems, McGregor consulted with other insurance agencies who were also experiencing the same difficulties with retrospective contracts. After consulting with these other agencies and with an employee of the Louisiana Insurance Commission, McGregor determined to undertake a program of cancelling policies without notifying or forwarding refunds to the insured. Under the plan, notices of cancellation were prepared on arbitrarily selected policies, the originals of which notices were sent to Northland. Copies were prepared for the policyholder and lien-holder, but were not sent. Rather, they mailed other documents to the policyholder and the lienholder by registered mail. Certificates of mailing were obtained for these mailings and sent to Northland with the original of the notice of cancellation as false proof that notices of cancellation had been sent to the policyholder and the lienholder. Northland then refunded to Fountain the prorated unearned portion of the premium on the cancelled policy. In effect, these policies were cancelled to the insuror, but not to the policyholders or lienholders who could still hold North-land primarily liable on the policy since they never received notices of cancellation. During the periods of cancellation, Fountain paid claims against the can-celled policies out of the refunded premiums. As the cash flow situation improved, Fountain began to rewrite the previously cancelled policies with North-land. Names of the policyholders on the reissued policies were changed slightly so that, as McGregor testified, the computer would not reject the policy application. None of the cancelled premiums were ever refunded to the policyholders. Fountain employees were under instructions to conceal records of these cancellations from Northland representatives. Northland was never reimbursed for its prorata loss of its 20% premium nor for its potential liability under the policy during the period of cancellation. When delays began to develop in Fountain’s ability to pay claims against the can-celled policies and complaints were directed to Northland, the plan came to light. Motion for Transfer. The Constitution provides that “The Trial of all Crimes . . . shall be held ip the State where the said Crimes shall have been Committed.” U.S.Const. art. Ill, § 2. The sixth amendment carries a like command. However, Fed.R.Crim.P. 21(b) permits a transfer: For the convenience of parties and witnesses, and in the interest of justice, the court upon motion of the defendant may transfer the proceeding as to him or any one or more of the counts thereof to another district. This Court has held that the grant of transfer under that rule is a matter of the discretion of the district judge. United States v. Phillips, 433 F.2d 1364 (8th Cir. 1970), cert. denied, 401 U.S. 917, 91 S.Ct. 900, 27 L.Ed.2d 819 (1971). In reviewing the district court’s exercise of discretion in these matters, we are guided by the enumeration of factors which were considered in Platt v. Minnesota Mining & Manufacturing Co., 376 U.S. 240, 243-244, 84 S.Ct. 769, 771, 11 L.Ed.2d 674 (1964): (1) location of corporate defendant; (2) location of possible witnesses; (3) location of events likely to be in issue; (4) location of documents and records likely to be involved; (5) disruption of defendant’s business unless the case is transferred; (6) expense to the parties; (7) location of counsel; (8) relative accessibility of place of trial; (9) docket condition of each district or division involved; and (10) any other special elements which might affect the transfer. Concerning those factors, the Supreme Court stated that the main office or “home” of the defendant has no independent significance in determining whether transfer to that district would be “in the interest of justice,” although it may be considered with reference to such factors as the convenience of records, officers, personnel and counsel. Id. at 245-246, 84 S.Ct. 769. 18 U.S.C. § 3237(a) provides in part: Any offense involving the use of the mails ... is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such . . . mail matter moves. The Supreme Court and other circuits have accordingly held that the government may elect to bring the prosecution in the district where the letter was mailed or where it was delivered. Salinger v. Loisel, 265 U.S. 224, 233-234, 44 S.Ct. 519, 68 L.Ed. 989 (1924); Benson v. Henkel, 198 U.S. 1, 15, 25 S.Ct. 569, 49 L.Ed. 919 (1905); United States v. Sorce, 308 F.2d 299, 300 (4th Cir. 1962), cert. denied, 377 U.S. 957, 84 S.Ct. 1635, 12 L.Ed.2d 500 (1964); Kreuter v. United States, 218 F.2d 532, 534 (5th Cir.), cert. denied, 349 U.S. 932, 75 S.Ct. 777, 99 L.Ed. 1262 (1955); Holdsworth v. United States, 179 F.2d 933, 936 (1st Cir. 1950); Kaufman v. United States, 163 F.2d 404, 411 (6th Cir. 1947), cert. denied, 333 U.S. 857, 68 S.Ct. 726, 92 L.Ed. 1137 (1948); Gates v. United States, 122 F.2d 571, 577 (10th Cir.), cert. denied, 314 U.S. 698, 62 S.Ct. 478, 86 L.Ed. 558 (1941); Johnson v. United States, 59 F.2d 42, 45 (9th Cir.), cert. denied, 287 U.S. 631, 53 S.Ct. 83, 77 L.Ed. 547 (1932). Venue for this crime, then, properly existed in Minnesota, the location of the addressee of the fraudulent mail. To determine whether the appellants were entitled to a transfer from the district for trial, the factors announced in Platt come into play. Here the party defrauded was an insurance company based in Minnesota. The chief government witness was the vice president of Northland. Other North-land witnesses and the postal inspectors involved were from Minnesota. Most of the documents entered into evidence during the trial came from Northland’s office. These factors buttress the trial court’s denial of the motion for transfer. The appellants have failed to demonstrate, as required by United States v. Phillips, supra, 433 F.2d at 1368, that some substantial right.has actually been affected. The motion was properly denied. Sufficiency of Evidence. We have recently reiterated the essential elements of a violation of 18 U.S.C. § 1341: “(1) a scheme conceived by appellant for the purpose of defrauding . by means of false pretenses, representations or promises, and (2) use of the United States mails in furtherance of the scheme.” “Scheme” to defraud within the purview of this section involves some connotation of planning and pattern. Thus, intent to defraud is an essential element. It may be inferred by all the facts and circumstances surrounding a transaction. [Additionally] ... to bring the scheme within the ambit of the mail fraud statute, the mails must be used for the purpose of executing the scheme, . . . must be employed before the scheme reaches fruition, . . . yet, need not be contemplated as an essential element of the scheme. United States v. Nance, 502 F.2d 615, 618 (8th Cir. 1974). The appellants concede that there is no doubt here that the mails were in fact employed and that this use of the mails was an integral part of the activity which the government alleged to be fraudulent. They do, however, contend that the first requisite was not met on this record. They maintain that because McGregor consulted the Louisiana Insurance Commission, because he received advice from other agencies undergoing similar difficulties, and because Fountain paid all claims against the cancelled policies during the periods of cancellation, they did not have the requisite intent to defraud. In reviewing the sufficiency of the evidence, we note that the verdict must be sustained if there is substantial evidence, taking the view most favorable to the' government to support it. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). United States v. Madden, 482 F.2d 850, 851 (8th Cir. 1973). The district court made clear in its instructions to the jury that specific intent to defraud was essential to a finding of guilt. Given the proper instructions of the district court and the scope of review, we find that there was sufficient evidence of covert conduct which could permit the jury to determine that the appellents acted with the requisite intent to deceive both Northland and the policyholders. Policyholders were never informed of the cancellation. Office personnel were instructed to conceal the cancellation practice from Northland representatives. At the outset the substitution of other documents for the cancellation notices was effectuated by McGregor in the privacy of a closed office without informing office personnel of the procedure. North-land was never reimbursed for its potential risk during the period of cancellation. Names were altered on reissued policies so that a computer would not detect the prior cancellations. Fountain, while paying claims against cancelled policies acted as an insurance company, an enterprise for which it was not licensed and could not meet capitalization requirements. Given this evidence, resolved in the light most favorable to the verdict, it is clear that the jury, as properly instructed, found that the appellants had specific intent to defraud. For the reasons hereinbefore expressed, the judgment of conviction is affirmed. Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 18. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number. Answer:

songer_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 RICHTER v. HOGLUND et al. SAME v. FARMERS MUTUAL AUTOMOBILE INS. CO. et al. No. 8104, 8107. Circuit Court of Appeals, Seventh Circuit. Jan. 20, 1943. Fred W. Genrich, Jr., and Herbert L. Terwilliger, both of Wausau, Wis., for appellant. A. J. O’Melia, of Rhinelander, Wis., Charles F. Smith and Richard P. Tinkham, Jr., both of Wausau, Wis., and Gerald P. Hayes and John A. Kluwin, both of Milwaukee, Wis., for appellees. Before SPARKS, KERNER, and MIN-TON, Circuit Judges. MINTON, Circuit Judge. George Richter, the plaintiff-appellee, sued Lawrence Paul and his insurance carrier, the United States Fidelity & Guaranty Company, and Elvera Hoglund and her insurance carrier, the Farmers Mutual Automobile Insurance Company, to recover for personal injuries he received when Paul’s car, in which Richter was riding as a guest, collided with Miss Hoglund’s car, driven hy herself. Paul in turn filed a counterclaim for personal injuries and property damage against Miss Hoglund and her insurance carrier, and she in turn filed a counterclaim against Paul and his insurance carrier for personal injuries and property damage. The accident happened near Tomahawk, Wisconsin, and the actions were tried before a jury in the Western District of Wisconsin. Under the comparative negligence statute of Wisconsin, the jury found the defendant-appellant Hoglund one hundred per cent negligent. Richter recovered a judgment on his complaint against Miss Hoglund and the Farmers Mutual Automobile Insurance Company for $15,379.70. On his counterclaim Paul recovered a verdict against Miss Plogluiid of $4,697. After suit was filed but before the trial, the United States Fidelity & Guaranty Company took from Richter a partial release in the nature of a covenant not to sue, in consideration of the payment of $2,750. Nothing was said in the pleadings or on the trial about this transaction, and the release is printed in the record here without having been considered below at all. The court reduced the verdict of Richter to .$11,500, and that of Paul to $4,000, and entered judgment on the verdicts. From this judgment, Miss Hoglund and the Farmers Mutual Automobile Insurance Company appeal. These facts appear from substantial evidence in the record. About ten o’clock on the evening of May 23, 1940, Lawrence Paul was driving northward on State Highway 51. Elvera Hoglund was driving south along the same road. She was alone, while Richter was a guest in the Paul car and was asleep at the time of the accident. As Paul came around a curve in the road, driving at a speed between forty and fifty miles per hour, he saw Miss Hoglund’s car coming south at a distance of two hundred to three hundred feet. She was driving at a speed between thirty and thirty-five miles per hour. The cars approached on their respective sides of the road until almost opposite each other, when one of the cars got over the center line of the road and on the other car’s side of the road, and a collision resulted. Paul testified Miss Hoglund’s car came over on his side of the road, and Miss Hoglund testified Paul drove his car over on her side of the road. A disinterested witness, William Yeschek, visited the scene of -the accident the night it happened and saw the skid marks of Paul’s car clearly on the east side of the center line as he traveled north to the point of the collision. At the point of the collision, there was much debris on the east side of the road, and there were deep cuts in the blacktop pavement where the wrecked car of Paul had veered off the east side of the road, turned over twice and landed in a ditch, headed west. The Hoglund car was across tire highway, partly on the east lane and headed almost east. The left front of the Hoglund car had hit the left front wheel and fender of the Paul car. After the accident, Paul asked Miss Hoglund: “ * * * what happened, she come across the road the way she did. She told me that she had been fixing a window on the other side of the road, or down the road, and had swung across that way.” Miss Hoglund admitted the window was stuck and she had-been trying to close it without success, but stated she had stopped down the road before the accident for that purpose, and she denied that she was trying to fix the window while the car was in motion. Miss Hoglund was a trained nurse employed in the private hospital of Dr. Henderson at Tomahawk. She directed the injured Richter and Paul to this hospital, where Dr. Henderson treated them. A traffic officer accompanied the parties to the hospital, and requested that a specimen of the urine of Paul and of Richter be taken and sent to the State Toxicologist for analysis to determine whether the parties were intoxicated. Richter and Paul both testified that they were not intoxicated at the time of the accident. Paul admitted that he had had three or four one-ounce glasses, not quite full, of whiskey the forenoon of the day of the accident. Paul met Richter about one-thirty p. m. of the day of the accident, and they drove to Merrill, some sixty miles, where they met Paul’s mother and assisted her with some business transactions. In the middle of the afternoon, while in Merrill, Richter and Paul each drank a bottle of beer. Paul testified that the drinks he had in the morning and the bottle of beer in the afternoon were all the alcoholic beverages he had that day. Richter testified that the bottle of beer was the only alcoholic beverage he had that day. They drove from Merrill to visit a nearby dam, and on to Tomahawk. Richter, who was afflicted with asthma and who had been unable to sleep during the two nights preceding the accident, fell asleep. Paul stopped in Tomahawk for a lunch. Paul then proceeded on from Tomahawk to the scene of the accident, about eleven and one-half miles away. Paul’s employer saw him just before noon, and testified that Paul was sober at that time. Paul’s mother saw him just before his departure for Merrill about six p. m., and she testified he was sober at that time. The restaurant keeper at Tomahawk knew Paul and remembered that he was in his restaurant around nine p. m., and he testified that Paul was sober then and that he had no drinks there. Dr. Henderson, who treated Paul and Richter after the accident, said he could detect no odor of liquor about either of them. In order to prove that Paul and Richter were intoxicated, the appellant Hoglund offered Dr. Henderson to prove the taking of the urine specimens. The appellees objected that Dr. Henderson was the physician of Richter and Paul and the matter was privileged, and that Dr. Henderson had no right to take specimens of his patients’ urine and send them to the State Toxicologist. Dr. Henderson was extensively cross-examined and the court manifested considerable concern about the right of Dr. Henderson to take and send the urine specimens, and whether or not he had the consent of his patients to do so. The court finally permitted Dr. Henderson to testify as to the taking of the urine specimens, and their transmittal to the State Toxicologist, and permitted the State Toxicologist, Dr. Kozelka, to testify as to the alcoholic content of the urine and what the presence of this content indicated as to intoxication. The evidence showed that the urine specimens were taken at nine-thirty the morning following the accident. Dr. Kozelka testified the specimen purporting to be that of Paul indicated that he was under the influence of intoxicating liquor, but the specimen of Richter indicated an insignificant amount of alcohol. The appellants complain that the value of this testimony was destroyed by the court’s questions and observations and the vigorous cross-examination of Dr. Henderson. We have carefully read all of the record with reference to Dr. Henderson’s examination, and we cannot agree with the appellants that the court’s conduct or the cross-examination was prejudicial to the appellants. The concern of the court and of counsel for the appellees Richter and Paul can well be understood. The court had to determine whether or not this evidence was properly obtained and admissible. Dr. Henderson was the appellees’ doctor and was treating the appellees as his patients at the time he was taking their urine specimens and turning them over to third parties. It must also be borne in mind that the appellees were patients in a small private hospital where Miss Hoglund was employed and presumed to be on very friendly terms with her fellow-nurses and her employer, Dr. Henderson. Therefore, it was not unusual for the appellees’ counsel to be somewhat suspicious and vitally interested in ascertaining whether the specimens were properly taken. See Kuroske v. Ætna Life Ins. Co., 234 Wis. 394, 403, 291 N.W. 384, 388, 127 A.L.R. 1505. In determining whether the doctor’s acts and revelations of things learned and his use of the specimens obtained from his patients while in his care and under treatment were within or without the privilege of Sec. 325.21 of the Wisconsin statutes, the court had a broad discretion as to the extent of the cross-examination of the doctor, and the right of the judge himself to participate therein. In the case at bar, this discretion was not abused. Before the appellants can claim prejudice of their case in the preliminary examination to determine the admissibility of evidence that is finally admitted, they would have to show very extensive and gross abuse of discretion in such preliminaries. We are quite satisfied that such abuse is not present in the instant case. Furthermore, it is difficult for us to see how a vigorous cross-examination of Dr. Henderson could be prejudicial, when Dr. Kozelka testified at great length as to the alcoholic content of the specimens of urine, and the court instructed fully on the question of intoxication. The issue on the question of intoxication was fairly submitted to the jury, and it resolved that question in favor of the appellees. We see no reason for disturbing this finding. The appellants next complain that the court erred in refusing to admit in evidence the hospital record of appellee Richter. The appellants never offered the hospital record of Richter. The said record was read in evidence by the nurse Conry while under ci-oss-examination by the attorney for appellee Paul. The attorney for Richter moved to strike all reference to Richter’s hospital record except the time the specimen of urine was taken. The court sustained this motion. The appellants never objected to the motion, or to the striking from the record in accordance therewith. The court stated: “The use of that hospital record was simply for the purpose, the Court had in mind, of ascertaining the time when the — ” Mr. Genrich: (Attorney for Appellants ■ — Interrupting.) “I see — all right.” The Court: (Continuing.) “urine was bottled, and it will be used for no other purpose.” No error was committed with reference to this transaction, first because the appellants made no objection to the motion to strike and the granting thereof; and secondly, because the counsel for the appellants not only did not object to the court’s action, but acquiesced therein. The next question presented is whether or not the damages awarded were excessive. Richter sued for $15,000, and recovered a verdict of $15,379.70. The amount in excess of $15,000 was the amount of damages proved for hospital and doctor expenses, etc. The trial court reduced this verdict to $11,500. The evidence showed without dispute that Richter was very seriously injured. He was unconcious until some time the next morning after the accident. He regained consciousness in the hospital. He was strapped to the bed. He had suffered great shock. He was in the hospital for eighteen days. After his discharge therefrom, he did not work any more that summer. He earned fifty dollars a week as a musician when he worked. He suffered a concussion of the brain, and at the time of the trial he suffered some defect to his equilibrium, as demonstrated by the well-known Romberg test. At the time of the trial, he was still suffering from headache, dizziness and backache. He had received three large cuts on his face which left scars, one of which disfigured his left ear; and as the result of one of the other cuts and the injuries he received to his head, there is a complete and permanent loss of muscle control of the left half of the forehead. These muscles are paralyzed. There is an area of hyperesthesia (which means that it is very over sensitive) on the scar in front of the ear. There is a larger area between the eye and the ear in which there is absolutely no' sensation. The lumbar region of the bade was tender at the time of the trial, and pain was excessive when the thigh was drawn up against the abdomen. His pain and suffering were and are great. Richter was thirty-one years old. With such injuries, suffering, disfigurement, paralysis and the permanency of several of the injuries, we do not think the verdict was excessive. Appellee Paul recovered $4,697. The sum in excess of the $4,000 prayed for in the complaint was damage to his automobile and recompense for doctor and hospital expenses. The court reduced the verdict to $4,000. This verdict is also challenged as excessive. Paul suffered a head injury, with a cut across his nose and a fracture thereof displacing the septum to the right, causing very serious and almost complete obstruction to breathing through the right nostril. This condition had caused the membranes inside the nose to thicken and interfere with the proper drainage of the sinuses, which caused the plaintiff to suffer severe headaches almost daily, and sometimes they were severe enough to last the entire day. He suffered dizzy spells for a year after the accident. Dr. Brick, who examined him just before the trial, testified that at a cost of $225 an operation could be had upon his nose that would relieve him, but he could not ’guarantee that the operation would give him complete relief, and that in his opinion there would always be some permanent effects of the injury to the nose. The doctor also testified that there was embedded in the skull of Paul what appeared to be a piece of steel, which should be removed, and that the removal would require an operation that would cost $150. Paul was in the hospital only one day, and his doctor bill and hospital bill amounted to $62. The damage to his car was $635. This would leave less than $3,000 to compensate him for: the injuries to his nose; the pain and suffering occasioned by the accident; the pain and suffering he might have to endure in submitting to two operations to correct injuries he received; the time he lost after the accident, amounting to several days; and any time he might lose from his work due to the operations. While this verdict is substantial for the injuries received, we do not think it is so excessive as to indicate undue prejudice, passion or corruption on the part of the jury. Sweet v. Underwriters’ Co., 206 Wis. 447, 240 N.W. 199; Kull v. Advance-Rumely Co., 209 Wis. 565, 245 N.W. 589; McCartie v. Muth, 230 Wis. 604, 284 N.W. 529; Groh v. Krahn, Inc., 223 Wis. 662, 271 N.W. 374; Knaus v. Yoder, 98 Colo. 1, 52 P.2d 1152; Coppock v. Pacific Gas & Electric Co., 137 Cal.App. 80, 30 P.2d 549. It is urged that the court erred in permitting over appellants’ objection one Prahl, a traffic officer, to testify as to the presence at the time of the trial of certain skid marks on the east side of the center line, both on the blacktop pavement and on the shoulder, and of a gouged place in the east shoulder of the road, at the point on Road 51 south of Road 8 where the accident was shown by other competent evidence to have happened. Prahl did not attempt to say what caused the marks, except to say that they were such as a car would make, and he did not attempt to say they were made by Paul’s car. Yeschek had testified that the marks made by Paul’s car at the time of the accident were still visible on the highway at the point where the accident happened. That location had been clearly established by competent evidence. Yeschek took Prahl out and showed him the place in question, and Prahl came back and testified as to what he saw with reference to the marks on the highway at that particular point. The purpose of this evidence was to corroborate Yeschek that the marks were still on the pavement at the point of the accident, and not to prove by Prahl when the marks were put there or by what means. These facts had already been established by other competent evidence, and the testimony of Prahl was limited by the court and counsel to the corroboration of Yeschek as to the marks on the road at the scene of the accident at the time of the trial. When so limited it was admissible, and the weight to be given thereto was for the jury. Finally, the appellants contend that the amount of the Richter verdict should be further reduced by the amount of the payment received from the United States Fidelity & Guaranty Company in consideration of the covenant not to sue. No question was presented to the court below concerning this matter. It is raised for the first time on this appeal. Matters raised here for the first time which should have been considered in the court below will not be considered by us. Springer v. United States, 102 U.S. 586, 26 L.Ed. 253; Towle v. Pullen, 7 Cir., 238 F. 107. If the appellants are entitled to a remittitur on the judgment rendered against them, the District Court is the place to present that claim. The judgment 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_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. DENICKE et al. v. ANGLO CALIFORNIA NAT. BANK OF SAN FRANCISCO et al. No. 10329. Circuit Court of Appeals, Ninth Circuit. March 1, 1944. Rehearing Denied April 7, 1944. Aaron M. Sargent, of San Francisco, Cal., for appellant. Frederick M. Fisk, Donald Y. Lamont, Chickering & Gregory, all of San Francisco, Cal., for appellee Anglo California Nat. Bank. Brobeck, Phleger & Harrison, of San Francisco, Cal., for appellee R. S. Dollar. Edwin V. McKenzie and J. H. Sapiro, both of San Francisco, Cal., for appellee Victor Klinker. Theo. J. Roche and Sullivan, Roche, Johnson & Farraher, all of San Francisco, Cal., for appellees Mortimer Fleishhacker and Mortimer Fleishhacker, Jr., Felix T. Smith, Francis R. Kirkham, Pillsbury, Madison & Sutro, all of San Francisco, Cal., for appellee Irene L. Heyes. Before MATHEWS, STEPHENS, and HEALY, Circuit Judges. HEALY, Circuit Judge. This appeal is from a judgment in a derivative suit (entered pursuant to Rule 23(c) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c) approving a compromise and directing a dismissal. An appeal was taken also from an order denying a motion to vacate the judgment. The record comprises almost 2,000 printed pages and the briefs are very long, but the questions presented are relatively simple. The suit was filed in November 1938 by appellant Denicke, a stockholder ot appellee Anglo California National Bank (herein for brevity called the Bank.) At the time of the hearing on the petition for compromise in March of 1942 there was on file a second amended complaint containing eight counts, the first of which concerned alleged derelictions of appellees Mortimer Fleishhacker and Herbert Fleishhacker, former directors and chief executive officers of the Bank. The second count was against the same defendants and several other parties with whom it was alleged the Fleishhackers had conspired to cause the making of illegal or fraudulent Bank loans. The remaining counts set up claims against other directors based on the transactions covered by the first two counts and asserting that these directors had substantially abdicated their functions in favor of the Fleishhackers, to the consequent loss of the Bank. The total recovery sought against the several defendants was in excess of five million dollars. As the reason for the institution of the stockholder’s suit it was alleged that the Bank directorate was dominated by adverse interests to the extent that it was impossible to obtain appropriate action to enforce the claims sued upon. Federal jurisdiction was predicated on 12 U.S.C.A. §§ 93 and 503, imposing personal liability upon officers and directors where loss is sustained through violation of the national banking laws. The Bank itself did not plead to the complaint. Some months after the suit was filed (on April 1, 1939, to be specific) the management underwent a change, so that individuals unconnected with the litigation were brought into active charge of the institution’s affairs. There is evidence that the new management carried on an extensive investigation of the claims asserted in the suit, and there were negotiations both with appellant Denicke and with the defendants looking toward a compromise of the litigation. Another derivative suit brought by Denicke on the Bank’s behalf, apparently against the same parties, was pending before Judge Roche, the instant case being on the calendar of Judge St. Sure. Denicke was represented in both suits 'by the same attorney. The Bank received written offers from the defendants in the two suits to pay the sum of $350,000 in full settlement of the claims, and on July 1, 1941, it presented a petition under Rule 23(c) to obtain court approval of the settlement proposed to be made for that sum. The offers in question had previously been submitted to and unanimously approved by the Bank’s executive committee and by its board of directors; and at a special meeting of the shareholders, called for that purpose and held July 7, 1941, the action of the board in accepting the compromise offer was ratified by a vote of more than 95% of the total outstanding stock. Following this action the two trial judges jointly heard the petition to compromise. The hearing extended over a period of nine days, during which time numerous witnesses were examined and a large amount of documentary evidence was introduced. Among those testifying were the Bank’s president, its first vice president, and Mr. Mortimer Fleishhacker. In January 1942 the judges denied the petition “without prejudice to the filing by said Bank, if so advised, of separate offers of compromise in each of the actions.” Thereafter separate, offers, in the amount of $200,000 in each suit, were received by the Bank. In the companion action pending before Judge Roche this offer was accepted by the Bank, had court approval, and -there was no appeal. In the case before us, after notice to all stockholders, a hearing, eventuating in the judgment appealed from, was had on March 31, 1942, on the Bank’s petition to compromise and terminate the litigation. Written objections of appellants had previously been filed, and a pretrial conference had been held. It was stipulated that the record and proceedings had in the hearing on the previous petition be considered as evidence in the matter along with the oral arguments and briefs then before the court. Little additional evidence was offered at the hearing, and that in support of the petition. Upon being asked if he was “through,” counsel for appellants moved for a nonsuit or denial of the petition. The purpose of this motion, as stated in appellants’ brief here, was “to avoid the necessity of offering further proof.” The motion was not ruled on, and the court continued the matter to a later time on the assumption that the case on the petition had been submitted. It is contended that the only matter presented for decision was the motion for nonsuit, and that the case as predicated on the Bank’s petition was not finally submitted at this hearing. In substance, the argument appears to be that appellants were not given the opportunity of making a full showing in opposition to the compromise proposal. However, no proffered evidence was rejected by the court. As already noted, there had been a very extensive hearing the previous July. A great mass of evidence had been assembled by appellants’ attorney and was before the court or available for submission. Numerous interrogatories had been propounded and answered. And in the period of three and a half years elapsing since the commencement of the suit there had been ample time in which to make use of the various forms of discovery available under the Rules of Civil Procedure. ' Discovery proceedings had been freely resorted to and no requests for discovery had been denied by the court. The answers of the various defendants were on file, and the main case had long been at issue. It is true that in the course of his argument on the motion for nonsuit appellants’ counsel stated that there was a good deal of additional evidence that he had or was assembling, but he added that “rather than take up the time with a detailed hearing on this matter, the petition now pending ought to be denied. The record shows enough to sustain such an order, and that the case continue.” Counsel wished, he said, “to reserve the right to introduce evidence in rebuttal at a later date.” The court observed that it did not want to hear more evidence and would prefer to have it understood that the petition was being submitted on the evidence adduced; to which appellants’ attorney replied that he would “submit the matter on the showing made, on the arguments I have made, and on the briefs already on file.” We see in all this no sufficient reason for believing that appellants were deprived of their day in court. After the hearing appellants’ attorney continued his investigations and took a number of additional depositions, none of which was offered or received in evidence. On June 29, 1942, the court entered an order denying appellants’ objections and granting the petition of the Bank. Simultaneously the court filed a written opinion reviewing the case at much length. This was followed on July 2, 1942, by a formal judgment approving the compromise and authorizing a dismissal with prejudice upon the Bank’s receiving the sum of $200,000. The sum was paid and the case dismissed. There were no separate findings, but a number of findings are incorporated in the judgment. It was found that the Bank and its representatives, in seeking approval of the compromise proposal, had acted in good faith and for the best interests of the shareholders; that the objections made by appellants were without merit; and that it is for the best interests of the 'Bank and its shareholders that the suit be finally terminated upon receipt of the offered sum. We see no clear error in these findings. It appeared that Herbert Fleishhacker, the defendant said to have been the beneficiary of the illegal transactions, was in bankruptcy, and there was no possibility of realizing from his estate more than a part of the judgments that had been obtained against him in the earlier secondary suits. Nothing was to be gained by pursuing him further. Following a recapitalization of the Bank, Mortimer Fleishhacker had paid in the sum of $2,590,000 on account of loans in which he had been interested. He and the other former directors were vigorously contesting liability on the merits and on other grounds, including the statute of limitations. Appellants claim that they had adduced sufficient evidence to make out at least a prima facie case of liability for much larger amounts than those offered, but neither of the trial judges was greatly impressed by the showing. Under all the circumstances we think it was primarily for the shareholders and the presently constituted authorities of the Bank, acting in good faith, to determine whether the best interests of that institution did not lie in the course they asked leave to follow. Cf. Hawes v. Oakland, 104 U.S. 450, 462, 26 L.Ed. 827. Out of more than a thousand shareholders only two, and those the appellants, objected to the compromise. Mr. Thompson, the president, in addition to testifying that the offer was thought advantageous in itself, ad.vanced other reasons for believing that a •continuance of the already protracted litigation would be highly detrimental to the Bank. He dwelt on imponderables of peculiar importance to a banking institution— the difficulty of differentiating in the popular mind between the events of today and those presently under discussion relating to other days, the need of preserving the morale of employees and the goodwill of important customers, the decline in prestige and the loss of public confidence in a bank whose name in constantly in the public eye in connection with litigation of this character. Appellants insist that the court lacked power to terminate the suit without their consent. Rule 23 of the Rules of Civil Procedure affords no ground for that view, and the California authorities, at least, are to the contrary. It is the rule .in that state that the stockholder is permitted to sue “simply in order to set in motion the judicial machinery of the court.” Whit-ten v. Dabney, 171 Cal. 621, 630, 154 P. 312, 316, quoting 3 Pomeroy’s Equity, 3d Ed., § 1095. His position in the litigation is assimilated to that of a guardian ad litem with power in the court, not in the stockholder, to compromise the rights of the real party in interest, which is the corporation itself, Whitten v. Dabney, supra; Loeb v. Berman, 217 Cal. 716, 20 P.2d 685; Russell v. Weyand, 5 Cal.App.2d 259, 42 P.2d 381. We are not aware of any federal law to the contrary, and in the present circumstances we think it appropriate if not obligatory on us to apply the local rule. We need not stop to inquire whether the order denying appellants’ motion to vacate the judgment was appealable, for the opinion already sufficiently indicates our view that appellants had ample time and a reasonable opportunity to present a full showing in opposition to the compromise. We find no merit in other points argued. Affirmed. The other appellant, Mary E. Doble, sought to intervene in the action at the time of the filing of the petition to compromise, and later appeared in response to an order to show cause directed to all the shareholders. The second amended complaint had been further supplemented by two additional counts. The statutes claimed to have been violated are 12 U.S.C.A. ■§§ 83, 84, 375a and 595. There had been earlier derivative suits by other Bank stockholders against Herbert Fleishhacker which had terminated in the entry of large judgments against that officer. Blum v. Fleishhacker, D.C., 21 F. Supp. 527; Fleishhacker v. Blum, 9 Cir., 109 F.2d 543; Anglo California Nat. Bank of San Francisco v. Lazard, 9 Cir., 106 F.2d 693. At the shareholders’ meeting appellants’ attorney participated in the discussion and read a prepared statement in opposition to the resolution ratifying the proposed compromise. Denicke owned 1,600 shares of the common stock of the Bank and Doble 1,752 shares, out of a total of 410,000 shares of common and 1,925,000 shares of preferred outstanding, Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. 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. John P. O’BRIEN, Appellant, v. WESTINGHOUSE ELECTRIC CORPORATION. No. 13308. United States Court of Appeals Third Circuit. Argued Dec. 6, 1960. Decided June 29, 1961. Rehearing Denied Aug. 1, 1961. William J. Ruano, Pittsburgh, Pa., for appellant. Walter T. MeGough, Pittsburgh, Pa. (Ralph H. Swingle, Pittsburgh, Pa., William L. Standish, IV, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., on the brief), for appellee. Before BIGGS, Chief Judge, and GOODRICH and FORMAN, Circuit Judges. FORMAN, Circuit Judge. In the first count of his complaint plaintiff-appellant John P. O’Brien, charged that defendant-appellee, Westinghouse Electric Corporation (Westinghouse), infringed his Patent No. 2,694,-951, issued on November 23, 1954, on an application filed on November 29, 1947, for a drawing die and method of making the same. In the second count he alleged that Westinghouse committed acts of unfair competition by misappropriating his invention prior to its being patented as a related claim arising under 28 U.S.C.A. § 1338(b). There was no diversity of citizenship between the parties. The case came on for trial on the complaint, answer and a pretrial order before the court and a jury. The court endeavored to channel the evidence toward the first count (patent infringement) only, but inevitably much evidence was admitted as to the second count (unfair competition). The record discloses that O’Brien offered proofs substantially as follows: In 1943 Westinghouse had orders for manufacturing commutator bars for dynamos on B-24 bombers. It was having difficulty producing them in proper quantity because in many instances the dies through which the copper was drawn in the production of the commutator bars failed to meet the desired tolerances which were very small or if they met the drawing sizes they would be produced with a twist. Both split steel and solid tungsten-carbide dies were tried without success. O’Brien, long an employee of Westinghouse, was working as a die setter and group leader at the draw bench in the Westinghouse Copper Mill in Wilkins Township, Pennsylvania. He addressed himself to the problems which were being experienced and in early 1943 submitted suggestions to Westinghouse for a method of making split tungsten-carbide dies, under a suggestion system operated by Westinghouse. Forms were provided by the company for the submission of suggestions which were used by O’Brien in making his submission. O’Brien testified that he expected to receive ten per cent of the savings effected by his suggestion in its first year of use. This expectation was based on an “Industrial Relations Manual” put out by Westinghouse which stated: “The Company will grant monetary awards for suggestions which are adopted and put into operation.” On September 22, 1943, the Suggestion Committee formally acknowledged O’Brien’s suggestion stating: “This suggestion has been adopted and the following is a consolidated statement of the action involved: “Split carbide dies in place of solid dies will be used in drawing copper in Section CM-20.” A token award of $25 was recommended and it was stated that O'Brien's suggestion “will be reopened as soon as savings can be determined.” There were a number of problems involved in the use of the method of making the dies as suggested by O’Brien which were submitted for solution to the engineers and technicians of Westinghouse. The first split tungsten-carbide die made pursuant to his suggestion was completed by employees of Westinghouse in 1943 on Westinghouse time and with Westinghouse materials. It was used in the years 1943 and 1944 for drawing a large quantity of copper in regular production of the copper commutator bars for Westinghouse’s orders as mentioned above and continued to be used thereafter. Westinghouse purchased machine tools for the production of the die in question. Some difficulty arose in making other dies, but the problems connected with the use of the suggested method were fully solved not later than November 22, 1944. From that time the method was in regular use and at least 55 different dies were made prior to May 1945. During 1943 O’Brien received a total of $460 for his suggestion. He protested the amount of the award. Thereupon Westinghouse recalculated the net savings due to the use of the die in question and arrived at a figure of $845. A long interval ensued during which O’Brien sought to negotiate with Westinghouse officials for a greater allowance for his suggestion. On January 4, 1947, Westinghouse tendered him an additional check for $810.95, which he did not cash. On January 13,1948, O’Brien through his attorney sent a letter to Westinghouse in which he attempted to rescind the “agreement”, returning the cheek for $310.95 and enclosing a check for $472.50, which covered the $460 he had previously received as the award for suggesting the tungsten-carbide die, as well as $12.50 which he had received for two earlier suggestions. In answering this letter Westinghouse denied that there was any undischarged contract which could be rescinded and returned the two checks. O’Brien persisted in his efforts to have Westinghouse reconsider the award until he received a letter dated in June 1954 in which Westinghouse suggested that the matter should be considered terminated. Thereafter he instituted this suit on March 7, 1955. At the close of O’Brien’s proofs Westinghouse moved for involuntary dismissal of O’Brien’s patent infringement claim (the first count of the complaint) under Rule 41(b) F.R.Civ.P., 28 U.S.C.A., on the ground that O’Brien’s own ease had disclosed public use and the existence of a shop right. The court granted that motion and also of its own volition dismissed the second count for unfair competition for lack of jurisdiction. The contention of O’Brien that should be met at the outset is his claim that the trial court “erred in making its own findings of fact, on disputed issues, allegedly pursuant to Rules 41(b) and 52(a) Federal Rules of Civil Procedure since these rules do not permit such findings in a jury ease.” He particularly pointed to eight findings of the court which he asserts “were represented in the light most favorable to defendant rather than to plaintiff as they should have been.” In a post-trial memorandum and order the trial court made it clear that it felt required to make written findings pursuant to Rule 52(a) on a motion under Rule 41(b) in a jury case because of the decision of this court in Makowsky v. Povlick, 3 Cir., 1959, 262 F.2d 13, also a jury case, wherein it was said: “Before considering the merits of the appeal, we comment upon the procedure employed in the district court. It appears that the defendants’ motion for a compulsory dismissal was made and granted under Rule 41(b), Federal Rules of Civil Procedure, 28 U.S.C. A dismissal under this Rule, other than for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits, Kuzma v. Bessemer & Lake Erie Railroad, 3 Cir., 1958, 259 F.2d 456, and requires the court to make findings as provided in Rule 52(a). However, no findings appear in the record before us. Accordingly, we shall treat defendants’ motion as one for a directed verdict and the judgment as one entered upon a directed verdict in accordance with Rule 50(a). Meyonberg v. Pennsylvania R. Co., 3 Cir., 1947, 165 F.2d 50, 52.” 262 F.2d at page 14. In granting the motion under Rule 41(b) the trial court dismissed both of O’Brien’s claims, the count for patent infringement on the merits and the count for unfair competition, for lack of jurisdiction. Therefore even under Makowsky the dismissal of the count for unfair competition did not require findings of fact. It would appear that as to the count for patent infringement the trial court was justified in feeling that Makowsky required it to make findings of fact. Prior to 1946 this court and the Fourth Circuit held in non-jury cases in each of which a motion was made for involuntary dismissal under Rule 41(b) that such a motion was equivalent to a motion for a directed verdict in a jury case; that the sole question was one of law whether plaintiff’s evidence and all the inferences fairly to be drawn from it in a most favorable light made out a prima facie case for relief and that no findings of fact were required to be made by the court under Rule 52(a) in such circumstances. Federal Deposit Insurance Corp. v. Mason, 3 Cir., 1940, 115 F.2d 548; Schad v. Twentieth Century-Fox Film Corp., 3 Cir., 1943, 136 F.2d 991; Whitley v. Powell, 4 Cir., 1946, 159 F.2d 625. The Sixth, Seventh and Ninth Circuits, on the other hand, held that the question was not whether there was sufficient proof to carry the case to the jury, but that the court itself being the trier of the facts, had a right to apply its own judgment to the plaintiff’s evidence, even though there was some conflict in the plaintiff’s case, or even if there were two possible inferences to be drawn from the plaintiff’s case. The court as the trier of the facts, might apply its own judgment and grant or deny the motion accordingly. Findings of fact were, therefore, held necessary. Gary Theatre v. Columbia Picture Corp., 7 Cir., 1941, 120 F.2d 891; Bach v. Friden Calculating Machine Co., Inc., 6 Cir., 1945, 148 F.2d 407; Barr v. Equitable Life Assurance Society, 9 Cir., 1945, 149 F.2d 634. In 1946 the Supreme Court amended Rule 41(b) as heretofore indicated by adding the following: “ * * * in an action tried by the court without a jury the court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a).” Committee Note to Amended Subdivision (b), 5 Moore, Federal Practice, Par. 41.01, at p. 1006 (2 ed. 1951). In Ettore v. Philco Television Broadcasting Corporation, 3 Cir., 1956, 229 F.2d 481, 484, 58 A.L.R.2d 626, a non-jury case, this court said in passing, no issue being raised on the question: “ * * * When an involuntary dismissal has taken place under Rule 41(b), F.R.C.P., all facts supplied by the stipulation or coming upon the record from any other source and all reasonable inferences therefrom must be viewed in the light most favorable to the plaintiff.” In Kahn v. Massler, 3 Cir., 1957, 241 F.2d 47, 48, in an appeal to this court from a decision in another non-jury case, although the question of the effect of the 1946 amendment came up it was not definitively ruled upon, the court saying: “This is an appeal from a judgment of the District Court for the District of New Jersey. The trial judge granted, upon motion, an involuntary dismissal at the close of the plaintiffs’ case under Rule 41(b) of the Federal Rules of Civil Procedure, 28 U.S.C. The district court felt itself bound by the dictum expressed by this Court in Ettore v. Philco Television Broadcasting Corporation, 3 Cir., 1956, 229 F.2d 481, 484, [58 A.L.R.2d 626,] to the effect that the evidence should be considered in the light most favorable to the plaintiff. D.C.D.N.J.1956, 140 F. Supp. 629, 632. In the Ettore opinion the court had in mind Fed.R.Civ.P. 41(b) as it was prior to the 1946 addition. The effect of the 1946 addition to Rule 41(b) did not have to be decided under the circumstances of the Ettore case and we need not examine the addition here. The effect of the 1946 addition * * has not been decided by this Court * * * » There followed the decision in the Makowsky case holding that findings of fact were required on a motion under Rule 41 (b) in a jury case as aforesaid. Actually no findings had been filed and the court viewed the motion as if it were one for a directed verdict. Something of an anomaly is created by a comparison of the Federal Deposit Insurance Corporation and Schad, non-jury cases, where findings of fact were not required and Makowsky, a jury case, where the indication was that findings of fact were necessary. Now we are confronted with a jury case in which a motion was made to dismiss at the close of the plaintiff’s case under Rule 41(b) on a count for patent infringement, the granting of the motion, the filing of findings of fact and conclusions of law and the challenge to those findings. It appears timely to dissipate any confusion that may have grown out of the prior decisions of this court. It is clear a motion under Rule 41(b) for dismissal at the end of plaintiff’s case, that upon the facts and the law the plaintiff has shown no right to relief, is proper in a case without a jury. Upon granting such a motion the court should make findings of fact and conclusions of law pursuant to Rule 52(a). Upon review the findings must be accepted unless clearly erroneous. It is equally clear that in a jury case the question only can be one of law. Therefore the motion should be for a directed verdict as mentioned in Rule 50. Sano v. Pennsylvania Railroad Company, 3 Cir., 1960, 282 F.2d 936; Kingston v. Mc-Grath, 9 Cir., 1956, 232 F.2d 495, 54 A. L.R.2d 267. If the court grants it no findings of fact are necessary and upon review the evidence must be viewed in the light most favorable to the party against whom the motion is made. Hence in this case it is held that no findings of fact were necessary, any indication in Makowsky v. Povlick, supra, to the contrary notwithstanding. We will therefore treat the motion under Rule 41(b) in this case as one for a directed verdict, and will disregard the findings of fact of the trial court, reviewing the entire evidence in the light most favorable to the plaintiff and giving him the benefit of all reasonable inferences which may be deduced from the evidence in his favor, Warlich v. Miller, 3 Cir., 1944, 141 F.2d 168, a rule applying as well in patent cases. To adopt any other view in a jury case is to risk the deprivation of a plaintiff’s right to trial by jury under the Seventh Amendment. Galloway v. United States, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458. Having the foregoing in mind we now pass to O’Brien’s other contentions. He submits that the trial court erred in holding the patent invalid because of public use more than a year before the patent application was filed on November 29, 1947. It will be recalled that Westinghouse used the method of making dies with which many copper commutator bars were produced for installation in airplane motors. When a patentee has used the process of a patent to create a product which has been sold on the market more than one year prior to the patent application, such use of the process and sales constitute “prior use” within the meaning of 35 U.S.C. § 102(b). United States Chemical Corp. v. Plastic Glass Corp., 3 Cir., 1957, 243 F.2d 892. The evidence discloses that while O’Brien did not use the die making method himself, he allowed its use by Westinghouse. This is of no moment for when an inventor allows his invention to be used by other persons either with or without compensation, it will be in public use. Shaw v. Cooper, 1833, 7 Pet. 292, 32 U.S. 292, 8 L.Ed. 689; Root v. Third Avenue Railroad, 1892, 146 U.S. 210, 223, 13 S.Ct. 100, 36 L.Ed. 946; Huszar v. Cincinnati Chemical Works, 6 Cir., 1949, 172 F.2d 6. O’Brien, however, insists that the use here was “secret” rather than “public” because as he contends “the undisputed evidence clearly shows that only one employee, namly Louis Byers, used the patented method biit did so in secrecy.” In support of his position he cites Electric Storage Battery Co. v. Shimadzu, 1939, 307 U.S. 5, 20, 613, 616, 59 S.Ct. 675, 684, 83 L.Ed. 1071, to the effect that a secret use exists if “the machine, process, and product were not well known to the employees in the plant, or that efforts were made to conceal them from any one who had a legitimate interest in understanding them.” That case is clearly distinguishable. In it the Court was referring to a use by some one other than the inventor without the inventor’s knowledge. In this case the use by Westinghouse was clearly with the knowledge and consent of O’Brien and indeed at his insistence. Under the facts of this case even if Westinghouse kept the method secret but used it commercially with O’Brien’s knowledge and consent the use would be public. Metatallizing Engineering Co. v. Kenyon Bearing & A. P. Co., 2 Cir., 1946, 153 F.2d 516; Huszar v. Cincinnati Chemical Works, supra. In any event the record clearly shows that the die making method in issue was discussed or disclosed to many Westinghouse employees and discussed with representatives of other companies including Carboloy Company and Firth Sterling Steel Company. O’Brien insists, however, that public use is not a defense “if an invention is ‘surreptitiously’ used by one other than the inventor”. O’Brien was given every opportunity to produce evidence that Westinghouse obtained and used the die making method by surreptitious means. The record discloses no such evidence. O’Brien submits that he was the victim of an “unfair act”, upon the part of the secretary of the Suggestion Committee of Westinghouse who dissuaded him from filing an application for a patent on his suggested die making method by informing him that applications for patents could not be filed during the war. He also contends that Westinghouse is estopped from raising the defense of public use to the validity of the patent. We see no merit in either of these contentions. We therefore agree with the trial court that the patent was invalid for prior public use. O’Brien also urges that the trial court erred in holding that Westinghouse had a shop right that barred his claim for patent infringement. Consideration of this issue is not necessary in view of our agreement with the holding of the trial court that the patent is invalid because of a prior public use. We now pass to a consideration of the trial court’s action in dismissing O’Brien’s claim for unfair competition, the subject of the second count of his complaint, on the ground that it did not have jurisdiction of that claim under 28 U.S.C.A. § 1338(b). Three reasons were given by the trial court for its action. One was that the claim for patent infringement is not a substantial one within the meaning of the statute because of the holding of Westinghouse’s shop right and public use. The requirement that the patent claim be substantial is designed to preclude a collusive back door approach to the federal court. The mere fact that in the case at bar it has been held that O’Brien’s claim for patent infringement is not good because the patent was invalid, does not deprive the patent claim of jurisdictional substantiality. Schreyer v. Casco Products Corp., 2 Cir., 1951, 190 F.2d 921, certiorari denied, 1952, 342 U.S. 913, 72 S.Ct. 360, 96 L.Ed. 683; American Securit Co. v. Shatterproof Glass Corp., D.C.D.Del.1958, 166 F.Supp. 813, affirmed 3 Cir., 1959, 268 F.2d 769. In American Securit Co. v. Shatterproof Glass Corp., supra, Judge Steel correctly stated the test to be applied here, when he said: “Presumably § 1338(b) means nothing more than the claim under the patent law must satisfy the test of substantiality generally exacted when a jurisdictional challenge is asserted in a federal court. In such instances the question is whether the claim jurisdictionally assailed is ‘obviously without merit’ or its unsoundness ‘ “clearly results from previous decisions” ’ of the Supreme Court. Levering & Garrigues Co. v. Morrin, 1933, 289 U.S. 103, 105, 53 S.Ct. 549, 550, 77 L.Ed. 1062. Jurisdiction to adjudicate is wanting only where the federal claims stated in the complaint are so unsubstantial as ‘to be frivolous or * * * plainly without color of merit’. Binderup v. Pathe Exchange, 1923, 263 U.S. 291, 306, 44 S.Ct. 96, 98, 68 L.Ed. 308. If it appears that a plaintiff is *not really relying upon the patent law for his alleged rights’ then the claim does ‘not really and substantially involve a controversy within the jurisdiction of the court’; otherwise jurisdiction exists regardless of whether the claim ultimately be held good or bad. The Fair v. Kohler Die & Specialty Co., 1913, 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716.” (Emphasis supplied.) 166 F.Supp. 813, 824. The evidence adduced here does not indicate that the patent claim was frivolous or colorable or contrary to controlling cases. It follows therefore that O'Brien’s patent claim was substantial within the purview of § 1338(b). Another reason advanced by the trial court for failure of jurisdiction under that section was that the claim for unfair competition is not related to the claim for patent infringement “because the former arose in 1943 whereas the latter did not arise until the patent is- sued on November 23, 1954 and thus the two claims involve widely different periods of time and different proof.” A related claim as used in the statute refers to one which may be proved by substantially the same facts. Maternally Yours, Inc. v. Your Maternity Shop, 2 Cir., 1956, 234 F.2d 538; American Securit Co. v. Shatterproof Glass Corp., supra; Bullock v. Sears, Roebuck Co., D.C.N.D.N.Y.1956, 142 F.Supp. 646; Falcon Products v. Hollow Rod Sales & Service Co., D.C.S.D.Cal.1955, 135 F. Supp. 91. Virtual identity of proof of the federal and non-federal claims is not required. Maternally Yours, Inc. v. Your Maternity Shop, supra; American Securit Co. v. Shatterproof Glass Corp., supra. The fact that the claims for unfair competition arose prior to the claim for patent infringement does not make the former unrelated to the latter. Darsyn Laboratories v. Lenox Laboratories, D.C. D.N.J.1954, 120 F.Supp. 42, affirmed 3 Cir., 1954, 217 F.2d 648. Difference in time was not regarded as crucial in determining whether a claim was related under § 1338(b), in Maternally Yours, Inc. v. Your Maternity Shop, supra. In Falcon Products v. Hollow Rod Sales & Service Co., supra, the claim for unfair competition under § 1338(b) was based on the use of confidential information disclosed three years prior to the issuance of a patent. Moreover, as was pointed out in Darsyn Laboratories v. Lenox Laboratories, supra, a claim for unfair competition based on acquisition and conversion of a trade secret could only arise prior to the issuance of a patent. After the issuance of the patent such a claim for unfair competition would be inconsistent since the grant of the patent is a public disclosure not only of the process defined in the claims but also of any trade secrets described in the specifications. Aside from the issue of chronological identity it is clear that a claim for unfair competition based on the misappropriation of a novel idea given in confidence is related to a claim for patent infringement under 28 U.S.C.A. § 1338(b). Schreyer v. Casco Products Corp., supra; Telechron, Inc. v. Parissi, 2 Cir., 1952, 197 F.2d 757; Kleinman v. Betty Dain Creations, 2 Cir., 1951, 189 F.2d 546, 549 (Dissent by Judge Clark). We therefore disagree with the ruling of the trial court that because the two claims involved different periods of time the claim for “unfair competition” is not related to the claim for patent infringement within the requirements of § 1338 (b). Still another reason advanced by the trial court for failure of jurisdiction was that “The said cause of action is not in fact an action for unfair competition within the meaning. of 28 U.S.C.A. § 1338(b) because the parties were not in competition and the method involved was not submitted in confidence or misappropriated but was used with the consent and permission of plaintiff and plaintiff’s only claim is for an alleged breach of contract over which this Court has no jurisdiction in the absence of diversity of citizenship which does not exist.” O’Brien submits that actual competition between the parties is not a required element of unfair competition as the term is used in § 1338(b). It has long been held that the doctrine of unfair competition extends to the misappropriation for the commercial advantage of one person of a benefit or a property right belonging to another. Ettore v. Philco Television Broadcasting Corp., 3 Cir., 1956, 229 F.2d 481; Schreyer v. Casco Products Corp., supra; Telechron, Inc. v. Parissi, supra. Moreover, it has been said: “Competition, direct or indirect, is not an essential element of the action [unfair competition], * * * There is no fetish in the word competition. The invocation of equity rests more vitally upon unfairness.” 1 Nims, Unfair Competition and Trade-Marks, p. 4 (4th ed. 1947). In Federal Trade Commission v. Real Products Corp., 2 Cir., 1937, 90 F.2d 617, it was held that all persons are free to enter the trade at any time and are therefore potential competitors. We therefore differ with the trial court in its holding that there was no jurisdiction over the second count for unfair competition on the ground that the parties were not in actual competition. We do, however, agree that the die making method involved was not submitted in confidence or misappropriated but was used by Westinghouse with the consent and permission of O’Brien, but we make this holding on the merits rather than on the question of jurisdiction. Cf. Binderup v. Pathe Exchange, 1923, 263 U.S. 291, 44 S.Ct. 96, 68 L.Ed. 308; The Fair v. Kohler Die Co., 1912, 228 U.S. 22, 33 S.Ct. 410, 57 L.Ed. 716. To recapitulate the evidence submitted in O’Brien’s own case: He made his suggestions on forms furnished by the company at the top of which is the statement “Suggestions of outstanding merit will be sent to the War Production Board, Washington, D. C.” Each form also carried the notation “The Suggestion Committee will act as a clearing house for suggestions which will aid in the general War effort and having no Westinghouse application.” The suggestion form was not marked with any security classification such as “restricted”, “confidential” or “secret”. At the bottom of the form was written “All suggestions become the property of the Company.” O’Brien desired to have his suggestion used to the point of insistence. Only in that way could savings be effected and he receive an award. Westinghouse was willing to pay him a given percentage out of any savings accruing to it by reason of the use of his suggestion and did so, although the amount due came into dispute. As suggested by the trial court there is at most a dispute between O’Brien and Westinghouse as to whether there has been paid to him all of the percentage of savings accruing to Westinghouse which is due to him and that controversy was not for the federal court. Viewing the evidence introduced by O’Brien in a light most favorable to him (as we must in considering a motion for a directed verdict) it is clear that no reasonable jury could find that the die making method was submitted in confidence or misappropriated. We have not overlooked the fact that O’Brien claims he was not permitted to introduce all of the evidence he had on the issue of unfair competition. In his brief, however, he asserts that such evidence concerns his defenses on the issues of shop right and public use. Those issues are specifically related to his claim for patent infringement and not his claim for unfair competition. We cannot perceive how any evidence O’Brien may yet introduce on the issues of shop right and public use could change the holding that he has no claim for unfair competition. We therefore conclude that the trial court had jurisdiction of the claim for unfair competition under § 1338(b), but Westinghouse is entitled to a verdict in its favor on the second count of the complaint on the merits because the proofs of the plaintiff failed to disclose unfair competition. We have indicated approval of the ruling of the trial court on the first count for patent infringement. Its ruling on the second count for unfair competition also will be affirmed but for the reasons assigned herein. . The claims of Patent No. 2,694,951 are directed solely to a method of making a split-tungsten-carbide die such as used for drawing copper bars. The die involved in this action has been held to be unpatentable by a final decision of the Court of Appeals for the District of Columbia of December 18, 1958, in a suit brought by O’Brien against the Commissioner of Patents, No. 14,379. Plaintiff can recover no damages for patent infringement for the use of the unpatented die, but is limited to damages because of the use of the method of making tbe die as covered by the patent claims. Paragraphs 5 and 8 of the pretrial order entered by the trial court on March 30, 1959 with the consent of the parties. . Section 1338(b) of Title 28 U.S.C.A. provides: “(b) The district courts shall have original jurisdiction of any civil action asserting a claim of unfair competition when joined with a substantial and related claim under the copyright, patent or trade-mark laws.” . At the top of the suggestion form there appears the following language: “Your Country in the interest of National Defense and our Victory objective, needs your ideas and your ingenuity in the form of practical suggestions. Ideas, that will speed up production, conserve labor and materials, and otherwise promote our war efforts, are urgently needed. “Suggestions of outstanding merit, will be sent to the War Production Board, Washington, D. C. "The Suggestion Committee will act also as a clearing house for suggestions which will aid in the general war effort, but having no Westinghouse application. “To help your Country, your Company, and you, to win the fight for Victory, send your ideas to the Suggestion Committee, using this form, or any piece of paper. Keep ’em flowing! More Production Sooner!” At the bottom of the form it was stated: “All suggestions become tbe property of tbe Company.” . The Manual further provided: “12. Determination of Awards “a. In all cases where suggestions result in a calculable savings, it is recommended that the award be based on ten per cent (10%) of the net savings or five per cent (5%) of the gross savings, whichever amount is the greater. (Careful attention should be given before paying higher percentages than the above.) # * * u $ $ # * * “(1) In determining savings, the following factors should be considered whenever applicable: labor savings, material savings, increased production, operations eliminated, reduction of material cost, use of cheaper stock, etc., as estimated for one (1) year from the date the suggestion is placed in operation * * . No explanation is offered in the record as to the difference between $770.95 and $845. . The trial court disposed of the motion as follows: “I hold in this ease — I’m sorry, I have to hold in this case what I can see the law to be, based on the evidence that you presented, Mr. Ruano, and my ruling on that — I’m going to suggest that counsel put the matter in findings, because if I grant the motion under 41(b) I have got to make findings. Findings should be based on a contractual relationship, and because of that contractual relationship Westinghouse had the right to use that, they were to pay him certain monies, but that is not this case, see? The suit on the patent, he cannot assert any claim or relief under the patent in this case. The court doesn’t have jurisdiction of the other matter, the contract or the unfair competition.” Subsequently the court filed written findings of fact and conclusions of law. The conclusions of law are as follows: “1. This Court has jurisdiction of the cause of action for patent infringement by virtue of 28 USC 1338(a). “2. Defendant has a shop right to use the method of the patent in issue because the method was worked out, developed and reduced to practice by a group of employees of defendant, working under the direction of supervisory employees of defendant in the shops and laboratories of defendant on time paid for by defendant, using materials, tools, machines and equipment paid for and owned by defendant with the full knowledge, approval and consent of plaintiff. “3. The patent in issue is invalid because of public use within the established legal meaning of 35 USO 102(b) more than one year before the patent application was filed on November 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_state

56

What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CHICAGO ROLL FORMING CORPORATION, and Machinery, Scrap Iron, Metal and Steel, Chauffeurs, Warehousemen, Handlers, Helpers and Alloy Fabricators Union, Local 714, I.B. of T., Respondents. No. 17318. United States Court of Appeals Seventh Circuit. Nov. 6, 1969. Marcel Mallet-Prevost, Asst. Gen. Counsel, Ian Lanoff, Atty., N. L. R. B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Michael N. Sohn, Jerome Weinstein, Attys., N. L. R. B., for petitioner. Marvin Sacks, Chicago, 111., Levin & Berger, Chicago, 111., of counsel, for respondent Union. Before DUFFY, Senior Circuit Judge, SWYGERT and CUMMINGS, Circuit Judges. DUFFY, Senior Circuit Judge. The National Labor Relations Board (Board) petitions for enforcement of its decision and order issued on October 23, 1967, finding respondent Chicago Roll Forming Corporation (Company) and the Union guilty of violating respectively Section 8(a) (1) and (3) and Section 8 (b) (1) (A) and (2) of the National Labor Relations Act (Act) as amended, (61 Stat. 136, 73 Stat. 519, 29 U.S.C. Sec. 151 et seq.) Although the Company has acquiesced in the Board’s ruling, the Union challenges it. The Board found that the Company and Union through their agent Bone respectively violated the Act by threatening various employees with reprisals and in discharging and causing the discharge of employees Scott, Hawkins and Walker because they engaged in protected union activities. James Bone was the Union steward for the Company’s production, maintenance and shipping employees. Harold Beebe was the Company’s president; Gobal Stalker was the plant superintendent. Richard Schumacher was the Union business representative. Bone, as Union steward, signed up employees for the Union. He would also present grievances including the matter of discharges to superintendent Stalker. Bone would aid an employee in his presentation of grievances to Stalker. If the matter was not resolved, Bone would then .confer with Beebe. Bone had additional responsibilities to those pertinent to his position as Union steward. For a period he was identified as “foreman” and leadman in the Company’s paintshop and in September 1965, he became the leadman in charge of fifteen employees in the welding and fabrication department. As leadman, Bone was responsible for the completion by his department of work orders which had been given to him to fill. Bone assigned jobs to the employees under him and described to them the welding work to be done. He trained new welders, inspected the work and ordered corrections when necessary. Bone had a desk in the welding department for the performance of paper work. When Bone was short handed, he would inform superintendent Stalker who would either obtain additional help or would authorize Bone to get more help from the leadmen of other departments. When there was overtime to be worked in either the welding department or elsewhere, Bone, after authorization by Stalker, would recruit and select the employees to handle same. Bone occasionally recommended employees for hire, promotion, discipline and discharge, but he did not have final authority in these areas. Bone’s duties as leadman took up about 50% of his time. Bone was paid by the hour and received the same overtime premiums that the hourly workers received. Union member James Scott was a laborer under Bone in the welding and fabrication department, and had been employed by the Company for about three years. During the week ending November 6, 1965, James Scott became concerned over Bone’s concurrent duties as shop steward and as leadman for the Company. He and his wife drafted a protest letter stating that Bone could not give fair representation to the Union and to the Company at the same time. Scott met with four Company employees at Scott’s home. They all signed the protest letter. Scott solicited signatures of nine additional employees. Two of these, Walker and Hawkins, had been recently employed by the Company and were not yet members of the Union. They were probationary employees. Scott sent copies of the signed protest letter to Bone, to Union business representative Schumacher and to Joint Council No. 25 of the Teamsters Union. That same day, Bone asked employee Williams whether they were trying to stab him in the back. Bone then declared that “they would get” the employees “one by one for signing that petition.” In a conversation with Scott about Hawkins and Walker, Bone said “I am going to fire them.” Plant superintendent Stalker asked Bone to inform Hawkins and Walker that he wanted to see them, but later Stalker approached these two employees at their respective work stations and told them to punch out and go home. Hawkins and Walker asked if there was something wrong with their work and Stalker replied “No” but the “big bosses couldn’t keep [him] any more * * * because [he was] trying to make trouble between the Union and the men.” The Board also found that Walker asked superintendent Stalker why he was being discharged and whether his work was unsatisfactory, and that Stalker replied it was due to the letter he signed when he wasn’t in the Union. Bone also stated he was fired “because of the petition that [he] signed.” The next day, Bone told Scott to report on the following day to the paint booth and replace Leonard Burton who, for the past year, had been operating the spray gun. Scott declined because of his sinus condition. The following morning Scott reported to Stalker at his office and again explained he could not take the paint job because of his sinus condition. Then Bone advised Scott to take the paint job but Scott replied he could not do so because of his health. Bone then said to Stalker “If he don’t take it, give him his check.” Scott asked Bone to file a grievance for him or to give him a statement for his discharge, but Bone refused. Stalker then brought Scott his final check and Scott left. Later Schumacher told Scott that president Beebe would not take Scott back under any circumstances. The Board found that Bone was acting on behalf of the Union. The Board also found that Bone aided in the discharge of the three employees in his role as Union steward. On this basis the Union was held liable for Bone’s actions. We must determine whether or not substantial evidence on the record as a whole supports the Board’s finding that James Bone, acting as the agent of the Union and supervisor for the Company, threatened employees because of their protected activities, and that the Union and the Company caused the discharge of employees James Scott, Eddie Walker and Willie Lee Hawkins also because of their protected activities. Revere Copper & Brass, Inc. v. N. L. R. B., 324 F.2d 132, 135 (7 Cir., 1963). The voluminous record in this case is full of conflicting testimony. The trial examiner was required to make credibility resolutions. Saginaw Furniture Shops, Inc. v. N. L. R. B., 343 F.2d 515, 516 (7 Cir., 1965), and he did so. On the basis of his credibility resolutions, the trial examiner found the testimony of Stalker as to the alleged loafing incidents by Hawkins and Walker was manufactured out of whole cloth. Pertinent is the language in Saginaw Furniture Shops, Inc., supra,, at page 517: “Petitioner contends that there is greater reason to accept the testimony of its witnesses than those called by the General Counsel. If we were to decide the case de novo upon our reading of a dry record, we might be inclined to accept petitioner’s version of the facts. Our role, however, is limited. Where there is a conflict in the testimony of witnesses, the determination of credibility is peculiarly for the trial examiner as the trier of facts. Sunshine Biscuits, Inc. v. N. L. R. B., 274 F.2d 738 (7 Cir., 1960). Moreover, if the credited testimony supports conflicting inferences, the inferences drawn by the examiner must be accepted if reasonable when considered in the light of the entire record. Sunshine Biscuits, Inc. v. N. L. R. B., supra. The briefs and oral argument present us with two hopelessly irreconcilable versions of what took place * * *. Consequently we are constrained to resolve the questions before us by utilizing the norms we have just stated.” Walker testified he was never reprimanded by the Company official or representative for being either late or absent. Hawkins testified he was criticized by Stalker for being late on only one occasion, but at the same time he was complimented on the good work he was doing in the paint shop. We hold the Board had substantial credible evidence to conclude that in view of the testimony of Bone’s explicit threats to fire Walker and Hawkins because they signed the protest, and since neither Walker nor Hawkins was late or absent on November 26 when they were fired, that the alleged past misconduct of these employees was resurrected. That the real motivation in their dis-charge was their participation in the letter of protest. As to Scott, his dismissal came just two days after Bone received the protest which he had prepared. Bone’s remark, credited by the trial examiner, “they would get one by one” the employees who participated in the protest, indicates clearly the true reason for Scott’s dismissal. It is undisputed that Scott had performed his work well for over three years of his employment although at one point he was forced to change his job classification from welder to laborer because of his health problem. The Board had substantial credible evidence and was justified in holding that neither Bone nor Stalker was genuinely interested in replacing Burton for the operation of the spray gun although that was the reason given for Scott’s new assignment. There is substantial credible evidence on the record as a whole that the reasons asserted for Scott’s dismissal were false, and that the real motive was to get rid of the man who sought to upset the roles which Bone played as leadman for the Company and steward for the Union. We hold there is substantial credible evidence to justify the Board concluding that Bone was acting on behalf of the respondent Union. We therefore uphold the Board’s ruling that the respondent Union should be liable for the acts performed on its behalf by its agent Bone. We hold that the order of the Board should be Enforced. . The Board’s decision and order are reported at 167 NLRB No. 134. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:

songer_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. McCARTHY et al. v. SAFEWAY STORES, Inc. No. 21, Docket 20239. Circuit Court of Appeals, Second Circuit. Oct. 24, 1946. Abraham M. Fisch, of New York City, for appellants. Harold Schaffner and Reginald V. Spell, both of New York City, for appellee. Before L. HAND, SWAN, and FRANK, Circuit Judges. PER CURIAM. The plaintiffs appeal from a judgment dismissing their complaint, entered upon the verdict of a jury, in an action to recover damages for the defendant’s negligent driving of one of its trucks. The only point presented is that the testimony so clearly established the defendant’s negligence that the judge should have taken the issue from the jury. However, at the close of the evidence the plaintiffs did not ask the .judge to do this, and to leave them only the amount of the damages: and it necessarily follows that he did not commit any error in not doing so. Not only was he not bound so to limit the issues; but it would have been an error if he had, for he would have deprived the plaintiffs of that right to a verdict which they had demanded in their complaint under Federal Rules of Civil. Procedure, rule 38(b), 28 U.S.C.A. following section 723c, and which, had they succeeded, would have put them in a much stronger position on an appeal. This leaves nothing for us to review; nor does the order which denied the plaintiffs’ motion for a new trial. Flint v. Youngstown Sheet & Tube Co., 2 Cir., 143 F.2d 923. The plaintiffs urge that there are cases where the verdict is so shockingly unjust that an appellate court will intervene ex mero motu, even though the defeated party has not asked that the issue should be taken from the jury; and, arguendo, we will assume that we have such a power .in extreme cases. Even so, there would be not the slightest justification for intervening here; for the case involved a straight conflict of testimony whose solution was not in the least obvious. On what conceivable theory it would have been proper for the judge, or would now be proper for us, to upset the verdict, we cannot imagine. Judgment affirmed. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:

sc_authoritydecision

G

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. FEDERAL POWER COMMISSION v. AMERADA PETROLEUM CORP. et al. No. 585. Decided February 1, 1965. Solicitor General Cox, Richard A. Solomon, Howard E. Wahrenbrock, Robert L. Russell and Peter H. Schiff for petitioner. William H. Webster, Edwin S. Nail and Joseph W. Morris for Amerada Petroleum Corp., and William R. Allen and Cecil E. Munn for Signal Oil & Gas Co., respondents. Per Curiam Montana-Dakota (MDU) is an interstate natural gas pipeline company, selling and transporting gas in Montana, North Dakota, South Dakota, and Wyoming. The lines involved here run to the east and west from the Tioga processing plant in North Dakota, jointly owned by. Amerada and Signal, producers of natural gas in North Dakota. Also, running north from the Tioga point is a line extending to the gasoline extraction plants of Hunt-Herbert and TXL (now Texaco), both in North Dakota. On a peak winter day in 1962-1963 MDU was expected to purchase a total of 70,000 Mcf of North Dakota-produced gas from these four producers: 55,000 Mcf from Amerada-Signal, 10,000 Mcf from TXL, and 5,000 Mcf from Hunt-Herbert. Of the 55,000 Mcf from Amerada-Signal, 50,000 Mcf would flow to the east and be consumed in North Dakota. All of the Hunt-Herbert and TXL gas, plus the remaining 5,000 Mcf of the Amerada; Signal gas, would flow to the west — a total of 20,000 Mcf. Of this westward-flowing gas, 10,200 Mcf would be consumed in North Dakota; the remaining 9,800 Mcf would flow across the state boundary into Montana for consumption outside of North Dakota. On an average summer day MDU would take about 45,000 Mcf from Amerada-Signal, while continuing to take about 15,000 Mcf from Hunt-Herbert and TXL. Of the Amerada-Signal gas, 13,000 Mcf would flow westward, commingled with the 15,000 Mcf from Hunt-Herbert and TXL. Only 1,680 Mcf of this stream would be consumed in North Dakota; the remaining 26,320 Mcf would flow into Montana to be held in storage for ultimate redelivery to all parts of MDU’s interstate system. 32,000 Mcf of gas would flow eastward, all from .Amerada-Signal. In contrast to the situation on a peak winter day, only 7,280 Mcf of this eastward-flowing gas would be consumed in North Dakota, while 24,720 Mcf would cross the state boundary and go into storage. The contracts for the purchase of gas from Hunt-Herbert .and TXL admittedly constitute sales of gas for resale within the meaning of § 1 (b) of the Natural Gas Act, 15 U. S. C. § 717. These sellers applied for and were granted certificates of public convenience and necessity by the Commission. 27 F. P. C. 1092. Prior to entering into the Hunt-Herbert-TXL contracts, MDU entered into contracts with Amerada and Signal which are here in issue. First, MDU concluded the so-called “North Dakota Contracts" with both Amerada and Signal. Under these contracts MDU must buy at least two-thirds of its annual North Dakota requirements from Amerada-Signal, and it may buy up to all of its North Dakota requirements from them if it só elects. The contracts recite that “all gas purchased by Buyer under this agreement shall be transported, used and consumed entirely within the State of North Dakota.” Soon thereafter, MDU entered its separate “Interstate Contracts” With Amerada and Signal. These contracts provide that MDU must take or pay for a certain number of Mcf per year (and per day) if available, “less the quantity of gas which Buyer shall pay for with respect- to such calendar year under the Amerada [or Signal] North Dakota Contract.” Respondents Amerada and Signal contended before the Federal Power Commission that sales to MDU under the “North Dakota Contracts” would be “nonjurisdictional” since they were not sales in interstate commerce for resale. Relying on its decision in Lo-Vaca Gathering Co., 26 F. P. C. 606 (reversed, 323 F. 2d 190, reversed, ante, p. 366), the Commission rejected the contention and asserted its jurisdiction over the sales. 30 F. P. C. 200. The Court of Appeals reversed. 334 F. 2d 404. The Commission has petitioned for writ of certiorari. All of the gas purchased by MDU from Amerada-Signal under both sets of contracts is delivered into the pipeline at the-Tioga plant. According to the testimony of MDU’s engineer, on a peak winter day the pipeline would elect to purchase all of the Amerada-Signal. gas under the “North Dakota Contracts.” Yet, as previously shown, on such a day some of the Amerada-Signal gas flows westward, in a commingled stream with gas from other sources, and is resold outside of North Dakota. On an average summer day MDU would elect to purchase about 9,000 Mcf of the Amerada-Signal gas under the “North Dakota Contracts,” and the remaining 36,000 Mcf under the “Interstate Contracts.” Yet, as previously shown, 1,680 Mcf of the 9,000 Mcf consumed in North Dakota would have to be metered off from the westward-flowing commingled stream that is destined in major part for resale out-of-state. Factually, therefore, the present case is on all fours with California v. Lo-Vaca Gathering Co., ante, p. 366. The Court of Appeals thought that its decision in North Dakota v. Federal Power Comm’n, 247 F. 2d 173, brought collateral estoppel into play in the present case. 334 F. 2d 404, 411-412. But that rule has no place here for no judgment governing past events is in jeopardy, only the scope of future regulation that involves different events and transactions. See Commissioner v. Sunnen, 333 U. S. 591, 601-602. Accordingly, the writ of certiorari is granted, and the judgment of the Court of Appeals is reversed. It is so ordered. 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_treat

B

What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. UNITED STATES of America, Plaintiff-Appellee, v. Laura TROMBLEY, Defendant-Appellant. No. 83-1492. United States Court of Appeals, Sixth Circuit. Argued March 15, 1984. Decided April 25, 1984. See also, D.C., 563 F.Supp. 564. Gershwin A. Drain, Kenneth R. Sasse, argued, Detroit, Mich., for defendant-appellant. Leonard R. Gilman, U.S. Atty., Michael J. Lavoie, Art Noel, argued, Detroit, Mich., for plaintiff-appellee. Before KEITH and KRUPANSKY, Circuit Judges, and PHILLIPS, Senior Circuit Judge. KEITH, Circuit Judge. The appellant, Laura Trombley, was indicted in a multiple count indictment in which she and four other individuals were charged with violations of 18 U.S.C. § 2, § 2312 and § 2313. A jury trial was held, and appellant was convicted on Count Three of transporting a stolen motor vehicle in interstate commerce in violation of 18 U.S.C. §§ 2312 and 2. She was convicted on Count Four of receiving a stolen motor vehicle which was part of and constituted interstate commerce in violation of 18 U.S.C. § 2313. Appellant was sentenced to three years probation with a fine of $1,000 to be paid within two years. This appeal followed. For the reasons set forth below, we affirm. In March of 1982, the FBI conducted an undercover project in Detroit known as Project Derings. The goal of the project was to have undercover agents introduced to individuals who were involved in large scale commercial auto theft rings. To facilitate the introduction, undercover FBI agents represented themselves as corrupt employees of the Michigan Secretary of State’s office who were selling fraudulent titles, registrations, and license plates to automobile thieves for $1,000. Joseph Finnegan, an undercover agent, adopted the identity of Joe Booker and posed as a corrupt official of the Secretary’s Office. On June 16, 1982, Agent Finnegan prepared a Michigan vehicle title, registration, and a license plate for Laura Irene Trombley, who resided at 23072 North Brookside Drive, Dearborn Heights, Michigan. Finnegan delivered these documents to Gwen Clemens, who conveyed them to the appellant through Eric Fair (Eric Fair was also indicted in this case). Approximately six months later, on December 9, 1982, Agent Finnegan recorded a telephone conversation with Ms. Trombley. The overall thrust of the conversation was her complaint that the paperwork for the 1981 Seville, which she had obtained from Eric Fair, did not adequately legitimize the stolen automobile. During this conversation, she made several admissions. The appellant admitted that she had acquired a 1981 Cadillac Seville for $3,700, instead of a Lincoln Continental, in approximately March of 1982. She also admitted that she took out a loan for $3,000 from General Finance, using the car as collateral. The loan was used to take a trip to Texas to visit her son who was in the hospital. In driving to Texas, appellant indicated that she had travelled across sixteen state lines, and in doing so, was concerned about the result if she had been stopped by police. She further admitted that she knew the car was “hot”. In response to the undercover agent’s question as to why she decided to acquire the car knowing it was “hot”, the appellant stated: “Well, because my son owed me some money and uh, my son knew Eric and Sam.” The appellant acknowledged that she knew that the vehicle identification number had been altered on the automobile. Finally, the appellant admitted that she had driven to Texas accompanied by her mother. Throughout the conversation, the defendant persisted in efforts to acquire additional paperwork for the automobile which she hoped would make it “legal”. Eric Fair testified that he met the appellant through one of her sons and attempted to obtain a Lincoln Continental as requested by the appellant for $2,500. He was unable to obtain a Lincoln, but did acquire a 1981 Seville. He took the Seville to the house of one of appellant’s sons. Trombley inspected the car, which had a broken window and a damaged ignition. Ms. Trombley gave Fair money to repair these items, and the car was taken to her garage. Fair also testified that the appellant contacted him some time later and told him the plates had expired and she could not get them renewed. Trombley told Fair that she had to get the plates renewed so that she could visit her son in Texas. Fair gave the appellant’s phone number to the undercover agent (Agent Finnegan) so he could contact her about the problem with the paperwork. The evidence showed that the 1981 Cadillac had been stolen from Lorraine Harris in late February 1982. According to Ms. Harris the automobile had less than three thousand miles when stolen and was valued at $14,500. In December 1982 there were approximately eight thousand miles on the car’s odometer. The appellant admitted that she travelled to Texas in the summer of 1982 but that she went in a 1968 Cadillac instead of the 1981 Cadillac Seville. She stated that she took the older car because it had more space for luggage and a roomier backseat for her mother. When confronted with her tape-recorded admission to undercover agent Finnegan that she had taken the Seville to Texas, she said that it was a false statement. The appellant said she told the undercover agent she had taken the car across state lines in an effort to try and scare him into getting proper paperwork. The sole question presented for review is whether appellant’s pre-arrest, out-of-court admission to an undercover government agent that she transported a stolen motor vehicle between Michigan and Texas was sufficiently corroborated to establish the jurisdictional element of interstate transportation. The appellant contends that the government relied entirely on the tape recorded admissions made during the conversation with the undercover FBI agent to prove that the stolen 1981 Cadillac Seville travelled in interstate commerce. The appellant claims that because the prosecution failed to provide any independent corroboration of the admission, the conviction should be reversed. The government submits that the appellant’s admission that the stolen 1981 Cadillac Seville was transported to Texas was corroborated elsewhere in the government’s case. Furthermore, even if corroboration was lacking, the defendant’s entire statement to the undercover agent was amply corroborated as a whole, and sufficient to prove interstate transportation. The Supreme Court has recognized that the government must introduce independent evidence to establish the trustworthiness of a defendant’s statement. Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 164, 99 L.Ed. 101 (1954). The Supreme Court further held in Smith v. United States, 348 U.S. 147, 155, 75 S.Ct. 194, 198, 99 L.Ed. 192 (1954) that the corroboration rule was applicable not only to confessions but also to mere admissions where the admission is made after the fact to an official charged with investigating the possibility of wrongdoing, and the statement embraces an element of the case. It is generally recognized that corroboration in federal court does not entail independent proof of each element of the offense charged. The purpose of corroboration is to ensure the reliability of the confession or admission of the accused. United States v. Bukowski, 435 F.2d 1094, 1106 (7th Cir.1970), cert. denied, 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809 (1971). Thus, the requirement is only that there be extrinsic evidence corroborating the admission as a whole which, taken together with the admission, is sufficient to support a finding of guilt beyond a reasonable doubt. United States v. Gravitt, 484 F.2d 375, 381 (5th Cir.), cert. denied, 414 U.S. 1135, 94 S.Ct. 879, 38 L.Ed.2d 761 (1973). If there is extrinsic evidence tending to corroborate the confession, the confession as a whole is admissible, and some elements of the offense may be proven entirely on the basis of a corroborated confession. United States v. White, 493 F.2d 3 (5th Cir.), cert. denied, 419 U.S. 901, 95 S.Ct. 186, 42 L.Ed.2d 147 (1974). In United States v. Wilson, 436 F.2d 122 (3d Cir.), cert. denied, 402 U.S. 912, 91 S.Ct. 1393, 28 L.Ed.2d 654 (1971), the court examined a corroboration issue which is virtually on all fours with the present case. In Wilson, the defendant made an admission to a Philadelphia detective that he drove a Dodge Charger from Philadelphia to California. In other parts of the defendant’s admission he stated where he had purchased the car and that he was stopped by a policeman in California. These other parts of defendant’s admission were corroborated. The court stated that since two parts of the defendant’s admission were corroborated by other evidence, this established the trustworthiness of the entire admission and the prosecutor could prove the element of interstate transportation solely by the defendant’s admission. In the present case, the government could prove the interstate transportation element entirely by the appellant’s statements to Agent Finnegan, provided there were other parts of the defendant’s statement which were corroborated. The appellant talked with the undercover agent because she had been told by Eric Fair that he was the one who provided the paperwork in the past for the stolen car. Since appellant was unable to obtain renewed license plates for the car, she contacted the undercover agent to obtain the necessary paperwork from him. During this conversation appellant made numerous admissions relative to her acquisition of the stolen car, her use of the stolen car, her knowledge that the car was stolen, and her transportation of the car from Michigan to Texas and back. Specifically, she admitted the following: that she received the car from Eric Fair; that she had two different sets of papers for the car; that the first set was entirely wrong; that she paid $3,700 in full for the car; that she had initially ordered a Mark VI for $2,500, but had to pay an additional $1,200 for the Cadillac Seville because it was “too hard to take”; that she took the car across sixteen state lines to visit her injured son in Texas; that she knew the car was stolen; that she bought the car knowing it was “hot” because her son owed her some money and this would “cross the bill off”; that her mother went to Texas with her; and that she knew the vehicle identification number was altered by changing a five to an eight. In the second conversation, held minutes after the first one, the appellant continued to complain about the adequacy of the paperwork for the car and persisted in her attempts to obtain paperwork which would “legitimize” the stolen car. At one point appellant again admitted that she knew the car was stolen, and said “they tell me this is all legal when they give you this paperwork”. The appellant’s preceding statements were corroborated by other evidence presented in this case. Eric Fair testified that he delivered the stolen car to Trombley’s house, that the vehicle identification number had been changed, that he delivered the paperwork for the stolen car to the appellant, and that she told him she was going to see her sick son in Texas. The appellant’s admission that the vehicle identification number was altered from five to eight was also corroborated. Special Agent Charles Poplinger of the FBI testified as an expert witness that the defendant’s title contained a vehicle identification number which had been altered by changing a five to an eight. Additionally, all defense witnesses testified that Trombley travelled to Texas in the summer of 1982 to visit her sick son. The appellant’s admission that she drove across state lines is also corroborated. Lorraine Harris, the owner of the car, testified that the car was stolen in February of 1982 and that there were less than three thousand miles on the car at the time of the theft. The appellant testified that there were approximately eight thousand miles on the car when she talked to the undercover agent in December of 1982. The only reasonable explanation for the additional five thousand miles was the appellant’s trip to Texas. The appellant testified that she did not drive the car prior to obtaining insurance on July 14, 1982. Approximately one week later she left for Texas. On October 22, 1982, appellant’s husband attempted to get new plates for the car, but was unable to do so. After this date the car was kept in the appellant’s garage. Therefore, the only reasonable explanation for the additional mileage was the trip to Texas. These facts corroborate the appellant’s admission that she drove to Texas. Based on these facts, corroboration exists for both the whole and the part of the appellant’s admission, establishing the jurisdictional element of interstate transportation. Accordingly, we affirm the judgment of the Honorable Thomas P. Thornton of the United States District Court for the Eastern District of Michigan. . Title 18 U.S.C. § 2 provides: (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal. Title 18 U.S.C. § 2312 provides: Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both. Title 18 U.S.C. § 2313 provides: Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:

sc_respondent

256

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. GITLITZ et al. v. COMMISSIONER OF INTERNAL REVENUE No. 99-1295. Argued October 2, 2000 Decided January 9, 2001 Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connoe, Scalia, Kennedy, Souter, and Ginsburg, JJ., joined. Breyer, J., filed a dissenting opinion, post, p. 220. Darrell D. Hallett argued the cause for petitioners. With him on the briefs were John M. Colvin and Robert J. Chicoine. Kent L. Jones argued the cause for respondent. With him on the brief were Solicitor General Waxman, Acting Assistant Attorney General Junghans, Deputy Solicitor General Wallace, Teresa E. McLaughlin, and Edward T Perelmuter Richard M. Lipton and Theodore R. Bots filed a brief for the Real Estate Roundtable as amicus curiae urging reversal. Justice Thomas delivered the opinion of the Court. The Commissioner of Internal Revenue assessed tax deficiencies against petitioners David and Louise Gitlitz and Philip and Eleanor Winn because they used nontaxed discharge of indebtedness to increase their bases in S corporation stock and to deduct suspended losses. In this case we must answer two questions. First, we must decide whether the Internal Revenue Code (Code) permits taxpayers to increase bases in their S corporation stock by the amount of an S corporation’s discharge of indebtedness excluded from gross income. And, second, if the Code permits such an increase, we must decide whether the increase occurs before or after taxpayers are required to reduce the S corporation’s tax attributes. I David Gitlitz and Philip Winn were shareholders of P. D. W. & A., Inc., a corporation that had elected to be taxed under Subchapter S of the Code, 26 U. S. C. §§ 1361-1379 (1994 ed. and Supp. III). Subchapter S allows shareholders of qualified corporations to elect a “pass-through” taxation system under which income is subjected to only one level of taxation. See Bufferd v. Commissioner, 506 U. S. 523, 525 (1993). The corporation’s profits pass through directly to its shareholders on a pro rata basis and are reported on the shareholders’ individual tax returns. See § 1366(a)(1)(A). To prevent double taxation of income upon distribution from the corporation to the shareholders, § 1367(a)(1)(A).permits shareholders to increase their corporate bases by items of income identified in § 1366(a) (1994 ed. and Supp. III). Corporate losses and deductions are passed through in a similar manner, see § 1366(a)(1)(A), and the shareholders’ bases in the S corporation’s stock and debt are decreased accordingly, see §§ 1367(a)(2)(B), 1367(b)(2)(A). However, a shareholder cannot take corporate losses and deductions into account on his personal tax return to the extent that such items exceed his basis in the stock and debt of the S corporation. See § 1366(d)(1) (Supp. III). If those items exceed the basis, the excess is “suspended” until the shareholder’s basis becomes large enough to permit the deduction. See §§ 1366(d)(1), (2) (1994 ed. and Supp. III). In 1991, P. D. W. & A. realized $2,021,296 of discharged indebtedness. At the time, the corporation was insolvent in the amount of $2,181,748. Because it was insolvent even after the discharge of indebtedness was added to its balance sheet, P. D. W. & A. excluded the entire discharge of indebtedness amount from gross income under 26 U. S. C. §§ 108(a) and 108(d)(7)(A). On their tax returns, Gitlitz and Winn increased their bases in P. D. W. & A. stock by their pro rata share (50 percent each) of the amount of the corporation’s discharge of indebtedness. Petitioners’ theory was that the discharge of indebtedness was an “item of income” subject to pass-through under § 1366(a)(1)(A). They used their increased bases to deduct on their personal tax returns corporate losses and deductions, including losses and deductions from previous years that had been suspended under § 1366(d). Gitlitz and Winn each had losses (including suspended losses and operating losses) that totaled $1,010,648. With the upward basis adjustments of $1,010,648 each, Gitlitz and Winn were each able to deduct the full amount of their pro rata share of P. D. W. & A.’s losses. The Commissioner determined that petitioners could not use P. D. W. & A.’s discharge of indebtedness to increase their bases in the stock and denied petitioners’ loss deductions. Petitioners petitioned the Tax Court to review the deficiency determinations. The Tax Court, in its initial opinion, granted relief to petitioners and held that the discharge of indebtedness was an “item of income” and therefore could support a basis increase. See Winn v. Commissioner, 73 TCM 3167 (1997), ¶ 97,286 RIA Memo withdrawn and reissued, 75 TCM 1840 (1998), ¶ 98,071 RIA Memo TC. In light of the Tax Court’s decision in Nelson v. Commis sioner, 110 T. C. 114 (1998), aff’d, 182 E 3d 1152 (CA10 1999), however, the Tax Court granted the Commissioner’s motion for reconsideration and held that shareholders may not use an S corporation’s untaxed discharge of indebtedness to increase their bases in corporate stock. See Winn v. Commissioner, 75 TCM 1840 (1998), ¶ 98,071 RIA Memo TC. The Court of Appeals affirmed. See 182 F. 3d 1143 (CA10 1999). It assumed that excluded discharge of indebtedness is an item of income subject to pass-through to shareholders pursuant to § 1366(a)(1)(A), id., at 1148, 1151, n. 7, but held that the discharge of indebtedness amount first had to be used to reduce certain tax attributes of the S corporation under § 108(b), and that only the leftover amount could be used to increase basis. The Court of Appeals explained that, because the tax attribute to be reduced (in this case the corporation’s net operating loss) was equal to the amount of discharged debt, the entire amount of discharged debt was absorbed by the reduction at the corporate level, and nothing remained of the discharge of indebtedness to be passed through to the shareholders under § 1366(a)(1)(A). Id., at 1151. Because Courts of Appeals have disagreed on how to treat discharge of indebtedness of an insolvent S corporation, compare Gaudiano v. Commissioner, 216 F. 3d 524, 535 (CA6 2000) (holding that tax attributes are reduced before excluded discharged debt income is passed through to shareholders), cert. pending, No. 00-459; Witzel v. Commissioner, 200 F. 3d 496, 498 (CA7 2000) (same), cert. pending, No. 99-1693; and 182 F. 3d, at 1150 (case below), with United States v. Farley, 202 F. 3d 198, 206 (CA3 2000) (holding that excluded discharged debt income is passed through to shareholders before tax attributes are reduced), cert. pending, No. 99-1675 [Reporter’s Note: See post, p. 1111]; see also Pugh v. Commissioner, 213 F. 3d 1324, 1330 (CA11 2000) (holding that excluded discharged debt income is subject to pass-through and can increase basis), cert. pending, No. 00-242, we granted certiorari. 529 U. S. 1097 (2000). I Before we can reach the issue addressed by the Court of Appeals — whether the increase in the taxpayers’ corporate bases occurs before or after the taxpayers are required to reduce the S corporation’s tax attributes — we must address the argument raised by the Commissioner. The Commissioner argues that the discharge of indebtedness of an insolvent S corporation is not an “item of income” and thus never passes through to shareholders. Under a plain reading of the statute, we reject this argument and conclude that excluded discharged debt is indeed an “item of income,” which passes through to the shareholders and increases their bases in the stock of the S corporation. Section 61(a)(12) states that discharge of indebtedness generally is included in gross income. Section 108(a)(1) provides an express exception to this general rule: “Gross income does not include any amount which (but for this subsection) would be includible in gross income by reason of the discharge ... of indebtedness of the taxpayer if— “(B) the discharge occurs when the taxpayer is insolvent.” The Commissioner contends that this exclusion from gross income alters the character of the discharge of indebtedness so that it is no longer an “item of income.” However, the text and structure of the statute do not support the Commissioner’s theory. Section 108(a) simply does not say that discharge of indebtedness ceases to be an item of income when the S corporation is insolvent. Instead it provides only that discharge of indebtedness ceases to be included in gross income. Not all items of income are included in gross income, see § 1366(a)(1) (providing that “items of income,” including “tax-exempt” income, are passed through to shareholders), so mere exclusion of an amount from gross income does not imply that the amount ceases to be an item of income. Moreover, §§ 101 through 136 employ the same construction to exclude various items from gross income: “Gross income does not include . . . .” The consequence of reading this language in the manner suggested by the Commissioner would be to exempt all items in these sections from pass-through under § 1366. However, not even the Commissioner encourages us to reach this sweeping conclusion. Instead the Commissioner asserts that discharge of indebtedness is unique among the types of items excluded from gross income because no economic outlay is required of the taxpayer receiving discharge of indebtedness. But the Commissioner is unable to identify language in the statute that makes this distinction relevant, and we certainly find none. On the contrary, the statute makes clear that §108(a)’s exclusion does not alter the character of discharge of indebtedness as an item of income. Specifically, § 108(e)(1) reads: “Except as otherwise provided in this section, there shall be no insolvency exception from the general rule that gross income includes income from the discharge of indebtedness.” This provision presumes that discharge of indebtedness is always “income,” and that the only question for purposes of § 108 is whether it is includible in gross income. If discharge of indebtedness of insolvent entities were not actually “income,” there would be no need to provide an exception to its inclusion in gross income; quite simply, if discharge of indebtedness of an insolvent entity were not “income,” it would necessarily not be included in gross income. Notwithstanding the plain language of the statute, the Commissioner argues, generally, that excluded discharge of indebtedness is not income and, specifically, that it is not “tax-exempt income” under § 1366(a)(1)(A). First, the Commissioner argues that § 108 merely codified the “judicial insolvency exception,” and that, under this exception, discharge of indebtedness of an insolvent taxpayer was not considered income. The insolvency exception was a rule that the discharge of indebtedness of an insolvent taxpayer was not taxable income. See, e. g., Dallas Transfer & Terminal Warehouse Co. v. Commissioner, 70 F. 2d 95 (CA5 1934); Astoria Marine Construction Co. v. Commissioner, 12 T. C. 798 (1949). But the exception has since been limited by § 108(e). Section 108(e) precludes us from relying on any understanding of the judicial insolvency exception that was not codified in § 108. And as explained above, the language and logic of §108 clearly establish that, although discharge of indebtedness of an insolvent taxpayer is not included in gross income, it is nevertheless income. The Commissioner also relies on a Treasury Regulation to support his theory that no income is realized from the discharge of the debt of an insolvent: “Proceedings under Bankruptcy Act. “(1) Income is not realized by a taxpayer by virtue of the discharge, under section 14 of the Bankruptcy Act (11 U. S. C. 32), of his indebtedness as the result of an adjudication in bankruptcy, or by virtue of an agreement among his creditors not consummated under any provision of the Bankruptcy Act, if immediately thereafter the taxpayer’s liabilities exceed the value of his assets.” 26 CFR § 1.61-12(b) (2000). Even if this regulation could be read (countertextually) to apply outside the bankruptcy context, it merely states that “[i]ncome is not realized.” The regulation says nothing about whether discharge of indebtedness is income subject to pass-through under § 1366. Second, the Commissioner argues that excluded discharge of indebtedness is not “tax-exempt” income under § 1366(a)(1)(A), but rather “tax-deferred” income. According to the Commissioner, because the taxpayer is required to reduce tax attributes that could have provided future tax benefits, the taxpayer will pay taxes on future income that otherwise would have been absorbed by the forfeited tax attributes. Implicit in the Commissioner’s labeling of such income as “tax-deferred,” however, is the erroneous assumption that § 1366(a)(1)(A) does not include “tax-deferred” income. Section 1366 applies to “items of income.” This section expressly includes “tax-exempt” income, but this inclusion does not mean that the statute must therefore exclude “tax-deferred” income. The section is worded broadly enough to include any item of income, even tax-deferred income, that “could affect the liability for tax of any shareholder.” § 1366(a)(1)(A). Thus, none of the Commissioner’s contentions alters our conclusion that discharge of indebtedness of an insolvent S corporation is an item of income for purposes of § 1366(a)(1)(A). III Having concluded that excluded discharge of indebtedness is . an “item of income” and is therefore subject to pass-through to shareholders under § 1366, we must resolve the sequencing question addressed by the Court of Appeals— whether pass-through is performed before or after the reduction of the S corporation’s tax attributes under § 108(b). Section 108(b)(1) provides that “[t]he amount excluded from gross income under [§ 108(a)] shall be applied to reduce the tax attributes of the taxpayer as provided [in this section].” Section 108(b)(2) then lists the various tax attributes to be reduced in the order of reduction. The first tax attribute to be reduced, and the one at issue in this case, is the net operating loss. See § 108(b)(2)(A). Section 108(d)(7)(B) specifies that, for purposes of attribute reduction, the shareholders’ suspended losses for the taxable year of discharge are to be treated as the S corporation’s net operating loss. If tax attribute reduction is performed before the discharge of indebtedness is passed through to the shareholders (as the Court of Appeals held), the shareholders’ losses that exceed basis are treated as the corporation’s net operating loss and are then reduced by the amount of the discharged debt. In this case, no suspended losses would remain that would permit petitioners to take deductions. If, however, attribute reduction is performed after the discharged debt income is passed through (as petitioners argue), then the shareholders would be able to deduct their losses (up to the amount of the increase in basis caused by the discharged debt). Any suspended losses remaining then will be treated as the S corporation’s net operating loss and will be reduced by the amount of the discharged debt. Therefore, the sequence of the steps of pass-through and attribute reduction determines whether petitioners here were deficient when they increased their bases by the discharged debt amount and deducted their losses. The sequencing question is expressly addressed in the statute. Section 108(b)(4)(A) directs that the attribute reductions “shall be made after the determination of the tax imposed by this chapter for the taxable year of the discharge.” (Emphases added.) See also § 1017(a) (applying the same sequencing when § 108 attribute reduction affects basis of corporate property). In order to determine the “tax imposed,” an S corporation shareholder must adjust his basis in his corporate stock and pass through all items of income and loss. See §§ 1866,1367 (1994 ed. and Supp. III). Consequently, the attribute reduction must be made after the basis adjustment and pass-through. In the case of petitioners, they must pass through the discharged debt, increase corporate bases, and then deduct their losses, all before any attribute reduction could occur. Because their basis increase is equal to their losses, petitioners have no suspended losses remaining. They, therefore, have no net operating losses to reduce. Although the Commissioner has now abandoned the reasoning of the Court of Appeals below, we address the primary arguments made in the Courts of Appeals against petitioners’ reading of the sequencing provision. First, one court has expressed the concern that, if the discharge of indebtedness is passed through to the shareholder before the tax attributes are reduced, then there can never be any discharge of indebtedness remaining “at the corporate level,” § 108(d)(7)(A), by which to reduce tax attributes. Gaudino, 216 F. 3d, at 533. This concern presumes that tax attributes can be reduced only if the discharge of indebtedness itself remains at the corporate level. The statute, however, does not impose this restriction. Section 108(b)(1) requires only that the tax attributes be reduced by “[t]he amount excluded from gross income” (emphasis added), and that amount is not altered by the mere pass-through of the income to the shareholder. Second, courts have discussed the policy concern that, if shareholders were permitted to pass through the discharge of indebtedness before reducing any tax attributes, the shareholders would wrongly experience a “double windfall”: They would be exempted from paying taxes on the full amount of the discharge of indebtedness, and they would be able to increase basis and deduct their previously suspended losses. See, e.g., 182 F. 3d, at 1147-1148. Because the Code’s plain text permits the taxpayers here to receive these benefits, we need not address this policy concern. * * * The judgment of the Court of Appeals, accordingly, is reversed. It is so ordered. Each man filed a joint tax return with his wife. Section 1366(a)(1) provides: “In determining the tax under this chapter of a shareholder for the shareholder’s taxable year in which the taxable year of the S corporation ends . . . , there shall be taken into account the shareholder’ Question: Who is the respondent of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:

songer_state

54

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 v. John W. JENRETTE, Appellant. No. 83-2281. United States Court of Appeals, District of Columbia Circuit. Argued May 23, 1984. Decided Sept. 18, 1984. Kenneth M. Robinson and W. Gary Kohl-man, Washington, D.C., with whom Dennis M. Hart and Stanley Brand, Washington, D.C., were on the brief, for appellant. Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., and Reid H. Weingarten, Atty., U.S. Dept, of Justice, Washington, D.C., were on the brief, for appellee. Before WRIGHT, TAMM and STARR, Circuit Judges. Opinion for the court filed by Circuit Judge TAMM. TAMM, Circuit Judge: Former Congressman John Jenrette appeals his conviction on bribery charges stemming from the undercover operation by the Federal Bureau of Investigation (FBI) known as “Abscam.” Jenrette contends that 1) the trial court erred in declining to instruct the jury on the defense of duress; 2) the evidence adduced at trial established entrapment as a matter of law; 3) the FBI’s conduct during the investigation violated principles of due process; and 4) the government failed to disclose certain evidence required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). For the reasons expressed below, we affirm the conviction. I. Background This court is by now quite familiar with the FBI’s undercover operation known as Abscam. See United States v. Weisz, 718 F.2d 413, 416-17 (D.C.Cir.1983), cert. denied, — U.S. -, -, 104 S.Ct. 1285, 1305, 79 L.Ed.2d 688, 704 (1984); United States v. Kelly, 707 F.2d 1460, 1461-63 (D.C.Cir.), cert. denied, — U.S.-, 104 S.Ct. 264, 78 L.Ed.2d 247 (1983). The Abscam operation involved a fictitious, FBI-created entity, Abdul Enterprises, which was purportedly operated by wealthy Arabs interested in United States investments. During the period relevant to this case, FBI agent Anthony Amoroso assumed the role of president of the organization, and Melvin Weinberg posed as its financial advisor. Through various “middlemen,” Weinberg and Amoroso offered bribes to members of Congress. In return, the Abscam operatives asked the congressmen to introduce private legislation that would permit their Arab clients to immigrate to the United States. Jenrette became involved in the Abscam operation through his friend and co-defendant John Stowe. In November 1979, Weinberg told Stowe that his Arab clients were interested in discussing with Jenrette the possibility of a private immigration bill. Weinberg asked Stowe to determine whether Jenrette would introduce such a bill for $100,000. Trial Transcript (Tr.) (Amoroso), Joint Appendix (J.A.) volume II (II) at 227-28. On December 3, 1979, Stowe met with Weinberg and Amoroso to arrange a meeting with Jenrette. The events that resulted in Jenrette’s indictment for bribery began on December 4-6, 1979. On December 4, Jenrette and Stowe met with Weinberg and Amoroso at a townhouse on W Street in Washington, D.C. During the meeting, Amoroso explained that his clients needed help immigrating to the United States. Transcript of Taped Meeting of Dec. 4, 1979. J.A. volume III (III) at 737-43. Jenrette stated that he would introduce or arrange to have introduced a private immigration bill. Id. at 744. Amoroso then told Jenrette: “We’re talking about fifty thousand dollars now and fifty thousand dollars when this thing is introduced.” Id. at 747. After some discussion about simultaneously introducing a bill in the Senate, Jenrette indicated that he would like to review the immigration laws before accepting the money. Id. at 759. Jenrette explained that he didn’t want to take the money without “feeling comfortable about being able to do it.” Id. at 760. Although Amoroso again offered Jenrette the money during the December 4 meeting, Jenrette postponed his response until the following day when he would know whether he could help Amoroso’s clients. Id. at 766-70. Jenrette then assured Amoroso: “[D]on’t get me wrong ... I got larceny in my blood. I’d take it in a ... minute.” Id. at 772. Jenrette phoned Amoroso the following day and stated that he would go forward with the transaction but probably could not arrange a meeting that day. Transcript of Telephone Call of Dec. 5, 1979. J.A. Ill at 788-89. On December 6, Jenrette informed Amoroso by telephone that he wanted Stowe to pick up the money. Jenrette explained that if Stowe received the money, he (Jenrette) would be “a little bit ... away from a section in the code about ... public officials.” Transcript of Telephone Call of Dec. 6, 1979, J.A. Ill at 799. Amoroso agreed to give the money to Stowe. Id. at 800. After Stowe picked up the money, Jenrette confirmed with Amoroso receipt of the $50,000. Transcript of Telephone Call of Dec. 6, 1979, J.A. Ill at 806-07. On January 7, 1980, Jenrette and Stowe again met with Amoroso and Weinberg. At this meeting, Jenrette brought up the immigration problem and indicated that he might be able to get Senator Strom Thurmond interested in the deal. Transcript of Meeting of Jan. 7, 1980, J.A. Ill at 852-53. Jenrette and Stowe continued to have contact with the Abscam agents regarding the proposed bribery of Senator Thurmond until their arrest on February 2, 1980. On June 13, 1980, Jenrette and Stowe were indicted on one count of conspiracy to commit bribery and two counts of bribery. After a full trial, a jury found Jenrette and Stowe guilty on all counts. Both Stowe and Jenrette filed motions seeking a judgment of acquittal on the ground that the government’s investigation was so outrageous as to offend due process, and that the evidence established entrapment as a matter of law. Alternatively, Jenrette and Stowe sought a new trial on the ground that the government failed to comply with the disclosure requirement of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). After a lengthy post-trial hearing, United States District Judge John Garrett Penn denied the motions. United States v. Jenrette, Cr. No. 80-289 (D.D.C. Aug. 4, 1983), J.A. volume 1(1) at 83-84. Subsequently, Jenrette was sentenced to two years’ imprisonment and fined $30,000. Jenrette appeals his conviction and the denial of his motion for acquittal or retrial. In addition to the three claims raised in his motion before the district court, Jenrette asserts that the district judge erred in refusing to instruct the jury on the defense of duress. For the reasons set forth below, we find Jenrette’s contentions merit-less. Accordingly, we affirm the conviction and the district court’s judgment. II. Analysis A. Duress The defense of duress excuses criminal conduct only where the defendant committed the illegal action “under an unlawful threat of imminent death or serious bodily injury____” United States v. Bailey, 444 U.S. 394, 409, 100 S.Ct. 624, 634, 62 L.Ed.2d 575 (1980). If the defendant had any reasonable, legal alternative to committing the crime, the defense of duress will not obtain. Id. at 410, 100 S.Ct. at 634. In most eases, a defendant need not produce strong evidence to obtain a jury instruction on duress. Where, however, the evidence is insufficient as a matter of law to support a finding of duress, the district court’s refusal to instruct the jury on duress is not erroneous. United States v. Shapiro, 669 F.2d 593, 596-97 (9th Cir.1982). See United States v. Peltier, 693 F.2d 96, 98 (9th Cir.1982) (per curiam). See also United States v. Bailey, 444 U.S. at 412, 100 S.Ct. at 635. Jenrette contends that he accepted the bribe only because he feared death or injury at the hands of Weinberg and Amoroso. According to Jenrette, Weinberg and Amoroso deliberately portrayed themselves as mobsters. Jenrette maintains that because he suffers from paranoia induced by alcoholism, this “gangster image” induced a reasonable fear of imminent danger. Jenrette testified that his fears were substantiated by a threat from Weinberg. We conclude that the evidence offered by Jenrette is insufficient as a matter of law to justify a finding of duress. Assuming that Jenrette reasonably believed Weinberg and Amoroso were gangsters and that this belief produced a reasonable fear, we still find no evidence that Jenrette was threatened with imminent bodily harm on December 6 when he accepted the bribe. Similarly, Jenrette cites no evidence in the record that a threat of imminent harm at the January 7 meeting caused him to suggest involving Senator Thurmond in the immigration deal. Furthermore, Jenrette does not argue that he had no reasonable, legal alternative to accepting the bribe money. As noted, the bribe was first offered at the December 4, 1979 meeting. Although Jenrette allegedly feared for his life, he did not accept the money on December 4. Instead, he left the townhouse and made arrangements for an intermediary to collect the money two days later. Even if Jenrette reasonably believed he was in imminent danger while at the townhouse, he has offered no explanation for his failure to take alternative action, such as notifying law enforcement officials, during the next two days. Jenrette’s actions belie his assertion that he acted under threat of imminent harm and that he had no alternative but to accept the bribe. Accordingly, we find, as a matter of law, that the cited evidence cannot support acquittal on the basis of duress. The district court, therefore, did not err in declining to instruct the jury on the defense of duress. See United States v. Shapiro, 669 F.2d at 596-97. B. Entrapment Entrapment occurs when a defendant commits a crime not due to any predisposition, but solely as a result of government inducement. See United States v. Russell, 411 U.S. 423, 428-29, 93 S.Ct. 1637, 1641, 36 L.Ed.2d 366 (1973). A defendant raises the issue of entrapment by producing evidence of government inducement. United States v. Burkley, 591 F.2d 903, 911-16 (D.C.Cir.1978), cert. denied, 440 U.S. 966, 99 S.Ct. 1516, 59 L.Ed.2d 782 (1979). Once the defendant properly raises the defense, the prosecution bears the burden of disproving entrapment by showing beyond a reasonable doubt that the defendant was predisposed to commit the crime. Id. at 915-16. Jenrette contends that the government failed to sustain its burden to prove predisposition. Consequently, Jenrette argues that, as a matter of law, the defense of entrapment bars his conviction. We note at the outset that the scope of our review is limited. At trial, the issue of entrapment was submitted to and rejected by the jury. We may overturn the jury’s rejection of the entrapment defense only if no reasonable jury could have found that the government proved predisposition beyond a reasonable doubt based on the evidence produced at trial. See United States v. Jannotti, 673 F.2d 578, 599 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982). After reviewing the record in this case, we conclude that there was ample evidence to support the jury’s verdict. A defendant is predisposed if he exhibits a “ ‘state of mind which readily responds to the opportunity furnished by the [government] to commit [the crime] ____’” United States v. Burkley, 591 F.2d at 916 (quoting Hansford v. United States, 303 F.2d 219, 222 (D.C.Cir.1962) (en banc)). Predisposition may be proved by showing that the defendant “responded affirmatively to less than compelling inducement ____” Id. at 916. Here, the videotape of the December 4 meeting and the taped phone conversations of December 5 and 6 demonstrate that Jenrette readily responded to the government’s bribe. Jenrette’s statements during the meeting indicate that he was well aware that the Ab-scam agents were offering a bribe and that accepting the bribe was illegal. Although Jenrette refused to take the money on December 4, his assurances that he had “larceny in [his] blood” and his suggestion that a third person receive the money indicate that his refusal did not stem from an unwillingness to accept a bribe. Rather, Jenrette’s own statements suggest that he refused the money only because he was concerned about his ability to perform his end of the bargain and because he wished to formally insulate himself from illegal activities. After accepting the bribe on December 6, Jenrette further exhibited a willingness to commit illegal acts by suggesting the possibility of bribing another government official. In light of this evidence, we cannot say that no reasonable jury could have found that Jenrette was predisposed to commit the crime. Jenrette argues, however, that the nature and scope of the government’s inducement effectively negates this evidence of predisposition. First, Jenrette contends that the government made several unsuccessful attempts to engage him in illegal conduct prior to the December 4 meeting. Second, Jenrette argues that after he refused the bribe on December 4, he was threatened by Amoroso and Weinberg until he accepted the bribe on December 6. Finally, Jenrette contends that the amount of the bribe was so excessive, especially in light of his financial and psychological condition, as to constitute compelling inducement sufficient to overcome the government’s evidence of predisposition. We are again mindful that we may overturn the jury’s finding of predisposition only if no reasonable jury could have made such a finding in light of the evidence. The evidence adduced at trial does not conclusively establish that Jenrette was subjected to persistent attempted inducements. Similarly, the transcripts of the recorded telephone conversations of December 5 and 6 contain no evidence that Weinberg or Amoroso employed threats to assure Jenrette’s acceptance of the bribe. Transcripts of telephone conversations of Dec. 5 & 6, 1979, J.A. III at 779-824. We find this evidence insufficient to warrant overturning the jury’s verdict. Similarly, we must reject the claim that the amount of money offered as a bribe in and of itself shows a lack of predisposition. We need not determine here whether a promised monetary reward can ever be so substantial as to establish a lack of predisposition. We conclude only that under the circumstances of this case, the amount of the bribe was not so excessive as to mandate a finding that no reasonable jury could have found predisposition. In sum, we find sufficient evidence to support the jury’s rejection of the entrapment defense. Accordingly, we reject Jenrette’s assertion that the evidence at trial established entrapment as a matter of law. C. Due Process Jenrette further contends that the FBI’s Abscam investigation, as directed toward him, was so outrageous that principles of due process bar his conviction. In United States v. Kelly, 707 F.2d 1460 (D.C.Cir.), cert. denied, — U.S.-, 104 S.Ct. 264, 78 L.Ed.2d 247 (1983), this court rejected a similar claim that the government’s conduct of the Abscam investigation violated fundamental fairness. The panel concluded that the due process clause bars a conviction only in the “rare instance of ‘[pjolice overinvolvement in crime’ that reaches 'a demonstrable level of outrageousness.’ ” Id. at 1476 (quoting Hampton v. United States, 425 U.S. 484, 495 n. 7, 96 S.Ct. 1646, 1653 n. 7, 48 L.Ed.2d 113 (1976) (Powell, J., concurring)). The Kelly panel determined that such a level of outrageousness is not established by showing “obnoxious behavior or even flagrant misconduct on the part of the police[.]” Id. at 1476. Rather, due process guarantees are violated only in the narrow category of cases where the challenged conduct includes “coercion, violence, or brutality to the person.” Id. (quoting Irvine v. California, 347 U.S. 128, 133, 74 S.Ct. 381, 383, 98 L.Ed. 561 (1954)). Since the FBI’s conduct toward Kelly did not involve “the infliction of pain or physical or psychological coercion,” no due process violation existed. Id. at 1477. Jenrette argues that Kelly is not dispositive of this case because the FBI’s conduct toward him differed from that employed in the Kelly investigation. Specifically, Jenrette contends that the FBI “targeted” him with no “reasonable suspicion” that an investigation would reveal criminal behavior. In addition, Jenrette claims that the FBI failed to record certain phone calls that were critical to his defense. Contrary to Jenrette’s assertion, claims of this kind were indeed raised in Kelly. Even if we assume Jenrette has compiled more complete and detailed evidence of misconduct than was compiled in Kelly, we must still reject Jenrette's due process defense. The character and not the amount of the alleged misconduct is determinative in assessing the fundamental fairness of the investigation. Because none of these claimed instances of misconduct involve the type of coercion, violence, or brutality described in Kelly, they do not rise to the level of a due process violation. We therefore affirm the district court’s conclusion that principles of due process do not bar Jenrette’s conviction. D. The Brady Claim Finally, Jenrette contends that the district court erred in denying his motion for a new trial based on the government’s failure to comply with the disclosure requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brady mandates that upon request the prosecution disclose any evidence favorable to an accused where that evidence is material either to guilt or to punishment. Id. at 87, 83 S.Ct. at 1196. In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Supreme Court clarified the materiality aspect of Brady’s disclosure requirement. Where a defendant has made a request for specific information that is not disclosed, that information is considered material if it might have affected the outcome of the trial. Id. at 104, 96 S.Ct. at 2397. Where the defendant has made no request or a general request for exculpatory evidence, the undisclosed evidence is material only if, in the context of the entire record, it creates a reasonable doubt as to the defendant’s guilt. Id. at 112-13, 96 S.Ct. at 2401-02. There is some disagreement as to whether Jenrette specifically requested all the undisclosed information. We need not resolve this question, however, because a new trial is not warranted under either standard. After a lengthy hearing and after examination of voluminous records and materials, the district court concluded that if the government had disclosed the alleged Brady information, the outcome of the trial would not have changed. United States v. Jenrette, Cr. No. 80-289, slip op. at 55 (D.D.C. July 30, 1983); J.A. I at 74. The district judge is, of course, best suited to evaluate the significance of the undisclosed material. His judgment accordingly deserves great deference. See United States v. Provenzano, 615 F.2d 37, 49 (2d Cir.), cert. denied, 446 U.S. 953, 100 S.Ct. 2921, 64 L.Ed.2d 810 (1980). We thus will not overturn the district court’s judgment absent convincing evidence that the undisclosed information would have affected the outcome of the trial. After examining the Brady material, we find ample support for the district court’s ruling. First, Jenrette contends that the government failed to disclose evidence indicating that he was “targeted” by the FBI. The undisclosed evidence includes: 1) statements by Weinberg and an FBI agent that the FBI wanted to “get” Jenrette; 2) statements indicating that Abscam operatives knew Jenrette was under investigation in South Carolina; 3) a May 8, 1979 teletype from the South Carolina FBI office advising Abscam operatives that Jenrette was a close associate of two Abscam subjects; and 4) a May 1979 teletype recommending a bonus in part for Weinberg’s discovery that Jenrette was in financial trouble and willing “to do favors.” Jenrette maintains that this evidence implies a lack of predisposition and thus supports his entrapment defense. Evidence of Jenrette’s resistance to persistent FBI inducements to involve him in unlawful conduct prior to the December 4, 1979 bribery could bear on the question of Jenrette’s criminal predisposition. The cited undisclosed statements and teletypes, however, do not establish that the FBI offered any inducements prior to December 4, 1979 or that Jenrette resisted such offers. At most, the undisclosed information may indicate some FBI interest in Jenrette before November 1979 or that Weinberg had disclosed information designed to generate interest in Jenrette before that time. Because we do not believe the undisclosed evidence is relevant to the issue of Jenrette’s predisposition, we find no error in the district court’s determination that the nondisclosure of this evidence provided no basis for a new trial. The second category of undisclosed evidence concerns Weinberg’s activities during the Abscam operation. Jenrette points to evidence that Weinberg was running a “double scam.” Jenrette asserts that Weinberg would help create phony certificates of deposit, induce people to circulate the certificates, and then collect a bonus from the FBI for removing the certificates from circulation. Jenrette asserts that the FBI failed to disclose documents indicating that it knew of this scam and a teletype stating that the purpose of his scam was to provide a method for introducing undercover agents to politicians. This evidence pertains to the conduct of the Abscam investigation. The undisclosed documents are thus relevant to Jenrette’s claim that flagrant misconduct during the investigation violated his right to due process. Because the false certificate scheme does not amount to “physical or psychological coercion,” the undisclosed evidence regarding the scheme could not have established a due process violation. See United States v. Kelly, 707 F.2d at 1477. Since disclosure of this evidence could not have affected the outcome of Jenrette’s trial, we find no error in the district court’s determination that a new trial was not warranted. The third category of undisclosed evidence concerns the Abscam operatives’ failure to record all telephone conversations with Jenrette and Stowe. Two Abscam prosecutors testified at the post-trial hearing that they discerned a pattern of unreported phone conversations notwithstanding instructions that all conversations were to be recorded. See, e.g., Transcript of Due Process Hearing of May 12, 1981 at 202. Again, this evidence concerns the fundamental fairness of the investigation and is thus relevant to Jenrette’s due process claim. This court has already ruled in the context of other Abscam cases that the failure to record some phone conversations does not violate principles of due process. United States v. Weisz, 718 F.2d 413, 435-37 (D.C.Cir.1983), cert. denied, — U.S. -,-, 104 S.Ct. 1285, 1305, 79 L.Ed.2d 688, 704 (1984); see also United States v. Kelly, 707 F.2d 1460, 1472-76 (D.C.Cir.), cert. denied, — U.S.-, 104 S.Ct. 264, 78 L.Ed.2d 247 (1983). Since this information could not have affected Jenrette’s conviction, its nondisclosure does not violate Brady. Fourth, the defense claims that the government failed to disclose the previously noted May 9, 1979 teletype reporting that Jenrette was in financial difficulty and a November 20, 1979 teletype indicating that Jenrette was involved in an obstruction of justice charge. According to Jenrette, these two teletypes prove his stressful condition and are thus relevant to the duress defense. These teletypes, however, fail to establish a serious threat to Jenrette’s safety or that Jenrette had no legal alternative to accepting the bribe. This undisclosed evidence therefore could not support exoneration based on duress and thus does not warrant a new trial. Finally, Jenrette argues that the government did not disclose certain evidence pertinent to Weinberg’s credibility. This evidence consists of payments from the Miami FBI office to Weinberg, evidence that Weinberg kept gifts solicited for his fictitious Arab clients, and Weinberg’s statement that if he didn’t “coach” persons accepting bribes, there would be no case. Although such evidence could impugn Weinberg’s character, his credibility could not be undermined more than it already had been by his sporadic memory, criminal background, and dubious motives. As the district court observed, “there seemed little to support the credibility of Weinberg____ [H]e had convenient lapses of memory, and he had a motive to lie. Moreover, his credibility was impeached by his background, a convicted con man, who stood to gain not only more money from Abscam depending upon how many government officials he could bring into the net, but some form of absolution from his probation requirements.” Jenrette, slip op. at 53-54, J.A. I at 72-73. The district court concluded, and we agree, that the voluminous evidence introduced at trial so completely undermined Weinberg’s credibility that any additional information concerning payoffs or solicited gifts could not have affected the outcome of the trial. In sum, we agree with the district court’s conclusion that the undisclosed evidence would not have affected the outcome of the trial and thus does not meet the materiality requirement of Brady. We therefore see no basis to grant a new trial based on the government’s alleged failure to disclose this information. III. Conclusion For the foregoing reasons, Jenrette’s conviction and the district court’s denial of his motion for acquittal or new trial are Affirmed. . Weinberg was convicted of fraud in 1977. In return for his agreement to cooperate with the FBI in setting up the Abscam operation, Weinberg received a sentence of three years’ probation. The Abscam operation was similar to "sting" operations that Weinberg had run in the past. United States v. Jenrette, Cr. No. 80-289, slip op. at 2-3 (D.D.C. July 30, 1983), Joint Appendix (J.A.) volume I (I) at 19, 21-22. See also United States v. Myers, 692 F.2d 823, 829 (2d Cir.1982); United States v. Jannotti, 673 F.2d 578, 581 n. 2 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982). . The evidence adduced at trial indicates that Stowe had numerous contacts with Weinberg for over a year before Jenrette became involved in the Abscam operation. Stowe was evidently interested in obtaining financing from Weinberg for various business deals. In a conversation with Weinberg in October 1978, Stowe mentioned that he had a friend who was a congressman and stated: “He’s a[s] big a crook as I am ...Transcript of Telephone Call on or about 10/17/78, J.A. volume III (III) at 919. Thereafter, hoping to make contact with Jenrette, Weinberg pursued Stowe with promises that his Arab clients might be willing to invest in Stowe’s business. . At the December 3 meeting, Stowe indicated that Jenrette was ready to handle the immigration problem but that Jenrette did not know the details of the arrangement. Trial Transcript (Tr.) (Amoroso), J.A. volume II (II) at 229. Amoroso told Stowe to explain the arrangement to Jenrette and find out whether Jenrette would agree to meet. Id. at 229-30. Stowe indicated that he understood Jenrette was to receive $50,-000 up front and $50,000 when the bill was introduced. Id. at 230. The following day Stowe called Weinberg to confirm the meeting. Transcript of Telephone Call of Dec. 4, 1979, J.A. III at 710-14. . See Transcript of Telephone Call of Jan. 25, 1980, J.A. III at 983-84; Transcript of Telephone Call of Jan. 25, 1980, J.A. III at 989; Transcript of Telephone Call of Jan. 26, 1980, J.A. III at 993-94. . The “threat" Jenrette refers to consists of a statement made by Weinberg to John Stowe, Jenrette’s co-defendant, during a phone conversation on December 4, 1979. The transcript reveals that Weinberg said: ”[Y]ou gotta remember one thing now Tony [Amoroso] is a tough guy. He’s [Jenrette] gotta ... tell us he’s gonna do it." J.A. Ill at 712. . A defendant must show some threat of imminent harm to establish duress. A threat of future harm, or a threat made before the commission of the illegal act generally is not sufficient. See 1 Wharton's Criminal Law § 51 at 242-43 (C. Torcia 14th ed. 1978); United States v. Atencio, 586 F.2d 744, 746 (9th Cir.1978) (immediacy is a crucial element of the duress defense). If the threat is not of immediate harm, there generally will be ample opportunity to avoid the illegal act. The only act or statement in the record that could even remotely be construed as a threat against Jenrette was made over the telephone before the December 4 meeting to a third person. See note 5 supra. Additionally, Jenrette testified that he received an unrecorded, threatening phone call sometime after Jan. 1, 1980 but before the Jan. 7, 1980 meeting. Trial Tr. (Jenrette) vol. XVI at 3415-17. Neither threat, however, was sufficiently immediate to justify the defense of duress. . The district judge instructed the jury on both inducement and predisposition. The jury was instructed to consider first whether the evidence showed government conduct that could cause an undisposed person to commit a crime. If the jury found inducement, then it was instructed to determine whether Jenrette was in fact predisposed to take the bribe. Trial Tr. vol. XXII at 4748-50. By finding Jenrette guilty, the jury necessarily rejected the entrapment defense. We do not know, however, whether this defense was rejected because the jury did not find government inducement or because the jury concluded Jenrette was predisposed. The district judge, in his opinion denying Jenrette’s motion for acquittal or for a new trial, concluded that there was sufficient evidence to support a finding of inducement. Jenrette, slip op. at 26, J.A. I at 45. In addressing Jenrette’s entrapment argument, therefore, we will assume that inducement existed. . After discussing the immigration problems and indicating that he would like to study the immigration laws before accepting the money, Jenrette stated: "I don’t know that I've taken a bribe and I [don’t know] that ... you’ve offered me a bribe.” Transcript of Meeting of Dec. 4, 1979, J.A. III at 764. At one point during the meeting, Jenrette suggested that the money be paid to his lawyer. ”[I]f I take it I'm gonna ... have a lawyer take it.... That’s why I guess I’m hedginfg] Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:

songer_counsel1

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 appellant. 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, Appellee, v. Louis MARTIN, Appellant. No. 77-1111. United States Court of Appeals, Eighth Circuit. Submitted June 13, 1977. Decided Aug. 22, 1977. Henry L. Jones, Little Rock, Ark., for appellant; Wiley A. Branton, Washington, D. C., on brief. Samuel A. Perroni, Asst. U. S. Atty., Little Rock, Ark., for appellee; W. H. Dilla-hunty, U. S. Atty., and Sandra W. Cherry, Asst. U. S. Atty., Little Rock, Ark., on brief. Before HEANEY, STEPHENSON and HENLEY, Circuit Judges. STEPHENSON, Circuit Judge. Appellant Louis Martin was charged on November 4, 1975, in a two-count indictment in violation of 18 U.S.C. § 152. The first count charged Martin with making a false oath and account in relation to a bankruptcy proceeding, in that he filed a schedule representing that he and his wife had $50.00 on hand, wherein he fraudulently failed to disclose other assets of money and cash totalling $565.12. The second count charged Martin with fraudulently transferring and concealing assets in the amount of $2,060.12 in contemplation of bankruptcy. On May 4, 1976, Martin’s first trial was terminated when the district court, pursuant to Martin’s motion, declared a mistrial. On November 29,1976, Martin’s second trial began and on December 1, 1976, the jury returned a verdict of guilty on both counts. The district court sentenced Martin to 18 months’ imprisonment on the first count and 2 years’ supervised probation on the second count. In this appeal Martin alleges the following errors: (1) the district court erred in denying Martin’s motion to dismiss the indictment because (a) the Double Jeopardy Clause barred Martin’s retrial, (b) the government’s conduct before the grand jury required dismissal, and (c) the government’s conduct following the grand jury required dismissal; (2) the district court erred in failing to grant Martin’s motion in limine; (3) the district court prejudiced the jury by the manner in which it questioned Martin’s expert witness; (4) the district court erred in refusing to give one of Martin’s requested instructions and in giving one of the government’s requested instructions. We are persuaded that under the circumstances of this case, the Double Jeopardy Clause of the Fifth Amendment barred Martin’s retrial. Accordingly, we reverse. Background On December 16, 1974, Martin, a lawyer employed by Pulaski County, Arkansas, and his wife, employed by the state of Arkansas, filed their voluntary petition in bankruptcy in the Eastern District of Arkansas. The petition contained a schedule of debts which listed eight creditors and a total indebtedness of $19,447.62. Of the total indebtedness, $18,382.61 represented debts that Martin and his wife owed to six student loan creditors. Before evidence was presented in his first trial, Martin filed a motion in limine requesting that the district court prohibit any mention or reference to student loans and exclude any documents referring to student loans or that reference to student loans be excised. Martin attached as exhibits to his motion in limine 22 Arkansas Gazette newspaper articles illustrating the publicity which accompanied his attempt to discharge the student loan debts. In addition to the newspaper articles, affidavits by Martin and his wife were filed attesting to obscene and racial remarks directed at the Martins as a result of their bankruptcy petition. Martin’s counsel stated to the court during the hearing on the motion that the defense would agree to stipulate “to the amount of money in certain accounts at a certain time, when that money went to the account and when it left the account.” The purpose of this stipulation was to avoid the mentioning of student loans. Following a lengthy hearing, the district court granted Martin’s motion in limine. While ruling on the motion, the court stated to the government’s attorney: You cannot use student loans. And I admonish you not to unduly use loans and lending institutions. * * * Talk about debts, or use other words, because the Court is sincere in believing that there has been an undue amount of publicity to the extent that Louis Martin will be prejudiced if student loans or an undue emphasis on loan and lending institutions is used to the extent that would infer indirectly what I am telling you not to do directly. A short time later the district court clarified his ruling by stating to the government’s attorney: I am going to back up at this time and clarify the ruling by saying that you cannot name the specific creditors. * * * I have got to rule that you cannot name the specific creditors. * * * So, when I ruled, and to clarify my ruling further, I will say that you cannot go into it, name the creditors, and go beyond that into the making of the loans * * *. In addition to his motion in limine, Martin asked the district court at this time to prohibit the government’s attorney from reading Martin’s grand jury testimony to the jury as substantive evidence. Appellant argued that most of the statements contained in Martin’s grand jury testimony were irrelevant and prejudicial. The government’s attorney, however, assured the court that the irrelevant statements contained in the grand jury testimony had been excluded. The district court denied Martin’s request but cautioned the government that the use of Martin’s grand jury testimony must not violate any of the court’s prior rulings. In addition, the court indicated that Martin’s objection to the use of the grand jury testimony would be treated as a continuing objection. Early in the trial, after two witnesses had testified for the government, the government’s attorney read a substantial portion of Martin’s grand jury testimony to the jury. As a result the appellant subsequently moved for a mistrial. The district court, in granting the mistrial, stated: I feel that error has been made and it will be reversed on appeal, if there is a conviction. And so the Court feels that there is no alternative other than to declare a mistrial at this point. Between the first and second trials, Martin filed a motion to dismiss the indictment, contending in part that the United States Attorney had engaged in an ex parte conversation with Judge Shell on the day of the mistrial declaration. In anticipation of being called as a witness at the hearing on the motion, Judge Shell recused himself. The case was then assigned to Judge Williams. In addition to alleging the ex parte conversation, Martin contended that the Double Jeopardy Clause barred a second trial and that the government’s conduct before the grand jury required a dismissal of the indictment. The appellant also renewed all motions filed in the first trial including the motion in limine. After a hearing was held, Judge Williams denied Martin’s motion to dismiss the indictment and the motion in limine. The second trial began on November 29, 1976, and Martin again renewed his motion in limine. The district court denied the motion and allowed the evidence concerning student loans. Martin was subsequently found guilty by the jury on both counts of the indictment. Martin raises numerous issues in this appeal. In light of the total circumstances of the case, we need only discuss his Double Jeopardy claim. Double Jeopardy The dispositive question on this appeal is whether the Double Jeopardy Clause was violated by a retrial of Martin after the first trial ended in a mistrial granted at Martin’s request. The Fifth Amendment’s prohibition against placing a defendant “twice in jeopardy” represents a constitutional policy of finality for the defendant’s benefit in federal criminal proceedings. United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1970). The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the state with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him 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. Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). In analyzing the question of whether the Double Jeopardy Clause bars a retrial of a defendant after a mistrial declaration, the Supreme Court has distinguished cases where mistrials are declared sua sponte by the court and cases where mistrials are granted at the defendant’s request or with his consent. In the former, the defendant is precluded from deciding whether or not to take the case from the jury — a decision in which the defendant has a significant interest. United States v. Jorn, supra, 400 U.S. at 485, 91 S.Ct. 547. Because of the defendant’s preclusion in this important decision, the Double Jeopardy inquiry focuses upon the “manifest necessity” for the mistrial. See United States v. Dinitz, 424 U.S. 600, 606-08, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Jorn, supra, 400 U.S. at 480-81, 91 S.Ct. 547; United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824). Different considerations obtain when a mistrial is declared at the defendant’s request. United States v. Dinitz, supra, 424 U.S. at 607, 96 S.Ct. 1075. The Double Jeopardy Clause generally would not stand in the way of reprosecution where the defendant has requested a mistrial. Lee v. United States,-U.S.-,-, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977); United States v. Jorn, supra, 400 U.S. at 485, 91 S.Ct. 547. The Supreme Court has recognized, however, limited circumstances where a defendant’s mistrial request does not remove the Double Jeopardy bar. For example, the Double Jeopardy Clause protects a defendant against governmental actions intended to provoke mistrial requests. United States v. Dinitz, supra, 424 U.S. at 611, 96 S.Ct. 1075. It bars retrials where the underlying error is “motivated by bad faith or undertaken to harass or prejudice” the defendant. United States v. Dinitz, supra, 424 U.S. at 611, 96 S.Ct. at 1082. Thus, where “prosecutorial overreaching” is present, United States v. Jorn, supra, 400 U.S. at 485, 91 S.Ct. 547, the interests protected by the Double Jeopardy Clause outweigh society’s interest in conducting a second trial ending in acquittal or conviction. United States v. Kessler, 530 F.2d 1246, 1255-56 (5th Cir. 1976). See United States v. Wilson, 534 F.2d 76, 80 (6th Cir. 1976). Our inquiry, therefore, must center upon the prosecutor’s conduct prior to the mistrial in order to determine if there was prosecutorial overreaching. Although mere negligence by the prosecutor is not the type of overreaching contemplated by Dinitz, if the prosecutorial error is motivated by bad faith or undertaken to harass or prejudice the defendant, then prosecutorial overreaching will be found. Lee v. United States, supra, - U.S. at-, 97 S.Ct. 2141. See United States v. DiSilvio, 520 F.2d 247, 249-50 (3d Cir.), cert. denied, 423 U.S. 1015, 96 S.Ct. 447, 46 L.Ed.2d 386 (1975). Appellant’s major contention of prosecutorial overreaching is found in the reading of Martin’s grand jury testimony to the jury. Although Martin does not contend the government read the grand jury testimony to intentionally provoke a mistrial request, he does allege that the government was grossly negligent in so doing. Our review of the record convinces us that the prosecutor’s conduct in reading the grand jury transcript was more than mere prosecutorial negligence. The following excerpts are illustrative of the irrelevant and highly prejudicial material which was read to the trial jury by the government’s attorney: Q. [prosecutor] Well, I am not going to give your attorney a dissertation of the federal laws. You can simply advise your attorney the Grand Jury is charged with an investigation of all the federal laws of the United States of America. I don’t know what the Grand Jury might determine after hearing your statement, but to tell us to pinpoint this or that I am not at liberty to do so. When they are empaneled, the Court hands to them the entire federal law, the Penal Code. ****** Q. You say this is similar to Watergate mentality? ****** Q. Well, if it turns out to be, Mr. Martin, you engaged in activities similar to Watergate activities, would it not be proper for the Grand Jury to say you should be charged like anybody else? ****** Q. Some people feel that Watergate investigations are good. ****** Q. Mr. Martin, anything wrong with answering? ****** Q. [grand juror] You are saying you could have lied on the petition? ****** Q. [prosecutor] You only took five hundred but had a thousand coming? You have filed a lot of bankruptcy petitions? ****** Q. [grand juror] If you filled it out, it looks like you would find out how much money you had. You would check at Worthen Bank, look in your billfold and find out how much you had. You wouldn’t happen to overlook five hundred dollars. Q. [prosecutor] We are not talking about fifty cents; seventy-five cents. ****** [grand juror] I don’t know why he has to hesitate. [grand juror] You know whether you lied on the form or not. ****** Q. [grand juror] Wait a minute. You are not going to tell us you had a thousand dollars cash and you don’t know what you did with it? ****** Q. This five hundred dollars, you are not going to tell me you cashed a check for five hundred dollars and you don’t know what you did with it? Don’t tell us that. ****** Q. You come up with an answer for that because I am really mad at you, telling us you had cashed a check for five hundred dollars and you don’t know what you did with it. ****** Q. [prosecutor] You do know how to do one of these things? A. Just in doing that one. I haven’t done any since or before. Q. [prosecutor] You did such a good job on this one. ****** Q. [grand juror] The problem is getting a thousand dollars within a two-week period before declaring bankruptcy and cashing checks, is kind of inconceivable you would put down fifty dollars on the bankruptcy petition. ****** Q. [grand juror] What was the date on that? [prosecutor] November 14, 1974. Q. [grand juror] Four weeks before filing for bankruptcy? ****** Q. [grand juror] The people you owe were at your mercy to get their money back until like your bankruptcy petition discharged them, but you don’t want to say— A. Legally discharged, but normally what happens we would renegotiate a note. Q. [prosecutor] They may or may not be discharged, Mr. Martin. You want to think about that a day or two? It is readily apparent that improper and prejudicial remarks made by grand jurors were read to the trial jury. In addition improper and prejudicial remarks made by the prosecutors were read to the jury. The record is replete with instances where the defendant was interrupted in his answers or was not given an opportunity to answer. In addition, at one point the prosecutor in effect testified by answering a question posed by a grand juror. If the government’s actions in reading this irrelevant and highly prejudicial testimony to the jury were not intentionally designed to provoke a mistrial request, at a minimum they constitute gross negligence. It can best be described as prosecutorial error undertaken to harass or prejudice the defendant — pros-ecutorial overreaching. Martin has shown the presence of anxiety, embarrassment and expense caused by his retrial. Under these circumstances we hold that the district court erred in denying Martin’s motion to dismiss the indictment. Prosecutorial overreaching in the reading of the grand jury testimony to the trial jury gave appellant no choice except to move for mistrial and subject himself to the ordeal of another trial. We conclude Martin’s constitutional right not to be twice put in jeopardy has been violated. Accordingly, we reverse appellant’s conviction and direct that the indictment be dismissed. Reversed. . The Honorable Terry L. Shell, United States District Judge for the Eastern District of Arkansas. . The Honorable Paul X Williams, United States District Judge for the Western District of Arkansas, sitting by designation. . United States Constitution, Amendment V, provides: “No person * * * shall * * * be subject for the same offence to be twice put in jeopardy of life or limb.” . The trial court, in denying Martin’s Double Jeopardy claim, stated the following: “[W]e find that the government’s errors which led to a mistrial did not amount to intentional misconduct or gross negligence.” The court noted that both of the Assistant United States Attorneys who tried the case for the government submitted affidavits in which they swore that their actions were not intended to abort the trial and that they considered the grand jury testimony admissible evidence relevant to Martin’s intent. . A persuasive argument can also be made that the following excerpts read to the jury indirectly violated the district court’s ruling on the defendant’s motion in limine: Q. [prosecutor] See if we can get this straight, Mr. Martin. You are an attorney. You have been to school for many, many years now. ****** Q. You got rid of nineteen thousand dollars — why did you take bankruptcy? ****** Q. If I told you you made deposits of four thousand three hundred and seventeen dollars to your savings account at Iowa State in 73, that wouldn’t hardly jive with your income, would it? A. No, it wouldn’t. Q. And the thousand dollars you deposited in the Friendship Savings and Loan in August, 73, that added with the five thousand you placed in the bank in 73. Q. Where did you get the money? Q. [grand juror] Is that a checking or savings? A. We must have got more than that— ****** Q. [prosecutor] You fully Intended to pay back but thought you would wash them off anyway? A. At that particular time, talking about gross, talking about that, what I was, I was going to have to take care of the family on seven hundred and seventy dollars and pay back that amount of loan. Question: What is the nature of the counsel for the appellant? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:

sc_caseorigin

160

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. MILLER v. FLORIDA No. 86-5344. Argued April 21, 1987 Decided June 9, 1987 O’CONNOR, J., delivered the opinion for a unanimous Court. Anthony Calvello argued the cause for petitioner. With him on the briefs were Richard L. Jorandby and Craig S. Barnard. Joy B. Shearer, Assistant Attorney General of Florida, argued the cause for respondent. With her on the brief was Robert A. Butterworth, Attorney General. Gerald D. Stem and Alvin Bronstein filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal. Justice O’Connor delivered the opinion of the Court. At the time petitioner committed the crime for which he was convicted, Florida’s sentencing guidelines would have resulted in a presumptive sentence of 314 to 414 years’ imprisonment. At the time petitioner was sentenced, the revised guidelines called for a presumptive sentence of 514 to 7 years in prison. The trial court applied the guidelines in effect at the time of sentencing and imposed a 7-year sentence. The question presented is whether application of these amended guidelines in petitioner’s case is unconstitutional by virtue of the Ex Post Facto Clause. t — I In 1983, the Florida Legislature enacted legislation replacing Florida’s system of indeterminate sentencing with a sentencing guidelines scheme intended “to eliminate unwarranted variation in the sentencing process. ” Fla. Rule Crim. Proc. 3.701(b) (1983). See 1983 Fla. Laws, ch. 83-216. Under the sentencing statute, a guidelines commission was responsible for “the initial development of a statewide system of sentencing guidelines.” Fla. Stat. §921.001(1) (1983). Once the commission had made its recommendation, the Supreme Court of Florida was to develop a final system of guidelines. These guidelines were to become effective for crimes committed on or after October 1, 1983. Fla. Stat. §921.001(4)(a) (1983). The sentencing statute authorized the guidelines commission to “meet annually or at the call of the chairman to review sentencing practices and recommend modifications to the guidelines.” Fla. Stat. §921.001(3) (1983). Before the convening of the legislature each year, the commission was to make its recommendations regarding the need for changes in the guidelines. The Supreme Court of Florida then could revise the sentencing guidelines to conform to all or part of the commission’s recommendations. The sentencing law provided, however, that such revisions would become effective “only upon the subsequent adoption by the Legislature of legislation implementing the guidelines as then revised.” Fla. Stat. §921.001(4)(b) (1983). In accordance with this legislation, the Supreme Court of Florida developed sentencing guidelines that went into effect on October 1, 1983. See In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So. 2d 848 (1983). Under the scheme, offenses were grouped into nine “offense categories” (e. g., “robbery” and “sexual offenses”). A single sentencing “scoresheet” would be prepared based on the defendant’s “primary offense,” defined as the crime “with the highest statutory degree” at the time of conviction. Fla. Rule Crim. Proc. 3.701(d) (1983). In scoring a defendant’s guidelines sentence, points would be assigned based on the primary offense, additional offenses at the time of conviction, prior record, legal status at the time of the offense, and victim injury. The defendant’s total point score then would be compared to a chart for that offense category, which provided a presumptive sentence for that composite score. The presumptive sentence range was “assumed to be appropriate for the composite score of the offender.” Fla. Rule Crim. Proc. 3.701(d)(8) (1983). Within the recommended range, the sentencing judge had discretion to fix the sentence “without the requirement of a written explanation.” Ibid. If the sentencing judge wished to depart from the guideline range, however, the judge had to give clear and convincing reasons in writing for doing so: “Departures from the presumptive sentence should be avoided unless there are clear and convincing reasons to warrant aggravating or mitigating the sentence. Any sentence outside of the guidelines must be accompanied by a written statement delineating the reasons for the departure. Reasons for deviating from the guidelines shall not include factors relating to either instant offense or prior arrests for which convictions have not been obtained.” Fla. Rule Crim. Proc. 3.701(d)(ll) (1983). The “clear and convincing” standard was construed as requiring reasons “of such weight as to produce in the mind of the judge a firm belief or conviction, without hesitancy, that departure is warranted.” State v. Mischler, 488 So. 2d 523, 525 (Fla. 1986). Only those sentences that fall outside the guidelines’ range are subject to appellate review. See Fla. Stat. §921.001(5) (1983). Petitioner was convicted in August 1984 on counts of sexual battery with slight force, a second-degree felony, Fla. Stat. §794.011(5) (Supp. 1984); burglary with an assault, a felony of the “first degree punishable by . . . life,” Fla. Stat. §810.02 (1983); and petit theft, a misdemeanor, Fla. Stat. §812.014(2)(c) (1983). On April 25, 1984, when these offenses were committed, the sentencing guidelines adopted October 1,1983, were still in effect. On May 8,1984, however, the Supreme Court of Florida proposed several revisions to the sentencing guidelines. See Florida Bar: Amendment to Rules of Criminal Procedure (§.701, S.988 — Sentencing Guidelines), 451 So. 2d 824 (1984). In June 1984 the Florida Legislature adopted the recommended changes, see 1984 Fla. Laws, ch. 84-328, and the legislation implementing the revised guidelines became effective July 1, 1984. When petitioner was sentenced on October 2, 1984, therefore, these revised sentencing guidelines were the guidelines then in effect. Only two changes made in the revised guidelines are relevant here. First, the guidelines changed the definition of “primary offense” from the offense wdth “the highest statutory degree,” to the offense which results in “the most severe sentence range.” See 451 So. 2d, at 824, n. This changed petitioner’s primary offense from burglary wdth assault — the offense with the higher statutory degree — to sexual battery. Petitioner does not argue here that the new definition itself changed his presumptive sentence. See Tr. of Oral Arg. 6. As a result of the new definition, however, petitioner was affected by another change in the revised guidelines law: a 20% increase in the number of primary offense points assigned to sexual offenses. The Supreme Court of Florida, in its comments accompanying the revised guidelines, described the change: “The revision increases the primary offense points by 20% and wdll result in both increased rates and length of incarceration for sexual offenders.” 451 So. 2d, at 824, n. As a result of the point increase, petitioner’s total point score jumped to a presumptive sentence of to 7 years. See App. 12. At petitioner’s sentencing hearing on October 2, 1984, the State contended that the revised guidelines should apply in determining petitioner’s sentence. Alternatively, the State argued that if the sentencing judge applied the earlier guidelines, he should depart from the guidelines’ range and impose a 7-year sentence. Id., at 8-9. The sentencing judge, rejecting petitioner’s ex post facto argument, ruled that the revised guidelines should apply. Concluding that he would “stay within the new guidelines,” the judge imposed a 7-year term of imprisonment for the sexual assault count. Id., at 10. Petitioner received a concurrent 7-year sentence on the burglary count, and time served on the misdemeanor charge. Id., at 6, 11. On appeal, the Florida District Court of Appeal, relying on this Court’s decision in Weaver v. Graham, 450 U. S. 24 (1981), vacated petitioner’s sentence and remanded for re-sentencing in accordance with the sentencing guidelines in effect at the time the offense was committed. 468 So. 2d 1018 (1985). In remanding the case, the court noted that “the same sentence is possible if clear and convincing reasons for departure from the then applicable guidelines are stated in writing.” Ibid. The Supreme Court of Florida reversed. 488 So. 2d 820 (1986). In a summary opinion, the court concluded that its decision in State v. Jackson, 478 So. 2d 1054 (1985), established that “the trial court may sentence a defendant pursuant to the guidelines in effect at the time of sentencing.” 488 So. 2d, at 820. In Jackson, the Supreme Court of Florida had emphasized that “the presumptive sentence established by the guidelines does not change the statutory limits of the sentence imposed for a particular offense.” 478 So. 2d, at 1056. On that basis, it had concluded that a modification in sentencing guidelines procedure was “merely a procedural change, not requiring the application of the ex post facto doctrine” under Dobbert v. Florida, 432 U. S. 282 (1977). 478 So. 2d, at 1056. We granted certiorari, 479 U. S. 960 (1986), and now reverse. II Article I of the United States Constitution provides that neither Congress nor any State shall pass any “ex post facto Law.” See Art. I, §9, cl. 3; Art. I, §10, cl. 1. Our understanding of what is meant by ex post facto largely derives from the case of Calder v. Bull, 3 Dall. 386 (1798), in which this Court first considered the scope of the ex post facto prohibition. In Calder, Justice Chase, noting that the expression “ex post facto” “had been in use long before the revolution,” id., at 391, summarized his understanding of what fell “within the words and the intent of the prohibition”: “1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender.” Id., at 390 (emphasis omitted). Accord, Dobbert v. Florida, supra, at 292, quoting Beazell v. Ohio, 269 U. S. 167, 169-170 (1925). Justice Chase explained that the reason the Ex Post Facto Clauses were included in the Constitution was to assure that federal and state legislatures were restrained from enacting arbitrary or vindictive legislation. See 3 Dall., at 389. Justices Paterson and Iredell, in their separate opinions in Calder, likewise emphasized that the Clauses were aimed at preventing legislative abuses. See id., at 396 (Paterson, J.); id., at 399-400 (Iredell, J.). See also Malloy v. South Carolina, 237 U. S. 180, 183 (1915); James v. United States, 366 U. S. 213, 247, n. 3 (1961) (separate opinion of Harlan, J.). In addition, the Justices’ opinions in Calder, as well as other early authorities, indicate that the Clauses were aimed at a second concern, namely, that legislative enactments “give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed.” Weaver v. Graham, supra, at 28-29. See Calder v. Bull, 3 Dall., at 388 (Chase, J.); id., at 396 (Paterson, J.); 1W. Blackstone, Commentaries *46. Thus, almost from the outset, we have recognized that central to the ex post facto prohibition is a concern for “the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Weaver, 450 U. S., at 30. Our test for determining whether a criminal law is ex post facto derives from these principles. As was stated in Weaver, to fall within the ex post facto prohibition, two critical elements must be present: first, the law “must be retrospective, that is, it must apply to events occurring before its enactment”; and second, “it must disadvantage the offender affected by it.” Id., at 29. We have also held in Dobbert v. Florida, supra, that no ex post facto violation occurs if a change does not alter “substantial personal rights,” but merely changes “modes of procedure which do not affect matters of substance.” Id., at 293. See Beazell v. Ohio, supra, at 170-171. Respondent contends that the revised sentencing law is neither impermissibly retrospective, nor to petitioner’s disadvantage; respondent also contends that the revised sentencing law is merely a procedural change. We consider these claims in turn. A law is retrospective if it “changes the legal consequences of acts completed before its effective date.” Weaver, supra, at 31. Application of the revised guidelines law in petitioner’s case clearly satisfies this standard. Respondent nevertheless contends that the ex post facto concern for retrospective laws is not violated here because Florida’s sentencing statute “on its face provides for continuous review and recommendation of changes to the guidelines. ” Brief for Respondent 27-28. Relying on our decision in Dobbert, respondent argues that it is sufficient that petitioner was given “fair warning” that he would be sentenced pursuant to the guidelines then in effect on his sentencing date. Brief for Respondent 28. In our view, Dobbert provides scant support for such a pinched construction of the ex post facto prohibition. In Dobbert, the capital sentencing statute in effect at the time the murders took place later was held to be invalid. In rejecting the defendant’s argument that imposition of the death penalty therefore was a change in punishment from the punishment “in effect” when the crimes were committed, the Court concluded that ex post facto concerns were satisfied because the statute on the books at the time Dobbert committed the crimes warned him of the specific punishment Florida prescribed for first-degree murders. See 432 U. S., at 298. Here, by contrast, the statute in effect at the time petitioner acted did not warn him that Florida prescribed a 514- to 7-year presumptive sentence for that crime. Petitioner simply was warned of the obvious fact that the sentencing guidelines law — like any other law — was subject to revision. The constitutional prohibition against ex post facto laws cannot be avoided merely by adding to a law notice that it might be changed. It is “axiomatic that for a law to be ex post facto it must be more onerous than the prior law.” Dobbert, supra, at 294. Looking only at the change in primary offense points, the revised guidelines law clearly disadvantages petitioner and similarly situated defendants. See 451 So. 2d, at 824, n. (the purpose and effect of the change in primary offense points was to “increas[e] [the] rates and length of incarceration for sexual offenders”). Considering the revised guidelines law as a whole does not change this result. Unlike Dobbert, where we found that the “totality of the procedural changes wrought by the new statute . . . did not work an onerous application of an ex post facto change,” 432 U. S., at 296-297, here respondent has not been able to identify any feature of the revised guidelines law that could be considered ameliorative. Respondent maintains that the change in guidelines laws is not disadvantageous because petitioner “cannot show definitively that he would have gotten a lesser sentence.” Tr. of Oral Arg. 29. This argument, however, is foreclosed by our decision in Lindsey v. Washington, 301 U. S. 397 (1937). In Lindsey, the law in effect at the time the crime was committed provided for a maximum sentence of 15 years, and a minimum sentence of not less than six months. At the time Lindsey was sentenced, the law had been changed to provide for a mandatory 15-year sentence. Finding that retrospective application of this change was ex post facto, the Court determined that “we need not inquire whether this is technically an increase in the punishment annexed to the crime,” because “[i]t is plainly to the substantial disadvantage of petitioners to be deprived of all opportunity to receive a sentence which would give them freedom from custody and control prior to the expiration of the 15-year term.” Id., at 401-402. Thus, Lindsey establishes “that one is not barred from challenging a change in the penal code on ex post facto grounds simply because the sentence he received under the new law was not more onerous than that which he might have received under the old.” Dobbert, supra, at 300. Petitioner plainly has been “substantially disadvantaged” by the change in sentencing laws. To impose a 7-year sentence under the old guidelines, the sentencing judge would have to depart from the presumptive sentence range of 314 to 414 years. As a result, the sentencing judge would have to provide clear and convincing reasons in writing for the departure, on facts proved beyond a reasonable doubt, and his determination would be reviewable on appeal. By contrast, because a 7-year sentence is within the presumptive range under the revised law, the trial judge did not have to provide any reasons, convincing or otherwise, for imposing the sentence, and his decision was unreviewable. Thus, even if the revised guidelines law did not “technically . . . increase . . . the punishment annexed to [petitioner’s] crime,” Lindsey, supra, at 401, it foreclosed his ability to challenge the imposition of a sentence longer than his presumptive sentence under the old law. Petitioner therefore was “substantially disadvantaged” by the retrospective application of the revised guidelines to his crime. Finally, even if a law operates to the defendant’s detriment, the ex post facto prohibition does not restrict “legislative control of remedies and modes of procedure which do not affect matters of substance.” Dobbert, 432 U. S., at 293. Hence, no ex post facto violation occurs if the change in the law is merely procedural and does “not increase the punishment, nor change the ingredients of the offence or the ultimate facts necessary to establish guilt.” Hopt v. Utah, 110 U. S. 574, 590 (1884). See Dobbert, supra, at 293-294 (“The new statute simply altered the methods employed in determining whether the death penalty was to be imposed; there was no change in the quantum of punishment attached to the crime”). On the other hand, a change in the law that alters a substantial right can be ex post facto “even if the statute takes a seemingly procedural form.” Weaver, 450 U. S., at 29, n. 12. Although tííe distinction between substance and procedure might sometimes prove elusive, here the change at issue appears to have little about it that could be deemed procedural. The 20% increase in points for sexual offenses in no wise alters the method to be followed in determining the appropriate sentence; it simply inserts a larger number into the same equation. The comments of the Florida Supreme Court acknowledge that the sole reason for the increase was to punish sex offenders more heavily: the amendment was intended to, and did, increase the “quantum of punishment” for category 2 crimes. See 451 So. 2d, at 824, n. Respondent objects that it is misleading to view the change in the revised guidelines apart from the sentencing scheme as a whole. Relying largely on decisions by the Courts of Appeals sustaining the United States Parole Commission’s guidelines against ex post facto claims, respondent urges that the revised guidelines “merely guide and channel” the sentencing judge’s discretion. Brief for Respondent 35. See, e. g., Wallace v. Christensen, 802 F. 2d 1539 (CA9 1986) (en banc); Yamamoto v. United States Parole Comm’n, 794 F. 2d 1295 (CA8 1986); Dufresne v. Baer, 744 F. 2d 1543 (CA11 1984), cert. denied, 474 U. S. 817 (1985 Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. 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songer_circuit

F

What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. UNITED STATES of America, Plaintiff-Appellee, v. Felix WALLS, Defendant-Appellant. No. 20771. United States Court of Appeals, Sixth Circuit. June 14, 1971. Wilfred C. Rice, Detroit, Mich., for appellant. Marilu Marshall, U. S. Department of Justice, Detroit, Mich., Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., on the brief; Laurence Leff, Sp. Atty., U. S. Department of Justice, Detroit, Mich., of counsel, for appellee. Before PHILLIPS, Chief Judge, and CELEBREZZE, and McCREE, Circuit Judges. McCREE, Circuit Judge. Appellant was convicted on June 15, 1970 on both counts of an indictment charging violations of narcotics laws of the United States, and was sentenced to serve concurrently ten years imprisonment imposed on each count. In this appeal, he asserts that the District Court, sitting without a jury, committed several errors which require reversal of his conviction. We hold that it was reversible error for the Trial Judge to view the scene of the alleged offense without permitting appellant or his attorney to attend and to preclude summation and closing argument by defense counsel. Walls was arrested in Detroit, Michigan, during the early morning hours of April 9, 1969, as he emerged from a house which was under the surveillance of federal agents. Arrested with him were James Riley, Jr., who proved to be a police informer, and Sylvia Laster, who occupied an upstairs flat in the house. At the time of the arrest, Riley held a paper bag containing heroin. The cocaine specified in the indictment was subsequently found during a search of the upstairs flat where Laster was arrested. The surveilling agents testified that they saw Walls hand the heroin bag to Riley as the two men emerged from the house. This testimony was crucial to the Government’s case because Riley, who presumably would have supplied this evidence, was unavailable for trial. The arresting agents apparently relied upon that transfer, because it corroborated Riley’s earlier information that Walls and Laster illegally possessed narcotics, and provided a basis for arresting Walls and Laster without a warrant, and for conducting the search incident to those arrests. Appellant vigorously contended that it would have been impossible for the agents to have seen a transfer on the porch because of darkness, trees, and other impediments. At trial, on June 10, 1970, defense counsel moved that the judge, in the company of counsel, view the scene to see whether it would have been possible for the agents to have seen the porch from their vantage point. The prosecutor objected, and pointed out that there had been no showing that the premises were in the same condition at the time of trial as they had been on April 9, 1969. The court denied the motion. However, on June 11, after having heard the testimony of the principle defense witness on June 10, the court stated: The only issue that I can see and I think it’s the one the Court of Appeals would want to know about, and that is the issue that you have raised now that no witness would be able to see that doorway or anyone coming out of that doorway by reason of obstructions that exist at the place. On June 12, defense counsel renewed his request that the court view the premises. In reply the court stated: Well, I would suspect that now that we have got some time that probably the Court will inspect the premises. I will advise you when I have. I am going to do it alone, not with anyone else and in my own manner. I am not going to testify as to What I see. It will be involved in my findings of facts. \ Thereafter, a defense witness testified that he was familiar with the\house in question and its surroundings, ahd that the agents would have been unable to see the porch, in part, because of a large tree which stood in front of the house and had been removed after the event and prior to trial. On Monday, June 15, the next day of trial, the court informed the parties that he had viewed the scene. Friday afternoon, with my Bailiff, I drove out to the residence * * * and there viewed the * * * scene and placed myself in the position where I would judge the driver, from the evidence, sat at the time of the surveillance and made observation and noted, too, that there was a street light directly opposite the flat here involved, * * *. Shortly thereafter, Walls completed his testimony as the final defense witness and, after both sides rested, the court stated: The Court having heretofore viewed the scene, as I indicated, together with my Bailiff and the testimony that I wish to make a written finding of fact to, * * *. It is the finding of the Court, as the finder of the fact, that the Defendant is guilty beyond a reasonable doubt. ****** We stand adjourned. A majority of the state courts which have decided the issue have held that a jury view is a stage of the trial at which the accused has a right to be present. Annot., 90 A.L.R. 597 (1934); Annot., 30 A.L.R. 1357 (1924). The courts of three states in this circuit which have considered the issue have so held, Lee v. Commonwealth, 262 Ky. 15, 89 S.W.2d 316 (1936); People v. Connor, 295 Mich. 1, 294 N.W. 74 (1940); Colletti v. State, 12 Ohio App. 104, 31 Ohio C.C.R. (n.s.) 81 (1919); and one of those states has established by statute the right of the accused to attend the view. Ohio Rev.Code § 2945.16. The principles applicable to a view by a judge sitting without a jury are not substantially different. The weight of authority is that it is reversible error for a trial judge sitting without a jury to base his findings or decision in whole or in part upon his personal observations or inspection. Annot., 97 A.L.R. 335 (1935). And it has been held that where a statute makes provision for a jury view, but not for a view by a judge sitting without a jury, it is reversible error for a trial judge sitting without a jury to view the premises without the consent of the parties. Annot., 124 A. L.R. 841, § lid (1940). Some courts have characterized information derived from a view of the scene as evidence. Others have treated a view merely as a procedure whereby the fact-finder is enabled to better understand the evidence adduced at trial. This division of authority persists despite the statements of eminent scholars that a view constitutes the taking of evidence. 4 J. Wigmore, Evidence, §§ 1150-1151, 1163-69 (3d ed. 1940); C. McCormick, Evidence, § 183 (1954). However, it can at least be stated that, however a view is characterized, “its inevitable effect is that of evidence. * * * ” Snyder v. Massachusetts, 291 U.S. 97, 121, 54 S.Ct. 330, 78 L.Ed. 674 (1934). Accordingly, it was reversible error for the court to deny appellant and his attorney the opportunity to attend the view to insure against the intrusion of prejudicial error. We also hold that the court erroneously denied defense counsel an opportunity to argue his case at the close of proofs. Immediately following the conclusion of the case for the defense, the court stated his finding of guilt, and court was adjourned. Defense counsel thereafter called the omission of argument to the court’s attention, and the record was reopened. However, the court correctly stated that argument then would be futile because he had made up his mind. Preclusion of closing argument denied appellant the effective assistance of counsel. Thomas v. District of Columbia, 67 App.D.C. 179, 90 F.2d 424, 428 (1937); United States ex rel. Wilcox v. Com. of Pennsylvania, 273 F.Supp. 923, 925-926 (E.D.Pa.1967). This principle has also been widely recognized by state courts which have considered it. See, e. g., Yopps v. State, 228 Md. 204, 178 A.2d 879 (1962); Decker v. State, 113 Ohio St. 512, 150 N.E. 74 (1925); Annot., 38 A.L.R.2d 1396, § 2[b] (1954). See generally Annot., 6 A.L.R.3d 604 (1966). We find it unnecessary to consider appellant’s other assignments of error. The judgment is reversed and the case is remanded for a new trial. Reversed and remanded. . THE GRAND JURY CHARGES IN COUNT ONE: That on or about April 9, 1969 * * * JAMES RILEY, JR., FELIX WALLS and SYLVIA LASTER, defendants herein, did unlawfully and knowingly purchase a quantity of narcotic drugs, to wit: approximately 3,092 grams of heroin and 23.58 grams of cocaine, not in or from the original stamped package and not having on it the appropriate tax-paid United States Internal Revenue stamps, as required by law; in violation of Section 4704(a), Title 26, United States Code. THE GRAND JURY FURTHER CHARGES IN COUNT TWO: That on or about April 9, 1969 * * * JAMES RILEY, JR., FELIX WALLS and SYLVIA LASTER, defendants herein, did unlawfully acquire, conceal and have in their possession, after being imported and brought into the United States a quantity of narcotic drugs, to wit: approximately 3,092 grams of heroin well knowing the aforesaid heroin to have been unlawfully imported and brought into the United States in violation of the provisions of the Act of Congress, approved February 9, 1909, as amended, and not under any regulations prescribed by the Commissioner of Narcotics; in violation of Section 174, Title 21, United States Code. . Similar principles apply to views by administrative tribunals, Annot., 18 A.L.R. 2d 552, § 7 (1951), and to views by arbitrators. Annot., 27 A.L.R.2d 1160 (1953). . The Supreme Court’s decision in Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), does not indicate a contrary result. There the Court considered the contention that the Constitution of the United States mandated the presence of an accused at a view during a state prosecution. Counsel for the parties attended the jury view as showers and a transcript was made of the proceedings at the view. In a 5 — 4 decision, the Court held that due process had not been violated. In dissent, Mr. Justice Roberts stated: Many decisions hold that [the] accused may waive the privilege [of being present at a jury view]; but an examination of the cases discloses none (with a single possible exception) where a denial of his request to accompany the jury on the view has not been held reversible error. And the statements that a view is not a part of the trial or that it is not the taking oí evidence, and denying, on that ground, the defendant’s right to be present, are invariably found in eases where the defendant requested the view and did not ask to accompany the jury, or waived either expressly or by conduct his right so to do. 291 U.S. at 134-135, 54 S.Ct. at 343 (footnote omitted). Here we exercise our supervisory authority over the administration of criminal justice in the District Courts of this Circuit, see McNabb v. United States, 318 U.S. 332, 341, 63 S.Ct. 608, 87 L.Ed. 819 (1943), and we do not reach the Constitutional issue presented in Snyder. Accordingly, we need not decide whether evolving Constitutional principles have eroded the basis for the majority’s position in Snyder, or whether the Court in that case would have found error of Constitutional dimensions if Snyder’s counsel had not attended the view. See, e. g., United States v. Wade, 388 U.S. 218, 223-227, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); White v. Maryland, 373 U.S. 59, 60, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963). 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_state

02

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". Thomas S. JONES, Plaintiff-Appellant, Cross-Appellee, v. CENTRAL SOYA COMPANY, INC., Defendant-Appellee, Cross-Appellant. No. 83-7468. United States Court of Appeals, Eleventh Circuit. Dec. 10, 1984. Champ Lyons, Jr., Mobile, Ala., for plaintiff-appellant, cross-appellee. William C. Tidwell, III, Kathryn Anne Eckerlein, Mobile, Ala., for defendant-ap-pellee, cross-appellant. Before HILL and HENDERSON, Circuit Judges, and WISDOM , Senior Circuit Judge. Honorable John Minor Wisdom, U.S. Circuit Judge for the Fifth Circuit, sitting by designation. ALBERT J. HENDERSON, Circuit Judge: Thomas S. Jones and Central Soya Company, Inc. (“Central”) both challenge the reasonableness of the amount of attorney’s fees awarded to Jones by the United States District Court for the Southern District of Alabama in a successful action against Central alleging a violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (“ADEA”). The jury found Central’s conduct to be willful and awarded Jones double damages in the amount of $41,666.42. The district court later granted Jones an additional interim amount of $18,796.00 as well as reinstatement with full pension benefits. Pursuant to a provision in 29 U.S.C. § 216(b) authorizing reasonable attorney’s fees to the prevailing plaintiff in an ADEA action, the district court awarded Jones approximately $24,000.00 allocable to counsel fees. On appeal, Jones alleges that the amount was insufficient because of 1) the exceptional result obtained in the litigation, 2) the purported contingency fee arrangement between Jones and his counsel, and 3) the delay in payment of the attorney’s fees. Central cross appeals, contending that the district court improperly awarded Jones attorney’s fees for the time billed for the work of an unnecessary second trial lawyer. Awards of attorney’s fees in age discrimination actions are governed by 29 U.S.C. § 216(b) which provides: “[t]he court ... shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant ....” See 29 U.S.C. § 626(b) (rendering section 216(b) applicable to ADEA actions). A number of factors are relevant to the determination whether such an award is reasonable, the most familiar of which were discussed at length in Johnson v. Georgia Highway Express, 488 F.2d 714, 717-19 (5th Cir.1974). In this case, the district court based its award on a “lodestar” figure consisting of the product of the time invested by Jones’ counsel and an hourly rate. Record, vol. 1, pp. 381-84. In doing so, the district court addressed each of the factors listed in Johnson and concluded that no adjustment of the lodestar amount was necessary. See id. at 381-86. We may overturn this award only for “clear abuse of discretion.” Dowdell v. City of Apopka, 698 F.2d 1181, 1187 (11th Cir.1983). Jones first contends that the lodestar figure should have been increased because of the results obtained in the ADEA action. The district court reasoned that although counsel “achieved substantial relief for the plaintiff in this case, the court does not feel that counsel is entitled to an enhancement bonus on this factor.” Record, vol. 1, p. 385. The Supreme Court of the United States has instructed that “[bjecause acknowledgment of the ‘results obtained’ generally will be subsumed within other factors used to calculate a reasonable fee it normally should not provide an independent basis for increasing the fee award.” Blum v. Stenson, — U.S. —, —, 104 S.Ct. 1541, 1549, 79 L.Ed.2d 891, 903 (1984). However, “in some eases of exceptional success an enhanced award may be justified.” Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40, 52 (1983); see Blum, — U.S. at —, 104 S.Ct. at 1550, 79 L.Ed.2d at 903 (quoting Hensley). We are confronted here with the question whether the result in this ease constitutes “exceptional success.” Although the Supreme Court has not yet addressed in detail the-circumstances under which an award of attorney’s fees should be enhanced because of the result obtained, the Court noted in Blum that “where the experience and special skill of the attorney ... require the expenditure of fewer hours than counsel normally would be expected to spend on a particularly novel or complex issue” an increase may be warranted. Blum, — U.S. at —, 104 S.Ct. at 1549, 79 L.Ed.2d at 902. See also Ramos v. Lamm, 713 F.2d 546, 557 (10th Cir.1983) (“exceptional success” may be based upon extraordinary economies of time given the complexity of the task). Other courts have articulated additional factors that may justify an enhanced attorney’s fee award such as the development of new law furthering important congressional policies, see Phillips v. Smalley Maintenance Services, Inc., 711 F.2d 1524, 1530-31 (11th Cir.1983); Johnson, 488 F.2d at 718; accord Ramos, 713 F.2d at 557, success achieved under unusually difficult circumstances, see White v. City of Richmond, 713 F.2d 458, 462 (9th Cir.1983) (near complete success achieved in face of highly unfavorable law); Ramos, 713 F.2d at 557 (“unusually difficult circumstances”), and the size of the award. See Yates v. Mobile County Personnel Board, 719 F.2d 1530, 1533 (11th Cir.1983); Wolf v. Frank, 555 F.2d 1213, 1218 (5th Cir.1977); Johnson, 488 F.2d at 718. None of these grounds is sufficiently present in this case to compel the conclusion that the district court abused its discretion. There is no indication that the success of Jones’ attorneys was achieved with any special economics of time or under unusually difficult circumstances. Moreover, the case did not establish significant new law furthering an important congressional goal, and the $60,462.42 recovered is not such a substantial amount as to require enhancement. In Ramos the Court of Appeals for the Tenth Circuit observed that “total victory” may constitute “exceptional success.” Ramos, 713 F.2d at 557. The main thrust of Jones’ argument appears to be based precisely on this point. According to Jones, because he prevailed on all his claims he is entitled to an enhanced award of attorney’s fees. We decline, however, to equate “total success” with “exceptional success.” Although the Supreme Court in Hensley observed that “the extent of a plaintiff’s success is a crucial factor in determining the proper amount of an award of attorney’s fees,” Hensley, 461 U.S. at 440, 103 S.Ct. at 1943, 76 L.Ed.2d at 54, the Court has never suggested that complete victory alone requires an enhanced award. Indeed, the Court specifically distinguished “excellent” results from “exceptional” results and instructed that only the latter could justify an increased grant of attorney’s fees. Id., 461 U.S. at 435, 103 S.Ct. at 1940, 76 L.Ed.2d at 52. Winning on all claims does not seem to us to be so unusual that it must be deemed “exceptional.” Furthermore, the Court in Hensley held that, given the vast range of success possible in a civil rights action, a decrease in the lodestar amount is not required simply because the plaintiff failed to win every contention raised in his lawsuit. Hensley, 461 U.S. at 440, 103 S.Ct. at 1943, 76 L.Ed.2d at 55. We believe the converse follows — just as losing on some claims does not necessarily mandate a decrease in the lodestar figure, neither does winning on all claims demand an increased amount. The central inquiry remains whether the expenditure of counsel’s time was reasonable in light of the overall success achieved. See id., 461 U.S. at 436, 103 S.Ct. at 1941, 76 L.Ed.2d at 52. A contrary boilerplate rule that total victory mandates a larger award of attorney’s fees would mean that lawyers fortunate enough to attract clients with highly meritorious claims would always be entitled to increased attorney’s fees. Statutory entitlements to attorney’s fees were not designed to provide windfalls to lawyers. See, e.g., S.Rep. No. 1011, 94th CONG., 2d SESS. 6 (1976), reprinted in [1976] U.S.CODE CONG. & AD.NEWS 5908, 5913 (Civil Rights Attorney’s Fees Awards Act). This is not to say that the totality of the success is never a relevant factor in determining whether a result is “exceptional.” We simply hold that the mere fact that a plaintiff recovered everything he sued for in the underlying litigation does not, by itself, mandate an enhanced award. In an appropriate case, the completeness of the success might be weighed along with the legal and factual hurdles, the economies of time and skill involved, the monetary award and the law created in evaluating whether a result is “exceptional.” Because the other influences are not present in this case, we conclude that the district court did not abuse its discretion in declining to enlarge the fee notwithstanding the fact that Jones recovered on all claims. Jones next asserts that the district court erred by not considering the contingency fee arrangement he allegedly had with his counsel. The Supreme Court recently deferred a ruling on whether an upward adjustment of the attorney’s fees is authorized because of the risk of nonrecovery. See Blum, — U.S. at —, 104 S.Ct. at 1550 n. 17, 79 L.Ed.2d at 903 n. 17. It is well established in this circuit, however, that a contingency fee arrangement may justify an increase in an award of attorney’s fees. See, e.g., Hall v. Board of School Commissioners, 707 F.2d 464 (11th Cir.1983) (per curiam); Marion v. Barrier, 694 F.2d 229, 231-32 (11th Cir. 1982) (per euriam); Jones v. Diamond, 636 F.2d 1364, 1382 (5th Cir.) (en banc), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981). To decide the issue in this case we must distinguish between two types of risks an attorney may assume in making a fee arrangement. First, an attorney may risk all entitlement to fees by entering into a conventional contingency agreement with his client. Second, although not making his entitlement to fees dependent upon the verdict or judgment, an attorney always assumes the risk that he will not be paid by his client because of indigency. If an attorney is aware, when finalizing his agreement, that his client will be unable to pay, and that the only recourse for collecting his compensation is a statute providing for fee-shifting, then for practical purposes, the attorney would have assumed the risk of nonrecovery if his client does not prevail. The district court recognized this distinction in reasoning that “[ajlthough adequate compensation was, as a practical matter, probably contingent upon a successful result, the case was not taken on a contingent fee basis . . . . [Cjounsel is not entitled to an enhancement bonus on this factor.” Record, vol. 1, at 385. This quotation is a finding of fact that there was no contingency fee agreement between Jones and his counsel. In addition, the court evidently reasoned that, although there was a “practical risk” of nonpayment because of Jones’ indigency, this risk did not justify a fee enhancement. We may overturn the district court’s finding of fact only if it is “clearly erroneous.” Fed.R.Civ.P. 52(a). The facts in the record reflect considerable doubt about the fee arrangement between Jones and his attorney. At an initial meeting between Jones and his attorney in February, 1981, the fee was not discussed. Record, vol. 2, p. 393-7. Later, an hourly bill was sent to Jones. When Jones expressed his inability to pay it, his attorney told him they would “cross that bridge later.” Id. at 393-9. Several months then passed during which there was no further mention of the fee. Id. at 393-9 to 393-10. Jones later authorized his lawyer to settle the case for up to $40,000.00 of which a third would be retained as attorney’s fees. Id. at 393-12. However, no settlement ever materialized. After Jones prevailed at the jury trial, he agreed that his counsel would “look exclusively to the Court for the fixing of a reasonable fee” without disturbing the jury award. Id. at 393-13. At no point was it apparent that Jones’ counsel agreed to forego compensation for his efforts in the event the action was unsuccessful. Accordingly, we are not left with the requisite “definite and firm conviction” that the district court made a mistake in finding there was no contingency fee arrangement between Jones and his attorney. Moreover, the district court was correct in reasoning that the “practical risk” assumed by Jones’ counsel is not a basis for enhancing a fee award. Jones argues that one purpose of fee-shifting statutes is to attract competent counsel and that compensating for the “practical risk” would encourage lawyers to take civil rights cases involving indigent clients. According to Jones, refusing to provide this compensation would have a “chilling effect” on the willingness of attorneys to take such cases. It is true that in passing statutes supporting the entitlement to attorney’s fees, Congress intended to encourage competent counsel to take on possibly undesirable cases by providing for adequate compensation for their successful efforts. See, e.g., S.Rep. No. 1011, 94th CONG., 2d SESS. 6 (1976), reprinted in [1976] U.S. CODE CONG. & AD.NEWS 5908, 5913 (Civil Rights Attorney’s Fees Awards Act). This court has recognized that enhancement on the basis of a conventional contingency arrangement furthers this congressional purpose. See, e.g., Yates, 719 F.2d at 1534. We do not believe, however, that Congress intended that such advocates be paid for the financial risks they assume to a greater degree than other lawyers. As we stated in Jones, compensation for risk “is neither less nor more appropriate in civil rights litigation than in personal injury cases.” Jones, 636 F.2d at 1382. In this case, counsel for Jones seek an amount compensating them for the risk of nonpayment by a client liable for fees, a risk that is assumed without special compensation by all attorneys in all cases. A lawyer may not preserve a right of recourse against his client for fees and still expect to be compensated as if he had sacrificed completely his right to payment in the event of an unsuccessful outcome. To justify a risk premium a lawyer must agree to hold his client unaccountable for his fees if he loses the case. Because the district court found that no such agreement existed, the court did not abuse its discretion in refusing to enhance the fee award on the basis of contingency. Jones’ last argument is that the district court abused its discretion by not awarding additional attorney’s fees to compensate for delay in payment. This court has recognized that if the hourly rate for attorney’s fees is based on historical rates, thus reflecting the reasonable attorney’s fee at the time the work was performed, an adjustment may be necessary to compensate for inflation and interest. See Johnson v. University College of the University of Alabama, 706 F.2d 1205, 1210-11 (11th Cir.), cert. denied, — U.S. —, 104 S.Ct. 489, 78 L.Ed.2d 684 (1983); Morgado v. Birmingham-Jefferson County Civil Defense Corps, 706 F.2d 1184, 1193-94 (11th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 715, 79 L.Ed.2d 178 (1984). The district court did not discuss delay, and did not state whether the hourly rate it used to compute Jones’ award was current or historical. The evidence the court could have considered in arriving at the applied rate of $85.00 per hour contains information about both current and historical rates. Under these circumstances we cannot determine whether the district court abused its discretion by failing to increase the award to account for delay. We decline, however, to remand this case for clarification or reconsideration because we hold that Jones waived the right to seek an enhancement of attorney’s fees on the basis of delay. He failed both at the district court hearing on attorney’s fees and in his “Application for Award of Attorney’s Fees,” Record, vol. 1, pp. 291-306, to raise the issue of enhancement for delay. In reaching our conclusion we are mindful of the general rule that the “burden rests on the party seeking an attorney’s fee award to file a fee application and proffer proof going to the Johnson guidelines before the trial court.” Carr v. Blazer Financial Services, Inc., 598 F.2d 1368, 1371 (5th Cir.1979). Because Jones did not advance any argument for delay until after the district court’s order granting attorney’s fees, we decline to consider it as a basis for overturning the award. See Gates v. Collier, 616 F.2d 1268, 1278 n. 16 (5th Cir.1980) (suggesting waiver of claim for interest on award of attorney’s fees when issue not raised until after the district court made the award), modified on rehearing, 636 F.2d 942 (5th Cir.1981) (per curiam). Finally, Central, as cross-appellant, urges that the district court abused its discretion by not reducing the award by the amount allocated for the allegedly duplica-tive work performed at trial by a second attorney for Jones. The district court considered the issue and concluded that it was not “unreasonable for the plaintiff to have been represented at trial by two experienced attorneys. The defendant was represented at the trial by house counsel and trial counsel, although house counsel did not participate actively in the litigation.” Record, vol. 1, p. 382. A reduction in a fee “is warranted only if the attorneys are unreasonably doing the same work. An award for time spent by two or more attorneys is proper as long as it reflects the distinct contribution of each lawyer to the case and the customary practice of multiple-lawyer litigation.” Johnson, 706 F.2d at 1208 (emphasis in original); see Ward v. Kelly, 515 F.2d 908, 912 n. 11 (5th Cir.1975); Johnson, 488 F.2d at 717. Except for the fact that both were present at trial, there is no evidence in the record suggesting that Jones’ attorneys were doing identical work. Also, there is no indication in the record, aside from the fact that only one lawyer actively participated in the trial for Central, that it was unreasonable for Jones to retain two trial attorneys. Indeed, the record reflects that the lack of opportunity for pretrial preparation by Jones’ attorney may have necessitated additional trial counsel. See Record, vol. 2, p. 393-5. At any rate, in the absence of any evidence to the contrary, we cannot conclude that the trial judge, who was in the best position to evaluate the reasonableness of the use of two trial at-in torneys by Jones, abused his discretion declining to reduce the fee. The judgment of the district court AFFIRMED. is . In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this court adopted as precedent all decisions of the former Fifth Circuit decided prior to October 1, 1981. The Johnson court cited the following considerations as being relevant to the determination of the reasonableness of the award: 1) the time and labor required; 2) the novelty and difficulty of the questions; 3) the skill requisite to perform the legal service properly; 4) the preclusion of other employment by the attorney due to the acceptance of the case; 5) the customary fee; 6) whether the fee is fixed or contingent; 7) time limitations imposed by the client or the circumstances; 8) the amount involved and the results obtained; 9) the experience, reputation and ability of the attorneys; 10) the "undesirability” of the case; 11) the nature and length of the professional relationship with the client; and 12) awards in similar cases. Johnson v. Georgia Highway Express, 488 F.2d 714, 717-19 (5th Cir.1974). Johnson dealt with 42 U.S.C. § 2000e-5(k), which permits attorney’s fees for the prevailing party in certain Title VII actions. Its reasoning, however, has been applied to awards of attorney’s fees under 29 U.S.C. § 216(b). See, e.g., Morgado v. Birmingham-Jefferson County Civil Defense Corps, 706 F.2d 1184 (11th Cir.1983) (violation of Equal Pay Act, 29 U.S.C. § 206(d), to which section 216(b) also applies), cert. denied, -U.S.-, 104 S.Ct. 715, 79 L.Ed.2d 178 (1984). The Johnson criteria were also approved by Congress when it passed the Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988. See S.Rep. No. 1011, 94th CONG., 2d SESS. 6 (1976), reprinted in [1976] U.S.CODE CONG. & AD.NEWS 5908, 5913. In Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939 n. 7, 76 L.Ed.2d 40, 50 n. 7 (1983), a case addressing the reasonableness of an award of attorney’s fees under section 1988, the Supreme Court stated that the "standards set forth in this opinion are generally applicable in all cases in which Congress has authorized an award of [attorney’s] fees to a ‘prevailing party.’” Accordingly, our inquiry extends beyond just those cases dealing with section 216(b). . Neither the number of hours nor the hourly rate applied is at issue in this appeal. . Computing a "lodestar” figure first and then adjusting it in light of other considerations is a widely accepted practice. See, e.g., Blum v. Stenson, — U.S. —, —, 104 S.Ct. 1541, 1543-44, 79 L.Ed.2d 891, 895-96 (1984); Hensley v. Eckerhart, 461 U.S. 424, 433-435, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d 40, 50-51 (1983); Ursic v. Bethlehem Mines, 719 F.2d 670, 676-77 (3d Cir.1983); White v. City of Richmond, 713 F.2d 458, 460-61 (9th Cir.1983); Ramos v. Lamm, 713 F.2d 546, 552 (10th Cir.1983); Copeland v. Marshall, 641 F.2d 880, 890-91 (D.C.Cir.1980) (en banc). . “Although the Court should consider the amount of damages, or back pay awarded, that consideration should not obviate court scrutiny of the decision’s effect on the law.” Johnson v. Georgia Highway Express, 488 F.2d 714, 718 (5th Cir.1974). The Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988, not only ”make[s] it possible for non-affluent litigants to obtain legal representation, but to reward attorneys whose service has benefited the public interest.” Dowdell v. City of Apopka, 698 F.2d 1181, 1191 (11th Cir.1983) (emphasis in original). The cost-shifting contemplated by section 1988 is "designed to induce and encourage litigation on the theory that litigants acting as ‘private attorneys general' may help to enforce important congressional policies . . . .” Id. at 1189 n. 12. . See also Elser v. I.A.M. National Pension Fund, 579 F.Supp. 1375, 1381 (C.D.Cal.1984) (No enhancement under 29 U.S.C. § 1132(g) when the "relief obtained by [the] plaintiffs was that due them---- In order to be considered an exceptional result, it would have to be one not thought likely to be achieved.”). . The fact that a class was benefited, rather than an individual, has been a consideration in the past in calculating an award of attorney’s fees. See, e.g., Morgado v. Birmingham-Jefferson County Civil Defense Corps, 706 F.2d 1184, 1194 (11th Cir.1983) (not abuse of discretion for district court to determine that the case was less difficult because the plaintiff was an individual rather than a class), cert. denied, — U.S. —, 104 S.Ct. 715, 79 L.Ed.2d 178 (1984); Johnson v. Georgia Highway Express, 488 F.2d 714, 718 (5th Cir.1974). This notion however, appears to have been laid to rest by the Supreme Court of the United States. See Blum v. Stenson, — U.S. —, —, 104 S.Ct. 1541, 1549 n. 16, 79 L.Ed.2d 891, 903 n. 16 (1984). . For example, the White court increased an award of attorney’s fees for exceptional success when the plaintiff obtained injunctive relief in spite of its restricted availability under Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). The legal obstacles overcome in this case do not compare with those in White. . Jones contends that the recovery in the ADEA litigation was actually worth over $330,000.00 because of the present value of the pension benefits and reinstatement. We recognize that “fees awarded ... [should] not be reduced because the rights involved may be nonpecuniary in nature,” S.Rep. No. 1011, 94th CONG., 2d SESS. 6 (1976), reprinted in [1976] U.S.CODE CONG. & AD.NEWS, 5908, 5913. Nonetheless, even accepting this figure, we cannot say that the district court abused its discretion by declining to enhance the award of attorney's fees. . We express no opinion concerning the relative weight of these factors for determining "exceptional success” nor the degree to which any or all of them must be present to justify the enhancement of an attorney's fee award on the basis of the results obtained. In addition, we express no opinion about the extent, if any, to which these factors are necessarily indistinguishable from the existing Johnson criteria. We merely hold that, even if all these factors are valid considerations, the district court did not abuse its discretion in denying an enhanced attorney’s fee award on the basis of "exceptional success.” Our opinion does not necessarily foreclose the possibility that in future cases in this circuit an increase in an award of attorney’s fees may be justified on the basis of “exceptional success” even when all claims asserted are not successful. See White v. City of Richmond, 713 F.2d 458, 461-62 (9th Cir.1983) (enhancement upheld despite minor concessions by plaintiff during settlement negotiations). . Justice Brennan wrote separately in Blum, however, "to reaffirm ... that Congress has clearly indicated that the risk of not prevailing, and therefore the risk of not recovering any attorney’s fees, is a proper basis on which a district court may award an upward adjustment to an otherwise compensatory fee.” Blum v. Stenson, — U.S. — , —, 104 S.Ct. 1541, 1550, 79 L.Ed.2d 891, 904 (1984) (Brennan, J., concurring). . Counsel for the appellant admitted at this point that the fee situation was "vague.” Record, vol. 2, p. 393-12. . In addition, we note that in an effort to justify the employment of two trial attorneys, Jones' counsel stated that two lawyers were necessary in light of the fact that Jones could not afford pretrial deposition discovery. Record, vol. 2, p. 393-5. The district court may have taken this to mean that Jones' ability to pay was so significant an issue before trial that cost-cutting measures were necessary. Such concern over Jones’ ability to pay suggests that the parties expected, at least at that point, that Jones would ultimately be liable for his counsel's fees. This liability is inconsistent with a contingency fee arrangement. . Vindication of the policy of the law depends to a significant degree on the willingness of highly skilled attorneys, such as those now before the court, to accept employment in discrimination cases on a wholly contingent basis. They will hardly be willing to do so if their potential compensation is limited to the hourly rate to which they would be entitled in noncontingent employment. Busy and successful attorneys simply could not afford to accept contingent employment if those were the rules that were applied. The enforcement of our civil rights acts would then be entrusted largely to less capable and less successful lawyers who lack sufficient employment. Such an arrangement would ill serve policies of enormous national importance. Yates v. Mobile County Personnel Board, 719 F.2d 1530, 1534 (11th Cir.1983). . The relevant period of delay generally runs from the time payment for legal services rendered would normally be due to the time of the receipt of the payment. In this case, however, the relevant period may be somewhat shorter because the district court awarded interest from the date of its order granting attorney’s fees to Jones. Record, vol. 1, p. 387. . The district court’s order stated that "$85.00 per hour for time expended on the merits of the case is a reasonable fee for [Jones] in accordance with the customary hourly fee charged for this type of litigation.” Record, vol. 1, p. 384. . The district court stated that it based its hourly rate figure on 1) the affidavit of Champs Lyons, Jr., one of Jones’ attorneys, 2) the testimony at the hearing for the application of the award of attorney’s fees, and 3) the Defendant’s Response to Post-Judgment Interrogatories. Record, vol. 1, pp. 383-84. The affidavit was dated February 8, 1983, Record, vol. 1, p. 306, and stated that "when I handle litigated matters on a strictly hourly basis, my regular rate is $95.00 an hour . . . .” Id. at 298. The use of the present tense suggests that the rate was current. The hearing testimony revealed that Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:

songer_appel2_8_3

B

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant. MINNEAPOLIS NAT. BANK OF MINNEAPOLIS, KAN., et al. v. LIBERTY NAT. BANK OF KANSAS CITY. No. 1028. Circuit Court of Appeals, Tenth Circuit. Aug. 7, 1934. La Rue Royee, of Salina, Kan. (C. W. Burch and B. I. Litowieh, both of Salina, Kan., on the brief), for appellants. Wallace Sutherland, of Kansas City, Mo. (A. L. Cooper, E. A. Neel, and William E. Kemp, all of Kansas City, Mo., on the brief), for appellee. Before PHILLIPS, MeDERMOTT, and BRATTON, Circuit Judges. BRATTON, Circuit Judge. This is a suit instituted by Liberty National Bank, of Kansas City, Mo., against Minneapolis National Bank, of Minneapolis, Ottawa County, Kan., a failed national bank -in process of liquidation, and J. G. Hammond, its receiver to establish a trust against the assets of the bank and to compel its payment as a preferred claim, or in the alternative as a common claim. Goldie C. Morton was engaged in the business of raising, buying, feeding, and fattening cattle in Ottawa county for sale on the market. For many years prior to the events giving rise to this litigation, he had been a customer of Minneapolis Bank of which Roy C. Gafford was president. and directing officer. Morton and Gafford were intimate personal friends, and for about fifteen years Gafford bad arranged credit for Morton with which to conduct his business. Gafford frequently charged Morton’s notes to his account in the bank as they matured, paying them in that manner. The financial needs of cattle growers in that part of the state were beyond the ability of the local banks to serve. As a result, the officers of the hanks located in Ottawa eounty organized the Central Kansas Cattle Loan Company which made loans to stockmen and rediscounted the notes with outside banks. The Guaranteed Finance Investment Company was organized later for a similar1 purpose. Gafford was elected president of both companies. Morton secured loans through one and perhaps both of those sources, and plaintiff rediscounted notes and mortgages executed by other stockmen in that manner. But in October, 1928, plaintiff discontinued that practice and determined to take future notes and mortgages direct from the stoekgrower to itself, using its own forms for that purpose. It made Morton a loan of $17,000 in .December, 1928, taking therefor a note due ninety-one days thereafter secured by a chattel morí gage on two hundred and sixty head of cattle then being fed for the market, one hundred and fifty hogs, and five thousand bushels of corn. Gafford arranged with plaintiff to make the loan. The, proceeds, less a discount charge thereon, were credited to the Minneapolis bank on the hooks of plaintiff. The Minneapolis bank then credited Morton’s account with a corresponding sum. The mortgage was filed for record in Ottawa county four days after its execution and it forbade the sale or removal of the chattels from their then location without the written consent of the mortgagee. In January, 1929, less than a month after the noto and mortgage were executed and without plaintiff’s knowledge or consent, Morton shipped one hundred and forty head of the cattle to Kansas City and'sold them on the market, the sales being made by commission companies. The commission companies, proceeding through regular clearing house channels and in compliance with general directions theretofore received from the Minneapolis bank, deposited the proceeds, aggregating $13,806.32, in Fidelity National Bank and that hank planed them to the credit of the Minneapolis bank. The credit slips relating thereto merely stated that such deposits had been made by direction of Morton. The Minneapolis bank thereupon credited Morton’s checking account with that sum. It was subsequently checked out, the account being overdrawn on January 22d, 23d, and 26th. The Minneapolis hank closed February 9th. At that time the balance in Morton’s account was $6,963.26, but he owed the bank about $21,000, and the receiver thereafter credited the note with the balance on deposit. Plaintiff was a depositary of the Minneapolis bank, and at the time the latter closed its balance on deposit with the former was $2,2,67.17. After learning all the facts, plaintiff instituted suits in Missouri to recover from the commission companies and certain packing companies the value of the cattle sold by the-former and purchased by the latter. A settlement was effected through which the commission companies paid plaintiff $3,600, of which $600 was applied to attorneys’ fees and expenses and $3,000 to the Morton, note. Plaintiff also applied the balance on its books to the credit of the Minneapolis bank on the note in the nature of a set-off. These credits, together with others not involved here, reduced the note to $5,686.03. Plaintiff sought recovery in that amount and its establishment as a preferred claim, contending that at the time the Minneapolis hank received the deposits made to its credit in the Fidelity National Bank, at the time it placed the sum to Morton’s credit, and at the time it was subsequently withdrawn and expended, it knew that the money represented proceeds of sales of cattle covered by plaintiff’s mortgage and that its acts constituted a wrongful misappropriation, misapplication, and retention of such money. Defendants denied knowledge of the source of the money in question and specifically contended, among other things, that by the institution of the suits against the commission companies and the packing companies, with knowledge of all the facts, plaintiff barred and estopped itself to maintain this action. A cross-petition was interposed, in which it was alleged that plaintiff wrongfully applied the $3,267.17 on the Morton note as a set-off, and recovery for that sum was prayed. The court rendered judgment for plaintiff for the full amount sought, established and allowed it as a preferred claim, directed the receiver to pay it as such, and denied recovery on the cross-petition. The ease is here on appeal. It is urged at the outset that plaintiff erroneously instituted this action at law. The relief sought is equitable in nature, that is io impress a trust upon the assets of the bank now in the custody of the receiver, but the parties treated the suit as one at law. No request was made that it be transferred to the equity side of the docket and the question now raised was not otherwise presented to the trial court. Trial by jury was waived in writing.' All issues were tried fully and defendants were not prejudiced by the procedure followed. Arkansas Anthracite Coal & Land Co. v. Stokes (C. C. A.) 277 F. 625. In these circumstances, we treat the case as one in equity and review the record accordingly. Liberty Oil Co. v. Condon Nat. Bank, 260 U. S. 235, 43 S. Ct. 118, 67 L. Ed. 232. The effect of the institution of the suits against the commission companies and the packing companies in Missouri, followed by-settlement and payment of a substantial sum, is the next question engaging our attention. The suits were plainly for conversion of mortgaged property with recovery of the price paid or the market value of the chattels as the remedy. The doctrine of election of remedies is a harsh one disfavored in equity, and should not be unduly extended. Friedrichsen v. Renard, 247 U. S. 207, 38 S. Ct. 450, 62 L. Ed. 1075; Metropolitan Life Ins. Co. v. Childs Co., 230 N. Y. 285, 130 N. E. 295, 14 A. L. R. 658. But if two inconsistent remedies are' available, the exercise of one by any decisive act such as the institution of a suit with full knowledge of the facts, precludes the subsequent exercise of the other. Upon learning all the facts plaintiff was entitled either to disaffirm the voidable transaction and sue for recovery of the converted chattels and if recovery in specie could not be had, then for their market value, or to affirm the sale and pursue the proceeds thereof into the hands of the Minneapolis bank if it had knowledge of the facts relating to the source of the fund. Both remedies were appropriate, but they were inconsistent because the former rested upon a disaffirmance of the transaction and the latter upon ratification of it. The institution of the suits in Missouri, followed by settlement and acceptance of the money paid in discharge of the claim there asserted, constituted an election to repudiate the transaction in toto and to claim the cattle or their value. After thus exercising its election of remedy, plaintiff cannot now affirm the sale, pursue the proceeds thereof and assert that the Minneapolis bank received them impressed with a trust in its favor. Those positions are inconsistent. Taking one constitutes an estoppel against assuming the other. United States v. Oregon Lumber Co., 260 U. S. 290, 43 S. Ct. 100, 67 L. Ed. 261; Midland Savings & Loan Co. v. Trademen’s Nat. Bank (C. C. A.) 57 F.(2d) 686. In an effort to avoid that barrier, plaintiff relies upon a provision contained in the written stipulation through which the suits in Missouri were settled, in which it was recited that the parties thereto should not be prejudiced in their right to file claims, suits or actions against the Minneapolis bank or its receiver. That does not change the situation. Neither the Minneapolis bank nor its receiver was a party to the agreement and hence they are not foreclosed from effectively urging the institution of the suits and their settlement in the manner indicated as an estoppel against plaintiff now asserting an inconsistent remedy here. Coming to the cross-petition, the doctrine of set-off or counterclaim usually implies and rests upon the existence of reciprocal demands, mutual and subsisting between the same parties. It cannot be invoked if there is lack of mutuality in obligation. For the reasons previously discussed, the Minneapolis bank was not indebted to plaintiff in any sum. It follows that plaintiff wrongfully applied the deposit because there was no obligation to off-set, nor any debt against which it could be charged as a counterclaim. Libby v. Hopkins, 104 U. S. 303, 26 L. Ed. 769. The receiver, therefore, was entitled to judgment against plaintiff on the cross-petition. The judgment is reversed, and the cause remanded for further proceedings not inconsistent herewith. Reversed and remanded. Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant? A. trustee in bankruptcy - institution B. trustee in bankruptcy - individual C. executor or administrator of estate - institution D. executor or administrator of estate - individual E. trustees of private and charitable trusts - institution F. trustee of private and charitable trust - individual G. conservators, guardians and court appointed trustees for minors, mentally incompetent H. other fiduciary or trustee I. specific subcategory 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. UNITED STATES v. JIM et al. No. 71-1509. Decided November 20, 1972 Together with No. 71-1612, Utah et al. v. Jim et al., on appeal from the same court. Per Curiam. The motion of the Navajo Tribe of Indians for leave to file a brief as amicus curiae in No. 71-1509, is granted. These cases are here on appeal from a judgment of the District Court for the District of Utah that declared an Act of Congress to be unconstitutional. Jurisdiction in this Court is conferred by 28 U. S. C. §§ 1252 and 2101 (a). In 1933, the Congress withdrew certain lands in Utah, known as the “Aneth Extension,” from the public domain and added them to the Navajo Reservation. Though no oil or gas was believed to be located on these lands, it was provided that should such mineral resources be produced in commercial quantities, “37% per centum of the net royalties accruing therefrom derived from tribal leases shall be paid to the State of Utah: Provided, That said 37% per centum of said royalties shall be expended by the State of Utah in the tuition of Indian children in white schools and/or in the building or maintenance of roads across the lands described in section 1 hereof, or for the benefit of the Indians residing therein.” 47 Stat. 1418. The remaining 62%% of the royalties generated by any such tribal mineral leases were, by implication, to go to the Navajo tribe. After the passage of the Act, oil and gas were discovered on the Aneth Extension, and royalties were divided pursuant to the statute. The State of Utah created an Indian Affairs Commission to manage and expend the funds received by the State under the Act. As time went on, the language of the 1933 Act came to create administrative problems regarding the expenditure of the funds channeled through the State. A report of the Senate Committee on Interior and Insular Affairs noted in 1967 that the word “tuition” in the 1933 Act had created uncertainty as to the breadth of the educational program the State was authorized to finance from the royalty funds. The report also noted a difficulty in discerning precisely who was properly a beneficiary of the funds, since “many Navajo families do not live permanently within the lands set aside in 1933, but move back and forth between this area and other locations.” S. Rep. No. 710, 90th Cong., 1st Sess., 2 (1967). To make the administration of these funds more flexible and to spread the benefits of the royalties more broadly among the Navajo community, the Congress enacted a statute in 1968 that directed the State to expend the 37%% of royalties “for the health, education, and general welfare of the Navajo Indians residing in San Juan County.” 82 Stat. 121. This statutory change expanded the pool of beneficiaries substantially, and a class action was brought on behalf of the residents of the Aneth Extension, seeking inter alia a declaration that the statute was an unconstitutional taking of property without just compensation. The District Court concluded that the 1933 Act vested certain property rights in the plaintiffs, and held the 1968 Act, with its changed pool of beneficiaries, to be unconstitutional. The judgment of the District Court is in error. Congress in 1933 did not create constitutionally protected property rights in the appellees. The Aneth Extension was added to a tribal reservation, and the leases which give rise to mineral royalties are tribal leases. It is settled that “[w]hatever title the Indians have is in the tribe, and not in the individuals, although held by the tribe for the common use and equal benefit of all the members.” Cherokee Nation v. Hitchcock, 187 U. S. 294, 307; Delaware Indians v. Cherokee Nation, 193 U. S. 127, 136. To be sure, the 1933 Act established a pattern of distribution which benefited the appellees more than other Indians on the Navajo Reservation. But it was well within the power of Congress to alter that distributional scheme. In Gritts v. Fisher, 224 U. S. 640, this Court approved a congressional enlargement of the pool of Indians who were to benefit from a distribution of tribal property. There, too, an earlier statute had established a more limited entitlement. “But it is said that the act of 1902 contemplated that they [the beneficiaries under the first enactment] alone should receive allotments and be the participants in the distribution of the remaining lands, and also of the funds, of the tribe. No doubt such, was the purport of the act. But that, in our opinion, did not confer upon them any vested right such as would disable Congress from thereafter making provision for admitting newly born members of the tribe to the allotment and distribution. The difficulty with the appellants’ contention is that it treats the act of 1902 as a contract, when 'it is only an act of Congress and can have no greater effect.’ ... It was but an exertion of the administrative control of the Government over the tribal property of tribal Indians, and was subject to change by Congress . . . .” Id., at 648. Congress has not deprived the Navajo of the benefits of mineral deposits on their tribal lands. It has merely chosen to re-allocate the 37%% of royalties which flow through the State in a more efficient and equitable manner. This was well within the power of Congress to do. As no “property,” in a Fifth Amendment sense, was conferred upon residents of the Aneth Extension by the 1933 Act, no violation of the Fifth Amendment was effected by the 1968 legislation. The judgment of the District Court is Reversed. The decision of the District Court is unreported. While the 1933 Act remained in effect, the District Court properly insisted that the Utah State Indian Affairs Commission comply with the statutory formula for disbursements. See Sakezzie v. Utah Indian Affairs Comm’n, 198 F. Supp. 218 (declaratory judgment); 215 F. Supp. 12 (supplemental relief). We intimate no view as to the rights a tribe might have if Congress were to deprive it of the value of mineral royalties generated by tribal lands. Question: Did administrative action occur in the context of the case? A. No B. Yes 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. BUDER et al. v. FRANZ et al., and three other cases. Circuit Court of Appeals, Eighth Circuit. May 16, 1928. Nos. 7903, 7904, 7906, 7911. 1. Action <@=>62 — Suit by remaindermen against trustees of life tenant before life tenant’s death, for accounting as to securities, held not premature, where trustees denied interest of remaindermen. Where life tenant placed securities in trust under agreement that all of the life tenant’s property should be held by the trustees to be administered as part of life tenant’s estate, and trustees’ bond was fixed at an amount far below the worth of the securities, and trustees’ power extended to sale and transfer thereof, remaindermen had right to sue the trustees for an accounting before death of life tenant; trustees having refused accounting and denied remaindermen’s interest. 2. Judgment <©=>736 — Decree that life tenant was entitled to usufruct, benefit, income, profits, and earnings of property held not res judicata of right of remaindermen to have increases in corporate securities added to corpus of estate. In suit brought by remaindermen in state court to determine nature and extent of their interests under devise, adjudication that testator’s widow became “entitled to all of the usufruct and benefit of all of the property of the said deceased, and to all the income, profits, and earnings thereof,” as life tenant, held not res judicata of right of remaindermen to have stock dividends and other increases in corporate securities decreed a part of the corpus of the estate, as distinguished from the property of the life tenant. 3. Judgment <©=>736 — Amount of bond required of trustees in suit by remaindermen held not res judicata of value of remaindermen’s in- ' terest. Requirement by court, in remaindermen’s suit for determination of their interests under will, that trustees give bond in specified amount, held not res judicata of issue of value of remaindermen’s estate, where court made no finding that the amount of the bond was the amount of the value of the remainder of the estate or of the entire estate, and bond was given partly to protect the life tenant. 4. Estoppel <@=>78( I) — Remaindermen held not estopped to claim interest in property and securities held by life tenant’s trustees, by agreement for exercise of rights to purchase additional stock. Agreement between trustees of life tenant, life tenant, and remaindermen for exercise of certain rights given by corporation, in which estate held stock, to take additional stock, and agreement to save trustees harmless in making advancements for purpose of exercising such rights, held not to estop remaindermen from asserting claims to remainder interest under will in property held by the trustees, since the right to subscribe for additional stock was that of the remaindermen, and not of the life tenant. 5. Trusts <©=>272(3) — Life tenant and her trus- ■ tee had no right to additional stock purchased pursuant to stock rights attached to stock constituting part of corpus of trust. Rights given estate as stockholder to purchase additional stock in corporation constituted part of corpus of estate belonging to remainder-men, and only interest of life tenant therein was to the income from the stock purchased under such rights, if such purchase was by funds from the corpus of the trust, and life tenant and her trustees could not appropriate these rights through exercise thereof with the life tenant’s money. 6. Estoppel <©=>78(1) — Remaindermen held not estopped to assert interest in securities by agreement of life tenant, or by assumption of life tenant’s trustees, relative to exercise of rights to take additional stock. Remaindermen held not estopped to assert interest in securities held by trustees of life tenant on account of agreement of life tenant that the stock distributed under exercise of rights to take additional stock might be treated as a partial distribution of her estate, or by assumption indulged in by trustees at time of agreement for exercise of right to take additional stock. 7. Trusts <©=>272(3) — Dividends on stock in trust estate are part of corpus of estate. Stock dividends on stock held in trust estate are part of corpus, and not income from the estate. 8. Wills <@=>684(3) — Increase in stock in residuary estate through exchange and stock dividends held part of corpus, not passing to life tenant as income. Under will whereby testator gave widow residue of estate during period of her natural life, and devised remainder in equal shares to his children after her death, shares of stock reeeived in exchange for shares constituting part of residuary estate, increase resulting in the exchange, and increase in amount of stock in form of stock dividends constituted part of corpus of estate, to be held for remaindermen, and did not pass to life tenant as income. 9. Wills <@=>684(3) — In absence of contrary direction, testator is' presumed to have bequeathed stock subject to regular action of corporation as regards determination of principal and income on stock. Owner of stock may make such disposition thereof as he sees fit, but, where he has given no special direction on the question of what shall be considered principal and what income, it is presumed that he intended question should depend on the regular action of the corporation with regard to its shares. 10. Life estates <@=>5 — Life tenant is in a sense trustee for remaindermen, and is liable for waste. Life tenant is, in a sense, a trustee for the remaindermen, with right to possess the property and enjoy income during lifetime, and with liability for waste to the corpus of the estate. 11. Executors and administrators <@=>3(I)— Remainderman, on life tenant’s death, takes directly without administration. Remainderman, on death of life tenant, is entitled to receive directly property as to which tenant had only life estate and no administration can be had. 12. Trusts <@=>225 — Determination as to who shall bear expense of trustees’ bonds rests largely in sound discretion of chancellor! Determination as to who shall pay expense of procuring bonds for trustees is matter resting largely in sound discretion of chancellor, expense being usually placed on trust estate. 13. Trusts <@=>225 — Court properly required remaindermen specifically protected by additional bond from life tenant’s trustees to bear expense of bond. Where trustees appointed by life tenant to care for property of estate were required to give additional bond solely for protection of interests of specified remaindermen, requirement that the remaindermen so protected bear the expense of the bond was proper. 14. Trusts <@=>161 — Decree that life tenant’s trustees give joint bond for protection of remaindermen’s interests should be modified, by providing bond separate as to each interest at election of owners of such interests. Where trial court in suit by remaindermen against life-tenant’s trustees for accounting required joint bond iu sum considerably below the value of the remaindermen’s interests, decree should be modified by giving remaindermen opportunity to require separate bonds in sums not exceeding that of the joint bond. 15. Trusts <@=>227 — Life tenant’s trustees, denying right of remaindermen, held chargeable individually with costs in accounting suit by remaindermen. In suit by remaindermen against life tenant’s trustees for an accounting as to remaindermen’s interest, which the trustees and life tenant denied, trustees, whose course of conduct compelled litigation, were properly chargeable with costs in their individual capacity, on re- • maindermen’s.recovery. Appeal from the District Court of the United States for the Eastern District of Missouri; Charles B. Faris, Judge. Suit by Ehrhardt W. Franz against Gustavus A. Buder, the Mississippi Valley Trust Company, as administrator of the estate of Walter G. Franz, deceased, Earl F. Nelson, as guardian ad litem, and others, in which -the two defendants last named and others joined in the plaintiff’s prayer for relief. From the decree, the defendant first named and others appeal, and plaintiff and the two last-named defendants and others cross-appeal. Modified and affirmed. Osear E. Buder and G. A. Buder, Jr., both of St. Louis, Mo. (A. W. Wenger and E. E. Schowengerdt, both of St. Louis, Mo., on the brief), for Gustavus A. Buder and others. S. Mayner Wallace, of St. Louis, Mo. (Allen MeReynolds, of Carthage, Mo., on the brief), for Ehrhardt W. Franz. T. M. Pierce, of St. Louis, Mo. (Samuel H. Liberman, of St. Louis, Mo., John B. Hollister, of Cincinnati, Ohio-, and A. Holt Roudebush, of St. Louis, Mo., on the brief), for Mississippi Valley Trust Co. Earl F. Nelson, of St. Louis, Mo. (Wilfley, Williams, McIntyre & Nelson, of St. Louis, Mo., on the brief), for Earl F. Nelson. Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge. STONE, Circuit Judge. This litigation has been before this court three times — once, on questions of jurisdiction and parties (11 F. [2d] 854); once, on questions of practice and procedure, involving the modification of the order of this court on the above appeal (11 F.[2d] 854, 858); once, on an ancillary bill to protect and preserve the jurisdiction of the trial court (15 F.[2d] 797). The first trial was upon the merits but, as the decree thereon was a dismissal of the bill for lack of necessary and indispensable parties, there was no determination of the merits. On that appeal [our No. 7019,11 F.(2d) 854], counsel argued various points on the merits but, as this court, thought that necessary and indispensable parties were lacking, it did not examine the merits except so far as to answer the questions as to parties and jurisdiction. On the return to the trial court, the bill was amended bringing in all interested parties .and the second trial and decree were upon the merits. Generally speaking, the result of that decree was to grant the relief sought in the bill and by the interveners. From that result, the main appeal herein is taken. There are cross-appeals on costs and concerning the bonds required to be given under the decree. • I. The Main Appeal. These appellants argue their assignments under five headings. There is no material conflict in the evidence. The issues are as to the legal effect of the evidence. For an understanding of these issues an outline will be given of the material evidence with such further detailed statement, in connection with each issue, as may be necessary to develop the situation. Prior to February 11, 1898, Ehrhardt D. Franz died testate in St. Louis, Mo., leaving an estate consisting (besides household goods and a small amount of cash) of (1) an undetermined interest in bonds, inventoried at $2,543.50; (2) bonds, inventoried at $24,-750; (3) shares in various corporations, valued at $55,185; (4) notes, inventoried at $14,307.50; (5) insurance, inventoried at $1,000; (6) thirteen pieces of real estate. The residuary portion of his will was as follows : “The rest, residue and remainder of my estate, whether real, personal or mixed property, I give, bequeath and devise unto my beloved wife Sophie Franz, for and during the period of her natural life. “After the termination of the life estate of my wife, I give, bequeath and devise the remainder in equal shares, share and share alike, unto my children, Minna, Johanna, Ehrhardt, Ernest, Amanda, Gustav, Walter, Otto, Henrietta and Adelheide, and unto their heirs and assigns forever.” The estate was administered; the executrix discharged on March 10, 1900; and the residuary assets turned over to the wife (Sophie Franz) who was then 59 years old. Among the assets of the estate turned over to Sophie Franz (in 1898) were 210 shares of the American Arithmometer Company. Thereafter, that company declared stock dividends of a like amount and, still later, the Burroughs Adding Machine Company acquired the assets and business of the Arithmometer Company and exchanged 4,-200 of its shares for the above 420 shares in the Arithmometer Company. All of this took place by 1905. January 30, 1909, Sophie Franz executed a trust agreement with G. A. Franz (one of the sons) and G. A. Buder (who had been counsel for the deceased, the estate, and later, of Mrs. Franz).. This instrument conveyed from her to Franz and Buder, as trustees: “All her right, title and interest of every kind and nature of, in and to the following described stocks, bonds, notes, mortgages, deeds of trust, obligations, securities, and assets now held, owned and controlled by her in her own right as her absolute property, or as life tenant under the last will and testament of E. D. Franz, deceased, to which reference is hereby made, or whether held, owned or controlled in either one or both of said capacities and more particularly described as follows, to wit: * * “3. Forty-two hundred (4200) shares of the capital stock of the Burroughs Adding Machine Company, evidenced by certificate No.-, issued to Sophie Franz, said certificate including and embracing two hundred ten (210) shares of the capital stock of the American Arithmometer Company of St. Louis, Missouri, of the par value of one hundred dollars ($100.00), per share, inventoried as part of the estate of E. D. Franz, deceased; the said American Arithmometer Company having changed its name to Burroughs Adding Machine Company, and being now located in the city of Detroit, Michigan, reference being hereby made to the inventory of the estate of the said E. D. Franz, deceased. * * * “7. Any and all other assets, securities, bonds, stocks, notes) mortgages, deeds of trust, collaterals, commercial paper, or other obligations received, acquired, held or owned by the undersigned, under and by virtue of the last will and testament of Ehrhardt D. Franz, deceased, dated August 9th, 1897, and duly filed and admitted to probate in the probate court of the eity of St. Louis, Missouri, said court having jurisdiction of said estate, said will appearing of record in the recorder’s office, of said city of St. Louis, Missouri, in Book No. 1441, page 443, to which said last will and testament reference is hereby made, and the same by such reference for all necessary purposes made part thereof.” The powers of the trustees were to collect and recover: “All profits, and income, dividends, interest, earnings, and principal of the said stocks * * * or other assets, * * * and shall have and are hereby given. and granted full power and authority, so far as is possible under the will and testament of said Ehrhardt D. Franz, deceased, to sell, assign, exchange, transfer, convey, mortgage, pledge, incumber, or otherwise dispose of any or all of the said stocks, bonds, notes, obligations, mortgages, deeds of trust, collaterals, and securities, and the principal and proceeds thereof to them hereby transferred, assigned, conveyed and delivered, whenever in their judgment they deem it proper to do so,-upon such terms, conditions, and provisions as they may deem best and for the best interests of the trust estate of the undersigned hereby created. “In ease of such conveyance, transfer, assignment, exchange, or other disposal of any of the assets, or any part of the assets, to them hereby conveyed, assigned, transferred, and delivered, they shall have and are hereby granted full power, right, and authority, and are hereby empowered, directed and authorized to invest and reinvest the proceeds of any such sale, transfer, or exchange, including principal, in such manner and in such form and securities as they may deem proper and for the best interests of said party of the first part and the trust estate hereby created.” Also they were empowered: “To expend, disburse, retain, and pay out of said trust estate and funds, any and all assessments, charges and taxes, ■whether general or special, attorneys’ fees, outlays, compensation, charges and costs of administration, necessary, incident or essential to and for the care, protection, preservation, administration, management and distribution of the assets hereby conveyed or hereafter acquired and are authorized and empowered to make, create, and pay all necessary debts, expenses and outlays for repairs, betterments, or improvements, which they may deem necessary or proper for the protection, preservation, improvement, sale or transfer of any and all real estate of which they may become owners as such trustees, whether acquired by foreclosure or otherwise, and are authorized and empowered to make any and all such other payments, outlays, and expenditures as they may deem necessary, expedient or proper for the protection of such real estate and the assets of such trust estate.” Certain disbursements to Mrs. Franz and to the children (or their heirs) were provided for as follows: $4,000 annually “shall” be paid to Mrs. Franz “providing the income, rents, earnings, and profits of the estate which they may hold and securities hereby conveyed, admit of such payments being made,” with the power, in named emergencies, to “in their discretion increase said quarterly payment to her to such an amount, and for such time and upon such terms and conditions as they may deem best and proper”; after these payments to Mrs. Franz, the trustees “may pay” $625.00 quarterly to each of the ten children (or the heirs thereof) but: “In the event the earnings, income, rents, receipts and profits received by said trustees are not sufficient to admit of such payment quarterly to each of the distributees above named and cannot be conveniently made, then the said trustees, after so making payment to said Sophie Franz, of one thousand dollars ($1,000.00) quarterly, or such other sum as they may deem necessary as aforesaid may pay to each of the said distributees such sum as they may deem proper, but in no event and under no circumstances shall the said payment encroach upon or impair the principal and assets of the trust estate hereby created.” The instrument provided, also, that semiannual statements of the condition of the trust estate should be made to Mrs. Franz and: “If it appears from the statement of said trustees that there remains on hand any earnings, income, rents, receipts and profits from the said trust estate, which have not been drawn by or set aside, or paid out for account of said Sophie Franz, or to the distributees above mentioned or otherwise expended as herein provided, such sums shall be invested and become and remain as part principal of said trust estate hereby created.” The payments were to be made to Mrs. Franz during her life: “And upon her death all these stocks, bonds, notes, collaterals, commercial paper, mortgages, deeds of trust, securities or other assets to them hereby conveyed or hereafter acquired or by them held, owned or controlled as such trustees, and any and all real estate by them acquired as such trustees, shall be held by them for account of the estate of said Sophie Franz, to be administered by the probate court of the city of St. Louis, Missouri, in accordance with the last will and testament of said Sophie Franz, and in accordance with the laws of the state of Missouri in such ease made and provided.” The trustees were required to employ “Buder & Buder as their counsel and attorneys in the management and administration of said estate” and to appoint Oscar E. Buder (member of Buder & Buder) as the successor of either trustee. The certificates of stock in the Burroughs Company (and in two other companies — 30 shares of the Germania Savings Institution and 50 shares of the Third National Bank of St. Louis, Mo.) were to remain in a designated safety deposit box which could not be opened unless Mrs. Franz and both trustees were present-^he to have no power to remove any of such stock without “the consent and in the presence of both of said trustees.” What was to be done with other securities or valuable papers is not designated although 300 shares in two other companies and 20 bonds ($1,000 each) are described therein. Also an irrevocable power of attorney given the trustees to vote the Burroughs, Germania and Third National stock at all stockholders’ meetings and for all purposes — nothing said as to the stock in other companies. There was no requirement that any bond be given by the trustees. About sixty days after this trust deed was executed, Ehrhardt W. Franz (one of the sons) brought an action in the state court, at St. Louis, Missouri, attacking the validity of the trust agreement, seeking to have it set aside, a receiver appointed and for other relief. The decree therein sustained and construed the trust agreement and required the trustees to give a bond of $100,000 “for the use and benefit of any and all parties interested in said trust estate” and to charge the cost and expense thereof to the trust estate. Thereafter, dissention arose between Ehrhardt W. Franz (one of the sons) and the trustees which resulted in this suit. The parties defendant were Mrs. Franz, the trustees, the six children then living and the heirs, guardians of heirs and administrators (or executors) of three children who had died after the father, Ehrhardt D. Franz. The amended bill sets forth that the trust estate, coming from the estate of the father, exceeds three million dollars in value and includes 31,-500 non-par shares and 7,875 preferred shares in the Burroughs Adding Machine Company besides other stocks, bonds and securities; that the bond of $100,000 is “wholly inadequate in amount”; that the trustees refuse to give plaintiff “any information or account” concerning the “present nature, condition, extent and value of the various properties taken by them as aforesaid from the life tenant”; that the trustees are asserting and contending that “plaintiff no longer has or owns his said remainder interest in said properties.” The prayer is for disclosure and accounting, for restraint in disposing of the Burroughs stock, for a bond to plaintiff to protect his remainder interest, for an adjudication of the vested interest of plaintiff, and for general relief. The administrator of the estates of Ernest H. Franz and of Walter G. Franz (two deceased sons) and the guardians ad litem of several grandchildren (heirs of deceased children of Ehrhardt D. Franz) answered, praying substantially the same relief as sought in the amended bill. Answers were filed by G. A. Buder (one of the trustees), jointly by Mrs. Franz and the trustees, G. A. Franz and G. A. Buder, by the other defendants jointly. In so far as the issues presented on this main appeal are involved, those answers were as follows: First, that the action was premature because the parties seeking relief have, until the death of Mrs. Franz, “no right to the possession or enjoyment of any remainder interest, if any he has, and no right to have the amount or value of such interest, if any, determined or ascertained.” Second, denies the right of such parties to “demand any security.” Third, denies any duty to furnish any information or account. Fourth, estoppel to assail trust agreement and bound thereby because of receipt of payments thereunder. Fifth, that the decree in the state court suit found that “any and all stock dividends were part of the earnings, usufruct, profits and income of said estate to which the life-tenant was entitled in her own right,” which made the interest of the children res adjudieata. Sixth, estoppel because of agreements made January 7 and 30,1920. Seventh, the parties seeking relief have “no interest, remainder or otherwise, under the will of * * * Ehrhardt D. Franz” because of certain advancements and payments in excess of the value of their shares in the estate of Ehrhardt D. Franz, deceased. The decree herein determined that the increase of Burroughs stock (as well as certain other property) belonged to the corpus of the residuary estate of Ehrhardt D. Franz, deceased; that the plaintiff had a one-tenth vested right, as remainderman under the will (the complaining defendants having similar rights); that such remaindermen will be entitled to possession thereof upon the death of Mrs. Franz, the life tenant; that the trustees file, within 30 days, a complete statement, under oath, of the property coming to their hands and their administration thereof, and, thereafter, render semiannual statements to the parties here asking relief; that the trustees, within 30 days, give bond for $500,000 for the “joint and several” protection of the parties here asking relief, said bond to be additional to the existing bond for $100,000 and the cost thereof to be paid by or charged to such parties. Jurisdiction was expressly retained to order an accounting and for other necessary orders and decrees. The costs of this proceeding to be paid by the trustees and charged “to the trust estate.” Issues on Main Appeal. Appellants argue here five matters. One is a matter of procedure — that this aetion is prematurely brought. Two are urged as a bar to recovery — res adjudieata and estoppel. Two have to do with the merits of the aetion on the main facts — the increase of Burroughs Company stock is income and, therefore, the property of the life tenant and the intent of the testator, Ehrhardt D. Franz. Premature Aetion. This contention is that while the life tenant survives, there can be no aetion to adjudicate title of the remaindermen or to protect the remainder estate. The present aetion does not involve nor seek to affect the enjoyment of possession or other rights of the life tenant. Its sole purpose is to protect from spoliation and loss property which is in possession of the life tenant, but alleged to belong to the estate coming to the remainder-men (with absolute right of possession upon death of the life tenant), and, as to which, the life tenant is entitled only to the income therefrom. Therefore, the legal issue is whether a remainderman is entitled to equitable relief to have protected property belonging to him in the rightful possession of the life tenant who is entitled to the income, for life,- therefrom. As a necessary incident to sueh relief (if allowable), the remainder-man must prove that he is such as to the property involved but this is not, a proceeding where the only or main purpose is to have the title of the remainderman adjudicated — it is a bona fide action to protect a remainder estate alleged to exist. Appellants rely upon several state cases and the following eases in the Supreme Court or in inferior federal courts: Williams v. Hagood, 98 U. S. 72, 25 L. Ed. 51; Marye v. Parsons, 114 U. S. 325, 5 S. Ct. 932, 962, 29 L. Ed. 205; Singer Mfg. Co. v. Wright, 141 U. S. 696, 12 S. Ct. 103, 35 L. Ed. 906; United States v. Evans, 213 U. S. 297, 29 S. Ct. 507, 53 L. Ed. 803; Muskrat v. United States, 219 U. S. 346, 31 S. Ct. 250, 55 L. Ed. 246; Arnold v. Garth (C. C.) 106 F. 13; Pluche v. Jones (C. C. A.) 54 F. 860; Preston v. Smith (C. C.) 26 F. 884. The Williams and Marye Cases involved the validity of state statutes relating to securities issued by the state and in each the court said that no existing or threatening injury was alleged and, therefore, the issue presented was purely abstract and courts would act only- upon legal rights actually in controversy. The Singer and Evans Cases were refused determination because the issues therein were purely moot. The Muskrat Case refused decision because the issue was not a justiciable controversy. The Arnold and Pluche Cases held merely that a statute of limitations did not begin to run against a remainderman until his right to possession accrued. The Preston Case (being, a ruling on demurrer to a bill) held the aetion was “more like an effort to establish a doubtful title than a proceeding to protect from serious wrong a clear or adjudicated title” (page 889), and that “only upon an adjudicated or a clear title will a court of equity issue an injunction to restrain waste” by the life tenant. Thus, it appears that none of the above eases are applicable here nor are any statements in the opinions therein except those above quoted from Judge Brewer in the Preston Case. Those expressions clearly imply that, at least under certain circumstances, sueh right of aetion would exist during^the life estate. However, the matter is not in doubt. In Cross v. Del Valle, 1 Wall. 5, at page 15,17 L. Ed. 515, the court said: “A remainderman may have a decree to protect the estate from waste, and have it so secured by the trustee as to protect his estate in expectancy. The court will interfere under all needful circumstances to protect his rights, but sueh eases do not come within the category of mere declaratory decrees as to future rights.” Undoubtedly, the same rule prevails in the state courts. See 23 E. C. L. 5791, where it is said: “One who has a vested remainder in land has a right to protect the estate, so that he may receive the same when it ought to come to him by the terms of the limitation, and may maintain a proper action for any injury to the inheritance, committed or threatened, whether by the tenant in possession on by a stranger.” Also, at page 580, it is said: “While a court of equity will not maintain a bill merely to declare future rights, it will interfere in all needful cases to protect the rights qf remaindermen.” Again, at page 581, the right of the remainderman to require security bond and accounting (the relief here sought and accorded by the trial court) is stated as follows: “Formerly it was the practice to exact from the tenant for life security that the property should be forthcoming on the happening of the contemplated event. This seeurity is still required in exceptional eases. But, before security for the forthcoming of the property at the termination of the life estate will be required, the remainder-man must have reasonable grounds to apprehend the loss or removal of the property, or that his rights are in danger. “139. Filing of Inventory. Unless the remainderman can show some necessity for exacting security, the only remedy which he now has is to require the tenant to make an inventory which shall show the property which he received, and to which the remainderman will become entitled upon the termination of the particular estate. And, though an inventory has been filed, the tenant, upon a proper showing of real danger, may be called on to account and be required to give bond. “140. Seizure and Impounding of Property. The property may also be seized and impounded for the protection of the remainderman. Should the tenant attempt to sell, or in any other mode waste or misuse the property, so as to threaten its destruction, the court may impound it, that is, take it into the hands of the court, by its officer,- and give the first taker the profits. The practice is to require, security for the lawful use of the property during the life estate, and if this is not given, then pursue the mode of seizing upon the property.” Also in 21 C. J. at page 996, § 153, it is said: “Since a remainderman has only an estate to vest in possession in futuro, he is entitled neither to actual nor to constructive possession of the property until the termination of the particular estate. He may however bring an action in equity during the lifetime of the life tenant to preserve the property, and, without taking actual possession to complete his title, he is entitled to all the remedies which may be necessary to protect and enforce his right at law.” Again, at page 1013, § 172, it is said: “Where the property is in the hands of a trustee any breach of trust or improper conduct on the part of the trustee is a ground for equitable relief, and where a trust deed has been set aside under a decree fraudulently obtained, the remainderman may maintain a bill to have the property restored to the original trust. If the trustee is already under a valid and'sufficient bond to protect the remainder interest, the remainderman is not entitled to any other relief; and the remainderman cannot, during the continuance of the" life estate, sue on the trustee’s bond to recover any part of the amount wasted, although he could proceed in equity to compel the trustee to bring the money into court to be invested. The remainderman may maintain a suit for the appointment of a new trustee and for an accounting.” Also at page 967, § 105, it is said: “Bight to Equitable Belief in General A remainderman or reversioner unless barred by laches, is entitled to come into equity by a bill quia timet for the protection of his interest when the property in the hands of a life tenant is in danger of loss, deterioration or injury, or when the life tenant is claiming a right to the property adverse to that of the remainderman.” Also, at page 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_r_fiduc

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Orie DUNN v. UNITED STATES (two cases). Circuit Court of Appeals, Sixth Circuit. June 14, 1928. Nos. 5192, 5193. Appeal from the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge. John T. Murphy, of Covington, Ky., for appellant. Sawyer A. Smith, U. S. Atty., of Covington, Ky. PER CURIAM. Dismissed pursuant to motion of counsel for appellant. Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number. Answer:

songer_respond1_1_3

J

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. NATIONAL LABOR RELATIONS BOARD, Petitioner v. PRINTERS SERVICE, INC., Photo-Composition Service, Inc., Respondent. No. 20376. United States Court of Appeals, Sixth Circuit. Dec. 14, 1970. Alice Andrews, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Nancy M. Sherman, Attys., N. L. R. B., Washington, D. C., on the brief, for petitioner. John H. Doesburg, Chicago, 111., for respondents. Before WEICK, McCREE, and MILLER, Circuit Judges. ORDER. This case is before the court upon the application of the National Labor Relations Board for enforcement of its order issued April 30, 1969, and reported at 175 N.L.R.B. No. 120. Reference is made to the Decision and Order of the Board and to the adopted findings and conclusions of the Trial Examiner for a statement of facts. Upon consideration of the briefs, oral arguments, and the entire record, the court concludes that the order of the Board is supported by substantial evidence on the record considered as a whole. It is ordered that the order of the Board be, and it hereby is, enforced. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:

songer_district

G

What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". Patricia Ann KEELER and William Joseph Keeler, Plaintiffs-Appellees, v. RICHARDS MANUFACTURING CO., INC., et al., Defendants-Appellants. No. 86-1201. United States Court of Appeals, Fifth Circuit. June 1, 1987. E. Earl Harcrow, Tim G. Sralla, Shannon, Gracey, Ratliff & Miller, Fort Worth, Tex., for defendants-appellants. Roger Turner, T. Ray Guy, Jennifer A. Youpa, Dallas, Tex., for plaintiffs-appellees. Before GARZA, WILLIAMS and GARWOOD, Circuit Judges. JERRE S. WILLIAMS, Circuit Judge: Defendants Richards Manufacturing Company and Richards Medical Company (collectively Richards) are appealing the judgment entered in favor of plaintiffs Patricia Keeler and her husband, William Keeler. The jury found that Richards had defectively manufactured a compression hip screw which broke after being implanted in Mrs. Keeler’s hip. The Keelers were awarded over five hundred thousand dollars in damages after 32% of the total award was deducted as that part of the damages caused by the fault of Mrs. Keel-er. Richards claims that the evidence is insufficient to support the verdict. I. Facts Patricia Keeler broke her hip on the evening of July 18, 1982, when she accidentally slipped and fell in a friend’s kitchen. She was taken to Plano General Hospital in Plano, Texas. Dr. Neal C. Small, an orthopedic surgeon at the hospital, decided to implant a compression hip screw into Mrs. Keeler’s broken hip in order to assist in the healing process. After the operation, Mrs. Keeler’s hip appeared to be mending normally, and she did not experience any unusual complications as a result of the surgery. On November 27, 1982, Mrs. Keeler entered Gaston Episcopal Hospital for additional surgery unrelated to her hip injury. A few days prior to her admission to the hospital, Mrs. Keeler reported experiencing a great deal of pain in her hip. Dr. William C. Head, Mrs. Keeler’s regular orthopedic surgeon, examined her and discovered that the compression hip screw had broken. The broken screw was replaced with a hip prosthesis. This surgical implant eventually proved to be unsuccessful, and a second hip prosthesis had to be installed in August 1984. Mr. and Mrs. Keeler filed this diversity action against Richards, the manufacturer and distributor of the broken hip screw, in the United States District Court. The Keelers alleged that the break in the compression hip screw was the result of a manufacturing or design defect, while Richards claimed that Mrs. Keeler had misused the screw by putting more than the recommended amount of weight on her hip. The jury determined that the screw had been defectively manufactured and that the defect was a producing cause of appellees’ damages. The jury also found that appellants’ defective manufacture of the compression hip screw breached an express warranty and an implied warranty of merchantability. The jury did not make a finding that the breach of warranty was committed knowingly or that the compression hip screw was defectively designed. Additionally, Mrs. Keeler was determined to have been misusing the screw at the time the screw apparently broke because she put excess pressure on it by lifting a portable television set. The jury found her thirty-two percent at fault for the damages she sustained. The jury awarded Mrs. Keeler the following amounts of damages: ' A. Past Physical Pain and Mental Anguish $100,000.00 B. Future Physical Pain and Mental Anguish $100,000.00 C. Past Physical Impairment $100,000.00 D. Future Physical Impairment $150,000.00 E. Past Medical Expenses $ 39,400.00 F. Future Medical Expenses $150,000.00 G. Past Disfigurement $ 50,000.00 H. Future Disfigurement $100,000.00 Mr. Keeler was compensated for his losses as follows: A. Past Lost Consortium $ 20,000.00 B. Future Lost Consortium $ 20,000.00 Appellants moved for a directed verdict before submission of the case to the jury and for judgment notwithstanding the verdict. They further requested a remittitur of the damages portion of the jury award or a new trial. The district court denied all of appellants’ motions and, on February 26, 1986, entered judgment agaiiist appellants in the amounts of $536,790 plus prejudgment interest for Mrs. Keeler, $27,200 plus prejudgment interest for Mr. Keeler, and $22,000 for attorneys’ fees. There was timely notice of appeal. II. Defective Manufacture of the Compression Hip Screw Appellants claim that the district court erred in denying their motion for directed verdict, motion for judgment notwithstanding the verdict, and alternatively, motion for new trial on the ground that the evidence presented at trial did not support the jury’s finding that the compression hip screw was defectively manufactured. A jury verdict, however, may be reversed and a new trial ordered only if the verdict is against the great weight of the evidence. Smith v. Transworld Drilling Co., 773 F.2d 610, 612 (5th Cir.1985). “The decision to grant or deny a motion for new trial generally is within the sound discretion of the trial court and will not be disturbed unless there is an abuse of thát discretion or misapprehension of the law.” Dixon v. International Harvester Co., 754 F.2d 573, 586 (5th Cir.1985). The standard for granting a motion for directed verdict or motion for judgment notwithstanding the verdict is even more stringent: [T]he Court should consider all of the evidence ... but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting the motion is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusion's, the motions should be denied____ [I]t is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses. Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en banc). After reviewing the record, we find that there is ample evidence to support the jury’s verdict and that the district court did not err in refusing to grant appellants’ motions. Two of appellees’ expert witnesses, John Harcourt and Dr. Gary Hansen, testified that the lag screw component of the compression hip screw contained at least four irregularities which they considered to be manufacturing defects. They also concluded that any one of the identified defects could have been a producing causé of Mrs. Keeler’s injuries. The first manufacturing defect they found concerned the length of the lag screw’s internal threads. Appellants’ design specifications required the lag screw's internal threads to be not more than 1.125 inches in length. John Harcourt testified that he measured the subject lag screw and found it to be 1.1875 inches in length. Dr. Hansen also examined the subject lag screw and confirmed that, in his opinion, the internal threads were “not in conformance with blueprint specifications.” Mr. Harcourt and Dr. Hansen testified that the presence of excess internal threads would weaken the lag screw by creating an area of unintentional stress concentration. They stated that, as a result of this defect, the lag screw’s resistence to fatigue failure was decreased, which eventually caused the screw to break. The second defect was evidenced by testimony that an unacceptable amount of metal debris was present in the lag screw at the time it was inserted into Mrs. Keel-er’s hip. John Harcourt testified that this debris would interfere with the surgeon’s ability to compress the screw properly, thereby allowing the bones greater than normal movement. In turn, this failure to tighten properly would place a higher level of stress on the screw. Mr. Harcourt considered the resultant stress to be a producing cause of the screw’s failure. The claim of a third defect was based upon evidence that the subject screw’s radius was slightly less than that of an exemplar hip screw furnished by Richards. John Harcourt testified that the smaller radius would result in greater stress concentration and that the subject screw was not as strong as it otherwise should have been. Finally, as a fourth defect, there was also some testimony that the hip screw failed to comply with the American Society of Testing Materials’ (A.S.T.M.’s) standard of 35% ductility. Appellants undertook to discredit the value and accuracy of the evidence concerning the alleged manufacturing defects. In effect, they are only relitigating the issues that already have been decided by the jury. They claim, for example, that appellees’ experts were incorrect in their measurements of the lag screw and that the internal threads were less than 1.125 inches in length. They also contend that any debris which may have been present in the lag screw could not have been a producing cause of Mrs. Keeler’s injuries because x-rays revealed that the hip screw had functioned properly in pulling Mrs. Keeler’s bones together and that the hip appeared to be healing satisfactorily. The jury, however, heard these contentions and chose to believe appellees’ witnesses rather than those of appellants. There is sufficient evidence to support the jury’s finding that Richards defectively manufactured the subject compression hip screw, and the district court correctly decided not to “second-guess” the jury’s verdict by granting any of appellants’ motions. III. Damage Award A. Disfigurement Appellants claim that there is insufficient evidence to support the jury’s award of $150,000 to Mrs. Keeler for past and future disfigurement because there is nothing in the record to indicate that Mrs. Keeler suffered any serious scarring or other physical deformity as a result of the broken hip screw or the subsequent surgeries needed to repair the hip. They contend that, in contrast to physical impairment, disfigurement damages are awarded only in cases involving a physical blemish which visibly detracts from a person’s appearance or which otherwise injures or impairs a person’s beauty or symmetry. The Texas cases recognize as an element in establishing damages in disfigurement the subjective feelings of embarrassment or depression created by the disfigurement. See Goldston Corp. v. Hernandez, 714 S.W.2d 350, 353 (Tex.App.—Corpus Christi 1986, writ ref’d n.r.e.) (disfigurement damages awarded to a man who was depressed and embarrassed about his scarred foot and amputated toe); Northwest Mall Inc. v. Lubri-Lon International, 681 S.W.2d 797, 804 (Tex.App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.) (disfigurement damages awarded to a woman with three hip surgeries prior to trial and three more anticipated who considered herself deformed because of the resultant scarring); Armellini Express Lines v. Ansley, 605 S.W.2d 297, 312 (Tex.Civ.App.—Corpus Christi 1980, writ ref’d n.r.e.) (disfigurement damages awarded to a thirty-two-year-old woman who suffered substantial injury to her body and face such that she considered herself an “ugly old hag”); Texas Farm Products Co. v. Leva, 535 S.W.2d 953, 959 (Tex.Civ.App.—Tyler 1976) (disfigurement damages awarded to a young man with an amputated little finger and a hand with areas of exposed tissues who was embarrassed to shake hands with anyone). Appellees claim in their brief that Mrs. Keeler sustained extensive permanent scarring as a result of the two hip replacement operations. There is, however, a total lack of evidence in the record to support that contention. The record also does not contain any testimony to the effect that Mrs. Keeler considered herself to be disfigured in any way. The mere fact that Mrs. Keeler is required to use crutches or a cane is not evidence of disfigurement; it is evidence of disability. In short, the record is devoid of any evidence of disfigurement as opposed to physical impairment. It is well-established that “a mere scintilla of evidence is not sufficient to sustain a jury determination.” Tarlton v. Exxon, 688 F.2d 973, 976 (5th Cir.1982). In this case, there was not even a scintilla of evidence of Mrs. Keeler’s disfigurement, and the jury should not have been given the opportunity to consider the matter. We determine that the district court erred in failing to grant appellants’ motion for judgment notwithstanding the verdict on the issue of disfigurement and reverse the damage award of $150,000. B. Future Medical Expenses Under Texas law, “[rjecovery for future medical expenses requires a showing that there is a reasonable probability that such medical expenses will be incurred in the future.” City of Rosenberg v. Renken, 616 S.W.2d 292, 293 (Tex.Civ.App.—Houston [14th Dist.] 1981, no writ). “No recovery can be allowed based upon pure speculation.” Roth v. Law, 579 S.W.2d 949, 956 (Tex.Civ.App.—Corpus Christi 1979, no writ). Appellants claim that the jury award of $150,000 to Mrs. Keeler for future medical expenses is not supported by the evidence. We agree. The record indicates that only Dr. Vetter Frank Cody and Dr. William C. Head testified concerning Mrs. Keeler’s future medical expenses. When asked what the future would hold for Mrs. Keeler, Dr. Cody, a psychiatrist, stated that “there’s a lot of uncertainty. No one really knows just what’s going to happen in situations like is [sic].” Dr. Head testified that Mrs. Keel-er’s medical expenses could vary a great deal. He also stated that “this is one of those situations that if it were simply routine follow up checks in the office and periodic x-rays could probably be 2 or $300 a year. Whereas, if she ended up having to have more surgery you could be facing thousands of dollars____” No other evidence was presented. “In reviewing a jury award of damages on appeal, the court is actually reviewing the district court’s denial of a motion for a new trial. The standard of review of the denial of such a motion is whether the district court abused its discretion.” Brooks v. Great Lakes Dredge-Dock Co., 754 F.2d 539, 541 (5th Cir.1985) (citations omitted). If the jury awards an unreasonable amount in light of the evidence, a new trial may be ordered, or the award may be reduced by suggesting a remittitur to the maximum amount the jury could have awarded. Caldarera v. Eastern Airlines, Inc., 705 F.2d 778, 784 (5th Cir.1983). Since the district court erred in allowing a damage award which included an excessive amount of future medical expenses to stand, we reverse for a new trial on the issue of damages unless appellees are willing to accept a remittitur for the amount of the excessive future medical expenses. The new trial on the issue of damages will encompass physical pain and mental anguish and physical impairment as well as medical expenses. This is so because the question of future medical expenses is not so distinct and separate from the other damage issues “that a trial of it alone may be without injustice.” Westbrook, 754 F.2d 1233, 1242 (5th Cir.1985) (quoting Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 500, 51 S.Ct. 513, 515, 75 L.Ed. 1188 (1931)). It will not include retrial of the issue of disfigurement since there was a complete absence of evidence on the issue and the district court should have directed a verdict or granted judgment notwithstanding the verdict. The maximum non-speculative amount Mrs. Keeler could have received for future medical expenses was $6,000. Cf. Roth v. Law, 579 S.W.2d at 956 (jury award of $20,000 was excessive where the only testimony of future medical expenses was physician’s “conservative” estimate of $10,000). Appellants, therefore, are entitled to a new trial on damages unless appellees consent to a remittitur of $97,920. IV. Conclusion We determine that the evidence is more than sufficient to support the jury’s finding on the issue of Richards’ defective manufacture of the compression hip screw. We find, however, that the district court erred in failing to grant appellants’ motion for judgment notwithstanding the verdict on the issue of disfigurement. We reverse and render on this issue. Additionally, the damage award is excessive, and the district court erred in denying appellants’ motion for new trial. We, therefore, order a new trial on the issue of damages unless appellees accept a remittitur of $97,920. The judgment of the district court is AFFIRMED ON THE MERITS. REVERSED AND RENDERED IN PART, AND REMANDED FOR A NEW TRIAL IN PART ON DAMAGES. . The compression hip screw is a device specially designed for fixation of broken hips. It consists of three different parts, the hip screw plate, the lag screw, and the compression screw. The hip screw plate is attached to the femur with screws. On the top end of the plate is a barrel. The lag screw is screwed into the femoral neck and head and fits into one end of the barrel of the hip screw plate. The broken pieces of bone are then drawn together by inserting the third piece, the compression screw, into the other side of the barrel. The compression screw and the lag screw have mating threads, and by turning the compression screw, the surgeon can draw together the lag screw and the plate, thereby also drawing together the fractured bones. The Richards’ compression hip screw has a key-way, which is a slot in the lag screw with a mating key in the barrel. This prevents the femoral head from rotating relative to the femur, and further assists in fixating the broken bones to assist in healing. . The compression hip screw is designed as a partial weight bearing device. Mrs. Keeler, however, testified that she had moved a small, portable television set from the floor to a tabletop the evening before her hip began causing her pain. . The jury also found that the alleged defective manufacture of the hip screw breached an express warranty and an implied warranty of merchantability. Because we find that the jury’s verdict on the defect claim is supported by the evidence, we need not consider appellants’ contention that there was insufficient evidence to support this allegation. . Appellees claim that Atchison, Topeka & Santa Fe Railroad Co. v. McCartney, 549 S.W.2d 228 (Tex.Civ.App.—Beaumont 1977, writ ref'd n.r.e.) supports their contention that crutches alone Eire disfiguring. This reliance is misplaced. While the court found that McCartney was disfigured to some extent because he was required to wear a special "boot" in order to wEtlk, he also was disfigured because he had lost all of his toes and a portion of the ball of his foot. Id. at 231. . "A new trial on the issue of damages, once liability is established, is proper." Westbrook v. General Tire and Rubber Co., 754 F.2d 1233, 1242 (5th Cir.1985). . Dr. Head testified that Mrs. Keeler had a life expectancy of twenty years. The amount of the award for future medical expenses, therefore, should be equal to $300, the maximum estimate of non-speculative yearly expenses, multiplied by the twenty year life expectancy, or $6,000. . In determining the amount of the remittitur, we take into account Mrs. Keeler’s thirty-two percent liability. The remittitur, therefore, is equal to sixty-eight percent of the total excess future medical expenses, $97,920. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:

sc_issue_9

15

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. TOLEDO-FLORES v. UNITED STATES No. 05-7664. Argued October 3, 2006 Decided December 5, 2006 Timothy Crooks argued the cause for petitioner. With him on the briefs were Marjorie A. Meyers, H. Michael Sokolow, and Brent E. Newton. Deputy Solicitor General Kneedler argued the cause for the United States. With him on the brief were Solicitor General Clement, Assistant Attorneys General Keisler and Fisher, Deputy Solicitor General Dreeben, Patricia M. Millett, and Donald E. Keener Briefs of amici curiae urging reversal were filed for the American Bar Association by Michael S. Greco and David W. DeBruin; for the Asian American Justice Center et al. by Jayashri Srikantiah; for Human Rights First by Linda T. Coberly and Gene C. Schaerr; for the National Association of Federal Defenders et al. by Henry J. Bemporad and Frances H. Pratt; and for the NYSDA Immigrant Defense Project et al. by Christopher J. Meade, Steven R. Shapiro, Lucas Guttentag, Marianne C. Yang, and Manuel D. Vargas. A brief of amici curiae urging affirmance was filed for the State of Texas et al. by Greg Abbott, Attorney General of Texas, R. Ted Cruz, Solicitor General, Kent C. Sullivan, First Assistant Attorney General, Don Clemmer, Deputy Attorney General, and Amy Warr, Assistant Solicitor General, and by the Attorneys General for their respective States as follows: Mike Beebe of Arkansas, John W. Suthers of Colorado, Carl C. Danberg of Delaware, Lawrence Wasden of Idaho, Phill Kline of Kansas, Kelly A Ayotte of New Hampshire, Thomas W. Corbett, Jr., of Pennsylvania, Mark L. Shurtleff of Utah, and Robert F. McDonnell of Virginia Per Curiam. The writ of certiorari is dismissed as improvidently granted. It is so ordered. Question: What is the issue of the decision? 01. comity: civil rights 02. comity: criminal procedure 03. comity: First Amendment 04. comity: habeas corpus 05. comity: military 06. comity: obscenity 07. comity: privacy 08. comity: miscellaneous 09. comity primarily removal cases, civil procedure (cf. comity, criminal and First Amendment); deference to foreign judicial tribunals 10. assessment of costs or damages: as part of a court order 11. Federal Rules of Civil Procedure including Supreme Court Rules, application of the Federal Rules of Evidence, Federal Rules of Appellate Procedure in civil litigation, Circuit Court Rules, and state rules and admiralty rules 12. judicial review of administrative agency's or administrative official's actions and procedures 13. mootness (cf. standing to sue: live dispute) 14. venue 15. no merits: writ improvidently granted 16. no merits: dismissed or affirmed for want of a substantial or properly presented federal question, or a nonsuit 17. no merits: dismissed or affirmed for want of jurisdiction (cf. judicial administration: Supreme Court jurisdiction or authority on appeal from federal district courts or courts of appeals) 18. no merits: adequate non-federal grounds for decision 19. no merits: remand to determine basis of state or federal court decision (cf. judicial administration: state law) 20. no merits: miscellaneous 21. standing to sue: adversary parties 22. standing to sue: direct injury 23. standing to sue: legal injury 24. standing to sue: personal injury 25. standing to sue: justiciable question 26. standing to sue: live dispute 27. standing to sue: parens patriae standing 28. standing to sue: statutory standing 29. standing to sue: private or implied cause of action 30. standing to sue: taxpayer's suit 31. standing to sue: miscellaneous 32. judicial administration: jurisdiction or authority of federal district courts or territorial courts 33. judicial administration: jurisdiction or authority of federal courts of appeals 34. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from federal district courts or courts of appeals (cf. 753) 35. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from highest state court 36. judicial administration: jurisdiction or authority of the Court of Claims 37. judicial administration: Supreme Court's original jurisdiction 38. judicial administration: review of non-final order 39. judicial administration: change in state law (cf. no merits: remand to determine basis of state court decision) 40. judicial administration: federal question (cf. no merits: dismissed for want of a substantial or properly presented federal question) 41. judicial administration: ancillary or pendent jurisdiction 42. judicial administration: extraordinary relief (e.g., mandamus, injunction) 43. judicial administration: certification (cf. objection to reason for denial of certiorari or appeal) 44. judicial administration: resolution of circuit conflict, or conflict between or among other courts 45. judicial administration: objection to reason for denial of certiorari or appeal 46. judicial administration: collateral estoppel or res judicata 47. judicial administration: interpleader 48. judicial administration: untimely filing 49. judicial administration: Act of State doctrine 50. judicial administration: miscellaneous 51. Supreme Court's certiorari, writ of error, or appeals jurisdiction 52. miscellaneous judicial power, especially diversity jurisdiction Answer:

songer_r_nonp

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 "groups and associations". 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. Phyllis CHAMBERS, Plaintiff-Appellant, v. PARCO FOODS, INCORPORATED, Defendant-Appellee. No. 90-1419. United States Court of Appeals, Seventh Circuit. Argued Dec. 10, 1990. Decided June 20, 1991. Aladean M. DeRose, South Bend, Ind., for plaintiff-appellant. Katharine B. Devoid, Richard L. Marcus, Sonnenschein, Nath & Rosenthal, Chicago, Ill., Donald W. Pagos, Sweeney, Dabagia, Donaghue & Thorne, Michigan City, Ind., for defendant-appellee. Gwendolyn Young Reams, Vella M. Fink, Paul Bogas, Donald R. Livingston, E.E. O.C., Washington, D.C., for E.E.O.C. ami-cus curiae. Before CUDAHY, FLAUM and MANION, Circuit Judges. MANION, Circuit Judge. Phyllis Chambers sued Parco Foods, Inc. for violating Title VII through its collectively bargained promotion and transfer policies. The district court granted summary judgment for Parco, holding that Chambers’ claim was time-barred. We affirm. I. The facts of this case are not in dispute. Parco makes holiday cookies at its plants in Michigan City, Indiana and Blue Island, Illinois. Both plants have six departments: packing, mixing, maintenance, warehouse, traffic and sanitation. As of November 1, 1988, the packing departments of both plants were primarily female, and the mixing departments were primarily male. At all relevant times, the lowest-paying job in the mixing department paid more than the highest-paying job in the packing department. As one might imagine for a company that makes holiday cookies, the work is seasonal, requiring the greatest output and the most workers during the Christmas holiday season from October to January. Partly for that reason, Parco and the union in 1979 bargained for a departmental seniority system where employees in one department are not allowed to bid for jobs in another department. The specific provision is contained in Article VII, Section 3(C): C. Bidding Section 1. Seniority shall be the determining factor in matters affecting promotions, demotions and transfers within classifications, only if other factors of fitness and ability are equal. (a) When an employee’s job is eliminated, such employee shall have the right to exercise his seniority within the employee’s department. Section 2. When a vacancy occurs, or a newly created job, the company will post the job for three (3) days, and will then have one week to fill the new job. Employees within the department desiring to apply for this job will write their names and seniority status on the posted notice. The successful applicant will be chosen by the Employer on the basis of seniority, provided ability and fitness of the senior employee is equal to that of the other applicants. Parco maintains this system of departmental seniority so that an experienced work force is guaranteed in each department, even during periods of fluctuating production demands and dramatic changes in number of employees. Stability appears to be the key. Without this provision, Par-co would find itself with few experienced workers during both the slow season and the time of heavy production during the holiday season. In the off-season, reductions in force might knock out most of the experienced workers within a department, replacing them with workers from other departments who have greater plant-wide seniority. And during the busy season, Parco would have to train new workers to take the place of those who transferred to another department, and would also have to train the transferred employees to do their new jobs, during a time with heavy production demands. Phyllis Chambers, employed by Parco in the packing department since 1977, was a member of the union negotiating team that in 1979 agreed to Article VII, Section 3(C). While Chambers claims to have believed that section meant only that employer discretion would be eliminated in transferring employees within departments, since its enactment in 1979 Pareo and the union have interpreted the provision as disallowing bids for transfers. The bidding provision has been reenacted verbatim in subsequent collective bargaining agreements signed in 1984 and 1988, and the union has never attempted to negotiate a change in its terms. On July 6, 1987, while working in the packing department, Chambers bid for a job in the mixing department. She was told she could not bid on jobs outside her department, and her application was not considered. Charles Glenn Tombs, a male employee with about one year’s experience in the mixing department, but with far less plantwide seniority than Chambers, was hired. On July 31, 1987, Chambers filed a complaint with the Michigan City Human Rights Department alleging sex discrimination because Parco refused to let her bid on the position in the mixing department. The Human Rights Department made an initial finding of probable cause, but Chambers withdrew her complaint. On July 29, 1988, the Equal Employment Opportunity Commission (EEOC) issued a Notice of Right to Sue. Chambers sued in federal district court on September 14, 1988. The district court granted summary judgment for Par-co on January 23, 1990, and Chambers timely appealed. II. Parco made two arguments in support of its motion for summary judgment. First, Parco argued that Chambers’ claim was untimely. Second, on the merits, Parco claimed that its policy is a bona fide seniority system. While Title VII prohibits sex discrimination in the terms and conditions of employment, Congress has created an exception where employment 'action occurs pursuant to a bona fide seniority system. See Title VII, 42 U.S.C. § 2000e-2(h). Even if Parco’s plan is a seniority system, challenges still can be brought if discriminatory intent or purpose is shown. The district court agreed with the preliminary argument that Chambers’ claim was time-barred, and therefore did not reach the merits. The court concluded that Chambers’ claim was untimely under 42 U.S.C. § 2000e-5(e), which allows 180 days to challenge unlawful employment practices relating to seniority systems, or 300 days if administrative proceedings are pursued first. The allegedly discriminatory provision of the collective bargaining agreement went into effect in 1979, so under the 300-day provision Chambers’ 1988 challenge was about eight years late. The court relied on Lorance v. AT & T Technologies, 490 U.S. 900, 109 S.Ct. 2261, 104 L.Ed.2d 961 (1989), in which the Supreme Court held that the statutory limitations period begins to run when the allegedly discriminatory seniority system is adopted. The Court specifically rejected the argument that the statute was triggered each time the system was applied in a discriminatory fashion. 109 S.Ct. at 2269. Chambers advances two bases for reversal. Chambers first argues that Par-co’s prohibition of inter-departmental bidding is merely a no-transfer rule, rather than a “seniority system,” and that the statute of limitations therefore does not apply. Parco argues that its bidding policy is an integral part of its seniority system. We agree with the district court that Par-co’s no inter-departmental bidding rule is part of its seniority system. Lorance considered a seniority system legitimate even though seniority was determined by length of time spent in a particular position, instead of length of time with the company. 109 S.Ct. at 2265. The situation in Lorance is analytically no different than at Parco Foods; here, seniority is determined by length of time in one department, instead of length of time with the company. Pareo, and the defendant in Lorance, justify their seniority systems as reasonable attempts to encourage workers to remain in and improve on the jobs they are doing, rather than to transfer within the company and require training for a new job. In this case, Tombs had one year in the mixing department; Chambers had none. To Parco, Tombs was the more qualified applicant with greater relevant seniority. That Chambers does not like the manner in which Parco’s seniority system operates does not mean it is not a seniority system. The EEOC’s argument as amicus curiae suffers from this same defect. The EEOC does not like the fact that Chambers is treated as an entry-level applicant, the same as an outsider applying for a job in the mixing department. But the EEOC’s concerns are properly the subject of future collective bargaining negotiations; they do not show that Parco’s plan is not a seniority system. As the Supreme Court said in California Brewers Association ¶. Bryant, 444 U.S. 598, 606, 100 S.Ct. 814, 819, 63 L.Ed.2d 55 (1980), the “principal feature of any and every ‘seniority plan’ is that preferential treatment is dispensed on the basis of some measure of time served in employment.” The key words, which the EEOC chooses not to emphasize, are “some measure of time.” Parco’s measure of time is based on experience within a particular department, for which Chambers will receive preferential treatment. Par-co’s measure of time is sufficient to show that its no inter-departmental bidding rule is indeed part of a seniority system. Chambers’ second argument for escaping the statutory limitations period presents a question of first impression. She argues that each subsequent reenactment of an allegedly discriminatory seniority system re-triggers the limitations period. Therefore, she argues, the reenactment of Article VII in 1988 was a new discriminatory event that made her 1988 lawsuit timely. The district court rejected this reasoning on the basis of Lorance, but we do not believe Lorance provides us such a clear answer. Several factors support the district court’s analysis. Although Lorance did not involve a collective bargaining agreement that was subsequently reenacted, the Court seemed to focus on the moment when a system changes from nondiscriminatory to discriminatory — a “diminution in employment status” — as the moment triggering the limitations period. In Lorance, the Court described this crucial moment in a manner that discounts the importance of prior or future verbatim reenactments of the same provision: Under the collective bargaining agreements in effect prior to 1979, each petitioner had earned the right to receive a favorable position in the hierarchy of seniority among testers ..., and respondents eliminated those rights for reasons alleged to be discriminatory. Because this diminution in employment status occurred in 1979 ... the Seventh Circuit was correct to find petitioner’s claims time-barred_ Lorance, 109 S.Ct. at 2265. The Court did not refer to the most recent reenactment of the collective bargaining agreement, but noted that previous “agreements” preserved certain rights for the workers. Then the Court focused on the point when those rights were allegedly diminished by a change in the collective bargaining agreement. In our case, there was no “diminution in employment status” during subsequent verbatim reenactments of the allegedly discriminatory Article VII; that “diminution” occurred in 1979 when the agreement’s terms were changed from previous agreements. The district court concluded that allowing each subsequent verbatim reenactment of a collective bargaining agreement to start the limitations clock running again would defeat the workers’ valid reliance interests the Supreme Court sought to protect in Lorance: “[Allowing a facially neutral system to be challenged, and entitlements under it to be altered, many years after its adoption would disrupt those valid reliance interests [that the limitations period] was meant to protect,” and upset the “balance between the interests of those protected against discrimination by Title VII and those who work — perhaps for many years — in reliance upon the validity of a facially lawful seniority system.” 109 S.Ct. at 2269. However, the Lorance Court generally refers to a seniority system’s point of “adoption” as the point at which the statute of limitations begins to run. 109 S.Ct. at 2269. In rejecting the plaintiffs’ argument that the statute should be triggered when the effect of the decision to adopt the seniority provision was felt, the Court explained that “[bjecause the claimed invalidity of the facially nondiscriminatory and neutrally applied ... seniority system is wholly dependent on the alleged illegality of signing the underlying agreement, it is the date of that signing which governs the limitation period.” 109 S.Ct. at 2268 (emphasis added). The Court pointed out that in a facially neutral system “the discriminatory act occurs only at the time of adoption,” 109 S.Ct. at 2269 n. 5 (emphasis in original). So, under Lorance, the time of adoption is the discriminatory act, and the discriminatory act triggers the statute of limitations. Can maintaining an allegedly discriminatory provision be considered a discriminatory act? We believe that it can, provided that the plaintiff can point to evidence of a discriminatory act or discriminatory intent in the provision’s reenactment. Established caselaw interpreting § 703(h) of Title VII, 42 U.S.C. § 2000e-2(h), indicates that maintenance of an allegedly discriminatory seniority system can be considered a discriminatory act. In Pullman-Standard v. Swint, 456 U.S. 273, 281, 102 S.Ct. 1781, 1786, 72 L.Ed.2d 66 (1982) (citations omitted), the Supreme Court inquired whether a seniority system “was negotiated and has been maintained free from any illegal purpose,” and observed that the district court had “carefully considered the detailed record of negotiating sessions and contracts which span a period of some thirty-five years.” The court made this inquiry even though the relevant seniority provision had remained unchanged over the years through many renegotiations. The implication is that if the parties have discriminatory reasons for reenacting seniority provisions, even when they do not change the system, the reenactment can be considered discriminatory for purposes of § 703(h). See also Teamsters v. United States, 431 U.S. 324, 355-56, 97 S.Ct. 1843, 1864-65, 52 L.Ed.2d 396 (1977); Wattleton v. Intl. Brotherhood of Boiler Makers, 686 F.2d 586, 590, 592 (7th Cir.1982). Thus, if a plaintiff can point to evidence of discriminatory motive in the renegotiation or “maintenance” of a seniority system, then that date provides the time at which the statute of limitations begins to run, for it is at that point that the “discriminatory act” took place. All of this is no help to Chambers, however. The record in our case is uncontro-verted that not only was Article VII reenacted verbatim, but the provision was never even a matter of discussion between Parco and the union. The union never sought to renegotiate the terms of the allegedly discriminatory provision, so there is nothing Chambers can possibly point to that would show Parco’s discriminatory intent. Without an act or statement in the renegotiation process that would be probative of discriminatory intent, the renegotiation date cannot be the starting point for the statute of limitations. Therefore, the judgment of the district court dismissing Chambers’ claim as untimely is Affirmed. . As the district court noted, "From the union's position, the system fostered employees’ opportunities to be promoted and rewarded for their work record within their department, notwithstanding bids from more senior employees in other departments. From Parco Foods’ standpoint, the system furthered continuity of the work force by encouraging employees to departmentalize their skills and work up the ladder within one section of the plant." Memorandum and Order, Jan. 23, 1990, at 3, 1990 WL 71511. . Pursuant to General Rule 11 of the Northern District of Indiana, Parco filed in conjunction with its motion for summary judgment a "Statement of Material Facts As To Which There Is No Genuine Issue.” Paragraph 22 stated: “At no time since 1979 has the Union requested a change in the no inter-departmental transfer rule. The collective bargaining agreement was renegotiated and a new collective bargaining agreement was signed on April 1, 1988, without any request by the Union to change the no inter-departmental transfer rule.” Chambers has never attempted to contest this statement, either in her own statement of material facts to the district court, or in her briefs on appeal. Under General Rule 11, the district court was required to "assume that the facts as claimed by the moving party are admitted to exist without controversy....”. . The dissent sidesteps the precedential force of Lorance by suggesting a different resolution is mandated by simple rules of contract. The dissent fails to point out that, even under its approach, Chambers’ claim here is barred. Chambers’ 1987 job bid and subsequent complaint to the Michigan City Human Rights Commission were untimely attacks on the April 1984 agreement then in effect. Her September 1988 lawsuit was not only untimely but also moot because it was a continuing challenge to the 1984 agreement which had been replaced by a new agreement enacted in April of 1988. And her lawsuit could not be construed as an attack on the April 1988 agreement because, first, she never bid on a job under that agreement, and second, she never went before the Human Rights Commission or the EEOC with a discrimination claim based on the April 1988 reenactment. If we are to apply a "simple contract rule that a new agreement gives rise to new cause of action" the old cause of action Chambers still pursues is moot. Question: What is the total number of respondents in the case that fall into the category "groups and associations"? 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. HARTFORD-EMPIRE CO. v. OBEAR-NES-TER GLASS CO. OBEAR-NESTER GLASS CO. v. HARTFORD-EMPIRE CO. Nos. 8658, 8659. Circuit Court of Appeals, Eighth Circuit. Feb. 24, 1930. W. J. Belknap, of Detroit, Mich., and A. C. Paul, of Minneapolis, Minn. (John H. Bruninga, of St. Louis, Mo., C. P. Byrnes, of Pittsburgh, Pa., V. if. Dorsey, of Washington, D. C., and B. D. Brown, of Pittsburgh, Pa., on the brief), for Hartford-Empire Company. E. W. McCallister, of Pittsburgh, Pa. (Green & McCallister, of Pittsburgh, Pa., and Bippey & Kingsland, and Edward E. Longan, all of St. Louis, Mo., on the brief), for Obear-Nester Glass Company. Before STONE and GARDNER, Circuit Judges, and MILLER, District Judge. GARDNER, Circuit Judge. This action, brought by the Hartford-Empire Company, as plaintiff, against the Obear-Nester Glass Company, involves charges of infringement by the defendant of two patents issued to, or owned by, the plaintiff, known in this record as the Steimer patent No. 1,564,909, granted December 8, 1925, and the Peiler patent No. 1,573,742, granted February 16, 1926. The answer put in issue the validity of the patents and denied infringement, pleaded certain prior art patents, and pleaded delay and laches in the prosecution of the patent proceedings in the patent office. Both of the patents declared on in the bill of complaint relate to the automatic feeding of molten glass to a series of forming molds in which the glass charges are shaped to final form. Generally speaking, this apparatus may be described as comprising a receptacle for molten glass having an outlet from which molten glass is delivered in a stream; a device for severing this stream of molten glass and fixing the predetermined intervals, thereby separating the severed glass from the source of supply, and also into a series of molten charges; and mechanical devices for controlling this flow of molten glass. This very general description of a feeding apparatus applies to the various feeders here involved. The actual feeding of the molten glass to the molds, and the mechanical devices employed thex*efor, are the only things involved in this ease. The question as to what happens to the glass after its delivery by and fx’om the feeder is in no way involved in the present controversy. The lower court held that claims 1 to 10, both inclusive, of the Peiler patent were invalid; that claims 17, 20, 24, 25, and 34 were not infringed; that claims 15, 16, 18, 19, 21, 22, 23, 26, 27, 28, 29, 33, and 36 of the Peiler patent wex’e valid and infringed by the devices made and used by the defendants; that all claims of the Steimer patent wex'e valid and infringed by the devices made and used by the defendant. From this decision both pariies have appealed, the plaintiff appealing from the holdings of invalidity, and noninfringement, and the defendant appealing from the holdings of validity and infringement. The lower eoux’t prepared and filed a carefully written opinion, which fairly indicates the issues of law and fact involved and presents reasons and authorities in support of its decision which are so satisfactory that we approve and adopt the applicable portions thereof as follows: “The accused device of defendant, in terms of its simplest description, comprised a furnace for melting the chemical components of glass, oi’, as it is called, a fining furnace, having a main part for melting and a forehearth, all old in the art; a plunger positioned in this forehearth and operable by an arm earned on an air-moved piston, so as to rise and fall in a vertical movement. This plunger may seat or not seat in the outlet for the glass, provided in the bottom of the forehearth. There is a nut on the piston-rod by which the position of this plunger may be regulated in its up and down movements, even while in operation. The compressed air is pumped through a valve, or valves, both above and below the piston, reciprocally. This pump for compressed air is operated by a chain drive moved by an electric motor. “Below the glass outlet of the fore-hearth and out of contact, and, therefore, out of smearing relation with such outlet, or orifice, there is a pair of shear-blades, which in a time relation to the plunger movement is mechanically protracted and opened. These shear-blades, embrace the discharged gob of glass, as it hangs suspended, close and sever the attenuated connecting thread, and the gob falls. The shear-blades are controlled by a valve geared to a cam, on a cam-shaft by which the shear-blades may be operated in timed relation to the plunger, and thus the shear and plunger operations occur regularly and synchronously, or in a definite timed relation. “It is possible with these valve adjustments to either advance or retard operations of the plunger relative to the operas tions of the shears, by moving the plunger operations ahead or back, or the identical result may be obtained by making the change with the shear valve, so as to advance or retard the shear operation relative to the plunger operation. “In passing, I may observe, that some considerable confusion is found in the record, which arises from the fact that counsel, to some extent on both sides, persistently insisted on comparing defendant’s accused device with plaintiff’s commercial device, instead of comparing the accused device with the teaching of the patents'in suit, as disclosed by the specifications and elaims, or by the elaims as read in the light of the specifications. Obviously, such a comparison is worthless, and is not the test of infringement. It is true, aid in understanding the language of the claims may be afforded by a physical exhibit of a commercial device, but such a device affords no help, either in fact or law, until it has been shown that the physical exhibit of the commercial device has been made in every substantial compliance with the teachings and claims of the patent alleged to be infringed. Experience often discloses that commercial devices, alleged to be protected by q patent, or patents, depart substantially from the patent, or patents, themselves. So, commercial devices are not to be compared with commercial devices, but the accused commercial device is to be compared with the elaims of the patent in dispute. “The a Steimer patent, in its simplest terms, has a furnace for melting the chemical constituents of glass, which, generieally, is, of course, old in the art, but which concretely is of peculiar construction here, for that it is wedge-shaped and may be tilted so as to pour out its contents constantly, in a fixed volume, and from a fixed head, until the furnace is empty. This fixed head is brought about by a mechanical tilting mechanism working rhythmically with the other mechanisms, but as this part of this furnace is not at all in question here, no further mention need be made of it. “The molten glass is poured in a constant stream from the tilting lip of the furnace into a chamber, or bowl, equivalent to the forehearth of defendant’s accused device. In this chamber there is mounted a plunger, which is raised up by a reciprocating frame, to which, however, the plunger is not rigidly attached. This reciprocating mechanism, or frame, is operated by a cam moving counterclockwise, which slides under the bar of the frame, lifts the frame to the highest points of its adjustment, which point may be changed as desired by the operator, and then by cam movement slides from under the frame and permits it to fall by gravity, carrying down with it the plunger, which, as said, is not rigidly attached to the frame, but is mounted in a circular opening therein, and is kept partly rigid by a spring which presses on the head, or upper end, of the plunger. The plunger must move up with the frame, but it does not necessarily fall with the frame except in so far as it is thrust down by the spring, and its own weight. In operation, however, it ultimately seats, if desired, in the glass outlet in the bottom of the bowl, thus cutting off wholly, or partially, the flow of glass from this opening. Such connecting threads of glass as are left, after the closure of the outlet by seating, or partially seating, the plunger therein, are cut off near the exit of the orifice by jets of flame. There are no shears used by Steimer. “There is suitable mechanism to vary the time of the xise and fall of the plunger, as compared to the period of flow of the glass through the glass outlet in the bottom of the bowl. This variance of intervals brings .about a variance in the form and mass of the gob. These gobs when severed fall into a reciprocating funnel, which, moving around an orbit below, retains the upper opening of the funnel in a fairly constant vertical plane; perhaps in a wholly constant vertical plane, but that is not important, and thus delivers these gobs into any number of parison molds on a revolving table. But, again, this manner of delivery is not in issue here. “As said, all of the six claims of the Steimer patent, are in issue. These claims are so similar in meaning as that one of them may serve as a type of all. In fact, casually, they seem to present an identical single claim merely in varying language, except that claim 6 adds the element of a submerged outlet and an adjusting means, workable during operation, of limiting the movement of the plunger toward the outlet, with a change in the range of movement away from the outlet, but even this thought is expx-essed in other elaims. “Claim 1, taken as typical, reads thus: “ ‘Apparatus for separating molten glass into mold charges, including a container for the glass having an outlet, an implement projecting into the glass toward the outlet and mounted for movement towards and from the outlet, means for periodically moving said implement toward and from the outlet and means for adjusting the nearest position of said implement to the outlet without changing its position remote from such outlet.’ “The so-called needle, or plunger form of the plaintiff’s Peiler patent, is illustrated in Pigs. 12,13,14, and 42 of the Peiler patent in suit.” These drawings are as follows: “In the view I take of the issues, evidence and pleadings here, I need consider but this particular form. “These above figures were first shown in one of the alleged divisional applications filed May 5, 1919, and appear therein as Figs. 2, 6 and 7, respectively. Fig. 42 of the patent in suit does not appear in the above application of May 5,1919, though in view of the disclosures of the three other figures, this is perhaps not vitally important. “The construction and manner of operation of this needle or plunger form of Peiler is about as follows: There is a plunger, similar to the plunger of the accused device and that of Steimer; there is a forehearth similar or equivalent to the bowl of Steimer and the forehearth of the accused device having an outlet at the bottom. This plunger works vertically, or up and down, and may by adjustment be seated, or not seated, in the glass outlet. By this reciprocating movement it alternately opens and closes the glass outlet, or, at least, closes it to the desired approximation of the operator; thereby assists in forcing a gob of glass through the outlet, and then closing, or partially closing, the same, so that no more glass, except a connecting neck or thread, escapes. This neck, while the gob is wholly in suspension, that is, not supported from below or laterally, is then severed by mechanical shears, spaced out of contact and, therefore, out of smearing relation, with the bottom edge, or lip, of the glass outlet. These shears are protracted, opened, operated to sever, and retracted by mechanical means. It is conceded, I take it, because defendant’s witness, Wadsworth, conceded it, that the shears mechanism, the problem being stated and before him, could be reproduced in one operable form or another, by any ordinarily skilled mechanic. This concession, in passing, is also made' as to the mechanisms of the reciprocal adjustments below mentioned, which produce synchronous operation of the plunger, and the severing apparatus; for, as indicated, the vertical movement of the plunger in relation to the severing operation, may be slowed or quickened, advanced or retarded at will by the operator while the machine is working. So, that gobs of glass differing in mass and shape may be delivered. “In the Peiler patent, these severed gobs fall on a moistened chute, instead of into a funnel, or into a parison mold, as is, respectively, taught by Steimer and by defendant’s accused device. In Steimer, of course, as already stated, these gobs first fall inte a funnel, which seems to direct them into the parison mold. But this function is not involved in this controversy, as already forecast. “In this situation, and upon the above facts of operation, respectively, plaintiff bases its contention of infringement. As seen, many claims are involved in the Peiler patent. Some of these are the alleged method claims, and some are the apparatus claims.. For reasons, which I shall later set out, I need not now consider the method claims. A typical apparatus claim, as plaintiff’s counsel urge, is found in claim 36 of the Peiler patent, which reads thus: “ ‘Apparatus for feeding molten glass in a regular succession of freely dropping charges appropriate to the molds to be fed, comprising an impulsion chamber in- communication with the tank of a glass melting furnace and having an outlet orifice submerged under a head of the molten glass, a plunger working in the glass above the orifice and serving in conjunction with the surrounding walls of the impulsion chamber to exert impulses tending alternately to expel the glass through the orifice and to retard its outflow, shear blades movable toward and from each other and eoacting below and in line with but independently of the outlet orifice to sever the suspended end of the issuing column of glass in timed relation to the plunger movements, and means for adjust-ably varying the movements of the shears and plunger with respect to each other to regulate the freely dropping mold charges severed by the shears, and to keep- them uniform after the desired regulation is obtained.’ “I think it is clear, from the above statement of construction and operation of the accused device, when compared with the six claims of the Steimer patent, and claims 15, 16, 21, 18, 19, 22, 23, 26, 27, 28, 29, 33 and 36 of the Peiler patent in suit that defendant’s accused device reads on -the above claims, and infringes each and all of them, that is to say, of the six claims of the Steimer patent and of the above mentioned claims of the Peiler patent, provided such patents and the above claims are valid. “I conclude, for reasons I would as well now state, that claims 1 to 10, both inclusive, of the Peiler patent (the so-called method claims) are invalid, and so I need not consider whether or not they are infringed. “Claims 1 to 10, supra, are, as forecast, so-called method claims, and involve the notion of patenting the concept of ‘phase-changing,’ as plaintiff denominates it, I am not able to see that the phase-changing here contended for by plaintiff is anything more than a function. In short, it involves the problem to be solved, and not the mechanical method of solving such problem. It is fundamental, that a mere function ordinarily cannot he patented in a mechanical patent. Holland Furniture Co. v. Perkins Glue Co., 277 U. S. 245, 48 S. Ct. 474, 72 L. Ed. 868. “Phase-changing which occurs here is the mere mechanical means of varying, and governing, the interval which intervenes between the emergence of the gob of glass and its being severed by the shears. This gob hangs suspended, for an interval regulable by the machine, or by the operator who operates the machine. It is, while suspended, subjected to well-known physical laws, which change its length and diameter, and then at an interval for which the machine is adjusted, or may be adjusted, it is severed and falls. This same sort of phase-changing occurred whenever the ancient hand-gatherer and his assistant, who wielded the shears, were called upon to mold either a larger or smaller vessel than they had before been making. “The problem of measuring the interval between the separation of the gob from the punty and the severing of the latter, which interval, in the old hand art, of course, included the period in which the gob was subjected to physical laws, which shaped it, was not invented by plaintiff, or by either Peiler or Steimer. It has always existed. The problem, to state it in a slightly different way, was to precisely synchronize this interval by a machine, and to maintain this synchronism at will, but at the same time, in the same machine, to he able to change the interval of suspension at will, and while the machine was in operation, and thus permit physical laws to do the rest. “To my mind, then, it is too obvious for exposition, that this same soil; of phase-changing was inevitably present by reason of human error, as well as by reason of human intention, when the ancient hand-gatherer took a gob of melted glass from the furnace with his hand punty and held it over a mold until a part of it sagged down from the punty and separated therefrom, except by the connecting neck, which neck, at an interval measured by the eye and mind of the shear wielder, was then severed by the latter. The difficulty (now solved, as it is urged, by plaintiff’s patents) was that the intervals of manipulations of the punty, of the flow of glass therefrom toward the mold, and of the severing of this gob by an assistant, could not, on account of human error, be made always and uniformily precise. Inevitably, there was almost always a lack, of uniformity among each of these intervals. Hence, inequalities in mass, weight and shape were present. So, the one problem was to mechanically provide precise and regulable uniformity in these intervals, through a machine, which would sever the suspended gob at fixed intervals, and the other problem was to be able to vary this interval and, therefore, the mass and shape of the gob, at will and without stopping the machine. “If, then, plaintiff, by its method claims, contends, as I understand it does, that for the life of this Peiler patent no one, by whatever mechanical means, may eject from a furnace a gob of melted glass, suspend the same unsupported, either from below or laterally, for a regulable period, and then at a predetermined interval, changeable while operating and at will, sever the gob, I am of opinion, for the reasons above given, that it may not patent this notion. Besides, I think there are other reasons bottomed on the fact that many other patents in the prior art disclose the notion of phase-changing, although they did not appropriate the designation, or attempt to do so. I have no doubt, however, that Peiler improved upon all such. “So, I think both patents in suit are combination patents. Protracting and retracting mechanical shears^ the plunger to force a definite mass of glass out of a vertical outlet, and synchronous eoaction between the shears’ action, and the plunger movement, are found, crudely, at least, present, or plainly forecast, in many patents of the prior art. But I think it is clear from this record, that Steimer largely improved upon all of them, and that Peiler improved upon Steimer. If, then, the Steimer and Peiler patents are not invalid because of the delays in prosecuting to a grant their original and divisional applications, judgment of validity-may well go for them. “As said, Steimer filed his original application on the twelfth day of February, 1910, and his patent was not issued until December 8, 1925. After a most careful and pains-taking examination of his original application, I am of the Opinion that it, as originally filed, disclosed in the specifications and drawings, 'especially the latter, ample basis for each of the six claims finally allowed. Peiler, in his original application did not disclose the specific form here found to be infringed by the accused device, until he made his divisional application on May 5, 1919. In the latter application, or in one of them (for he made two on the same date), Peiler first showed that form which defendant has infringed. Upon plaintiff’s contention, he did show his generic invention, in his original application of August 3, 1912. “From October 24, 1916, to September 27, 1924, almost up to the date of issue of the patent, Steimer was engaged in combat-ting interferences almost too numerous to mention. Likewise, from January 18, 1916, to August 17, 1925, or shortly before the patent was issued to his assignees, Peiler was enmeshed in interferences. “I do not think delay, laches or estoppel can, therefore, be imputed to either Peiler or Steimer for the period subsequent to 1916, and until their respective patents issued. I am not saying that estoppel, delays and laches could never, or under any state of facts, be imputed to an applicant for delay caused by the pendency of an interference proceeding, but am saying that here no facts exist upon which to bottom invalidity arising from laches, delays or estoppel, after 1916. An applicant might, perhaps, be guilty of laches in the matter of prosecuting or defending an interference. But no proof of such delay so occurring appears in this record; that is to say, of unnecessary and illegal delays .in prosecuting or defending interference proceedings. “But it is insisted that Peiler (and Steimer, as well, but I deal with Peiler, because the facts contended for by defendant are, in his ease, the most flagrant) made, after his original and so-called generic form of device, four divisional applications and amendments for as many specific - forms. (There are five, in fact, but the last one, dealing with Peiler’s bowl-spout-paddle-needle form, is not, in my opinion, involved in the infringement.) And that, since more than two years elapsed after the original application was filed until the filing of the first divisional application and thereafter more than two years elapsed between subsequent divisional applications, he is ipso facto barred from tying any of his specific divisional applications to his original generic application, or from tying a divisional application to a preceding divisional application, and so Ms patent is invalid. In other words, that there exists in the law of patents a fatal two-year rule of limitations, which precludes the filing of a divisional application, or an amendment of the original application, after the lapse of two years. Here, in one ease only, was an amendment made, or a divisional application filed, in less than a year after the last preceding divisional application. This was the application for the so-called paddle form of Peiler, which was filed March 28,1917. The last preceding divisional application had been filed on March 7, 1916, less, of course, than two years. But clearly, tMs will not save Peiler from invalidity if the rule contended for by plaintiff is the law. “The point is one with which, and with its variables upon varying facts, the courts have had much trouble. The law is yet seemingly in the process of crystallization as to what shall be the final rule. It has been up for judgment in a number of cases in the Supreme Court of the United States, among which the leading cases are Chapman v. Wintroath, 252 U. S. 126, 40 S. Ct. 234, 64 L. Ed. 491; Webster Electric Co. v. Splitdorf Electric Co., 264 U. S. 463, 44 S. Ct, 342, 68 L. Ed. 792; Overland Motor Co. v. Packard Motor Co., 274 U. S. 417, 47 S. Ct. 672, 71 L. Ed. 1131; Milburn Co. v. Davis, etc., Co., 270 U. S. 390, 46 S. Ct. 324, 70 L. Ed. 651, as, also, in the very late ease of Wagenhorst v. Hydraulic Steel Co., 27 F.(2d) 27, from the Sixth Circuit Court of Appeals. “From the above eases, I am of opinion, that no hard and fast rule exists whereby the lapse of more than two years between, the date of the original application and a divisional application, or between divisional applications, creates an absolute bar to validity, ipso facto. It is not safe to attempt to lay down a thorough-going rule, or to pass upon all possible phases of this question, until they shall be met face to face in a concrete case, and the Supreme Court has wisely refrained from doing so. * . * *' “However all this may be, the rules, so far as they seem to be made rules by stare decisis, and so far as the eases have gone, I construe thus: “(a) If, in an application for a patent, functions are present and disclosed, but not claimed, the filing date of the original application will be deemed the date of the reduction to practice of all functions and potential claims so present, but not claimed, and subsequent claims, will, ordinarily, relate back to such original filing date. “(b) The applicant may, in the presence of such disclosure of functions unclaimed, pending prosecution, amend his claims, or file divisional applications on specific forms generically disclosed, in the original application, as, of course, at any time within two years after filing the original application. “(e) The applicant may so amend or file divisional applications even where, within the two years, applications are filed by strangers claiming the functions existing and disclosed (but not claimed) in and' by the original application. “(d) Absent estoppel in pais, through accrual of public or private rights, such amendments of claims, or the filing of such divisional applications, may be allowed more than two years after the original application is filed, or after the last preceding divisional application is made, (e) But if a patent, whieh makes claim to the subject-matter present and disclosed in the application of the original applicant, but not claimed by the latter, shall have been issued to a stranger more than two years after the original applicant files his original application, the latter can thereafter neither amend his original claims (so as to broaden, them) nor file a divisional application, embracing claims, so after two years patented to a stranger. “I deduce these rules from the cases I cite above, from the Supreme Court, both as I construe these eases, and as they are construed in the late and most excellent opinion of Judge Denison, in the case of Wagenhorst v. Hydraulic Steel Co., supra. “Applying these rules to the facts here, I am of the opinion that the patents in suit are not invalid because of delays, estoppel or laches. * * * “I am also of the opinion that the claims of these paténts in suit are not anticipated by the prior art patents in evidence. Those largely relied on by defendant, as anticipatory, aré: Brookfield, No. 883,779; Cleveland, No. 90Í,881; Hitchcock, No. 805,067 and No. 805,068; Mansfield, No. 854,511; Morrison, No. 810,167; Proeger, No. 1,-059,634; Schulze-Berge, No. 421,620; Severin, No. 892,013, and the French patent to Wilzin, No. 439,150. “I have very carefully considered the construction, operation and outstanding features of each of the patents mentioned. “Brookfield, issued in 1903, had a valve, so-called, similar to the Steimer and Peiler plunger, but no suspended charge, or severing shears, or means out of smearing relation, and no means to ehange the operating phase while in operation. “Cleveland, issued in 1908, is practically similar to Brookfield. What is said as to Brookfield may be said, generally, as to Cleveland, and it is difficult to understand why a patent was issued to him, in the light of the prior art as shown by Brookfield. “Hitchcock, issued in 1905, used compressed air to force glass from the fore-hearth, but he did not sever suspended charges out of smearing relation with the lip of the outlet. “Also, Brookfield, by creating a partial vacuum, retracted glass above the plane of severance. “The other patent of Hitchcock, issued also in 1905, and above mentioned, differed but little, so far as concerns operation, from the first-mentioned Hitchcock patent. There are to be found little differedces as to the mechanics of operation. The essential elements seem very similar, and, again, cause a question to arise as to why he was able to obtain the latter patent, over his former disclosure. “Mansfield, issued in 1906, uses rolls to force or roll out glass from the furnace, or melting hearth, and he cuts the gob, so rolled out, while it is supported on a cooled plate. This cut is made in smearing relation to a horizontal outlet. “Morrison issued in 1906, employs a plunger, whieh reciprocates, but which cannot be changed as to time and length of stroke while in operation. The gob of glass severed falls directly into parison molds set in a revolving table, and the gob is cut off right at the exit, by shearing action of the-mold cup edges when the latter are revolved against the lower edge of the exit. “Proeger, issued in 1913, employs a vacuum chamber, which alternately forces out a gob of glass, which is cut off by an electric spark. He uses no plunger, such as is disclosed, at least, by the patents in suit. “Schulze-Berge, issued in 1890, employs a vacuum chamber into which compressed air is introduced, which produces a varying intermittent flow, from an exit which stands at an angle of about forty-five degrees. There is supposed to occur a pulsating discharge. No means, except gravity acting on the size of gob ejected, are shown to sever the gob. It is either severed, or may be severed, by shears manually operated by a worker, or by some of the mechanisms of the prior art, but no method of severance is shown. “Severin, issued in 1908, employs a plunger, which works practically or wholly hermetically, in, I believe, a measuring chamber in the bottom of the forehearth. There is a pulsating discharge of the glass, which vertically flows from a spout. No cut-off means are shown, except gravity, or the assumption of hand-operated shears. “The French patent of Wilzin, No. 439,-150, disclosed a stream-feeder, actuated by a plunger, but it did not suspend the charge; hence, no means to vary the lengths exist, and it did not sever the gob out of smearing relation with the exit. “Some other patents in the prior art, among the one hundred and forty-two pleaded here, may have some relevancy. I have examined all of them which were referred to by the witnesses as being the' closest. Those I have referred to, and briefly explained above, seem to me, as they seemed to the experts, to be the most nearly relevant. It may be conceded, that some of them, in every case very crudely, show ode element of the patent in suit, and some of them another, but none of them discloses the combinations, in their entireties, and then, as said, but crudely. “Steimer and Peiler made great improvements, which of themselves show invention. Devices made under their patents became almost at once popular, and have all but occupied the whole field. The fact of the grants and the great public acclaim, are to be considered as creating presumptions of validity, when validity is in doubt. “As to the validity of some of the claims of Peiler, I am in doubt,- greatly in doubt, but I resolve these doubts in favor of such claims, by consideration of the presumption of validity arising from the fact of grant, and from the fact of great commercial acclaim. The ten long years of contests and interferences in the Patent Office would seem to create the inference that the claims of Peiler and Steimer were subjected there to the very greatest and most careful scrutiny. “I conclude that claims 1 to 6, both inclusive, of the Steimer patent in suit, are valid, and are infringed by the defendant’s accused device; that claims 15, 16, 18, 19, 21, 22, 23, 26, 27, 28, 29, 33, and 36 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_state

56

What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MASTER SLACK AND/OR MASTER TROUSERS CORP., Hardeman Garment Corp., Morehouse Garment Corp., Lauderdale Garment Corp., and Lobel-ville Garment Corp., Respondents. No. 84-5387. United States Court of Appeals, Sixth Circuit. Argued April 4, 1985. Decided Sept. 17, 1985. Elliott Moore, W. Christian Schumann, Michael David Fox, Deputy Associate Gen. Counsel, N.L.R.B., National Labor Relations Board, Margaret Bezou, argued, Washington, D.C., for petitioner. Thomas J. Hughes, Jr. (argued), Jackson, Lewis, Schnitzler & Krupman, Ann Bach-man Hale, Atlanta, Ga., for respondents. Before KEITH and KRUPANSKY, Circuit Judges, and COHN, District Judge. The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan, sitting by designation. COHN, District Judge. The National Labor Relations Board (the Board) petitions to enforce a supplemental back pay order directing respondents to make whole 28 discriminatees who were wrongfully discharged by Hardeman Garment Corp. (Hardeman), a subsidiary of Master Slack and/or Master Trousers Corp. Respondents challenge the Board order only as it relates to 11 discrimina-tees, and do not dispute the back pay awards ordered for the other 17. Their primary contention is that the Board erred in holding that certain findings made in the underlying unfair labor practices proceeding precluded respondents from contending in the back pay proceeding that a plant shutdown should cut off the back pay awards. Respondents also contend the Board’s back pay awards to two discrimina-tees are not supported by substantial evidence. For the reasons stated below, we enforce the order only in part. I. HISTORY On July 20, 1973, the Amalgamated Clothing and Textile Workers Union, AFL-CIO (the Union), won an election among Hardeman’s production and maintenance employees at a plant located in Bolivar, Tennessee. The Union was certified by the Board on January 4, 1974. Hardeman opposed the Union’s certification and continued to operate on the whole as if the Union didn’t exist. The Union filed several unfair labor practice charges from 1973 through 1974 over various company practices. The charges were consolidated and a single hearing was held before administrative law judge Thomas A. Ricci. As relevant here Judge Ricci found that Hardeman had violated Section 8(a)(3) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(a)(3), in terminating the night shift at the Bolivar plant, which resulted in the lay off of 20 workers, 3 days before the union election. The Board, after exceptions were filed by both sides to Judge Ricci’s order, affirmed this ruling and determined that Hardeman had also violated Sections 8(a)(1) and (5) of the Act, 29 U.S.C. § 158(a)(1) and (5), in laying off 8 more employees due to stricter enforcement of absenteeism and tardiness rules after the Union won the election. The Board further found Hardeman had violated Sections 8(a)(1) and (5) in failing to notify and bargain with the Union prior to the layoff of all employees (about 400) when the Bolivar plant was shut down in the fall of 1974 and also in failing to notify and bargain with the Union when the plant was reopened in 1975 and 80 employees were recalled. This court enforced the Board’s order. See NLRB v. Master Slack, 618 F.2d 6 (6th Cir.1980). Judge Ricci, in discussing the appropriate remedy in the unfair labor practices proceeding, found that back pay awards in many cases should continue past the plant shutdown in 1974, even though he had earlier stated, “[tjhere is no contention by the General Counsel that the 1974 closing was occasioned by anything other than purely economic factors.” In their orders neither Judge Ricci nor the Board stated that back pay awards should run for any particular period; the orders merely stated that wrongfully discharged employees should be made whole “for any loss of pay or any benefits they may have suffered by reason of Respondent's discrimination against all of them.” Respondents did not object to Judge Ricci’s specific findings made about the length of the back pay periods in either their exceptions to the Board or in the enforcement proceeding before this court. When the parties were unable to agree on compliance a supplemental hearing was held on June 23 and 24, 1981 before administrative law judge Philip P. McLeod. Judge McLeod rejected the company’s argument that the plant shutdown in 1974 should cut off back pay awards for all discriminatees. He concluded the doctrine of res judicata barred respondents from relitigating that issue since Judge Ricci had found that back pay awards in several instances continued past the shutdown. He further concluded that since respondents had acted unlawfully in shutting down and reopening the plant by failing to bargain with the Union the back pay awards should continue past that point. In this proceeding for enforcement of the Board’s back pay order respondents contend Judge Ricci’s findings should not preclude relitigation on the effect of the plant shutdown on back pay awards. Respondents also contend there is not substantial evidence in the record to support the back pay awards to Willie Spencer and Margie Wilson. II. ISSUE PRECLUSION We must first determine whether Judge Ricci’s general finding that many back pay periods were to continue past the point of the plant shutdown precluded relitigation in the back pay proceeding on the effect of the plant shutdown on back pay awards. Generally, a factual finding which was necessary to support the judgment in a prior proceeding will bar relitigation on that issue in a subsequent proceeding involving the same parties. See Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 and n. 5, 99 S.Ct. 645, 649 and n. 5, 58 L.Ed.2d 552 (1979); Marlene Industries Corp. v. National Labor Relations Board, 712 F.2d 1011, 1015-16 (6th Cir.1983); United States v. Stauffer Chemical Co., 684 F.2d 1174, 1180 (6th Cir.1982), aff'd 464 U.S. 165, 104 S.Ct. 575, 78 L.Ed.2d 388 (1984). The policies underlying this rule include the preservation of judicial resources and the protection of litigants. Montana, supra, 440 U.S. at 153-54, 99 S.Ct. at 973-74. The findings of agencies made in the course of proceedings which are judicial in nature should be given the same preclusive effect as findings made by a court. United States v. Utah Construction & Mining Co., 384 U.S. 394, 421-22, 86 S.Ct. 1545, 1559-60, 16 L.Ed.2d 642 (1966). Issue preclusion should only be applied where the identical issue sought to be relitigated was actually determined and necessarily decided in a prior proceeding in which the litigant against whom the doctrine is asserted had a full and fair opportunity to litigate the issue. See Montana, supra, 440 U.S. at 153, 99 S.Ct. at 973; Parklane Hosiery, supra, at 326 n. 5; Marlene Industries, supra, at 1015-16. A factual issue is “necessarily decided” if its determination was necessary to support the judgment entered in the prior proceeding. See 18 Wright, Miller & Cooper, Federal Practice & Procedure § 4421, p. 192; Marlene Industries, supra, at 1015-16. While the effect of the 1974 shutdown and 1975 reopening of the plant was actually litigated in the underlying unfair labor practices proceeding it was not necessary to the Board’s order. Accordingly Judge Ricci’s findings cannot preclude relitigation on that issue in the supplemental backpay proceeding. “ Tt is basic to the law of [issue preclusion] that a finding in one proceeding cannot bind tribunals in subsequent cases unless the finding acted as a basis for final judgment in the first.’ ‘The determination of an issue in an earlier proceeding must be essential to the judgment; it cannot be dicta.’ ” (citations omitted) Marlene Industries, supra, at 1015-16. See also Block v. Bourbon County Commissioners, 99 U.S. (4 Otto) 686, 693, 25 L.Ed. 491 (1878); Segal v. American Telephone & Telegraph Co., Inc., 606 F.2d 842, 845 n. 2 (9th Cir.1979); Evans v. Wilkerson, 605 F.2d 369, 372 (7th Cir.1979). Judge Ricci’s finding that back pay periods should continue past the point of the plant shutdown was not essential to either his order or the Board’s order; it was mere dicta. The Board’s order, like Judge Ric-ci’s order, simply states that respondents “shall ... [m]ake all ... [wrongfully discharged] employees whole for any loss of pay or any other benefits they may have suffered by reason of the respondent’s discrimination against all of them.” This is typical of orders in unfair labor practices proceedings where the Board simply determines if unfair labor practices have occurred and what remedies would effectuate the purposes of the Act. See NLRB v. Deena Artware, Inc., 361 U.S. 398, 411, 80 S.Ct. 441, 447, 4 L.Ed.2d 400 (1960) (Frankfurter, J., concurring); 29 C.F.R. § 102.45. The exact amount of back pay owing is not stated and is left to be determined in a subsequent back pay proceeding if the parties cannot resolve the amounts owing informally. See Deena Artware, supra; 29 C.F.R. § 102.52. Drawing an analogy from court cases, the unfair labor practices proceeding determines liability; a subsequent back pay proceeding, if necessary, determines damages. The only factual determinations necessarily decided to enter an order that discharged employees be made whole are (1) that the respondent violated the Act in discharging employees, and, (2) that back pay is an appropriate remedy. See Section 10(c) of the Act, 29 U.S.C. § 160(c). It is not necessary to determine the exact amount of back pay owing nor whether subsequent events would have resulted in layoffs of discharged employees totally apart from the wrongful conduct. “[Questions relating to the exact amount of back pay owing (including whether ... at some reasonably determinable date employment with [the company] would not have been available because [company] operations would have ceased for independent, nondiscriminatory reasons) are prematurely raised in [an] enforcement petition. Those issues may be explored in a compliance proceeding.” Great Chinese American Sewing Co. v. NLRB, 578 F.2d 251, 255-56 (9th Cir.1978). See also, NLRB v. Dazzo Products, Inc., 358 F.2d 136, 138 (2nd Cir.1966). In sum, Judge Ricci’s finding that back pay awards should continue past the point of the 1974 plant shutdown was not necessary to support his order or the Board’s order and therefore his finding does not bar relitigation on that issue. To the contrary, the determination of whether the shutdown should cut off back pay awards belonged in the back pay proceeding. III. SECTION 8(a)(5) VIOLATIONS This does not settle the matter since Judge McLeod did not solely rely on the doctrine of issue preclusion in ruling that the plant shutdown would not terminate back pay awards. He alternatively ruled against respondents because Hardeman violated § 8(a)(5) in failing to bargain with the Union when the plant was shut down in 1974 and reopened in 1975. He reasoned: “Respondent’s argument [that the plant shutdown should terminate all backpay awards] overlooks the fact that the Board, with Circuit Court agreement, found the method in which Respondent effected both the layoff and recall to be unlawful in violation of Section 8(a)(5) of the Act. In order to find merit to this asserted defense of Respondent, one would have to invoke a presumption that if Respondent had acted lawfully and fulfilled its obligation to bargain with the Union in good faith, the exact same result would have occurred as did occur. Since it is impossible to determine what would have occurred if Respondent had fulfilled its lawful obligation to bargain with the Union, Respondent’s unlawful conduct could not serve to terminate backpay.” Judge McLeod’s ruling, however, does not have factual support in the record and the remedy of back pay past the plant shutdown goes beyond the scope of proper remedies under the Act. Section 10(c) of the Act, 29 U.S.C. § 160(c), charges the Board with “taking such affirmative action including reinstatement of an employée with or without back pay as will effectuate the policies of [the Act].” The Board’s discretion to fashion appropriate remedies for violations of the Act is quite broad and its choice of remedies should be set aside only if “it can be shown that the order is a patent attempt to achieve ends other than those which can be fairly said to effectuate the policies of the Act.” NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258, 263, 90 S.Ct. 417, 420, 24 L.Ed.2d 405 (1969) (citation omitted). Back pay awards are intended to “mak[e] employees whole for losses suffered on account of an unfair labor practice.” Id. (citation omitted). The purpose is to “restor[e] the economic status quo that would have obtained but for the company’s wrongful [act].” Id. It is improper, however, to award back pay if an employer can show that even if employees had been treated with total fairness they would have been discharged at a later date. See NLRB v. J.S. Alberici Construction Co., Inc., 591 F.2d 463, 470 n. 8 (8th Cir.1979); NLRB v. Amoco Chemicals Corp., 529 F.2d 427 (5th Cir.1976). The Board ordered that backpay awards of employees discharged in 1973 continue past the shutdown of the Hardeman plant in the fall of 1974 solely because Hardeman failed to bargain with the Union over the effects of the shutdown and subsequent reopening of the plant. There was no finding, and no evidence, that the shutdown of the plant was motivated by any anti-union animus in violation of § 8(a)(3). Backpay can be an appropriate remedy for a § 8(a)(5) violation. See Morrison Cafeterias Consolidated, Inc. v. NLRB, 431 F.2d 254 (8th Cir.1970); Avila Group, Inc., 218 NLRB 633, 89 LRRM 1364 (1975); see also The Developing Labor Law, pp. 1676-1678 (Morris ed. 2d ed. 1985). It is a proper remedy where it serves to make whole employees for losses suffered due to an employer’s failure to bargain, and also where it creates an incentive for the employer to bargain in good faith with the union representing the employees. See Avila Group, supra. The backpay award in a failure to bargain case runs from the date of termination only until the parties reach agreement or a good faith impasse in bargaining, see The Developing Labor Law, supra, at 1677, and in any event is cut off if the union fails to request bargaining. Morrison Cafeterias, supra, at 254. In this case the decision that back-pay awards for employees who had been wrongfully discharged over a year before the plant shutdown continue past the shutdown does not appear to serve any proper remedial purpose under the Act. All employees suffered equally due to Hardeman’s failure to bargain with the Union. The 11 employees listed in footnote 3 have no right under the Act, absent special facts, to preferential treatment over other employees. Seven of the 11 had been recalled to work before the plant shutdown. Backpay awards dating from the time each employee was wrongfully terminated until they were recalled or until the plant shutdown fully reestablishes the status quo and puts those individuals on an equal economic footing with all other plant employees. Any backpay awarded to remedy Hardeman’s failure to bargain, if appropriate at all, should be awarded equally to all employees affected by the plant shutdown, since all were equally injured by Harde-man’s failure to bargain, and not just to the 11 employees listed in footnote 3. The backpay awards for these 11 employees, insofar as they extend past the plant shutdown, appear to be punitive rather than remedial. The Board’s order, awarding backpay past the plant shutdown only to certain employees, can be enforced only if there is evidence in the record to support the distinction made between employees who had been illegally terminated at an earlier date and all other employees. This requires a finding that had Hardeman bargained in good faith over the effects of the plant shutdown and the subsequent reopening the 11 employees listed in footnote 3 would have been given preferential hiring rights over all other employees. Had Hardeman bargained in good faith with the Union several things could have happened. Hardeman and the Union could have reached an agreement to keep the plant totally or partially opened. However, even after bargaining in good faith, Harde-man could still have elected to shut down the plant for purely economic reasons. Hardeman was not required to bargain over the actual decision to shut down the plant but only over the effect of that decision on its employees. See First National Maintenance Corp. v. NLRB, 452 U.S. 666, 101 S.Ct. 2573, 69 L.Ed.2d 318 (1981); NLRB v. Gibraltar Industries, Inc., 653 F.2d 1091 (6th Cir.1981). On the sparse record before us it is wholly speculative to state what would have happened had Hardeman bargained with the Union concerning the effects of the shutdown and reopening of its plant. It stretches credulity to suggest that the Union, charged with representing all plant employees, would have insisted that the 11 discriminatees listed in footnote 3 be given preferential hiring, disregarding their length of service in relation to other employees. Backpay awards to the 11 employees listed in footnote 3 which extend past the plant shutdowns do not further any policy under the Act and will not be enforced. IV. WILLIE SPENCER AND MARGIE WILSON Respondents specifically challenge the Board's award of back pay to two discrimi-natees as not supported by substantial evidence in the record. Respondents argue Willie Spencer never looked for replacement work after being discharged from Hardeman and is therefore not entitled to back pay. Respondents also contend Margie Wilson failed to engage in a diligent search for interim employment after the second quarter of 1974. When an employee is discharged due to anti-union animus there is a presumption that some back pay is owing. NLRB v. Mastro Plastics Corp., 354 F.2d 170, 178 (2nd Cir.1965), cert. denied, 384 U.S. 972, 86 S.Ct. 1862, 16 L.Ed.2d 682 (1966). The respondent has the burden of proving that a back pay award should be reduced due to a willful failure to seek interim employment. McCann Steel v. NLRB, 570 F.2d 652, 655 n. 4 (6th Cir.1978). This court recently summarized the law concerning the failure of discharged employees to mitigate damages in NLRB v. The Westin Hotel, 758 F.2d 1126 (6th Cir.1985): “[A] wrongfully discharged employee is only required to make a reasonable effort to mitigate damages, and is not held to the highest standard of diligence. This burden is not onerous, and does not mandate that the plaintiff be successful in mitigating the damage. Finally, it must be remembered that the Board’s conclusion as to whether an employer’s asserted defenses against liability have been successfully established will be overturned on appeal only if the record, considered in its entirety, does not disclose substantial evidence to support the Board’s findings.” Id. at 1130 (citations omitted). A. Willie Spencer Willie Spencer already had a day job when he was laid off by Hardeman. He did not look for other work until he was laid off from his day job. Respondents contend this demonstrates Spencer’s night job at Hardeman was only “supplemental”. Judge McLeod found that it was impossible to determine which job was “primary” and which “supplemental”, and that it was just as plausible to assume that had Spencer lost his day job he would have been content to work at only his night job at Hardeman. Judge McLeod’s determination is reasonable on the record before us; there is therefore substantial evidence to support the Board’s decision that Spencer was entitled to back pay, with the computation being tolled during the period he worked at his day job. After he was laid off from his day job, Spencer diligently looked for other employment. The Board’s order for back pay to Spencer is enforced, with the limitation set forth in Section III of this opinion. B. Margie Wilson Margie Wilson’s testimony was that she consistently applied for jobs from 1973 through 1980. Respondents contend her testimony showed that when she was employed during that period her efforts at working were half-hearted and that as a consequence she made herself unemployable. Wilson explained the reasons she left each job where she was employed from 1973 through 1980. Judge McLeod credited her testimony, even though he found her answers were often “vague and indefinite.” He noted Wilson is rural and uneducated and that the vagueness in her testimony was probably caused by these factors coupled with the difficulty of remembering events spreading over 8 years prior to the hearing. There is substantial evidence in the record to support the Board’s order of back pay to Wilson; she made a “reasonable effort to mitigate damages.” Westin Hotel, supra, at 1130. V. SUMMARY The Board’s order of back pay for the 17 discriminatees listed in footnote 4 is enforced in full. Respondents do not challenge those awards. The Board order of back pay for the 11 discriminatees listed in footnote 3 is only enforced through the mid-third quarter of 1974, when the Harde-man plant shut down. Any backpay award to the employees listed in footnote 3 beyond that quarter is denied enforcement. . These individuals are called discriminatees because their discharge was motivated by an anti-union discriminatory animus. . Apart from Master Slack the other named respondents are all, like Hardeman, wholly owned subsidiaries of Master Slack. Master Slack and the other subsidiaries were joined as defendants solely for purposes of the back pay awards. See NLRB v. Master Stack, 618 F.2d 6 (6th Cir.1980). . Earlie Cheairs, Ray Davis, Alma Jones, Nathaniel McClellan, Gladys McGowan, Doris McNeal, Wiley Murphy, Lurlene Pirtle, Willie Spencer, Ressie Ford Traylor, and Margie Wilson. Of these, Cheairs, Traylor, Pirtle, McNeal, McClellan, Jones, and Davis were rehired at various points in time from August, 1973 through May, 1974. However, they all lost their jobs when the Hardeman plant was shut down in the fall of 1974 and none of them were rehired when the plant reopened in 1975. . Grace Beard, Mose Burkley, Peggy Peoples Harris, Freddie Jones, Mattie Jones, Earline Lake, Leroy Lake, Annie McKinnie, Percy McNeal, Donald Moss, Vera Norment, Juanita Phillips, Allan Lynn Russell, Johnny Russell, Leo Sain, Ernest Williams, and Patricia Williams. . Willie Spencer and Margie Wilson, 2 of the 11 discriminatees listed in footnote 3, supra. . This section states that it shall be an unfair labor practice for an employer to "discrimi-nat[e] in regard to hire or tenure of employment of any term or condition of employment to encourage or discourage membership in any labor organization.” . Sec. 8(a)(1) states that it is an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights [to organize and participate in labor organizations]”. . In Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 894 n. 1, 79 L.Ed.2d 56 (1984), the United States Supreme Court discussed the confusing variance in terminology surrounding the concept of preclusion: “The preclusive effects of former adjudications are discussed in varying and, at times, seemingly conflicting terminology____ These effects are referred to by most commentators as the doctrine of ‘res judicata’. Res judicata is often analyzed further to consist of two preclusion concepts: 'issue preclusion’ and ‘claim preclusion’. Issue preclusion refers to the effect of a judgment in foreclosing relit-igation of a matter that has been litigated and decided. This effect also is referred to as direct or collateral estoppel. Claim preclusion refers to the effect of a judgment in foreclosing litigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit____ This Court on more than one occasion has used the term 'res judicata’ in a narrow sense, so as to exclude issue preclusion or collateral estoppel. When using that formulation, ‘res judicata’ becomes virtually synonymous with ‘claim preclusion’. In order to avoid confusion resulting from the two uses of ‘res judica-ta’, this opinion utilizes the term ‘claim preclusion' to refer to the preclusive effect of a judgment in foreclosing relitigation of matters that should have been raised in an earlier suit.” In this case the parties and the Board all referred generally to the doctrine of “res judica-ta” even though the problem here is one of issue preclusion rather than claim preclusion. For the sake of clarity this court will follow the lead of the Supreme Court. Accordingly, the term "issue preclusion” will be used throughout this opinion in discussing whether respondent is foreclosed from relitigating issues decided in the prior unfair labor practices proceeding. . Had the Board found that anti-union animus in violation of § 8(a)(3) had been the cause of the plant shutdown it could have awarded back-pay extending past the plant shutdown not only to employees illegally discharged prior to the shutdown but to all the employees at the plant. See NLRB v. National Car Rental System, Inc., 672 F.2d 1182, 1191 (3d Cir.1982); Electrical Products Division of Midland-Ross Corp. v. NLRB, 617 F.2d 977 (3d Cir.1980), cert. den. 449 U.S. 871, 101 S.Ct. 210, 66 L.Ed.2d 91 (1980). . The record does not contain the date when Spencer was laid off from his day job. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:

songer_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". Cleophas L. COX and Rose M. Cox, Petitioners-Appellants, v. Manuel CHACO, Director of Revenue and Taxation, and Government of Guam, Respondents-Appellees. No. 78-2208. United States Court of Appeals, Ninth Circuit. Submitted June 11, 1980. Decided Feb. 2, 1981. As Amended on Denial of Rehearing and Rehearing En Banc June 22, 1981. Gerald E. Stinson, Crain & Shoecraft, Agana, Guam, for petitioners-appellants. Roger E. Willmeth, Agana, Guam, for respondents-appellees. Before CHOY and NELSON, Circuit Judges, and SCHNACKE, District Judge. The Honorable Robert H. Schnacke, United States District Judge for the Northern District of California, sitting by designation. CHOY, Circuit Judge: , Cleophas and Rose Cox, taxpayers, petition from a judgment of the district court denying their claim for a tax refund. We find that the district court correctly held that the taxpayers could not exclude certain rental payments from their gross income, and accordingly we affirm the judgment below. I. FACTS Mr. Cox was an employee of the Federal Aviation Administration (“FAA”) during the relevant tax year. He was assigned to the Guam region and he and his family lived in FAA housing there. Cox was the FAA Resident Director for Guam, and his responsibilities included air traffic control and crash investigations, as well as overseeing day-to-day housing matters. He received a standard FAA salary for such a position, and from that salary the Government deducted a portion for rental of Cox’s FAA quarters. Thus Cox never physically handed over his rent payments to the FAA and his take-home pay did not include the amount allocated to rent. Cox’s home is eight-tenths of a mile from his office. Both the home and office are within the FAA complex. Cox testified that he would not be able to manage the FAA complex “long distance” and that his job required his physical presence in the complex at all hours. He received long distance business phone calls at night and on weekends because of date and time differences; other FAA employee-residents would come to Mr. Cox with housing complaints, although there was a housing director who had primary responsibility for housing matters. Cox’s superior testified that Cox was required to live in the FAA complex. The district court found, inter alia, that the evidence was insufficient to show that Cox was required to live in the FAA complex as a condition of employment. The district court noted that answering phone calls and handling housing complaints were a minor part of Cox’s overall responsibilities. There is no evidence in the record that non-government housing was not available, or that Cox’s salary would be reduced if he did not live in the FAA complex. Cox told a government auditor that he would not be fired if he chose to live elsewhere. II. ISSUES Cox’s unique living and working arrangement gives rise to the question here. Cox claims that under 26 U.S.C. § 119, he is entitled to exclude the amount of his salary allocated to rent from his gross income since he is required to live on FAA premises as a condition of employment. The Guam Director of Taxation, on the other hand, contends that § 119 does not apply in this case because Cox pays rent for his housing, rather than receiving housing in kind; and that even if § 119 does apply, Cox has failed to prove the elements of a § 119 exclusion. III. DISCUSSION Cox claims that the amount withheld from his salary for rent should be excluded from his gross income. Such exclusion would have the effect of taxing Cox as if he made less than other FAA directors, since the amounts withheld for rent would not be treated as income. In order to receive this obviously advantageous tax treatment under § 119, the taxpayer must prove three elements: (1) that such lodging be furnished for the convenience of the employer; (2) that it be located on the business premises of the employer; and (3) that the employee be required to accept such lodging as a condition of his employment. Commissioner v. Anderson, 371 F.2d 59, 63 (9th Cir. 1966), cert. denied, 387 U.S. 906, 87 S.Ct. 1687, 18 L.Ed.2d 623 (1967). In this case, the district court found to be lacking the third element which requires that lodging be furnished as a condition of employment. A review of the record reveals that Cox and his superior stated that Cox was required to reside in the FAA complex, but their statements were not supported by independent evidence or by a detailed explanation indicating why such residency was necessary. When pressed on cross-examination, Cox’s explanation was ambiguous. His statements were not uncontroverted. The trial judge observed the demeanor of the witnesses and could have discounted their testimony as self-serving and tax motivated. On the face of this record, the trial court was not clearly erroneous in its finding that Cox was not required to live in the FAA complex as a condition of employment. Compare Caratan v. Commissioner, 442 F.2d 606 (9th Cir. 1971), (“condition of employment” finding reversed where the court was “left with the definite and firm conviction” that a mistake had been committed and where the tax court erroneously relied on its own business judgment as to whether the taxpayer’s job required his presence at all times). Because we find that Cox failed to prove an essential element of a § 119 exclusion, we need not reach the question of whether § 119 applies at all where the FAA housing was furnished but paid for by a salary deduction. IV. CONCLUSION The trial court’s finding that Cox was not required to accept government housing as a condition of employment was not clearly erroneous. The decision is AFFIRMED. . Treas.Reg. § 1.119 — 1(b) permits the exclusion for lodging to be claimed where the three stated tests are met “irrespective of whether a charge is made” for the lodging. The regulation follows Boykin v. Commissioner, 260 F.2d 246 (8th Cir. 1958). The Director suggests that the recent Supreme Court decision in Commissioner v. Kowalski, 434 U.S. 77, 98 S.Ct. 315, 54 L.Ed.2d 252 (1977), which disallowed § 119 exclusion for cash meal allowances paid to state troopers in lieu of meals, would likewise bar an exclusion for lodging where, as here, a rental payment is deducted from the taxpayer’s salary. We need not, however, reach this question here. 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_issuearea

I

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. PANAMA CANAL CO. v. GRACE LINE, INC., et al. No. 251. Argued April 2-3, 1958. Decided April 28, 1958. Solicitor General Rankin argued the cause for the Panama Canal Co. With him on the brief were Assistant Attorney General Doub, Paul A. Sweeney and Herman Marcuse. C. Dickerman Williams argued the cause for petitioners in No. 252 and respondents in No. 251. With him on the brief were Gregory A. Harrison and J. Stewart Harrison. Briefs of amici curiae were filed by Lawrence Hunt for the Government of the United Kingdom of Great Britain and Northern Ireland, and James M. Estabrook for Aktieselskabet Dampskibsselskabet Svendborg et al. Together with No. 252, Grace Line, Inc., et al. v. Panama Canal Co., also on certiorari to the same Court. Mr. Justice Douglas delivered the opinion of the Court. Respondents, American shipping companies using the Panama Canal, brought this suit in the District Court to compel petitioner, the Panama Canal Co., to prescribe new tolls for the use of the Canal and to refund tolls which it was alleged had been illegally collected in the past. The District Court dismissed the complaint for lack of jurisdiction of the subject matter. 143 F. Supp. 539. The Court of Appeals refused relief for a refund but on other phases of the complaint entered a summary judgment for the respondent. 243 F. 2d 844. The cases are here on petitions for certiorari which we granted because of the importance of the questions presented. 355 U. S. 810. Petitioner was created by Congress in 1950. 64 Stat. 1041. It holds the assets of the Panama Canal and has the duty of operating and maintaining it. It may sue and be sued in its corporate name. Canal Zone Code, Tit. 2, § 248, 62 Stat. 1078, as amended, 64 Stat. 1038. Prior to 1950 the Panama Canal was operated by the President through the Governor of the Canal Zone. 37 Stat. 561. Business activities incident to that operation were conducted by the Panama Railroad Co., a federal corporation, 62 Stat. 1076, which was an agency and instrumentality of the United States, ibid. Those auxiliary business activities were “designed and used to aid” in the management and operation of the Canal. See New York ex rel. Rogers v. Graves, 299 U. S. 401, 406. Since 1950 all those business activities have been carried on by petitioner, the Panama Canal Co., all of whose stock is held by the President or his designee, Canal Zone Code, Tit. 2, § 246 (a), the present designee being the Secretary of the Army. The Hay-Pauncefote Treaty, proclaimed February 22, 1902, 32 Stat. 1903, provided in Article III that the “charges of traffic shall be just and equitable.” Under the original Panama Canal legislation, 37 Stat. 562, the President was authorized to fix the tolls on six months’ notice by proclamation. Under that Act the tolls were to be not less than 750 nor more than $1.25 per net registered ton. In 1937 the ceiling was lowered to $1 per net vessel ton, the minimum of 750 being retained. 50 Stat. 750. When President Truman in 1948 sought to increase the toll rate to the statutory maximum, 62 Stat. 1494, Congress asked the President to withhold action until the entire problem could be studied. See H. R. Rep. No. 1304, 81st Cong., 1st Sess. 7. President Truman agreed by revoking his proclamation, 64 Stat. A433, and agreeing to the study. On the basis of that study Congress separated the governmental functions of the Canal from its transit and business functions, the latter to be operated by petitioner. See H. R. Doc. No. 460, 81st Cong., 2d Sess.; H. R. Rep. No. 2935, 81st Cong., 2d Sess. It was learned that if the Canal were operated at cost, the tolls would have to be raised to a prohibitive level. Congress therefore undertook to reduce the financial burden that was imposed upon the users of the Canal. The interest on the capital investment of the United States was reduced and interest accrued during the construction period was to be disregarded for the purposes of computing interest on the capital investment. Free transits of government-owned vessels were eliminated for accounting purposes. The supporting business activities previously operated by the Panama Railroad Co. were to bear a proportionate share of the cost of the Canal Zone Government from which they had been exempted. H. R. Doc. No. 460, 81st Cong., 2d Sess. And the “net costs of operation of the Canal Zone Government” were declared by Congress “to form an integral part of the costs of operation of the Panama Canal enterprise as a whole.” See Canal Zone Code, Tit. 2, § 246 (e), 64 Stat. 1041. It was to carry out these provisions that the Congress merged the functions of operating and maintaining the Canal with the business activities formerly carried on by the Panama Railroad Co. At the same time, the Congress, by the Act of September 26, 1950, 64 Stat. 1038, Canal Zone Code, Tit. 2, §§ 411, 412, made changes in the provisions for the fixing of tolls. Section 411 provides: “The Panama Canal Company is authorized to prescribe and from time to time change (1) the rules for the measurement of vessels for the Panama Canal, and (2), subject to the provisions of the section next following, the tolls that shall be levied for the use of the Panama Canal: Provided, however, That the rules of measurement, and the rates of tolls, prevailing on the effective date of this amended section shall continue in effect until changed as provided in this section: Provided further, That the said corporation shall give six months’ notice, by publication in the Federal Register, of any and all proposed changes in basic rules of measurement and of any and all proposed changes in rates of tolls, during which period a public hearing shall be conducted: And provided further, That changes in basic rules of measurement and changes in rates of tolls shall be subject to, and sliall take effect upon, the approval of the President of the United States, whose action in such matter shall be final and conclusive.” Section 412 (b) provides the formula which petitioner must employ in computing new tolls: “Tolls shall be prescribed at a rate or rates calculated to cover, as nearly as practicable, all costs of maintaining and operating the Panama Canal, together with the facilities and appurtenances related thereto, including interest and depreciation, and an appropriate share of the net costs of operation of the agency known as the Canal Zone Government. In the determination of such appropriate share, substantial weight shall be given to the ratio of the estimated gross revenues from tolls to the estimated total gross revenues of the said corporation exclusive of the cost of commodities resold, and exclusive of revenues arising from transactions within the said corporation or from transactions with the Canal Zone Government.” By § 412 (c) vessels operated by the United States, including naval ships, may “in the discretion of the President” be required to pay tolls. In the event they do not, tolls shall nevertheless be computed for that use and the amounts thereof “shall be treated as revenues of the Panama Canal Company for the purpose of prescribing the rates of tolls.” A Committee of the Congress in 1953 directed petitioner to determine the adequacy of the canal tolls. See H. R. Rep. No. 889, 83d Cong., 1st Sess. 10. Petitioner in reply stated that no increase in tolls was at that time indicated but that, should canal traffic decline, and should the decline appear likely to continue for an appreciable length of time, “the Company will promptly take the steps available to it to increase the rates of tolls.” Petitioner, being a wholly owned government corporation, is subject to annual audit by the General Accounting Office. 59 Stat. 599, 31 U. S. C. § 850. And it is provided that the Comptroller General shall report on this audit to the Congress with “such comments and information as may be deemed necessary to keep Congress informed of the operations and financial condition” of the corporation, “together with such recommendations” as the Comptroller General may deem advisable. 31 U. S. C. § 851. The Comptroller General in 1955 expressed the view that the petitioner had allocated too high a share of the costs of the Canal Zone Government, of the corporate overhead, and of interest payments to the operations of the Canal and too little to its supporting or auxiliary activities. H. R. Doc. No. 160, 84th Cong., 1st Sess. According to his method of cost allocation, the canal operations showed a large surplus, the auxiliary or supporting activities a deficit. Ibid. He also claimed that the prices charged for the latter activities were inadequate. Ibid. He went on to give his construction of § 412 (b) of the Canal Zone Code, which was that the tolls must be computed exclusively on the basis of the cost of operating the Canal without reference to the losses incident to the auxiliary or supporting operations. Ibid. He thought this result to be unsound and recommended that § 412 (b) be amended to provide specifically that any losses of the auxiliary or supporting activities be included in the cost basis for the determination of the canal tolls. Ibid. Petitioner vigorously opposes that construction of § 412 (b), maintaining that the Comptroller’s methods of cost allocation and his conclusions violate both sound accounting practices and the Act. Petitioner in particular objects to the Comptroller General’s view that the Act requires the computation of toll rates without regard to any deficit in the operation of the auxiliary or supporting business activities. Petitioner concludes that the downward revision of the tolls recommended by the Comptroller General is not in harmony with the congressional program and that no change in the toll formula is needed. It was shortly after the Comptroller General’s Report for 1954 was submitted to the Congress that respondents instituted this suit. It is, we think, impermissible to conclude that, because petitioner may sue and be sued, this suit can be maintained. We deal here with a problem in the penumbra of the law where generally the Executive and the Legislative are supreme. We do not say, for we are not called upon to do so, that no justiciable issues can arise out of the toll-making procedure for the Panama Canal. All we hold is that the controversy at present is not one appropriate for judicial action. Section 10 of the Administrative Procedure Act, 60 Stat. 243, 5 U. S. C. § 1009, excludes from the categories of cases subject to judicial review “agency action” that is “by law committed to agency discretion.” We think the initiation of a proceeding for readjustment of the tolls of the Panama Canal is a matter that Congress has left to the discretion of the Panama Canal Co. Petitioner is, as we have seen, an agent or spokesman of the President in these matters. It is “authorized” to prescribe tolls and to change them. Canal Zone Code, Tit. 2, § 411. But the exercise of that authority is far more than the performance of a ministerial act. As we have seen, the present conflict rages over questions that at heart involve problems of statutory construction and cost accounting: whether an operating deficit in the auxiliary or supporting activities is a legitimate cost in maintaining and operating the Canal for purpose of the toll formula. These are matters on which experts may disagree; they involve nice issues of judgment and choice, New York v. United States, 331 U. S. 284, 335, which require the exercise of informed discretion. Cf. United States ex rel. McLennan v. Wilbur, 283 U. S. 414; Interstate Commerce Commission v. Humboldt S. S. Co., 224 U. S. 474, 484-485. The case is, therefore, quite unlike the situation where a statute creates a duty to act and an equity court is asked to compel the agency to take the prescribed action. Cf. Virginian R. Co. v. System Federation, 300 U. S. 515, 551; Kansas City So. R. Co. v. Interstate Commerce Commission, 252 U. S. 178. We put the matter that way since the relief sought in this action is to compel petitioner to fix new tolls. The principle at stake is no different than if mandamus were sought — a remedy long restricted, Marbury v. Madison, 1 Cranch 137, 166; Decatur v. Paulding, 14 Pet. 497, 514-517, in the main, to situations where ministerial duties of a nondiscretionary nature are involved. Where the matter is peradventure clear, where the- agency is clearly derelict in failing to act, where the inaction or action turns on a mistake of law, then judicial relief is often available. Harmon v. Brucker, 355 U. S. 579, is a recent example. There the Secretary of the Army issued less than “honorable” discharges to soldiers, based on their activities prior to induction. The Court held that the “records,” prescribed by Congress as the basis for his action, were only records of military service. But where the duty to act turns .on matters of doubtful or highly debatable inference from large or loose statutory terms, the very construction of the statute is a distinct and profound exercise of discretion. See Work v. Rives, 267 U. S. 175, 183; Wilbur v. Kadrie, 281 U. S. 206, 219; United States ex rel. Chicago Great Western R. Co. v. Interstate Commerce Commission, 294 U. S. 50, 62-63. We then must infer that the decision to act or not to act is left to the expertise of the agency burdened with the responsibility for decision. We think this case is in that area. The petitioner, as agent of the President, is given questions of judgment requiring close analysis and nice choices. Petitioner is not only agent for the President but a creature of Congress. It is on close terms with its committees, reporting to the Congress, airing its problems before them, looking to Congress for guidance and direction. It is at least arguable that Congress to date has sided with petitioner and against the Comptroller General in construing §§411 and 412 of the Code. For Congress, fully advised of the Comptroller General’s views in his Report for 1954, approved the budgets for the Panama Canal Co. for 1956, 1957, and 1958, based on petitioner’s interpretation of the statute and its methods of accounting and cost allocation, 69 Stat. 235-237, 70 Stat. 322-324, 71 Stat. 78. That does not necessarily mean that the construction of the Act, pressed on us and on Congress by petitioner, is the correct one. It does, however, indicate that the question is so wide open and at large as to be left at this stage to agency discretion. The matter should be far less cloudy, much more clear for courts to intrude. Reversed. In No. 251 we granted the Panama Canal Co.’s petition for certiorari and in No. 252 we granted a cross-petition filed by the respondents in No. 251. The Panama Canal Co. will hereinafter be referred to as the petitioner. It is not necessary to discuss the petitions separately under the view we take of these cases. The reply was in the form of a letter to the Speaker of the House from J. S. Seybold, President of petitioner, 100 Cong. Rec. (daily ed.) A1995, stating, inter alia: “An initial study of the adequacy of tolls rates under the new legislation has now been completed by the Company. This study reveals that, largely as a result of the very high level of traffic using the canal in recent years without a corresponding increase in costs, the tolls rates that have been in effect since 1938 are still sufficient to cover all operating costs, including interest and depreciation, as required by the tolls statutes. This conclusion is based on the assumption that the Director of the Bureau of the Budget, who under the law must approve the valuation of the assets transferred to the Company from the agency formerly known as the Panama Canal, will concur generally in the valuations tentatively established by the Company upon which the interest and depreciation requirements for the most part have been based. “In recent months, chiefly as the result of the cessation of hostilities in Korea, there has been some drop in traffic transiting the canal. The Company’s study indicates that a further and more substantial decline in the volume of canal traffic during the next few years is to be expected primarily as the result of changing economic factors affecting world movements of petroleum and its products, iron ore, and coal. It is possible that by sometime during the fiscal year 1955 canal traffic will have declined to a point where revenues at existing rates will no longer be adequate to cover all charges. Should this condition materialize and should it appear reasonably certain that it will continue for an appreciable length of time, the Company will promptly take the steps available to it to increase the rates of tolls. “In computing the tolls requirements for purposes of this study the Company has made what it believes to be an adequate allowance for depreciation giving due consideration to the factors of obsolescence and potential inadequacy of the capital assets includable in the tolls base. Estimates of the service lives used for the principal classes of plant and equipment have been approved by independent engineering consultants. A depreciation rate of 1 percent per annum from date of service has been used for the investment in the channel, harbors, lock structures, dams, breakwaters and similar long-lived facilities. Including this accrual the annual depreciation requirements of the Company are presently approximately $9 million. “The tentative valuations used in the study result in a net interest-bearing investment of the Government in the Canal enterprise, as defined by law, of $274 million. At the rate of 2.342 percent currently established for repayment of interest costs as required by the Company’s charter annual interest payments to the Treasury will amount to $6.4 million. It is expected that this amount will increase somewhat in the future years as the result of the generally rising trend of long term interest rates. “No depreciation or return on the capital value of interest during the 1904-14 construction period has been included in the study because the legislative history of the present tolls statutes clearly indicates the intent of the Congress to exclude this item entirely from the tolls base. Likewise no provision has been made for amortization of lands and treaty rights because of lack of statutory authority, although these assets have been included in the investment for interest purposes. “Using the tentative plant valuations developed by the Company and recomputing the operating costs and expenses accordingly, the aggregate net income of the Company from all sources for the 4-year period from the reorganization to June 30, 1955, under present tolls rates is estimated to be approximately $9 million after providing for all charges currently authorized and required by law. As previously indicated however, it appears that a possible decline in volume of Canal traffic coupled with rising interest and wage rates may necessitate an increase in the tolls rates in the near future. Current indications are that such an increase may be necessary by July 1, 1955, in which case public announcement of the new rates would be made 6 months earlier or January 1, 1955, as required by law.” Congress has been repeatedly informed of the basic problem involved here, indeed of this very litigation. See, e. g., Reports on Audit of Panama Canal Company and the Canal Zone Government, by the Comptroller General: For the Fiscal Year Ending June 30, 1954, H. R. Doc. No. 160, 84th. Cong., 1st Sess. 1-3, 8-9, 12-18; For the Fiscal Year Ending June 30,1955, H. R. Doc. No. 465, 84th Cong., 2d Sess. 2, 9-10, 17-24; For the Fiscal Year Ending June 30, 1956, H. R. Doc. No. 210, 85th Cong., 1st Sess. 2-5, 15-21. See also, Hearings before the Subcommittee on Panama Canal of the House Committee on Merchant Marine and Fisheries on H. R. 6917, 7645, and 7697, 84th Cong., 1st Sess. 159-165; Hearings before the Subcommittee of the Senate Committee on Interstate and Foreign Commerce on S. 2167, 84th Cong., 2d Sess. 23, 68-70, 89-92, 101-102. A bill was introduced in the Senate in 1955, S. 2167, 84th Cong., 1st Sess., by Senator Magnuson which would give judicial review of agency action in fixing tolls. That bill was reported favorably by the Committee, S. Rep. No. 2375, 84th Cong., 2d Sess. But it never came to a vote. See 102 Cong. Rec. 11541, 12791, 13901. 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_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. WILLIAMS v. CONTINENTAL INS. CO. OF NEW YORK. No. 11052. Circuit Court of Appeals, Ninth Circuit. Jan. 7, 1946. George Penney, of Los Angeles, Cal. (Jean Wunderlich, of Los Angeles, Cal., of counsel), for appellant. W. W. Hindman, E. Eugene Davis, Huntington P. Bledsoe, and Hindman & Davis, all of Los Angeles, Cal., for appel-lee. Before GARRECHT, MATHEWS, and HEALY, Circuit Judges. HEALY, Circuit Judge. Appellee insured appellant Sydney M. Williams and his wife, Elizabeth, against loss by robbery of certain jewelry. Thereafter the insured persons, claiming that the jewelry had been taken from them in a holdup, presented proof of loss and were paid the amount claimed. Subsequently appellee sued to recover on the ground that the claim of loss was false and fraudulent in that in fact no robbery had occurred. The wife, Elizabeth Williams, admitted the allegations of the complaint and on the trial testified for appellee. The trial resulted in a judgment against appellant in the amount paid on the claim. Appellant contends that the suit is predicated on a charge of conspiracy, hence, he says, recovery can not properly be predicated on the uncorroborated testimony of the accomplice, namely, the wife. The contention has several answers, of which we shall mention but two. In the first place, the gravamen of the action is fraud, not conspiracy. Cf. 5 Cal.Jur. 530; Revert v. Hesse, 184 Cal. 295, 193 P. 943; Kittle Mfg. Co. v. Davis, 8 Cal.App.2d 504, 47 P.2d 1089; Andrews v. Young, 21 Cal. App.2d 523, 69 P.2d 891. Secondly, assuming for any reason that corroboration of the wife’s testimony was necessary, there was ample corroboration. 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:

sc_caseorigin

094

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. WOODS, HOUSING EXPEDITER, v. CLOYD W. MILLER CO. et al. No. 486. Argued February 6, 1948. Decided February 16, 1948. Solicitor General Perlman argued the cause for appellant. With him on the brief were Robert L. Stern, Robert W. Ginnane, Irving M. Gruber and Ed Dupree. Paul S. Knight argued the cause and filed a brief for appellees. Me. Justice Douglas delivered the opinion of the Court. The case is here on a direct appeal, Act of August 24, 1937, 50 Stat. 752, 28 U. S. C. § 349a, from a judgment of the District Court holding unconstitutional Title II of the Housing and Rent Act of 1947. 61 Stat. 193, 196. The Act became effective on July 1, 1947, and the following day the appellee demanded of its tenants increases of 40% and 60% for rental accommodations in the Cleveland Defense-Rental Area, an admitted violation of the Act and regulations adopted pursuant thereto. Appellant thereupon instituted this proceeding under § 206 (b) of the Act to enjoin the violations. A preliminary injunction issued. After a hearing it was dissolved and a permanent injunction denied. The District Court was of the view that the authority of Congress to regulate rents by virtue of the war power (see Bowles v. Willingham, 321 U. S. 503) ended with the Presidential Proclamation terminating hostilities on December 31, 1946, since that, proclamation inaugurated “peace-in-fact” though it did not mark termination of the war. It also concluded that, even if the war power continues, Congress did not act under it because it did not say so, and only if Congress says so, or enacts provisions so implying, can it be held that Congress intended to exercise such power. That Congress did not so intend, said the District Court, follows from the provision that the Housing Expediter can end controls in any area without regard to the official termination of the war, and from the fact that the preceding federal rent control laws (which were concededly exercises of the war power) were neither amended nor extended. The District Court expressed the further view that rent control is not within the war power because “the emergency created by housing shortage came into existence long before the war.” It held that the Act “lacks in uniformity of application and distinctly constitutes a delegation of legislative power not within the grant of Congress” because of the authorization to the Housing Expediter to lift controls in any area before the Act’s expiration. It also held that the Act in effect provides “low rentals for certain groups without taking the property or compensating the owner in any way.” See 74 F. Supp. 546. We conclude, in the first place, that the war power sustains this legislation. The Court said in Hamilton v. Kentucky Distilleries Co., 251 U. S. 146, 161, that the war power includes the power “to remedy the evils which have arisen from its rise and progress” and continues for the duration of that emergency. Whatever may be the consequences when war is officially terminated, the war power does not necessarily end with the cessation of hostilities. We recently held that it is adequate to support the preservation of rights created by wartime legislation, Fleming v. Mohawk Wrecking & Lumber Co., 331 U. S. 111. But it has a broader sweep. In Hamilton v. Kentucky Distilleries Co., supra, and Ruppert v. Caffey, 251 U. S. 264, prohibition laws which were enacted after the Armistice in World War I were sustained as exercises of the war power because they conserved manpower and increased efficiency of production in the critical days during the period of demobilization, and helped to husband the supply of grains and cereals depleted by the war effort. Those cases followed the reasoning of Stewart v. Kahn, 11 Wall. 493, which held that Congress had the power to toll the statute of limitations of the States during the period when the process of their courts was not available to litigants due to the conditions obtaining in the Civil War. The constitutional validity of the present legislation follows a fortiori from those cases. The legislative history of the present Act makes abundantly clear that there has not yet been eliminated the deficit in housing which in considerable measure was caused by the heavy demobilization of veterans and by the cessation or reduction in residential construction during the period of hostilities due to the allocation of building materials to military projects. Since the war effort contributed heavily to that deficit, Congress has the power even after the cessation of hostilities to act to control the forces that a short supply of the needed article created. If that were not true, the Necessary and Proper Clause, Art. I, § 8, cl. 18, would be drastically limited in its application to the several war powers. The Court has declined to follow that course in the past. Hamilton v. Kentucky Distilleries Co., supra, pp. 155, 156; Ruppert v. Caffey, supra, pp. 299, 300. We decline to take it today. The result would be paralyzing. It would render Congress powerless to remedy conditions the creation of which necessarily followed from the mobilization of men and materials for successful prosecution of the war. So to read the Constitution would be to make it self-defeating. We recognize the force of the argument that the effects of war under modern conditions may be felt in the economy for years and years, and that if the war power can be used in days of peace to treat all the wounds which war inflicts on our society, it may not only swallow up all other powers of Congress but largely obliterate the Ninth and the Tenth Amendments as well. There are no such implications in today’s decision. We deal here with the consequences of a housing deficit greatly intensified during the period of hostilities by the war effort. Any power, of course, can be abused. But we cannot assume that Congress is not alert to its constitutional responsibilities. And the question whether the war power has been properly employed in cases such as this is open to judicial inquiry. Hamilton v. Kentucky Distilleries Co., supra; Ruppert v. Caffey, supra. The question of the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise. Here it is plain from the legislative history that Congress was invoking its war power to cope with a current condition of which the war was a direct and immediate cause. Its judgment on that score is entitled to the respect granted like legislation enacted pursuant to the police power. See Block v. Hirsh, 256 U. S. 135; Marcus Brown Co. v. Feldman, 256 U. S. 170; Chastleton Corp. v. Sinclair, 264 U. S. 543. Under the present Act the Housing Expediter is authorized to remove the rent controls in any defense-rental area if in his judgment the need no longer exists by reason of new construction or satisfaction of demand in other ways. The powers thus delegated are far less extensive than those sustained in Bowles v. Willingham, supra, pp. 512-515. Nor is there here a grant of unbridled administrative discretion. The standards prescribed pass muster under our decisions. See Bowles v. Willingham, supra, pp. 514-516, and cases cited. Objection is made that the Act by its exemption of certain classes of housing accommodations violates the Fifth Amendment. A similar argument was rejected under the Fourteenth Amendment when New York made like exemptions under the rent-control statute which was here for review in Marcus Brown Co. v. Feldman, supra, pp. 195, 198-199. Certainly Congress is not under greater limitations. It need not control all rents or none. It can select those areas or those classes of property where the need seems the greatest. See Barclay & Co. v. Edwards, 267 U. S. 442, 450. This alone is adequate answer to the objection, equally applicable to the original Act sustained in Bowles v. Willingham, supra, that the present Act lacks uniformity in application. The fact that the property regulated suffers a decrease in value is no more fatal to the exercise of the war power (Bowles v. Willingham, supra, pp. 517, 518) than it is where the police power is invoked to the same end. See Block v. Hirsh, supra. Reversed. Section 204 (b) of the Act provides that “no person shall demand, accept, or receive any rent for the use or occupancy of any controlled housing accommodations greater than the maximum rent established under the authority of the Emergency Price Control Act of 1942, as amended, and in effect with respect thereto on June 30, 1947.” Controlled Housing Rent Regulation, 12 Fed. Reg. 4331, contains similar provisions. §§ 2 (a), 4 (a). Provisions of this statute and regulation, not here material, allow adjustment of maximum rentals when necessary to correct inequities and permit a 15% increase if negotiated between landlord and tenant and incorporated in a lease of a designated term. Section 206 (a) makes it unlawful “to offer, solicit, demand, accept, or receive any rent for the use or occupancy of any controlled housing accommodations in excess of the maximum rent prescribed under section 204.” Section 206 (b) authorized the Housing Expediter to apply to any federal, state, or territorial court of competent jurisdiction for an order enjoining “any act or practice which constitutes or will constitute a violation of subsection (a) of this section.” Proclamation 2714, 12 Fed. Reg. 1. That proclamation recognized that “a state of war still exists.” On July 25, 1947, on approving S. J. Res. 123 terminating certain war statutes, the President issued a statement in which he declared that “The emergencies declared by the President on September 8, 1939, and May 27, 1941, and the state of war continue to exist, however, and it is not possible at this time to provide for terminating all war and emergency powers.” Section 204 (c) provides: “The Housing Expediter is hereby authorized and directed to remove any or all maximum rents before this title ceases to be in effect, in any defense-rental area, if in his judgment the need for continuing maximum rents in such area no longer exists due to sufficient construction of new housing accommodations or when the demand for rental housing accommodations has been otherwise reasonably met.” See Commercial Trust Co. v. Miller, 262 U. S. 51, 57. See H. R. Rep. No. 317, 80th Cong., 1st Sess., pp. 1, 2, 3, 10-11. The Report states, p. 2: “There are several factors, in addition to the normal increase in population, which have contributed to the existing housing shortage. These include demobilization of a large number of veterans, shifts in population, less intensive use of housing accommodations, amount of new housing construction, trend away from construction of rental units, and change from tenant to owner occupancy.” As to the effect of demobilization of veterans the Report states, p.2: “Heavy demobilization of members of our armed forces, particularly in late 1945 and the first half of 1946, made effective an important demand for housing accommodations. In 1945 an estimated 6,279,000 veterans of World War II were returned to civilian life, in 1946 the number so returned was 5,659,000, and in 1947 to February 28 an additional 212,000 veterans were demobilized. Statistics are not available as to the number of new family units created by returning veterans but undoubtedly the figure is substantial and in many cases creation of new family units was delayed until these veterans were returned to civilian life. The importance and delayed impact of the 11,938,000 veterans returned to civilian life in 1945 and 1946 on an already acute housing shortage is readily apparent.” The effect of the war upon the construction of new dwelling units is shown by the following table: Total non-farm dwelling units constructed 1937. 336,000 1938. 406,000 1939. 515,000 1940 . 603,000 1941. 715,000 1942. 497,000 1943. 350,000 1944. 169,000 1945 . 247,000 1946. 776,200 1947 (11 months). 799,000 The figures for the years 1937-1945 inclusive are taken from H. R. Rep. No. 317, supra, p. 3. Those for 1946 and 1947 are taken from U. S. Bureau of Labor Statistics, Construction, Dec. 1947, p. 4. See H. R. Rep. No. 317, supra, note 6, and statement of Representative Wolcott, Chairman of the House Committee on Banking and Currency which reported the rent bill, 93 Cong. Rec. 4395. See note 4, supra. Sec. 202 (c) provides: “The term ‘controlled housing accommodations’ means housing accommodations in any defense-rental area, except that it does not include — (1) those housing accommodations, in any establishment which is commonly known as a hotel in the community in which it is located, which are occupied by persons who are provided customary hotel services such as maid service, furnishing and laundering of linen, telephone and secretarial or desk service, use and upkeep of furniture and fixtures, and bellboy service; or (2) any motor court, or any part thereof; or any tourist home serving transient guests exclusively, or any part thereof; or (3) any housing accommodations (A) the construction of which was completed on or after February 1, 1947, or which are additional housing accommodations created by conversion on or after February 1, 1947, except that contracts for the rental of housing accommodations to veterans of World War II and their immediate families, the construction of which was assisted by allocations or priorities under Public Law 388, Seventy-ninth Congress, approved May 22, 1946, shall remain in full force and effect, or (B) which at no time during the period February 1, 1945, to January 31, 1947, both dates inclusive, were rented (other than to members of the immediate family of the occupant) as housing accommodations.” Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims 212. United States Supreme Court Answer:

songer_appel1_1_4

C

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "construction". Your task is to determine what subcategory of business best describes this litigant. ARROW DRILLING COMPANY, Appellant, v. Richard T. BROOKS and Bituminous Casualty Corporation, Appellee. No. 19299. United States Court of Appeals Fifth Circuit. May 25, 1962. Otto Atchley, Victor Hlavinka, Atchley, Russell, Hutchinson & Waldrop, Texarkana, Tex., for appellant. Franklin Jones, Sr., Marshall, Tex., L. L. Lockard, Shreveport, La., Larry Oubre, Dallas, Tex., Franklin Jones, Jr., Marshall, Tex. (Jones, Brian & Jones, Marshall, Tex., of counsel), for appellees. Before TUTTLE, Chief Judge, and HUTCHESON and WISDOM, Circuit Judges. PER CURIAM. This is an appeal from a verdict and judgment for plaintiff in a suit for personal injuries received in Texas by appellee, as the employee of Griggs Casing Crews Co., Inc., a sub-contractor of appellant, the drilling contractor. The grounds of negligence alleged were: (1) furnishing unsafe equipment used in the work performed by the Griggs crew; (2) employing a method of work which was unsafe; and (3) arranging the derrick and its appurtenances so as to cause a condition of danger and hazard. In addition to these specific allegations of negligence, there was a general claim of negligence based upon res ipsa loquitur. The defendant denied generally and pleaded contributory negligence and voluntary assumption of risk. In addition to these defenses, the defendant relied below and relies here upon two affirmative defenses styled First Defense-A and First Defense-B. These defenses in effect were a plea of res judicata based upon a judgment for compensation obtained by appellee in Louisiana and under its laws against Griggs Casing Crews, Inc. and its compensation carrier in Louisiana, and the claim that under Louisiana Workmen’s Compensation laws it was a statutory employer of appellee, liable solidarily with Griggs Casing Crews, Inc. for injuries suffered by plaintiff; and the compensation judgment was a bar to this suit against defendant. The district judge, on a full hearing, struck these defenses on the ground that there was no final judgment in the Louisiana case. The cause was submitted to the jury, a verdict for plaintiff resulting; and defendant is here attacking the submission of the cause to the jury and the verdict as unsupported by the evidence, and, in addition, insisting: that defendant’s defenses A and B should have been sustained, and a verdict for defendant should have been directed on the defense of voluntary assumption of risk. Appellee vigorously contests defendant’s claim on its special defenses A & B on the ground (1) that the district judge correctly held that the judgment in Louisiana disposing of plaintiff’s workmen’s compensation insurance was not shown to be a final judgment; and (2) that in no event could the Louisiana judgment for workmen’s compensation insurance deprive appellee-plaintiff of his right to bring a third party action for damages in Texas under the express authority of its compensation act. Appellee further insists that there was ample testimony to sustain the jury’s finding in favor of plaintiff-appellee on the assumed risk issue and the defendant’s motion for directed verdict was therefore properly denied. The special defenses aside, we think it clear that the case was one for a jury verdict and that the defendant’s insistence that a verdict for defendant should have been directed on the ground that plaintiff, as matter of law, assumed the risk of injury is without sound basis. The issue was submitted to the jury on evidence which made it a jury issue, and the jury found for plaintiff. As to the special defenses, based on the compensation award in Louisiana, we agree with appellee and the district judge that when the plea of estoppel and res judicata was disposed of by the judge, there was no final judgment in the cause, and the district judge was, therefore, right in rejecting the special defenses. We, therefore, find it unnecessary to inquire into and determine whether, as urged by defendant, if there had been a final judgment in the compensation suit, it would have been a bar to the Texas action. The judgment is Affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "construction". What subcategory of business best describes this litigant? A. residential B. commercial or industrial C. other D. unclear 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. Harry and Amanda SCHROEDER, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 16439. United States Court of Appeals Eighth Circuit. June 23, 1961. Bert B. Rand, Washington, D. C., Leland C. White, Harlan, Iowa, Hans A. Nathan, Laurence D. Pearl, of Trammell, Rand & Nathan, Washington, D. C., on brief, for petitioners. Gilbert E. Andrews, Jr., Attorney, Department of Justice, Washington, D. C., Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson and Robert N. Anderson, Attorneys, Department of Justice, Tax Division, Washington, D. C., were with Gilbert E. Andrews, Jr., Washington, D. C., on brief, for respondent. Before VOGEL and BLACKMUN, Circuit Judges, and DAVIES, District Judge. RONALD N. DAVIES, District Judge. This case comes to us on petition of Harry and Amanda Schroeder for a review of the decision of the Tax Court of the United States, 16 TCM 707, Amending Order 17 TCM 836, which sustained a determination by the Commissioner of Internal Revenue of deficiencies in the income taxes of Harry Schroeder for 1944 and 1945 and of deficiencies in the income taxes of both petitioners for 1946 and 1947. Addition to tax was determined under § 291(a) for the year 1946 for failure to file a return as required by § 51(a) within the time prescribed, and further additions were determined for the years 1944 through 1946 under § 293(b) because of fraud with intent to evade tax. The petitioners are residents of Tabor, Iowa, where Harry Schroeder has been engaged in cattle feeding a good share of his life. Although the petitioner dealt in other animals, most transactions herein concerned cattle which were purchased from livestock commission merchants, brokers and dealers. Normally, two and three year old grass fed cattle were selected, the number purchased at any one time ranging from a few dozen to more than two thousand head. These cattle were placed in feed lots for periods from thirty days to four or five months before being marketed. Immature cattle were grazed until ready for feed lots, and as many as twenty months could elapse between time of purchase and sale. The cattle were commingled in various feed lots irrespective of purchase date or price paid. Petitioner financed his cattle purchases with loans, and a part of approximately eighty per cent of his purchases was mortgaged. Petitioner Harry Schroeder reported his annual income on a cash receipts and disbursements basis, deducting from gross receipts the computed cost of cattle sold in that year without regard to purchase date. Cost of the livestock sold was based upon an estimate prepared by petitioner and his accountant. In preparing the estimate a cutoff date was chosen, usually on or about September 15th, it being assumed that all cattle purchased after that time were on hand at the end of the year. The 1945 return indicated that the livestock carry-over from 1945 to 1946 was $680,010.70. On the 1946 return the livestock carry-over from 1945 was $496,281.05. The return for 1946 showed a livestock carry-over to 1947 in the amount of $605,300.58. The return for 1947 shows a livestock carryover from 1946 of $555,168.88. No separate records or identification of the various herds were maintained although petitioner visited the feed lots almost every day and was familiar with the types and number of cattle there. No formal books were kept of feeding operations, the records consisting of bank statements, liability ledger sheets, canceled checks, bills of sale and purchase invoices. Most of the business was handled by telephone with no records or memoranda being made of the transactions. Not all of the proceeds from cattle sales were deposited in bank accounts, some being applied directly on notes payable to banks. The only actual head count of livestock taken was in September of 1947 when the petitioner formed the Harry Schroeder Cattle Co., Inc., and Harry Schroeder, Inc. A thirty day extension of time in which to file an income tax return for 1946 was obtained by petitioner and a tentative individual return filed April 15, 1947, disclosing a net income of $51,500 and tax liability of $25,479. The return contained no computation of gross receipts, cost of livestock sold or gross profits, and no schedules showing computation of net income. On July 15, 1948, a joint return for 1946 was filed which did contain a schedule reflecting gross receipts, cost of livestock sold, gross profits, net income and which disclosed tax liability of $185,374.14. The Commissioner computed petitioners’ taxable incomes for the years involved by alternate methods, net worth and by a statement of income and expense, both computations reaching the same total taxable incomes. The sources of both computations were basically the same, the principal disputed item being the cost of livestock on hand at the beginning of each taxable year. Since error in either computation will be reflected as well in the other, our discussion will be limited to that of the net worth method. Because of petitioner’s failure to make regular physical head counts, the Commissioner worked back-, ward from the actual head count taken in 1947 and, using petitioner’s records and memoranda, established a cost basis of livestock on hand December 31, 1946. To determine this for livestock on hand as of December 31, 1944 and 1945, re-' spectively, it was assumed that all livestock purchased in the last ninety days of each year were still on hand at the end of that year. The Tax Court held that (1) the Commissioner was justified in adopting the net worth method of computing petitioners’ income, (2) the lack of proper record keeping compelled the use of the ninety day cutoff in determining the livestock carry-over, (3) a part of the deficiencies for each of the years 1944 through 1946 was due to fraud with an intent to evade tax and (4) petitioners were liable for additions to tax for failure to file a timely return for the year 1946 within the meaning of § 51(a), Internal Revenue Code of 1939, 26 U.S. C.A. § 51(a). “[7] Decisions of the Tax Court are to be reviewed by the same standards as are applied to decisions of the district court in civil cases tried without a jury. Findings of fact by the Tax Court shall not be set aside unless they are clearly erroneous. Greenspon v. Commissioner, 8 Cir., 229 F.2d 947, 949; Omaha Nat. Bank v. Commissioner, 8 Cir., 183 F.2d 899, 902, 25 A.L.R.2d 628; Doll v. Commissioner, 8 Cir., 149 F.2d 239, 247.” Luehrmann’s Estate v. C. I. R., 8 Cir., 287 F.2d 10, 15. “ * * * A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746. It is unnecessary for the Commissioner to show that inadequate books and records have been kept by the taxpayer before resorting to the net worth method of computing taxable income for the years in question. Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L. Ed. 150. In Schultz v. C. I. R., 5 Cir., 278 F.2d 927, 929, the Court said: “[1-3] The Taxpayer insists that under § 41 the net income is to be computed in accordance with the method of accounting regularly employed by a taxpayer. Consequently, where a taxpayer keeps books and records, the Commission has the burden of first establishing that the records are faulty or either negligently or fraudulently fail to reflect items of income or disbursements. But this is clearly not so. This Court, with many others, is conscious of the dangers in the use of the net worth method and will require that there be adequate evidence to support a determination that the true income is represented by the process of reconstruction. But once that is satisfied, neither the method nor the evidence undergoes an added scrutiny because the taxpayer’s books are to this extent disregarded. Indeed, the determination that the trier of fact had requisite basis for concluding that income was truly that shown by the reconstruction process is a simultaneous determination that no matter how neatly or diligently or consistently or conscientiously kept, the books and records were inadequate. * * *» The Commissioner’s determination of a deficiency is prima facie correct, and the burden is upon the taxpayer to disprove that determination. Marcella v. C. I. R., 8 Cir., 222 F.2d 878; Lusk v. C. I. R., 7 Cir., 250 F.2d 591. Because a physical head count of cattle was never made prior to September, 1947, that no books were kept of the cattle feeding operations and that even petitioner and his accountant estimated the livestock carry-over each year, resort to the net worth method was necessitated. The principal item here in dispute is the cost of livestock on hand at the beginning of each year for which the instant deficiencies were determined. The petitioner in this court, as in the Tax Court, vigorously attacks the Commissioner’s use of the ninety day cutoff to establish cost of cattle carried over into the succeeding year. The Tax Court held that the Commissioner was not only justified in adopting this method but that petitioner’s lack of records compelled it. We agree. The method used by the petitioner and his accountant in arriving at the year end cost of the cattle on hand was similar to that used by the Commissioner. In net worth cases the fact finder is warranted in bearing heavily against the contentions of the taxpayer whose inexactitude is of his own making, and where the findings are based upon the entire record, they cannot be said to be clearly erroneous. Gatling v. C. I. R., 4 Cir., 286 F.2d 139. In holding that part of the deficiencies for each of the years 1944 through 1946 was due to fraud with intent to evade tax, the Tax Court recognized that the burden rested upon the Commissioner to prove fraud by clear and convincing evidence. § 1112, Internal Revenue Code of 1939, 26 U.S.C.A. § 1112. Fraud is a question of fact, and the Tax Court finding is binding if supported by substantial evidence. Helvering v. Kehoe, 309 U.S. 277, 60 S.Ct. 549, 84 L.Ed. 751; Bender v. C. I. R., 7 Cir., 256 F.2d 771. In the case before us the Tax Court had this to say concerning the fraud is.sue: “* * * The burden rests upon the respondent to prove fraud by clear and convincing evidence. Arlette Coat Co., 14 T.C. 751. There were consistent understatements of income of a substantial nature over the years before us. Petitioner reported income for the years 1944, 1945, 1946 and 1947 in the sums of $487, $11,840, $51,500 and $249,506, respectively. The completely unrealistic nature of his reported income is graphically demonstrated by the net worth computation and the profit and loss statement prepared by respondent, which computations we have, on the basis of the entire record, sustained, and which show unreported income for the years 1944, 1945, 1946 and 1947 in the amounts of $163,609, $148,379, $364,140 and $61,149, respectively. Such a pattern of repeated gross understatements of income without an adequate explanation is evidence of fraudulent intent. Schwarzkopf v. Commissioner, [3 Cir., 246] F.2d [731] (July 10, 1957), affirming a Memorandum Opinion of this court; Kilpatrick v. Commissioner, [5 Cir.) 227 F.2d 240, affirming 22 T. C. 446. We are persuaded from the impressive growth in the scope of petitioner’s operations and from the financial statements filed by petitioner with his bank over these years, that the petitioner was fully aware that his income was not accurately reported in his returns for those years. Our findings reveal a marked discrepancy between the small amounts of taxable income reported by petitioner in those years and the amounts as determined by the respondent in his net worth computation. “Another strong indication of fraud on petitioner’s part is the matter of the altered checks. Approximately 20 checks were made out by petitioner for payment of real estate purchased by him in each of the years 1944, 1945 and 1946. After these checks were cashed, notations regarding real estate were erased and new notations were placed on the checks indicating that the amounts were payment for corn, fodder and other operating expenses. Petitioner, in 1946, purchased a Reo truck at a price of $2,638.49, which amount he paid by check. In the lower left hand corner of the check a notation was made that it was in payment for approximately 1,600 bushels of corn at $1.65. It is to be noted that, for the most part, the notations indicated that the full amount of the check was for these various operating expenditures. This reveals the weakness in petitioner’s attempt to explain such notations by saying that they resulted from an attempt to find out what portion of each real estate purchase represented non-real estate items. It fairly appears that petitioner deducted as an operating expense for the years involved the amounts indicated on the altered checks. Petitioner conducted large scale feeding operations during the years here involved, and he impressed us as an intelligent businessman. We hold, after an examination of the entire record, that a part of the deficiencies for each of the years 1944 through 1947 was due to fraud with intent to evade tax.” (Note: Only the years 1944 through 1946 are involved in this appeal). We cannot say the Tax Court was in error. The holding that petitioner failed to file a return for the year 1946 as required by § 51(a), Internal Revenue Code of 1939, was based upon the finding that no computations or schedules were shown on the return which was blank except for a net income figure and the amount of tax due thereon. No evidence was offered to show that failure to file was due to reasonable cause and not willful neglect. We think the problem was well stated by the 9th Circuit in Ferrando v. United States, 245 F.2d 582, 588 when that Court said: “* * the filing of an admittedly incomplete, inaccurate, and estimated return does not of itself relieve the tardy taxpayer of liability for a penalty. If such an excuse were accepted, it would put a premium upon belated and slipshod filing. A careless and neglectful taxpayer could wait until the last minute, present an amorphous return and escape the penalty. We do not believe that such is the genius and spirit of the Federal estate tax law. Congress did not intend that taxpayers should be permitted thus to play ducks and drakes with the collection of the Federal fisc. “A similar situation confronted the Court of Appeals for the Tenth Circuit in Sanders [Sanders v. Commissioner], supra, 225 F.2d [629] at page 637. There it was said: “ ‘The taxpayers filed tentative or skelton returns which contained no detailed information as to income or deductions. The completed returns were not filed until a number of years after the due date. The taxpayers’ books were not posted and an effective audit could not be made. The last payments from the United States were received by Sanders in 1949, and a return was not filed until September of 1952, after notice of deficiencies had been given and the liens had been filed. The record discloses sufficient evidence to sustain the decisions of the Tax Court in upholding the assessment of penalties and interest.’ [Emphasis supplied.]” Petitioners here having failed to meet their burden of establishing that the failure to file a return was due to reasonable cause and because the defective return filed before the due date was not sufficient to protect the petitioners here from the addition, there is no reason for this court to disturb the decision of the Tax Court of the United States. We have considered other questions raised herein but find none of such substance or merit as to require discussion. Finding no reversible error, the judgment of the Tax Court is Affirmed. “2. *§ 41. General rule “‘The net income shall be computed opon the basis of the taxpayer’s annual accounting period (fiscal year or calendar year, as the case may be) in accordance with the method of accounting regularly employed in keeping the books of such taxpayer; but if no such method of accounting has been so employed, or if the method employed does not clearly reflect the income, the computation shall be made in accordance with such method as in the opinion of the Commissioner does clearly reflect the income. * * * ’ 26 U.S.C.A. § 41 [1939 I.R.C.], “Somewhat related is § 54 of the 1939 •Code, Records and Special returns: “‘(a) By taxpayer. Every person liable to any tax imposed by this chapter or for the collection thereof, shall keep such records, render under oath such statements, make such returns, and comnly with such rules and regulations, as the Commissioner, with the approval of the Secretary, may from time to time prescribe.’” 26 U.S.C.A. § 54 [1939 I.R.C.], "3. Bryan v. Commissioner, 5 Cir., 1954, 209 F.2d 822, 826; Polizzi v. Commissioner, 6 Cir., 1959, 265 F.2d 498, 502; Thomas v. Commissioner, 1 Cir., 1956, 232 F.2d 520, 525; Thomas v. Commissioner, 6 Cir., 1955, 223 F.2d 83. Both Thomas eases were approved and followed by this Court in Phillips’ Estate v. Commissioner, 5 Cir., 1957, 246 F.2d 209; see also the final action by the 6th Circuit in the latest appeal of the Thomas case, Thomas v. Commissioner, 6 Cir., 1959, 266 F.2d 297; Veino v. Fahs, 5 Cir., 1958, 257 F.2d 364; Gunn v. Commissioner, 8 Cir., 1957, 247 F.2d 359; Harp v. Commissioner, 6 Cir., 1959, 263 F.2d 139.” “4. The standard for appeals from the Tax Court is the clearly erroneous concept under F.R.Civ.P. 52(a) for appeals from nonjury trials in the District Court. See 26 U.S.C.A. § 7482. Appeals from judgments entered in a jury trial are reviewed under the familiar substantial evidence rule. Marsh v. Illinois Central R. Co., 5 Cir., 1949, 175 F.2d 498.” 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_applfrom

L

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). NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PACIFIC COAST UTILITIES SERVICE, INC., Respondent, and Industrial, Technical & Professional Employees Division, National Maritime Union of America, AFL-CIO, Respondent. No. 78-3677. United States Court of Appeals, Ninth Circuit. April 14, 1980. Corinna L. Metcalf, NLRB, Washington, D. C., argued, for petitioner; Elliott Moore, Deputy Assoc. Gen. Counsel, NLRB, Washington, D. C., on brief. Lawrence Drasin, San Francisco, Cal., for respondents; William A. Polkinghorn, Jr., Webster, Jeppson & Jones, Los Angeles, Cal., Gartland & Tilly, San Francisco, Cal., on brief. Before BROWNING, KENNEDY and SKOPIL, Circuit Judges. PER CURIAM: There is substantial evidence in the record to support the finding of the Board that the company’s discharge of Barone was in violation of section 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) & (3) (1976). Barone’s action as shop steward in advising the employees not to sign warning slips presented by the foreman of another company until Barone could discuss the matter with his supervisor was protected union activity. F. J. Buckner Corp. v. NLRB, 401 F.2d 910 (9th Cir. 1968), cert. denied, 393 U.S. 1084, 89 S.Ct. 868, 21 L.Ed.2d 777 (1969); NLRB v. Ferguson, 257 F.2d 88 (5th Cir. 1958). See also NLRB v. Thor Power Tool Co., 351 F.2d 584 (7th Cir. 1965). There was substantial evidence as well to support the finding that the union violated section 8(b)(1)(A) of the Act. The record shows that the union failed to represent Barone in a fair and impartial manner because of his support of a rival union and his insistence that union dues not be paid until health insurance coverage was provided. It was proper for the Board to rule that the employer and the union had joint and several liability to compensate the employee for any loss of back pay. Given the determination that discharge was wrongful, it follows that the failure of the union to represent the employee was damaging to him and a contributing factor to his loss of pay. See Newport News Shipbuilding & Dry Dock Co., 236 N.L.R.B. No. 197 (1978). The amount of back pay, if any, can be determined in further proceedings before the Board. ENFORCEMENT GRANTED. 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_state

56

What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". BURKA et al. v. COMMISSIONER OF INTERNAL REVENUE. No. 6020. United States Court of Appeals, Fourth Circuit. Argued Jan. 12, 1950. Decided Jan. 28, 1950. Bert B. Rand, Washington, D. C, for petitioners. Francis W. Sams, Special Assistant to the Attorney General (Theron Lamar Caudle, Assistant Attorney General; Ellis N. Slack, Lee A. Jackson and Virginia H. Adams, Special Assistants to the Attorney General, on brief), for respondent. Before SOPER and DOBIE, Circuit Judges, and WARLICK, District Judge. SOPER, Circuit Judge. The petitioning taxpayers were equal partners in a laundry business in Washington, D. C. during the taxable year 1944. They seek a review of a determination of deficiencies in income tax growing out of a finding that the distributable net income of the partnership for the year should be increased by the sum of $12,508.93. During the year 1944, the business of the laundry grew rapidly and the books of the firm were not accurate or complete, but were in a state of great confusion. Accordingly, the firm employed a certified public accountant in the fall of the year and' turned over to him its available records which included bank books, cancelled checks and sales sheets. The accountant endeavored to reconstruct the income for the first ten months and introduced standard accounting practices for the balance of the year. In reconstructing the income for the period from January 1 to October 31, he assumed that the gross bank deposits represented sales and the gross bank disbursements represented expenses of the business which he endeavored to allocate to running expenses, drawing or capital items. The trial balance of October 31, 1944, stated by the accountant, showed “unrecorded expense” of $12,463.93. This amount, plus $45 listed as contributions, makes up the deficiency. The larger bills during the year were paid by check but the smaller bills for supplies, gas, oil and lost laundry were paid in cash by one or another of the partners. Some of these items, but not all of them, were recorded 9n the reverse side of sales sheets which were prepared by six or seven different employees who were changed from time to time during a rapid turnover. These notations amounted to $6,368.12 during the five months prior to October 31. There were no such notations on the sales slips for the first five months of 1944. To meet this situation the accountant in his endeavor to show the true income of the firm set up an account which he designated “unrecorded expense.” He credited this account with the sum of $500 representing checks marked petty cash, but not broken down as to items, $595.81 representing checks marked supplies for rug department not used in 1944, and also the above sum of $6,368.12 making a total of $7,463.93. He also concluded that similar expenses must have been incurred, although not recorded, during the first five months, and he credited the additional sum of $5,000 to unrecorded expenses for this period. Accordingly the trial balance for October 31, 1944 showed the item of $12,463.93 for unrecorded expense; and since the accountant concluded that these expenditures were made from unrecorded cash receipts, it was necessary for him to increase the sales by a corresponding amount on the balance sheet. When the accountant made his trial balance for December 31, 1944, he decided that he had been wrong in arbitrarily estimating the unrecorded expense as $5,-000 for the first five months since there were no supporting records and accordingly he eliminated the $5,000 item of unrecorded expense and the corresponding $5,000 credit to sales. The Commissioner accepted the conclusions of the accountant that the income of the partnership should be increased by the sum of $12,463.93 since the evidence indicated that this amount had been expended and must have been derived from the un-deposited cash receipts of the business; but the Commissioner rejected the accountant’s conclusion that this sum represented deductible expenses of the business. He disallowed these deductions since they were not accurately recorded or supported by the evidence and could have included withdrawals by the partners as well as other non-deductible items. The Tax Court refused to disturb the Commissioner’s determination. It pointed out that the taxpayers failed to produce their vouchers or even the accountant’s work sheets and that the conclusions of the accountant were based upon estimates rather than reliable records. For example, the accountant made journal entries on the books of the firm indicating that the unrecorded expense for the five months ending October 31, in the sum of $7,463.93 was made up of $1,000 for payment of claims, $2,000 auto expenses, and $4,463.93 for supplies; but, it was conceded, these sums were mere estimates on the part of the accountant and that there were no vouchers or listings of any kind to support the entries. We are in accord with these conclusions. The Commissioner’s disallowance of the deductions was presumptively correct and the burden was on the taxpayers to overcome it. Their evidence, however, shows that they failed to keep an adequate account of their receipts and disbursements as contemplated by Section 54(a) of the Internal Revenue Code, 26 U.S.C.A. § 54 (a), and that in consequence their records were in extremely bad shape. Moreover, the taxpayers failed to produce such books and vouchers as they kept or even the accountant’s work sheets, and failed to give a satisfactory explanation of the absence of these records. The Commissioner was therefore at liberty to resort to the best procedure available under the circumstances in making his determinations, and to adopt the method used by the taxpayers’ accounting in arriving at the amount of the gross income; Kenney v. Commissioner, 5 Cir., 111 F.2d 374; but the Commissioner was not bound to adopt the accountant’s conclusion that the unrecorded expense represented deductible items. The amount of the unrecorded expense and its proper allocation were the result of the accountant’s estimates and neither the Commissioner nor the court was obliged to accept this estimate or to give credit to the testimony of the taxpayers which was likewise unsupported by detailed records. It is true that the Tax Court may not arbitrarily reject well substantiated testimony; but it is not bound to accept the estimates of interested witnesses under such circumstances as prevail in this case. Greenfield v. Commissioner, 4 Cir., 165 F.2d 318, 319. The decision of the Tax Court is therefore Affirmed. Despite these disallowances, the petitioners were allowed deductions in the sum of $16,000 for supplies. $1,200 for auto expenses and $1,000 for the payment of claims. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:

songer_genapel1

A

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. Elliot SANDLER, Plaintiff, Appellee, v. EASTERN AIRLINES, INC., Defendant, Appellant. No. 80-1771. United States Court of Appeals, First Circuit. Argued April 8, 1981. Decided May 13, 1981. Lloyd M. Starrett, Boston, Mass., with whom Marc D. Greenbaum, Kenneth T. Lopatka, and Foley, Hoag & Eliot, Boston, Mass., were on brief, for defendant, appellant. Joseph R. Doktor, Randolph, Mass., with whom Abelson & Cohen, Randolph, Mass., was on brief, for plaintiff, appellee. Before CAMPBELL, BOWNES and BREYER, Circuit Judges. PER CURIAM. In December 1977, Elliot Sandler filed a complaint in federal district court against Eastern Airlines, appellant herein, alleging that, 11. The plaintiff on or about August 29, 1972, applied for the job of steward with the defendant. He was rejected for the job because, he was told, of the policy of the defendant not to hire married men, or to hire individuals with children. 12. The effect of the policies and practices of the defendant complained of in paragraph eleven (11) above, has been to deprive married men, married men with children or men with children of equal employment opportunities because of their sex and marital status. 13. As a further result of the defendant’s above stated actions, the plaintiff has been deprived of income in the form of wages and of protective retirement benefits, Social Security and other benefits due to him as a worker solely because of his sex and marital status, in a sum to be proven at trial. Eastern responded to the complaint with a motion to dismiss on the ground, inter alia, that, 4. The allegations of the complaint fail to state a claim upon which relief can be granted in that, among other things, the said allegations show no discrimination in employment on the basis of race, color, religion, sex or national origin, and, as appears from the complaint, defendant’s alleged policy was applied equally to all applicants for employment as a flight attendant, regardless of sex. The district court denied the motion, stating that, because the plaintiff indicates he is proceeding on a facially-neutral disparate impact theory, and because the record is not clear as to exactly what the defendant’s policy was at the time, we cannot say on the record that the plaintiff can prove no set of facts which would entitle him to relief. Eastern then moved for certification for immediate appellate review, under 28 U.S.C. § 1292(b), of, the legality, under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., of an employment practice precluding married individuals and/or parents from being considered for employment as flight attendants with Eastern. The district court granted the motion, and we granted permission for interlocutory appeal. Having reviewed the parties’ briefs and heard oral argument, we are no longer satisfied that the question certified “involves a controlling question of law” and that an immediate appeal “may materially advance the ultimate termination of the litigation,” as required by section 1292(b). We therefore dismiss the appeal without addressing the merits of the question certified. Our conclusion that the section 1292(b) criteria are not met is based on four considerations. First, we think it remains questionable whether the present complaint states a cause of action. See Goldman v. Sears, Roebuck & Co., 607 F.2d 1014, 1018 (1st Cir. 1979); Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir. 1979). While a plaintiff need not plead evidence, he must state facts which, if proven, would entitle him to relief. Sandler’s complaint does not explicitly allege that he was denied employment solely because of his sex, in violation of Title VII; nor do the facts pleaded add up to a claim that discrimination resulted because of a facially neutral policy, lacking business justification, which had an intentional or significantly disparate impact either on males or on females. In various proceedings since the filing of the complaint, Sandler has hinted at each of these possible theories; but the complaint itself fails to assert either of them and in argument before us Sandler remains equivocal as to the theory upon which he is proceeding. Since the question certified is the only question before us, we are not in a position to pass on the sufficiency of the complaint, but we are disinclined to address a certified question which may only be hypothetical. Second, assuming the complaint states a claim, the issue certified to us would be controlling only if denial of employment in Sandler’s case were because of a policy against hiring married persons of both sexes. In this court, Sandler seems, if anything, to be denying that Eastern’s no-marriage policy was applied equally to females and males. Rather he seems to assert that any such purported policy was merely a pretext for Eastern’s actual refusal to hire male flight attendants, married or unmarried. If the complaint is held to sufficiently allege this claim, and if Sandler succeeds in proving that this is the case, the question certified will neither arise nor control. Third, even assuming that Sandler’s claim is based upon a theory of disparate impact, further development of the facts will be required before a question of law, susceptible of appellate determination, emerges. Without data, it is unclear whether the purported disparate impact is on males or on females, or, indeed, whether the impact is disparate at all. It is unclear whether any such impact is sufficiently significant to fall within the purview of the statute. It is equally unclear how such an impact is alleged to occur — what social or biological characteristics of males and females are alleged to have interacted with Eastern’s former rule so as to produce an imbalanced effect. Eastern urges us to take judicial notice of census data so as to conclude that no disparate impact results; but unless Sandler clarifies the factual and theoretical basis for whatever theory of disparate impact he poses, it is impossible to tell which census data are relevant, or to evaluate the legal significance of the data. Moreover, assuming such data should become relevant, the assembling of it should be done in the district court rather than in this court. Fourth, the certification of this case to the courts by the EEOC appears from the papers before us to have been based upon the theory that Eastern’s policies discriminated against women, not men. The question of whether the plaintiff can proceed on the basis of an “anti-male” theory may therefore arise but it has neither been argued nor decided below. The appeal is dismissed. . Most facially neutral rules, such as a rule requiring hiring from a certain geographical area, will bear somewhat more impact either on men or women, for rarely are the number of men and women in any large group exactly the same. Thus, a difference that is significant from the statute’s perspective must be shown before a cause of action is stated. Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2727, 53 L.Ed.2d 786 (1977). 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_authoritydecision

G

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. MIDDLESEX COUNTY ETHICS COMMITTEE v. GARDEN STATE BAR ASSOCIATION et al. No. 81-460. Argued March 31, 1982 Decided June 21, 1982 BURGER, C. J., delivered the opinion of the Court, in which White, Powell, Rehnquist, and O’Connor, JJ., joined. Brennan, J., filed an opinion concurring in the judgment, post, p. 438. Marshall, J., filed an opinion concurring in the judgment, in which Brennan, Blackmun, and Stevens, JJ., joined, post, p. 438. Mary Ann Burgess, Assistant Attorney General of New Jersey, argued the cause for petitioner. With her on the briefs were Irwin I. Kimmelman, Attorney General, James R. Zazzali, former Attorney General, Erminie L. Conley and James J. Ciancia, Assistant Attorneys General, and Richard M. Hinchan and Jaynee LaVecchia, Deputy Attorneys General. Morton Stavis argued the cause for respondents. With him on the brief were Bernard K. Freamon and Louise Halper. Briefs of amici curiae urging affirmance were filed by Charles S. Sims and Arthur N. Eisenberg for the American Civil Liberties Union; and by Max D. Stem for the National Alliance Against Racist and Political Repression. Jack Greenberg, James M. Nabrit III, Charles Stephen Ralston, and Bill Lann Lee filed a brief for the NAACP Legal Defense and Educational Fund, Inc., et al. as amici curiae. Chief Justice Burger delivered the opinion of the Court. We granted certiorari to determine whether a federal court should abstain from considering a challenge to the constitutionality of disciplinary rules that are the subject of pending state disciplinary proceedings within the jurisdiction of the New Jersey Supreme Court. 454 U. S. 962 (1981). The Court of Appeals held that it need not abstain under Younger v. Harris, 401 U. S. 37 (1971). We reverse. I A The Constitution of New Jersey charges the State Supreme Court with the responsibility for licensing and disciplining attorneys admitted to practice in the State. Art. 6, § 2, ¶ 3. Under the rules established by the New Jersey Supreme Court, promulgated pursuant to its constitutional authority, a complaint moves through a three-tier procedure. First, local District Ethics Committees appointed by the State Supreme Court are authorized to receive complaints relating to claimed unethical conduct by an attorney. New Jersey Court Rule l:20-2(d). At least two of the minimum of eight members of the District Ethics Committee must be nonattorneys. Complaints are assigned to an attorney member of the Committee to report and make a recommendation. Rule l:20-2(h). The decision whether to proceed with the complaint is made by the person who chairs the Ethics Committee. If a complaint is issued by the Ethics Committee it must state the name of the complainant, describe the claimed improper conduct, cite the relevant rules, and state, if known, whether the same or a similar complaint has been considered by any other Ethics Committee. The attorney whose conduct is challenged is served with the complaint and has 10 days to answer. Unless good cause appears for referring the complaint to another Committee member, each complaint is referred to the member of the Committee who conducted the initial investigation for review and further investigation, if necessary. The Committee member submits a written report stating whether a prima facie indication of unethical or unprofessional conduct has been demonstrated. The report is then evaluated by the chairman of the Ethics Committee to determine whether a prima facie case exists. Absent a prima facie showing, the complaint is summarily dismissed. If a prima facie case is found, a formal hearing on the complaint is held before three or more members of the Ethics Committee, a majority of whom must be attorneys. The lawyer who is charged with unethical conduct may have counsel, discovery is available, and all witnesses are sworn. The panel is required to prepare a written report with its findings of fact and conclusions. The full Committee, following the decision of the panel, has three alternatives. The Committee may dismiss the complaint, prepare a private letter of reprimand, or prepare a presentment to be forwarded to the Disciplinary Review Board. Rule l:20-2(o). The Disciplinary Review Board, a statewide board which is also appointed by the Supreme Court, consists of nine members, at least five of whom must be attorneys and at least three of whom must be nonattorneys. The Board makes a de novo review. Rule 1:20 — 3(d)(3). The Board is required to make formal findings and recommendations to the New Jersey Supreme Court. All decisions of the Disciplinary Review Board beyond a private reprimand are reviewed by the New Jersey Supreme Court. Briefing and oral argument are available in the Supreme Court for cases involving disbarment or suspension for more than one year. Rule 1:20-4. B Respondent Lennox Hinds, a member of the New Jersey Bar, served as executive director of the National Conference of Black Lawyers at the time of his challenged conduct. Hinds represented Joanne Chesimard in a civil proceeding challenging her conditions of confinement in jail. In 1977 Chesimard went to trial in state court for the murder of a policeman. Respondent Hinds was not a counsel of record for Chesimard in the murder case. However, at the outset of the criminal trial Hinds took part in a press conference, making statements critical of the trial and of the trial judge's judicial temperament and racial insensitivity. In particular, Hinds referred to the criminal trial as “a travesty,” a “legalized lynching,” and “a kangaroo court.” One member of the Middlesex County Ethics Committee read news accounts of Hinds' comments and brought the matter to the attention of the Committee. In February 1977 the Committee directed one of its members to conduct an investigation. A letter was written to Hinds, who released the contents of the letter to the press. The Ethics Committee on its own motion then suspended the investigation until the conclusion of the Chesimard criminal trial. After the trial was completed the Committee investigated the complaint and concluded that there was probable cause to believe that Hinds had violated DR 1 — 102(A)(5) of the Disciplinary Rules of the Code of Professional Responsibility. That section provides that “[a] lawyer shall not. . . [ejngage in conduct that is prejudicial to the administration of justice.” Respondent Hinds also was charged with violating DR 7-107(D), which prohibits extrajudicial statements by lawyers associated with the prosecution or defense of a criminal matter. The Committee then served a formal statement of charges on Hinds. Instead of filing an answer to the charges in accordance with the New Jersey Bar disciplinary procedures, Hinds and the three respondent organizations filed suit in the United States District Court for the District of New Jersey contending that the disciplinary rules violated respondents’ First Amendment rights. In addition, respondents charged that the disciplinary rules were facially vague and overbroad. The District Court granted petitioner’s motion to dismiss based on Younger v. Harris, 401 U. S. 37 (1971), concluding that “[t]he principles of comity and federalism dictate that the federal court abstain so that the state is afforded the opportunity to interpret its rules in the face of a constitutional challenge.” App. to Pet. for Cert. 53a-54a. At respondents’ request the District Court reopened the case to allow respondents an opportunity to establish bad faith, harassment, or other extraordinary circumstance which would constitute an exception to Younger abstention. Dombrowski v. Pfister, 380 U. S. 479 (1965). After two days of hearings the District Court found no evidence to justify an exception to the Younger abstention doctrine and dismissed the federal-court complaint. A divided panel of the United States Court of Appeals for the Third Circuit reversed on the ground that the state bar disciplinary proceedings did not provide a meaningful opportunity to adjudicate constitutional claims. 643 F. 2d 119 (1981). The court reasoned that the disciplinary proceedings in this case are unlike the state judicial proceedings to which the federal courts usually defer. The Court of Appeals majority viewed the proceedings in this case as administrative, “nonadjudicative” proceedings analogous to the preindictment stage of a criminal proceeding. On petition for rehearing petitioner attached an affidavit from the Clerk of the New Jersey Supreme Court which stated that the New Jersey Supreme Court would directly consider Hinds’ constitutional challenges and that the court would consider whether such a procedure should be made explicit in the Supreme Court rules. On reconsideration a divided panel of the Third Circuit declined to alter its original decision, stating that the relevant facts concerning abstention are those that existed at the time of the District Court’s decision. 651 F. 2d 154 (1981). Pending review in this Court, the New Jersey Supreme Court has heard oral arguments on the constitutional challenges presented by respondent Hinds and has adopted a rule allowing for an aggrieved party in a disciplinary hearing to seek interlocutory review of a constitutional challenge to the proceedings. II A Younger v. Harris, supra, and its progeny espouse a strong federal policy against federal-court interference with pending state judicial proceedings absent extraordinary circumstances. The policies underlying Younger abstention have been frequently reiterated by this Court. The notion of “comity” includes “a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.” Id., at 44. Minimal respect for the state processes, of course, precludes any presumption that the state courts will not safeguard federal constitutional rights. The policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved. Moore v. Sims, 442 U. S. 415, 423 (1979); Huffman v. Pursue, Ltd., 420 U. S. 592, 604-605 (1975). The importance of the state interest may be demonstrated by the fact that the noncriminal proceedings bear a close relationship to proceedings criminal in nature, as in Huffman, supra. Proceedings necessary for the vindication of important state policies or for the functioning of the state judicial system also evidence the state’s substantial interest in the litigation. Trainor v. Hernandez, 431 U. S. 434 (1977); Juidice v. Vail, 430 U. S. 327 (1977). Where vital state interests are involved, a federal court should abstain “unless state law clearly bars the interposition of the constitutional claims.” Moore, 442 U. S., at 426. “[T]he . . . pertinent inquiry is whether the state proceedings afford an adequate opportunity to raise the constitutional claims . . . .” Id., at 430. See also Gibson v. Berryhill, 411 U. S. 564 (1973). The question in this case is threefold: first, do state bar disciplinary hearings within the constitutionally prescribed jurisdiction of the State Supreme Court constitute an ongoing state judicial proceeding; second, do the proceedings implicate important state interests; and third, is there an adequate opportunity in the state proceedings to raise constitutional challenges. B The State of New Jersey, in common with most States, recognizes the important state obligation to regulate persons who are authorized to practice law. New Jersey expresses this in a state constitutional provision vesting in the New Jersey Supreme Court the authority to fix standards, regulate admission to the bar, and enforce professional discipline among members of the bar. N. J. Const., Art. 6, §2, ¶3. The Supreme Court of New Jersey has recognized that the local District Ethics Committees act as the arm of the court in performing the function of receiving and investigating complaints and holding hearings. Rule 1:20-2; In re Logan, 70 N. J. 222, 358 A. 2d 787 (1976). The New Jersey Supreme Court has made clear that filing a complaint with the local Ethics and Grievance Committee “is in effect a filing with the Supreme Court. . . .” Toft v. Ketchum, 18 N. J. 280, 284, 113 A. 2d 671, 674, cert. denied, 350 U. S. 887 (1955). “From the very beginning a disciplinary proceeding is judicial in nature, initiated by filing a complaint with an ethics and grievance committee.” 18 N. J., at 284, 113 A. 2d, at 674. It is clear beyond doubt that the New Jersey Supreme Court considers its bar disciplinary proceedings as “judicial in nature.” As such, the proceedings are of a character to warrant federal-court deference. The remaining inquiries are whether important state interests are implicated so as to warrant federal-court abstention and whether the federal plaintiff has an adequate opportunity to present the federal challenge. C The State of New Jersey has an extremely important interest in maintaining and assuring the professional conduct of the attorneys it licenses. States traditionally have exercised extensive control over the professional conduct of attorneys. See n. 11, supra. The ultimate objective of such control is “the protection of the public, the purification of the bar and the prevention of a re-occurrence.” In re Baron, 25 N. J. 445, 449, 136 A. 2d 873, 875 (1957). The judiciary as well as the public is dependent upon professionally ethical conduct of attorneys and thus has a significant interest in assuring and maintaining high standards of conduct of attorneys engaged in practice. See In re Stein, 1 N. J. 228, 237, 62 A. 2d 801, 805 (1949), quoting In re Cahill, 66 N. J. L. 527, 50 A. 119 (1901). The State’s interest in the professional conduct of attorneys involved in the administration of criminal justice is of special importance. Finally, the State’s interest in the present litigation is demonstrated by the fact that the Mid-dlesex County Ethics Committee, an agency of the Supreme Court of New Jersey, is the named defendant in the present suit and was the body which initiated the state proceedings against respondent Hinds. The importance of the state interest in the pending state judicial proceedings and in the federal case calls Younger abstention into play. So long as the constitutional claims of respondents can be determined in the state proceedings and so long as there is no showing of bad faith, harassment, or some other extraordinary circumstance that would make abstention inappropriate, the federal courts should abstain. D Respondent Hinds contends that there was no opportunity in the state disciplinary proceedings to raise his federal constitutional challenge to the disciplinary rules. Yet Hinds failed to respond to the complaint filed by the local Ethics Committee and failed even to attempt to raise any federal constitutional challenge in the state proceedings. Under New Jersey’s procedure, its Ethics Committees constantly are called upon to interpret the state disciplinary rules. Respondent Hinds points to nothing existing at the time the complaint was brought by the local Committee to indicate that the members of the Ethics Committee, the majority of whom are lawyers, would have refused to consider a claim that the rules which they were enforcing violated federal constitutional guarantees. Abstention is based upon the theory that “ ‘[t]he accused should first set up and rely upon his defense in the state courts, even though this involves a challenge of the validity of some statute, unless it plainly appears that this course would not afford adequate protection.’” Younger v. Harris, 401 U. S., at 45, quoting Fenner v. Boykin, 271 U. S. 240, 244 (1926). In light of the unique relationship between the New Jersey Supreme Court and the local Ethics Committee, and in view of the nature of the proceedings, it is difficult to conclude that there was no “adequate opportunity” for respondent Hinds to raise his constitutional claims. Moore, 442 U. S., at 430. Whatever doubt, if any, that may have existed about respondent Hinds’ ability to have constitutional challenges heard in the bar disciplinary hearings was laid to rest by the subsequent actions of the New Jersey Supreme Court. Prior to the filing of the petition for certiorari in this Court the New Jersey Supreme Court sua sponte entertained the constitutional issues raised by respondent Hinds. Respondent Hinds therefore has had abundant opportunity to present his constitutional challenges in the state disciplinary proceedings. There is no reason for the federal courts to ignore this subsequent development. In Hicks v. Miranda, 422 U. S. 332 (1975), we held that “where state criminal proceedings are begun against the federal plaintiffs after the federal complaint is filed but before any proceedings of substance on the merits have taken place in federal court, the principles of Younger v. Harris should apply in full force.” Id., at 349. An analogous situation is presented here; the principles of comity and federalism which call for abstention remain in full force. Thus far in the federal-court litigation the sole issue has been whether abstention is appropriate. No proceedings have occurred on the merits and therefore no federal proceedings on the merits will be terminated by application of Younger principles. It would trivialize the principles of comity and federalism if federal courts failed to take into account that an adequate state forum for all relevant issues has clearly been demonstrated to be available prior to any proceedings on the merits in federal court. 422 U. S., at 350. Respondents have not challenged the findings of the District Court that there was no bad faith or harassment on the part of petitioner and that the state rules were not “‘flagrantly and patently’ ” unconstitutional. Younger, supra, at 53, quoting Watson v. Buck, 313 U. S. 387, 402 (1941). See App. to Pet. for Cert. 50a-52a. We see no reason to disturb these findings, and no other extraordinary circumstances have been presented to indicate that abstention would not be appropriate. Ill Because respondent Hinds had an “opportunity to raise and have timely decided by a competent state tribunal the federal issues involved,” Gibson v. Berryhill, 411 U. S., at 577, and because no bad faith, harassment, or other exceptional circumstances dictate to the contrary, federal courts should abstain from interfering with the ongoing proceedings. Accordingly, the judgment of the United States Court of Appeals for the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. Reversed and remanded. Article 6, § 2, ¶ 3, provides: “The Supreme Court shall make rules governing the administration of all courts in the State and, subject to the law, the practice and procedure in all such courts. The Supreme Court shall have jurisdiction over the admission to the practice of law and the discipline of persons admitted.” For a more detailed explanation of the disciplinary procedure of the District Ethics Committees, see Rule 1:20-2. As noted below, the procedure, as amended in 1981, now provides that a charged attorney may raise constitutional questions in the District Committees. Any constitutional challenges are to be set forth in the answer to the complaint. Rule 1:20 — 2(j) now provides: “All constitutional questions shall be withheld for consideration by the Supreme Court as part of its review of the final decision of the Disciplinary Review Board. Interlocutory relief may be sought only in accordance with R. 1:20 — 4(d)(i).” Each District Ethics Committee appoints one member of the bar to serve as Secretary. The Secretary maintains records of the proceedings. The Secretary also transmits copies of all documents filed to the Division of Ethics and Professional Services. Rule l:20-2(c). Subsequent to the initiation of the disciplinary hearing involved in this case, Rule l:20-3(e) was amended to provide: “Constitutional challenges to the proceedings not raised before the District Committee shall be preserved, without Board action, for Supreme Court consideration as part of its review of the matter on the merits.. Interlocutory relief may be sought only in accordance with Rule l:20-4(d)(i).” The Disciplinary Rules of the Code of Professional Responsibility and Code of Judicial Conduct of the American Bar Association, with amendment and supplementation, have been adopted by the New Jersey Supreme Court as the applicable standard of conduct for members of the bar and the judges of New Jersey. New Jersey Court Rule 1:14. DR 7-107 deals with “Trial Publicity” and states: “(D) During the selection of a jury or the trial of a criminal matter, a lawyer or law firm associated with the prosecution or defense of a criminal matter shall not make or participate in making an extra-judicial statement that he expects to be disseminated by means of public communication and that relates to the trial, parties, or issues in the trial or other matters that are reasonably likely to interfere with a fair trial. . . .” The majority concluded that the hearings are designed to elicit facts, not legal arguments, as indicated by the presence of nonlawyers. The court also found that the ability to raise constitutional claims before the Ethics Committee does not constitute a meaningful opportunity to have constitutional questions adjudicated. No formal opinion is filed by the District Ethics Committee. The Third Circuit distinguished Gipson v. New Jersey Supreme Court, 558 F. 2d 701 (CA3 1977), on the ground that in Gipson the attorney being disciplined was already subject to the state-court action at the time the federal proceeding had been initiated. Judge Adams, concurring, emphasized that state courts have the primary responsibility to discipline their bar and, in general, the federal judiciary is to exercise no supervisory powers. Judge Weis, dissenting, argued that respondents have full opportunity in the New Jersey proceedings to raise constitutional issues, concluding that the disciplinary proceedings are not a series of separate segments before independent bodies but are part of a whole. Judge Weis also concluded that there was nothing to prevent the Ethics Committee from considering constitutional claims. The panel majority noted that no rule existed at the time of the District Court’s decision to assure the Court of Appeals that the New Jersey Supreme Court would consider the constitutional claims. The court also concluded that the possibility of a formal procedure of the New Jersey court for consideration of constitutional claims does not moot this case because the underlying dispute as to the validity of the rules still remains. Judge Weis, again dissenting, concluded that no justiciable controversy remained as to the issue in the Court of Appeals and recommended that the case be remanded and dismissed as moot. Rule l:20-4(d) states: “(i) Interlocutory Review. An aggrieved party may file a motion for leave to appeal with the Supreme Court to seek interlocutory review of a constitutional challenge to proceedings pending before the District Ethics Committee or the Disciplinary Review Board. The motion papers shall conform to R. 2:8-1. Leave to appeal may be granted only when necessary to prevent irreparable injury. If leave to appeal is granted, the record below may, in the discretion of the Court, be supplemented by the filing of briefs and oral argument. “(ii) Final Review. In any case in which a constitutional challenge to the proceedings has been properly raised below and preserved pending review of the merits of the disciplinary matter by the Supreme Court, the aggrieved party may, within 10 days of the filing of the report and recommendation of the Disciplinary Review Board, seek the review of the Court by proceeding in accordance with the applicable provisions of R. 1:19-8.” Samuels v. Mackell, 401 U. S. 66 (1971), concluded that the same comity and federalism principles govern the issuance of federal-court declaratory judgments concerning the state statute that is the subject of the ongoing state criminal proceeding. See M. Shoaf, State Disciplinary Enforcement Systems Structural Survey (ABA National Center for Professional Responsibility 1980). The New Jersey allocation of responsibility is consistent with §2.1 of the ABA Standards for Lawyer Discipline and Disability Proceedings (Proposed Draft 1978), which states that the “[ultimate and exclusive responsibility within a state for the structure and administration of the lawyer discipline and disability system and the disposition of individual cases is within the inherent power of the highest court of the state.” The rationale for vesting responsibility with the judiciary is that the practice of law “is so directly connected and bound up with the exercise of judicial power and the administration of justice that the right to define and regulate it naturally and logically belongs to the judicial department.” Id.,, commentary to §2.1. The New Jersey Supreme Court has concluded that bar disciplinary proceedings are neither criminal nor civil in nature, but rather are sui ge-neris. In re Logan, 70 N. J. 222, 358 A. 2d 787 (1976). See also ABA Standards for Lawyer Discipline and Disability Proceedings § 1.2 (Proposed Draft 1978). As recognized in Juidice v. Vail, 430 U. S. 327 (1977), however, whether the proceeding “is labeled civil, quasi-criminal, or criminal in nature,” the salient fact is whether federal-court interference would unduly interfere with the legitimate activities of the state. Id., at 335-336. The instant case arose before the 1978 rule change. In 1978 the New Jersey Supreme Court established a Disciplinary Review Board charged with review of findings of District Ethics Committees. Nothing in this rule change, however, altered the nature of such proceedings. The responsibility under Art. 6, § 2, ¶ 3, remains with the New Jersey Supreme Court. The role of local ethics or bar association committees may be analogized to the function of a special master. Anonymous v. Association of Bar of City of New York, 515 F. 2d 427 (CA2), cert. denied, 423 U. S. 863 (1975). The essentially judicial nature of disciplinary actions in New Jersey has been recognized previously by the federal courts. In Gipson v. New Jersey Supreme Court, 558 F. 2d 701 (1977), the United States Court of Appeals for the Third Circuit agreed that “incursions by federal courts into ongoing [New Jersey] disciplinary proceedings would be peculiarly disruptive of notions of comity.” Id., at 704. This case is distinguishable from Steffel v. Thompson, 415 U. S. 452, 462 (1974), in which there was no ongoing state proceeding to serve as a vehicle for vindicating the constitutional rights of the federal plaintiff. This case is also distinguishable from Gerstein v. Pugh, 420 U. S. 103, 108, n. 9 (1975), in which the issue of the legality of a pretrial detention could not be raised in defense of a criminal prosecution. See also Juidice v. Vail, 430 U. S., at 337. In addition, after the filing of the writ of certiorari the New Jersey Supreme Court amended the state bar disciplinary rules to expressly permit a motion directly to the New Jersey Supreme Court for interlocutory adjudication of constitutional issues. Rule 1:20 — 4(d)(i). See n. 9, supra. Even if interlocutory review is not granted, constitutional issues are preserved for consideration by the New Jersey Supreme Court. Rule 1:20 — 2(j). The New Jersey Supreme Court reviews all disciplinary actions except the issuance of private letters of reprimand. Rule 1:20-4. Rule l:20-2(j), however, requires that all constitutional issues be withheld for consideration by the Supreme Court as part of its review of the decision of the Disciplinary Review Board. This appears to provide for Supreme Court review of constitutional challenges even when a private reprimand is made. Indeed, the decision of the New Jersey Supreme Court to consider respondent Hinds’ constitutional challenges indicates that the state court desired to give Hinds a swift judicial resolution of his constitutional claims. It is not clear whether the Court of Appeals decided whether abstention would be proper as to the respondent organizations who are not parties to the state disciplinary proceedings. We leave this issue to the Court of Appeals on remand. 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_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. JEW TEN, also known as George K. Jue, also known as Jue Gar King, also known as Chow Ka King, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 17625. United States Court of Appeals Ninth Circuit. Sept. 8, 1962. Joseph S. Hertogs and Fred Campag-noli, San Francisco, Cal., for petitioner. Cecil F. Poole, U. S. Atty., and Charles Elmer Collett, Asst. U. S. Atty., San Francisco, Cal., for respondent. Before BARNES, and KOELSCH, Circuit Judges, and PLUMMER, District Judge. BARNES, Circuit Judge. This is a petition for judicial review of a final order of deportation entered against Jew Ten (hereinafter referred to as “petitioner”) by the Immigration and Naturalization Service (hereinafter referred to as “respondent”) pursuant to administrative proceedings under Section 242(b) of the Immigration and Nationality Act (8 U.S.C.A. § 1252(b)). The petition was timely filed. Service was properly made, and the deportation was stayed. This court has jurisdiction to review the order entered below under the provisions of Section 1105a of Title 8 United States Code Annotated, and Sections 1031-1042 of Title 5, United States Code Annotated. The question here presented is whether respondent’s order is erroneous as a matter of law. The facts are not in dispute. They may be summarized as follows: Petitioner is an alien, a native and citizen of China, who was first lawfully admitted into the United States in 1919 as the lawful minor son of a domiciled merchant. He last entered the United States at the Port of Honolulu, the then Territory of Hawaii, on August 10,1950, at which time he was admitted as a lawful returning permanent resident in possession of a valid re-entry permit. On February 15, 1954, petitioner was convicted of a conspiracy to assist other aliens to enter the United States in violation of the law. The district court, pursuant to the provisions of § 241(b) (2) of the Immigration and Nationality Act (8 U.S.C.A. § 1251(b) (2)), recommended to the Attorney General that petitioner “be not deported.” This resulted in the provision of Subsection (a) (4) of § 1251 being inapplicable (conviction of a crime involving moral turpitude). Despite this judicial recommendation, and the resulting inapplicability of § 1251 (a) (4), on April 3, 1954 respondent issued a warrant of arrest charging petitioner as being deportable under § 241 (a) (13) of the Immigration and Nationality Act of 1952. After an extensive hearing, the Special Inquiry Officer, in a decision dated July 18, 1955, sustained the charge and directed that petitioner be deported from the United States. This decision was affirmed by the Board of Immigration Appeals on December 20, 1955. Petitioner does not set forth his specification of errors in conformity with the rules of this court. In his statement of of facts, however, he says : “This petition for review was filed for the specific purpose of seeking a judicial determination as to whether the administrative decision is erroneous as a matter of law.” Thus, petitioner does not here assert that the record in no way supports respondent’s decision; consequently, this court is not called upon to determine whether there is reasonable, substantial, or probative evidence in the record to support respondent’s order. The issue presented, in petitioner’s words, is: “The Immigration and Naturalization Service erred in holding petitioner subject to deportation on the charge set forth in the warrant of arrest contrary to the recommendation of the District Court to the Attorney General that petitioner not be deported from the United States.” It is petitioner’s contention that respondent is without jurisdiction or power to deport him because petitioner is entitled to the benefit of the district court’s recommendation that he not be deported. The district court’s recommendation was founded upon § 241(b) of the Immigration and Nationality Act of 1952, which, prior to enactment of the Narcotics Control Act of 1956, read: “(b) The provisions of subsection (a) (4) of this section respecting the deportation of an alien convicted of a crime or crimes shall not apply (1) in the case of any alien who has subsequent to such conviction been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several States, or (2) if the court sentencing such alien for such crimes shall make, at the time of first imposing judgment or passing sentence, or within thirty days thereafter, a recommendation to the Attorney General that such alien not be deported, due notice having been given prior to making such recommendation to representatives of the interested State, the Service, and prosecution authorities, who shall be granted an opportunity to make representations in the matter.” As one reads § 241(b), it seems fairly clear that the power of the sentencing court to recommend that a convicted alien not be deported is limited to those cases where an alien is convicted of an offense within the meaning of § 241(a) (4) of the Act (8 U.S.C.A. § 1251(a) (4)). But, as read and applied by some courts, § 241(b) was not free from ambiguity. The ambiguity in the scope of the application of § 241(b) resulted from first, the vague and uncertain language (here acknowledged to be so by respondent) of § 241(a) (4), and secondly, because for a number of years sentencing courts made judicial recommendations against deportation in cases where aliens were convicted of a violation of the narcotics laws — even though aliens convicted of violations of narcotics laws were specifically deportable under § 241(a) (11). With this brief background in mind, suffice it to say that Congress was not happy with the interpretation given § 241 by the courts. Consequently, by § 301 (c) of the Narcotics Control Act of 1956 (70 Stat. 575) Congress amended § 241 (b) by adding the following sentence: “The provisions of this subsection shall not apply in the case of any alien who is charged with being de-portable from the United States under subsection (a) (11) of this section.” The congressional intent of this amendment is clear from its history. In Conference Report No. 2546, the managers of the bill said: “(3) It amended section 241(b) of that act by including additional language to state clearly that this provision does not permit judicial recommendation against deportation of an alien convicted of a narcotic offense. Clarification of this provision has been made desirable by reason of the decisions in United States ex rel. De Luca v. O’Rourke ([8 Cir.] 213 F.2d 759) and Ex Parte Robles-Rubio (D.C. 119 F.Supp. 610).” (2 U.S.Code Cong. and Admin. News ’56, p. 3321.) The 1956 amendment to § 241(b) is the basis for petitioner’s contention in the case at bar. This amendment, contends petitioner, directly or indirectly amends § 241(b) to mean that judicial recommendations can now be made in all those classes of deportability enumerated in § 241(a) except when the deportation is ordered under § 241(a) (11). This contention, we believe, to be untenable. While the intent of Congress may be clearer in the statute’s legislative history than it is in the language of the statute itself, we do not believe § 241(b) can be given the meaning contended for by petitioner. As we read § 241(b), taking cognizance of its history, it can only mean that the sentencing court is limited to making recommendations in § 241(a) (4) convictions. This brings us to the case at bar. The district court here recommended that petitioner not be deported. Does this recommendation render respondent powerless — or without jurisdiction — to deport petitioner? For the reasons stated above, the answer would depend upon whether the case at bar was a proceeding to deport petitioner under § 241(a) (4). It was not. Hence, the district court’s recommendation does not bar respondent from deporting petitioner, and respondent’s final order of deportation must be affirmed. Respondent did not charge petitioner as being deportable under § 241(a) (4); nor was § 241(a) (4) relied upon by respondent in the proceedings below. Respondent did charge and find a violation of § 241(a) (13). In other words, respondent charged petitioner as being de-portable under § 241(a) (13) because he had committed acts proscribed under that section; not with being deportable for the reason that he had been convicted of a crime within the purview of § 241(a) (4). As pointed out in marginal note 4, supra, the only significance attached to petitioner’s conviction in the proceedings below was that the conviction had made it easier for respondent to prove that petitioner did in fact commit acts proscribed by § 241(a) (13). And, though it is not required, a reading of the record shows that respondent’s decision was well founded in fact. Affirmed. . This Subsection, 8 U.S.C.A. § 1251(a) (13), reads in pertinent part: “(a) Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who— * * * * * “(13) prior to, or at the time of any entry, or at any time within five years after any entry, shall have, knowingly and for gain, encouraged, induced, assisted, abetted or aided any other alien to enter or try to enter the United States in violation of law.” . This section reads: “(a) Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who— * * * * * “(4) is convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefor in a prison or corrective institution, for a year or more, or who at any time after entry is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor, and regardless of whether the convictions were in a single trial.” . This is pointed up in footnote 5 in Ex parte Robles-Rubio, N.D.Calif.1954, 119 F.Supp. 610, at page 613, which reads: “5. Since 1922, when violation of the Jones-Miller Act was first made a deport-able offense, the courts have possessed the power to recommend against the deportation of an alien convicted of violating that narcotic statute. * * * And, when, in 1931, the violation of other narcotic statutes, including the Harrison Narcotics Act, was made a deportable offense, the power of the courts to recommend against deportation was made applicable to violators of these statutes. * * * Thus for 30 years prior to the passage of the Immigration and Nationality Act of 1952, the courts have been making recommendations against deportation in narcotic eases.” . The opinion of the Board of Immigration Appeals reads: “The deportation of the [petitioner] is sought under Section 241(a) (13) * * * 'in that prior to or at the time of any entry, he knowingly and for gain encouraged, induced, assisted, abetted or aided any other alien to enter or try to enter the United States in violation of law. * * * Under [Section 241 (b) ] a nondeportable status created by judicial recommendation is limited to deportation charges brought under Section 241(a) (4) * * * unless said recommendation is preserved by * * * the saving clause of the' 1952 Act. * * * Since [the saving clause] is not applicable to the instant proceeding the judicial recommendation does not vitiate a charge laid under Section 241(a) (13). * * * “ * * * As proof of the alleged unlawful acts the government relies on a transcript developed during [petitioner’s] trial on the indictment referred to above (Exs. 4, 5 and 114), the testimony of several Chinese aliens and some 182 exhibits consisting of visa files, affidavits and other evidentiary material. “The extent of proof required to support the charges laid under Section 241(a) (13) is materially lessened by reason of [petitioner’s] conviction in the United States District Court * * * for violation of Title 18 U.S.C. (Rev.) Section 271. * * * ” The sole Conclusion of Law reached by the Special Inquiry Officer reads : “1. That under Section 241(a) (13) * * * the [petitioner] is subject to deportation on the ground that prior to or at the time of any entry, he shall have knowingly and for gain encouraged, induced, assisted, abetted or aided any other alien to enter or try to enter the United States in violation of law.” Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. Answer:

sc_caseorigin

112

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. Robert Mitchell JENNINGS, Petitioner v. William STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division. No. 13-7211. Supreme Court of the United States Argued Oct. 15, 2014. Decided Jan. 14, 2015. Randolph L. Schaffer, Jr., Houston, TX, for Petitioner. Andrew S. Oldham, Austin, TX, for Respondent. Jeffrey T. Green, Erika L. Maley, Paul J. Sampson, Sidley Austin LLP, Washington, DC, Randolph L. Schaffer, Jr., Counsel of Record, Houston, TX, for Petitioner. Greg Abbott, Attorney General of Texas, Daniel T. Hodge, First Assistant Attorney General, Jonathan F. Mitchell, Solicitor General, Andrew S. Oldham, Deputy Solicitor General, Counsel of Record, Arthur C. D'Andrea, Alex Potapov, Assistant Solicitors General, Office of the Attorney General, Austin, TX, for Respondent. Opinion Justice SCALIAdelivered the opinion of the Court. Petitioner Robert Mitchell Jennings was sentenced to death for capital murder. He applied for federal habeas corpus relief on three theories of ineffective assistance of counsel, prevailing on two. The State appealed, and Jennings defended his writ on all three theories. We consider whether Jennings was permitted to pursue the theory that the District Court had rejected without taking a cross-appeal or obtaining a certificate of appealability. I In July 1988, petitioner Robert Mitchell Jennings entered an adult bookstore to commit a robbery. Officer Elston Howard, by unhappy coincidence, was at the same establishment to arrest the store's clerk. Undeterred, Jennings shot Howard four times, robbed the store, and escaped. Howard died from his wounds. Howard was merely the most recent victim of Jennings' criminality. The State adjudicated Jennings a delinquent at 14, convicted him of aggravated robbery at 17, and of additional aggravated robberies at 20. He murdered Officer Howard only two months after his most recent release from prison. Jennings was arrested, tried, and convicted of capital murder, and the State sought the death penalty. During the punishment phase, the State introduced evidence of Jennings' lengthy and violent criminal history. Jennings' attorney called only the prison chaplain, who testified about Jennings' improvement and that Jennings was not "incorrigible." Jennings' attorney acknowledged the difficulty of his sentencing defense in his closing remarks, commenting that he could not "quarrel with" a death sentence, but was nonetheless pleading for mercy for his client. The jury returned a special verdict, consistent with Texas law, that Jennings acted deliberately in the murder and that he would present a continuing threat to society. The trial court sentenced Jennings to death. Texas courts affirmed Jennings' conviction and sentence and denied postconviction relief. Jennings v. State, No. AP-70911 (Tex.Crim.App., Jan. 20, 1993); Ex parte Jennings,2008 WL 5049911 (Tex.Crim.App., Nov. 26, 2008). Jennings applied for federal habeas corpus relief, asserting, as relevant here, three theories of ineffective assistance of counsel in the punishment phase of his trial. Jennings first claimed trial counsel was ineffective for failing to present evidence of his disadvantaged background, including that his conception was the product of his mother's rape, that his mother was only 17 when he was born, and that he grew up in poverty. Jennings offered his mother and sister as witnesses. Jennings next argued that trial counsel was ineffective for failure to investigate and to present evidence of Jennings' low intelligence and organic brain damage. His trial attorney admitted in affidavit that he failed to review the case files from Jennings' prior convictions, which contained a report suggesting Jennings suffered from mild mental retardationand mild organic brain dysfunction. (The report also suggested that Jennings malingered, feigning mental illness in order to delay proceedings.) Jennings argued that trial counsel should have examined Jennings' prior case files, investigated Jennings' mental health problems, and presented evidence of mental impairmentin the punishment phase. Finally, Jennings argued that counsel was constitutionally ineffective for stating that he could not "quarrel with" a death sentence. According to Jennings, this remark expressed resignation to-even the propriety of-a death sentence. Jennings cited our decision in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), as establishing constitutional ineffectiveness when counsel fails to investigate or to introduce substantial mitigating evidence in a sentencing proceeding. Though he did not cite our decision in Smith v. Spisak, 558 U.S. 139, 130 S.Ct. 676, 175 L.Ed.2d 595 (2010), he also argued that counsel's closing remarks amounted to constitutional ineffectiveness. The parties referred to these alleged errors as the "Wigginserrors" and the "Spisakerror"; we use the same terminology. The federal habeas court granted Jennings relief on both of his Wigginstheories, but denied relief on his Spisaktheory. Jennings v. Thaler, 2012 WL 1440387 (S.D.Tex., Apr. 23, 2012). The court ordered that the State "shall release Jennings from custody unless, within 120 days, the State of Texas grants Jennings a new sentencing hearing or resentences him to a term of imprisonment as provided by Texas law at the time of Jennings['] crime." Id.,at *7. The State appealed, attacking both Wigginstheories (viz., trial counsel's failure to present evidence of a deprived background and failure to investigate evidence of mental impairment). Jennings argued before the Fifth Circuit that the District Court correctly found constitutional ineffectiveness on both Wigginstheories, and argued again that trial counsel performed ineffectively under his Spisaktheory. The Fifth Circuit reversed the grant of habeas corpus under the two Wigginstheories and rendered judgment for the State. 537 Fed.Appx. 326, 334-335 (2013). The court determined that it lacked jurisdiction over Jennings' Spisaktheory. Id., at 338-339. Implicitly concluding that raising this argument required taking a cross-appeal, the panel noted that Jennings failed to file a timely notice of appeal, see Fed. Rule App. Proc. 4(a)(1)(A), and failed to obtain a certificate of appealability as required by 28 U.S.C. § 2253(c). Section 2253(c)provides, as relevant here, that "[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from ... the final order in a habeas corpus proceeding." We granted certiorari, 572 U.S. ----, 134 S.Ct. 1539, 188 L.Ed.2d 556 (2014), to decide whether Jennings was required to file a notice of cross-appeal and seek a certificate of appealability to pursue his Spisaktheory. II The rules governing the argumentation permissible for appellees urging the affirmance of judgment are familiar, though this case shows that familiarity and clarity do not go hand-in-hand. A An appellee who does not take a cross-appeal may "urge in support of a decree any matter appearing before the record, although his argument may involve an attack upon the reasoning of the lower court." United States v. American Railway Express Co.,265 U.S. 425, 435, 44 S.Ct. 560, 68 L.Ed. 1087 (1924). But an appellee who does not cross-appeal may not "attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary." Ibid.Since Jennings did not cross-appeal the denial of his Spisaktheory, we must determine whether urging that theory sought to enlarge his rights or lessen the State's under the District Court's judgment granting habeas relief. The District Court's opinion, in its section labeled "Order," commanded the State to "release Jennings from custody unless, within 120 days, the State of Texas grants Jennings a new sentencing hearing or resentences him to a term of imprisonment as provided by Texas law at the time of Jennings['] crime." 2012 WL 1440387, at *7. The District Court's corresponding entry of judgment contained similar language. App. 35. The intuitive answer to the question whether Jennings' new theory expands these rights is straightforward: Jennings' rights under the judgment were what the judgment provided-release, resentencing, or commutation within a fixed time, at the State's option; the Spisaktheory would give him the same. Similarly, the State's rights under the judgment were to retain Jennings in custody pending resentencing or to commute his sentence; the Spisaktheory would allow no less. The State objects to this straightforward result. A conditional writ of habeas corpus, it argues, does not merely entitle a successful petitioner to retrial (or resentencing), but it entitles him to retrial (or resentencing) without the challenged errors. Because each basis for habeas relief imposes an additional implied obligation on the State (not to repeat that error), each basis asserted by a successful petitioner seeks to lessen the State's rights at retrial, and therefore each additional basis requires a cross-appeal. This is an unusual position, and one contrary to the manner in which courts ordinarily behave. Courts reduce their opinions and verdicts to judgments precisely to define the rights and liabilities of the parties. Parties seeking to enforce a foreign court's decree do not attempt to domesticate an opinion; they domesticate a judgment. Restatement (Third) of Foreign Relations Law of the United States §§ 481-482 (1987). A prevailing party seeks to enforce not a district court's reasoning, but the court's judgment. Rogers v. Hill, 289 U.S. 582, 587, 53 S.Ct. 731, 77 L.Ed. 1385 (1933). This Court, like all federal appellate courts, does not review lower courts' opinions, but their judgments. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). And so a rule that contravenes this structure, that makes the opinion part of the judgment, is peculiar-especially when it is applied to impose extrajudgment obligations on a sovereign State. The State's argument might have force in a case where a district court explicitlyimposes (or the appellee asks the appellate court explicitly to impose) a condition governing the details of the retrial. But that case is not before us. The implications of the State's position make clear why such orders are atypical, and why we should not infer such conditions from silence. Construing every federal grant of habeas corpus as carrying an attendant list of unstated acts (or omissions) that the state court must perform (or not perform) would substantially transform conditional habeas corpus relief from an opportunity "to replace an invalid judgment with a valid one,"Wilkinson v. Dotson,544 U.S. 74, 87, 125 S.Ct. 1242, 161 L.Ed.2d 253(SCALIA, J., concurring), to a general grant of supervisory authority over state trial courts. In a variation on the same theme, the dissent posits that, apart from implied terms, a habeas petitioner who successfully defends a judgment on an alternative ground hasexpanded his rights under the judgment, because he has changed the judgment's issue-preclusive effects. This theory confuses a party's rights under a judgment-here, the right to release, resentencing, or commutation, at the State's option-with preclusive effects that the judgment might have in future proceedings. That makes nonsense of American Railway. Wheneveran appellee successfully defends a judgment on an alternative ground, he changes what would otherwise be the judgment's issue-preclusive effects. Thereafter, issue preclusion no longer attaches to the ground on which the trial court decided the case, and instead attaches to the alternative ground on which the appellate court affirmed the judgment. Restatement (Second) of Judgments § 27 (1982). Thus, making alteration of issue-preclusive effects the touchstone of necessity for cross-appeal would require cross-appeal for everydefense of a judgment on alternative grounds. That is, of course, the polar opposite of the rule we established in American Railway. Under the habeas court's judgment, Jennings was entitled, at the State's option, to either release, resentencing, or commutation of his sentence. Any potential claim that would have entitled Jennings to a new sentencing proceeding could have been advanced to "urge ... support" of the judgment within the meaning of American Railway.265 U.S., at 435, 44 S.Ct. 560. The dissent and the State contend that applying American Railwayin this fashion will lead to a proliferation of frivolous appellate defenses in habeas cases. If so, that is a problem that can only be solved by Congress. Until it does so, we think it appropriate to adhere to the usual law of appeals. We think, however, that the danger is exaggerated. To begin with, not all defenses will qualify. A habeas applicant who has won resentencing would be required to take a cross-appeal in order to raise a rejected claim that would result in a new trial. Similarly, even if a habeas applicant has won retrial below, a claim that his conduct was constitutionally beyond the power of the State to punish would require cross-appeal. And even a successful applicant doing no more than defending his judgment on appeal is confined to those alternative grounds present in the record: he may not simply argue anyalternative basis, regardless of its origin. Ibid. Moreover, successful habeas applicants have an incentive to defend their habeas grants effectively, an objective that is not furthered by diverting an appellate court's attention from a meritorious defense to a frivolous one. The dissent gives two examples of habeas petitioners who raised numerous ostensibly frivolous claims. Post,at 807. They prove nothing except the dissent's inability to substantiate its claim that our holding will foster the presentation of frivolous alternative grounds for affirmance. For both examples involved habeas petitioners who lost before the magistrate and were casting about for any basis that might justify a writ. We are talking here about habeas petitioners who have won before the district court. The notion that they can often be expected to dilute their defense of the (by-definition-nonfrivolous) basis for their victory by dragging in frivolous alternative grounds to support it is thoroughly implausible. Indeed, as the State and Jennings agree, it is rare that a habeas petitioner successful in the district court will even be called upon to defend his writ on appeal. And finally, we doubt that any more judicial time will be wasted in rejection of frivolous claims made in defense of judgment on an appeal already taken than would be wasted in rejection of similar claims made in (what the State and dissent would require) a separate proceeding for a certificate of appealability. To be sure, as the dissent points out, post,at 807, the certificate ruling will be made by just one judge rather than three; but that judge will always be required to consider and rule on the alternative grounds, whereas the three-judge court entertaining the government's habeas appeal will not reach the alternative grounds unless it rejects the ground relied on by the lower court. Not to mention the fact that in an already-pending appeal the court can give the back of its hand to frivolous claims en passant,whereas the certificate process requires the opening and disposition of a separate proceeding. In the end, the dissent tries to evade American Railwayby asserting that habeas corpus is "unique." Post,at 805 - 806. There are undoubtedly some differences between writs of habeas corpus and other judgments-most notably, that habeas proceedings traditionally ignored the claim-preclusive effect of earlier adjudications. But the reality that some thingsabout habeas are different does not mean that everythingabout habeas is different. The dissent must justify why the particular distinction it urges here-abandonment of the usual American Railwayrule-is an appropriate one. It cannot. B The State also advances what could be termed a corollary to the American Railwayrule. Citing Helvering v. Pfeiffer,302 U.S. 247, 58 S.Ct. 159, 82 L.Ed. 231 (1937), and Alexander v. Cosden Pipe Line Co.,290 U.S. 484, 54 S.Ct. 292, 78 L.Ed. 452 (1934), the State insists that a cross-appeal is necessary not only for Jennings to enlarge his rights under the District Court's judgment, but also to attack the District Court's ruling rejecting his Spisaktheory, even if Jennings' rights under the court's judgment would remain undisturbed. The view of Pfeifferand Alexanderadvanced by the State would put these cases in considerable tension with our oft-reaffirmed holding in American Railway. And it is not the correct view. Both Pfeifferand Alexanderarose from disputes between the Commissioner of the Internal Revenue Service and taxpayers regarding multiple discrete federal tax liabilities. Pfeiffer, supra,at 248, 58 S.Ct. 159; Alexander, supra,at 486, 54 S.Ct. 292. In Pfeiffer,the Commissioner prevailed before the Board of Tax Appeals on his contention that a dividend was taxable, but lost a similar claim against a cash payment. Only the taxpayer sought the Second Circuit's review, and the taxpayer prevailed on the dividend liability. 302 U.S., at 249, 58 S.Ct. 159. In Alexander, the taxpayer sought refund of four tax liabilities; the taxpayer won on all four. Only the Commissioner appealed to the Tenth Circuit, and that court affirmed two of the refunds, eliminated a third, and reduced a fourth. Pfeiffer, supra,at 248-249, 58 S.Ct. 159; Alexander, supra,at 486, 54 S.Ct. 292. The Commissioner sought our review in both cases; we refused to entertain the Commissioner's arguments regarding the cash payment in Pfeiffer,or the taxpayer's regarding the eliminated and reduced claims in Alexander, citing American Railway. The State argues that these holdings expanded the need for cross-appeal, beyond merely those arguments that would enlarge rights under the judgment, to those arguments that revisit a lower court's disposition of an issue on which a judgment rests. For, the State argues, the rejected arguments would not necessarilyhave expanded the Commissioner's or the taxpayer's rights; if some of the points on which the respective appellee won below were rejected on appeal, his new arguments might do no more than preserve the amount assessed. But this view of Pfeifferand Alexanderdistorts American Railway.American Railwaydoes not merely require a cross-appeal where a party, if fully successful on his new arguments, would certainly obtain greater relief than provided below; it requires cross-appeal if the party's arguments are presented "with a vieweither to enlarging his own rights thereunder or of lessening the rights of his adversary." 265 U.S., at 435, 44 S.Ct. 560. In Pfeifferand Alexanderthe assertion of additional tax liabilities or defenses, respectively, necessarily sought to enlarge or to reduce the Commissioner's rights, even if, under some combination of issues affirmed and reversed, one possibility would have produced no more than the same tax obligations pronounced by the judgment below. Once we have rejected the State's-and dissent's-theories of implied terms in conditional writs, Jennings' Spisaktheory sought the same relief awarded under his Wigginstheories: a new sentencing hearing. Whether prevailing on a single theory or all three, Jennings sought the same, indivisible relief. This occurred in neither Pfeiffernor Alexander, and we decline to view those cases as contradicting our " 'inveterate and certain' " rule in American Railway. Greenlaw v. United States,554 U.S. 237, 245, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008). C Finally, the State urges that even if Jennings was not required to take a cross-appeal by American Railway,Pfeiffer,and Alexander, he was required to obtain a certificate of appealability. We disagree. Section 2253(c) of Title 28provides that "an appeal may not be taken to the court of appeals" without a certificate of appealability, which itself requires "a substantial showing of the denial of a constitutional right." It is unclear whether this requirement applies to a habeas petitioner seeking to cross-appeal in a case that is already before a court of appeals. Section 2253(c)performs an important gate-keeping function, but once a State has properly noticed an appeal of the grant of habeas relief, the court of appeals must hear the case, and "there are no remaining gates to be guarded." Szabo v. Walls,313 F.3d 392, 398 (C.A.7 2002)(Easterbrook, J.). But we need not decide that question now, since it is clear that § 2253(c)applies only when "an appeal" is "taken to the court of appeals." Whether or not this embraces Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. 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Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims 212. United States Supreme Court Answer:

sc_casedisposition

G

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. LEHNERT et al. v. FERRIS FACULTY ASSOCIATION et al. No. 89-1217. Argued November 5, 1960 Decided May 30, 1991 Blackmun, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-B, III-C, IV-B (except for the final paragraph), IV-D, IV-E, and IV-F, in which Rehnquist, C. J., and White, Marshall, and Stevens, JJ., joined, and an opinion with respect to Parts III-A and IV-A, the final paragraph of Part IV-B, and Parts IV-C and V, in which Rehnquist, C. J., and White and Stevens, JJ., joined. Marshall, J., filed an opinion concurring in part and dissenting in part, post, p. 533. Scalia, J., filed an opinion concurring in the judgment in part and dissenting in part, in which O’Connor and Souter, JJ., joined, and in all but Part III-C of which Kennedy, J., joined, post, p. 550. Kennedy, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 562. Raymond J. LaJeunesse, Jr., argued the cause and filed briefs for petitioners. Robert H. Chanin argued the cause for respondents. With him on the brief was Bruce R. Lerner Briefs of amici curiae urging affirmance were filed for the American Federation of Labor and Congress of Industrial Organizations by Marsha S. Berzon and Laurence Gold; for the American Federation of State, County and Municipal Employees Councils 1, 52, 71, 73, et al. by Lawrence A. Poltrock, Richard Kirschner, Paul Schachter, Patrick M. Scanlon, and James B. Coppess. Briefs of amici curiae urging reversal were filed for Landmark Legal Foundation by Jerald L. Hill and Mark Bredemeier; for the Center on National Labor Policy by Michael E. Avakian and Robert F. Gore; for the Pacific Legal Foundation et al. by Ronald A. Zumbrun, Anthony T. Caso, and Sharon L. Browne; and for the Public Service Research Council, Inc., by Edwin Vieira, Jr. Justice Blackmun announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-B, III-C, IV-B (except for the final paragraph), IV-D, IV-E, and IV-F, and an opinion with respect to Parts III-A and IV-A, the final paragraph of Part IV-B, and Parts IV-C and V, in which The Chief Justice, Justice White, and Justice Stevens join. This case presents issues concerning the constitutional limitations, if any, upon the payment, required as a condition of employment, of dues by a nonmember to a union in the public sector. I Michigan’s Public Employment Relations Act (Act), Mich. Comp. Laws §423.201 et seq. (1978), provides that a duly selected union shall serve as the exclusive collective-bargaining representative of public employees in a particular bargaining unit. The Act, which applies to faculty members of a public educational institution in Michigan, permits a union and a government employer to enter into an “agency-shop” arrangement under which employees within the bargaining unit who decline to become members of the union are compelled to pay a “service fee” to the union. Respondent Ferris Faculty Association (FFA), an affiliate of the Michigan Education Association (MEA) and the National Education Association (NEA), serves, pursuant to this provision, as the exclusive bargaining representative of the faculty of Ferris State College in Big Rapids, Mich. Ferris is a public institution established under the Michigan Constitution and is funded by the State. See Mich. Const., Art. VIII, §4. Since 1975, the FFA and Ferris have entered into successive collective-bargaining agreements containing agency-shop provisions. Those agreements were the fruit of negotiations between the FFA and respondent Board of Control, the governing body of Ferris. See Mich. Comp. Law §390.802 (1988). Subsequent to this Court’s decision in Abood v. Detroit Board of Education, 431 U. S. 209 (1977), in which the Court upheld the constitutionality of the Michigan agency-shop provision and outlined permissible uses of the compelled fee by public-employee unions, Ferris proposed, and the FFA agreed to, the agency-shop arrangement at issue here. That agreement required all employees in the bargaining unit who did not belong to the FFA to pay a service fee equivalent to the amount of dues required of a union member. Of the $284 service fee for 1981-1982, the period at issue, $24.80 went to the FFA, $211.20 to the MEA, and $48 to the NEA. Petitioners were members of the Ferris faculty during the period in question and objected to certain uses by the unions of their service fees. Petitioners instituted this action, pursuant to Rev. Stat. §§1979-1981, 42 U. S. C. §§1983, 1985, 1986, in the United States District Court for the Western District of Michigan, claiming that the use of their fees for purposes other than negotiating and administering a collective-bargaining agreement with the Board of Control violated rights secured to them by the First and Fourteenth Amendments to the United States Constitution. Petitioners also claimed that the procedures implemented by the unions to determine and collect service fees were inadequate. After a 12-day bench trial, the District Court issued its opinion holding that certain union expenditures were chargeable to petitioners, that certain other expenditures were not chargeable as a matter of law, and that still other expenditures were not chargeable because the unions had failed to sustain their burden of proving that the expenditures were made for chargeable activities. 643 F. Supp. 1306 (1986). Following a partial settlement, petitioners took an appeal limited to the claim that the District Court erred in holding that the costs of certain disputed union activities were constitutionally chargeable to the plaintiff faculty members. Specifically, petitioners objected to the District Court’s conclusion that the union constitutionally could charge them for the costs of (1) lobbying and electoral politics; (2) bargaining, litigation, and other activities on behalf of persons not in petitioners’ bargaining unit; (3) public-relations efforts; (4) miscellaneous professional activities; (5) meetings and conventions of the parent unions; and (6) preparation for a strike which, had it materialized, would have violated Michigan law. The Court of Appeals, with one judge dissenting in large part, affirmed. 881 F. 2d 1388 (CA6 1989). After reviewing this Court’s cases in the area, the court concluded that each of the challenged activities was sufficiently related to the unions’ duties as the exclusive bargaining representative of petitioners’ unit to justify compelling petitioners to assist in subsidizing it. The dissenting judge concurred with respect to convention expenses but disagreed with the majority’s resolution of the other items challenged. Id., at 1394. Because of the importance of the issues, we granted certio-rari. 496 U. S. 924 (1990). h-1 1 — 4 This is not our first opportunity to consider the constitutional dimensions of union-security provisions such as the agency-shop agreement at issue here. The Court first addressed the question in Railway Employes v. Hanson, 351 U. S. 225 (1956), where it recognized the validity of a “union-shop” agreement authorized by § 2 Eleventh of the Railway Labor Act (RLA), as amended, 64 Stat. 1238, 45 U. S. C. § 152 Eleventh, as applied to private employees. As with the Michigan statute we consider today, the RLA provision at issue in Hanson was permissive in nature. It was more expansive than the Michigan Act, however, because the challenged RLA provision authorized an agreement that corn-pelled union membership, rather than simply the payment of a service fee by a nonmember employee. Finding that the concomitants of compulsory union membership authorized by the RLA extended only to financial support of the union in its collective-bargaining activities, the Court determined that the challenged arrangement did not offend First or Fifth Amendment values. It cautioned, however: “If ‘assessments’ are in fact imposed for purposes not germane to collective bargaining, a different problem would be presented.” 351 U. S., at 235 (footnote omitted). It further emphasized that the Court’s approval of the statutorily sanctioned agreement did not extend to cases in which compelled membership is used “as a cover for forcing ideological conformity or other action in contravention of the First Amendment.” Id., at 238. . Hanson did not directly concern the extent to which union dues collected under a governmentally authorized union-shop agreement may be utilized in support of ideological causes or political campaigns to which reluctant union members are opposed. The Court addressed that issue under the RLA in Machinists v. Street, 367 U. S. 740 (1961). Unlike Hanson, the record in Street was replete with detailed information and specific factual findings that the union dues of dissenting employees had been used for political purposes. Recognizing that, in enacting § 2 Eleventh of the RLA, Congress sought to protect the expressive freedom of dissenting employees while promoting collective representation, the Street Court construed the RLA to deny unions the authority to expend dissenters’ funds in support of political causes to which those employees objected. Two years later in Railway Clerks v. Allen, 373 U. S. 113 (1963), another RLA case, the Court reaffirmed that holding. It emphasized the important distinction between a union’s political expenditures and “those germane to collective bargaining,” with only the latter being properly chargeable to dissenting employees under the statute. Although they are cases of statutory construction, Street and Allen are instructive in delineating the bounds of the First Amendment in this area as well. Because the Court expressly has interpreted the RLA “to avoid serious doubt of [the statute’s] constitutionality,” Street, 367 U. S., at 749; see Ellis v. Railway Clerks, 466 U. S. 435, 444 (1984), the RLA cases necessarily provide some guidance regarding what the First Amendment will countenance in the realm of union support of political activities through mandatory assessments. Specifically, those cases make clear that expenses that are relevant or “germane” to the collective-bargaining functions of the union generally will be constitutionally chargeable to dissenting employees. They further establish that, at least in the private sector, those functions do not include political or ideological activities. It was not until the decision in Abood that this Court addressed the constitutionality of union-security provisions in the public-employment context. There, the Court upheld the same Michigan statute which is before us today against a facial First Amendment challenge. At the same time, it determined that the claim that a union has utilized an individual agency-shop agreement to force dissenting employees to subsidize ideological activities could establish, upon a proper showing, a First Amendment violation. In so doing, the Court set out several important propositions: First, it recognized that “[t]o compel employees financially to support their collective-bargaining representative has an impact upon their First Amendment interests.” 431 U. S., at 222. Unions traditionally have aligned themselves with a wide range of social, political, and ideological viewpoints, any number of which might bring vigorous disapproval from individual employees. To force employees to contribute, albeit indirectly, to the promotion of such positions implicates core First Amendment concerns. See, e. g., Wooley v. Maynard, 430 U. S. 705, 714 (1977) (“[T]he right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all”). Second, the Court in Abood determined that, as in the private sector, compulsory affiliation with, or monetary support of, a public-employment union does not, without more, violate the First Amendment rights of public employees. Similarly, an employee’s free speech rights are not unconstitutionally burdened because the employee opposes positions taken by a union in its capacity as collective-bargaining representative. “[T]he judgment clearly made in Hanson and Street is that such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress.” 431 U. S., at 222. In this connection, the Court indicated that the considerations that justify the union shop in the private context — the desirability of labor peace and eliminating “free riders” — are equally important in the public-sector workplace. Consequently, the use of dissenters’ assessments “for the purposes of collective bargaining, contract administration, and grievance adjustment,” id., at 225-226, approved under the RLA, is equally permissible when authorized by a State vis-a-vis its own workers. Third, the Court established that the constitutional principles that prevent a State from conditioning public employment upon association with a political party, see Elrod v. Burns, 427 U. S. 347 (1976) (plurality opinion), or upon professed religious allegiance, see Torcaso v. Watkins, 367 U. S. 488 (1961), similarly prohibit a public employer “from requiring [an employee] to contribute to the support of an ideological cause he may oppose as a condition of holding a job” as a public educator. 431 U. S., at 235. The Court in Abood did not attempt to draw a precise line between permissible assessments for public-sector collective-bargaining activities and prohibited assessments for ideological activities. It did note, however, that, while a similar line must be drawn in the private sector under the RLA, the distinction in the public sector may be “somewhat hazier.” Id., at 236. This is so because the “process of establishing a written collective-bargaining agreement prescribing the terms and conditions of public employment may require not merely concord at the bargaining table, but subsequent approval by other public authorities; related budgetary and appropriations decisions might be seen as an integral part of the bargaining process.” Ibid. Finally, in Ellis, the Court considered, among other issues, a First Amendment challenge to the use of dissenters’ funds for various union expenses including union conventions, publications, and social events. Recognizing that by allowing union-security arrangements at all, it has necessarily countenanced a significant burdening of First Amendment rights, it limited its inquiry to whether the expenses at issue “involve[d] additional interference with the First Amendment interests of objecting employees, and, if so, whether they are nonetheless adequately supported by a governmental interest.” 466 U. S., at 456 (emphasis added). Applying that standard to the challenged expenses, the Court found all three to be properly supportable through mandatory assessments. The dissenting employees in Ellis objected to charges relating to union social functions, not because those activities were inherently expressive or ideological in nature, but purely because they were sponsored by the union. Because employees may constitutionally be compelled to affiliate with a union, the Court found that forced contribution to union social events that were open to all imposed no additional burden on their First Amendment rights. Although the challenged expenses for union publications and conventions were clearly communicative in nature, the Court found them to entail little additional encroachment upon freedom of speech, “and none that is not justified by the governmental interests behind the union shop itself.” Ibid. See also Keller v. State Bar of California, 496 U. S. 1 (1990), and Communications Workers v. Beck, 487 U. S. 735 (1988). Thus, although the Court’s decisions in this area prescribe a case-by-case analysis in determining which activities a union constitutionally may charge to dissenting employees, they also set forth several guidelines to be followed in making such determinations. Hanson and Street and their progeny teach that chargeable activities must (1) be “germane” to collective-bargaining activity; (2) be justified by the government’s vital policy interest in labor peace and avoiding “free riders”; and (3) not significantly add to the burdening of free speech that is inherent in the allowance of an agency or union shop. Ill In arguing that these principles exclude the charges upheld by the Court of Appeals, petitioners propose two limitations on the use by public-sector unions of dissenters’ contributions. First, they urge that they may not be charged over their objection for lobbying activities that do not concern legislative ratification of, or fiscal appropriations for, their collective-bargaining agreement. Second, as to nonpolitical expenses, petitioners assert that the local union may not utilize dissenters’ fees for activities that, though closely related to collective bargaining generally, are not undertaken directly on behalf of the bargaining unit to which the objecting employees belong. We accept the former proposition but find the latter to be foreclosed by our prior decisions. A The Court of Appeals determined that unions constitutionally may subsidize lobbying and other political activities with dissenters’ fees so long as those activities are “ ‘pertinent to the duties of the union as a bargaining representative.’ ” 881 F. 2d, at 1392, quoting Robinson v. New Jersey, 741 F. 2d 598, 609 (CA3 1984), cert. denied, 469 U. S. 1228 (1985). In reaching this conclusion, the court relied upon the inherently political nature of salary and other workplace decisions -in public employment. “To represent their members effectively,” the court concluded, “public sector unions must necessarily concern themselves not only with negotiations at the bargaining table but also with advancing their members’ interests in legislative and other ‘political’ arenas.” 881 F. 2d, at 1392. This observation is clearly correct. Public-sector unions often expend considerable resources in securing ratification of negotiated agreements by the proper state or local legislative body. See Note, Union Security in the Public Sector: Defining Political Expenditures Related to Collective Bargaining, 1980 Wis. L. Rev. 134, 150-152. Similarly, union efforts to acquire appropriations for approved collective-bargaining agreements often serve as an indispensable prerequisite to their implementation. See Developments in the Law: Public Employment, 97 Harv. L. Rev. 1611, 1732-1733 (1984). It was in reference to these characteristics of public employment that the Court in Abood discussed the “somewhat hazier” line between bargaining-related and purely ideological activities in the public sector. 431 U. S., at 236. The dual roles of government as employer and policymaker in such cases make the analogy between lobbying and collective bargaining in the public sector a close one. This, however, is not such a case. Where, as here, the challenged lobbying activities relate not to the ratification or implementation of a dissenter’s collective-bargaining agreement, but to financial support of the employee’s profession or of public employees generally, the connection to the union’s function as bargaining representative is too attenuated to justify compelled support by objecting employees. We arrive at this result by looking to the governmental interests underlying our acceptance of union-security arrangements. We have found such arrangements to be justified by the government’s interest in promoting labor peace and avoiding the “free-rider” problem that would otherwise accompany union recognition. Teachers v. Hudson, 475 U. S. 292, 302-303 (1986); Abood, 431 U. S., at 224. Neither goal is served by charging objecting employees for lobbying, electoral, and other political activities that do not relate to their collective-bargaining agreement. Labor peace is not especially served by allowing such charges, because, unlike collective-bargaining negotiations between union and management, our national and state legislatures, the media, and the platform of public discourse are public fora open to all. Individual employees are free to petition their neighbors and government in opposition to the union which represents them in the workplace. Because worker and union cannot be said to speak with one voice, it would not further the cause of harmonious industrial relations to compel objecting employees to finance union political activities as well as their own. Similarly, while we have endorsed the notion that nonunion workers ought not be allowed to benefit from the terms of employment secured by union efforts without paying for those services, the so-called “free-rider” concern is inapplicable where lobbying extends beyond the effectuation of a collective-bargaining agreement. The balancing of monetary and other policy choices performed by legislatures is not limited to the workplace but typically has ramifications that extend into diverse aspects of an employee’s life. Perhaps most important, allowing the use of dissenters’ assessments for political activities outside the scope of the collective-bargaining context would present “additional interference with the First Amendment interests of objecting employees.” Ellis, 466 U. S., at 456. There is no question as to the expressive and ideological content of these activities. Further, unlike discussion by negotiators regarding the terms and conditions of employment, lobbying and electoral speech are likely to concern topics about which individuals hold strong personal views. Although First Amendment protection is in no way limited to controversial topics or emotionally charged issues, see Winters v. New York, 333 U. S. 507, 510 (1948); Buckley v. Valeo, 424 U. S. 1, 14 (1976); Abood, 431 U. S., at 231, and n. 28, the extent of one’s disagreement with the subject of compulsory speech is relevant to the degree of impingement upon free expression that compulsion will effect. The burden upon freedom of expression is particularly great where, as here, the compelled speech is in a public context. By utilizing petitioners’ funds for political lobbying and to garner the support of the public in its endeavors, the union would use each dissenter as “an instrument for fostering public adherence to an ideological point of view he finds unacceptable.” Maynard, 430 U. S., at 715. The First Amendment protects the individual’s right of participation in these spheres from precisely this type of invasion. Where the subject of compelled speech is the discussion of governmental affairs, which is at the core of our First Amendment freedoms, Roth v. United States, 354 U. S. 476, 484 (1957); Mills v. Alabama, 384 U. S. 214, 218 (1966); Buckley v. Valeo, 424 U. S., at 14, the burden upon dissenters’ rights extends far beyond the acceptance of the agency shop and is constitutionally impermissible. Accordingly, we hold that the State constitutionally may not compel its employees to subsidize legislative lobbying or other political union activities outside the limited context of contract ratification or implementation. B Petitioners’ contention that they may be charged only for those collective-bargaining activities undertaken directly on behalf of their unit presents a closer question. While we consistently have looked to whether nonideological expenses are “germane to collective bargaining,” Hanson, 351 U. S., at 235, we have never interpreted that test to require a direct relationship between the expense at issue and some tangible benefit to the dissenters’ bargaining unit. We think that to require so close a connection would be to ignore the unified-membership structure under which many unions, including those here, operate. Under such arrangements, membership in the local union constitutes membership in the state and national parent organizations. See 643 F. Supp., at 1308. See also Cumero v. Public Employment Relations Board, 49 Cal. 3d 575, 603-604, 778 P. 2d 174, 192 (1989) (noting the inherent “close organizational relationship”). The essence of the affiliation relationship is the notion that the parent will bring to bear its often considerable economic, political, and informational resources when the local is in need of them. Consequently, that part of a local’s affiliation fee which contributes to the pool of resources potentially available to the local is assessed for the bargaining unit’s protection, even if it is not actually expended on that unit in any particular membership year. The Court recognized as much in Ellis. There it construed the RLA to allow the use of dissenters’ funds to help defray the costs of the respondent union’s national conventions. It reasoned that “if a union is to perform its statutory functions, it must maintain its corporate or associational existence, must elect officers to manage and carry on its affairs, and may consult its members about overall bargaining goals and policy.” 466 U. S., at 448. We see no reason why analogous public-sector union activities should be treated differently. We therefore conclude that a local bargaining representative may charge objecting employees for their pro rata share of the costs associated with otherwise chargeable activities of its state and national affiliates, even if those activities were not performed for the direct benefit of the objecting employees’ bargaining unit. This conclusion, however, does not serve to grant a local union carte blanche to expend dissenters’ dollars for bargaining activities wholly unrelated to the employees in their unit. The union surely may not, for example, charge objecting employees for a direct donation or interest-free loan to an unrelated bargaining unit for the purpose of promoting employee rights or unionism generally. Further, a contribution by a local union to its parent that is not part of the local’s responsibilities as an affiliate but is in the nature of a charitable donation would not be chargeable to dissenters. There must be some indication that the payment is for services that may ultimately inure to the benefit of the members of the local union by virtue of their membership in the parent organization. And, as always, the union bears the burden of proving the proportion of chargeable expenses to total expenses. Teachers v. Hudson, 475 U. S., at 306; Abood, 431 U. S., at 239-240, n. 40; Railway Clerks v. Allen, 373 U. S., at 122. We conclude merely that the union need not demonstrate a direct and tangible impact upon the dissenting employee’s unit. C Justice Scalia would find “implicit in our cases since Street,” the rule that “to be constitutional, a charge must at least be incurred in performance of the union’s statutory duties.” Post, at 558. As the preceding discussion indicates, we reject this reading of our cases. This Court never has held that the First Amendment compels such a requirement and our prior decisions cannot reasonably be construed to support his stated proposition. See, e. g., Ellis, 466 U. S., at 456 (“Petitioners may feel that their money is not being well-spent, but that does not mean they have a First Amendment complaint”); see also Keller v. State Bar of California, 496 U. S. 1 (1990) (distinguishing between statutory and constitutional duties in the context of integrated state bar membership). Even if viewed merely as a prophylactic rule for enforcing the First Amendment in the union-security context, Justice Scalia’s approach ultimately must be rejected. As the relevant provisions of the Michigan Act illustrate, state labor laws are rarely precise in defining the duties of public-sector unions to their members. Indeed, it is reasonable to assume that the Michigan provisions relating to collective-bargaining duties were purposefully drafted in broad terms so as to provide unions the flexibility and discretion necessary to accommodate the needs of their constituents. Here, as in the RLA context, “[t]he furtherance of the common cause leaves some leeway for the leadership of the group.” Street, 367 U. S., at 778 (Douglas, J., concurring), quoted in Abood, 431 U. S., at 222-223. Consequently, the terms of the Act provide a poor criterion for determining which charges violate the First Amendment rights of dissenting employees. The broad language of the Act does not begin to explain which' of the specific activities at issue here fall within the union’s collective-bargaining function as contemplated by our cases. Far from providing a bright-line standard, Justice Scalia’s “statutory duties” test fails to afford courts and litigants the guidance necessary to make these particularized distinctions. More important, Justice Scalia’s rigid approach fails to acknowledge the practicalities of the complex interrelationship between public employers, employees, unions, and the public. The role of an effective representative in this context often encompasses responsibilities that extend beyond those specifically delineated in skeletal state labor law statutes. See Abood, 431 U. S., at 236. That an exclusive bargaining representative has gone beyond the bare requirements of the law in representing its constituents through employee contributions does not automatically mean that the Constitution has been violated, at least where the funded activities have not transgressed state provisions. “The very nature of the free-rider problem and the governmental interest in overcoming it require that the union have a certain flexibility in its use of compelled funds.” Ellis, 466 U. S., at 456. We therefore disagree with Justice Scalia that any charge that does not relate to an activity expressly authorized by statute is constitutionally invalid, irrespective of its impact, or lack thereof, on free expression. In our view, his analysis turns our constitutional doctrine on its head. Instead of interpreting statutes in light of First Amendment principles, he would interpret the First Amendment in light of state statutory law. It seems to us that this proposal bears little relation to the values that the First Amendment was designed to protect. A rule making violations of freedom of speech dependent upon the terms of state employment statutes would sacrifice sound constitutional analysis for the appearance of administrability. We turn to the union activities at issue in this case. > 1 — I A The Court of Appeals found that the union could constitutionally charge petitioners for the costs of a Preserve Public Education (PPE) program designed to secure funds for public education in Michigan, and that portion of the MEA publication, the Teacher’s Voice, which reported these activities. Petitioners argue that, contrary to the findings of the courts below, the PPE program went beyond lobbying activity and sought to affect the outcome of ballot issues and “millages” or local taxes for the support of public schools. Given our conclusion as to lobbying and electoral politics generally, this factual dispute is of little consequence. None of these activities was shown to be oriented toward the ratification or implementation of petitioners’ collective-bargaining agreement. We hold that none may be supported through the funds of objecting employees. B Petitioners next challenge the Court of Appeals’ allowance of several activities that the union did not undertake directly on behalf of persons within petitioners’ bargaining unit. This objection principally concerns NEA “program expenditures” destined for States other than Michigan, and the expenses of the Teacher’s Voice listed as “Collective Bargaining” and “Litigation.” Our conclusion that unions may bill dissenting employees for their share of general collective-bargaining costs of the state or national parent union is dispositive as to the bulk of the NEA expenditures. The District Court found these costs to be germane to collective bargaining and similar support services and we decline to disturb that finding. No greater relationship is necessary in the collective-bargaining context. This rationale does not extend, however, to the expenses of litigation that does not concern the dissenting employees’ bargaining unit or, by extension, to union literature reporting on such activities. While respondents are clearly correct that precedent established through litigation on behalf of one unit may ultimately be of some use to another unit, we find extraunit litigation to be more akin to lobbying in both kind and effect. We long have recognized the important political and expressive nature of litigation. See, e. g., NAACP v. Button, 371 U. S. 415, 431 (1963) (recognizing that for certain groups, “association for litigation may be the most effective form of political association”). Moreover, union litigation may cover a diverse range of areas from bankruptcy proceedings to employment discrimination. See Ellis, 466 U. S., at 453. When unrelated to an objecting employee’s unit, such activities are not germane to the union’s duties as exclusive bargaining representative. Just as the Court in Ellis determined that the RLA, as informed by the First Amendment, prohibits the use of dissenters’ fees for extraunit litigation, ibid., we hold that the Amendment proscribes such assessments in the public sector. C The Court of Appeals determined that the union constitutionally could charge petitioners for certain public relations expenditures. In this connection, the court said: “Public relations expenditures designed to enhance the reputation of the teaching profession . . . are, in our opinion, sufficiently related to the unions’ duty to represent bargaining unit employees effectively so as to be chargeable to dissenters.” 881 F. 2d, at 1394. We disagree. Like the challenged lobbying conduct, the public relations activities at issue here entailed speech of a political nature in a public forum. More important, public speech in support of the teaching profession generally is not sufficiently related to the union’s collective-bargaining functions to justify compelling dissenting employees to support it. Expression of this kind extends beyond the negotiation and grievance-resolution contexts and imposes a substantially greater burden upon First Amendment rights than do the latter activities. Nor do we accept the Court of Appeals’ comparison of these public relations expenses to the costs of union social activities held in Ellis to be chargeable to dissenters. In Ellis, the Court found the communicative content of union social activities, if any, to derive solely from the union’s involvement in them. 466 U. S., at 456. “Therefore,” we reasoned, “the fact that the employee is forced to contribute does not increase the infringement of his First Amendment rights already resulting from the compelled contribution to the union.” Ibid. The same cannot be said of the public relations charges upheld by the Court of Appeals which covered “informational picketing, media exposure, signs, posters and buttons.” 643 F. Supp., at 1313. D The District Court and the Court of Appeals allowed charges for those portions of the Teachers’ Voice that concern teaching and education generally, professional development, unemployment, job opportunities, award programs of the MEA, and other miscellaneous matters. Informational support services such as these are neither political nor public in nature. Although they do not directly concern the members of petitioners’ bargaining unit, these expenditures are for the benefit of all and we discern no additional infringement of First Amendment rights that they might occasion. In short, we agree with the Court of Appeals that these expenses are comparable to the de minimis social activity charges approved in Ellis. See 466 U. S., at 456. E The Court of Appeals ruled that the union could use the fees of objecting employees to send FFA delegates to the MEA and the NEA conventions and to participate in the 13E Coordinating Council, another union structure. Petitioners challenge that determination and argue that, unlike the national convention expenses found to be chargeable to dissenters in Ellis, the meetings at issue here were those of affiliated parent unions rather than the local, and therefore do not relate exclusively to petitioners’ unit. We need not determine whether petitioners could be commanded to support all the expenses of these conventions. The question before the Court is simply whether the unions may constitutionally require petitioners to subsidize the participation in these events of delegates from the local. We hold that they may. That the conventions were not solely devoted to the activities of the FFA does not prevent the unions from requiring petitioners’ support. We conclude above that the First Amendment does not require so close a connection. Moreover, participation by members of the local in the formal activities of the parent is likely to be an important benefit of affiliation. This conclusion is supported by the District Court’s description of the 13E Coordinating Council meeting as an event at which “bargaining strategies and representational policies are developed for the UniServ unit composed of the Ferris State College and Central Michigan University bargaining units.” 643 F. Supp., at 1326. As Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? A. stay, petition, or motion granted B. affirmed (includes modified) C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. certification to or from a lower court K. no disposition Answer:

songer_r_state

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 "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Archie E. SIMONSON, Plaintiff-Appellant, v. UNITED PRESS INTERNATIONAL, INC., and The Associated Press, Inc., Defendants-Appellees. No. 80-2708. United States Court of Appeals, Seventh Circuit. Argued June 3, 1981. Decided July 16, 1981. Richard H. Schulz, Petrie, Stocking, Meixner & Zeisig, Milwaukee, Wis., for plaintiff-appellant. Evan J. Cutting, Baker & Hostetler, Cleveland, Ohio, Andrew 0. Riteris, Michael, Best & Friedrich, Milwaukee, Wis., for defendants-appellees. Before SWYGERT and CUMMINGS, Circuit Judges, and GRANT, Senior District Judge. The Honorable Robert A. Grant, United States Senior District Judge for the Northern District of Indiana, is sitting by designation. SWYGERT, Circuit Judge. The issue on appeal is whether the district court properly dismissed upon summary judgment plaintiff-appellant Archie E. Simonson’s defamation of character suit against defendants-appellees, United Press International (UPI) and Associated Press (AP). We affirm the judgment of the district court, 500 F.Supp. 1261. On April 10, 1978, Simonson, a former county court judge for Dane County, Wisconsin, filed a complaint against UPI and AP alleging that the wire services defamed his character and injured him in his occupation in certain of their wire service dispatches issued on May 25 and 26,1977. The reports concerned a juvenile disposition hearing presided over by then-Judge Simon-son on May 25, at which Simonson was called upon to sentence a fifteen-year-old youth, who had previously pleaded no contest to a charge of second-degree sexual assault. The assault had taken place in an area high school stairwell and aroused interest and concern in the community. During the hearing, Dane County assistant district attorney Meryl Manhardt recommended the youth be placed in a juvenile facility. The following colloquy then took place between Manhardt and Simonson: Simonson: (Y)ou are saying that I should be responsive to the community in what their needs and wishes are. Well, how responsive should I be? Should I adopt a double standard? This community is well known to be sexually permissive; look at the newspapers, look at the sex clubs, the advertisements of sex, the availability of it through your escort services, the prostitutes, they are being picked up daily. Go down State Street and the University area. I used to see girls clothed like that and I had to pay a lot of money to go into the south side of Chicago to view what I see down on State Street today. Even in open court we have people appearing — women appearing without bras and with the nipples fully exposed and they think it is smart and they sit here on the witness stand with their dresses up over the cheeks of their butts and we have this type of thing in the schools. So, is that the attitude of the community? Am I supposed to be responsive to that? Are we supposed to adopt a double standard? Is this community then exhibiting the sex in the movies, in the sex stores we now have on State Street up around in the square, in the shows? I’m talking about the bars and the taverns where it is readily available, The Dangle Lounge, The Whiskey, wherever else they do their thing; down here on Williamson Street, Ms. Brew’s, and the like. It is readily available. It is really wide open and are we supposed to take an impressionable person 15 or 16 years of age who can respond to something like that and punish that person severely because they react to it normally? What is the attitude of this community and what are their mores, what does exist? I know there is a group that has recently been attempting to clean it up. For them I think it is going, to be an uphill fight because we haven’t hit rock bottom yet but we will someday and then the pendulum will swing the other way and how are you going to deter acts like this absent some explanation of these influencing environmental factors. What response do you have? Manhardt: Your Honor, with all due respect, I find your remarks about women’s clothing particularly sexist. Simonson: You bet it is. I can’t go around walking exposing my genitals like they can the mammary glands. Manhardt: You are reflecting the general theory that a woman provokes an assault and I cannot accept that idea. Simonson: It sure raises a lot of interest in my mind from time to time. Manhardt: We are not talking about a consensual sex act, we are not talking about anything between adults, we are not talking about shows or magazines; we are talking about a personal assault and that’s admitted to in the plea of no contest that was entered. Simonson: It is one thing to enter a plea on a charge like this and another thing to address myself to a dispositional case. It is absolutely whether it is in a criminal setting or juvenile disposition taking into consideration the circumstances surrounding the act. Manhardt: There was an assault without consent on a 16 year old girl. Simonson then sentenced the delinquent fifteen-year-old youth to one year at a state reformatory, suspended the sentence, and directed that the youth participate in a home community treatment program. Anita Clark, a reporter for the Wisconsin State Journal who was present at the hearing, wrote an article relating Judge Simon-son’s comments and disposition of the delinquent youth. Based on her article, UPI and AP wrote national dispatches reporting the hearing. Simonson’s comments on provocative dress and sexual permissiveness and their effect on a male’s sexual response, along with the relatively light sentence he imposed, received wide publicity in the news media and were met by immediate outrage in the community, which eventually led to Judge Simonson’s removal from office in a recall election. Eleven months after the hearing, Simon-son filed his defamation suit against UPI and AP in the United States District Court for the Eastern District of Wisconsin, asking for $1,750,000 in damages. On March 3, 1980, the wire services filed motions for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. The district court on October 28, 1980 granted defendant’s motions. Appellant Simonson filed a notice of appeal on November 25, 1980. Simonson contends that the district court erred by finding the following: 1. The wire services’ news dispatches were “true in substance; ” 2. There is no genuine issue as to material fact of “actual malice; ” 3. The wire services’ news dispatches are privileged as “true and fair” accounts of a judicial proceeding under Wisconsin law; 4. Wisconsin’s retraction statute applies to appellees, UPI and AP, and is a condition precedent to appellant Simonson’s defamation suit. Simonson failed to comply with the statute. Any of these findings would support the granting of summary judgment. Because we agree with the district court that the dispatches were “substantially true,” we affirm the judgment in favor of defendants. Under Wisconsin tort law, Simon-son’s defamation action cannot succeed unless it is shown that the alleged defamatory statements were both defamatory and false. See, e. g., Schaefer v. State Bar of Wisconsin, 77 Wis.2d 120, 252 N.W.2d 343 (1977). See 3 Restatement (Second) of Torts § 581 A, Comments a-1 at 235-37 (1977). In addition, because the district court found Judge Simonson to be a “public official” within the New York Times v. Sullivan doctrine, he must also prove the wire services acted with “actual malice” in writing their dispatches. To defeat a motion for summary judgment, however, Simonson only has to present, among other things, some evidence of falsity and of malice. He has failed to meet even that slight burden. On appeal, Judge Simonson contends to be false only two words used in the wire services’ dispatches. Both the UPI dispatch of May 26,1977 and the AP dispatch of May 25, 1977 referred to the sexual assault in the high school as a “rape.” UPI’s dispatch also used the word “ruled” when referring to the manner in which Judge Simonson made his statements from the bench concerning the normal sexual responses of young males. Judge Simonson challenges the use of both these words. It is sufficient to note that “rape” as defined by common usage is incorporated into second-degree sexual assault under Wisconsin law: “Sexual contact or sexual intercourse with another without consent of that person by use of threat or force.” The youth pled no contest to the charge of second-degree sexual assault. In addition, counsel for the youth stipulated to facts appearing in the juvenile court records, and specifically the petition for determination of status for the juvenile, which made it clear that rape had occurred. The dispatches were in no manner made false by substituting the word in common usage for an exact legalism. Simonson contends the use of the word “ruled” in the UPI dispatch to describe a “rhetorical question” from the bench “substantially alters the truth of the situation; ” that is, he says he never “ruled” that sexual assault is a normal reaction to prevalent sexual permissiveness and women’s provocative clothing. The fact remains, however, that Simonson did remark during a dispositional hearing over which he presided that: It is really wide open and are we supposed to take an impressionable person 15 or 16 years of age who can respond to something like that and punish that person severely because they react to it normally? The meaning of an allegedly libelous statement is to be determined by the plain and ordinary meaning of the word. Leuch v. Berger, 161 Wis. 564, 570, 155 N.W. 148, 151 (1915) (“plain and popular sense”); Dabold v. Chronicle Publishing Co., 107 Wis. 357, 362, 82 N.W. 639, 641 (1900) (what “the ordinary reader might well understand”). A plain and ordinary meaning of “ruled” includes statements and comments made by a judge when sitting on the bench. Judge Simonson’s remarks certainly fit this definition, for the purpose of the hearing was to determine the sentence for the juvenile offender. His conclusion about the normal reactions of young males made from the bench which “were relevant to the proceedings, and made at a point in the proceedings when one could reasonably conclude they affected the disposition of the case” is in common usage a “ruling” by the court. UPI’s use of that word was therefore accurate, and no jury could reasonably find otherwise. The judgment of the district court is affirmed. . Section 940.225(2), Wis.Stats. in relevant part provides as follows: (2) Second degree sexual assault. Whoever does any of the following is guilty of a class C felony. (a) Has sexual contact or sexual intercourse with another person without consent of that person by use or threat of force or violence .... . Clark’s newspaper article was only at the proposed-for-publication stage when AP received it on a computer printout on May 25, 1977. An edited version was published in the May 26, 1977 Wisconsin State Journal. The district court found “the computer printout differed from the final published article in two respects: (1) the printout did not include this phrase which was parenthetically inserted into the State Journal story: ‘Simonson said later in the hearing that sexual assault obviously is not condoned by the community’; (2) the printout, but not the final article, characterized Simon-son’s comments as a ‘tirade.’ ” AP’s two dispatches of May 25 relied entirely upon Clark’s proposed article. It appears UPI’s dispatch of May 26 was based on the published version of Clark’s material. UPI also relied on a police investigatory report of the assault. . Section 895.05(1), Wis.Stats. . Appellant contends that to read Section 895.-05(2), Wis.Stats., to be a condition precedent to the recovery of punitive damages would render the statute violative of both the Fourteenth Amendment and Article 2, Section 9 of the Wisconsin Constitution. The district court declined to reach this constitutional issue. We note, however, that the statute does not prevent the recovery of actual damages. The district court indicated its reliance on the other three findings as bases for granting summary judgment. . 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). . The AP dispatch read in relevant part as follows: A Dane County judge in Madison indicated today a 15-year-old high school boy was reacting normally to Madison’s so-called “sexual permissiveness” when he raped a female student last fall, (emphasis added) The UPI dispatch read in relevant part as follows: When a 15-year old boy raped a girl on a stairwell at West High School, Judge Archie Simonson ruled, he was reacting “normally” to prevalent sexual permissiveness and women’s provocative clothing, (emphasis added) . Webster’s Third New International Dictionary defines “rape” in pertinent part as “illicit sexual intercourse without the consent of the woman and effected by force .... ” . Section 940.225(2)(a), Wis.Stats. . The record shows that intercourse occurred without the consent of the girl. . Webster’s Third New International Dictionary’s definition of “rule” includes the following: 3a: to declare authoritatively: DECIDE, DECREE, DETERMINE; specif: to require or command by judicial rule; give as a direction, order, or determination of a court. . Simonson v. United Press International, 500 F.Supp. 1261, 1266 (E.D.Wis.1980). Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number. Answer:

sc_lcdispositiondirection

A

What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations NORFOLK MONUMENT CO., INC. v. WOODLAWN MEMORIAL GARDENS, INC., et al. No. 1040. Decided April 21, 1969. Howard I. Legum and Louis B. Fine for petitioner. Frederick S. Albrink for Woodlawn Memorial Gardens, Inc., William C. Worthington for Rosewood Memorial Park, Inc., et al., Jefferson B. Brown for Greenlawn Cemetery Park Corp., Bernard Glosser and Stuart D. Glosser for Roosevelt Memorial Park & Cemetery Corp., and William H. King for Jas. H. Matthews & Co. of Virginia et al., respondents. Per Curiam. The petitioner, a retailer of burial monuments and bronze grave markers, brought this action for damages and injunctive relief under §§ 4 and 16 of the Clayton Act, 38 Stat. 731, 737, as amended, 15 U. S. C. §§ 15, 26, alleging that the respondents had violated §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. §§ 1, 2, by conspiring to monopolize and monopolizing the manufacture and sale of bronze grave markers. The respondents — Matthews, a manufacturer of such markers, and five operators of cemeteries (called “memorial parks”) that sell the markers — were charged with having jointly adopted various restrictive devices to prevent, restrict, and discourage sales of markers by the petitioner for installation in the cemeteries. After extensive pretrial discovery, the District Court granted the respondents’ motion for summary judgment, concluding that there was no material issue of fact and no evidence of conspiracy. 290 F. Supp. 1. The Court of Appeals affirmed. 404 F. 2d 1008. We cannot agree that on the record before the District Court a jury could not have found that the respondents had conspired to exclude the petitioner from and monopolize the market for bronze grave markers. As Circuit Judge Craven pointed out in his dissenting opinion, the record disclosed the following conduct on the part of the respondents: “(1) Despite the unskilled nature of the work, all of the memorial parks refuse to permit the plaintiff to install markers sold by it; all of them insist that the work be done by the cemeteries themselves. “(2) None of the memorial parks charges lot owners a separate installation fee in the case of markers purchased from the cemeteries. “(3) All of the memorial parks require the payment of an installation fee by the plaintiff for installing markers purchased from the plaintiff. The plaintiff plausibly maintains that the actual cost of installation comes to about $3. Yet, enormous installation fees are charged plaintiff .... “(4) All of the memorial parks require a specific alloy content in the bronze markers installed, and reserve the right to reject non-conforming markers. The alloy content requirement happens to be the same as manufacturer Matthews’ markers and the same as is implicitly suggested in a pamphlet (‘Modern Cemeteries’) distributed by Matthews to its customers. All of the memorial parks except Roosevelt are customers of Matthews. “(5) There is evidence that Greenlawn, Wood-lawn and Princess Anne have attempted to dissuade lot owners from purchasing markers from the plaintiff. The affidavit of plaintiff’s president states that numerous other incidents of this nature have occurred. “(6) Defendant Matthews, in its pamphlet ‘Modern Cemeteries,’ suggests a number of practices which in effect erect competitive barriers to retailers other than the cemeteries themselves. “(7) Many of these practices have been adopted by the memorial park defendants, as evidenced by affidavits in the record, and by the ‘rule books’ of Rosewood, Princess Anne and Greenlawn. “(8) There is evidence of numerous visits to and conferences with the memorial parks by sales representatives of Matthews.” 404 F. 2d, at 1012-1014. The District Court found that the rules relating to the alloy content and installation of the markers were reasonable “[i]n view of the continuing obligation of perpetual care imposed upon the cemeteries, in [their] contracts with lot owners . . . .” 290 F. Supp., at 3. But the business justification for these restrictive rules was disputed by the petitioner, which proffered evidence that the markers required very little permanent care and that, in any event, the funds for that purpose were already provided from another source. The reasonableness of the rules was a material question of fact whose resolution was the function of the jury and not of the court on a motion for summary judgment. The same is true of the inferences to be drawn from respondent Matthews’ pamphlet. The District Court dismissed it as without any possible significance because it was a mere “form book/’ which “specifically points out . . . that it contains suggested standards of fair and reasonable regulations which the cemetery would be advised to adopt but says that ‘. . . Jas. H. Matthews & Co. is not permitted to make recommendations and suggests that the reader consult his own attorney.’ ” 290 F. Supp., at 3. Again this self-serving disclaimer raised a question for the jury, and it surely did not alone conclusively rebut the petitioner’s contention that the pamphlet evidenced an agreement among the respondents to participate in the alleged restrictive practices. Nor do the other findings of the District Court necessarily dispel the inferences which the jury would be asked by the petitioner to draw. The District Court found, for example, that there was “a wide divergence of prices” charged for installation “which would completely negative any systematic scheming or conscious parallelism.” 290 F. Supp., at 3. The petitioner’s complaint, however, was not that the respondent cemeteries were charging uniform fees but that they were charging deliberately “excessive and unreasonable” fees for the purpose of injuring the petitioner. The fact that the District Court appeared to consider dispositive of the conspiracy allegations was that the petitioner’s principal officer “admitted that he has no letters, agreements, correspondence, or any other testimonials to a conspiracy among the several defendants . . . .” 290 F. Supp., at 3. But it is settled that “[n]o formal agreement is necessary to constitute an unlawful conspiracy,” American Tobacco Co. v. United States, 328 U. S. 781, 809, and that “business behavior is admissible circumstantial evidence from which the fact finder may infer agreement.” Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U. S. 537, 540. We express no opinion, of course, on the strength or weakness of the petitioner’s case, but hold only that the alleged conspiracy had not been conclusively disproved by pretrial discovery and that there remained material issues of fact which could only be resolved by the jury after a plenary trial. As we have cautioned before, “summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles, the proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot.” Poller v. Columbia Broadcasting System, 368 U. S. 464, 473. The writ of certiorari is granted. The judgment is reversed, and the case is remanded for further proceedings in the District Court consistent with this opinion. It is so ordered. Mr. Justice Harlan, Mr. Justice Fortas, and Mr. Justice Marshall are of the opinion that certiorari should be denied. Judge Craven noted that the reason for the disclaimer is that “Matthews is under an injunction prohibiting it from making any suggestions to memorial parks as to the quality of markers installed in the parks.” 404 F. 2d, at 1013, n. 6. The injunction was entered in one of the three consent decrees which have settled prior antitrust actions against Matthews. See 404 F. 2d, at 1014. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspecifiable Answer:

songer_state

18

What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". William McKinley STEGALL, Appellant, v. UNITED STATES of America, Appellee. No. 11210. United States Court of Appeals Sixth Circuit. March 6, 1951. Leon Wolf, Cincinnati, Ohio, for appellant. David C. Walls, Charles F. Wood, and Norris W. Reigler, all of Louisville, Ky., for appellee. Before HICKS, Chief Judge, and ALLEN and MILLER, Circuit Judges. PER CURIAM. This case came on to 'be heard on the record and briefs, and oral argument of counsel. And it appearing that the Government concedes that count 1 of the indictment is duplicitous; And it appearing that no demurrer to the indictment was filed, nor objection thereto made prior to the verdict, and that the accused thus waived any right to complain because of the duplicity existing in count 1; Beauchamp v. United States, 6 Cir., 154 F.2d 413, certiorari denied, 329 U.S. 723, 67 S.Ct. 66, 91 L.Ed. 626, rehearing denied, 329 U.S. 826, 67 S.Ct. 183, 91 L.Ed. 702; Sparks v. United States, 6 Cir., 90 F.2d 61, 63; And it appearing that the material allegations of both counts of the indictment were proved by convincing and undisputed evidence ; And it appearing that the court sentenced the accused under count 2 of the indictment and that no sentence was imposed under count 1; And it appearing that no error prejudicial to the accused is presented in the record or in the charge of the trial court (Cf. Sparks v. United States, supra): It is ordered that the judgment be, and it hereby is, affirmed. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:

songer_state

21

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, Appellee, v. Warren KING, Appellant. No. 77-1180. United States Court of Appeals, Fourth Circuit. Argued July 18, 1978. Decided Sept. 22, 1978. Michael Schatzow, Asst. Federal Public Defender, Baltimore, Md. (Charles G. Bernstein, Federal Public Defender, Baltimore, Md., on brief), for appellant. Daniel F. Goldstein, Asst. U. S. Atty., Baltimore, Md., for appellee. Before BOREMAN, Senior Circuit Judge, and WINTER and HALL, Circuit Judges. BOREMAN, Senior Circuit Judge: Warren King was convicted by a jury of two counts of kidnapping, 18 U.S.C. § 1201, after a bifurcated trial in which the jury first found him guilty of the substantive offenses and then determined that King was not insane at the time of his commission of the charged offenses. The evidence disclosed that King kidnapped James Krouch in the District of Columbia and forced him to drive to Maryland where he took ■ Krouch’s car, leaving Krouch bound and gagged in a wooded area near a road. King next broke into the home of one Jay Disbrow in Havre de Grace, Maryland, where he tied up Dis-brow’s wife and children and then forced Disbrow to drive him to New Jersey where he released him unharmed and took his car. At trial Krouch and Mr. and Mrs. Disbrow all positively identified King as their assailant-kidnapper. Also there was evidence that King’s Florida driver’s license was found in Krouch’s car and King’s fingerprints were found in the Disbrow home. At a pretrial hearing King told the judge that he did not want to have his court-appointed counsel represent him and insisted on representing himself. The judge engaged in a lengthy colloquy with King in an attempt to dissuade him from self-representation. He warned King of the seriousness of the charges, the potential penalty, the advantages of legal training and the likelihood of complex legal issues arising at trial. Nevertheless, even after consulting with his court-appointed attorney, King insisted on representing himself. The judge ordered court-appointed counsel to stay in the courtroom with King throughout trial, to give advice if necessary, and to take over the defense if King should so desire. The court also decided, after a suggestion by government counsel, that King’s trial should be bifurcated on the issues of guilt and insanity. During voir dire King’s behavior became so bizarre that the judge informed the prospective jurors that the defendant’s mental competence would be an issue later in the trial: that is to say, there will first be a trial as to the question of defendant’s guilt or innocence of the charges in the indictment, that is whether or not he did the acts with which he has been charged. Then only if a guilty verdict is returned will there be a second trial which would follow immediately thereafter on the question of whether or not the Defendant was or was not legally sane at the time of the commission of the acts; that is, whether he can be held responsible for his acts if a finding of guilt is returned. The judge again mentioned the bifurcation of issues during his instructions to the jury at the end of the first stage of the trial. On appeal King contends that the judge erred in: (1) failing to conduct an adequate inquiry into his waiver of the right to counsel and (2) informing the jury of the insanity issue during the first phase of the bifurcated trial. King argues that the judge did not question him adequately to determine whether he was literate, competent and understanding of his rights. He contends that a “penetrating and comprehensive examination” must be conducted to determine a defendant’s educational background, age and general capabilities before a judge can determine that a defendant’s waiver of his right to counsel is knowing and intelligent. United States v. Townes, 371 F.2d 930 (4 Cir. 1966). Because the judge asked him about his educational background and not about his age or general capabilities, King argues that the judge did not develop a sufficient factual basis for determining that defendant’s waiver of counsel was knowing and intelligent within the meaning of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). While it is incumbent upon the trial court to determine that a defendant’s waiver of his right to counsel is knowing and intelligent, no particular form of interrogation is required. Townes, supra at 934. The court must make the defendant aware of the “dangers and disadvantages of self-representation,” so that the defendant “knows what he is doing and his choice is made with his eyes open.” Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 561 (1975). Thus, the court must assure itself that the defendant knows the charges against him, the possible punishment and the manner in which an attorney can be of assistance. Townes, supra at 933; Aiken v. United States, 296 F.2d 604 (4 Cir. 1961). The defendant must be made aware that he will be on his own in a complex area where experience and professional training are greatly to be desired. United States v. Gillings, 568 F.2d 1307 (9 Cir. 1978); Stepp v. Estelle, 524 F.2d 447 (5 Cir. 1975). Even though the judge in the instant case did not delve deeply into the educational background, age and general capabilities of the accused as suggested in Townes, his explanation of the dangers of self-representation informed King of the crucial considerations necessary for a knowing and intelligent waiver of counsel and defendant’s responses indicate that he understood these dangers and that his choice was made “with his eyes open.” In addition, King was not strictly held to his waiver of counsel. He was allowed to have a hybrid representation in which he used court-appointed counsel to argue jury instructions, to cross-examine certain witnesses and to present arguments to the jury. From our examination of the record as a whole we find no involuntary deprivation of a constitutional right. See United States v. Sacco, 571 F.2d 791, 793 (4 Cir. 1978). King argues that the judge erred in informing the jury during the first phase of trial that the trial would be bifurcated on the issues of guilt and insanity. Government counsel argues that it was necessary to inform the jury of the bifurcated nature of the proceedings because of the defendant’s bizarre behavior; that the court did not want the jury to consider defendant’s courtroom behavior in determining whether he was guilty of the substantive offenses; therefore, the judge informed the jury that the question of defendant’s sanity would be submitted for consideration in a later stage of the trial if the jury found defendant guilty of the charged offenses. A defendant has no right to disregard the dignity, order and decorum of judicial proceedings. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Furthermore, the conduct of a bifurcated trial is to be determined by the trial judge in the exercise of his sound discretion: United States v. Greene, 160 U.S.App.D.C. 21, 33, 489 F.2d 1145, 1157 (1973), quoting Holmes v. United States, 124 U.S.App.D.C. 152, 154, 363 F.2d 281, 283 (1966). The court not only has broad discretion in considering bifurcation, but also in prescribing its procedure, the form of the charge and submission of the questions to the jury, the admissibility of evidence in each stage, and even the impaneling of a second jury to hear the second stage if this appears necessary to eliminate prejudice. (Emphasis added) In the instant case the judge had substantial reason to inform the jury of the bifurcated nature of the proceedings. The record reflects that the jurors were possibly confused and concerned about the defendant's courtroom behavior. During voir dire one prospective juror told the court that her observation of the defendant led her to believe that he was not “emotionally stable” and that she felt he should not be on trial. The judge’s decision to inform the jury that they could at some later point consider the issue of defendant’s mental competence at the time he committed the acts as alleged was entirely justified under the circumstances and we conclude that there was no abuse of discretion. Accordingly, the judgment of the district court is affirmed. Affirmed. . During the first two days of trial, King and his court-appointed attorney shared responsibility for representing the defense. On the third day, however, at King’s request, court-appointed counsel completely took over and represented King for the rest of the trial. . Throughout the proceedings King behaved in a disruptive and disrespectful manner. This behavior included: clapping his hands, laughing, whistling, tearing apart trial exhibits and attempting to take off his clothes. In the afternoon of the third day of trial King’s disruption of the proceedings forced the judge to order him removed from the courtroom. King refused to return to the courtroom unless the judge apologized to him and he voluntarily absented himself from the remainder of the trial. . In Townes, the defendant waived his right to counsel and tendered guilty pleas to a two-count indictment charging him with bank robbery. In that case, the judge not only had to determine that defendant voluntarily waived his right to counsel, but also that defendant competently and intelligently entered his guilty pleas. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:

songer_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. SOCHANSKI, Stanley J., Appellant, v. SEARS, ROEBUCK AND CO. et al., The Goodyear Tire & Rubber Co. v. John F. SOLOMON, Jr., Palmer Tire Company, Geneva Metal Wheels Co. No. 79-1963. United States Court of Appeals, Third Circuit. Argued Jan. 17, 1980. Decided May 2, 1980. August J. Lacko, Lyons & Lacko, Philadelphia, Pa., for appellant. John J. O’Brien, Jr., O’Brien & O’Brien Associates, Philadelphia, Pa., for appellee. Before HUNTER, HIGGINBOTHAM and SLOVITER, Circuit Judges. OPINION OF THE COURT A. LEON HIGGINBOTHAM, Jr., Circuit Judge. Stanley Sochanski brought suit in the federal district court under diversity jurisdiction alleging that he had been injured while repairing a defective tire of a garden cart sold by Sears, Roebuck & Co. (Sears). A jury awarded damages to Sochanski but the district court granted a motion for judgment n.o.v. stating that Sochanski had not met the burden of proof which Pennsylvania law required to prove that the tire was defective. We disagree and will reverse so that judgment may be entered for the plaintiff. I. Sochanski was injured while attempting to repair a tire from a garden cart sold by Sears, Roebuck & Co. The tire was manufactured by Goodyear Tire and Rubber Co. (Goodyear). The tire was mounted onto a metal frame (the wheel). This wheel unit (the tire and wheel) was purchased by the Palsgrove Manufacturing Co., which used the unit to make the garden cart, which was sold to Sears which, in turn, sold the cart to John Solomon in April, 1971. In July, 1974 Solomon noticed that one of the garden cart’s tires was losing air and took the tire to the Palmer Tire Co. (Palmer) to have an inner tube inserted. The tire was originally a tubeless tire; Solomon felt that an inner tube would stop the leakage problem. Sochanski, an employee of Palmer, was assigned the repair job. At trial he testified about how he had tried to repair the tire. He stated that he first removed the tire from the wheel so that he could remove the valve stem from the wheel because the inner tube had its own valve. After removing the original valve stem, he put one side of the tire onto the wheel, pulling it over the edge of the wheel (flange) with a small crowbar specially designed for that purpose. He explained that the edge of the tire (the bead) was built up slightly so that it would fit snugly against the flange. (Goodyear’s expert explained that the bead is constructed of steel wires). He also explained that the edge of the tire was slightly smaller than the wheel on which it was to be placed so that the tire would lie taut against the flange when stretched to fit on the wheel. After removing the tire he fit the inner tube on the wheel, checked the valve stem, and inflated the inner tube slightly. He explained that he inflated the tube so it would mold onto the wheel and thus not become folded or twisted. Next he lubricated the other side of the tire so that it could be put onto the wheel easily and pulled that side over the flange with the crowbars. Thus both sides were fastened onto the wheel within the two flanges. He then inflated the inner tube to fifteen pounds of air pressure and stopped to check the tire. He noticed that one edge of the tire was not securely against the flange. Although this was unusual, he felt that the bead would fit more securely once the tire was fully inflated. He then pumped the tire to the required thirty-four pounds of pressure. Again, he noticed that the tire was not securely against the flange. He testified that he figured “something else was wrong” and decided to take the unit apart to try a second time. As he leaned toward the tire to take it apart, the tire burst. The unit shot upwards and struck him in the head rendering him unconscious. Sochanski stated that the procedure he had used to fix the tire was the procedure which was regularly followed at Palmer. Edward Ortman, a fellow employee, concurred. As a result of the accident he suffered a concussion, fracture of the facial bone, spinal fluid rhinorrhea, and spinal meningitis. He was permanently deformed. He has lost his sense of smell and suffers a diminution of his IQ. Sochanski brought suit, alleging that the tire was defective when Goodyear sold the tire to Palsgrove and through the chain of sales described above, Sears, the final seller, had sold a defective tire to Solomon and the defect had caused Sochanski’s injuries. He asserted that under section 402A of the Restatement (Second) of Torts (1965) Sears and Goodyear were strictly liable for his injuries. At trial he attempted to call Vassilis Morfopoulos as an expert witness. He asserts here that Morfopoulos is an expert on tire safety and would have testified that the tire and the wheel were mismatched and that this mismatch created strain on the tire causing it to pop off the wheel. The district court did not permit Morfopoulos to testify on the ground that Morfopoulos was not qualified. The jury found, in response to special interrogatories, that the tire was defective when it left Goodyear’s hands, that the defect rendered it unreasonably dangerous, that the wheel unit was defective when it was sold by Sears, that the wheel unit was unreasonably dangerous, and that the defect was the proximate cause of Soehanski’s injuries. The jury awarded $395,000 in damages. In response to a motion for judgment n.o.v. the district court set aside the jury’s verdict. The court held that under section 402A a plaintiff is required to negate abnormal use and reasonable secondary causes, and that the plaintiff’s proof had fallen short of negating reasonable secondary causes. Sochanski appeals the district court’s decision. He argues that the district court erred as a matter of law because he had met his burden of proof and that the district court abused its discretion by not permitting one of Sochanski’s expert witnesses to testify. II. Section 402A of the Restatement (Second) of Torts provides for strict liability of a seller when a defective product he has sold is the proximate cause of a user’s injuries. Specifically, it 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. This section has been adopted by the Pennsylvania courts, Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), and applied a number of times. E. g., Azzarello v. Black Brothers Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1975); Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975); Cornell Drilling Co. v. Ford Motor Co., 241 Pa.Super. 129, 359 A.2d 822 (1976). A plaintiff may prevail under section 402A under a “malfunction’’ theory. Under the malfunction theory, the plaintiff need not prove the existence of a specific defect, if he can show that the product malfunctioned in the absence of abnormal use and reasonable secondary causes. Knight v. Otis Elevator Co., 596 F.2d 84, 89 (3d Cir. 1979). Sears asserts that Sochanski misaligned the tire with the wheel, causing the tube to be pinched and thus explode, relying on the testimony of Goodyear’s expert witness, Robert Hill. The district court held that because Hill’s testimony on the possible mis-alignment showed that the accident might have been caused by a “reasonable secondary cause” and the plaintiff did not negate his mis-alignment theory, that the plaintiff had not met his burden of proof. We do not agree. Sears’ theory on misalignment is based solely on the testimony of Hill. Hill stated that it was his opinion that the tire had been mis-aligned and that he based his conclusion on marks he found on the wheel. He asserted that the marks had been caused in the accident and they showed that the tire had been mis-aligned. During cross-examination Hill, however, admitted that he was not certain of how the marks were made and that they might have been made in the manufacturing process. The jury could have reasonably disregarded this portion of Hill’s testimony because of this challenge. The district court also relied on evidence which revealed that the inner tube ruptured on the bottom side causing the wheel unit to shoot upward. The court suggested that the rupturing may have been “the sole cause of the accident” and that the plaintiff had not refuted this possible cause. 477 F.Supp. 316, 320 (E.D.Pa.1979). Hill, however, testified that the rupture on the tube merely controlled the direction of the wheel unit and that “beyond that it ha[d] no significance.” Thus, the jury could have concluded that the tube was not the cause of the accident. Sochanski’s testimony does not suggest that he mis-aligned the tire and it is sufficient to support the jury’s conclusion that he was repairing the tire properly. We note that the district court suggested that Sochanski admitted he did the repair incorrectly, stating, “Plaintiff also decided to take the wheel unit apart again because ‘maybe there will be something else wrong.’ ” Id. at 320 n.7. It is, however, possible that the jury interpreted this statement by Sochanski as a repetition of his earlier comment, “So I figured you know, there is something else wrong with the tire.” (emphasis added). Further, the jury may have been persuaded that the tire was defective because it failed to pull taut against the flange. Sochanski testified that the bead normally would have snapped against the flange after he inflated the tire to fifteen pounds of pressure. Thus, there was evidence from which the jury could have concluded that the plaintiff repaired the tire properly and it could have rejected the evidence on “reasonable secondary causes.” This evidence is sufficient to meet the burden of proof required by Pennsylvania law. In Bialek v. Pittsburgh Brewing Co., 430 Pa. 176, 242 A.2d 231 (1968), the Supreme Court of Pennsylvania held that the testimony of the plaintiff and another witness which established that a beer bottle that had been properly stored had exploded without any apparent causation was enough to make the issue of a defect a jury question. In Bialek the plaintiff had called an expert witness to testify on a possible defect. The court did not find the expert’s testimony critical to its holding. In Agostino v. Rockwell Manufacturing Co., 236 Pa. Super. 434, 345 A.2d 735 (1975), allocatur denied, Nov. 26, 1975, the court held that there was sufficient evidence for the jury to find the existence of a defect in an electric saw solely on the basis of the plaintiff’s testimony that the automatic guard on the saw failed to operate. The court sustained the jury’s verdict for the plaintiff, even though no expert witness had testified. Accord McCann v. Atlas Supply Co., 325 F.Supp. 701 (W.D.Pa.1971) (then District Judge Weis). In Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974), on which the district court relied, the plaintiff attempted to proceed under the malfunction theory when he was injured by a malfunctioning crane. Reversing the lower court, the Supreme Court stated: The questions when and where a defect originated should be left to the finder of fact so long as “reasonable and well balanced minds [could] be satisfied from the evidence adduced that the defective condition existed when the [product] was delivered [citations omitted]”. Greco v. Bucciconi Engineering Co., 407 F.2d 87, 90 (3rd Cir. 1969), (applying Pennsylvania law); see also Burbage v. Boiler Engineering & Supply Co., 433 Pa. 319, 249 A.2d 563 (1969). On the other hand, “the jury may not be permitted to reach its verdict merely on the basis of speculation or conjecture, but . . there must be evidence upon which logically its conclusions may be based [citations omitted]”. Smith v. Bell Telephone Co., 397 Pa. 134, 138, 153 A.2d 477, 479 (1959). 319 A.2d at 922. The basis for the court’s decision in Kuisis was the plaintiff’s failure to prove that the crane had remained substantially unchanged after it left the manufacturer’s hands. The crane was first a shovel, then converted into a dragline, and then into a crane. It was twenty years old and had been subject to “the vicissitudes of over twenty years of rugged use.” Id. We do not agree that Sochanski’s claim is similarly defective, although Sears argues that the district court’s order may be sustained on that basis. First, Hill testified that the explosion was not caused by either the insertion of the inner tube or any scars present on the tire. He described the tire as close to new and showing very little wear and tear. Second, the plaintiff presented evidence at trial which showed the cart had not been misused or even put to significant use. Solomon, the owner, testified that the cart had been used only seasonally to transport leaves, grass and firewood and that it had been stored indoors. As the Kuisia court held: The age of an allegedly defective [condition] must be considered in light of its expected useful life and the stress to which it has been subjected. In most cases, the weighing of these factors should be left to the finder of fact. Id. at 923. We therefore conclude that Sochanski has met his burden of proof under Pennsylvania law and that the jury’s verdict shoúld not have been disturbed. Because we hold that Sochanski met his burden of proof at trial, we will not reach his second claim that the district court erred by excluding his expert witness. We will therefore reverse and remand so that the jury’s verdict may be reinstated. . During the pendency of the appeal, Goodyear reached a settlement with Sochanski: We express no opinion about the effect of the settlement on Sears because neither Sears, Goodyear nor Sochanski has presented the issue to us. . Sears also asserts that Sochanski did not meet his burden of proof on proximate cause because he did not negate the possibility that the tube was defective. As we have noted, Goodyear’s expert testified that the tube was not a material factor in the accident. . In Knight v. Otis Elevator, where the trial judge was reversed for preclusion of certain expert testimony, we noted our increasing concern that some trial judges seem to improperly “require an expert in a products liability case to be intimately familiar with all aspects of the total machine rather than the particular part in issue.” 596 F.2d at 88. We repeat again here the words of the late Judge Staley in Trowbridge v. Abrasive Company of Philadelphia, 190 F.2d 825, 829 n.9 (3d Cir. 1951): If we were to declare as a rule of law that one must actually have practical experience in a given industry in order to qualify as an expert in litigation involving its products, we might very well place an onerous burden on plaintiffs in some cases. Where the industry is small and tightly knit, it may be ven' difficult for the plaintiff to obtain the services of an expert currently employed therein, and it might be equally difficult to find someone who was formerly employed in the industry. But the key experts of an industry would normally be available to the defendant. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:

songer_respond1_7_2

B

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). COMMISSIONER OF INTERNAL REVENUE v. BRISTOL. No. 3658. Circuit Court of Appeals, First Circuit June 27, 1941. L. W. Post, Sp. Asst, to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Sp. Asst, to Atty. Gen., on the brief), for the Commissioner. George D. Brabson, of Washington, D. C. (D. H. Blair, of Washington, D. C., and Frank H. Noyes, of Boston, Mass., on the brief), for Bristol. Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges. MAHONEY, Circuit Judge. This is a petition by the Commissioner of Internal Revenue to review a decision of the Board of Tax Appeals in which the Board decided that there was no deficiency owing but that there was an overpayment by the respondent of a gift tax for the year 1937 in the amount of $4,641.60. Pursuant to an ante-nuptial agreement between the taxpayer and his intended wife, the taxpayer purchased two annuities for her and transferred two pieces of realty to himself and her as tenants by the entirety in consideration of her relinquishment of the statutory rights she might have in certain stocks then owned by him. The question is whether the wife’s relinquishment of these prospective rights constituted adequate and full consideration in money or money’s worth for the transfers made to her by the taxpayer. The taxpayer and his brother owned and controlled the Foxboro Company, a manufacturing corporation in Foxboro, Massachusetts, which had been in his family for many years. He desired to keep control of the stock of the Company and to insure that upon his death it would go to some of his six children by his first marriage. He was about to remarry, and he consulted his attorney as to the effect of his remarriage upon the family plan to retain control of the Company. The .attorney informed the taxpayer that in the event of his death, under the laws of Massachusetts, his widow would acquire a one-third interest in all his property. The attorney also informed the taxpayer that it would be possible to transfer other property to his intended wife in lieu of her statutory interests. He advised him that the desired result could be accomplished by a will executed by the taxpayer and assented to by the intended wife, plus a transfer of certain other property to her. The taxpayer discussed the matter with the intended wife in the presence of his attorney, and she agreed to accept two annuities and an interest in two pieces of real estate as tenant by the entirety in lieu of any interest which she might have otherwise acquired in the Company’s stock. At the time this agreement was made the taxpayer owned 130,230 shares of the Company’s stock, valued at $6 per share, i. e., $781,380, the two pieces of real estate transferred to him and his wife as tenants by the entirety, valued at $34,000, and certain other real estate and securities of much less value than the stock in the Company. By a will executed August 24, 1937, the taxpayer provided for the carrying out of the terms of the ante-nuptial agreement. By the terms of this will he bequeathed his Foxboro Company stock to one of his sons and to a bank on certain trusts, and left one-third of the residue of his estate, exclusive of this stock, to his intended wife. The latter attached to the will her acknowledgment of the will, and her consent thereto, and an agreement not to waive its provisions and attempt to take her intestate share. On August 26, 1937, the day they were married, he purchased two annuities which cost $51,983 each,, payable to his wife for life. On August 27, 1937, he transferred to himself and his wife as tenants by the entirety, in accordance with the agreement, his Foxboro winter home and his Falmouth summer home. There is no suspicion that the transaction was not in good faith or that it was entered into to evade taxes. It was a purely business transaction. The taxpayer filed a gift tax return for the year 1937 in which he reported as taxable gifts the two annuities purchased for his wife. He paid a gift tax in the sum of $4,641.60 which was assessed against him on the basis of this return. In the same return he reported the transfer of the two parcels of real estate to himself and his wife as tenants by the entirety but claimed that these conveyances did not constitute taxable gifts. The Commissioner notified the taxpayer on September 6, 1938, that the transfer of real estate to himself and his wife as tenants by the entirety was a taxable gift and gave notice of a deficiency in the sum of $2,056.92. The taxpayer contested this deficiency, and on November 29, 1938, he filed a claim for refund of the gift tax assessed and paid in 1937 in the sum of $4,641.60 on the ground that the transfers of the annuities and the real estate were in no sense gifts but were transfers of property for adequate and full consideration in money or money’s worth pursuant to the marital agreement. The Commissioner refused to accede to the taxpayer’s claims and assessed a deficiency. Upon review, the Board of Tax Appeals upheld the contentions of the taxpayer. It held that the transfers here involved were made for adequate and full consideration in money or money’s worth and, therefore, they were not subject to the gift tax. The Commissioner has appealed. Each of the two annuities transferred pursuant to the agreement cost $51,983, a total of $103,966. The agreed value of the wife’s interest in the real estate transferred to her and her husband as tenants by the entirety was $19,550, the method of computation of which is set out in the margin. Thus the wife received, pursuant to the agreement, property to the value of $123,516. The taxpayer contends that, pursuant to the agreement, the wife relinquished her rights in the stock, and that the alleged value of the rights relinquished was' $149,764.50, computed by the same manner as that used by the Commissioner in valuing the wife’s interest in the real estate transferred. The Commissioner conceded on oral argument that if the method of computing this alleged interest of the wife in the stock were proper, the figure was correct. He denied that there was any present interest capable of evaluation, and contended that even if there were, there was no possible method of evaluation of this interest in money or money’s worth. We agree with the Commissioner that the relinquishment by the wife of her statutory interest in the taxpayer’s estate was not adequate and full consideration in money or money’s worth for the transfer to her of the annuities and the interest in the pieces of real property. The transfers were, therefore, taxable under the provisions of Sections 501(a) and 503 of the Revenue Act of 1932 (47 Stat. 245, 247, 26 U.S.C.A. Internal Revenue Acts, pages 580, 585). The laws of Massachusetts provide that if a husband in the taxpayer’s circumstances, i. e., with issue living, were to die intestate, either totally or partially, his surviving widow is entitled to one-third of the estate. There was some discussion at the oral argument as to whether the words “real and personal property not disposed of by will”, as used in this section, did not indicate that a husband, by will, could defeat his wife’s interest in the property remaining in his estate at death. Examination of this and the succeeding chapter shows that Chapter 190 refers only to intestate property, whether because there was no will or because not covered by the will, and that Chapter 191 contains all the rights of the surviving spouse as to property disposed of by will. If the taxpayer should die testate, his surviving widow could waive the provisions of his will and take the share set aside for her by statute. There is also provision for dower in real property which is waived if not demanded. It is the contention of the taxpayer that the binding ante-nuptial relinquishment of these various rights by the intended wife constituted adequate and full consideration in money or money’s worth for the transfers by the husband. We cannot agree. It is well settled law in Massachusetts that the relinquishment by an intended wife of her statutory rights to share in her husband’s estate in the event of his death is sufficient consideration to support a contract by the husband to transfer to her certain property. Wellington v. Rugg, 1922, 243 Mass. 30, 136 N.E. 831; Collins v. Collins, 1912, 212 Mass. 131, 98 N.E. 588; Tarbell v. Tarbell, 1865, 10 Allen, Mass., 278; cf. Eaton v. Eaton, 1919, 233 Mass. 351, 124 N.E. 37, 5 A.L.R. 1426. Thus the agreement between the taxpayer and his wife is binding and enforcible. However, it is equally well established that though mutual promises may be common law consideration sufficient to support an agreement, they may not be such consideration as will satisfy the statutory requirement of “an adequate and full consideration in money or money’s worth”. Taft v. Commissioner, 1938, 304 U.S. 351, 58 S.Ct. 891, 894, 82 L.Ed. 1393, 116 A.L.R. 346; Empire Trust Co. v. Commissioner, 4 Cir., 1938, 94 F.2d 307, 310; Stella S. Housman, 1938, 38 B.T.A. 1007, 1011. It is our opinion that the relinquishment of the wife’s statutory rights was not consideration within the meaning of the word as used by Congress in Section 503 of the Revenue Act of 1932, supra. Section 503, providing that a transfer shall be deemed a gift unless the transferor receives full and adequate consideration in money or money’s worth, appears to mean that any transfer of property is to be treated as a gift to the extent that the transferor does not receive in return an adequate and full equivalent in money or something which can be valued in money. “Consideration”, as used in Section 503, is not th» same as common law consideration; it means that when the transferor gives something away and does not at the same time replace it with money of equal value or some goods or services capable of being evaluated in money, he is deemed to have made a gift within the taxing law. A similar phrase in the Massachusetts succession tax law was so construed to require “that the consideration must be for the full value of the property whether paid in money, or the acceptance by the transferor of property or services, or some benefit of an equivalent pecuniary measurement”. State Street Trust Co. v. Stevens, 1911, 209 Mass. 373, 379, 95 N.E. 851, 853. Cf. United States v. Banks, D.C.S.D.N.Y. 1883, 17 F. 322, 323. To our mind, the purpose of this section in the gift tax statute and similar wording in sections of the federal estate tax law was to prevent the depletion of the transferor’s or decedent’s estate, unless a tax was paid on the transfer, by requiring that the transferor or decedent receive in exchange something of the same money value. We do not think that under any interpretation of the revenue act could Mrs. Bristol’s release of her statutory right to share in Mr. Bristol’s personalty at his death be regarded as consideration “in money or money’s worth”. The taxpayer’s resulting right to bequeath his stock in the Foxboro Company to people other than his wife obviously has no market value, cannot be sold, and does not increase the value of the property affected. The taxpayer evaluated the alleged rights of the wife in the stock of the Foxboro Company as though she had an inchoate right in the taxpayer’s personal property, similar to common-law dower in real property, which she was certain to acquire provided she survived her husband. This was the entire basis of the computation set out in footnote 2, supra. But the wife has no such inchoate right. The only right that the wife has in her husband’s personalty is a prospective right to have a one-third share of the personal estate belonging to her husband at his death. Until the moment of the taxpayer’s death, this prospective right of his wife may be either totally or partially defeated either by financial reverses which deprive the taxpayer of his personal property, including the Foxboro Company stock, or by deliberate inter vivos transfer of the property by the taxpayer whether or not with the express intent to defeat his wife’s interest therein. Redman v. Churchill, 1918, 230 Mass. 415, 119 N.E. 953; Leonard v. Leonard, 1902, 181 Mass. 458, 63 N.E. 1068, 92 Am.St.Rep. 426; cf. Holzbeierlein v. Holzbeierlein, 1937, 67 App.D.C. 219, 91 F.2d 250. The taxpayer may even make a present transfer of all his personal property to a trustee, reserving a beneficial life interest to himself with a gift over to a third person on his death, and reserving the right of variation by subsequent appointment, even though all this is done for the express purpose of preventing his wife from sharing in his estate. Kelley v. Snow, 1904, 185 Mass. 288, 70 N.E. 89. The right of the wife, during her husband’s lifetime, to share eventually in his personalty hears more resemblance to a mere expectancy which can be defeated than to inchoate dower. Cf. West v. Miller, 7 Cir., 1935, 78 F.2d 479, 483, certiorari denied, 1935, 296 U.S. 633, 56 S.Ct. 156, 80 L.Ed. 450; United States v. Banks, supra; Worcester County National Bank v. Commissioner of Corporations, etc., 1931, 275 Mass. 216, 175 N.E. 726; Humes v. United States, 1928, 276 U.S. 487, 48 S.Ct. 347, 72 L.Ed. 667; Mossberg v. McLaughlin, 1940, 127 Conn. 48, 14 A.2d 733 at page 735. Release of common-law dower might stand on a somewhat different footing, since inchoate dower is an indefeasible right, undoubtedly susceptible to approximate valuation and, after release by a wife, the affected property can be sold by the husband for a substantially larger sum. However, according to our view of the proper interpretation of the phrase “adequate and full consideration in money or money’s worth”, release of dower and analogous rights cannot be regarded as consideration for purposes of the gift tax. The federal estate tax originally provided that property transferred would not he included in the decedent’s gross estate if the transfer was the result of a hona fide sale for a fair consideration in money or money’s worth. See, e. g., Revenue Act of 1924, § 302, 43 Stat. 304, 26 U.S.C.A. Internal Revenue Acts, page 67. In 1926 Congress amended this to read “adequate and full consideration”. 26 U.S.C.A. Int. Rev.Acts, page 227. The obvious purpose of the amendment was “to narrow the class of deductible claims”. Taft v. Commissioner, 304 U.S. 351, 356, 58 S.Ct. 891, 894, 82 L.Ed. 1393, 116 A.L.R. 346. It seems probable that the result of this amendment was to exclude the release of dower or analogous statutory rights as consideration for purposes of the estate tax of 1926. Under previous phraseology, such releases had been held “fair consideration” in cases of “hona fide sale” so that property passing by contract, as distinguished from will or intestacy, had occasionally escaped inclusion in the gross estate. Ferguson v. Dickson, 3 Cir., 300 F. 961; McCaughn v. Carver, 3 Cir., 19 F.2d 126; Stubblefield v. United States, Ct.Cl., 6 F.Supp. 440. In all these cases the decedent had died prior to the enactment of the Revenue Act of 1926. The only case in which the phrasing of the 1926 act has been applied to dower rights resulted in a holding that their release does not constitute “adequate and full consideration.” Empire Trust Co. v. Commissioner, 4 Cir., 94 F.2d 307, 309. In that case the decedent died in 1931. Upon his death $50,000 passed to his wife in pursuance of a contract by which she had agreed to release her right of dower as well as all statutory rights in the remainder of the decedent’s estate. The Circuit Court of Appeals for the Fourth Circuit insisted upon the inclusion of the entire $50,000 in the decedent’s gross estate, pointing out the change in the applicable provisions of the estate tax since the decision in Ferguson v. Dickson, supra [300 F. 963], and the express recognition in the latter case of the difference between the phrases “bona fide sale for a fair consideration” and “adequate and full consideration”. Cf. Hopkins v. Magruder, D.C., 34 F.Supp. 381; Sheets v. Commissioner, 8 Cir., 95 F.2d 727, 730. The only case in point, therefore, holds that under the estate tax provisions of the Revenue Act of 1926 release of dower cannot be regarded as “adequate and full consideration in money or money’s worth”; in fact, cannot be regarded as consideration at all, for the court allowed no deduction from the gross estate. The phraseology of the gift tax, enacted in 1932, is precisely the same, and it therefore seems a fair assumption that the consideration requisite under the two taxes is identical. Since release of dower does not meet the requirements of the estate tax, it does not meet the standards required by the identical words of the gift tax. In 1932 Congress in § 804 of the Revenue Act of that year, 47 Stat. 280, 26 U. S.C.A. Int.Rev.Acts, page 642, amended § 303(d) of the Revenue Act of 1926 by adding the following provision: “For the purposes of this title, a relinquishment or promised relinquishment of dower, curtesy, or of a statutory estate created in lieu of dower or curtesy, or of other marital rights in the decedent’s property or estate, shall not be considered to any extent a consideration ‘in money or money’s worth.’ ” It is argued that the addition of this provision is an indication that Congress believed the release of dower to constitute consideration prior to 1932, and further that the amendment is restricted in effectiveness to the estate tax, since it expressly says “For the purposes of this title”, “this title” being title 3 which deals exclusively with the estate tax. We think, however, that the amendment was added merely from an abundance of caution and should be regarded as declaratory of the law as it previously existed. Between the amendment of the estate tax in 1926 so as to require “adequate and full consideration”, and the amendment of § 303(d) in 1932, McCaughn v. Carver, and Stubblefield v. United States, both supra, had been decided. While these dealt with the estate tax as it existed prior to 1926, they pointed the way to a possible means of tax avoidance which Congress may not have been certain it had forbidden with sufficient clarity, and therefore felt constrained to prohibit in words which could not be misconstrued. That the amendment may be regarded as no more than declaratory is to some extent indicated by the committee reports, both of which refer to the contrary view as “a subversion of the legislative intent expressed in § 302(a) and (b).” H. Rep. 703, 72d Cong., 1st Sess. (1932) 47; S.Rep. 665 (1932) 50. As the court said in Empire Trust Co. v. Commissioner, supra, “The reports of the committees of both Houses of Congress discussing this latter amendment show conclusively that the amendment was declaratory of the law as it existed in the act of 1926 and was made to avoid any misinterpretation of that act.” In Sheets v. Commissioner, 8 Cir., 95 F.2d 727, 730, the court said, “* * * we think that the amendment should be regarded as a declaratory definition of terms * * If the amendment of 1932 be regarded as merely declaratory of the previous intent of Congress, then the phrase “adequate and full consideration” must be regarded as excluding release of dower as consideration under the estate tax of 1926 and, by parity of reasoning, under the gift tax of 1932. However, even if the taxpayer is correct in contending that the 1932 amendment to the estate tax resulted in an actual change in the treatment of dower and analogous rights as consideration for estate tax purposes, we think it probable that the same provisions should be read into the gift tax. The phraseology is identical and, while the entire phrase “adequate and full consideration in money or money’s worth” is expressly qualified in the estate tax, it seems improbable that the identical phrase should be accorded an inconsistent meaning in the gift tax, enacted at the same time. Why Congress did not apply § 804 to the gift tax we do not know. It may have been inadvertence; it may have been that Congress felt that correction of the erroneous interpretation of the words in the estate tax would forestall similar erroneous construction of the same words in the newly enacted gift tax. Whatever may have been the reason, we believe that as an original matter, the phrase as used in the gift tax was intended to have a construction similar to that given by § 804; and we do not feel that the mere absence of such an express limitation should prevent that interpretation. The provisions of the revenue act imposing the gift tax have always been interpreted by the courts by reference to the complementary estate tax. “The gift tax was supplementary to the estate tax. The two are in pari materia and must be construed together. * * * An important, if not the main purpose of the gift tax was to prevent or compensate for avoidance of death taxes by taxing the gifts of property inter vivos which, but for the gifts, would be subject in its original or converted form to the tax laid upon transfers at death.” Sanford’s Estate v. Commissioner, 308 U.S. 39, 44, 60 S. Ct. 51, 56, 84 L.Ed. 20. The interpretation we adopt follows out the policy of the gift tax as recognized in the Sanford case supra. Had Mr. Bristol died, Mrs. Bristol’s dower rights would have become vested and her statutory share in the property would have passed to her, but nevertheless the value of her dower rights would have been included in Mr. Bristol’s gross estate. To hold that the release of dower by Mrs. Bristol during her husband’s life constitutes consideration for any transfer by him to her would in a sense defeat the purpose of the gift tax since it would permit an untaxed transfer by gift of property which would normally be subject to the estate tax upon the husband’s death. Mossberg v. McLaughlin, supra. Another important purpose of the gift tax has always been to discourage the division of large estates among members of a family so as to distribute income and thereby to avoid the imposition of high surtaxes. To consider release of dower rights as consideration within the meaning of the gift tax would result in a serious curtailment of the usefulness of the gift tax in this situation, since it would inevitably permit the tax-free separation from the husband’s estate of a substantial proportion of his income-producing assets. Moreover, this tax-free transaction would take place under the very circumstances in which a division of assets in order to avoid surtaxes would be the most likely and practical — that is, the division between husband and wife so that the entire income will remain in the family. To hold that release of dower rights is consideration for a gift between husband and wife would therefore in a wide range of cases frustrate the purpose of the gift tax in its chief role as protector of the estate and income taxes. “Doubt, if there can be any, is not likely to survive a consideration of the mischiefs certain to be engendered by any other ruling. * * * Expediency may tip the scales when arguments are nicely balanced.” Woolford Realty Co. v. Rose, 286 U.S. 319, 329, 330, 52 S.Ct 568, 570, 76 L.Ed. 1128. The transfers of the annuities and of the two pieces of real estate were without consideration in money or money’s worth within the meaning of the gift tax, and were, therefore, taxable under the Revenue Act of 1932, supra. The refund of the tax on the transfer of the annuities was properly refused by the Commissioner, and the deficiency tax on the transfer of the real property correctly assessed. The decision of the Board of Tax Appeals is vacated, and the case is remanded to the Board for further proceedings in conformity with this opinion. Value of two pieces of real estate transferred .... $34,000.00 The present worth of the right to receive the property at the death of a person aged 69 years (the taxpayer) provided a person aged 53 years (the wife) shall survive, computed according to actuarial tables of mortality$34,000 x 0.575 .................. 19,550.00 Value of the transfers of real estate ............... 19,550.00 Value of stock owned by taxpayer in August 1937 .. $781,380.00 Value of Vs of the stock, the interest allegedly received by the wife upon her marriage to the taxpayer ............. $260,460.00 Present worth of the right to receive this alleged interest at the death of a person aged 69 (the taxpayer) provided a person aged 53 (the wife) shall survive : — $260,-460.00 x 0.575 ............ $149,764.50 “§ 501. Imposition of Tax “(a) For the calendar year 1932 and each calendar year thereafter a tax * * * shall be imposed upon the transfer during such calendar year by any individual, resident or nonresident, of property by gift.” “§ 503. Transfer for Less than Adequate and Full Consideration “Where property is transferred for less than an adequate and full consideration in money or money’s worth, then the amount by which the value of the property exceeded the value of the consideration shall, for the purpose of the tax imposed by this title, be deemed a gift, and shall1 be included in computing the amount of gifts made during the calendar year.” Mass.Gen.Laws (Ter. ed.) c. 190, § 1: “Section 1. A surviving husband or wife shall, after the payment of the debts of the deceased and’ the charges of his last sickness and funeral and of the settlement of his estate, * * * be entitled to the following share in his real and personal property not disposed of by will: * * * “(2) If the deceased leaves issue, the survivor shall take one third of the personal and one third of the real property.” id., c. 191, § 15: “Section 15. The surviving husband or wife of a deceased person, * * * within six months after the probate of the will of such deceased, may file in the registry of probate a writing signed by him or by her, waiving any provisions that may have been made in it for him or for her, or claiming such portion of the estate of the deceased as he or she would have taken if the deceased had died intestate, and he or she shall thereupon take the same portion of the property of the deceased, real and personal, that he or she would have taken if the deceased had died intestate; except that if he or she would thus take real and personal property to an amount exceeding ten thousand dollars in value, he or she shall receive in addition to that amount only the income during his or her life of the excess of his or her share of such estate above that amount, the personal property to be held in trust and the real property vested in him or her for life, from the death of the deceased * * id., c. 189, § 1: “Section 1. * * * A wife shall, upon the death of her husband, hold her dower at common law in her deceased husband’s land. * * * To be entitled to such curtesy or dower the surviving husband or wife shall file his or her election in claim therefor in the registry of probate within six months * * * and shall thereupon hold instead of the interest in real property given in section one of chapter one hundred and ninety [Note 5, supra], curtesy or dower, respectively, otherwise such estate shall be held to be waived. * * * ” It is further provided in e. 191, § 17 that no dower or curtesy shall be allowed in addition to the provisions of a will unless the will so provides.” “The gift tax will supplement both the estate tax and the income tax. It will tend to reduce the incentive to make gifts in order that distribution of future income from the donated property may be to a number of persons with the result that the taxes imposed by the higher brackets of the income tax law are avoided.” S. Rep. 665, 72d Cong., 1st Sess. (1932). Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. A. not ascertained B. male - indication in opinion (e.g., use of masculine pronoun) C. male - assumed because of name D. female - indication in opinion of gender E. female - assumed because of name Answer:

songer_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. KANDLE et al. v. UNITED STATES. (Circuit Court of Appeals Third Circuit. March 2, 1925.) No. 3212. I. Courts <@=332 — Equity rules promulgated by Supreme Court have force andi effect of law and apply to proceedings to abate liquor nuisance. Equity rules promulgated by Supreme Court under Kev. St. §§ 862, 917 (Comp. St. §§ 1470, 1543), have force and effect of law and are applicable to cases brought under National Prohibition Act for abatement of liquor nuisances. 2. United States <@=124 — United States as litigant does not have attribute of sovereignty, but stands as ordinary suitor subject to equity rules. When the United States becomes a party litigant, it divests itself of sovereignty and stands as ordinary suitor, bound by equity rules as are other litigants. 3. Courts <@=350 — Time for application for taking of deposition under equity rule, stated. Under equity rules 47 and 50, plaintiff’s application to take depositions must be made in time for taking and filing of such depositions before lapse of 60 days from time cause is at issue. 4. Courts <@=352 — In absence of application for taking of deposition, cause may be tried as soon as it is at issue. Under equity rules 47 and 56, if no application to take depositions is made, ease may be put on trial calendar as soon as cause is at issue. 5. Courts <@=352 — Placing suit to abale nuisance on trial calendar before expiration of time for taking depositions held not error. In proceedings under National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138% et seq.) to abate liquor nuisance, where neither party made or intended to make application to take deposition, it was not error to place case on trial calendar before time for taking and filing depositions had expired. Appeal from the District Court of the United States for the District of New Jersey; John Rellstab, Judge. Suit to abate liquor nuisance by the United States against Aaron Handle and the Paramount Realty Company. Decree for the. United States, and defendants appeal. Affirmed. Harold Simandl, of Newark, N. J., for appellant Handle. James Lafferty and Porter, Zink & Lafferty, all of Newark, N. J., for appellant Paramount Realty Co. Walter G. Winno, U. S. Atty., of Hackensack, N. J., and Harlan Besson, of Hoboken, N. J., for the United States. Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges. DAVIS, Circuit Judge. The United States attorney for the district of New Jersey filed a bill of complaint against Aaron Handle and the Paramount Realty Company for maintaining a public and common nuisance at No. -557 Market street, Newark, N. J., in that they manufactured, kept, and sold intoxicating liquor there in violation of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138(4 et seq.). Answers were filed by tho defendants, and the case, being at issue, was placed upon the trial 'calendar. The defendants Objected to a trial'at that time and moved to withdraw the case from the trial calendar on the ground that it could not be tried until the time for taking and filing depositions under equity rule 47 had expired, although admittedly neither party had made, nor intended to make, an application to take depositions. Rule 47 provides that “the court, upon application of either party, when allowed by statute, or for good and exceptional cause for departing from the general rule, to be shown by affidavit, may permit the deposition of named witnesses, to be used before the court or upon a reference to a master, to be taken before an examiner or other named officer, upon the notice and terms specified in the order.” Depositions of the plaintiff must be taken within 60 days from .the time the cause is at issue, those of the defendant within 30 days from the expiration of the time for the filing of the plaintiff’s depositions, and rebutting depositions by either .party within 20 days thereafter. Rule 56 provides that after the time has elapséd for taking and filing depositions under these rules, the ease shall be placed on the trial calendar. In other words, defendants say that there must be a delay Of 110 days after the cause is at issue before it may be placed on the trial calendar. The mode of proof in causes in equity and of taking and obtaining evidence in federal courts shall be according to rules prescribed by tjhe Supreme Court. Section 862, Revised Statutes of the United States (United States Compiled Statutes, § 1470); section 917, Revised Statutes of the United States (United States Compiled Statutes, § 1543). The rules in question were promulgated on November 4, 1912. They have the force and effect of law and may not be disregarded. American Graphophone Co. v. National Phonograph Co. (C. C.) 127 F. 349. When the United States becomes a party litigant, it divests itself of sovereignty and stands as any ordinary suitor before the court and is bound by these rules. United States v. Barber Lumber Co. (C. C.) 169 F. 184. These equity rules are applicable to eases brought under the National Prohibition Act for the abatement of nuisances. Grossman v. United States (C. C. A.) 280 F. 683. The real question is: What do .these two rules mean? The defendants say that their operation as to the time for taking and filing depositions and placing cases on the- trial calendar is absolute and automatic. They rely on Jewell v. State Life Insurance Co. of Indianapolis, 176 F. 64, 99 C. C. A. 372, and Quinlivan v. Dail-Overland Co. (C. C. A.) 274 F. 56, 65. The opinions in these cases contain expressions which seemingly support their contention. The first ease was decided under rule 69, which was promulgated in 1842, when the general rule was not to take testimony orally in open court but before masters. Rule 69 of the old rules allowed three months and no more for the taking of testimony. In the second case cited, the question before us was not under consideration. The court reeitatively stated the provision of the present rule 56 as to when a ease shall be placed on the trial calendar without any attempt to construe it. Under the old rule and practice of taking testimony out of court, rule 69 came automatically into operation as soon as the cause was at issue, and a ease could not be placed on the trial calendar until the time and opportunity thus provided for taking testimony had expired. Litigants now take testimony in open court at the trial, and there is no need of delaying the trial as was necessary under the old rules. The change in the method of taking testimony was made in order to expedite litigation. This new rule prevails, unless some exceptional cause arises to prevent it. If such cause arises, it must be shown by affidavit upon application of either party to take depositions of “named witnesses.” If no application is made, neither of the rules, 47 and 56, becomes operative and testimony is taken in open court. Rule 47 is silent as.to when application shall be made. It must be made, however, before a trial is had and in time for the plaintiff to take and file.his depositions within 60 days from the time the cause is at issue'. The plaintiff may not delay, therefore, 60 days before making the application. If application is not made, the ease may be put on the trial calendar as soon as the cause is at issue, and tried at any time. But a trial may be prevented before the expiration of the time provided for taking'ahd filing' depositions by an application of either party showing the necessary facts. When considering the.motion to remove the ease from the trial calendar, Judge Rellstab asked if either party had made or' intended to make an application to take depositions. Both parties stated that no application had been1 made and that -they did not intend to make any. Thereupon he declined to remove the case from the trial calendar, and we do not think that he committed error. The decree is affirmed. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:

sc_lcdispositiondirection

B

What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations ALABAMA POWER CO. v. DAVIS No. 76-451. Argued April 25-26, 1977 Decided June 6, 1977 H. Hampton Boles argued the cause for petitioner. With him on the brief were John Bingham and Marshall Timberlake. Allan A. Ryan, Jr., argued the cause for respondent. With him on the brief were Solicitor General McCree, Assistant Attorney General Babcock, Robert E. Kopp, and William H. Berger. Briefs of amici curiae urging reversal were filed by Hugh M. Finneran for PPG Industries, Inc.; and by Carl E. Sanders, Michael C. Murphy, and John L. Taylor, Jr., for Lockheed-Georgia Co., a division of Lockheed Aircraft Corp. Me. Justice Marshall delivered the opinion of the Court. Respondent Davis became a permanent employee of petitioner Alabama Power Co. on August 16, 1936, and continued to work until March 18, 1943, when he left to enter the military. After serving in the military for 30 months, he resumed his position with Alabama Power, where he worked until he retired on June 1, 1971. Davis received credit under the company pension plan for his service from August 16, 1937, until the date of his retirement, with the exception of the time he spent in the military and some time spent on strike. Davis claimed that § 9 of the Military Selective Service Act of 1967, 50 U. S. C. App. § 459 (b), requires Alabama Power to give him credit toward his pension for his period of military service. With the assistance of the United States Attorney, he sued to vindicate that asserted right. The District Court, 383 F. Supp. 880 (ND Ala. 1974), and the Court of Appeals for the Fifth Circuit, 542 F. 2d 650 (1976), agreed with Davis. Because of the importance of the issue and a conflict among the Circuits, we granted certiorari, 429 U. S. 1037. We affirm. I The Military Selective Service Act provides the mechanism for manning the Armed Forces of the United States. Section 9 of the Act evidences Congress’ desire to minimize the disruption in individuals’ lives resulting from the national need for military personnel. It seeks to accomplish this goal by guaranteeing veterans that the jobs they had before they entered the military will be available to them upon their return to civilian life. Specifically, § 9 requires that any qualified person who leaves a permanent position with any employer to enter the military, satisfactorily completes his military service, and applies for re-employment within 90 days of his discharge from the military, “be restored by such employer or his successor in interest to such position or to a position of like seniority, status, and pay . . . unless the employer’s circumstances have so changed as to make it impossible or unreasonable to do so.” 50 U. S. C. App. § 459 (b) (B) (i). Moreover, any person so restored to a position “shall be considered as having been on furlough or leave of absence during his period of training and service in the armed forces, shall be so restored without loss of seniority, shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was inducted into such forces, and shall not be discharged from such position without cause within one year after such restoration.” 50 U. S. C. App. § 459 (c) (1). In our first confrontation with the predecessor of § 9, we held that the statutory protection against discharge within a year of re-employment did not protect a veteran from being laid off while nonveterans with greater seniority retained their jobs. Fishgold v. Sullivan Drydock & Repair Corp., 328 U. S. 275 (1946). In reaching this conclusion, we announced two principles that have governed all subsequent interpretations of the re-employment rights of veterans. First, we stated that under the Act: “[The veteran] does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war.” Id., at 284-285. Congress incorporated this doctrine in succeeding re-enactments of the re-employment provision. See 50 IT. S. C. App. § 459 (c) (2) . The second guiding principle we identified was: “This legislation is to be liberally construed for the benefit of those who left private fife to serve their country in its hour of great need. . . . And no practice of employers or agreements between employers and unions can cut down the service adjustment benefits which Congress has secured the veteran under the Act.” 328 TJ. S., at 285. Our next cases were also concerned with the extent of the protection afforded rights that were clearly within the Act’s scope. Trailmobile Co. v. Whirls, 331 U. S. 40 (1947); Aeronautical Lodge v. Campbell, 337 U. S. 521 (1949); Oakley v. Louisville & N. R. Co., 338 U. S. 278 (1949). More recently, however, our efforts have been directed at determining whether a particular right claimed by a veteran is an aspect of the “seniority” which the Act protects. We have been unable to rely on either the language or the legislative history of the Act when making these determinations, for neither contains a definition of “seniority.” We first faced this problem in McKinney v. Missouri-K.-T. R. Co., 357 U. S. 265 (1958). McKinney had been re-employed at a higher level than he had attained when he left for military service, with seniority in his new position dating from his return to work. When his job was abolished, he claimed that his seniority at the higher level should have dated from the time he would have been eligible to reach that level had he not served in the military. This Court rejected his claim because of the contingent nature of his expectation of being promoted from the job he previously held. That promotion, the Court found, depended “not simply on seniority or some othér form of automatic progression, but on the exercise of discretion on the part of the employer.” Id., at 272. Since the promotion would not have come automatically had McKinney continued to ride the seniority escalator, the Court concluded that neither the promotion nor a seniority date calculated as of the time he might have been promoted were incidents of the “seniority” protected by the Act. Six years later, the Court again considered whether a veteran was entitled to a seniority date calculated as if he had obtained a higher level position while in the military. Tilton v. Missouri Pac. R. Co., 376 U. S. 169 (1964). Tilton had been promoted before he left the railroad to enter the military, but he had not worked enough days to complete the probationary period necessary to obtain permanent status and begin accumulating seniority in the higher level job. When he returned to the railroad, he successfully completed the remainder of the probationary period. The company set his seniority date as of the time he actually finished the probationary period; he claimed that the date should have been fixed as of the time he would have satisfied the probationary work requirement had it not been for his military service. This Court agreed. Unlike the situation in McKinney, we found that the only management discretion involved was the decision to allow Tilton to assume probationary status in the higher level position, and that discretion had been exercised before he entered the military. Tilton’s satisfactory completion of the probationary period after he was reinstated by the railroad was sufficient indication that he would have completed that period earlier if his tenure had not been interrupted by his service to his country. The mere possibility that his ride on the escalator might have been interrupted by some other circumstance could not be allowed to deny him the status he almost certainly would have obtained: “In every veteran seniority case the possibility exists that work of the particular type might not have been available; that the veteran would not have worked satisfactorily during the period of his absence; that he might not have elected to accept the higher position; or that sickness might have prevented him from continuing his employment. In light of the purpose and history of this statute, however, we cannot assume that Congress intended possibilities of this sort to defeat the veteran’s seniority rights.” 376 IT. S., at 180-181. In McKinney and Tilton, the Court decided whether the veterans’ promotions were incidents of the “seniority” protected by the Act, but in both cases, the benefit claimed by the veterans — earlier seniority dates — was clearly “seniority.” Our most recent cases have involved claims to benefits that could not be so easily classified. These cases have required us to consider not only the relative certainty of the benefit’s accrual but also the nature of the benefit itself. We first encountered this added complexity in Accardi v. Pennsylvania R. Co., 383 U. S. 225 (1966), a case involving a claim to severance pay. The petitioners in Accardi were tugboat firemen who had left their jobs for military service and had later been restored with appropriate seniority credit. When technological change led to the elimination of the position of tugboat fireman, the railroad agreed to provide severance pay, with the amount of the payment dependent on the employee’s length of “compensated service.” Since Accardi and his colleagues had not received compensation from the company during their military service, the railroad did not give them credit for that time when calculating their severance payments. This Court ruled in favor of the firemen. It was clear that had the petitioners remained on their jobs, they would have received severance pay credit for the years they spent in the military. Therefore, the reasonable-certainty criterion established in McKinney and Tilton was satisfied. The company argued, however, that the payment was not based on, and so was not an incident of, seniority, but rather was based on total actual service to the railroad. While questioning the company’s argument because of the “bizarre results possible under the definition of ‘compensated service,’ ” 383 U. S., at 230, we rejected it because the “real nature” of the payments was compensation for the lost rights and expectations that accrued as the employees’ longevity on the job increased. Ibid. That nature could not be disguised by use of a “compensated service” formula to calculate the amount of the payments. Accordingly, we concluded that “the amount of these allowances is just as much a perquisite of seniority as the more traditional benefits such as work preference and order of lay-off and recall.” Ibid. Failing to credit the veterans with their military service time when calculating their payments therefore violated the Act’s requirement that they be reinstated without loss of seniority. Most recently, in Foster v. Dravo Corp., 420 U. S. 92 (1975), we dealt with another claim for payment because of time spent in military service. Foster had worked for his private employer for seven weeks in 1967, spent 18 months in the military, and returned to work for the last 13 weeks of 1968. He claimed that he was entitled to vacation pay for both years, although the collective-bargaining agreement granted full vacation benefits only for 25 weeks of work in a calendar year. Again focusing on the nature of the benefit at issue, we rejected Foster’s claim. Vacation benefits, we held, are “intended as a form of short-term compensation for work performed,” id,., at 100, not as a reward for longevity with an employer. In reaching this conclusion, we noted the work requirement imposed by the collective-bargaining contract, the proportionate increase in vacation benefits that resulted from overtime work, and the availability of pro rata benefits if an employee was laid off before he had worked the required number of weeks. These facts, however, were sufficient only to “lend substantial support,” ibid., to the employer’s argument that the vacation benefits were a form of pay for work done. The nature of the benefits — “the common conception of a vacation as a reward for and respite from a lengthy period of labor,” id., at 101 — was decisive. Thus, our cases have identified two axes of analysis for determining whether a benefit is a right of seniority secured to a veteran by § 9. If the benefit would have accrued, with reasonable certainty, had the veteran been continuously employed by the private employer, and if it is in the nature of a reward for length of service, it is a “perquisite of seniority.” If, on the other hand, the veteran’s right to the benefit at the time he entered the military was subject to a significant contingency, or if the benefit is in the nature of short-term compensation for services rendered, it is not an aspect of seniority within the coverage of § 9. We evaluate respondent Davis’ right to pension credit for his years in the military in light of these principles. II Alabama Power established its pension, plan on July 1, 1944, during the time Davis was in the military. The plan, which is funded entirely by the company, covers all “full-time regular employee [s]” who have completed one year of continuous service with the company and are at least 25 years old. App. 58-59. Under the labor agreements and practices of the company, a full-time regular employee is one who, with limited exceptions, works a 40-hour week. A covered employee has no vested right to any benefit from the plan until he has completed 20 years of service, which for this purpose includes time spent in the military, or has completed 15 years of service and attained the age of 50. Id., at 90-91. Normal retirement age under the plan is 65, but an employee with 20 years of “accredited service” can elect to retire any time after he has reached the age of 55. App. to Pet. for Cert. 43a-44a. Davis chose the early retirement option. The concept of “accredited service” is a major determinant of the amount of benefits paid and is the source of the present controversy. The plan defines “accredited service” as the period of “future service” together with the period of “past service.” Id., at 34a-35a. These terms, in turn, are defined as an employee’s period of service after the initiation of the pension plan and his inclusion within it (future service) and his period of service prior to that date (past service). Id., at 35a. Future service is credited to an employee “for service rendered to the Company” as a full-time, regular employee and for periods of authorized leave of absence with pay. Employees on leave of absence without regular pay, and persons serving in the military, are not credited with future service during their absence from the company. Id., at 40a. Retirement benefits are calculated by the use of formulas in which years of accredited service are multiplied by an earnings factor. Had Davis received accredited service for the time he spent in the military, his monthly pension payment would have been $216.06 rather than the $198.95 to which the company said he was entitled. It is clear that the reasonable-certainty requirement of McKinney and Tilton is satisfied in .this case. Respondent’s work history both before and after his military tour of duty demonstrates that if he had not entered the military, he would almost certainly have accumulated accredited service for the period between March 18, 1943, and October 8, 1945. Unpredictable occurrences might have intervened, but “we cannot assume that Congress intended possibilities of this sort to defeat the veteran’s seniority rights.” Tilton v. Missouri Pac. R. Co., 376 U. S., at 181. Alabama Power contends, however, that pension payments should be viewed as compensation for service rendered, like the vacation payments in Foster, rather than as a perquisite of seniority like the severance payments in Accardi. The company argues that the definition of accredited service in terms of full-time service to the company is a bona fide, substantial work requirement which, under Foster, “is strong evidence that the benefit in question was intended as a form of compensation.” 420 U. S., at 99. Since § 9 does not grant veterans the right to compensation for work they have not performed, Alabama Power concludes that Davis is not entitled to his claimed pension increase. As we noted in our discussion of Foster, that case turned on the nature of vacation benefits, not on the particular formula by which those benefits were calculated. Even the most traditional kinds of seniority privileges could be as easily tied to a work requirement as to the more usual criterion of time as an employee. Yet, as we held in Fishgold, “no practice of employers . . . can cut down the service adjustment benefits which Congress has secured the veteran under the Act.” 328 U. S., at 285. We must look beyond the overly simplistic analysis suggested by Alabama Power to the nature of the payments. It is obvious that pension payments have some resemblance to compensation for work performed. Funding a pension program is a current cost of employing potential pension recipients, as are wages. The size of pension benefits is a subject of collective bargaining, and future benefits may be traded off against current compensation. The same observations, however, can be made about any benefit and therefore are of little assistance in determining whether a particular benefit recompenses labor or rewards longevity with an employer. Other aspects of pension plans like the one established by petitioner suggest that the “true nature” of the pension payment is a reward for length of service. The most significant factor pointing to this conclusion is the lengthy period required for pension rights to vest in the employee. It is difficult to maintain that a pension increment is deferred compensation for a year of actual service when it is only the passage of years in the same company’s employ, and not the service rendered, that entitles the employee to that increment. Moreover, because of the vesting requirement and the use of payment formulas that depend on earnings at the time of retirement, both the cost to the employer and the payment to the employee for each year of service depend directly on the length of time the employee continues to work for that employer. Periodic adjustments of the benefit formulas to account for unanticipated increases in living costs, see App. 74-84, emphasize the dissociation of payment levels from the work that Alabama Power claims the payments compensate. The function of pension plans in the employment system also supports respondent’s claim. A pension plan assures employees that by devoting a large portion of their working years to a single employer, they will achieve some financial security in their years of retirement. By rewarding lengthy service, a plan may reduce employee turnover and training costs and help an employer secure the benefits of a stable work force. See D. McGill, Fundamentals of Private Pensions 21-23 (3d ed. 1975). In addition, by providing economic security in retirement, pension plans encourage longtime employees whose working efficiency may be on the decline to retire and make way for younger workers. Id., at 21-22; S. Slichter, J. Healey, & E. Livernash, The Impact of Collective Bargaining on Management 374 (1960). The relationship between pension payments and passage of time as an employee is central to both of these functions. We conclude, therefore, that pension payments are predominantly rewards for continuous employment with the same employer. Protecting veterans from the loss of such rewards when the break in their employment resulted from their response to the country’s military needs is the purpose of § 9. That purpose is fulfilled in this case by requiring Alabama Power to pay Davis the pension to which he would have been entitled by virtue of his lengthy service if he had not been called to the colors. Accordingly, the judgment below is affirmed. It is so ordered. Employees do not become eligible to participate in the plan until they have worked for one year. See infra, at 590. Section 459 (b) has been recodified, without substantial change, as 38 U. S. C. § 2021 (1970 ed., Supp. V). See 50 U. S. C. App. § 459 (d), now codified at 38 U. S. C. § 2022 (1970 ed., Supp. V). Compare Jackson v. Beech Aircraft Corp., 517 F. 2d 1322 (CA10 1975) and Litwicki v. Pittsburgh Plate Glass Industries, Inc., 505 F. 2d 189 (CA3 1974) (denying pension credit), with Smith v. Industrial Employers & Distributors Assn., 546 F. 2d 314 (CA9 1976) (granting past service credit and denying future service credit). The grant of certiorari was limited to the first question presented, excluding the issue of the applicability of the Alabama statute of limitations. The Selective Training and Service Act of 1940, e. 720, § 8 (b), 54 Stat. 890. “It is declared to be the sense of the Congress that any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) of this section should be so restored in such manner as to give him such status in his employment as he would have enjoyed if he had continued in such employment continuously from the time of his entering the armed forces until the time of his restoration to such employment.” This provision is now codified at 38 U. S. C. § 2021 (b) (2) (1970 ed., Supp. V). “[Section] 9 (c) does not guarantee the returning serviceman a perfect reproduction of the civilian employment that might have been his if he had not been called to the colors. Much there is that might have flowed from experience, effort, or chance to which he cannot lay claim under the statute. Section 9 (c) does not assure him that the past with all its possibilities of betterment will be recalled. Its very important but limited purpose is to assure that those changes and advancements in status that would necessarily have occurred simply by virtue of continued employment will not be denied the veteran because of his absence in the military service.” 357 U. S., at 271-272. It was possible for an employee to receive credit for a full year of “compensated service” by working only seven well-timed days during the year. The company defined a month of “compensated service” as any month during which the employee worked one or more days, and a year of “compensated service” was defined as 12 such months, or a major portion thereof. The Court also held that whatever the full scope of the statutory language governing “other benefits” contained in §459 (c), see supra, at 583-584, that language was intended to add to the protections afforded the veteran’s seniority rights, not to lessen those protections. 383 U..S., at 231-232. The Court’s conclusion that the severance payments were perquisites of seniority therefore made unnecessary consideration of the “other benefits” provision. Under the collective-bargaining agreement in Foster, the length of an employee’s vacation increased with his length of continuous employment with the firm. The company conceded that the employee’s time in military service had to be counted in determining the length of his vacation. 420 U. S., at 101 n. 9. The established exceptions include annual vacations, paid holidays, 10 days of annual sick leave, which may be accumulated up to a maximum of 30 days, and up to three days’ leave in ease of a death in the employee’s immediate family. In addition, longtime employees may be allowed up to nine months of extended sick leave. The Employee Retirement Income Security Act of 1974, § 203, 88 Stat. 854, 29 U. S. C. § 1053 (1970 ed., Supp. V), establishes vesting requirements more favorable to employees than those described in the text. This law, which generally requires vesting within 10 to 15 years, did not affect respondent and, insofar as is relevant to the question presented in this case, does not alter the nature of pension plans. A limited exception to this rule, see App. 61-62, was not applicable to Davis. Davis’ pension payment is calculated under § V4 (b) (ii) of the plan. That section provides: “The minimum Retirement Income payable after January 1, 1966 to an employee included in the Plan retiring from the service of the Company after January 1, 1966 at his Early Retirement Date (before adjustment for Provisional Payee designation, if any) shall be an amount equal to 1% of his monthly earnings on his Early Retirement Date multiplied by his years of Accredited Service, reduced by [specified amounts].” App. 70. “Normal retirement income” under the plan is calculated by reference to specified percentages of an employee’s earnings, exclusive of overtime, during his years with the company. Id., at 65-68, 73. The amount to which an employee would be entitled under the “normal retirement income” formula has, however, been periodically adjusted upward by formulas which, like the formula applicable to Davis, call for multiplication of a percentage of recent earnings by the number of years of accredited service. See id., at 7A-84. Inland Steel Co. v. NLRB, 170 F. 2d 247 (CA7 1948), cert. denied on this issue, 336 U. S. 960 (1949), aff’d on other grounds, Steelworkers v. NLRB, 339 U. S. 382 (1950). The company contends that Inland Steel holds that pensions are “wages” and that they must therefore be classified as “other benefits,” see n. 10, supra, under the Military Selective Service Act. Inland Steel concluded, however, only that pensions are a mandatory subject of collective bargaining under the National Labor Relations Act (NLRA) because they are either wages “or other conditions of employment.” 170 F. 2d, at 249-255. Even if pensions are “wages” for the purposes of the NLRA, that classification would not control their treatment under the very different statute at issue in this case. Cf. United States v. Embassy Restaurant, 359 U. S. 29, 33 (1959) (payments to union welfare fund may be “wages” under NLRA but not under Bankruptcy Act). Cf. S. Slichter, J. Healy, & E. Livemash, The Impact of Collective Bargaining on Management 373 (1960) (pension plans encouraged during World War II by difficulty of obtaining general wage increases). Petitioner’s plan is a “defined benefit” plan, under which the benefits to be received by employees are fixed and the employer’s contribution is adjusted to whatever level is necessary to provide those benefits. The other basic type of pension is a “defined contribution” plan, under which the employer’s contribution is fixed and the employee receives whatever level of benefits the amount contributed on his behalf will provide. See 29 U. S. C. §§ 1002 (34), (35) (1970 ed., Supp. V); Note, Fiduciary Standards and the Prudent Man Rule Under the Employee Retirement Income Security Act of 1974, 88 Harv. L. Rev. 960, 961-963 (1975). We intimate no views on whether defined contribution plans are to be treated differently from defined benefit plans under the Military Selective Service Act. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspecifiable 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). FRIEDMAN v. UNITED STATES. (Circuit Court of Appeals, Sixth Circuit. May 7, 1925.) No. 4272. 1. Forgery <s=>5 — Indictment charging sale of altered Liberty Bonds with intent to defraud others to whom they might be sold held to state offense. Indictment, charging sale and delivery of Liberty Bonds which had been altered with intent to defraud others to whom purchaser might sell them, stated violation of Criminal Code, § 151, notwithstanding person to whom accused sold bonds was not deceived; intent to defraud being sufficient, if it is to operate against future transferees. 2. Criminal law <§=»l 167(2) — Where conviction on one count of indictment is sustainable, defects in other counts are immaterial. Where conviction under one count is sustainable, and sentence is not excessive under that count, defects in other counts are immaterial. 3. Forgery <®=»I0 — Uttering or selling altered Liberty Bonds is an offense. Uttering or selling altered Liberty Bonds violates Criminal Code, § 151, notwithstanding alteration makes bonds void. 4. Forgery <S=>44('/2) — Accused’s knowledge that Liberty Bonds sold by him had been altered held proved. Evidence helé to warrant finding that accused delivered Liberty Bonds to purchaser, knowing that they had been altered, in violation of Criminal Code, § 151. In Error to the District Court of the United States for the Western District of Kentucky; Charles H. Moorman, Judge. Sol Eriedman was convicted of uttering and selling Liberty Bonds which had been altered, and he brings error. Affirmed. Leopold Saltiel, of Chicago, Ill., for plaintiff in error. Claude Hudgins, Asst. U. S. Atty., of Louisville, Ky. (W. S. Ball, U. S. Atty., and Lilburn Phelps, Asst. U. S. Atty., both of Louisville, Ky., on the brief), for the United States. Before DENISON, DONAHUE, and KNAPPEN, Circuit Judges. PER CURIAM. Eriedman was convicted under two counts of an indictment charging that he violated section 151 of the Criminal Code by uttering and selling Liberty Bonds which had been altered. The bonds in question had been in fact stolen, and then altered by erasing the name of the registered holder and substituting therefor another and fictitious name. They were then transferred by Eriedman in connection with an assignment by the purported registered holder. One count charged that he had sold and delivered these bonds to Erey, with intent to defraud Frey. The 'other count charged the same delivery with intent to defraud others, to whom Erey might sell them. It is now said that Erey had knowledge of the alteration, and so the proofs do not sustain a conviction under the first count, while the second count does not state an offense. We think the second count is not defective in this respect. The intent to defraud is sufficient, if it is to operate against a future transferee, even though the person to whom delivery is made is not deceived. U. S. v. Nelson, 27 Fed. Cas. 80. The conviction under one count being sustainable, and the sentence being not excessive under that count, defects under other counts are immaterial. It is urged that, upon the making of the alteration, the bonds became void and were no longer an obligation of the United States and that to utter or sell a void paper is not within the statute. We cannot accept this construction. It would leave nothing for the statute to operate upon, since every “forged, counterfeited or altered obligation or other security of the United States” is in fact void. There was sufficient evidence to support the jury’s finding that Friedman, when delivering the bonds, knew of the alteration. The bonds were in evidence, and there was undisputed testimony that the fact of alteration was obvious. Further, Friedman’s story of how he came into possession of them was not convincing. In the rulings as to the admission of evidence, we find no reversible error, if any. The judgment is affirmed. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:

songer_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. In the Matter of Grand Jury Witness Charles Joseph BATTAGLIA. Charles Joseph BATTAGLIA, Witness, Appellant, v. UNITED STATES of America, Appellee. No. 81-5339. United States Court of Appeals, Ninth Circuit. Submitted May 18, 1981. Decided August 20, 1981. Rehearing Denied Oct. 5,1981. Hirsh & Bayles, Tuscon, Ariz., for appellant. Paul Corradini, Phoenix, Ariz., for appellee. Before GOODWIN, ANDERSON and FERGUSON, Circuit Judges. GOODWIN, Circuit Judge. Charles Joseph Battaglia appeals a judgment of civil contempt. He was adjudged a recalcitrant witness for failing to answer certain questions before the grand jury, despite his claim that he was unable to remember the events in question. In October 1978 Battaglia was indicted for mail fraud, conspiracy, and several drug-related offenses. In January 1979 he entered into a plea bargain pursuant to which he pleaded guilty to one count, the other counts were dismissed, and he agreed to testify as to the “involvement of Joseph Rae in the events underpinning the indictment.” The government first sought Battaglia’s testimony in July 1979 when he was incarcerated at the United States Medical Center for Federal Prisoners at Springfield, Missouri. His testimony was postponed at the request of the prison officials because Battaglia was suffering from heart disease. During the summer and fall of 1979 the prison authorities continued to recommend that Battaglia not be required to testify. After his release on parole, Battaglia was served with a subpoena to appear in May 1980 before the grand jury. He moved to quash the subpoena on the ground that the strain of testifying would endanger his life. Battaglia was examined by a government physician who agreed that there was a significant health risk. Consequently, although the district court refused to quash the subpoena, it ordered that Battaglia’s physician be permitted to stand outside the grand jury room door and that the proceeding be halted at Battaglia’s request. Upon appearing before the grand jury on October 21, 1980, Battaglia stated that his memory was impaired by the drugs he had been taking for his heart condition, but he would try to answer the questions to the best of his ability. After a few minutes, Battaglia’s physician informed the United States Attorney that it was unsafe for Battaglia to continue, and the proceeding was halted. On December 4, 1980, Battaglia was ordered to submit written answers to questions propounded by the government in lieu of a personal appearance before the grand jury. The government propounded a set of 55 questions relating to Rae’s involvement in a criminal scheme. In his written responses, Battaglia gave answers that failed to satisfy the government attorneys and they applied for an order to show cause why Battaglia should not be declared a recalcitrant witness under 28 U.S.C. § 1826. At the hearing before the district court on the order to show cause, Battaglia argued that he had not been given notice of the answers which the government deemed insufficient. The court agreed and ordered the government to specify the answers with which it was not satisfied. Battaglia’s supplemental answers stated in slightly greater detail his inability to remember. Battaglia also pointed out that an FBI report of an interview with him concerning the scheme was inconsistent with the transcript of surreptitiously recorded conversations of his also concerning the scheme. Because of the inconsistency, he stated it was difficult for him to remember what had actually transpired. At a second hearing on the order to show cause the government argued that Battaglia had the burden of proving that his answers were truthful. The court apparently adopted the government’s view of the burden of proof. In an attempt to comply with the court’s Understanding of the burden of proof, Battaglia presented testimony by a clinical psychologist and a clinical pharmacologist. The psychologist, who had given Battaglia a battery of tests that morning, concluded that there was evidence of short-term memory impairment. He also found that Battaglia’s overall mental capabilities had “substantially” slipped from his native ability. The psychologist did not find gross indications of remote memory loss, but testified that Battaglia did not do well on one portion of an examination which would indicate remote memory loss. The psychologist testified that he did not believe that Battaglia was malingering because an untrained person would not know which answers to which questions would produce a desired result. The pharmacologist testified on the possible effects of the drugs Battaglia was taking, Inderal and Demerol. He testified that there is some indication that Inderal causes short-term memory loss. He also testified that the drug causes depression, a symptom of which is memory impairment. He specifically testified that there is a possibility, although not a probability, that Inderal will cause long-term memory loss. The pharmacologist testified that Demerol is a narcotic that depresses the central nervous system. A depressant adversely affects the memory function of a person under its influence. Moreover, the witness said animal experiments had shown that Inderal and Demerol, when taken together, will have a greater effect than one would expect from the simple addition of their individual effects. Subsequently, the court found Battaglia to be a recalcitrant witness pursuant to 28 U.S.C. § 1826 and ordered him confined until such time as he answered the questions in a nonevasive manner. The court concluded that Battaglia’s claim of loss of memory was made in bad faith. It based its conclusion on the following facts: (1) Battaglia’s personal physician did not testify as to memory loss; (2) Battaglia presented no evidence from family or friends that he was suffering from memory loss; (3) the expert testimony related only to short-term memory loss and the possibility, not probability, of long-term memory loss; (4) Battaglia did not stress the alleged memory problems until he was ordered to answer the written questions; (5) Battaglia had no problem answering nonincriminating questions; and (6) Battaglia’s demeanor on the stand was evasive. I. Applicability of the Statute “Whenever a witness in any proceeding before ... [a] grand jury of the United States refuses without just cause shown to comply with an order of the court to testify . . . the court . . . may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony . . . .” 28 U.S.C. § 1826. Battaglia contends that a witness’ false assertion that he does not remember does not constitute a refusal to testify within the meaning of the statute, but is an act of perjury. As perjury, Battaglia argues, it can be punished as contempt only upon a showing, not made here, that the perjury obstructed the performance of the court’s duties. See Ex Parte Hudgings, 249 U.S. 378, 39 S.Ct. 337, 63 L.Ed. 656 (1919); Collins v. United States, 269 F.2d 745, 750 (9th Cir. 1959), cert. denied, 362 U.S. 912, 80 S.Ct. 662, 4 L.Ed.2d 620 (1960). A witness who testified that he does not remember an event can be convicted of perjury if it can be proven beyond a reasonable doubt that he does, in fact, remember the event. United States v. Ponticelli, 622 F.2d 985 (9th Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 578, 66 L.Ed.2d 476 (1980). Battaglia assumes that this ends the inquiry. It does not. Wrongful conduct can be proscribed by more than one statute. Hence the real question is whether a false assertion of a lapse of memory constitutes a refusal to testify, in addition to setting the stage for a possible perjury prosecution. The government cites no case that expressly holds that either general evasiveness or a false assertion of memory loss constitutes a refusal to testify within the meaning of 28 U.S.C. § 1826. In Martin-Trigona v. Gouletas, 634 F.2d 354 (7th Cir. 1980), the Seventh Circuit affirmed a district court order finding appellant to be a recalcitrant witness upon a finding that the asserted memory loss was false. The issue in that case, however, appears to be whether the district court’s finding of falsity was clearly erroneous, not whether the behavior was proscribed by 28 U.S.C. § 1826. Id. at 357. Nevertheless, we are satisfied that a false assertion of memory loss does constitute a refusal to testify. Although 28 U.S.C. § 1826 is a relatively new statute, it was intended to codify the common law of civil contempt. Gelbard v. United States, 408 U.S. 41, 42 n. 1, 92 S.Ct. 2357, 2358, n.1, 33 L.Ed.2d 179 (1972); United States v. Alter, 482 F.2d 1016, 1022 (9th Cir. 1973). There are many cases predating the enactment of § 1826 that treat a false assertion of inability to answer as a refusal to answer. See, e. g., Richardson v. United States, 273 F.2d 144, 147 (8th Cir. 1959) (“Courts have recognized that testimony false and evasive on its face is the equivalent of refusing to testify at all.”) Life Music, Inc. v. Broadcast Music, Inc., 41 F.R.D. 16, 24 (S.D.N.Y.1966) (“A court ought not to be put off by transparent sham, and the mere fact that the witness gives some answer cannot be an absolute test.” (quoting from United States v. Appell, 211 F. 495 (S.D.N.Y.1913)).) Three important policy considerations argue for this construction of the statute. First, if an evasive answer were not equated with a refusal to answer, even the most transparently false assertion of “I don’t remember” would be sufficient to avoid the recalcitrant witness statute. Second, even when a perjury prosecution would be appropriate, the government may be more interested in producing truthful testimony by use of § 1826 than in obtaining a criminal conviction for perjury. Third, the public, through our justice system, has a right to every person’s evidence in our search for the truth. See United States v. Nixon, 418 U.S. 683, 709-710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974). A concocted evasive or false “I don’t remember” answer would provide an easy avenue for the reluctant witness to escape this high obligation with impunity. II. Sufficiency of the Evidence Battaglia also contends that the evidence was insufficient to support the finding that he falsely asserted that he did not remember. We do not reach this question because the allocation of the burden of proof to Battaglia instead of to the government requires a remand. In a civil contempt proceeding, the contempt must be proved by clear and convincing evidence. United States v. Powers, 629 F.2d 619, 626 n.6 (9th Cir. 1980). The standard appears to be higher than the preponderance of the evidence standard, applicable to most civil cases, but lower than the beyond a reasonable doubt standard, applicable to criminal contempt proceedings. Id. A civil contempt proceeding on a witness’ asserted memory loss requires a three-step analysis that shifts the burden of production to the witness, but always leaves the burden of proof with the government. First, the government must make a prima facie showing of contempt; i. e., that it made an authorized request for information, that the information was relevant to the proceedings, that the information was not already in the possession of the government, and that the witness did not comply. See, e. g., United States v. Hankins, 565 F.2d 1344, 1351 (5th Cir. 1978), cert. denied, 440 U.S. 909, 99 S.Ct. 1218, 59 L.Ed.2d 457 (1979). Second, once the government has presented its prima facie case, the witness must provide some explanation on the record for his failure to comply. See United States v. O’Henry’s Film Works, Inc., 598 F.2d 313, 318 (2nd Cir. 1979). If the witness fails to meet this “burden of producing evidence,” the government’s prima facie case is sufficient to meet its burden of proof for a finding of contempt. See, N.L.R.B. v. Trans Ocean Export Packing, Inc., 473 F.2d 612, 617-18 (9th Cir. 1973). The witness may meet his burden, however, where, as here, he testifies that he does not remember the events in question. Finally, if the witness meets his burden of production by claiming a loss of memory, the government must carry its burden of proof for a finding of contempt by demonstrating that the witness in fact did remember the events in question, thereby establishing a willful failure to comply. See, United States v. Hansen Niederhauser Co., Inc., 522 F.2d 1037, 1040 (10th Cir. 1975); United States v. Rizzo, 539 F.2d 458, 465-66 (5th Cir. 1976); United States v. Silvio, 333 F.Supp. 264, 266-67 (W.D.Mo.1971); see generally, Mullaney v. Wilbur, 421 U.S. 684, 703 n.31, 95 S.Ct. 1881, 1892, n.31, 44 L.Ed.2d 508 (1975). In N.L.R.B. v. Trans Ocean Export Packing, Inc., supra, at 616, we said: “[Although inability to comply with a judicial decree constitutes a defense to a charge of civil contempt, . . . the federal rule is that one petitioning for an adjudication of civil contempt does not have the burden of showing that the respondent has the capacity to comply.... The contrary burden is upon the respondent. To satisfy this burden the respondent must show ‘categorically and in detail’ why he is unable to comply. . . . Since the Board did not have the burden of proof as to respondents’ ability to comply, it was under no obligation to allege such ability in its petitions to this court.” Trans Ocean can be distinguished, however, because the respondent in Trans Ocean presented no proof of his inability to comply with the order. Consequently, the Trans Ocean court may have been referring to the burden of production rather than the burden of persuasion. By contrast, Battaglia has explained why he cannot comply. The quoted passage from Trans Ocean was in response to respondent’s erroneous contention that the government bore the burden of pleading and proving in its prima facie case that respondent possessed the ability to comply with the order. Battaglia makes no such contention here. Other courts have held that in a contempt proceeding, where the defendant introduces evidence of inability to comply, the government has the burden of proving ability to comply. See, e. g., United States v. Rizzo, 539 F.2d 458 (5th Cir. 1976); United States v. Silvio, 333 F.Supp. 264, 267 (W.D.Mo. 1971) . See also United States v. Hankins, 565 F.2d 1344, 1351-52 (5th Cir. 1978), cert. denied, 440 U.S. 909, 99 S.Ct. 1218, 59 L.Ed.2d 457 (1979) (dictum). These cases are consonant with the analogous principle of criminal law that although the government does not have the burden of disproving the existence of every conceivable affirmative defense, it does have the burden of disproving the existence of affirmative defenses actually raised. See, e. g., United States v. Hearst, 563 F.2d 1331 (9th Cir. 1977); cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978); United States v. Carrasco, 537 F.2d 372 (9th Cir. 1976). The government may satisfy its burden of proof by establishing by clear and convincing evidence that the witness’ claimed inability to remember is not credible. Apparently, the government introduced no affirmative evidence that Battaglia recently had told anyone about the scheme, or that his medications do not, in fact, affect long-term memory. Cf. United States v. Cooper, 465 F.2d 451 (9th Cir. 1972) (by analogy, the government has the burden of persuasion with regard to an insanity defense and must introduce affirmative evidence attacking the defendant’s case). The district court based its judgment almost exclusively on the gaps in Battaglia’s proof; i. e., on the failure of family, friends, or Battaglia’s personal physician to testify, on the expert witnesses’ failure extensively to testify with regard to long-term memory loss, and on Battaglia’s evasive demeanor. These are all legitimate considerations for a trier of fact, but the location of the burden of proof emphasizes their importance. We do not, however, disparage the trial judge’s power to decide all issues of credibility. By placing the burden of persuasion on Battaglia, the district court made the gaps in Battaglia’s proof more damaging than the gaps in the government’s proof. This was error. The cause is remanded for further proceedings in the district court with the burden of proving contempt remaining at all 'times upon the government. Vacated and remanded. . The manner by which a witness may meet his burden of production will depend upon the reason given for his inability to comply. For example, a witness who claims that he cannot recall a particular fact or event may explain his inability to comply “categorically and in detail” by testifying on the record that he does not remember. The witness has then offered as clear and detailed an explanation as possible for his inability to comply without exceeding the limits of faulty memory. 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_appnatpr

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Plaintiff-Appellee, v. Larry Michael GETCHEL, Defendant-Appellant. No. 71-3048. United States Court of Appeals, Ninth Circuit. Sept. 25, 1972. Roger S. Hanson (argued), of Hanson & Milman, Beverly Hills, Cal., David Unrot, Los Angeles, Cal., for defendant-appellant. William C. Smitherman, U. S. Atty., James M. Wilkes, James E. Mueller, Asst. U. S. Attys., Tucson, Ariz., for plaintiff-appellee. Before MOORE, MERRILL and TRASK, Circuit Judges. The Honorable Leonard P. Moore, Senior Circuit Judge of the Second Circuit, sitting by designation. PER CURIAM: Defendant Larry M. Getchel appeals from a judgment of conviction after a jury trial (Caleb R. Layton, D.J.) for the illegal importation of marijuana (28i/2 pounds) and hashish (3 grams) in violation of 21 U.S.C. § 176a. Indictment, Count II. Count I, charging conspiracy, was dismissed. Appellant primarily challenges the sufficiency of the evidence to prove possession or knowledge of illegal importation of the narcotics. He claims that the evidence was entirely circumstantial and did not justify submission to the jury. The chain of circumstantial evidence may be briefly summarized as follows: Appellant, with another person, entered the United States from Mexico at Lukesville, Arizona, in a camper (pickup truck). Suspicious circumstances caused customs officials to follow the truck. Later that night the same truck was observed on a road closely paralleling a Mexican highway. The lights were turned off and when customs officials attempted to stop the vehicle it sped up, forcing an Agent off the road. Something fell or was thrown from the back of the camper. It proved to be a large sack and smaller boxes containing marijuana and hashish. The camper was discovered abandoned off the highway in the desert. Tennis shoe footprints led to Ajo, Arizona, where in the train yard were found the same tennis shoe tracks and a night bag which had been run over by a train. The Agent pursued the daily copper train out of Ajo, found the appellant on it, and arrested him. His shoes matched the footprints found around the abandoned camper. In his jacket pocket was marijuana debris and in his shirt the keys to the camper. From the witness stand appellant gave a version of his activities quite at variance with the Government’s proof. Appraisal of the many inconsistencies in his testimony was for the jury. Attempted flight was also a factor to which the jury was entitled to give consideration. (Shorter v. United States, 412 F.2d 428 (9th Cir. 1969); Rossetti v. United States, 315 F.2d 86 (9th Cir. 1963).) As to illegal importation, the Government identified the marijuana as having originated in South America. Appellant’s effort to disassociate himself from marijuana and the camper failed. The trial court’s charges correctly stated the law. No exceptions were taken. The judgment of conviction 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_direct1

A

What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. Francis J. DONDERO, Plaintiff-Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Defendant-Appellee. No. 206, Docket 27666. United States Court of Appeals Second Circuit. Argued Jan. 16, 1963. Decided Jan. 18, 1963. Edgar T. Schleider, New York City (David Altschul, New York City, on the brief), for plaintiff-appellant. Kalman V. Gallop, Asst. U. S. Atty., Brooklyn, N. Y. (Joseph P. Hoey, U. S. Atty. for Eastern Dist. of New York, Brooklyn, N. Y., on the brief), for defendant-appellee. Before MEDINA, WATERMAN and MOORE, Circuit Judges. PER CURIAM. Upon attaining age 65, plaintiff applied for and received old-age insurance benefits of $85.00 per month beginning January 1954. In 1958 plaintiff reported a real estate commission of $8,800, precipitating a review of his social security status and resulting in a suspension by the Bureau of further payments and a direction of restitution of amounts previously paid to him in the years 1954 through 1957, totalling $4,620. Upon plaintiff’s request a hearing was held on February 17, 1959. The Referee’s Decision of April 15, 1959 affirmed the decision of the Board and held that plaintiff had received and was receiving wages in excess of $2,080 per annum, the amount at which benefits were to be totally suspended under Sections 203(b) and 203 (e) of the Social Security Act, 42 U.S.C. §§ 403(b) and 403(e). Upon denial of review by the Appeals Council of the Social Security Administration this decision became final and plaintiff then sought review in the District Court which dismissed his complaint, and he appeals. Opinion below reported at 205 F.Supp. 683. We hold this dismissal was proper. The evidence showed that when plaintiff filed his retirement claim, he was president, general manager, principal stockholder and the only paid employee of the Dondero Holding Company, Inc., a real estate corporation formed in 1930, whose principal assets were a parcel of improved real estate yielding an annual rental of $10,000 and bank accounts and securities yielding annual interest and dividends of $1,000. Plaintiff’s salary of $4,200 and business expenses consumed most of the earnings. Plaintiff’s apartment served as office, with light secretarial work performed without compensation by his wife. After his “retirement” in 1954, plaintiff’s salary was reduced to $900 per annum and for the first time the wife was put on the payroll at $60 a week, although the somewhat minimal duties and services performed by each did not materially change and the plaintiff at all times remained the “moving force” of the operation. The Referee thought that plaintiff’s testimony was discredited by the circumstances above outlined, and that the record established a “scheme of shifting wages” whereby plaintiff indirectly received “remuneration which is, in effect, wages to him.” We hold that these determinations were permissible and supported by substantial evidence as required under Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Newman v. Celebrezze, 2 Cir., 1962, 310 F.2d 780; Poss v. Ribicoff, 2 Cir., 1961, 289 F.2d 10, cert. denied, 368 U.S. 902, 82 S.Ct. 178, 7 L.Ed.2d 96, rehearing denied, 1962, 368 U.S. 963, 82 S.Ct. 393, 7 L.Ed.2d 393; Walker v. Altmeyer, 2 Cir., 1943, 137 F.2d 531, 533-34. In so holding, we reaffirm our prior statement in Newman v. Celebrezze, supra, that a claimant has the right to receive old-age benefits “irrespective of any dividend or other non-wage payments he might receive.” This principle, however, is inapplicable to the instant case since the joint income and corporation tax forms and the other relevant evidence established that the moneys, potentially payable as rents, dividends, and interest, with the attendant disadvantages involved in this form of distribution, were actually paid out and consistently treated as wages earned. Nor do we find in the decision below any attempt to penalize plaintiff for corporate or individual income tax procedures which may or may not be questionable. The proceedings hitherto had, of course, constitute only an adjudication as of the time through which evidence was submitted, and are without prejudice to a new application by plaintiff based on a new set of facts. Newman v. Celebrezze, supra. Affirmed. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:

sc_lcdispositiondirection

A

What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations SIEGERT v. GILLEY No. 90-96. Argued February 19, 1991 Decided May 23, 1991 Rehnquist, C. J., delivered the opinion of the Court, in which White, O’Connor, Scalia, and SouteR, JJ., joined. Kennedy, J., filed an opinion concurring in the judgment, post, p. 235. Marshall, J., filed a dissenting opinion, in which Blackmun, J., joined, and in Parts II and III of which Stevens, J., joined, post, p. 236. Nina Kraut argued the cause and filed briefs for petitioner. Michael R. Lazerwitz argued the cause for respondent. With him on the brief were Acting Solicitor General Roberts, Assistant Attorney General Gerson, Deputy Solicitor General Shapiro, and Barbara L. Herwig. David H. Remes, David Rudovsky, Steven R. Shapiro, and Arthur B. Spitzer filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal. Chief Justice Rehnquist delivered the opinion of the Court. We granted certiorari in this case to determine whether the United States Court of Appeals for the District of Columbia Circuit properly directed dismissal of petitioner’s Bivens claim on the grounds that he had not overcome respondent’s claim of qualified immunity. The Court of Appeals relied on its “heightened pleading standard,” but we hold that petitioner’s claim failed at an analytically earlier stage of the inquiry into qualified immunity: His allegations, even if accepted as true, did not state a claim for violation of any rights secured to him under the United States Constitution. Petitioner Frederick A. Siegert, a clinical psychologist, was employed at St. Elizabeths Hospital, a Federal Government facility in Washington, D. C., from November 1979 to October 1985. He was a behavior therapy coordinator specializing in work with mentally retarded children and, to a lesser extent, with adults. In January 1985, respondent H. Melvyn Gilley became head of the division for which Siegert worked. In August 1985, St. Elizabeths notified Siegert that it was preparing to terminate his employment. Siegert was informed that his “proposed removal was based upon his inability to report for duty in a dependable and reliable manner, his failure to comply with supervisory directives, and cumulative charges of absence without approved leave.” App. 15, 21. After meeting with hospital officials, Siegert agreed to resign from the hospital and thereby avoid a termination that might damage his reputation. Id., at 21. Following his resignation from St. Elizabeths, Siegert began working as a clinical psychologist at a United States Army Hospital in Bremerhaven, West Germany. Because of the requirement that he be “credentialed” to work in hospitals operated by the Army, Siegert signed a “Credential Information Request Form” asking that St. Elizabeths Hospital provide to his prospective supervisor, Colonel William Smith, “all information on job performance and the privileges” he had enjoyed while a member of its staff. App. to Pet. for Cert. 55a. Siegert’s request was referred to Gilley because he had been Siegert’s supervisor at St. Elizabeths. In response to Siegert’s request, Gilley notified the Army by letter that “he could not recommend [Siegert] for privileges as a psychologist.” App. 6. In that letter, Gilley wrote that he “considered] Dr. Siegert to be both inept and unethical, perhaps the least trustworthy individual I have supervised in my thirteen years at [St. Elizabeths].” Ibid. After receiving this letter, the Army Credentials Committee told Siegert that since “reports about him were ‘extremely unfavorable’ . . . the committee was . . . recommending that [Siegert] not be credentialed.” Id., at 7. After being denied credentials by the committee, Siegert was turned down for a position he sought with an Army hospital in Stuttgart. Siegert then returned to Bremerhaven where he was given provisional credentials, limited to his work with adultg. Siegert filed administrative appeals with the Office of the Surgeon General to obtain full credentials. In December 1987, the Surgeon General denied Siegert’s claims. Soon thereafter, his “federal service employment [was] terminated.” Id., at 23. Upon learning of Gilley’s letter in November 1986, Siegert filed suit in the United States District Court for the District of Columbia, alleging that Gilley’s letter had caused him to lose his post as a psychologist at the Bremerhaven Army Hospital, and had rendered him unable to obtain other appropriate employment in the field. Relying on Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), Siegert sought $4 million in damages against Gilley, contending that — “by maliciously and in bad faith publishing a defamatory per se statement. . . which [he] knew to be untrue, or with reckless disregard as to whether it was true or not”— Gilley had caused an infringement of his “liberty interests” in violation of the protections afforded by the Due Process Clause of the Fifth Amendment. App. 9. Siegert also asserted pendent state-law claims of defamation, intentional infliction of emotional distress, and interference with contractual relations. Gilley filed a motion to dismiss or in the alternative for summary judgment. He contended that Siegert’s factual allegations, even if true, did not make out a violation of any constitutional right. Gilley also asserted the defense of qualified immunity under Harlow v. Fitzgerald, 467 U. S. 800 (1982), contending that Siegert’s allegations did not state the violation of any “clearly established” constitutional right. App. to Pet. for Cert. 30a-31a, 36a. Siegert submitted opposing affidavits stating facts supporting his allegations of malice. In December 1987, the District Court issued an order “[declining] to decide this matter on a . Summary Judgment motion at this time.” Id., at 54a. Instead, the court determined that “[it] would like to see a more developed record,” and therefore ordered “a limited amount of discovery.” Ibid. In particular, the court directed the taking of the depositions of the parties and Colonel Smith. Gilley filed a motion for reconsideration, asking the court to stay further discovery pending disposition of his qualified immunity claim. In June 1988, the District Court denied the motion, and in a written opinion found that Siegert’s factual allegations were sufficient to state violations of a clearly established constitutional right. It analyzed our decision in Paul v. Davis, 424 U. S. 693 (1976), but found this case closer on its facts to two decisions of the Court of Appeals for the District of Columbia Circuit, Doe v. United States Department of Justice, 243 U. S. App. D. C. 354, 753 F. 2d 1092 (1985), and Bartel v. FAA, 233 U. S. App. D. C. 297, 725 F. 2d 1403 (1985). The court directed the parties to proceed with the previously ordered limited discovery. Gilley appealed the denial of his qualified immunity defense to the Court of Appeals pursuant to Mitchell v. Forsyth, 472 U. S. 511 (1985). A divided panel of the United States Court of Appeals for the District of Columbia Circuit reversed and remanded with instructions that the case be dismissed. The court first determined that to the extent Siegert’s Bivens action was premised on allegations of improper conduct irrespective of subjective intent, the allegations did not state a claim for violation of any clearly established constitutional right. In the course of that analysis, it concluded that the District Court had mistakenly relied on its decisions in Doe, supra, and Bartel, supra. The Court of Appeals then turned to Siegert’s allegation that Gilley wrote the letter with bad faith and malice. Assuming “that such bad faith motivation would suffice to make Gilley’s actions in writing the letter a violation of Siegert’s [clearly established] constitutional rights,” 282 U. S. App. D. C. 392, 398, 895 F. 2d 797, 803 (1990), the court held that Siegert’s allegations of improper motivation were insufficient to overcome Gilley’s assertion of qualified immunity. The court explained that where, as here, improper purpose is an essential element of a constitutional tort action, the plaintiff must adequately allege specific, direct evidence of illicit intent — as opposed to merely circumstantial evidence of bad intent — in order to defeat the defendant’s motion to dismiss or motion for summary judgment asserting qualified immunity. Id., at 395-396, 398-399, 895 F. 2d, at 800-801, 803-804. The Court of Appeals then determined that Siegert’s allegations did not satisfy that “heightened pleading standard.” Id., at 400, 895 F. 2d, at 805. It found that Siegert’s complaint “merely asserts (and reasserts) that in making the statement [Gilley] ‘knew [it] to be false or [made it] with reckless disregard as to whether it was true,”’ id., at 399, 895 F. 2d, at 804, and that Siegert’s affidavits failed to “add anything more tangible to the record . . . .” Ibid. We granted certiorari, 498 U. S. 918 (1990), in order to clarify the analytical structure under which a claim of qualified immunity should be addressed. We hold that the petitioner in this case failed to satisfy the first inquiry in the examination of such a claim; he failed to allege the violation of a clearly established constitutional right. We have on several occasions addressed the proper analytical framework for determining whether a plaintiff’s allegations are sufficient to overcome a defendant’s defense of qualified immunity asserted in a motion for summary judgment. Qualified immunity is a defense that must be pleaded by a defendant official. Gomez v. Toledo, 446 U. S. 635 (1980); Harlow, 457 U. S., at 815. Once a defendant pleads a defense of qualified immunity, “[o]n summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. . . . Until this threshold immunity question is resolved, discovery should not be allowed.” Id., at 818. In this case, Siegert based his constitutional claim on the theory that Gilley’s actions, undertaken with malice, deprived him of a “liberty interest” secured by the Fifth Amendment to the United States Constitution. He contended that the loss of his position at the Bremerhaven Hospital, followed by the refusal of the Army hospital in Stuttgart to consider his application for employment, and his general inability to find comparable work because of Gilley’s letter, constituted such a deprivation. The Court of Appeals agreed with respondent that in the absence of an allegation of malice, petitioner had stated no constitutional claim. But it then went on to “assume, without deciding, that [Gilley’s] bad faith motivation would suffice to make [his] actions in writing the letter a violation of Siegert’s constitutional rights, and that the process given by the credentialing review was not adequate to meet due process requirements.” 282 U. S. App. D. C., at 398, 895 F. 2d, at 803. We think the Court of Appeals should not have assumed, without deciding, this preliminary issue in this case, nor proceeded to examine the sufficiency of the allegations of malice. In Harlow we said that “[u]ntil this threshold immunity question is resolved, discovery should not be allowed.” Harlow, supra, at 818 (emphasis added). A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is “clearly established” at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all. Decision of this purely legal question permits courts expeditiously to weed out suits which fail the test without requiring a defendant who rightly claims qualified immunity to engage in expensive and time consuming preparation to defend the suit on its merits. One of the purposes of immunity, absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit. In Mitchell v. Forsyth, supra, we said: “Harlow thus recognized an entitlement not to stand trial or face the other burdens of litigation, conditioned on the resolution of the essentially legal question whether the conduct of which the plaintiff complains violated clearly established law. The entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Id., at 526. This case demonstrates the desirability of this approach to a claim of immunity, for Siegert failed not only to allege the violation of a constitutional right that was clearly established at the time of Gilley’s actions, but also to establish the violation of any constitutional right at all. In Paul v. Davis, 424 U. S. 693 (1976), the plaintiff’s photograph was included by local police chiefs in a “flyer” of “active shoplifters,” after petitioner had been arrested for shoplifting. The shoplifting charge was eventually dismissed, and the plaintiff filed suit under 42 U. S. C. § 1983 against the police chiefs, alleging that the officials’ actions inflicted a stigma to his reputation that would seriously impair his future employment opportunities, and thus deprived him under color of state law of liberty interests protected by the Fourteenth Amendment. We rejected the plaintiff’s claim, holding that injury to reputation by itself was not a “liberty” interest protected under the Fourteenth Amendment. 424 U. S., at 708-709. We pointed out that our reference to a governmental employer stigmatizing an employee in Board of Regents of State Colleges v. Roth, 408 U. S. 564 (1972), was made in the context of the employer discharging or failing to rehire a plaintiff who claimed a liberty interest under the Fourteenth Amendment. Defamation, by itself, is a tort actionable under the laws of most States, but not a constitutional deprivation. The facts alleged by Siegert cannot, in the light of our decision in Paul v. Davis, be held to state a claim for denial of a constitutional right. This is not a suit against the United States under the Federal Tort Claims Act — such a suit could not be brought, in the light of the exemption in that Act for claims based on defamation, see 28 U. S. C. § 2680(h) — but a suit against Siegert’s superior at St. Elizabeths Hospital. The alleged defamation was not uttered incident to the termination of Siegert’s employment by the hospital, since he voluntarily resigned from his position at the hospital, and the letter was written several weeks later. The statements contained in the letter would undoubtedly damage the reputation of one in his position, and impair his future employment prospects. But the plaintiff in Paul v. Davis similarly alleged serious impairment of his future employment opportunities as well as other harm. Most defamation plaintiffs attempt to show some sort of special damage and out-of-pocket loss which flows from the injury to their reputation. But so long as such damage flows from injury caused by the defendant to a plaintiff’s reputation, it may be recoverable under state tort law but it is not recoverable in a Bivens action. Siegert did assert a claim for defamation in this case, but made no allegations as to diversity of citizenship between himself and respondent. The Court of Appeals assumed, without deciding, that if petitioner satisfactorily alleged that respondent’s letter was written with malice, a constitutional claim would be stated. Siegert in this Court asserts that this assumption was correct — that if the defendant acted with malice in defaming him, what he describes as the “stigma plus” test of Paul v. Davis is met. Our decision in Paid v. Davis did not turn, however, on the state of mind of the defendant, but on the lack of any constitutional protection for the interest in reputation. The Court of Appeals’ majority concluded that the District Court should have dismissed petitioner’s suit because he had not overcome the defense of qualified immunity asserted by respondent. By a different line of reasoning, we reach the same conclusion, and the judgment of the Court of Appeals is therefore Affirmed. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspecifiable Answer:

songer_genapel2

C

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant. James ROCHE, Petitioner-Appellee, v. G. H. SIZER, Warden, Federal Correctional Institution, The United States Parole Commission, and William French Smith, Attorney General of the United States, Respondents-Appellants. No. 422, Docket 81-2236. United States Court of Appeals, Second Circuit. Argued Feb. 1, 1982. Decided April 1, 1982. Barry K. Stevens, Asst. U. S. Atty. for the District of Connecticut, Hartford, Conn. (Alan H. Nevas, U. S. Atty., District of Connecticut, Bridgeport, Conn., of counsel), for respondents-appellants. John L. Pottenger, Jr., Jerome N. Frank Legal Services Organization, Yale Law School, New Haven, Conn. (Stephen Wizner, Renee D. Chotiner, P. J. Pittman, New Haven, Conn., on the brief), for petitionerappellee. Before LUMBARD and VAN GRAAFEILAND, Circuit Judges, and BONSAL, District Judge . Of the United States District Court for the Southern District of New York, sitting by designation. BONSAL, District Judge: On January 29, 1979 petitioner, James Roche, was arrested by federal agents, charged with conspiracy to distribute cocaine and marijuana (the Federal charges), and was sent to the Connecticut Correctional Institution at Hartford (“CCI Hartford”) where federal defendants are held while awaiting trial. On March 20, 1979 the State of Connecticut issued a warrant for petitioner’s arrest, charging him with the sale of cocaine in violation of the Connecticut General Statutes (the Connecticut charges). On April 30,1979 petitioner posted a bond with respect to the Federal charges. However, since he had not posted bond with respect to the Connecticut charges, he remained incarcerated at CCI Hartford. On May 7,1979 Chief Judge Clarie issued a writ of habeas corpus ad prosequendum directing that petitioner be turned over to the United States Marshal for trial on the Federal charges, the writ providing that “immediately after prosecution has been concluded, the United States Marshal for the District of Connecticut . .. shall return the said James Roche to the Connecticut Commissioner of Corrections, Community Correctional Center, Hartford, Connecticut____” On June 13, 1979 petitioner pled guilty to the Federal charges and was sentenced by Judge Clarie to imprisonment for three years. He was then returned to Connecticut custody at CCI Hartford pursuant to the writ of habeas corpus ad prosequendum. On September 20, 1979, having pled guilty to the Connecticut charges, petitioner was sentenced to one-to-two years’ imprisonment by Judge Brennan of the Connecticut Superior Court and was incarcerated in the Connecticut Correctional Institution, Somers, Connecticut. On December 3, 1979 petitioner was released on parole from Connecticut custody and, pursuant to a federal detainer, was delivered to the Federal Correctional Institution at Danbury to commence his federal sentence (18 U.S.C. § 3568 (1976)). He was given credit for time served for the period from January 29, 1979, the date of his arrest on the Federal charges, to April 30, 1979, the date on which he posted bond with respect to the Federal charges. On January 5, 1981 petitioner moved for a reduction of sentence pursuant to Rule 35, Fed.R.Crim.P. “to recover jail time credit due to him for time served in State custody.” Chief Judge Clarie reduced petitioner’s sentence an additional 45 days to give him credit for the period from April 30, 1979, on which date petitioner posted bond on the Federal charges, to June 13, 1979, the date on which he was sentenced on the Federal charges. On April 8,1981 petitioner filed a petition for habeas corpus in the district court, contending that his sentence on the Federal charges began to run from the date of his sentencing, June 13, 1979, rather than December 3, 1979, the date on which he was incarcerated in the Federal Correctional Institution in Danbury. Petitioner argues that his range for release on parole was 20-26 months, according to the guidelines of the United States Parole Commission, and that he was notified by the Parole Commission that his incarceration would be continued to a presumptive parole after service of 26 months. Petitioner alleges that he has been incarcerated more than 26 months, using the date of his sentencing, June 13, 1979, as the starting date. On May 20, 1981 the district court, Ellen B. Burns, J., directed the Parole Commission to credit petitioner with the time he was incarcerated between the date of sentencing before Judge Clarie, June 13, 1979, and December 3, 1979 when he commenced to serve his federal sentence, and stated that if such credit was not accorded by the close of business on June 5, 1981 the petition for a writ of habeas corpus would be granted and petitioner released as though he were on parole. This decision conflicts with two other recent eases, Zeldes v. United States, Civil No. B-79-257 (D.Conn. April 15, 1980), aff’d. 636 F.2d 1206 (2d Cir. 1980), cert. denied, 450 U.S. 983, 101 S.Ct. 1521, 67 L.Ed.2d 819 (1981), and Betres v. Hambrick, Civil No. N-81-322 (D.Conn. Sept. 21,1981), in which the court below found under similar circumstances that the federal government had yielded primary jurisdiction. The .petitioner in Zeldes pled guilty to federal charges and was released on bail pending sentencing. He was then arrested on unrelated New York charges and held in New York custody. He appeared in federal court pursuant to a writ of habeas corpus ad prosequendum and was sentenced to a five-year term. He was then returned to a New York facility to await trial on the New York charges. In the meantime, a second New York charge was filed against him and he was sentenced to a term of six months “to run concurrently with [his] Federal sentence.” He served his sentence but remained in New York custody awaiting trial on the first set of charges. After trial, he was sentenced to a term to run consecutively to his federal sentence. He was then transferred to federal prison. Petitioner argued that his federal sentence began on the day he was sentenced rather than the day he was returned to federal custody. The court refused to grant petitioner credit on his federal sentence for the time spent in New York custody, noting that while the general rule is that the first arresting sovereign obtains, primary jurisdiction, that jurisdiction can be yielded. The court found that the federal government had yielded primáry jurisdiction because it had allowed petitioner to be imprisoned by New York authorities without challenging their jurisdiction. ' The court also found the use of the writ of habeas corpus ad prosequendum to obtain petitioner’s presence for sentencing to be persuasive. Petitioner attempted to rely on a letter showing that the judge intended that his sentence commence on the date of sentencing, but the letter was not a part of the record and the court refused to give it any weight. The fact that Roche was placed in a Connecticut facility rather than a federal one while he was a federal pretrial detainee has no significance since there were no federal facilities available. We find, as in Zeldes, that primary jurisdiction over Roche passed to Connecticut when he posted bond on the Federal charges. We find that the disposition below runs counter to the federal statute governing commencement of sentence and credit for presentence jail time (18 U.S.C. § 3568). Under 18 U.S.C. § 3568, petitioner’s sentence commenced on December 3, 1979 when he was released from Connecticut custody and delivered to the Federal Correctional Institution at Danbury to commence his federal sentence. Moreover, during the period between April 30, 1979 when he posted bail with respect to the Federal charges but not with respect to the Connecticut charges and May 7, 1979 when Judge Clarie issued the writ of habeas corpus ad prosequendum, he was under Connecticut custody and not federal custody. He returned to federal custody only for the period between May 7, 1979, the date of the writ of habeas corpus ad prosequendum, and June 13, 1979 when he was sentenced on the Federal charges and returned to Connecticut custody. The effect of the decision below would be to grant petitioner credit for the same period of time against both his federal and state sentences, which we find inconsistent with 18 U.S.C. § 3568, Zeldes v. United States, supra; Crawford v. Jackson, 589 F.2d 693 (D.C.Cir.1978), cert. denied, 441 U.S. 934, 99 S.Ct. 2056, 60 L.Ed.2d 662 (1979); Wolcott v. Norton, 365 F.Supp. 138 (D.Conn.), aff’d, 487 F.2d 513 (2d Cir. 1973). Reversed, 516 F.Supp. 961. . 18 U.S.C. § 3568 provides in pertinent part: “The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed.... No sentence shall prescribe any other method of computing the term.” Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:

sc_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. PERKINS v. STANDARD OIL CO. OF CALIFORNIA. No. 624. Argued April 22-23, 1969. Decided June 16, 1969. Earl W. Kintner and George R. Kucik argued the cause for petitioner. With them on the briefs were Thomas L. Siegel, Roger Tilbury, Ernest Bonyhadi, and Bruce M. Hall. Richard J. MacLaury argued the cause for respondent. With him on the brief were Francis R. Kirkham and H. Helmut Loring. Mr. Justice Black delivered the opinion of the Court. In 1959 petitioner, Clyde A. Perkins, brought this civil antitrust action against the Standard Oil Company of California seeking treble damages under § 2 of the Clayton Act, as amended by the Robinson-Patman Act, for injuries alleged to have resulted from Standard’s price discriminations in the sale of gasoline and oil during a period of over two years from 1955 to 1957. In 1963, after a lengthy and complicated trial, the jury returned a verdict for Perkins and assessed damages against Standard of $333,404.67, which, after trebling by the court and after the addition of attorney’s fees, resulted in a total judgment against Standard of $1,298,213.71. On review, the Court of Appeals for the Ninth Circuit held that the assessment of damages included injuries to Perkins that were not recoverable under the Act and therefore ordered a new trial. Standard Oil Co. of California v. Perkins, 396 F. 2d 809. We granted certiorari to determine whether the Court of Appeals, in reversing the judgment, had correctly construed the Robinson-Patman Act. Petitioner Perkins entered the oil and gasoline business in 1928 as the operator of a single service station in the State of Washington. By the mid-1950’s he had become one of the largest independent distributors of gasoline and oil in both Washington and Oregon. He was both a wholesaler, operating storage plants and trucking equipment, and a retailer through his own Perkins stations. From 1945 until 1957, Perkins purchased substantially all of his gasoline requirements from Standard. From 1955 to 1957 Standard charged Perkins a higher price for its gasoline and oil than Standard charged to its own Branded Dealers, who competed with Perkins, and to Signal Oil & Gas Co., a wholesaler whose gas eventually reached the pumps of a major competitor of Perkins. Perkins contends that Standard’s price and price-related discriminations against him seriously harmed his competitive position and forced him, in 1957, to sacrifice by sale what remained of his once independent business to one of the major companies in the gasoline business, Union Oil. Many of the elements of liability on the part of Standard are not in dispute. Standard has admitted that it sold gasoline and oil to its Branded Dealers and to Signal Oil at discriminatorily lower prices than those at which it sold to Perkins. The Court of Appeals found that Standard’s liability for the harm done Perkins by the favorable treatment of the Branded Dealers was beyond dispute. Of this aspect of the damages, the Court of Appeals said: “The Branded Dealers purchased gasoline and oil from Standard which they in turn sold at retail. With respect to them, Perkins’ story is quickly told. Because of Standard’s favoritism and discrimination they were able to and did offer lower prices and better services and facilities than Perkins in marketing at retail.” 396 F. 2d, at 812. With regard to Perkins’ damage resulting from Standard’s discrimination in favor of Signal Oil, however, the Court of Appeals took a different view because of the following circumstances under which the discriminatory sales were made. Standard admittedly sold gasoline to Signal at a lower price than it sold to Perkins. Signal sold this Standard gasoline to Western Hyway, which in turn sold the Standard gasoline to Regal Stations Co., Perkins’ competitor. Perkins alleged that the lower price charged Signal by Standard was passed on to Signal’s-subsidiary Western Hyway, and then to Western’s subsidiary, Regal. Regal’s stations were thus able to undersell Perkins’ stations and, according to Perkins, the resulting competitive harm, along with that he suffered at the hands of Standard’s favored Branded Dealers, destroyed his ability to compete and eventually forced him to sell what was left of his business. The Court of Appeals held, however, that any harm suffered by Perkins from impaired competition with Regal stations was beyond the scope of the Robinson-Patman Act because Regal was too far removed from Standard in the chain of distribution. A substantial part of the damages the jury assessed against Standard, as the Court of Appeals viewed it, might have been based upon a finding that Perkins suffered competitive harm from the price advantage held by Regal stations. That court, concluding that “the whole verdict is tainted, since the amount reflected in it by Regal’s conduct cannot be ascertained, . . .” reversed the judgment and ordered a new trial. 396 F. 2d, at 813. We disagree with the Court of Appeals’ conclusion that § 2 of the Clayton Act, as amended by the Robinson-Patman Act, does not apply to the damages suffered by Perkins as a result of the price advantage granted by Standard to Signal, then by Signal to Western, then by Western to Regal. The Act, in pertinent part, provides: “(a) It shall be unlawful for any person engaged in commerce, . . . either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, . . . where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them . . . .” The Court of Appeals read this language as limiting “the distributing levels on which a supplier’s price discrimination will be recognized as potentially injurious to competition.” 396 F. 2d, at 812. According to that court, the coverage of the Act is restricted to injuries caused by an impairment of competition with (1) the seller (“any person who . . . grants . . . such discrimination”), (2) the favored purchaser (“any person who . . . knowingly receives the benefit of such discrimination”), and (3) customers of the discriminating seller or favored purchaser (“customers of either of them”). Here, Perkins’ injuries resulted in part from impaired competition with a customer (Regal) of a customer (Western Hyway) of the favored purchaser (Signal). The Court of Appeals termed these injuries “fourth level” and held that they were not protected by the Robinson-Patman Act. We conclude that this limitation is wholly an artificial one and is completely unwarranted by the language or purpose of the Act. In FTC v. Fred Meyer, Inc., 390 U. S. 341 (1968), we held that a retailer who buys through a wholesaler could be considered a “customer” of the original supplier within the meaning of § 2 (d) of the Clayton Act, as amended by the Robinson-Patman Act, a section dealing with discrimination in promotional allowances which is closely analogous to § 2 (a) involved in this case. In Meyer, the Court stated that to read “customer” narrowly would be wholly untenable when viewed in light of the purposes of the Robinson-Patman Act. Similarly, to read “customer” more narrowly in this section than we did in the section involved in Meyer would allow price discriminators to avoid the sanctions of the Act by the simple expedient of adding an additional link to the distribution chain. Here, for example, Standard supplied gasoline and oil to Signal. Signal, allegedly because it furnished Standard with part of its vital supply of crude petroleum, was able to insist upon a discriminatorily lower price. Had Signal then sold its gas directly to the Regal stations, giving Regal stations a competitive advantage, there would be no question, even under the decision of the Court of Appeals in this case, that a clear violation of the Robinson-Patman Act had been committed. Instead of selling directly to the retailer Regal, however, Signal transferred the gasoline first to its subsidiary, Western Hyway, which in turn supplied the Regal stations. Signal owned 60% of the stock of Western Hyway; Western in turn owned 55% of the stock of the Regal stations. We find no basis in the language or purpose of the Act for immunizing Standard’s price discriminations simply because the product in question passed through an additional formal exchange before reaching the level of Perkins’ actual competitor. Erom Perkins’ point of view, the competitive harm done him by Standard is certainly no less because of the presence of an additional link in this particular distribution chain from the producer to the retailer. Here Standard discriminated in price between Perkins and Signal, and there was evidence from which the jury could conclude that Perkins was harmed competitively when Signal’s price advantage was passed on to Perkins’ retail competitor Regal. These facts are sufficient to give rise to recoverable damages under the Robinson-Patman Act. Before an injured party can recover damages under the Act, he must, of course, be able to show a causal connection between the price discrimination in violation of the Act and the injury suffered. This is true regardless of the “level” in the chain of distribution on which the injury occurs. The court below held that, as a matter of law, “Section 2 (a) of the Act does not recognize a causal connection, essential to liability, between a supplier’s price discrimination and the trade practices of a customer as far removed on the distributive ladder as Regal was from Standard.” 396 F. 2d, at 816. As we have noted above, we do not accept such an artificial limitation. If there is sufficient evidence in the record to support an inference of causation, the ultimate conclusion as to what that evidence proves is for the jury. Continental Co. v. Union Carbide, 370 U. S. 690, 700-701 (1962). Here the trial judge properly charged the jury that Perkins had the burden of showing that any damage to his business was proximately caused by Standard’s price discrimina-tions and there was substantial evidence from which the jury could infer causation. There was evidence that Signal received a lower price from Standard than did Perkins, that this price advantage was passed on, at least in part, to Regal, and that Regal was thereby able to undercut Perkins’ price on gasoline. Furthermore, there was evidence that Perkins repeatedly complained to Standard officials that the discriminatory price advantage given Signal was being passed down to Regal and evidence that Standard officials were aware that Perkins’ business was in danger of being destroyed by Standard’s discriminatory practices. This evidence is sufficient to sustain the jury’s award of damages under the Robinson-Patman Act. One other minor group of damages was found to be improper by the Court of Appeals and we conclude that this ruling was also erroneous. Perkins submitted some evidence tending to show that he as an individual had suffered financial losses because the two failing Perkins corporations (Perkins of Washington and Perkins of Oregon) were unable to pay him agreed brokerage fees for securing gasoline, rental on leases of service stations, and other indebtedness. The Court of Appeals, in order to give guidance to the trial judge at the proposed new trial, noted that, in its opinion, these damages were not proximately caused by Standard’s violations and that Perkins should not recover for these damages in a second trial. For this proposition the Court of Appeals cited Karseal Corp. v. Richfield Oil Corp., 221 F. 2d 358, 363, which held that “the rule is that one who is only incidentally injured by a violation of the antitrust laws,— the bystander who was hit but not aimed at, — cannot recover against the violator.” It is clear in this case, however, that Perkins was no mere innocent bystander; he was the principal victim of the price discrimination practiced by Standard. Since he was directly injured and was clearly entitled to bring this suit, he was entitled to present evidence of all of his losses to the jury. Moreover, it is obvious from the opinion of the Court of Appeals that this question was being decided, not because there was any reversible error at the first trial, but in order to give guidance for the conduct of any new trial. The record in this case does not show that the jury included an award for any of these minor items in its judgment. It is impossible to say that they were included because they were not covered in the trial judge’s charge to the jury. While the trial judge treated many items of damage specifically, there was no charge — either specific or general — upon which the jury could have felt free to include such items in its award. For this reason, the Court of Appeals could not have reversed the jury’s verdict in this case on this ground. Respondent has argued in its brief several minor trial rulings which it contends were in error. Most of these additional arguments were rejected by the Court of Appeals. We have examined the others and find them without merit. We therefore see no need to prolong this litigation which began nearly 10 years ago. The jury’s verdict and judgment should be reinstated. It is so ordered. Me. Justice Harlan took no part in the consideration or decision of this case. Section 2 of the Clayton Act, 38 Stat. 730, as amended, 49 Stat. 1526, 15 U. S. C. § 13, provides in pertinent part as follows: “(a) It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them . . . .” Branded Dealers were independent operators of Standard’s Signal and Chevron stations who marketed gasoline and oil under Standard’s brand names. During the claim period the Signal Branded Dealers had no connection with Signal Oil & Gas Co., which is involved in this litigation as a wholesaler. Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case? A. Yes B. No Answer:

songer_jurisdiction

D

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer". Ingridhutte Kurt WOKAN v. ALLADIN INTERNATIONAL, INC., Appellant. No. 72-2106. United States Court of Appeals, Third Circuit. Submitted Under Third Circuit Rule 12 (6) July 2, 1973. Resubmitted Under Third Circuit Rule 12(6) Sept.. 12, 1973. Decided Sept. 13, 1973. David S. Malis, Malis, Tolson & Malis, Marvin Krasny, Adelman & Lavine, Philadelphia, Pa., for appellant. Frederich H. Ehmann, Jr., Philadelphia, Pa., for appellee. Submitted Under Third Circuit Rule 12(6) July 2, 1973 Before GIBBONS and HUNTER, Circuit Judges. Resubmitted Under Third Circuit Rule 12(6) Sept. 4, 1973 Before GIBBONS, HUNTER and WEIS, Circuit Judges. OPINION OF THE COURT GIBBONS, Circuit Judge. In this diversity contract action, the defendant, Alladin International, Inc. (Alladin), appeals from the refusal of the district court to set aside a default judgment. The plaintiff, Ingridhutte Kurt Wokan (Ingridhutte), a West German glassware manufacturer, on April 20, 1972, filed a complaint in two counts. The first count sought $3,048.00, the price of goods actually delivered to Alladin. The second count sought $17,498.75 plus interest and storage charges, for goods ordered by Alladin, never delivered, but allegedly specially manufactured and not resalable. Process was served on Alladin’s president on May 2, 1972. Alladin did not respond in any manner, and a default judgment in the amount of $23,495.26 was entered on July 21, 1972. Thereafter, Ingridhutte issued execution attaching Alladin’s bank account at Fidelity Bank. Judgment was entered against the garnishee bank on August 17, 1972, in the amount of $9,796.36. This left an unsatisfied balance on the judgment of $13,698.90. Counsel for Alladin (who is also an officer of the corporation) learned on August 14, 1972, that the account at Fidelity Bank had been attached. That day he called Ingridhutte’s attorney, advising that the funds attached represented money which had been advanced to Alladin by two of his acquaintances for the purpose of permitting Alladin to make a 20% settlement offer to its creditors, and that such a settlement offer had been made to and accepted by Alladin’s creditors other than Ingridhutte. On August 22, Alladin filed a motion pursuant to Fed.R.Civ.P. 55(c) and 60(b) to set aside the default judgment. The first ground asserted for setting aside the default judgment was that it had been entered without notice to Alladin’s counsel, in violation of Rule 55(b) (2). This ground is entirely without merit. From the time the complaint was filed until August 14, 1972, there was no word from, never mind appear^ anee, on behalf of Alladin. See Port-Wide Container Co. v. Interstate Maintenance Corp., 440 F.2d 1195 (3d Cir. 1971). The second ground for setting aside the default judgment was that it resulted from “mistake, inadvertence, surprise, or excusable neglect.” Fed.R. Civ.P. 60(b)(1). Alladin’s moving papers did not dispute that it owed the $3,048.00 referred to in the first count. On a motion to set aside a default or a default judgment, the moving party-must show that he has a meritorious defense. 6 J. Moore, Federal Practice ¶ 55.10[1], at 55-233 (2d ed. 1972). The district court, therefore, properly declined to reopen the judgment on the first count. It did, however, on September 28, 1972, order that the default judgment be opened on the second count, conditioned upon Alladin posting a bond for $14,500.00 to secure the $13,698.90 unsatisfied portion of the judgment, with interest, should Ingridhutte prevail on the merits. Financially embarrassed, Alladin was unable to post any such bond. On October 17, 1972, it moved to set aside the September 28, 1972 order and to set aside the default judgment unconditionally. The district court denied this motion on October 18, 1972, and this appeal followed. We have been advised by counsel that thereafter on November 13, 1972, Alladin filed a petition under Chapter XI of the Bankruptcy Act, 11 U.S.C. § 701 et seq., for an arrangement with its creditors. So far as we know, the Chapter XI proceeding has not resulted in an adjudication in bankruptcy. We are advised that no steps have been taken with respect to the judgment pursuant to Section 67(a) of the Bankruptcy Act, 11 U.S.C. § 107(a). A motion pursuant to Rule 60(b)(1) for relief from a judgment is addressed to the sound discretion of the district court, and we may not disturb that court’s action in the absence of an abuse of discretion. Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 244 (3d Cir. 1951); Orange Theatre Corp. v. Rayherstz Amusement Corp., 130 F.2d 185, 187 (3d Cir. 1942), cert. denied, 322 U.S. 740, 64 S.Ct. 1057, 88 L.Ed. 1573 (1943). Here the facts relied upon to establish such “mistake, inadvertence, surprise, or excusable neglect” are, to say the least, weak. But the district court held them to be sufficient, and Ingridhutte has not urged by cross appeal that this holding was an abuse of discretion. The sole substantial issue on the appeal is the propriety of the condition to reopening. Rule 60(b) gives the district court explicit authority to impose terms upon the opening of a default judgment. Rarely, however, have the federal courts had occasion to discuss what those terms may be. The few cases which have dealt with the problem are collected in Annot., Propriety of Conditions Imposed in Granting Relief From Judgment Under Rule of Civil Procedure 60(b), 3 A.L.R.Fed. 956 (1970). The condition most commonly imposed is the payment of costs or attorneys fees. E.g., Hendricks v. Alcoa Steamship Co., 32 F.R.D. 169 (E.D.Pa.1963). The imposition of a condition that a bond be posted to secure any judgment is discussed in Thorpe v. Thorpe, 124 U.S.App.D.C. 299, 364 F.2d 692 (D.C.Cir.1966); there the district court entered an order vacating a default on condition that the defendant deposit in a joint savings account for himself and the plaintiff the amount demanded in the complaint, which actually exceeded the amount of the default judgment. The defendant, unable to make such a deposit, appealed. Judge Leventhal wrote: “It may also be appropriate, in some cases, for defendant to be required to post bond to secure the amount of the default judgment pending trial on the merits. However, the condition imposed in this case — that appellant place in a joint bank account, in escrow, not only the amount of the default judgment, but the maximum amount demanded by appellee in her complaint — is unusual, indeed, so far as we can ascertain, unprecedented. It goes beyond placing the parties in the position they were in before the default; it seeks, rather, to place them in the position they were in prior to the action that preceded, and precipitated, the litigation. Assuming, without deciding, that restoring the parties to the status quo ante the alleged wrong is appropriate in some cases, there is no showing of any justification for doing so in this ease. -x- *x- -x- When such an extraordinary condition is approved it must be accompanied by supporting findings to show that it represents a reasonable exercise of discretion. If appellant’s claim that he simply is unable to comply with the condition imposed is true, serious questions are raised, questions having an aura of denial of due process of law. See Societe Internationale, etc. v. Rogers, 357 U.S. 197, 209-210, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958), where the Supreme Court stated, in another context, that imposition of an ‘impossible’ condition of a litigant’s right to a trial on the merits raises constitutional difficulties.” Id. at 694-95. Judge Leventhal’s opinion in Thorpe v. Thorpe, supra, is as close as we have found to an authority in point. The order here, of course, is somewhat different in that it requires security only for the unsatisfied part of the judgment rather than for an amount in excess thereof equal to the original demand. The $9,796.36 obtained from Fidelity Bank was not affected by the order. As to that sum, apparently, it was intended that Alladin run the risk of not getting back any excess over the amount due on the first count if its defense on the second count should prevail. The security required was for the unpaid part of the judgment. We have the same difficulty with this condition to vacating the default as did Judge Leventhal with the condition imposed in Thorpe. We think it perfectly proper for a district court in an appropriate case to impose the condition to vacating a default judgment that the judgment holder not be deprived of any payment or security he has obtained as a result of the judgment. But it is difficult to imagine what set of circumstances would justify the imposition of a condition that the now disputed claim be made more secure than it was prior to the court’s action on the Rule 60(b) motion. There may be such circumstances, but they do not appear in this record. In Thorpe v. Thorpe, supra, the District of Columbia Circuit remanded for findings which might support the unusual condition imposed, and for consideration of other less drastic conditions. Possibly in that domestic dispute circumstances justifying a requirement of pre-judgment security could at a hearing appear. We do not think any such circumstances could appear in this commercial lawsuit. Nevertheless, because the district court’s action under Rule 60(b) is discretionary, we believe a remand is appropriate. As we said earlier, Alladin’s factual showing of “mistake, inadvertence, surprise, or excusable neglect” was rather thin. Quite possibly the court was led to the exercise of discretionary power to reopen in part because of a mistaken belief that the condition of pre-judgment security for the full amount of Ingridhutte’s claim could be imposed on this record. Since we hold otherwise, the district court should have an opportunity to reconsider the motion to vacate the default judgment on the second count. Nothing in this opinion shall be construed as a ruling upon the effect on the default judgment or the garnishment of Fidelity Bank of the Chapter XI proceeding. The case will be remanded to the district court for further proceedings consistent with this opinion. . Although the record is not clear, apparently there were no supersedeas of the garnish-ment judgment and the amount was paid over. . The record does not disclose, and the parties have not advised, whether this appeal is prosecuted by a debtor in possession pursuant to Section 342 of the Bankruptcy Act, 11 U.S.C. § 742, or by a receiver pursuant to Sections 343 and 2(a) (3) of the Act, 11 U.S.C. §§ 743,11 (a) (3). 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_respond1_3_2

I

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. UNITED STATES of America, Plaintiff-Appellee, v. Ishmael GALLOP, Defendant-Appellant. No. 86-5175. United States Court of Appeals, Fourth Circuit. Argued Oct. 9, 1987. Decided Jan. 28, 1988. Robert Leon Pierson, for defendant-appellant. Elizabeth Hartley Trimble, Asst. U.S. Atty. (Breckinridge L. Willcox, U.S. Atty., on brief), for plaintiff-appellee. Before RUSSELL, MURNAGHAN and ERVIN, Circuit Judges. MURNAGHAN, Circuit Judge: Ishmael Gallop appeals from a conviction after a jury trial on a count of bank larceny in violation of 18 U.S.C. § 2113(b). On April 15, 1986, a federal grand jury in the District of Maryland indicted Ishmael Gallop. Anthony R. Gallagher, a public defender, was designated as the defendant’s counsel. Magistrate Paul M. Rosenberg arraigned the defendant on April 26, 1986 at which time he pled not guilty. Subsequently, Gallagher and the United States Attorney’s Office worked out a plea agreement and the rearraignment was set for June 13th. At the rearraignment, Gallagher advised the district court that his client wished to strike the appearance of the federal public defender’s office. The defendant had complained to Gallagher that the office had not represented his interests adequately. Gallagher stated that there were obvious disagreements between himself and the defendant, and he felt that he would be unable to work with the defendant any longer as counsel. Finding that an irreconcilable difference existed, the court discharged the public defender. The court also granted a motion to postpone the trial. On June 19, 1986, the court appointed James F. Garrity to represent the defendant pursuant to the Criminal Justice Act. Garrity filed a motion to suppress the defendant’s confession, challenging the volun-tariness of the statement. The district judge denied the motion after a hearing on September 11,1986. The suppression issue was reopened for additional testimony on September 18th and September 22nd, but was again denied. On September 18th, Garrity informed the court that the defendant no longer wished to be represented by him. Garrity told the court that the relationship between himself and Gallop had entirely broken down. The defendant stated that his second attorney had done an inadequate job because he should have sought a postponement of the first suppression hearing until all parties were present. The district judge noted that the defendant had previously discharged his first counsel and indicated his concern that the defendant was attempting to obstruct the orderly procedure of the court. Under the circumstances, the district judge gave the defendant the choice of proceeding pro se or continuing with his second attorney. When the defendant indicated that he did not know how to represent himself, the court said that it would proceed with Garrity as counsel. Garrity then indicated that he had another problem relating to his representation of the defendant but that the problem could not be revealed because of the confidential relationship between attorney and client. He represented that the problem might arise at trial. The district judge noted that the issue could be taken up at trial if it ever arose. On September 22nd, a day before trial, the defendant renewed his request for a new attorney which was again denied. The district judge noted that Garrity had done a competent job representing the defendant. The defendant then indicated that he had no choice but to represent himself. The court asked Garrity to remain as a backup counsel. On the day of trial, the defendant requested a postponement stating that he had not had adequate time to prepare a defense. The court denied the motion for postponement and again denied the request for another attorney. The defendant was convicted by a jury of bank larceny and was sentenced to a term of incarceration of ten years and an imposition of $50 special assessment. I. An essential element of the Sixth Amendment’s protection of right to counsel is that a defendant must be afforded a reasonable opportunity to secure counsel of his own choosing. Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932); United States v. Burton, 584 F.2d 485, 488-89 (D.C.Cir.1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34 (1979). However, the right to counsel of defendant’s choosing is not absolute. Sampley v. Attorney General of North Carolina, 786 F.2d 610, 612-13 (4th Cir.1986), cert. denied, — U.S. —, 106 S.Ct. 3305, 92 L.Ed.2d 719 (1986). Such right must not obstruct orderly judicial procedure and deprive courts of the exercise of their inherent power to control the administration of justice. Id. at 613; United States v. Bragan, 499 F.2d 1376, 1379 (4th Cir.1974). An indigent defendant, moreover, has no right to have a particular lawyer represent him and can demand a different appointed lawyer only with good cause. United States v. Allen, 789 F.2d 90, 92 (1st Cir.1986), cert. denied, — U.S. —, 107 S.Ct. 164, 93 L.Ed.2d 103 (1986). The determination of whether or not the motion for substitution of counsel should be granted is within the discretion of the trial court and the court is entitled to take into account the countervailing state interest in proceeding on schedule. Morris v. Slappy, 461 U.S. 1, 13, 103 S.Ct. 1610, 1617, 75 L.Ed.2d 610 (1983); Sampley, 786 F.2d at 613. In evaluating whether the trial court abused its discretion in denying defendant’s motion for substitution of counsel, the First and Ninth Circuits have held that the appellate courts should consider the following facts: Timeliness of the motion; adequacy of the court’s inquiry into the defendant’s complaint; and whether the attorney/client conflict was so great that it had resulted in total lack of communication preventing an adequate defense. Allen, 789 F.2d at 92; United States v. Whaley, 788 F.2d 581, 583 (9th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 458, 93 L.Ed.2d 404 (1986). In the present case, the motion for substitution of counsel was made only five days prior to trial. As the trial court noted, the defendant had already been granted a similar motion which resulted in the trial being postponed for three months. In United States v. Mastroianni, 749 F.2d 900 (1st Cir.1984), the court held that the trial court did not abuse its discretion in denying a motion by an indigent defendant to substitute counsel four days before commencement of trial when there was little or no assurance that substitute counsel would be adequately prepared in time, and the defendant had been represented throughout by the federal public defender’s office. Id. at 913-14. Likewise, the record in this case indicates a lack of any assurances by the defendant that delay would not result from such substitution. A request for change in counsel cannot be considered justifiable if it proceeds from a transparent plot to bring about delay. See Morris v. Slappy, 461 U.S. at 13, 103 S.Ct. at 1617. The record also indicates that the district judge adequately inquired into the defendant's complaint with regard to his second counsel. According to the defendant’s testimony, he sought a substitution of counsel because of inadequate representation by Garrity. The defendant asserted that if Garrity had been adequately representing him, he would have asked for a postponement of the suppression hearing until all witnesses were present. The defendant has clearly stated that he was not seeking a new counsel “because no personal conflict or whatsoever” (sic). The failure or refusal by Garrity to seek postponement of the hearing clearly did not constitute inadequate representation, especially in light of the fact that the remaining law enforcement witnesses to the defendant’s confession testified at subsequent suppression hearings. The district judge, thus, acted within his discretion in rejecting the line of argument advanced and finding that Garrity’s representation had been competent. More troublesome, however, is the statement by the defense counsel that he believed that the relationship between himself and the defendant had entirely broken down and that there were additional problems in continuing the representation that could not be disclosed because of the confidential relationship. The district judge, with the concurrence of Garrity, decided that the issue could be taken up at trial if it ever arose. The failure by the trial court to proceed further to resolve the issue was not an abuse of discretion, especially when there is no evidence in the record to indicate that the question was reasserted during the trial, see Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir.1976); United States v. Morrissey, 461 F.2d 666, 670 (2d Cir.1972), or that it impaired Garrity’s performance as stand-by counsel. There is also no evidence in the record to indicate that the conflict between Garrity and the defendant was so great that it resulted in total lack of communication. Indeed, Garrity assisted the defendant during the trial and cross-examined the FBI agent who had witnessed the defendant’s confession. II. The defendant, in addition to the objections already dealt with, also complains that the trial court did not properly determine on the record whether the waiver was intelligent, knowing, and voluntary. He argues that the trial court’s failure to examine the effectiveness of the waiver denied him the Sixth Amendment right to counsel. As other circuits have held, once the trial court has appropriately determined that a substitution of counsel is not warranted, the court can insist that the defendant choose between continuing representation by his existing counsel and appearing pro se. United States v. Padilla, 819 F.2d 952, 955 (10th Cir.1987); United States v. Welty, 674 F.2d 185, 188 (3d Cir.1982); McKee v. Harris, 649 F.2d 927, 930-31 (2d Cir.1981), cert. denied, 456 U.S. 917, 102 S.Ct. 1773, 72 L.Ed.2d 177 (1982); Wilks v. Israel, 627 F.2d 32, 35-36 (7th Cir.1980), cert. denied, 449 U.S. 1086, 101 S.Ct. 874, 66 L.Ed.2d 811 (1981); United States v. Davis, 604 F.2d 474, 483 (7th Cir.1979); Maynard, 545 F.2d at 278. A refusal without good cause to proceed with able appointed counsel is a “voluntary” waiver. Maynard, 545 F.2d at 278. Since the trial judge properly exercised his discretion in finding that the defendant did not have justifiable reasons for requesting a further substitution of counsel, Gallop’s argument that his waiver was not voluntary is without merit. Even if the choice to proceed pro se is voluntary, however, the court must still ensure that the decision to proceed pro se is made knowingly and intelligently. Padilla, 819 F.2d at 956; Welty, 674 F.2d at 188. The mere fact that an accused may understand that he has right to counsel and desires to waive the right does not automatically end the court’s responsibility. Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948). As the Supreme Court noted in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975): Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” Id. at 835, 95 S.Ct. at 2541 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942)). While the Faretta Court recognized the absolute right of a defendant to represent himself as long as that decision is made knowingly, intelligently, and voluntarily, it did not lay down detailed guidelines concerning what tests or lines of inquiry a trial judge is required to conduct to determine whether the defendant’s decision was “knowing and intelligent.” The circuit courts have split on the type of record necessary to establish whether a defendant’s waiver of counsel is knowing and intelligent. The Third Circuit requires the trial judge to make a searching inquiry on the record and the failure to do so would be a reversible error. See Welty, 674 F.2d at 192-93. In the Sixth Circuit, the court affirmed the conviction of a defendant who waived his right to counsel without the benefit of a formal inquiry, but it exercised its supervisory powers and now requires the district courts to follow the model inquiry set forth in 1 Bench Book for United States District Judges 1.02-2 (3d ed. 1986). United States v. McDowell, 814 F.2d 245, 249-50 (6th Cir.1987); see also United States v. Bailey, 675 F.2d 1292, 1300 (D.C.Cir.1982), cert. denied sub nom. Walker v. United States, 459 U.S. 853, 103 S.Ct. 119, 74 L.Ed.2d 104 (1982) (exercising supervisory power to enjoin upon the district court the practice of making clear on the record). In contrast, in the majority of the circuits, including the Fourth Circuit, the trial judge is merely required to determine the sufficiency of the waiver from the record as a whole rather than from a formalistic, deliberate, and searching inquiry. See Fitzpatrick v. Wainwright, 800 F.2d 1057, 1065 (11th Cir.1986); Richardson v. Lucas, 741 F.2d 753, 756-57 (5th Cir.1984); United States v. Hafen, 726 F.2d 21, 25-26 (1st Cir.1984), cert. denied, 466 U.S. 962, 104 S.Ct. 2179, 80 L.Ed.2d 561 (1984); United States v. Kimmel, 672 F.2d 720, 721-22 (9th Cir.1982); United States v. Trapnell, 638 F.2d 1016, 1026-27 (7th Cir.1980); United States v. Tompkins, 623 F.2d 824, 828 (2d Cir.1980); United States v. King, 582 F.2d 888, 890 (4th Cir.1978); United States v. Pilla, 550 F.2d 1085, 1093 (8th Cir.1977), cert. denied, 432 U.S. 907, 97 S.Ct. 2954, 53 L.Ed.2d 1080 (1977). While those cases have expressed the appeal courts’ preference that the trial judge discuss with the defendant in open court the dangers and disadvantages of self-representation, the failure to do so would not automatically be a reversible error. See McDowell, 814 F.2d at 249. Although the Fourth Circuit requires no particular form of interrogation, King, 582 F.2d at 890, we have indicated that “[a]t a minimum the district court should, before permitting an accused to waive his right to counsel, explain the charges and the possible punishments....” Aiken v. United States, 296 F.2d 604, 607 (4th Cir.1961). The district judges also should “develop on the record the educational background, age and general capabilities of an accused, so that the ability of an accused to grasp, understand and decide is fully known” to the trial court and fully disclosed by the record. Townes v. United States, 371 F.2d 930, 934 (4th Cir.1966), cert. denied, 387 U.S. 947, 87 S.Ct. 2083, 18 L.Ed.2d 1335 (1967). The failure to do so, however, would not automatically render the proceedings unconstitutional. Aiken, 296 F.2d at 607. In the present case, the district judge did not specifically discuss with the defendant the dangers or disadvantages of self-representation. Without a specific inquiry by the district court on the record, or other facts which show that Gallop had sufficient background or had been apprised of his rights by some other source, a determination that the defendant made his choice “with eyes open” cannot be made by a reviewing court without speculation. What is clear in the instant case is that the defendant had tried to change his counsel for the second time only five days prior to trial. His refusal to proceed with Garrity was without good cause. The district judge properly noted his concern that the defendant was trying to obstruct the orderly procedure of the court. The defendant was also adamant in his rejection of Garrity. In determining the sufficiency of the waiver, the court should be entitled to take into account not only the countervailing advantage in proceeding on schedule, see Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610, but also the defendant’s insistence that he not be represented by a particular counsel. See United States v. Leifried, 732 F.2d 388, 390 (4th Cir.1984). The defendant cannot be allowed to continue the practice, with little or no apparent reason, of hiring and firing attorneys. At the same time, the court should not force such a capricious defendant to cooperate with an attorney if he is as adamant as the defendant here was that he cannot proceed with the appointed representation. The proper procedure, though not necessarily the exclusive one, is to order the defendant, as the district court had done in the instant case, to proceed pro se but also to order the appointed counsel to remain as a backup. We believe that there must be some limit to the defendant’s ability to manipulate the judicial system even if he is unknowing and unintelligent. While a knowing, intelligent, and voluntary waiver of counsel generally is required before a defendant is allowed to proceed pro se, where a district judge finds, as was done implicitly in the instant case, that the defendant may reject every counsel for the purposes of delaying the trial, the court must be allowed to impose restraints. Therefore, even if the district court had failed to inquire into the knowingness and intelligence of the defendant’s waiver, we find that it was not a reversible error, given that generally adequate assistance of counsel was guaranteed. III. The defendant was convicted of bank larceny pursuant to 18 U.S.C. § 2113(b). As an element of the crime and as a prerequisite to federal jurisdiction, the government must prove that the institution from which the money was stolen was a bank as defined in 18 U.S.C. § 2113(f). United States v. Wingard, 522 F.2d 796, 797 (4th Cir.1976), cert. denied, 423 U.S. 1058, 96 S.Ct. 792, 46 L.Ed.2d 648 (1976). In the case at bar, the government sought to prove this element by showing that the victim bank, Annapolis Bank and Trust Company, was insured by the FDIC. It introduced the following testimony of Randall Mark Roby, an audit officer from the Mercantile-Safe Deposit: Q. What is the relationship between the Mercantile-Safe Deposit and Trust Company to the Annapolis Bank and Trust Company? Roby. Mercantile-Safe Deposit and Trust Company is the lead bank for Mercantile Bank Shares Corporation and provides the auditing services for the affiliates within the holding company. Q. And now this bank and trust is a member of that holding company, is that right? Roby. Yes, ma’am. Q. What conclusions did you reach after your audit? Roby. ... The twenty-one thousand, to the best of our abilities had been removed from the bank premises. Q. What did you do when you reached those conclusions? Roby. ... We informed the FBI, the FDIC a bonding company and local police authorities. Q. In December 1985 were the, was the Mercantile and its subsidiaries insured by the Federal Deposit Insurance Company? Roby. Yes, ma’am. The defendant argues that this testimony, by itself, was insufficient to establish that the Annapolis Bank and Trust Company was insured by the Federal Deposit Insurance Corporation. He argues that no certificate of insurance showing that the insurance was current as of the day of the theft was introduced. To support this argument, the defendant’s brief cites United States v. Ford, 642 F.2d 77 (4th Cir.1981), cert. denied, 451 U.S. 917, 101 S.Ct. 1996, 68 L.Ed.2d 310 (1981). In that case, this Court found that a testimony from the branch manager and a certificate of insurance “satisfied the minimum requirements for establishing federal jurisdiction under the bank robbery statute ...” Id. at 78. As the government correctly notes in its brief, while a certificate of insurance was introduced in Ford, one was not introduced in United States v. Safley, 408 F.2d 603 (4th Cir.1969), cert. denied, 395 U.S. 983, 89 S.Ct. 2147, 23 L.Ed.2d 772 (1969). In Safley, this Court held that a testimony from a bank employee that the deposits “are” insured by the FDIC was sufficient evidence from which “the jury could draw the reasonable inference that the bank was insured at the time of the robbery.” Id. at 605. See also United States v. Taylor, 728 F.2d 930, 933 (7th Cir.1984) (uncontroverted testimony by bank’s vice president was sufficient); United States v. Baldwin, 644 F.2d 381, 385 (5th Cir.1981) (either the certificate of insurance or uncontradicted testimony was sufficient); United States v. Campbell, 616 F.2d 1151, 1153 (9th Cir.1980), cert. denied, 447 U.S. 910, 100 S.Ct. 2998, 64 L.Ed.2d 861 (1980) (uncontradicted testimony of two bank employees was sufficient); United States v. Williams, 592 F.2d 1277, 1281-82 (5th Cir.1979) (testimony from two bank officers was sufficient). In stating that the evidence presented, including a certificate of insurance, satisfied the minimum requirements in Ford, we did not mean to imply that a certificate of insurance was a sine qua non of proof of jurisdiction. Gallop also asserts that the evidence was inadequate since Roby never testified as to whether Annapolis Bank and Trust Company was a subsidiary of Mercantile. Roby, however, did testify that Mercantile-Safe Deposit and Trust Company is the lead bank for Mercantile Bank Shares Corporation and provides the auditing services for the affiliates within the holding company. He stated that Annapolis Bank and Trust Company is a member of that holding company. He also testified that Mercantile and its subsidiaries were insured by the Federal Deposit Insurance Company. When the appeals court determines the sufficiency of evidence, it should view the evidence in a light most favorable to the prosecution. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1941). Therefore, although what was presented by the government in this case is extremely meager, we believe that there was sufficient evidence from which the jury could reasonably infer that Annapolis Bank and Trust was a subsidiary of Mercantile-Safe Deposit and Trust Company. IV. For the foregoing reasons, we affirm the defendant’s conviction. AFFIRMED. . 18 U.S.C. § 2113(f) provides as follows: As used in this section the term "bank” means any member bank of the Federal Reserve System, and any bank, banking association, trust company, savings bank, or other banking institution organized or operating under the laws of the United States, and any bank the deposits of which are insured by the Federal Deposit Insurance Corporation. . It does not appear from the record that the defendant had challenged the insufficiency of evidence during the trial. Generally, absent plain or fundamental error, the court need not consider on appeal legal points which were available to the appellant but not pressed for the district court’s consideration. United States v. Seidlitz, 589 F.2d 152, 160 (4th Cir.1978), cert. denied, 441 U.S. 922, 99 S.Ct. 2030, 60 L.Ed.2d 396 (1979). However, under § 2113, a bank must be federally insured in order to satisfy not only an element of the crime but to confer federal jurisdiction on the court. United States v. Harris, 530 F.2d 576, 578 (4th Cir.1976). Jurisdictional questions are of primary consideration and can be raised at any time. McGrath v. Kristensen, 340 U.S. 162, 167, 71 S.Ct. 224, 228, 95 L.Ed. 173 (1950). . It is unclear whether the prosecutor, in asking this question, was referring to Mercantile-Safe Deposit and Trust Company or to Mercantile Bank Shares Corporation. However, since the FDIC insures deposits held by banks, he was probably referring to Mercantile-Safe Deposit and Trust Company. . Despite the government’s assertions to the contrary, Roby never testified that Mercantile and its affiliates were insured by the FDIC. .There is no evidence in the record which indicates that the judge, in framing his instructions, took judicial notice of the publicly well-known association as parent and subsidiary of the Mercantile-Safe Deposit and Trust Company and the Annapolis Bank and Trust Company. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:

songer_respond1_3_3

G

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "O" thru "R"". Your task is to determine which specific federal government agency best describes this litigant. Application of William BALDWIN for Appointment of Counsel, William Baldwin, Appellant, and John M. Espinoza, Petitioner-Appellant, v. Charles L. BENSON, Warden, United States Penitentiary, Leavenworth, Kansas, United States Parole Commission, Griffin B. Bell, Attorney General of the United States, and United States Bureau of Prisons, Respondents-Appellees. Nos. 77-1739, 77-1794. United States Court of Appeals, Tenth Circuit. Sept. 28, 1978. Clayton D. Knowles, Denver, Colo., for appellant. Leonard D. Munker, Federal Public Defender, on brief, for petitioner-appellant John M. Espinoza. Roger M. Theis, Asst. U. S. Atty., Topeka, Kan. (James P. Buchele, U. S. Atty., Topeka, Kan., on brief), for respondents-appel-lees. Before SETH, Chief Judge, and HOLLOWAY, McWilliams, BARRETT, DOYLE, McKAY and LOGAN, Circuit Judges. WILLIAM E. DOYLE, Circuit Judge. The question here presented is whether a person who is charged with violation of parole is entitled, as a matter of right, to appointed counsel in parole revocation proceedings before both the Commission and court, under 18 U.S.C. § 4214. Both of these defendants have been charged with parole violation and in the applicable proceedings have had parole revoked following hearings in both cases. This is the only question raised in the appeal of William Baldwin. The case of John M. Espinoza is an appeal from the denial of a petition for writ of habeas corpus which raised other points besides the right of counsel. Both appellants have been in the United States Penitentiary at Leavenworth, Kansas, and the prior court proceedings from which the appeals are taken occurred in the United States District Court for the District of Kansas. BALDWIN PROCEEDINGS William Baldwin was originally convicted of bank robbery and was sentenced to 18 years in prison. He commenced serving his sentence on February 20, 1967, and was released on parole May 15, 1974. He originated in Connecticut and was supervised in that district. His offense was theft, on November 19, 1976, of $1,154.00 from a retail shop in Manchester, Connecticut. He pleaded nolo contendere to this on April 20, 1977, and was fined $250.00. On April 28, 1977, a parole revocation warrant was issued for Baldwin and this was executed on May 2, at which time he was arrested and placed in the Correctional Center at Hartford, Connecticut, without preliminary hearing on revocation. Thereafter, he was transferred to Leavenworth, where the parole revocation hearing took place. In connection with the parole violation proceeding, he requested the appointment of counsel. The case is entitled: In the Matter of the Application of William Baldwin for the Appointment of Counsel. On June 10,1977, a memorandum was filed by Judge Arthur J. Stanley, Jr., denying the request for counsel. Baldwin’s request for rehearing was also denied July 19, 1977. The validity of the order denying counsel is before us on appeal. ESPINOZA PROCEEDINGS Espinoza’s conviction was bank robbery. Following conviction on March 29, 1966, he was sentenced to 15 years in prison. Release on parole was on April 15, 1971. On August 12, 1976, however, he was arrested on a parole violation warrant. Following his being held in custody at a number of federal institutions, he was finally transferred to the Federal Penitentiary at Leavenworth, Kansas. There he was charged with parole violation for having allegedly committed (1) assault and battery in June 1972, to which he pled guilty on September 14, 1972, at San Jose, California; (2) two drunk driving charges, one in September 1972, and the other in November 1972, to both of which he pled guilty. Since these were misdemeanors, it was not considered that they were sufficiently serious to require parole revocation. On March 1, 1976, he was arrested in San Jose and charged with receiving stolen property and grand theft. He entered a plea of nolo contendere on June 2, 1976 to two counts of receiving stolen property. It was understood that these would be reduced to misdemeanors. On July 1, 1976, he was sentenced to 90 days in the county jail. On August 12, 1976, he was arrested for violation of federal parole. Here again there was no preliminary revocation hearing held. Prior to the hearing on the violation of parole, he requested the appointment of counsel to assist him at the revocation hearing. However, this was denied, as shown by the memorandum of Judge Stanley, filed November 23, 1976. Subsequently, there was a hearing on the revocation and parole was revoked December 22, 1976. In June 1977, Espinoza requested that counsel be appointed to aid him in a habeas corpus proceeding. The Federal Public Defender’s office from Kansas was appointed to represent him. The proceeding was entitled: John M. Espinoza v. Charles L. Benson, Warden, etc., et al., No. 77-3187. The petition for habeas corpus was filed with the aid of the Public Defender’s office. This challenged the parole revocation on a number of grounds including the failure to appoint counsel for the revocation hearing. The petition for permanent writ was denied August 16, 1977, by Judge Richard D. Rodgers. Thereafter, notice of appeal was filed, and an order was entered allowing the appeal on August 31, 1977. THE DISTRICT COURT DECISION The trial court held that notwithstanding adoption by the Congress of 18 U.S.C. § 4214, that the appointment of counsel in a revocation proceeding continues to be within the discretion of the trial judge. The reason given was that the provision of the Parole Act which provides that counsel shall be provided adds the statement “pursuant to 18 U.S.C.A. § 3006A.” The trial court said the term “pursuant to” (in § 4214) means “in accordance with.” “The language of subsection (g) of 18 U.S.C. § 3006A is clear and unambiguous in providing the appointment of counsel for a person subject to revocation of parole when the court determines that the interests of justice so require.” The court cited the pre-Parole Aet decisions of the Supreme Court, Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) and Morrissey v. Brewer, 408 U.S. 471, 490, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). These cases were, of course, decided in the context of § 3006A(g), which expressly authorized the exercise of discretion in appointment of counsel. The conclusion was that the interest of justice did not call for appointment of counsel in the instant case. I. Before the enactment of the Parole Commission and Reorganization Act, which is commonly referred to as the Parole Act, the appointment of counsel in revocation proceedings was left to the discretion of the court or magistrate having jurisdiction of the case. See 18 U.S.C. § 3006A. The government contends that the discretionary aspect continues under the new law. One reason for this is that the court decisions have shown reluctance toward appointing counsel in parole revocation proceedings. The Supreme Court has held, however, that the Sixth and the Fourteenth Amendments require the state and the federal government to appoint counsel for indigents accused of crime. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); and Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), which requires appointment of counsel for an indigent defendant at every stage of a criminal proceeding which involves substantial rights. But the Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), ruled that parole revocation is not part of a criminal prosecution so as to require the appointment of counsel in these proceedings. The reasoning was that it deprived the parolee of less than the absolute liberty enjoyed by every citizen and it deprived him of only the conditional liberty dependent on observance of special parole restrictions. Morrissey did not decide the question whether the parolee is entitled to the assistance of counsel if he is indigent. The present law was enacted subsequent to Morrissey v. Brewer, supra. It was in that background that the Parole Act was adopted. Although it refers generally to § 3006A of the Criminal Justice Act, it provides that for those who are financially unable to hire counsel, counsel shall be provided pursuant to the Criminal Justice Act. Consistent with this, the Act specifically lists and enumerates the rights of the parolee, procedural and substantive, including the right to counsel at preliminary revocation proceedings as well as final ones. The Supreme Court’s most recent decision in this general subject area, Moody v. Dag-gett, 429 U.S. 78, 84-85, 97 S.Ct. 274, 277, 50 L.Ed.2d 236 (1976), through the Chief Justice, commented on the right to counsel under § 4214(b)(1) and recognized the right to counsel under that related section by stating that the parolee is entitled to assistance of appointed counsel if requested. It was there said: The 1976 Act and accompanying regulations, [28 CFR § 2.1 et seg.] (1976), incorporate the former procedures with few modifications. Under current law, the Parole Commission reviews the parole violator warrant within 180 days of its issuance, 18 U.S.C.A. § 4214(b)(1) [June 1976 Supp.]; the parolee, after notification of the impending review, is now entitled to assistance of appointed counsel, if requested, in preparing his written response. 18 U.S.C.A. § 4214(b)(1), (a)(2)(B) [June 1976 Supp.]. The 1976 Act also abolishes the annual status review formerly required. Previously it was general practice to defer execution of the warrant to completion of the subsequent sentence. It is now firm Commission policy that unless “substantial mitigating circumstances” are shown, the parole violator term of a parolee convicted of crime is to run consecutively to the sentence imposed for the subsequent offense. 28 CFR § 2.47(c) (1976). (Emphasis supplied). II. The legislative history of the Act shows that the Congressional intent was to provide counsel in all revocation proceedings unless the parolee waives such right. The House Conference Committee stated on page 34 of the Conference Report, reprinted in (1976) U.S.Code Cong. & Admin.News, pp. 351, 366, that “both the preliminary and revocation hearing shall be conducted in accordance with the following procedures”: (b) the right to be represented by retained counsel or if he is unable to retain counsel, counsel shall be provided pursuant to the Criminal Justice Act (18 U.S.C. 3006A) or another representative as provided by rules and regulations. On page 21 of the Report, it is said: In the area of parole decision-making, the legislation establishes clear standards as to the process and the safeguards incorporated into it to insure fair consideration of all relevant material, including that offered by the prisoner. The legislation provides a new statement of criteria for parole determinations, which are within the discretion of the agency, but reaffirms existing caselaw as to judicial review of individual case decisions. In the next paragraph the Report describes the provisions for appointment of counsel as follows: The legislation also reaffirms caselaw insuring a full panoply of due process to the individual threatened with return to prison for violation of technical conditions of his parole supervision, and provides that the time served by the individual without violation of conditions be credited toward service of sentence. It goes beyond present law in insuring appointment of counsel to indigents threatened with reimprisonment. (Emphasis supplied). Prior to enactment the Senate version of this measure provided for optional appointment under the Criminal Justice Act. The House version required retained or appointed counsel unless waived by the parolees. It was said by Representative Kastenmeier on the floor of the House: * * * The two Houses were in disagreement over the role of appointed counsel in revocation hearings. The House bill held that revocation of parole entailed a serious possible deprivation of liberty which required that the parolee have the benefit of counsel in order to be able to marshal his arguments and organize his defense. The Senate agreed that this was a reasonable position, and the Conference does provide for counsel at revocation proceedings. 122 Cong.Rec. H1500 (March 3, 1976). III. The wording of 18 U.S.C. § 4214(a)(2)(B) shows an intent on the part of Congress to confer on the parolee a right to counsel unless the parolee knowingly and intelligently waives such representation. The enacted provision reads as follows: Opportunity for the parolee to be represented by an attorney (retained by the parolee, or if he is financially unable to retain counsel, counsel shall be provided pursuant to section 3006(A) or, if he so chooses, a representative as provided by rules and regulations, unless the parolee knowingly and intelligently waives such representation. Use by Congress of the word “shall” and of the words which require that the parolee waive counsel knowingly and intelligently are cogent evidence of this intent on the part of Congress. The quoted section is a part of the procedural provisions of the Act as to hearings to be conducted by the Parole Commission, the giving of notice as to violations and as to the time, place and purpose of the scheduled hearing, provision for appeal, the right of the parolee to testify and present witnesses, his opportunity to be apprised of the evidence against him and to confront and cross-examine adverse witnesses if he so requests. It also provides for subpoenaing witnesses and describes the proceedings applicable to subsection (B). The government’s argument that the right to counsel in these proceedings continues to be subject to the discretion of the court is based on the reference in § 4214(a)(2)(B) to § 3006A. Section 3006A is the Criminal Justice Act, the various sections of which detail the procedure for appointment of counsel in criminal prosecutions. Subsection (g) of that Act states that persons subject to revocation of parole may be furnished representation pursuant to the Criminal Justice plan when the magistrate or the judge determines that the interests of justice so require. The government’s position is that this general reference to the Criminal Justice Act resulted in resurrecting the provision of the Act which makes appointment of counsel discretionary; that the matter of appointment of counsel continues to be a matter of discretion and not of right. This argument disregards the use of “shall” in the new Act and disregards as well the many evidences that Congress intended for the parolee whose parole was being revoked to have the right to demand or waive counsel. If Congress had intended for the law to remain the same, it is unlikely that it would have couched § 4214(a)(2)(B) in terms like “shall.” Nor would it have provided for existence of the right unless waived. Furthermore, Congress would not have, on the one hand, granted to the parolee a right to have counsel, while simultaneously nullifying the right by deferring generally to the Criminal Justice Act. The terms of the Act considered as a whole are at odds with the construction which the government contends should be given. The new Parole Act undertakes to provide for due process at every stage of the proceedings and in this connection it provides for the right to counsel at each stage. Thus, even a revocation which is pursuant to § (b)(1), which is based on a conviction for a federal, state or local crime subsequent to the granting of parole, notwithstanding that it constitutes probable cause for the revocation, nevertheless, requires a review by the Commission. It also requires that the parolee receive notice of the pending review and an opportunity to submit a written application containing information as to the disposition of the detainer (resulting from the conviction which is the basis for the parole violation). Section (b)(1) further states that the parolee shall have counsel as provided in subsection (a)(2)(B) unless it is waived to assist him in the preparation of such application. If, in connection with revocation based on conviction the Commission needs additional information, notice must be given to the parolee. Also, he must be allowed to appear and testify and, unless waived, shall have counsel as provided in subsection (a)(2)(B). In the situation in which the alleged violator is taken by warrant and knowingly and intelligently waives his right to a hearing under subsection (A), he is entitled to counsel under subsection (c), where he waives preliminary hearing and where the final revocation hearing is held within 90 days. The point we make is that counsel is provided for not only at the revocation hearing, but in connection with most other actions which are taken incident to such revocation. All of this we say refutes the government’s argument that the right to counsel is hedged or conditioned. Instead it evidences intent by Congress that, unless waived, the right exists throughout the proceedings. IV. A line of decisions of this court, most of which are unpublished, pursue a position opposite to that which we take here. See Robinson v. Benson, 570 F.2d 920 (10th Cir. 1978); In the Matter of the Application of Dale E. Crowder for Appointment of Counsel, No. 76-2103 (10th Cir., June 10, 1977); In the Matter of the Application of Thomas A. Quirk for Appointment of Counsel, No. 76-1578 (10th Cir., December 7, 1976). Cf. Coronado v. United States Board of Parole, 551 F.2d 275 (10th Cir. 1977). With the exception of Robinson v. Benson, supra, these are summary affirmance cases. All of these decisions dispose of the issue on the ground that the general reference in § 4214(a)(2)(B) to § 3006A, the Criminal Justice Act, perpetuated the old law. One subsection of § 3006A, subsection (g), provides for discretionary appointment of counsel. If the statute had been written so as to refer specifically to subsection (g) of § 3006A, the argument of the government would be better supported. As it is, the reference contained in § 4214(a)(2)(B) is to § 3006A alone. It is then a general reference to the machinery contained in the Criminal Justice Act and brings into play the machinery of that Act like manner of appointment and other administration. In our unpublished decision, In the Matter of Ronald D. Richardson for Appointment of Counsel, No. 76-1786 (10th Cir., October 20, 1976), this court reiterated that no right to counsel existed. It said: The Supreme Court has held that there is no per se requirement of appointment of counsel for indigents in the context of a parole revocation setting. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). However, 18 U.S.C.A. § 4214(a)(2)(B) and 18 U.S.C. § 3006(A) [3006A] provide for discretionary appointment of counsel where a court determines that the interests of justice so require. The district court noted that appellant’s admission of conviction of another crime would be sufficient to justify revocation of parole, regardless of appellant’s intention to dispute charges listed on the warrant. Cotner v. United States, 409 F.2d 853 (10th Cir. 1969). On this basis, the district court determined that the interests of justice did not require appointment of counsel in appellant’s case. This is somewhat representative of the basis on which these decisions have proceeded, which is that they assume that 18 U.S.C. § 4214(a)(2)(B) incorporates by reference 18 U.S.C. § 3006A(g). As noted above, they fail to take into account that subsection (g) is not mentioned in the new enactment. The opinion of the Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), continues to be cited, notwithstanding that it is no longer law. We quote from Ronald D. Richardson, supra, because it is representative of the way that the others are handled. Because these cases are not in accord with the Act of Congress, they can no longer be regarded as authority. The explanation for the resilience of the discretion rule in parole proceedings is perhaps attributable to the fact that the parole status has long been regarded as a privilege, which can be revoked at will. Due process in this context has not been considered a problem by the courts, and undoubtedly this is why the courts have been slow to accept the dictates of the 1976 Parole Act, even though it defines the rights of parolees in strong terms. V. Finally, counsel for the government have filed a “Suggestion of Mootness” in respect to both William Baldwin, appellant, and John M. Espinoza, petitioner-appellant. As to Baldwin, it is said that following a regular review hearing in March 1978, the Parole Commission ordered that Baldwin be reparoled effective June 8, 1978. Subsequently, Baldwin was released on parole and is now under parole supervision. Espinoza, it is said, was granted parole on April 25, 1978, “to the Northern District of California.” The government claims that it is axiomatic that a concrete and continuing case or controversy must exist in order to allow a judicial resolution of the issues presented by a case, citing DeFunis v. Ode-gaard, 416 U.S. 312, 316, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1971), and North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971). It is also pointed out that since neither appellant is in confinement, the required concrete case is not present. We must disagree with the government’s position. See Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). There Sibron was convicted and sentenced to six months. He completed service of the six-month sentence, and it' was contended that the case became moot when he was released under St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199 (1943). The Court «ruled, however, that serving the sentence did not cause mootness. It rejected the proposition that there was no longer subject matter on which the judgment of the court could operate. The Supreme Court noted that most criminal cases involve adverse collateral legal consequences, and so the mere possibility that this will be the case is enough to preserve a criminal case from ending “ignominiously in the limbo of mootness.” The fact that the conviction could be used in New York for impeachment purposes was regarded as enough to keep the litigation alive. The Court said that the case of St. Pierre had to be read in the light of later cases to mean that a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will flow from the challenged conviction. As to continued jurisdiction to entertain a writ of habeas corpus, Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), has held that a state prisoner free on parole was in custody within the meaning of the habeas corpus act, § 2241, and could challenge the validity of his conviction. The Court said that while the petitioner’s parole released him from immediate physical imprisonment, it nevertheless imposed conditions which significantly confined and restrained his freedom, and that this was enough to keep him in the “custody” of the members of the Parole Board, in this instance Virginia, within the meaning of the habeas corpus statute. In Jones, as here, the accused had been in prison when the petition was filed. In Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), the petitioner was in prison when the petition was filed. His sentence expired while the petition was pending and he was unconditionally released. The Court overruled its prior decision in Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963 (1960), and held that the release did not moot the proceeding. It noted that civil disabilities and burdens accompanied the prisoner after his release. This was seen as justification for its conclusion that the case was not moot. Cf. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954), wherein the Supreme Court held that where habeas corpus cannot be used that the writ of coram nobis can be employed for the purpose of attacking a judgment. Thus it must be concluded that the suggestion of mootness is wholly without merit. The cause is remanded to the district court with directions to that court to void the orders of revocation which were granted illegally and without having afforded the appellant and the petitioner-appellant the right to have counsel at the said hearing and for related proceedings consistent with the views expressed above. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "O" thru "R"". Which specific federal government agency best describes this litigant? A. Occupational Safety & Health Administration B. Occupational Safety & Health Review Commission C. Office of the Federal Inspector D. Office of Management & Budget E. Office of Personnel Management F. Office of Workers Compensation Program G. Parole board or parole commisssion, or prison official, or US Bureau of Prisons H. Patent Office I. Postal Rate Commission (U.S.) J. Postal Service (U.S.) K. RR Adjustment Board L. RR Retirement Board Answer:

songer_respond2_4_3

C

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)", specifically "bureaucracy providing services". Your task is to determine which specific substate government agency best describes this litigant. BUICK MOTOR CO. v. CITY OF MILWAUKEE, WIS., et al. No. 4418. Circuit Court of Appeals, Seventh Circuit. April 6, 1931. O. A. Oestreieh, M. O. Mouat, and P. J. E. Wood, all of Janesville, Wis., and John Thomas Smith, of New York City, for appellant. Walter J. Mattison and John M. Niven, both of Milwaukee, Wis., for appellees. Theo. W. Brazeau, of Wisconsin Rapids, Wis., for Wisconsin Tax Commission. Before ALSCHULER, EVANS, and SPARKS, Circuit Judges. ALSCHULER, Circuit Judge. The appeal involves the validity of a reassessment by the Wisconsin tax commission for state income taxes for the years 1917 to 1924, inclusive, of appellant, Buiek Motor Company, a Michigan corporation licensed to do business in Wisconsin. The company has a capital stock of $10,-000, all owned by General Motors Company, a Delaware corporation, and carried in the names of its nominees. Under date of January 2, 1917, “General Motors Company * * * termed the Seller” contracted in writing with “Buiek Motor Company * * * termed the Buyer” whereby “the Seller agrees to sell to the Buyer and the Buyer hereby agrees to buy from the Seller the entire output of automobiles and their parts of the (seller’s) ‘Buiek’ factory at Flint, Michigan, upon a basis which will result in an annual net profit of Twenty-five Hundred Dollars to the Buyer on said business.” The contract has unlimited duration. To appellant’s Wisconsin branch, with headquarters at Milwaukee, there was assigned as its territory the northern peninsula' of Michigan and all the state of Wisconsin, except the southern tier ofi e.ounties, which counties were part of the territory assigned to and served from the Chicago branch. During the years in question appellant’s annual sales of cars and parts ranged from a minimum of $89,000,000 to a maximum of $231,000,000; whereof the annual sales of the Wisconsin branch were from $2,454,000 to $6,800,000. The ears and parts’sold by the Wisconsin branch were billed to the branch by appellant at about the same price as to independent distributors, and were shipped from General Motors’ factory at Flint, Mich., and remittances were made by the customers to the Wisconsin branch, whieh, having no bank account of its own, sent the remittances as received to General Motors. For the year 1917 appellant returned for Wisconsin tax an income of $5,018.42, but later contended that its income was only $2,-500, which was the income whieh it annually returned for some years thereafter. For 1919 the tax commission, over appellant’s protest, added as further income $80,051, whieh represented, in the main, Wisconsin’s proportion of an aggregate amount of $1,419,290'.16 withheld by appellant as reserve for dealers’ rebates. In 1920 the tax commission signified its dissatisfaction with appellant’s, general plan of return of income, and there ensued considerable correspondence and discussion between them, resulting, in -1921, in the inauguration of the general practice of treating appellant’s Wisconsin branch, for income purposes, as though the branch were an independent jobber or distributor of the Buiek products. Amended returns were accordingly filed for 1919 and 1929 (but none for prior years) whereunder there was refunded to appellant $2,993.78 of the income tax it had paid for 1919. For the subsequent years in issue appellant assumed to return its income upon this basis, and paid its income taxes thereon. The data for the annual returns were supplied by appellant. But in 1926 the commission caused its own audit to be made of appellant’s accounts to ascertain whether the returns which had theretofore been made truly reflected its income. After an apparently exhaustive investigation of appellant’s accounts, as well as those of General Motors, the commission concluded that these returns -did not truly reflect the income and ordered a reassessment, whereby there was added to the income as returned sufficient to increase the tax which had been paid for the years in question, plus interest, by an aggregate for the period of $226,734. This reassessment of income, and the tax thereon, was sustained by the District Court, whose decree is the subject of this appeal. As to the accuracy of the commission’s audit there is no controversy. In the concluding paragraph of appellant’s reply brief it is said: “The fact of the matter is that the audit of the commission is substantially correct, its premise or base of approach admitted ', * ■ * * ” It is insisted for appellant that the transactions of 1929 and 1921 between appellant and the commission estop the commission from questioning returns made in pursuance of the understanding apparently then reached. Apart from any question of the right of the commission to bind the state by any understanding or contract, it does not appear that what was then done rose to the dignity of a contract, nor that there was a hearing and decision by the commission adjudicating the rights of the parties. In any event, it seems plain that at that time all of the salient facts bearing upon appellant’s income were not before the commission. Indeed, it is contended for appellee that in making the reassessment the commission did not depart from the general basis of understanding which was reached in 1921. To be sure, if the returns made by appellant had embodied the figures as found by the commission’s audit, the discrepancies between them would not appear. To the extent therefore that appellant’s returns were erroneous— whether intentionally or mistakenly — the commission could not be estopped by any understanding reached in 1921, as that understanding did not and could not properly bind the commission to specific items or figures of income. In Judge Geiger’s further discussion of this proposition in his opinion in the District Court, to which we make reference, he has abundantly demonstrated that this contention of appellant is not well grounded. 43 F.(2d) 385. But it is insisted that the intercorporate contract relation should be given effect, and that the stipulated $2,599 of net profit to appellant should be held to be the maximum of appellant’s actual taxable income for each of the years in question. Whether the contract, as between the contracting parties, is upon its face fraudulent, does not concern the state in the matter of its taxes upon income derived from business transacted within its limits. Whatever other purpose such a contract might have, the conclusion seems quite irresistible that one of its objects was to transfer the income arising from the business of such states as then had, or might thereafter enact, an income tax law, so that the income would not be taxable in the state where earned. This motive might not alone warrant the state in ignoring the contract, but if appellant, notwithstanding the contract, continued to earn the income upon business transacted within the state, the contract would not serve to defeat the right of the state to tax the income so earned. The function of selling the product was a highly essential department of General Motors’ business, scarcely less so than the manufacturing end of the operations, and was entitled to be credited with a substantial share of the profits of the general business. By turning over to General Motors the remittances for sales made by appellant’s Wisconsin branch, the profits which appellant earned on its Wisconsin business were diverted to appellant’s one stock owner — General Motors. While appellant carried on this vast business under an arrangement with General Motors whereby the profits realized at once passed to General Motors, the profits constituted taxable income in Wisconsin ere they passed to the single beneficial owner of the capital stock. Distribution of corporate profits to or among stockholders, by whatever form, does not relieve the corporation from income tax on what is so earned and distributed. Cliffs Chemical Co. v. Wis. Tax Comm., 193 Wis. 295, 214 N. W. 447, 449; Shaffer v. Carter, 252 U. S. 37, 49 S. Ct. 221, 64 L. Ed. 445; Houston, etc., Co. v. United States (C. C. A.) 259 F. 1; Rensselaer & S. R. Co. v. Irwin (C. C. A.) 249 F. 726; West End St. Ry. Co. v. Malley (C. C. A.) 246 F. 625; Judson Freight Forwarding v. Commonwealth, 242 Mass. 47, 136 N. E. 375, 27 A. L. R. 1131. It is maintained for appellant that General Motors was also licensed to do business in Wisconsin, and that if this income from the selling of Buick products were taxable in Wisconsin it should be assessable to General Motors as its income. But appellant is a distinct corporation, which had contracted with General Motors to buy and sell Buick automobiles and parts, and it was this separate entity which transacted this business in Wisconsin, and to this entity the state had a right to look for its tax upon the profit arising in Wisconsin from the transaction of this business there. Judge Geiger’s opinion has, in our judgment, well demonstrated that the intercorporate contract does not limit the state to a tax upon the income which the contract assumes to prescribe. But if the binding effect of the transactions of 1921 were assumed, as contended for appellant, appellant would be likewise thereby bound, and, failing then and thereafter to have fully made the disclosures of income which those negotiations assumed would be made, it may not complain if thereafter the true state of the income is made to appear and its taxes reassessed accordingly. For the taxable years 1917 and 1918 it does not appear that any reassessment was made at all pursuant to the 1921 understanding, nor that the alleged agreement of 1921 was ever acted on as to those years. The right to make such reassessment is recognized in section 71.25 (1), Wisconsin Statutes enacted in 1925. In a quite comparable situation, where it was contended that the act should not be applied retroactively, and, if so applicable, would be unconstitutional, the Supreme Court of Wisconsin said that in passing the act the Legislature “merely directed tbe Tax Commission. to conform to a method which would have' been their duty to adopt without the act. But even if applied retroactively, the statute would not be unconstitutional on that ground.” Cliffs Chemical Co. v. Wis. Tax Comm., supra. We find no merit in the suggestion that the sales made to dealers in the northern peninsula of Michigan were not Wisconsin business, and that the profit thereon was not includable in the Wisconsin returns. The sales were made through and by, and the remittances therefor made to, the Wisconsin branch at Milwaukee, and were in essence Wisconsin business. If the fact that the shipments to the northern peninsula were made directly from Flint constituted them Michigan and not Wisconsin business, then, by the same token, the sales made in that very considerable territory comprising the southern tier of Wisconsin counties, although made by the Chicago branch, would be Wis- ■ consin business and the profits taxable in 'Wisconsin. But appellant did not include in its Wisconsin returns the income on that business, and it would thus scarcely be in position to maintain that the northern peninsula business transacted through the Wisconsin branch was not Wisconsin business. It is contended that section 71.25 is unconstitutional because it grants to the commission judicial powers, if authorizing it to determine whether the intercorporate contract was in fraud of the Wisconsin income tax law. On this we need say no more than that the statute was distinctly held constitutional by the Wisconsin Supreme Court in Cliffs Chern-, ical Co. v. Wis. Tax Comm., supra. It is further contended that the reassessment in question deprives appellant of prop-* erty without due process of law, in violation of the Fourteenth Amendment to the Constitution of the United States. To the extent that this contention is predicated on the assumption that appellant is taxed upon income which it did not receive, that proposition of fact has been heretofore sufficiently considered, and disposed of contrary to appellant’s contention. The Cliffs Chemical Co. case, where the tax was upheld on property which, as produced, was distributed to the corporate stockholders, and where the same federal constitutional proposition would be involved as here, was heard on error in the United States Supreme Court, which dismissed it “for'want of" a substantial federal question.” Cliffs Chemical Co. v. Wis. Tax Comm., 277 U. S. 574, 48 S. Ct. 435, 72 L. Ed. 994. Appellant insists that, in any event, it is entitled to such a deduction from the ascertained income as would be the equivalent of such a federal income tax as would have been required to be paid by an independent jobber or dealer who had earned on Wisconsin business the same income which was found to have been earned by appellant for the years in question. Appellant contends that an independent dealer -who had earned this income would have been required to pay a federal tax very much larger than the federal taxes which in fact the commission did deduct from income. The commission dealt with the federal income tax feature by apportioning to the Wisconsin income a proportionate share of the entire federal income tax which was paid for the respective years by General Motors, whose returns to the federal government included the profits of all its subsidiaries, including appellant. The apportionment made by the commission is not attacked, but the method is questioned. For instance^ for the year 1921 the deductible losses of General Motors Company were sufficiently heavy to neutralize its entire profits and it paid no federal income tax for that year; and so for that year the commission made no deduction on account of federal income taxes. To the extent that in other years the income of General Motors was reduced by deductible losses, the proportion of federal income taxes paid attributable to Wisconsin income wonld be proportionately less, whereas it is contended the profits of an independent dealer transacting the Wisconsin business would not likely have been subject to such reduction. Of course we cannot know what deductions from income an independent dealer would have been entitled to make. There are many contingencies which could not have been anticipated. Once it is determined what income was taxable to appellant, the tax will not be defeated by embarrassments in the way of determining what deductions from income the taxpayer might have been entitled to have had allowed. If the practice was, as it seems to have been, to determine the federal income tax upon a consolidated return by General Motors and all its subsidiaries, we cannot see that the state was derelict in its duty or unfair toward appellant in deducting from Wisconsin income, for purposes of the state income tax, such a proportion of federal income taxes paid by the parent company as would be attributable to Wisconsin income. If none were paid, then none would be deductible. The gross amount so deducted by the commission for federal taxes paid by General Motors, and attributable to Wisconsin income, during the period in question, was $422,237.82, and we find no substantial ground for complaint in the contention that the deduction should have been made. Under the circumstances appellant is not in position to complain of the method adopted, particularly as the record makes no disclosure of a definite plan which is more fair. Generally speaking, strict máthematical certainty cannot reasonably be expected in such matters. In the routine of taxation as applied to ordinary business, slight departures either in method or computation involving trivial amounts will.not be noticed. Having in mind the magnitude of the business here involved, we believe the commission reached a conclusion which sufficiently approximates justice between this taxpayer and the state as to require approval of the result. The decree of the District Court is affirmed. “(1) Wken any corporation liable to taxation under this act conducts its business in such a manner as either directly or indirectly to benefit the members or stockholders thereof or any person, interested in such business, by selling its products or the goods or commodities in which it deals at less than the fair price which might be obtained therefor, or where a corporation, a substantial portion of whose capital stock is owned either di’rectly or indirectly by another corporation, acquires and disposes of the products of the corporation so owning a substantial portion of its stock in such a manner as to create a loss or improper net income, the commission may determine ’the amount of taxable income of such corporation for the calendar or fiscal year, having due regard to the reasonable profits which but for such arrangement or understanding might or could have been obtained from dealing in such products, goods or commodities.” Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)", specifically "bureaucracy providing services". Which specific substate government agency best describes this litigant? A. Police, Sheriff B. Fire C. Taxation D. Human Services/Welfare/Health Care E. Streets and Highways F. Transportation G. Election Processes H. Education - Not School Board I. Other Service Activity J. not ascertained Answer:

songer_counsel

E

What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the defendant had inadequate counsel?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". Erna YAFFE and James Hornsby, Plaintiffs-Appellants, v. James E. POWERS, as Chief of Police of the Fall River Police Department and Ronald Andrade, as a Police Officer in the Fall River Police Department, Defendants-Appellees. No. 71-1269. United States Court of Appeals, First Circuit. Heard Dec. 8, 1971. Decided Jan. 26, 1972. Matthew H. Feinberg, Boston, Mass., with whom John Reinstein, Cambridge, Mass., Ronald F. Kehoe, C. Michael Malm, and Hausserman, Davison & Shattuck, Boston, Mass., were on brief, for appellants. James P. McGuire, Fall River, Mass., with whom McGuire & Collias, Fall River, Mass., was on brief, for appellees. Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges. COFFIN, Circuit Judge. On May 5, 1970, some two hundred citizens attended a memorial service, commencing at the campus of Bristol Community College and terminating at the post office in Fall River, Massachusetts, to protest United States military action in Cambodia and Ohio National Guard action at Kent State University. Prior to this gathering, Fall River authorities had been concerned over the activities of a “Regional Action Group” which they feared to be organizing a violent demonstration along with activists who had taken part in recent riots in other Massachusetts cities. In order to keep track of “the extent of infiltration and participation by known violent activists of the Regional Action Group into the conduct of the memorial services”, the Fall River police department sent a police photographer, not in uniform, to take pictures of the activities at the campus and post office. Plaintiff Yaffe, invited by the sponsors to speak as a substitute for her husband who was then running for Congress, and plaintiff Hornsby, a clergyman and member of the Fall River school committee, were among those present who were included in one or more photographs taken. One or more photographs of Hornsby was purportedly displayed in a public area of the Fall River police station for several weeks. A police photograph of a speaker, an alleged member of the Regional Action Group, at the memorial service, and three onlookers, including plaintiff Yaffe, was allegedly given to the Providence Journal and published in connection with a story on “Fall River Radicals”, based on defendant Andrade’s testimony before the Senate Subcommittee on Internal Security. The testimony related to surveillance of the Regional Action Group prior to a planned march on May 1, 1970 — which was called off at the last minute. The plaintiffs brought suit against the Fall River police chief and Sergeant Andrade, alleging that surreptitious police photography, surveillance, the keeping of notes, and the maintaining and circulating of photographs and dossiers on participants at meetings such as that held on May 5, 1970, harass the plaintiffs and deter others from participating in public meetings held to express unconventional views. Plaintiffs seek a declaratory judgment that such surveillance, photographing, maintaining files, and circulating the contents thereof have violated their constitutional rights, and an injunction restraining defendants from taking such actions except “where such actions are necessary for the apprehension of persons who will be charged with specifically defined crimes.” The present appeal follows plaintiffs’ unsuccessful attempt before the district court to represent as a class “all other individuals who wish to ... engage, in the City of Fall River, in peaceful political discussion without surveillance and photographing by defendants . . . without becoming the subject of dossiers, reports and files maintained by the defendants, and without any publication by defendants to other persons of the contents of any such dossiers . . . .” Plaintiffs, so conceiving their class, immediately sought to initiate extremely broad discovery, encompassing not only any police department file item relating to them as individuals and all notes relating to the May 5, 1970, meeting, but all files, memoranda, notes, etc. “relating in any manner to political protests, demonstrations, rallies or meetings and other so-called ‘subversive activities’ carried on in the Fall River area during 1969 and 1970 . . . excepting therefrom matter relating directly to the prosecution of any person who has been charged with a crime [,] which charge has resulted in a criminal conviction or is still pending.” Both the determination of the class and the scope of the discovery order were the subject of a memorandum and order, prepared by the magistrate and approved by the district-court. The court found that the requirements of Rule 23, F.R.Civ.P., had not been fulfilled and ordered discovery accordingly limited to matters directly relating to the named plaintiffs. We have asked for and received briefing on the issue of the appealability of a district court’s refusal to recognize a class. Plaintiffs concede that the order was not “final” within the meaning of 28 U.S.C. § 1291 and that there was no certification by the court under 28 U.S.C. § 1292(b), but assert that the district court’s action is nonetheless appealable under 28 U.S.C. § 1292(a) (1) as an order “granting, continuing, modifying, refusing or dissolving injunctions . .” Although the district court did not specifically act with reference to the injunctive relief claimed in the complaint, the substantial effect of its order denying leave to proceed as a class is • to narrow considerably the scope of any possible injunctive relief in the event plaintiffs ultimately prevail on the merits. Even if defendants are prohibited from recording, collecting and disseminating information on the named plaintiffs, as well as on others who may be persuaded to intervene, the assumed chilling effect of the continued surveillance of non-parties would reduce the class of persons willing to engage in public exchange of views on controversial subjects to those named in the complaint. Had the district court declined to determine a class provisionally, reserving final decision until more facts were presented, see Rule 23(c) (1), the case would be in a different posture insofar as appealability is concerned. As it is, we hold the district court’s order appealable as a denial of the broad injunctive relief sought and proceed to a review of the order on its merits. Brunson v. Board of Trustees, 311 F.2d 107 (4th Cir. 1962), cert, denied, 373 U. S. 933, 83 S.Ct. 1538, 10 L.Ed.2d 690 (1963). Cf. Spangler v. United States, 415 F.2d 1242, 1246-1247 (9th Cir. 1969); Stewart-Warner Corp. v. Westinghouse Electric Corp., 325 F.2d 822, 825-826 (2d Cir.), cert. denied, 376 U.S. 944, 84 S.Ct. 800, 11 L.Ed.2d 767 (1964). See also Note, Interlocutory Appeal from Orders Striking Class Action Allegations, 70 Col.L.Rev. 1292 (1970). In passing on plaintiffs’’ application for certification of a class, the district .court assumed that “all of the requires ments of Rule 23 of the Federal Rules of Civil Procedure must be met before an action can be classified as a class action.” From this erroneous premise, the court then proceeded to identify three requirements which it felt had not been sufficiently satisfied. First, the court stated that the class which plaintiffs hoped to represent had not been adequately defined. In reaching this conclusion the court compared the class allegation in the complaint, where the relevant class was defined as those “who wish ... to engage, in the City of Fall River” in various forms of public protest, with that in plaintiffs’ supporting memorandum of law, where the putative class we defined as those persons “in the Fall River community who have been similarly subject to police surveillance . . . .” This variance, according to the court, left the class inadequately defined since “it is not uncommon” for “the majority of the people attending rallies, indeed if not all” to come from outside the host community. Second, the court felt that as to such an amorphous group of persons there was no assurance of predominating questions of law or fact. The court took judicial notice that “professional demon-trators”, variously described as “persons who engage in the business of promoting demonstrations or who attend demonstrations for the sake of creating disturbances”, often attend mass rallies and as to those persons there would be different questions of fact and different defenses available to the police. Finally, and as a consequence of the two difficulties noted above, the court doubted that a class action was superior to other available methods for the fair and efficient adjudication of the controversy. It is quite understandable that courts, when called on as here to order wide-open discovery in the name of recently refurbished class actions in the relatively new civil rights field, might well take a jaundiced look at the nature and scope of injuries asserted. Yet for a court to refuse to certify a class on the basis of speculation as to the merits of the cause or because of vaguely-perceived management problems is counter to the policy which originally led to the rule, and more especially, to its thoughtful revision, and also to discount too much the power of the court to deal with a class suit flexibly, in response to difficulties as they arise. See Committee’s Criticism and Notes to Revised Rule 23, 3B Moore’s Federal Practice f[ 23.01 [8] — [13] (2d ed. 1969). Had the discretion lodged in the trial court by Rule 23(c) and (d) as to determination of classes and subclasses, conditional orders, imposing conditions, prescribing measures to prevent undue complication, etc., been properly exercised, we would have given its decision weighty deference. Cypress v. Newport News General and Nonseetarian Hosp. Ass’n, 375 F.2d 648, 653 (4th Cir. 1967). See also 3B Moore’s Federal Practice 23.50, at 1105 (2d ed. 1969). But because of several fundamental legal misconceptions which significantly affected the court’s receptiveness to plaintiff’s application, much of the available discretion was not exercised and considerations both of judicial efficiency and of ultimate fairness to the parties therefore require us to engage in a rather full review of the proceedings below. The most basic error committed by the district court was in applying the criteria set out in subdivision (b) of Rule 23 cumulatively rather than alternatively. In holding that a class should not be certified because its members had not been sufficiently identified, for example, the court applied standards applicable to a subdivision (b) (3) class rather than to a subdivision (b) (2) class. Although notice to and therefore precise definition of the members of the suggested class are important to certification of a subdivision (b) (3) class, notice to the members of a (b) (2) class is not required and the actual membership of the class need not therefore be precisely delimited. In fact, the conduct complained of is the benchmark for determining whether a subdivision (b) (2) class exists, making it uniquely suited to civil rights actions in which the members of the class are often “incapable of specific enumeration”. Committee’s Notes to Revised Rule 23, 3B Moore’s Federal Practice j[ 23.01 [10-2] (2d ed. 1969). Similarly, the existence of “predominating” questions and the availability of other methods of resolution which might be superior to a class action are not criteria of a subdivision (b) (2) class, but again of a (b) (3) class, which was not suggested. It may be, as the court indicated, that several questions of law or of pertinent fact are involved here, or as the court did not indicate, that there are no questions of law or of fact common to the class, but only the latter would be grounds for denying class status and even it may — require__pxeli.mi-nar^ — discovery. To pronounce finally, prior to allowing any discovery, the non-existence of a class or set of subclasses, when their existence may depend on information wholly within defendants’ ken, seems precipitate and contrary to the pragmatic spirit of Rule 23. ******Evidence which might be forthcoming might well shed light on a final decision on this issue. Tatum v. Laird, 444 F.2d 947, 957 n. 21 (D.C. Cir. 1971). The danger of passing on the merits of a claim at the stage when only the existence of a class is at issue, as well as the confusion resulting from the court’s speculation as to the status of the members of the putative class rather than its focusing on the effect of the conduct complained of, is made real for us by the court’s equating as “professional demonstrators” “those who engage in the business of promoting demonstrations” and those “who attend demonstrations for the sake of creating disturbances”. Whatever justification for advance surveillance could rightly apply to the latter, see Anderson v. Sills, 56 N.J. 210, 265 A.2d 678 (1970), might not be at all appropriate for the former, which would include Quakers planning gentle anti-war vigils. We have said enough to reveal our conviction that the court’s refusal to recognize a class action was based in significant part upon its failure to recognize both the obligations and opportunities of Rule 23. This, however, is not to say that we have enough grasp of the interests of the putative class as they may be defined by the actions of the defendants to declare and define the class ourselves and, as plaintiffs pray, order discovery proceedings to commence in accordance with such determination. Such a declaration and the attendant consequences should not ordinarily stem from a reviewing court. The genius of Rule 23 is that the trial judge is invested with both obligations and a wide spectrum of means to meet those obligations. See, e. g., Baxter v. Savannah Sugar Refining Corporation, 46 F.R.D. 56, 60 (S.D.Ga.1969). An appellate court is not well situated to umpire an entire ball game. We therefore conclude that the issue of the existence of a class must be reopened by the district court. A decision to declare the existence or non-existence of a class (or subclass) need not necessarily be made at this stage of the proceedings. But progress toward re-, solving the class definition issue would seem to require some discovery, under such terms as the court may see fit to impose, of the extent of, say, the practice of the police photographing and making such photographs available to others. Since a rule 23(b) (2) class is defined by the actions which a defendant has taken toward the class, and which should arguably be enjoined, it may appear sensible to ascertain the nature of the actions taken with more precision than reference to pleadings and affidavits permits. While what we have) said implies somewhat more initial discovery than that limited to information concerning the two plaintiffs, we do not imply that, prior at least to a definitive determination of a class, the entire police files over a substantial period be produced for adversary examination. Not only may there be sensible limits as to time and type of occasion, but as to materials said to be irrelevant or to involve potential harm to others the court may undertake an in camera inspection. Cf. Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); Palermo v. United States, 360 U.S. 343, 354, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959); Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Prom our entire discussion it should also be apparent that, if a class action is to be managed with sensitivity both to plaintiffs’ reasonable demands and to defendants’ responsibilities, the district judge must keep close to the heart of the litigation. Delegations of discrete chores to a magistrate must not be permitted to cause the judge to lose the feel of the pulse of the proceedings. Our purpose is not to chart the future of this litigation, but to indicate that there are certain standards governing the recognition of a class; that the burden of administering this kind of a class suit should not be pessimistically estimated; and that in the wise use of the power to determine when, how, and for how long, and subject to what conditions in the interest of minimizing eviden-tiary complexities a class should be recognized the special responsibility and opportunity of a federal trial court. At this juncture, unless a claim is patently frivolous, that court should ask itself: assuming there are important rights at stake, what is the most sensible approach to the class determination issue which can enable the litigation to go forward with maximum effectiveness from the viewpoint of judicial administration ? Reversed and remanded for further proceedings consistent with this opinion. . That a viable class is not beyond conjecture is illustrated by a somewhat analogous situation in Broughton v. Brewer, 298 F.Supp. 260, 267 (N.D.Ala.1969) [“persons whose poverty or lack of apparent means of livelihood renders them susceptible to arrest under the present Alabama vagrancy laws, and against whom the vagrancy laws have been or may be applied to repress constitutionally protected rights of free expression”], and in Hairston v. Hutzler, 334 F.Supp. 251 (W.D.Pa.1971) [all black persons living in or visiting Pittsburgh who have been or may be injured by a pattern of police harassment and intimidation]. We add that our conjecture does not necessarily imply our endorsement, particularly when such would be premature. . Wo are mindful of Judge Weinstein’s approach in Dolgow v. Anderson, 43 F. R.D. 472, 501-503 (E.D.N.Y.1968), rev’d on other grounds, 438 F.2d 825 (2d Cir. 1971), in requiring, prior to determining a class, tliat there be a substantial possibility of prevailing on the merits, but are dissuaded from adding this requirement, particularly in civil rights cases, by the observations of Judge Tyler in Fogel v. Wolfgang, 47 F.R.D. 213, 215 n. 4 (S.D.N.Y.1969). See also Katz v. Carte Blanche Corporation, 52 F.R.D. 510, 513-514 (W.D.Pa.1971). Question: Did the court rule that the defendant had inadequate counsel? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:

songer_method

I

What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc. SIMMONS et al. v. BROOKS. No. 6133. United States Court of Appeals for the District of Columbia. Argued May 14, 1934. Decided June 11, 1934. Henry I. Quinn, of Washington, D. C., for appellants. John S. Barbour, of Washington, D. C., for appellee. Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRO-NER, Associate Justices. MARTIN, Chief Justice. An appeal from a judgment recovered in an action for damages for personal injuries sustained in an automobile accident. In the declaration the plaintiff alleged that the defendants, Sol A. Simmons, Louis A. Simmons, and Abraham Simmons, were partners trading as the Simmon's Motor Company; that in April, 1931, plaintiff was driving his automobile upon a public highway in, Stafford county, Va.; .that at the same time one J. F. Letcher was driving a car on the same road, slightly ahead of the plaintiff and. going in the same direction; that plaintiff and Letcher were driving with due care; that as they were going up a grade which curved to their left a third automobile, belonging to the defendants, then and there operated by one J. R. Proetor as the agent and employee of the defendants, approached them from the opposite direction; that Proetor carelessly and negligently drove the defendants’ car upon the wrong side of the road and at a high and dangerous rate of speed and collided first, with the automobile operated by Letcher and immediately thereafter and in consequence thereof with the ear operated by the plaintiff, whereby plaintiff suffered serious injuries for which he prayed judgment in damages. The defendants for their plea admitted their ownership of the automobile driven by-Proctor at the time of the accident and the fact that it was in collision with the automobile owned and operated by the plaintiff at the time and place alleged in the declaration; hut denied that Proctor was operating the automobile at that timo as their agent or employee or that he was then engaged in any manner in and about their business; and they averred that the collision was due solely to the negligence of Letcher in operating his automobile. The (¡ase was tried to the jury and a verdict was returned for the plaintiff. A motion for a new trial was overruled by the court and judgment was entered for plaintiff upon the verdict. Whereupon the present appeal was taken. It is disclosed by the record that the plaintiff introduced testimony in chief describing the collision of which he complained, together with the injuries which he suffered because of it; also testimony tending to show that the car driven by Proctor at the time of the collision had oil it a dealers’ tag for the year 1831, which had been issued to the defendants by the District of Columbia, and the regulations in force in the District at the time of the accident, which provided that such dealers’ tags should not be transferred from one vehicle to another, nor be loaned to another by the person to whom issued, but should be applied to- automobiles held by dealers for sale or demonstration only; and that under the laws of Virginia it was lawful for a car with the dealers’ tags thereon to ho operated over the highways of the state of Virginia without registering the vehicle under the laws of Virginia, but only when such machine was being used by the dealer or his agent for sale purposes. The plaintiff then rested. At the conclusion of the plaintiff’s evidence and at the close of all the evidence, the defendants moved for a directed verdict claiming that plaintiff had failed to introduce any proof that the car operated by Proctor which collided with the plaintiff's car was being used on business of the defendants or operated by him as agent or employee of defendants. The court overruled the motion to which the defendants excepted and this ruling is assigned as error by the appellants. We think this assignment of error is not well taken. The fact that the ear at the time of the accident was owned by the defendants who were dealers in automobiles and used cars and bore the dealers’ license tags issued to them, which they could not lawfully use except upon automobiles Jieid by them for sale or demonstration purposes, was sufficient to raise an inference that Proctor, the driver, was acting as an employee of the company with authority to demonstrate the car for them; and this presumption obtains until overthrown by credible testimony to the contrary. Callas v. Independent Taxi Owners Ass’n, 62 App. D. C. 212, 66 F.(2d) 192. But if the presumption be overcome by undisputed proof to the contrary, the question becomes one for the court, and not the jury. Curry v. Stevenson, 58 App. D. C. 162, 26 F.(2d) 534. If, however, the evidence is reasonably subject to contradictory interpretations, the question of liability of the defendants is for the jury. Tischler v. Steinholz, 99 N J. Law, 149, 152, 122 A. 880. The record discloses without contradiction that the defendants at the time in question were engaged in the business of selling automobiles including used cars; that they were in possession of dealers’ license plates or tags-, as alleged in the declaration, issued to them by the District of Columbia as identification tags necessary to their business as such dealers, which they wore entitled to use upon automobiles for sale or demonstration purposes, but which they were not entitled to use for any other purpose. The defendants testified that they had never permitted the use of such license plates for any purpose except to be placed upon cars for sale or demonstration; that Harold Simmons was a relative of the partners but was not himself a partner; that he looked after the used ear business, but had no authority to- lend ears to anybody for pleasure purposes or private business purposes, nor to put the dealers’ tags on cars except for strictly business purposes. Harold Simmons as a witness for defendants. testified that he had loaned Proctor the car in question to he used by him from Saturday night to Monday morning; that nothing was said by Proctor or himself at that time about demonstrating the ear to anybody or attempting to sell it; that he was not a member of the firm, but was the “used car manager” for them and the partners knew nothing about this transaction between him and Proctor; that he simply took it upon himself to loan Proctor the car and that he had no authority to lend cars to people or to allow the use of dealers’ tags to anyone except for sale or demonstrations; that the tags were intended to be used for demonstration purposes only; that he had loaned cars before to Proctor as a. personal favor expecting that everything would be all right; that he allowed him to use this ear for the purpose of making a trip into Virginia to see his people and not for the purpose of demonstrating it or serving the Simmons Company. He denied that he had said to Proctor at the time he loaned him the car that if anything happened Proctor was to say that he was taking the car down there to demonstrate it, but he testified that he said to Proctor that in ease he was stopped he was to say that the ear was the property of the Simmons Motor Company. Witness testified that he was authorized to put dealers’ tags on used cars for the purpose of demonstration only. On cross-examination the witness was asked whether he recalled having a talk with Mr. Letcher at Quantieo', and he answered that he did. He was then asked the following question: “On the occasion of that talk did you not say to Mr. Letcher that the insurance carried by your company, speaking of Simmons Motor Company, would not protect it against an injury to Mrs. Proctor — -Mrs. Proctor had suffered an injury, I believe— but that his, Letcher’s, insurance would, and that if Letcher would admit liability for that accident you would either make his ear as good as new. or give him a new car?” The defendants objected to this question, but the court Overruled the objection and witness, over exception, answered as follows: “No, sir; absolutely not. There was nothing along those lines ever said.” In rebuttal the witness Letcher testified as follows: “That on the day following the accident Harold Simmons, while talking to witness at QuantieO', Virginia, said to witness that the insurance carried by the Simmons Motor Company would not protect it against Mrs. Proctor, but that witness’ insurance would and if he would admit liability for the accident that they would either make his car as good as new or give him a new car and he declined that proposition.” The defendants also called Proctor, the driver of the ear, as a witness who. testified in substance that he was a barber by occupation, and was never employed by the Simmons Company in any capacity, and was never authorized by them to demonstrate or attempt to sell any of their cars; that he rented the ear which he was driving at the time of the collision from Harold Simmons for the purpose of driving down into Virginia in order to visit some of his people and that the accident happened when he was returning on that trip. He testified that he was told by Harold Simmons, that if he got into any trouble upon the trip he should say he was taking the car to demonstrate it as the agent of the Simmons Motor Company, but that in fact he did not take the car for such a purpose. In rebuttal, however, the witness Oder-man testified that he was at the scene of the accident immediately after the occurrence and told Proctor that his ear was totally demolished, and that Proctor then said that he was awfully sorry because he had the car sold or was pretty sura he had the ear sold to his cousin or brother-in-law or some of his relatives in Bowling Green, Va.; that Proctor said that he was not a dealer in cars but was a'barber by trade and sold cars for the Simmons Motor Company week-ends and holidays; and that he was figuring on selling this particular car. The witness Curtis testified that he had a conversation with Proctor on the morning following the accident at the hospital in Fredericksburg, and that Proctor told him he was a barber by trade but between times sold used cars for the Simmons Motor Company and that he had this car to demonstrate to a cousin or brother-in-law at Bowling Green, Va. Proctor denied these conversations when testifying in chief and the trial justice instructed the jury that this testimony was to be considered solely by way of impeachment. It is proper for this court likewise to consider it as such, and it reflects seriously upon the value of Proctor’s testimony in chief. The credibility of the testimony of the witness Harold Simmons may be considered in the light of a contradiction which occurs in course of his evidence. In his examination in chief he said: “I have never been in the company with Mr. L’Hommedieu when he spoke with Mr. Letcher. Us three have never been in the same room together. When he came to see Mr. L’Hommedieu I was not present. I was out of town.” On cross-examination, however, he was asked “When you were on the»stand before you were very positive, were you not, you were never present with Mr. L’Hommedieu and the sergeant? — A. Yes, sir, I was mistaken. Q. You went so far as to say you were not even in town ? — A. Yes, sir, I was mistaken about that.” It is contended by appellants that it was error for the court to permit the plaintiff’s counsel to ask the witness Harold Simmons the question above copied indicating that insurance was carried by the Simmons Motor Company and by Letcher. Appellants claim that the court should have withdrawn a juror and declared a mistrial because' of the injection of the insurance feature into the ease. We do not think that the court’s ruling in this particular was erroneous. It was plainly the purpose of the question to impeach the credibility of the witness Harold Simmons by showing his attempt to make a corrupt bargain with Letcher for the settlement of the damages resulting from the accident. It is true that this incidentally disclosed the fact that there was automobile insurance held by the parties, but that was an incidental and unavoidable result. It is not suggested that counsel for the plaintiff referred to this fact in their argument to the jury, nor does it appear that counsel for the defendants asked the court Cor a charge cautioning the jury to disregard the question of insurance when considering the testimony in relation to the facte in the case. The trial justice in Ms charge to the jury instructed them with great care to consider the testimony relating to the conversations between the witnesses and other parties as admitted for the purpose of impeachment only and not as testimony relating to the questions at issue. We think that these instructions sufficiently informed the jury of ' their duties in that behalf. Capital Construction Co. v. Holtzman, 27 App. D. C. 125. Paxson v. Davis, 62 App. D. C. 146, 65 F. (2d) 492. The jury having seen, and heard the witnesses evidently considered the legal presumption first mentioned to be more reliable than their testimony. Upon the entire record we conclude that the trial’court committed no error in the submission of the ease to the jury and its judgment therefore is affirmed with costs. HITZ, Associate Justice, took no part in the decision of this case. Question: What is the nature of the proceeding in the court of appeals for this case? A. decided by panel for first time (no indication of re-hearing or remand) B. decided by panel after re-hearing (second time this case has been heard by this same panel) C. decided by panel after remand from Supreme Court D. decided by court en banc, after single panel decision E. decided by court en banc, after multiple panel decisions F. decided by court en banc, no prior panel decisions G. decided by panel after remand to lower court H. other I. not ascertained Answer:

sc_adminactionstate

27

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. Greg McQUIGGIN, Warden, Petitioner v. Floyd PERKINS. No. 12-126. Supreme Court of the United States Argued Feb. 25, 2013. Decided May 28, 2013. John J. Bursch, Solicitor General, for Petitioner. Chad A. Readler, Columbus, OH, for Respondent. Bill Schuette, Attorney General, John J. Bursch, Michigan Solicitor General, Counsel of Record, Lansing, MI, B. Eric Restuccia, Deputy Solicitor General, John S. Pallas, Assistant Attorney General, Appellate Division, for Petitioner. Jason Burnette, Jones Day, Atlanta, GA, Chad A. Readler, Counsel of Record, Eric E. Murphy, Allison E. Haedt, Jones Day, Columbus, OH, for Respondent. Justice GINSBURG delivered the opinion of the Court. This case concerns the "actual innocence" gateway to federal habeas review applied in Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), and further explained in House v. Bell, 547 U.S. 518, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). In those cases, a convincing showing of actual innocence enabled habeas petitioners to overcome a procedural bar to consideration of the merits of their constitutional claims. Here, the question arises in the context of 28 U.S.C. § 2244(d)(1), the statute of limitations on federal habeas petitions prescribed in the Antiterrorism and Effective Death Penalty Act of 1996. Specifically, if the petitioner does not file her federal habeas petition, at the latest, within one year of "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence," § 2244(d)(1)(D), can the time bar be overcome by a convincing showing that she committed no crime? We hold that actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in Schlup and House, or, as in this case, expiration of the statute of limitations. We caution, however, that tenable actual-innocence gateway pleas are rare: "[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup, 513 U.S., at 329, 115 S.Ct. 851; see House, 547 U.S., at 538, 126 S.Ct. 2064 (emphasizing that the Schlup standard is "demanding" and seldom met). And in making an assessment of the kind Schlup envisioned, "the timing of the [petition]" is a factor bearing on the "reliability of th[e] evidence" purporting to show actual innocence. Schlup, 513 U.S., at 332, 115 S.Ct. 851. In the instant case, the Sixth Circuit acknowledged that habeas petitioner Perkins (respondent here) had filed his petition after the statute of limitations ran out, and had "failed to diligently pursue his rights." Order in No. 09-1875, (CA6, Feb. 24, 2010), p. 2 (Certificate of Appealability). Nevertheless, the Court of Appeals reversed the decision of the District Court denying Perkins' petition, and held that Perkins' actual-innocence claim allowed him to pursue his habeas petition as if it had been filed on time. 670 F.3d 665, 670 (2012). The appeals court apparently considered a petitioner's delay irrelevant to appraisal of an actual-innocence claim. See ibid. We vacate the Court of Appeals' judgment and remand the case. Our opinion clarifies that a federal habeas court, faced with an actual-innocence gateway claim, should count unjustifiable delay on a habeas petitioner's part, not as an absolute barrier to relief, but as a factor in determining whether actual innocence has been reliably shown. See Brief for Respondent 45 (habeas court "could ... hold the unjustified delay against the petitioner when making credibility findings as to whether the [actual-innocence] exception has been met"). I A On March 4, 1993, respondent Floyd Perkins attended a party in Flint, Michigan, in the company of his friend, Rodney Henderson, and an acquaintance, Damarr Jones. The three men left the party together. Henderson was later discovered on a wooded trail, murdered by stab wounds to his head. Perkins was charged with the murder of Henderson. At trial, Jones was the key witness for the prosecution. He testified that Perkins alone committed the murder while Jones looked on. App. 55. Chauncey Vaughn, a friend of Perkins and Henderson, testified that, prior to the murder, Perkins had told him he would kill Henderson, id., at 39, and that Perkins later called Vaughn, confessing to his commission of the crime. Id., at 36-38. A third witness, Torriano Player, also a friend of both Perkins and Henderson, testified that Perkins told him, had he known how Player felt about Henderson, he would not have killed Henderson. Id., at 74. Perkins, testifying in his own defense, offered a different account of the episode. He testified that he left Henderson and Jones to purchase cigarettes at a convenience store. When he exited the store, Perkins related, Jones and Henderson were gone. Id., at 84. Perkins said that he then visited his girlfriend. Id., at 87. About an hour later, Perkins recalled, he saw Jones standing under a streetlight with blood on his pants, shoes, and plaid coat. Id., at 90. The jury convicted Perkins of first-degree murder. He was sentenced to life in prison without the possibility of parole on October 27, 1993. The Michigan Court of Appeals affirmed Perkins' conviction and sentence, and the Michigan Supreme Court denied Perkins leave to appeal on January 31, 1997. Perkins' conviction became final on May 5, 1997. B Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, a state prisoner ordinarily has one year to file a federal petition for habeas corpus, starting from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). If the petition alleges newly discovered evidence, however, the filing deadline is one year from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." § 2244(d)(1)(D). Perkins filed his federal habeas corpus petition on June 13, 2008, more than 11 years after his conviction became final. He alleged, inter alia, ineffective assistance on the part of his trial attorney, depriving him of his Sixth Amendment right to competent counsel. To overcome AEDPA's time limitations, Perkins asserted newly discovered evidence of actual innocence. He relied on three affidavits, each pointing to Jones, not Perkins, as Henderson's murderer. The first affidavit, dated January 30, 1997, was submitted by Perkins' sister, Ronda Hudson. Hudson stated that she had heard from a third party, Louis Ford, that Jones bragged about stabbing Henderson and had taken his clothes to the cleaners after the murder. App. to Pet. for Cert. 54a-55a. The second affidavit, dated March 16, 1999, was subscribed to by Demond Louis, Chauncey Vaughn's younger brother. Louis stated that, on the night of the murder, Jones confessed to him that he had just killed Henderson. Louis also described the clothes Jones wore that night, bloodstained orange shoes and orange pants, and a colorful shirt. Id., at 50a-53a. The next day, Louis added, he accompanied Jones, first to a dumpster where Jones disposed of the bloodstained shoes, and then to the cleaners. Finally, Perkins presented the July 16, 2002 affidavit of Linda Fleming, an employee at Pro-Clean Cleaners in 1993. She stated that, on or about March 4, 1993, a man matching Jones's description entered the shop and asked her whether bloodstains could be removed from the pants and a shirt he brought in. The pants were orange, she recalled, and heavily stained with blood, as was the multicolored shirt left for cleaning along with the pants. Id., at 48a-49a. The District Court found the affidavits insufficient to entitle Perkins to habeas relief. Characterizing the affidavits as newly discovered evidence was "dubious," the District Court observed, in light of what Perkins knew about the underlying facts at the time of trial. Id., at 29a. But even assuming qualification of the affidavits as evidence newly discovered, the District Court next explained, "[Perkins'] petition [was] untimely under § 2244(d)(1)(D)." Ibid. "[If] the statute of limitations began to run as of the date of the latest of th[e] affidavits, July 16, 2002," the District Court noted, then "absent tolling, [Perkins] had until July 16, 2003 in which to file his habeas petition." Ibid. Perkins, however, did not file until nearly five years later, on June 13, 2008. Under Sixth Circuit precedent, the District Court stated, "a habeas petitioner who demonstrates a credible claim of actual innocence based on new evidence may, in exceptional circumstances, be entitled to equitable tolling of habeas limitations." Id., at 30a. But Perkins had not established exceptional circumstances, the District Court determined. In any event, the District Court observed, equitable tolling requires diligence and Perkins "ha[d] failed utterly to demonstrate the necessary diligence in exercising his rights." Id., at 31a. Alternatively, the District Court found that Perkins had failed to meet the strict standard by which pleas of actual innocence are measured: He had not shown that, taking account of all the evidence, "it is more likely than not that no reasonable juror would have convicted him," or even that the evidence was new. Id., at 30a-31a. Perkins appealed the District Court's judgment. Although recognizing that AEDPA's statute of limitations had expired and that Perkins had not diligently pursued his rights, the Sixth Circuit granted a certificate of appealability limited to a single question: Is reasonable diligence a precondition to relying on actual innocence as a gateway to adjudication of a federal habeas petition on the merits? Certificate of Appealability 2-3. On consideration of the certified question, the Court of Appeals reversed the District Court's judgment. Adhering to Circuit precedent, Souter v. Jones, 395 F.3d 577, 597-602 (2005), the Sixth Circuit held that Perkins' gateway actual-innocence allegations allowed him to present his ineffective-assistance-of-counsel claim as if it were filed on time. On remand, the Court of Appeals instructed, "the [D]istrict [C]ourt [should] fully consider whether Perkins assert[ed] a credible claim of actual innocence." 670 F.3d, at 676. We granted certiorari to resolve a Circuit conflict on whether AEDPA's statute of limitations can be overcome by a showing of actual innocence. 568 U.S. ----, 133 S.Ct. 527, 184 L.Ed.2d 338 (2012). Compare, e.g., San Martin v. McNeil, 633 F.3d 1257, 1267-1268 (C.A.11 2011) ("A court ... may consider an untimely § 2254 petition if, by refusing to consider the petition for untimeliness, the court thereby would endorse a 'fundamental miscarriage of justice' because it would require that an individual who is actually innocent remain imprisoned."), with, e.g., Escamilla v. Jungwirth, 426 F.3d 868, 871-872 (C.A.7 2005) ("Prisoners claiming to be innocent, like those contending that other events spoil the conviction, must meet the statutory requirement of timely action."). See also Rivas v. Fischer, 687 F.3d 514, 548 (C.A.2 2012) (collecting cases). II A In Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010), this Court addressed the circumstances in which a federal habeas petitioner could invoke the doctrine of "equitable tolling." Holland held that "a [habeas] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Id., at ----, 130 S.Ct., at 2562 (internal quotation marks omitted). As the courts below comprehended, Perkins does not qualify for equitable tolling. In possession of all three affidavits by July 2002, he waited nearly six years to seek federal postconviction relief. "Such a delay falls far short of demonstrating the ... diligence" required to entitle a petitioner to equitable tolling. App. to Pet. for Cert. 31a (District Court opinion). See also Certificate of Appealability 2. Perkins, however, asserts not an excuse for filing after the statute of limitations has run. Instead, he maintains that a plea of actual innocence can overcome AEDPA's one-year statute of limitations. He thus seeks an equitable exception to § 2244(d)(1), not an extension of the time statutorily prescribed. See Rivas, 687 F.3d, at 547, n. 42 (distinguishing from "equitable tolling" a plea to override the statute of limitations when actual innocence is shown). Decisions of this Court support Perkins' view of the significance of a convincing actual-innocence claim. We have not resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence. Herrera v. Collins, 506 U.S. 390, 404-405, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). We have recognized, however, that a prisoner "otherwise subject to defenses of abusive or successive use of the writ [of habeas corpus] may have his federal constitutional claim considered on the merits if he makes a proper showing of actual innocence." Id., at 404, 113 S.Ct. 853 (citing Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992) ). See also Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) ("[W]e think that in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default."). In other words, a credible showing of actual innocence may allow a prisoner to pursue his constitutional claims (here, ineffective assistance of counsel) on the merits notwithstanding the existence of a procedural bar to relief. "This rule, or fundamental miscarriage of justice exception, is grounded in the 'equitable discretion' of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons." Herrera, 506 U.S., at 404, 113 S.Ct. 853. We have applied the miscarriage of justice exception to overcome various procedural defaults. These include "successive " petitions asserting previously rejected claims, see Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986) (plurality opinion), "abusive" petitions asserting in a second petition claims that could have been raised in a first petition, see McCleskey v. Zant, 499 U.S. 467, 494-495, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), failure to develop facts in state court, see Keeney v. Tamayo-Reyes, 504 U.S. 1, 11-12, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992), and failure to observe state procedural rules, including filing deadlines, see Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) ; Carrier, 477 U.S., at 495-496, 106 S.Ct. 2639. The miscarriage of justice exception, our decisions bear out, survived AEDPA's passage. In Calderon v. Thompson, 523 U.S. 538, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998), we applied the exception to hold that a federal court may, consistent with AEDPA, recall its mandate in order to revisit the merits of a decision. Id., at 558, 118 S.Ct. 1489 ("The miscarriage of justice standard is altogether consistent ... with AEDPA's central concern that the merits of concluded criminal proceedings not be revisited in the absence of a strong showing of actual innocence."). In Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), we held, in the context of § 2255, that actual innocence may overcome a prisoner's failure to raise a constitutional objection on direct review. Most recently, in House, we reiterated that a prisoner's proof of actual innocence may provide a gateway for federal habeas review of a procedurally defaulted claim of constitutional error. 547 U.S., at 537-538, 126 S.Ct. 2064. These decisions "see[k] to balance the societal interests in finality, comity, and conservation of scarce judicial resources with the individual interest in justice that arises in the extraordinary case." Schlup, 513 U.S., at 324, 115 S.Ct. 851. Sensitivity to the injustice of incarcerating an innocent individual should not abate when the impediment is AEDPA's statute of limitations. As just noted, see supra, at 1931 - 1932, we have held that the miscarriage of justice exception applies to state procedural rules, including filing deadlines. Coleman, 501 U.S., at 750, 111 S.Ct. 2546. A federal court may invoke the miscarriage of justice exception to justify consideration of claims defaulted in state court under state timeliness rules. See ibid. The State's reading of AEDPA's time prescription would thus accord greater force to a federal deadline than to a similarly designed state deadline. It would be passing strange to interpret a statute seeking to promote federalism and comity as requiring stricter enforcement of federal procedural rules than procedural rules established and enforced by the States . B The State ties to § 2244(d)'s text its insistence that AEDPA's statute of limitations precludes courts from considering late-filed actual-innocence gateway claims. " Section 2244(d)(1)(D)," the State contends, "forecloses any argument that a habeas petitioner has unlimited time to present new evidence in support of a constitutional claim." Brief for Petitioner 17. That is so, the State maintains, because AEDPA prescribes a comprehensive system for determining when its one-year limitations period begins to run. "Included within that system," the State observes, "is a specific trigger for the precise circumstance presented here: a constitutional claim based on new evidence." Ibid. Section 2244(d)(1)(D) runs the clock from "the date on which the factual predicate of the claim ... could have been discovered through the exercise of due diligence." In light of that provision, the State urges, "there is no need for the courts to act in equity to provide additional time for persons who allege actual innocence as a gateway to their claims of constitutional error." Ibid. Perkins' request for an equitable exception to the statute of limitations, the State charges, would "rende[r] superfluous this carefully scripted scheme." Id., at 18. The State's argument in this regard bears blinders. AEDPA's time limitations apply to the typical case in which no allegation of actual innocence is made. The miscarriage of justice exception, we underscore, applies to a severely confined category: cases in which new evidence shows "it is more likely than not that no reasonable juror would have convicted [the petitioner]." Schlup, 513 U.S., at 329, 115 S.Ct. 851 (internal quotation marks omitted). Section 2244(d)(1)(D) is both modestly more stringent (because it requires diligence) and dramatically less stringent (because it requires no showing of innocence). Many petitions that could not pass through the actual-innocence gateway will be timely or not measured by § 2244(d)(1)(D)'s triggering provision. That provision, in short, will hardly be rendered superfluous by recognition of the miscarriage of justice exception. The State further relies on provisions of AEDPA other than § 2244(d)(1)(D), namely, §§ 2244(b)(2)(B) and 2254(e)(2), to urge that Congress knew how to incorporate the miscarriage of justice exception when it was so minded. Section 2244(b)(2)(B), the State observes, provides that a petitioner whose first federal habeas petition has already been adjudicated when new evidence comes to light may file a second-or-successive petition when, and only when, the facts underlying the new claim would "establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." § 2244(b)(2)(B)(ii). And § 2254(e)(2), which generally bars evidentiary hearings in federal habeas proceedings initiated by state prisoners, includes an exception for prisoners who present new evidence of their innocence. See §§ 2254(e)(2)(A)(ii), (B) (permitting evidentiary hearings in federal court if "the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense"). But Congress did not simply incorporate the miscarriage of justice exception into §§ 2244(b)(2)(B) and 2254(e)(2). Rather, Congress constrained the application of the exception. Prior to AEDPA's enactment, a court could grant relief on a second-or-successive petition, then known as an "abusive" petition, if the petitioner could show that "a fundamental miscarriage of justice would result from a failure to entertain the claim." McCleskey, 499 U.S., at 495, 111 S.Ct. 1454. Section 2244(b)(2)(B) limits the exception to cases in which "the factual predicate for the claim could not have been discovered previously through the exercise of due diligence," and the petitioner can establish that no reasonable factfinder "would have found [her] guilty of the underlying offense" by "clear and convincing evidence." Congress thus required second-or-successive habeas petitioners attempting to benefit from the miscarriage of justice exception to meet a higher level of proof ("clear and convincing evidence") and to satisfy a diligence requirement that did not exist prior to AEDPA's passage. Likewise, petitioners asserting actual innocence pre-AEDPA could obtain evidentiary hearings in federal court even if they failed to develop facts in state court. See Keeney, 504 U.S., at 12, 112 S.Ct. 1715 ("A habeas petitioner's failure to develop a claim in state-court proceedings will be excused and a hearing mandated if he can show that a fundamental miscarriage of justice would result from failure to hold a federal evidentiary hearing."). Under AEDPA, a petitioner seeking an evidentiary hearing must show diligence and, in addition, establish her actual innocence by clear and convincing evidence. §§ 2254(e)(2)(A)(ii), (B). Sections 2244(b)(2)(B) and 2254(e)(2) thus reflect Congress' will to modify the miscarriage of justice exception with respect to second-or-successive petitions and the holding of evidentiary hearings in federal court. These provisions do not demonstrate Congress' intent to preclude courts from applying the exception, unmodified, to "the type of petition at issue here"-an untimely first federal habeas petition alleging a gateway actual-innocence claim. House, 547 U.S., at 539, 126 S.Ct. 2064. The more rational inference to draw from Congress' incorporation of a modified version of the miscarriage of justice exception in §§ 2244(b)(2)(B) and 2254(e)(2) is simply this: In a case not governed by those provisions, i.e., a first petition for federal habeas relief, the miscarriage of justice exception survived AEDPA's passage intact and unrestricted. Our reading of the statute is supported by the Court's opinion in Holland ."[E]quitable principles have traditionally governed the substantive law of habeas corpus," Holland reminded, and affirmed that "we will not construe a statute to displace courts' traditional equitable authority absent the clearest command." 560 U.S., at ----, 130 S.Ct., at 2562 (internal quotation marks omitted). The text of § 2244(d)(1) contains no clear command countering the courts' equitable authority to invoke the miscarriage of justice exception to overcome expiration of the statute of limitations governing a first federal habeas petition. As we observed in Holland, "AEDPA seeks to eliminate delays in the federal habeas review process. But AEDPA seeks to do so without undermining basic habeas corpus principles and while seeking to harmonize the new statute with prior law.... When Congress codified new rules governing this previously judicially managed area of law, it did so without losing sight of the fact that the writ of habeas corpus plays a vital role in protecting constitutional rights." Id., at ----, 130 S.Ct., at 2562 (citations and internal quotation marks omitted). III Having rejected the State's argument that § 2244(d)(1)(D) precludes a court from entertaining an untimely first federal habeas petition raising a convincing claim of actual innocence, we turn to the State's further objection to the Sixth Circuit's opinion. Even if a habeas petitioner asserting a credible claim of actual innocence may overcome AEDPA's statute of limitations, the State argues, the Court of Appeals erred in finding that no threshold diligence requirement at all applies to Perkins' petition. While formally distinct from its argument that § 2244(d)(1)(D)'s text forecloses a late-filed claim alleging actual innocence, the State's contention makes scant sense. Section 2244(d)(1)(D) requires a habeas petitioner to file a claim within one year of the time in which new evidence "could have been discovered through the exercise of due diligence." It would be bizarre to hold that a habeas petitioner who asserts a convincing claim of actual innocence may overcome the statutory time bar § 2244(d)(1)(D) erects, yet simultaneously encounter a court-fashioned diligence barrier to pursuit of her petition. See 670 F.3d, at 673 ("Requiring reasonable diligence effectively makes the concept of the actual innocence gateway redundant, since petitioners ... seek [an equitable exception only] when they were not reasonably diligent in complying with § 2244(d)(1)(D)."). While we reject the State's argument that habeas petitioners who assert convincing actual-innocence claims must prove diligence to cross a federal court's threshold, we hold that the Sixth Circuit erred to the extent that it eliminated timing as a factor relevant in evaluating the reliability of a petitioner's proof of innocence. To invoke the miscarriage of justice exception to AEDPA's statute of limitations, we repeat, a petitioner "must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Schlup, 513 U.S., at 327, 115 S.Ct. 851. Unexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing. Perkins so acknowledges. See Brief for Respondent 52 (unjustified delay may figure in determining "whether a petitioner has made a sufficient showing of innocence"). As we stated in Schlup, "[a] court may consider how the timing of the submission and the likely credibility of [a petitioner's] affiants bear on the probable reliability of ... evidence [of actual innocence]." 513 U.S., at 332, 115 S.Ct. 851. See also House, 547 U.S., at 537, 126 S.Ct. 2064. Considering a petitioner's diligence, not discretely, but as part of the assessment whether actual innocence has been convincingly shown, attends to the State's concern that it will be prejudiced by a prisoner's untoward delay in proffering new evidence. The State fears that a prisoner might "lie in wait and use stale evidence to collaterally attack his conviction ... when an elderly witness has died and cannot appear at a hearing to rebut new evidence." Brief for Petitioner 25. The timing of such a petition, however, should seriously undermine the credibility of the actual-innocence claim. Moreover, the deceased witness' prior testimony, which would have been subject to cross-examination, could be introduced in the event of a new trial. See Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (recognizing exception to the Confrontation Clause where witness is unavailable and the defendant had a prior opportunity for cross-examination). And frivolous petitions should occasion instant dismissal. See 28 U.S.C. § 2254 Rule 4. Focusing on the merits of a petitioner's actual-innocence claim and taking account of delay in that context, rather than treating timeliness as a threshold inquiry, is tuned to the rationale underlying the miscarriage of justice exception-i.e., ensuring "that federal constitutional errors do not result in the incarceration of innocent persons." Herrera, 506 U.S., at 404, 113 S.Ct. 853. IV We now return to the case at hand. The District Court proceeded properly in first determining that Perkins' claim was filed well beyond AEDPA's limitations period and that equitable tolling was unavailable to Perkins because he could demonstrate neither exceptional circumstances nor diligence. See supra, at 1930. The District Court then found that Perkins' alleged newly discovered evidence, i.e., the information contained in the three affidavits, was "substantially available to [Perkins] at trial." App. to Pet. for Cert. 31a. Moreover, the proffered evidence, even if "new," was hardly adequate to show that, had it been presented at trial, no reasonable juror would have convicted Perkins. Id., at 30a-31a. The Sixth Circuit granted a certificate of appealability limited to the question whether reasonable diligence is a precondition to reliance on actual innocence as a gateway to adjudication of a federal habeas petition on the merits. We have explained that untimeliness, although not an unyielding ground for dismissal of a petition, does bear on the credibility of evidence proffered to show actual innocence. On remand, the District Court's appraisal of Perkins' petition as insufficient to meet Schlup 's actual-innocence standard should be dispositive, absent cause, which we do not currently see, for the Sixth Circuit to upset that evaluation. We stress once again that the Schlup standard is demanding. The gateway should open only when a petition presents "evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error." 513 U.S., at 316, 115 S.Ct. 851. * * * For the reasons stated, the judgment of the Sixth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice SCALIA, with whom THE CHIEF JUSTICE and Justice THOMAS join, and with whom Justice ALITO joins as to Parts I, II, and III, dissenting. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that a "1-year period of limitation shall apply" to a state prisoner's application for a writ of habeas corpus in federal court. 28 U.S.C. § 2244(d)(1). The gaping hole in today's opinion for the Court is its failure to answer the crucial question upon which all else depends: What is the source of the Court's power to fashion what it concedes is an "exception" to this 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_issuearea

H

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. BILSKI et al. v. KAPPOS, UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR, PATENT AND TRADEMARK OFFICE No. 08-964. Argued November 9, 2009 Decided June 28, 2010 Kennedy, J., delivered the opinion of the Court, except for Parts II-B-2 and II-C-2. Roberts, C. J., and Thomas and Alito, JJ., joined the opinion in full, and Scalia, J., joined except for Parts II-B-2 and II-C-2. Stevens, J., filed an opinion concurring in the judgment, in which Ginsburg, Breyer, and Sotomayor, JJ., joined, post, p. 613. Breyer, J., filed an opinion concurring in the judgment, in which Scalia, J., joined as to Part II, post, p. 657. J Michael Jakes argued the cause for petitioners. With him on the briefs were Erika H. Arner, Ronald E. Myrick, and Denise W. DeFranco. Deputy Solicitor General Stewart argued the cause for respondent. With him on the brief were Solicitor General Kagan, Assistant Attorney General West, Ginger D. Anders, Scott R. McIntosh, Cameron F. Kerry, Raymond T. Chen, Thomas W. Krause, and Scott C. Weidenfeller. Briefs of amici curiae urging reversal were filed for the American Intellectual Property Law Association by William K. West, Jr.; for the Association Internationale Pour la Protection de la Propriété Intellectuelle et al. by R. Mark Halligan; for AwakenIP, LLC, by Joel H. Thornton and Jeffrey R. Kuester; for Borland Software Corp. by Scott S. Kokka; for the Boston Patent Law Association by Joel R. Leeman, Steven J. Henry, and Han N. Barzilay; for Caris Diagnostics, Inc., by Gideon A. Schor; for the Eagle Forum Education and Legal Defense Fund by Andrew L. Schlafly; for Entrepreneurial Software Companies by Robert Greene Sterne, Michael D. Spécht, and Michelle K. Holoubek; for the Fédération Internationale des Conseils en Propriété Industrielle by Maxim H. Waldbaum; for the Franklin Pierce Law Center by Ann M. McCrackin and Thomas G. Field, Jr.; for the Georgia Biomedical Partnership, Inc., by William H. Kitchens; for the Intellectual Property Section of the Nevada State Bar by Robert C. Ryan, Charles Dominick Lombino, and Bryce K. Earl; for Regulatory Datacorp, Inc., et al. by John F. Duffy, John A. Squires, Walter G. Hanchuk, and Charles M. Fish; for the University of South Florida by Jeff Lloyd; and for Raymond C. Meiers by Gregg W. Emch. Briefs of amici curiae urging affirmance were filed for the American Bar Association by Carolyn B. Lamm and Thomas C. Goldstein; for Bank of America Corp. et al. by Seth P. Waxman, Randolph D. Moss, Catherine M. A. Carroll, and William F. Lee; for Bloomberg L. P. by Kelsey I. Nix; for the Business Software Alliance by Andrew J. Pincus and Dan Himmelfarb; for the Center for Advanced Study and Research in Intellectual Property of the University of Washington School of Law et al. by Richard H. Stern; for the Computer & Communications Industry Association by Glenn B. Manishin; for Eleven Law Professors et al. by Joshua D. Sarnoff, pro se, and Barbara A. Jones; for Entrepreneurial and Consumer Advocates by Jason M. Schultz and Pamela Samuelson; for the Free Software Foundation by Jerry Cohen; for Internet Retailers by Peter J. Brann; for Microsoft Corp. et al. by Mark A. Perry, Matthew D. McGill, Horacio E. Gutiérrez, T. Andrew Culbert, Jack E. Haken, Kevin C. Ecker, and Todd A. Holmbo; for Red Hat, Inc., by Robert H. Tiller; for the Software Freedom Law Center by Eben Moglen; for the Software & Information Industry Association by Scott E. Bain; for the William Mitchell College of Law, Intellectual Property Institute, by R. Carl Moy; for Lee A. Hollaar et al. by David M. Bennion; for Mark Landesmann by Mr. Landesmann, pro se; and for Timothy F. McDonough by William M. Lamoreaux. Briefs of amici curiae were filed for Accenture et al. by Meredith Martin Addy, Charles M. McMahon, and Steven J. Shapiro; for Adamas Pharmaceuticals, Inc., et al. by Karen I. Boyd; for the American Insurance Association et al. by James R. Myers and Jesse J. Jenner; for the American Medical Association et al. by Katherine J. Strandburg, Jonathan E. Singer, and John A. Dragseth; for the Austin Intellectual Property Law Association by Jennifer C. Kuhn; for the Biotechnology Industry Organization et al. by E. Anthony Figg, Nancy J. Linde, Minaksi Bhatt, Martha Cassidy, Howard W. Bremer, and P. Martin Simpson, Jr.; for the Conejo Valley Bar Association by Steven C. Sereboff, M. Kola Sarvaiya, Mark A. Goldstein, and Michael D. Harris; for Dolby Laboratories, Inc., et al. by John L. Cooper, Nan E. Joesten, and Deepak Gupta; for Double Rock Corp. et al. by Charles R. Macedo, Anthony F. Lo Cicero, and Norajean McCaf frey; for the Federal Circuit Bar Association by James F. McKeown; for the Foundation for a Free Information Infrastructure et al. by Mlonn E. Levy; for the Houston Intellectual Property Law Association by Howard L. Speight; for the Intellectual Property Law Association of Chicago by Edward D. Manzo, Patrick G. Burns, Donald W. Rupert, and John R. Crossan; for the Intellectual Property Owners Association by George L. Graff, Eric E. Bensen, and Steven W. Miller; for International Business Machines Corp. by Catherine E. Stetson, Jessica L. Ellsworth, and Kenneth R. Corsello; for Knowledge Ecology International by Michael H. Davis; for Legal OnRamp by Catriona M. Collins; for Medtronic, Inc., by Lawrence M. Sung and Jeff E. Schwartz; for Monogram Biosciences, Inc., et al. by Narinder S. Banait, Tyler Baker, Daniel R. Brownstone, Stuart P. Meyer, and Robert R. Sachs; for Novartis Corp. by Jeffrey A. Lam-ken; for the Pharmaceutical Research and Manufacturers of America by Harry J. Roper, Paul M. Smith, and Marc A. Goldman; for Prometheus Laboratories Inc. by Richard P. Bress, J. Scott Ballenger, and Alexander Maltas; for the San Diego Intellectual Property Law Association by Robert C. Laurenson and Douglas E. Olson; for Telecommunication Systems, Inc., by Robert P. Greenspoon and William W. Flachsbart; for TELES AG by Thomas S. Biemer and Philip J. Foret; for Time Systems, Inc., by Stuart P. Meyer and Tyler A. Baker; for the Washington State Patent Law Association by Peter J. Knudsen and Michael J. Swope; for Yahoo! Inc. by Christopher J. Wright and Timothy J. Simeone; for Dr. Ananda Chakrabarty by F. Scott Kieff and Richard A. Epstein; for Kevin Emerson Collins by Mr. Collins, pro se; for Peter S. Menell et al. by Mr. Menell, pro se; for Gary W. Odom et al. by Jonathan E. Mansfield; for Robert R. Sachs et al. by Mr. Sachs and Daniel R. Brownstone, both pro se; for John P. Sutton by Mr. Sutton, pro se; and for 20 Law and Business Professors by Mark A. Lemley, Ted M. Sichelman, and Michael V. Risch, all pro se. Justice Kennedy delivered the opinion of the Court, except as to Parts II-B-2 and II-C-2. The question in this case turns on whether a patent can be issued for a claimed invention designed for the business world. The patent application claims a procedure for instructing buyers and sellers how to protect against the risk of price fluctuations in a discrete section of the economy. Three arguments are advanced for the proposition that the claimed invention is outside the scope of patent law: (1) It is not tied to a machine and does not transform an article; (2) it involves a method of conducting business; and (3) it is merely an abstract idea. The Court of Appeals ruled that the first mentioned of these, the so-called machine-or-transformation test, was the sole test to be used for determining the patent-ability of a “process” under the Patent Act, 35 U. S. C. § 101. I Petitioners’ application seeks patent protection for a claimed invention that explains how buyers and sellers of commodities in the energy market can protect, or hedge, against the risk of price changes. The key claims are claims 1 and 4. Claim 1 describes a series of steps instructing how to hedge risk. Claim 4 puts the concept articulated in claim 1 into a simple mathematical formula. Claim 1 consists of the following steps: “(a) initiating a series of transactions between said commodity provider and consumers of said commodity wherein said consumers purchase said commodity at a fixed rate based upon historical averages, said fixed rate corresponding to a risk position of said consumers; “(b) identifying market participants for said commodity having a counter-risk position to said consumers; and “(c) initiating a series of transactions between said commodity provider and said market participants at a second fixed rate such that said series of market participant transactions balances the risk position of said series of consumer transactions.” App. 19-20. The remaining claims explain how claims 1 and 4 can be applied to allow energy suppliers and consumers to minimize the risks resulting from fluctuations in market demand for energy. For example, claim 2 claims “[t]he method of claim 1 wherein said commodity is energy and said market participants are transmission distributors.” Id., at 20. Some of these claims also suggest familiar statistical approaches to determine the inputs to use in claim 4’s equation. For example, claim 7 advises using well-known random analysis techniques to determine how much a seller will gain “from each transaction under each historical weather pattern.” Id., at 21. The patent examiner rejected petitioners’ application, explaining that it “ ‘is not implemented on a specific apparatus and merely manipulates [an] abstract idea and solves a purely mathematical problem without any limitation to a practical application, therefore, the invention is not directed to the technological arts.’” App. to Pet. for Cert. 148a. The Board of Patent Appeals and Interferences affirmed, concluding that the application involved only mental steps that do not transform physical matter and was directed to an abstract idea. Id., at 181a-186a. The United States Court of Appeals for the Federal Circuit heard the case en banc and affirmed. The case produced five different opinions. Students of patent law would be well advised to study these scholarly opinions. Chief Judge Michel wrote the opinion of the court. The court rejected its prior test for determining whether a claimed invention was a patentable “process” under § 101— whether it produces a “'useful, concrete and tangible result’” — as articulated in State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F. 3d 1368, 1373 (1998), and AT&T Corp. v. Excel Communications, Inc., 172 F. 3d 1352, 1357 (1999). See In re Bilski, 545 F. 3d 943, 959-960, and n. 19 (CA Fed. 2008) (en banc). The court held that “[a] claimed process is surely patent-eligible under § 101 if: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.” Id., at 954. The court concluded this “machine-or-transformation test” is “the sole test governing § 101 analyses,” id., at 955, and thus the “test for determining patent eligibility of a process under §101,” id., at 956. Applying the machine-or-transformation test, the court held that petitioners’ application was not patent eligible. Id., at 963-966. Judge Dyk wrote a separate concurring opinion, providing historical support for the court’s approach. Id., at 966-976. Three judges wrote dissenting opinions. Judge Mayer argued that petitioners’ application was “not eligible for patent protection because it is directed to a method of conducting business.” Id., at 998. He urged the adoption of a “technological standard for patentability.” Id., at 1010. Judge Rader would have found petitioners’ claims were an unpatentable abstract idea. Id., at 1011. Only Judge Newman disagreed with the court’s conclusion that petitioners’ application was outside of the reach of § 101. She did not say that the application should have been granted but only that the issue should be remanded for farther proceedings to determine whether the application qualified as patentable under other provisions. Id., at 997. This Court granted certiorari. 556 U. S. 1268 (2009). II A Section 101 defines the subject matter that may be patented under the Patent Act: “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” Section 101 thus specifies four independent categories of inventions or discoveries that are eligible for protection: processes, machines, manufactures, and compositions of matter. “In choosing such expansive terms .. . modified by the comprehensive ‘any,’ Congress plainly contemplated that the patent laws would be given wide scope.” Diamond v. Chakrabarty, 447 U. S. 303, 308 (1980). Congress took this permissive approach to patent eligibility to ensure that “ ‘ingenuity should receive a liberal encouragement.’” Id., at 308-309 (quoting 5 Writings of Thomas Jefferson 75-76 (H. Washington ed. 1871)). The Court’s precedents provide three specific exceptions to § 101’s broad patent-eligibility principles: “laws of nature, physical phenomena, and abstract ideas.” Chakrabarty, supra, at 309. While these exceptions are not required by the statutory text, they are consistent with the notion that a patentable process must be “new and useful.” And, in any case, these exceptions have defined the reach of the statute as a matter of statutory stare *decisis going back 150 years. See Le Roy v. Tatham, 14 How. 156, 174-175 (1853). The concepts covered by these exceptions are “part of the storehouse of knowledge of all men . . . free to all men and reserved exclusively to none.” Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U. S. 127, 130 (1948). The § 101 patent-eligibility inquiry is only a threshold test. Even if an invention qualifies as a process, machine, manufacture, or composition of matter, in order to receive the Patent Act’s protection the claimed invention must also satisfy “the conditions and requirements of this title.” §101. Those requirements include that the invention be novel, see §102, nonobvious, see § 103, and fully and particularly described, see § 112. The present case involves an invention that is claimed to be a “process” under §101. Section 100(b) defines “process” as: “process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.” The Court first considers two proposed categorical limitations on “process” patents under § 101 that would, if adopted, bar petitioners’ application in the present case: the machine- or-transformation test and the categorical exclusion of business method patents. B 1 Under the Court of Appeals’ formulation, an invention is a “process” only if: “(1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.” 545 F. 3d, at 954. This Court has “more than once cautioned that courts 'should not read into the patent laws limitations and conditions which the legislature has not expressed.’ ” Diamond v. Diehr, 450 U. S. 175, 182 (1981) (quoting Chakrabarty, supra, at 308; some internal quotation marks omitted). In patent law, as in all statutory-construction, “[ujnless otherwise defined, ‘words will be interpreted as taking their ordinary, contemporary common meaning.’” Diehr, supra, at 182 (quoting Perrin v. United States, 444 U. S. 37, 42 (1979)). The Court has read the § 101 term “manufacture” in accordance with dictionary definitions, see Chakrabarty, supra, at 308 (citing American Fruit Growers, Inc. v. Brogdex Co., 283 U. S. 1, 11 (1931)), and approved a construction of the term “composition of matter” consistent with common usage, see Chakrabarty, supra, at 308 (citing Shell Development Co. v. Watson, 149 F. Supp. 279, 280 (DC 1957)). Any suggestion in this Court’s case law that the Patent Act’s terms deviate from their ordinary meaning has only been an explanation for the exceptions for laws of nature, physical phenomena, and abstract ideas. See Parker v. Flook, 437 U. S. 584, 588-589 (1978). This Court has not indicated that the existence of these well-established exceptions gives the Judiciary carte blanche to impose other limitations that are inconsistent with the text and the statute’s purpose and design. Concerns about attempts to call any form of human activity a “process” can be met by making sure the claim meets the requirements of § 101. Adopting the machine-or-transformation test as the sole test for what constitutes a “process” (as opposed to just an important and useful clue) violates these statutory interpretation principles. Section 100(b) provides that “[t]he term ‘process’ means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.” The Court is unaware of any “ ‘ordinary, contemporary, common meaning,’” Diehr, supra, at 182, of the definitional terms “process, art or method” that would require these terms to be tied to a machine or to transform an article. Respondent urges the Court to look to the other patentable categories in § 101 — machines, manufactures, and compositions of matter — to confine the meaning of “process” to a machine or transformation, under the doctrine of noscitur a sociis. - Under this canon, “an ambiguous term may be given more precise content by the neighboring words with which it is associated.” United States v. Stevens, 559 U. S. 460, 474 (2010) (internal quotation marks omitted). This canon is inapplicable here, for § 100(b) already explicitly defines the term “process.” See Burgess v. United States, 553 U. S. 124, 130 (2008) (“When a statute includes an explicit definition, we must follow that definition” (internal quotation marks omitted)). The Court of Appeals incorrectly concluded that this Court has endorsed the'machine-or-transformation test as the exclusive test. It is true that Cochrane v. Deener, 94 U. S. 780, 788 (1877), explained that a “process” is “an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing.” More recent cases, however, have rejected the broad implications of this dictum; and, in all events, later authority shows that it was not intended to be an exhaustive or exclusive test. Gottschalk v. Benson, 409 U. S. 63, 70 (1972), noted that “[transformation and reduction of an article 'to a different state or thing’ is the clue to the patentability of a process claim that does not include particular machines.” At the same time, it explicitly declined to “hold that no process patent could ever qualify if it did not meet [machine-or-transformation] requirements.” Id., at 71. Flook took a similar approach, “assum[ing] that a valid process patent may issue even if it does not meet [the machine-or-transformation test].” 437 U. S., at 588, n. 9. This Court’s precedents establish that the machine-or-transformation test is a useful and important clue, an investigative tool, for determining whether some claimed inventions are processes under § 101. The machine-or-transformation test is not the sole test for deciding whether an invention is a patent-eligible “process.” 2 It is true that patents for inventions that did not satisfy the machine-or-transformation test were rarely granted in earlier eras, especially in the Industrial Age, as explained by Judge Dyk’s thoughtful historical review. See 545 F. 3d, at 966-976 (concurring opinion). But times change. Technology and other innovations progress in unexpected ways. For example, it was once forcefully argued that until recent times, “well-established principles of patent law probably would have prevented the issuance of a valid patent on almost any conceivable computer program.” Diehr, 450 U. S., at 195 (Stevens, J., dissenting). But this fact does not mean that unforeseen innovations such as computer programs are always unpatentable. See id., at 192-193 (majority opinion) (holding a procedure for molding rubber that included a computer program is within patentable subject matter). Section 101 is a “dynamic provision designed to encompass new and unforeseen inventions.” J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534 U. S. 124, 135 (2001). A categorical rule denying patent protection for “inventions in areas not contemplated by Congress . . . would frustrate the purposes of the patent law.” Chakrabarty, 447 U. S., at 315. The machine-or-transformation test may well provide a sufficient basis for evaluating processes similar to those in the Industrial Age — for example, inventions grounded in a physical or other tangible form. But there are reasons to doubt whether the test should be the sole criterion for determining the patentability of inventions in the Information Age. As numerous amicus briefs argue, the machine-or-transformation test would create uncertainty as to the patentability of software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals. See, e. g., Brief for Business Software Alliance 24-25; Brief for Biotechnology Industry Organization et al. 14-27; Brief for Boston Patent Law Association 8-15; Brief for Houston Intellectual Property Law Association 17-22; Brief for Dolby Laboratories, Inc., et al. 9-10. In the course of applying the machine-or-transformation test to emerging technologies, courts may pose questions of such intricacy and refinement that they risk obscuring the larger object of securing patents for valuable inventions without transgressing the public domain. The dissent by Judge Rader refers to some of these difficulties. 545 F. 3d, at 1015. As a result, in deciding whether previously unforeseen inventions qualify as patentable “process[es],” it may not make sense to require courts to confine themselves to asking the questions posed by the machine-or-transformation test. Section 101’s terms suggest that new technologies may call for new inquiries. See Benson, supra, at 71 (to “freeze process patents to old technologies, leaving no room for the revelations of the new, onrushing technology [,]... is not our purpose”). It is important to emphasize that the Court today is not commenting on the patentability of any particular invention, let alone holding that any of the above-mentioned technologies from the Information Age should or should not receive patent protection. This Age puts the possibility of innovation in the hands of more people and raises new difficulties for the patent law. With ever more people trying to innovate and thus seeking patent protections for their inventions, the patent law faces a great challenge in striking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of general principles. Nothing in this opinion should be read to take a position on where that balance ought to be struck. C 1 Section 101 similarly precludes the broad contention that the term “process” categorically excludes business methods. The term “method,” which is within § 100(b)’s definition of “process,” at least as a textual matter and before consulting other limitations in the Patent Act and this Court’s precedents, may include at least some methods of doing business. See, e. g., Webster’s New International Dictionary 1548 (2d ed. 1954) (defining “method” as “[a]n orderly procedure or process ... regular way or manner of doing anything; hence, a set form of procedure adopted in investigation or instruction”). The Court is unaware of any argument that the “ 'ordinary, contemporary, common meaning,’ ” Diehr, supra, at 182, of “method” excludes business methods. Nor is it clear how far a prohibition on business method patents would reach, and whether it would exclude technologies for conducting a business more efficiently. See, e. g., Hall, Business and Financial Method Patents, Innovation, and Policy, 56 Scottish J. Pol. Econ. 443, 445 (2009) (“There is no precise definition of . . . business method patents”). The argument that business methods are categorically outside of §101’s scope is further undermined by the fact that federal law explicitly contemplates the existence of at least some business method patents. Under 35 U. S. C. § 273(b)(1), if a patent holder claims infringement based on “a method in [a] patent,” the alleged infringer can assert a defense of prior use. For purposes of this defense alone, “method” is defined as “a method of doing or conducting business.” § 273(a)(3). In other words, by allowing this defense the statute itself acknowledges that there may be business method patents. Section 273’s definition of “method,” to be sure, cannot change the meaning of a prior-enacted statute. But what §273 does is clarify the understanding that a business method is simply one kind of “method” that is, at least in some circumstances, eligible for patenting under § 101. A conclusion that business methods are not patentable in any circumstances would render §273 meaningless. This would violate the canon against interpreting any statutory provision in a manner that would render another provision superfluous. See Corley v. United States, 556 U. S. 303, 314 (2009). This principle, of course, applies to interpreting any two provisions in the U. S. Code, even when Congress enacted the provisions at different times. See, e. g., Hague v. Committee for Industrial Organization, 307 U. S. 496, 529-530 (1939) (opinion of Stone, J.). This established rule of statutory interpretation cannot be overcome by judicial speculation as to the subjective intent of various legislators in enacting the subsequent provision. Finally, while §273 appears to leave open the possibility of some business method patents, it does not suggest broad patentability of such claimed inventions. 2 Interpreting § 101 to exclude all business methods simply because business method patents were rarely issued until modern times revives many of the previously discussed difficulties. See supra, at, 605-606. At the same time, some business method patents raise special problems in terms of vagueness and suspect validity. See eBay Inc. v. MercExchange, L. L. C., 547 U. S. 388, 397 (2006) (Kennedy, J., concurring). The Information Age empowers people with new capacities to perform statistical analyses and mathematical calculations with a speed and sophistication that enable the design of protocols for more efficient performance of a vast number of business tasks. If a high enough bar is not set when considering patent applications of this sort, patent examiners and courts could be flooded with claims that would put a chill on creative endeavor and dynamic change. In searching for a limiting principle, this Court’s precedents on the unpatentability of abstract ideas provide useful tools. See infra, at 609-612. Indeed, if the Court of Appeals were to succeed in defining a narrower category or class of patent applications that claim to instruct how business should be conducted, and then rule that the category is unpatentable because, for instance, it represents an attempt to patent abstract ideas, this conclusion might well be in accord with controlling precedent. See ibid. But beyond this or some other limitation consistent with the statutory text, the Patent Act leaves open the possibility that there are at least some processes that can be fairly described as business methods that are within patentable subject matter under §101. Finally, even if a particular business method fits into the statutory definition of a “process,” that does not mean that the application claiming that method should be granted. In order to receive patent protection, any claimed invention must be novel, § 102, nonobvious, § 103, and fully and particularly described, § 112. These limitations serve a critical role in adjusting the tension, ever present in patent law, between stimulating innovation by protecting inventors and impeding progress by granting patents when not justified by the statutory design. Ill Even though petitioners’ application is not categorically outside of § 101 under the two broad and atextual approaches the Court rejects today, that does not mean it is a “process” under § 101. Petitioners seek to patent both the concept of hedging risk and the application of that concept to energy markets. App. 19-20. Rather than adopting categorical rules that might have wide-ranging and unforeseen impacts, the Court resolves this case narrowly on the basis of this Court’s decisions in Benson, Flook, and Diehr, which show that petitioners’ claims are not patentable processes because they are attempts to patent abstract ideas. Indeed, all Members of the Court agree that the patent application at issue here falls outside of §101 because it claims an abstract idea. In Benson, the Court considered whether a patent application for an algorithm to convert binary-coded decimal numerals into pure binary code was a “process” under § 101. 409 U. S., at 64-67. The Court first explained that “‘[a] principie, in the abstract, is a fundamental truth; an original cause; a motive; these cannot be patented, as no one can claim in either of them an exclusive right.’” Id., at 67 (quoting Le Roy, 14 How., at 175). The Court then held the application at issue was not a “process,” but an unpatentable abstract idea. “It is conceded that one may not patent an idea. But in practical effect that would be the result if the formula for converting . . . numerals to pure binary numerals were patented in this case.” 409 U. S., at 71. A contrary holding “would wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself.” Id., at 72.' In Flook, the Court considered the next logical step after Benson. The applicant there attempted to patent a procedure for monitoring the conditions during the catalytic conversion process in the petrochemical and oil-refining industries. The application’s only innovation was reliance on a mathematical algorithm. 437 U. S., at 585-586. Flook held the invention was not a patentable “process.” The Court conceded the invention at issue, unlike the algorithm in Benson, had been limited so that it could still be freely used outside the petrochemical and oil-refining industries. 437 U. S., at 589-590. Nevertheless, Flook rejected “[t]he notion that post-solution activity, no matter how conventional or obvious in itself, can transform an unpatentable principle into a patentable process.” Id., at 590. The Court concluded that the process at issue there was “unpatentable under § 101, not because it contained] a mathematical algorithm as one component, but because once that algorithm [wa]s assumed to be within the prior art, the application, considered as a whole, contained] no patentable invention.” Id., at 594. As the Court later explained, Flook stands for the proposition that the prohibition against patenting abstract ideas “cannot be circumvented by attempting to limit the use of the formula to a particular technological environment” or adding “insignificant postsolution activity.” Diehr, 450 U. S., at 191-192. Finally, in Diehr, the Court established a limitation on the principles articulated in Benson and Flook. The application in Diehr claimed a previously unknown method for “molding raw, uncured synthetic rubber into cured precision products,” using a mathematical formula to complete some of its several steps by way of a computer. 450 U. S., at 177. Diehr explained that while an abstract idea, law of nature, or mathematical formula could not be patented, “an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection.” Id., at 187. Diehr emphasized the need to consider the invention as a whole, rather than “dissecting] the claims into old and new elements and then . . . ignoring] the presence of the old elements in the 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_casetyp1_1-3-1

P

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense". LEA v. UNITED STATES. No. 11736. Circuit Court of Appeals, Fifth Circuit. Feb. 15, 1947. Rehearing Denied March 17, 1947. Edwin H. Grace, of New Orleans, La., for appellant. Herbert W. Christenberry, U. S. Atty., and N.E. Simoneaux and Robert Weinstein, Asst. U. S. Attys., all of New Orleans, La., for appellee. Before HOLMES, McCORD, and WALLER, Circuit Judges. WALLER, Circuit Judge. When his demurrer to an indictment, brought under Section 100, Title 18 U.S. C.A., was overruled, the defendant pleaded nolo contendere, was adjudged guilty, and received the sentence of the Court. He now appeals, assigning as error the overruling of the demurrer. An indictment should state every material fact necessary to inform the defendant of the nature of the charge against him so that he would be able successfully to interpose a plea of former jeopardy against any other prosecution for this same offense. The indictment here alleges: That the defendant did unlawfully, feloniously, and fraudulently embezzle and convert to his own use certain monies of the United States; that said monies were the proceeds of the sale of certain United States War Savings Bonds, which sales were made by the United Theatres, Incorporated; that the United Theatres, Incorporated, were duly authorized to act as issuing agent for the sale of said bonds; that the defendant came into lawful possession of said monies as an agent and employee of said United Theatres, Incorporated. Thus the ownership of the money, the source from whence it came, the lawful possession of the money by the defendant, as an agent, or employee, of the United Theatres, Incorporated, and the felonious conversion of the money by the defendant to his own use, were alleged. We think: That the allegation that “the defendant having then and there come into the lawful possession of said monies • as an agent and employee of the said United Theatres, Incorporated,” should be taken in connection with the other allegations in the indictment and', so considered, it is an allegation of fact; that the facts alleged are sufficient to show that when the defendant, as an agent or employee, came into the lawful possession of said money, his possession was in trust; that the indictment is amply sufficient to sustain a plea of former jeopardy to any other indictment for the same offense, and that no omission therein hampered the defendant in preparing his defense. Sec. 556, Title 18 U.S.C.A., is as follows: “No indictment found and presented by a grand jury in any district or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.” Sec. 391, Title 28 U.S.C.A., commands that we “shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.” The defendant, by his plea of-nolo con-tendere, admits the truth of the facts appropriately alleged in the indictment, and we think the facts alleged are sufficient to charge him with the crime of embezzling monies of the United States as defined in the statute under which the indictment here was brought. The judgment of the Court below is affirmed. The indictment alleged that the defendant “did unlawfully, feloniously and fraudulently embezzle and convert to his own use certain, monies and property of the monies and property of the United States of America, to-wit, the sum of 818,333.64, a further description of which is unknown to yonr Grand Jurors, the said sum of $38,133.64, being the proceeds of sales of certain United States War Savings Bonds, Series E, made by United Theatres, Incorporated during the period aforesaid, the said United Theatres, Incorporated being then and there duly authorized and qualified to act as issuing agent for the sale of said United states War Savings Bonds, Series E, and the said defendant having then and there come into the lawful possession of said monies as an agent and employee of the said United Theatres, Incorporated; * * *” “§ 100. (Criminal Code, Section 47.) Embezzling public moneys or other property. Whoever shall embezzle, steal, or purloin any money, property, record, voucher, or valuable thing whatever, of tho moneys, goods, chattels, records, or property of the United States, shall be fined not more than $5,000, or imprisoned not more than five years, or both.” In Moore v. United States, 160 U.S. 268, 16 S.Ct. 294, 295, 40 L.Ed. 422, the crime of embezzlement was defined as “the fraudulent appropriation of property by a person to whom such property has been entrusted, or into whose hands it has lawfully come.” Cf. Wilson v. United States, 5 Cir., 158 F.2d 659. Question: What is the specific issue in the case within the general category of "criminal - federal offense"? A. murder B. rape C. arson D. aggravated assault E. robbery F. burglary G. auto theft H. larceny (over $50) I. other violent crimes J. narcotics K. alcohol related crimes, prohibition L. tax fraud M. firearm violations N. morals charges (e.g., gambling, prostitution, obscenity) O. criminal violations of government regulations of business P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery) Q. other crimes R. federal offense, but specific crime 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. UNITED STATES of America v. Sherman KENDIS, Appellant. Nos. 89-5260, 89-5261. United States Court of Appeals, Third Circuit. Submitted Under Third Circuit Rule 12(6) July 5, 1989. Decided Aug. 18, 1989. Sherman Kendis, Fort Worth, Tex., pro se. Donna A. Krappa, Edna Ball Axelrod, Newark, N.J., for appellee. Before SLOVITER, HUTCHINSON and NYGAARD, Circuit Judges. OPINION OF THE COURT SLOVITER, Circuit Judge. This is an appeal by Sherman Kendis, pro se, from the order of the district court denying his motion for reconsideration of the court’s order denying his motion for reduction of sentence pursuant to Fed.R. Crim.P. 35. Kendis, an attorney, pled guilty on February 9, 1987 to one count of bank fraud for unlawfully converting $144,976.29 while acting as an attorney for Ocean Club in Atlantic City by forging the signature of payees on checks given him for purposes of settlement of their claims. We shall refer to this matter as Kendis I. Pursuant to his plea agreement, Kendis was required, inter alia, to pay restitution to all potential victims. On April 10, 1987 Kendis was sentenced to five years imprisonment but all but six months of the incarceration were suspended and he was placed on five years probation to commence upon release. Execution of the sentence was stayed until May 4, 1987 when he reported for prison. On the same day he filed for personal bankruptcy. Kendis was released from custody on September 21, 1987. In October 1987, the government moved to revoke Kendis’ probation on the ground that the money he had used to make restitution to clients during the period between the acceptance of his guilty plea and his sentencing was actually money which had been entrusted to him by other clients and which he had improperly converted to his own use. In November, 1987 Kendis was indicted on five counts of bank fraud committed during the period between March 11, 1987 and May 4, 1987 while he was released on bail and awaiting sentencing in Kendis I. We shall refer to this matter as Kendis II. On December 14, 1987, following a hearing on the revocation of probation issue, the district court revoked Kendis’ probation. Thereafter on September 30, 1988 Kendis pled guilty to two counts of the five count indictment in Kendis II. He was sentenced on October 13, 1988 to three years incarceration and a fine of $10,000 on each of the two counts to which he had pled guilty, the sentences to run consecutively, and was also ordered to pay $264,925 in restitution and a $100 special assessment. On the same day the district court vacated its sentence in Kendis I as a result of the revocation of Kendis’ probation, and sentenced him to four years incarceration to be served consecutively to that imposed in Kendis II. The court also directed that Kendis pay restitution as previously ordered. On appeal Kendis contends first that the district court abused its discretion in revoking his probation on Kendis I because the offense on which the district court relied for such revocation occurred prior to his sentencing and hence while he was not on probation. We reject Kendis’ argument. In United States v. Camarata, 828 F.2d 974, 977 n. 5 (3d Cir.1987), cert. denied, — U.S. —, 108 S.Ct. 1036, 98 L.Ed.2d 1000 (1988), we recognized that some courts had adopted the fraud on the court exception to the general rule that revocation of probation is generally based on acts occurring after sentencing. See also United States v. Veatch, 792 F.2d 48, 51 (3d Cir.), cert. denied, 479 U.S. 933, 107 S.Ct. 407, 93 L.Ed.2d 359 (1986). We are now faced with the issue directly, and we also adopt the principle that revocation of probation is permissible when defendant’s acts prior to sentencing constitute a fraud on the court. Kendis argues, however, that his action in using clients’ converted funds to pay restitution did not constitute a fraud on the court because there was no concealment of the crime and the court was aware of the possibility of other potential victims of Kendis’ illegal activity. In this case, the record shows that Kendis relied heavily on his acts of restitution to persuade the district court to give him a relatively light prison sentence in Kendis I and that Ken-dis failed to reveal that restitution had been made with clients’ money. Revocation of probation under the fraud on the court theory was thereafter appropriate under these circumstances. See United States v. Jurgens, 626 F.2d 142, 144 (9th Cir.1980). Kendis next contends that the district court abused its discretion in failing to take into account explicitly the amount of time he previously served in custody before sentencing him for the revocation of probation. He argues that therefore the Bureau of Prisons improperly computed his sentence by failing to credit him with the six months that he had served on Kendis I prior to his revocation of probation. We agree with those courts that have held that when a convicted defendant receives less than the maximum possible sentence, it is presumed that the trial court has credited defendant with time already served unless the record shows otherwise. See Granger v. United States, 688 F.2d 1296 (9th Cir.1982); see also Ochoa v. Lennon, 750 F.2d 1345, 1348 (5th Cir.), cert. denied, 474 U.S. 979, 106 S.Ct. 382, 88 L.Ed.2d 335 (1985); Davis v. United States, 790 F.2d 716 (8th Cir.1986). Kendis also argues that the district court abused its discretion in failing to make specific factual findings regarding his ability to pay restitution. While it is true that this court has held that such findings are required where there is a dispute over restitution in order to aid in appellate review of the district court’s ruling, see United States v. Poliak, 844 F.2d 145, 155-56 (3d Cir.1988), we explained in United States v. Hand, 863 F.2d 1100, 1106 (3d Cir.1988), that such factual findings are not required when there is no dispute regarding the defendant’s ability to make restitution. In this case, as in Hand, Ken-dis did not object to restitution at any time preceding or during the sentencing hearing. Accordingly, the district court did not abuse its discretion. For the foregoing reasons we will affirm the order of the district court. . We have examined Kendis’ additional arguments, i.e. that 18 U.S.C. § 3013 dealing with special assessments is unconstitutional, that the district court improperly ignored the indictment against him by the state of New Jersey and hence violated the double jeopardy clause of the United States Constitution, and that the district court should have applied retroactively the Sentencing Guidelines of the Sentencing Reform Act of 1984 which became effective after the acts committed by Kendis. After consideration, we reject each of Kendis’ contentions. Question: What is the nature of the proceeding in the court of appeals for this case? A. decided by panel for first time (no indication of re-hearing or remand) B. decided by panel after re-hearing (second time this case has been heard by this same panel) C. decided by panel after remand from Supreme Court D. decided by court en banc, after single panel decision E. decided by court en banc, after multiple panel decisions F. decided by court en banc, no prior panel decisions G. decided by panel after remand to lower court H. other I. not ascertained Answer:

songer_casetyp1_7-3-4

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 - bankruptcy, antitrust, securities". COCLIN TOBACCO CO., Inc., Creditor, Appellant, v. Robert J. GRISWOLD, Trustee, et al., Appellees. In the Matter of Louis G. GREENFIELD, Bankrupt. No. 7057. United States Court of Appeals First Circuit. April 9, 1969. C. Delos, Putz, Jr., New York City, with whom Cadwalader, Wickersham & Taft, New York City, was on brief, for appellant. Leonard Toboroff, Yonkers, N. Y., with whom Norman S. Isko, Yonkers, N. Y., was on brief, for Carvel Creditors, ap-pellee. Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges. COFFIN, Circuit Judge. This is an appeal from the United States District Court for the District of Puerto Rico sitting in bankruptcy. The issues presented for our determination pertain to the allowance of the claims of the two major unsecured creditors of the bankrupt estate — appellant Coclin Tobacco and appellee Carvel, Inc. Louis G. Greenfield, the bankrupt, was a partner in the now defunct New York City law firm of Greenfield, Rothstein, Klein & Yarnell. Both claims involved in this appeal arose out of the activities of the bankrupt’s law firm. In the interest of clarity the factual background of each claim will be set forth separately. In March, 1962, Coclin engaged the bankrupt’s law firm for the purpose of bringing a private antitrust suit against Brown & Williamson Tobacco Company and British American Tobacco Company. Coclin paid a $15,000 retainer and on April 25, 1962, a complaint was filed in the Southern District of New York. In June of 1963 the bankrupt’s law firm failed to appear when Coclin’s case was called and the case was dismissed for lack of prosecution. When Coclin discovered the dismissal it retained a new law firm and sought to restore the case to the docket. When attempts to restore the case failed, a new complaint was filed. Coclin seeks to recover $15,000 paid under the retainer and $15,000 alleged to have been expended in the attempt to restore the original complaint and in the filing of the new complaint. Coclin is a partnership creditor. Carvel’s claim rests upon a judgment of the New York Supreme Court rendered against the bankrupt for conspiracy to bring false and baseless lawsuits. The memorandum of decision directing judgment for Carvel in the amount of $11,580,488.34 was issued on April 11, 1966. The judgment was entered by the Clerk on July 25, 1966. Carvel is an individual creditor of the bankrupt. On May 16, 1966, the bankrupt filed his petition in bankruptcy in the United States District Court for the District of Puerto Rico. After receiving proofs of claim, the referee allowed Carvel’s claims “provisionally” and disallowed Coclin’s claims as being contingent and unliquidated. The district court affirmed the referee, holding that under New York law there must be an abandonment by . an attorney in order to entitle the client to recover money paid for legal services. The court found that Coclin had discharged the bankrupt’s firm and therefore its claim was disallowed. The court then held that Coclin was not a “person aggrieved” under § 39 of the Bankruptcy Act, and therefore had no standing to seek review of the Carvel claims. Coclin brings this appeal. We reverse for the following reasons. In rejecting Coclin’s claim the court relied upon Tenney v. Berger, 93 N.Y. 524 (1883), as holding that there must be an abandonment of a cause by an attorney in order to justify recovery by a client. New York law is not so limited. It is clear that an attorney who is discharged for cause has no right to recover a fee and may be forced to remit a retainer paid in advance. Rimos v. Rimos, 81 N.Y.S.2d 347 (Sup.Ct.Sp.T.1948) ; See also Ganzales v. Hegner, 20 Misc.2d 232, 192 N.Y.S.2d 212 (Sup.Ct.Sp.T.1959) ; Schwartz v. Tenenbaum, 7 A.D.2d 866, 182 N.Y.S.2d 51 (1959) ; In re Montgomery, 272 N.Y. 323, 6 N.E.2d 40, 109 A.L.R. 669 (1936). The conduct of the bankrupt’s law firm clearly constituted grounds for discharge; thus Coclin has a right to recover sums paid the firm for legal services. We take no position on the amount Coclin is entitled to recover nor do we comment on the question of the liquidation of Coclin’s claim. We say only that Coclin has a valid claim under New York law. In light of our disposition of Coclin’s claim, Coclin is clearly a “person aggrieved” under § 39 of the Act and is therefore entitled to seek review of Carvel’s claim. In addition, Coclin has standing to seek review as the representative of the trustee, the estate, and all other creditors, a position which Coclin occupies by virtue of having sought and obtained such authority from the referee. In re New England Tire & Rubber Co., 13 F.2d 1004 (D.Mass.1926). . Carvel’s claim is based upon the commission of an intentional tort by the bankrupt. As a general rule tort claims are not provable in bankruptcy. An exception exists — and it is the only exception for intentional tort claims — where the claim has been reduced to judgment prior to the filing of the petition in bankruptcy. Lewis v. Roberts, 267 U.S. 467, 45 S.Ct. 357, 69 L.Ed. 739 (1925) ; 3A Collier, Bankruptcy 63.25 [1] (14th ed. 1968). The petition was filed on May 16,1966, and Carvel’s judgment was not entered by the Clerk until July 25, 1966. Carvel argues that under New York law the entry by the Clerk is merely a ministerial act and that the claim was actually reduced to judgment on April 11, 1966 when the memorandum of decision was issued. Section 63(a) (1) of the Bankruptcy Act requires that the judgment evidence " * * * a fixed liability * * absolutely owing at the time of the filing of the petition * * * whether then payable or not * * Questions of the finality of a judgment are governed by the law of the rendering forum, Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 67 S.Ct. 237, 91 L.Ed. 162 (1946). Our task is to determine whether under New York law entry of judgment is required in order to satisfy the demands of § 63(a) (1). Our research has not disclosed, nor has counsel brought to our attention, any New York decisions which have directly considered the issue before us. Appellant relies on Royal Baking Powder Co. v. Hessey, 76 F.2d 645 (4th Cir. 1935), where the court refused to admit to proof a claim based on a New York judgment entered three days after the filing of the petition in bankruptcy. Despite the superficial resemblance of Royal Baking Powder to the case at bar, we think that it is clearly distinguishable. It is true, of course, that in entering a judgment a clerk does not perform a judicial function. However, it is equally clear that New York courts have looked at the criticality of the requirement of entry from the standpoint of the purpose to be served. Entry is necessary for certain purposes. Entry fixes the period for appeal, Vogel v. Edwards, 283 N.Y. 118, 27 N.E.2d 806 (1940), and entry tolls the period for computation of interest on a judgment. See § 5003, N.Y.CPLR ; Ariola v. Petro Trucking Corp., 50 Misc. 2d 216, 270 N.Y.S.2d 309 (Sup.Ct.Sp.T. 1966). Most importantly, entry is a prerequisite to enforcement of a judgment through execution. § 5230, N.Y.CPLR ; Vogel v. Edwards, supra; Langrick v. Rowe, 126 Misc. 256, 212 N.Y.S. 240 (Sup.Ct.Sp.T.1925). We recognize that some New York cases have held entry not to be necessary for certain purposes. See, e. g., Vogel v. Edwards, supra ; Langrick v. Rowe, supra; Brovender v. Williams, 3 A.D.2d 841, 161 N.Y.S.2d 439, appeal dismissed, 3 N.Y.2d 903, 167 N.Y.S.2d 922, 145 N.E.2d 868 (1957). However, in each of these cases the result may be explained by the specific issue before the court, and perhaps most significantly, in none of these cases was the court called upon to decide whether an unentered judgment was “absolutely owing”. We think it beyond dispute that § 63(a) (1) of the Bankruptcy Act requires a “final” judgment.- The basis for requiring finality is two-fold: first, that the amount of the claim be liquidated, and secondly, that the claim have merged in the judgment. Under the present state of the law the liquidation requirement is no longer critical in most cases. However, the prerequisite of merger remains unaltered by amendments to the Bankruptcy Act. To be sure merger is something of an artificial concept but we are not without some guidelines. For. example, there can be no doubt that the rendition of a verdict, while liquidating a claim, does not result in merger and therefore is not provable in bankruptcy. See, e. g., In re Ostrom, 185 F. 988 (D.Minn.1911) ; Matter of Eads, 17 F. 813 (D.Wash. 1926). When the requirement of § 63(a) (1) is viewed in that light, we believe it clear that under New York law a judgment is not final until entered. See, Van Arsdale v. King, 155 N.Y. 325, 329, 49 N.E. 866, 867 (1898) ; Klepper v. Canadian Pacific Ry. Co., 193 Misc. 808, 85 N.Y.S.2d 258 (1948) ; Matter of DiMaria, 37 Misc.2d 617, 236 N.Y.S.2d 443 (Sup.Ct.1963) ; Matter of Diamond, 37 Misc.2d 714, 235 N.Y.S.2d 505 (Sup.Ct.1962), aff’d mem., 19 A.D.2d 590, 240 N.Y.S.2d 954 (App.Div.1963). See also Concourse Super Service Station, Inc. v. Price, 33 Misc.2d 503, 226 N.Y.S.2d 651 (Sup.Ct.1962). No reason appears as to why entry did not occur until three months after rendition. “Under New York practice, as we understand it, the prevailing party may prepare the judgment to be entered, if indeed the clerk has not earlier entered it. 9 Carmody-Waite, Cyclopedia of New York Practice, §§ 63.91-63.113. Even assuming that the delay was due solely to the inaction of the clerk, appellee could have obtained an order from the trial court compelling entry of the judgment. Cf. Greenwich Bank v. Hartford Fire Ins. Co., 250 N.Y. 587, 166 N.E. 334 (1929).” We recognize that our opinion may appear to display an undue concern with technical distinctions. The appearance is unavoidable since § 63(a) (1) of the Bankruptcy Act requires that we divine the mysteries of New York civil practice. The result reached is also unavoidable. Congress has provided a narrow avenue for the proof of intentional tort claims in bankruptcy. Nothing in the merits of Carvel’s claim or in the policies of Bankruptcy Act justifies departure from the Congressional prescription. Reversed and remanded for proceedings consistent with this opinion. . The case was settled during the time that this appeal was pending. . As a partnership creditor Coclin can share in the assets of the bankrupt estate, if at all, only after the payment of individual creditors. § 5(g), Bankruptcy Act, 11 U.S.C. § 23(g). Collier, Bankruptcy §§ 5.26-5.28 (1968). . The Carvel claim was actually comprised of the claims of eight parties all of which were plaintiffs in the New York proceedings against the bankrupt. . The cases cited by appellee, Carvel, are strikingly inapposite. For example, Martin v. Camp, 219 N.Y. 170, 114 N.E. 46, L.R.A.1917F, 402 (1916), merely states the rule that an attorney discharged without cause may recover in quantum meruit. In the Matter of Snyder, 190 N.Y. 66, 82 N.E. 742, 14 L.R.A.,N.S., 1101 (1907), involved a clause in a retainer agreement providing that no fee would be paid if the case was settled. The court permitted the attorney who had settled the case to recover, holding such clauses to be against public policy. . There are allegations in appellee’s brief that $5,000 of the retainer was actually paid to Coclin’s Connecticut counsel and that $5,500 was returned to Coclin by one of the bankrupt’s law partners. The validity of these allegations and any other issues relating to the amount of Coclin’s claim must be determined by the district court on remand. . The unliquidated nature of Coclin’s claim does not bar its provability under § 63 of the Bankruptcy Act, and ordinarily will not prevent its allowability unless the district court concludes that liquidation will require too much time and expense, § 57(d) Bankruptcy Act, 11 U.S.C. § 93 (d). We leave this matter to the district court with the observation that it is the policy of the Bankruptcy Act to permit liquidation of claims by the district court where feasible. Cases are legion where the courts have liquidated damages arising out of the breach of unusual contracts. See, e. g., Central Trust Co. v. Chicago Auditorium Ass’n, 240 U.S. 581, 36 S.Ct. 412, 60 L.Ed. 811 (1916) (contract by transfer company to carry baggage and passengers) ; In re Hurlbutt, H. & Co., 143 F. 958 (2d Cir. 1906) ; In re Swift, 112 F. 315 (1st Cir. 1901) (contracts to buy stock on margin). Of course, the claimant’s duty to mitigate damages may be considered. In re Dant & Dant, 39 F.Supp. 753 (D.Ky.1941). . The peculiar treatment of tort claims in bankruptcy must be explained by resort to history rather than logic. Tort claims were restricted in provability in English law, probably because bankruptcy was conceived as a means of dealing with commercial debts, and this restrictive approach was carried over to the Bankruptcy Act of 1898. . In Royal Baking Powder, supra, the trial court sent its proposed findings and opinion to the clerk on March 10, 1931. The judge had not signed the opinion, and on March 12, 1931, several creditors of the bankrupt obtained a stay restraining the trial court from signing the opinion. On March 13, 1931, the bankruptcy petition was filed and on March 16, 1931, the stay was vacated by the trial judge who subsequently ordered the judgment amended nunc pro tunc so as to be dated March 12, 1931. In short, Royal Baking presented, on its facts, a stronger case for respecting the timing of the completion of formalities. In addition, we do not find the New York law relied upon by the court persuasive. . For example, in Vogel v. Edwards, supra, the issue before the court was whether emergency legislation concerning deficiency judgments should apply to a judgment rendered before but entered after enactment of the statute. . In the Matter of Diamond, supra, and In the Matter of DiMaria, supra, provide particularly helpful illustrations of the effect of entry on finality. In both eases the defendant sought to escape arbitration on the ground that the claim had been reduced to judgment. However, in both cases the court held the defense invalid because there had been no entry of judgment and therefore the claim had not merged in a judgment. . Appellee urges that In re Ganet Realty Corp., 9 F.Supp. 246 (S.D.N.Y.1935) is authority for allowance of its unentered judgment. We do not agree. The claim involved in that case was one for mortgage deficiency and would have been provable without a final judgment — the only question being one of liquidation. As the court in that case pointed out, the order of sale entered before bankruptcy conclusively fixed the amount of the claim. Question: What is the specific issue in the case within the general category of "economic activity and regulation - bankruptcy, antitrust, securities"? A. bankruptcy - private individual (e.g., chapter 7) B. bankruptcy - business reorganization (e.g., chapter 11) C. other bankruptcy D. antitrust - brought by individual or private business (includes Clayton Act; Sherman Act; and Wright-Patman) E. antitrust - brought by government F. regulation of, or opposition to mergers on other than anti-trust grounds G. securities - conflicts between private parties (including corporations) H. government regulation of securities Answer:

songer_casetyp1_7-2

E

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 DETROIT EDISON COMPANY, Petitioner, Public Service Co. of Indiana, Inc., Intervenor, National Association of Regulatory Utility Commissioners, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents. Nos. 78-3187, 78-3196. United States Court of Appeals, Sixth Circuit. Argued June 17, 1980. Decided Sept. 5, 1980. Rehearing and Rehearing En Banc Denied Oct. 22, 1980. Harry H. Voigt, Michael F. McBride, LeBoeuf, Lamb, Leiby & MacRae, Washington, D. C., for petitioner in No. 78-3187 and for intervenor. Charles W. Campbell, Plainfield, Ind., for intervenor in No. 8-3187. Peter A. Marquardt, Detroit, Mich., for petitioner in No. 78-3187. Stephen S. Ostrach, Sheldon L. Trubatch, U. S. Nuclear Regulatory Comm., Washington, D. C., for respondents in Nos. 78-3187 and 78-3196. Paul Rodgers, William R. Nusbaum, Nat. Ass’n of Regulatory Utility Commissioners, Charles Gray, Washington, D. C., for petitioner in No. 78-3196. Stephen F. Eilperin, U. S. Nuclear Regulatory Comm., Washington, D. C., Griffin B. Bell, Atty. Gen. of U. S. Dept, of Justice, James W. Moorman, Edward Shawaker, Anne S. Almy, Washington, D. C., for respondents. Before BROWN, MARTIN, and JONES, Circuit Judges. BOYCE F. MARTIN, Jr., Circuit Judge. This care requires us to rule on the Nuclear Regulatory Commission’s present practice of regulating the location of electric transmission lines constructed in connection with proposed nuclear power facilities. We must determine whether or not the Commission’s policy of conditioning approval of license applications on environmentally acceptable routing of transmission lines exceeds the agency’s authority under the Atomic Energy Act, 42 U.S.C. § 2011 et seq. and the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA). The Commission’s position on transmission line regulation has evolved over the past decade. Prior to the 1969 enactment of NEPA, the Commission perceived its duties under the Atomic Energy Act primarily in terms of protecting the public from radiation hazards. NEPA, however, made “environmental protection a part of the mandate of every federal agency and department . . . [The Commission] is not only permitted, but compelled, to take environmental values into account” in carrying out its regular functions. Calvert Cliffs Coordinating Committee v. AEC, 449 F.2d 1109, 1112 (D.C.Cir. 1971). Under NEPA, federal agencies must “use all practicable means” to avoid environmental “degradation” to the extent consistent with “other essential considerations of national policy.” 42 U.S.C. § 4331(b). Thus, in the early 1970’s the Commission began to consider the environmental implications of proposed nuclear facilities. By 1974, the Commission had adopted an aggressive approach to its environmental responsibilities in the context of transmission line siting. In that year, the Commission’s Atomic Safety and Licensing Appeal Board ruled that the Commission could, as a condition of licensure, insist that off-site transmission lines built solely to serve a nuclear facility be designed to minimize environmental disturbance. Detroit Edison (Greenwood Energy Center, Units 2 and 3) ALAB-247, 8 A.E.C. 936 (Greenwood). The response to Greenwood among utility companies and local utility regulatory bodies was immediate. Public Service Company of Indiana and Detroit Edison Company filed a petition for rule-making pursuant to Section 2.802 of the Commission’s Rules of Practice. The proposed rule would have amended 10 C.F.R., Part 50, “Licensing of Production and Utilization Facilities,” by excluding transmission lines and other off-site construction from the Commission’s regulatory ambit. Under the proposal, the Commission could continue to “consider” the probable environmental effects of transmission lines, but could no longer compel the use of an alternative route as a condition of licensure. When notice of Detroit Edison’s petition appeared in the Federal Register, eleven parties, including the National Association of Regulatory Utility Commissioners, filed comments in support of the proposal. The Commission nonetheless denied the petition for rulemaking on February 23, 1978, and Detroit Edison filed a petition for review in this court. The legal issue before us is essentially jurisdictional. Does the Commission have statutory authority to use its licensing power as a means of mitigating the adverse environmental effects of off-site transmission line construction? If so, what is the source of that authority-the Atomic Energy Act, NEPA, or both? Petitioners insist that neither the Atomic Energy Act nor NEPA empowers the Commission to regulate off-site transmission lines. They contend, first that the Atomic Energy Act limits the Commission’s regulatory jurisdiction to matters of nuclear safety significance, national defense and security, and certain antitrust questions. In the absence of a showing that electric power lines fall into any of these categories, petitioners conclude that the Commission has exceeded its statutory authority. In support of this argument, they cite Sections 271 and 274(k) of the statute as evidence that Congress intended to reserve the power to regulate transmission lines to state and local agencies. Second, petitioners contend that NEPA confers no substantive jurisdiction on federal agencies. They acknowledge that NEPA permits agencies to “consider” environmental values as part of the decision-making process; they deny, however, that it authorizes active “regulation” beyond the confines of the agencies’ organic statutes. The Commission, on the other hand, argues that the Atomic Energy Act and NEPA represent independent sources of authority to regulate transmission lines. According to this interpretation, Section 101 of the Atomic Energy Act, 42 U.S.C. § 2131, permits the Commission to assert jurisdiction over transmission lines as “important component parts” of a nuclear “utilization facility.” Furthermore, the Commission claims, NEPA itself requires federal agencies to use whatever power they possess to implement national environmental policy. A congressional directive to “consider” environmental factors is meaningless unless agencies can also act to minimize the environmental damage attributable to their licensees. For the reasons discussed below, we find: 1) that the regulation of off-site transmission lines is within the Commission’s authority under Section 101 of the Atomic Energy Act; and 2) that nothing in the Atomic Energy Act precludes the Commission from implementing, through the issuance of conditional licenses, NEPA’s environmental mandate. We need not, and do not, decide whether NEPA is an independent source.of substantive jurisdiction. In Public Service Company of New Hampshire v. United States Nuclear Regulatory Commission, 582 F.2d 77 (1st Cir.), cert. denied, 439 U.S. 1046, 99 S.Ct. 721, 58 L.Ed.2d 705 (1978), the petitioners challenged a Commission order to reroute transmission lines tying the proposed Seabrook Nuclear Power Station to an existing transmission grid. The rerouting order was based on the Commission’s decision to preserve a natural area of forest and marshland. In a thoughtful and persuasive opinion, the First Circuit denied the petition for review, basing its conclusion on a finding that the Commission’s order was a proper exercise of jurisdiction under the Atomic Energy Act. Section 101 of the Atomic Energy Act, 42 U.S.C. § 2131, authorizes the Commission to license and regulate the use of a nuclear “utilization facility.” 42 U.S.C. § 2014 defines “utilization facility” in part as “. . . (2) any important component part especially designed for such equipment or device as determined by the Commission.” (emphasis added). Thus, Congress delegated broad authority to the Commission to define, on the basis of its own experience and expertise, the phrase “component parts” of a “utilization facility.” Public Service Co., supra, at 82-83. This assertion of jurisdiction is entitled to judicial deference. Power Reactor Co. v. Electricians, 367 U.S. 396, 81 S.Ct. 1529, 6 L.Ed.2d 924 (1961). Petitioners’ arguments that the Commission has overreached its authority consist largely of citations from the Atomic Energy Act’s legislative history and subsequent judicial comments on the statute generally. The message, apparently, is that the Commission’s primary function is to protect the public from radiological hazards. Beyond this, petitioners offer only the unsupported assertion that transmission lines are unrelated to nuclear safety. On that evidence alone, without further development of either the legal or factual bases of their argument, petitioners ask us to hold that a longstanding regulatory policy is “so contrary to the purposes of the . . . statute as to warrant intervention and correction by this court.” Public Service Co., supra, at 83. The disputed exercise of jurisdiction is based on the Commission’s interpretation of a statute which is “virtually unique in the degree to which broad responsibility is reposed in the administrative agency, free of close prescription in its charter as to how it shall proceed in achieving the statutory objectives.” Siegel v. AEC, 400 F.2d 778, 783 (D.C.Cir. 1968). The Commission’s policy has been approved by at least two federal appellate courts-explicitly in Public Service Co., supra, and implicitly in Culpepper League for Environmental Protection v. NRC, 574 F.2d 633 (D.C.Cir. 1978). Finally, we read with approval the First Circuit’s discussion of the eloquence of congressional silence in matters concerning the Commission. Public Service Co., supra, at 83-84. Against the weight of this authority, we have only the petitioners’ unsupported statement that transmission lines are so irrelevant to the Atomic Energy Act that their regulation constitutes an abuse of agency discretion. We are simply unpersuaded by that argument. We turn now to petitioners’ claim that Sections 271 and 274(k) of the Atomic Energy Act prohibit the Commission from assuming jurisdiction over off-site transmission lines. Petitioners interpret those provisions to mean that Congress has reserved exclusive control over transmission lines to state and local agencies. We disagree. The statutory language merely ensures that the authority of other agencies will continue, unimpaired by the provisions of the Atomic Energy Act. Nowhere does it suggest that the regulatory field is completely closed to the Commission. The First Circuit in Public Service Co., supra, at 84-85, analyzed the legislative history of Section 271 and concluded that the provision is merely a “garden variety nonpreemption clause.” Our study of the record here convinces us that the same description applies to Section 274(k). Finally, in light of our previous findings, we uphold the Commission’s practice of conditioning licenses on the use of a Commission-approved transmission route. “The directive to agencies to minimize all unnecessary adverse environmental impact . [remains] except when specifically excluded by, statute or when existing law makes compliance with NEPA impossible.” Public Service Co., supra, at 81; Calvert Cliffs Coordinating Committee, supra, at 1115; Flint Ridge Development Co. v. Scenic Rivers Association, 426 U.S. 776, at 787-788, 96 S.Ct. 2430, at 2437, 2438, 49 L.Ed.2d 205 (1976). In this case, we have found no statutory conflict which might prevent the Commission from complying fully with both the Atomic Energy Act and NEPA. The Commission is empowered by its organic statute to regulate off-site transmission lines; in the exercise of that power it must pursue the objectives of the Atomic Energy Act and NEPA simultaneously. Under the Atomic Energy Act, the Commission can issue conditional licenses for regulatory purposes. There can be no objection to its use of the same means to achieve environmental ends as well. Public Service Co., supra, at 85-86. The petition for review is dismissed. . In 1974, licensing and related regulatory functions of the Atomic Energy Commission were transferred to the Nuclear Regulatory Commission. See Energy Reorganization Act of 1974, 42 U.S.C. § 5801 et seq. References in this opinion to “the Commission” may therefore indicate either agency. . We are concerned throughout this opinion with “off-site” transmission lines, defined as that section of line between the plant site boundary and the first point of connection with an existing or planned high voltage system. . See 10 C.F.R. 50.10(e)(1)(iv), 37 Fed.Reg. 5745 (March 21, 1972); Tennessee Valley Authority (Brown’s Ferry Nuclear Plant, Units 1, 2, 3) 6 A.E.C. 3 (January 22, 1973). . Petitioners’ proposed rule reads: The provisions of paragraphs (c) and (d) of this section shall not be deemed to prohibit any off- site construction activities including, but not limited to, construction of transmission lines. Further, paragraph (e) of this section shall not be deemed to authorize the Director of Nuclear Reactor Regulation to either authorize or prohibit any such off-site construction activities. . In Culpepper League the court decided the substantive issue-whether the Commission erred in failing to direct an applicant to use an alternative transmission route-without questioning the Commission’s authority to order such a change. . Section 271 reads: Nothing in this chapter shall be construed to affect the authority or regulations of any Federal, State, or local agency with respect to the' generation, sale, or transmission of electric power produced through the use of nuclear facilities licensed by the Commission: Provided, That this section shall not be deemed to confer upon any Federal, State, or local agency any authority to regulate, control, or restrict any activities of the Commission. 42 U.S.C. § 2018. Section 274(k) reads: Nothing in this section shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards. 42 U.S.C. § 202 l(k). 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_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. COOK v. UNITED STATES. No. 4355. United States Court of Appeals First Circuit. Dec. 28, 1948. Writ of Certiorari Denied March 7, 1949. See 69 S.Ct. 647. William B. Sleigh, Jr., of Boston, Mass., for appellant. Thomas P. O’Connor, Asst. U. S. Atty., of Boston, Mass. (William T. McCarthy, U. S. Atty., and Edward A. Counihan, Asst. U. S. Atty., both of Boston, Mass., on the brief), for appellee. Before MAGRUDER, Chief Judge, and GOODRICH (by special assignment), and WOODBURY, Circuit Judges. MAGRUDER, Chief Judge. This is an appeal from an order denying appellant’s motion to vacate judgment and sentence in Criminal No. 17205 and on Count 1 of the indictment in Criminal No. 17206, on which appellant had been tried in the court below and found guilty by a verdict of the jury. In No. 17205 appellant was charged in a single count with an offense under 18 U.S.C.A. § 315 [now § 2115], In No. 17206 he was charged in two counts with offenses under 18 U.S.C.A. § 82 [now §§ 641, 1361], Appellant was sentenced on April 4, 1945,- to imprisonment for five years in No. 17205, to begin after the service of other sentences in Nos. 17222 and 17204 imposed by the trial court at the same time. Appellant was sentenced to two years on each of the two counts in No. 17206, said sentences to run consecutively and to begin after service of sentence in No. 17205. Appellant took no appeal from these judgments of conviction. He has some little time to serve on the earlier sentences before commencing service on the sentences in Nos. 17205 and 17206. He is now confined at Alcatraz, in California. Violation of 18. U.S.C.A. § 82 carries with it the penalty of a fine or imprisonment, or both. But it is provided in 18 U.S.C.A. § 315 that one guilty of the offense there described “shall be fined not more than $1,000 and imprisoned not more than five years.” (Italics added.) Therefore, in sentencing the appellant, the district court was in error in failing to impose a fine to accompany the prison sentence in No. 17205. On January 16, 1948, the trial judge received a letter from appellant calling attention to the failure to impose a fine in No. 17205, and asking that the letter be treated “as such a motion to make my sentence legal on No. 17205.” It might have seemed odd that the prisoner should object that a fine was not imposed upon him. But he explained in his letter “that where the law requires the imposition of a fine as well as a prison term, the fine must be assessed before the prisoner can begin serving a legal and valid sentence”; and he expressed the apprehension that he might at the instance of the Government “be resentenced on Indictment 17205 and given a new 5 yrs. which would lose me whatever time I had already served on it.” The district court on January 20, 1948, entered an order in No. 17205 amending the judgment therein by the addition of a new paragraph adjudging “that the defendant pay a fine in the sum of one dollar, ($1.00) and, that the payment of said fine be suspended.” This was technically an increase of sentence, which the court was without power to impose without the accused being present. Price v. Zerbst, D.C.N.D.Ga.1920, 268 F. 72. See Rule 43, Federal Rules of Criminal Procedure, 18 U. S.C.A., with which compare Rule 35. It would seem that in prosecutions for felony the accused cannot effectively waive his right to be present at the sentencing. See Rule 43. See also Lewis v. United States, 1892, 146 U.S. 370, 372, 13 S.Ct. 136, 36 L.Ed. 1011. However that may be, we do [not find in appellant’s letter to the district judge, above referred to, any clear expression of an intention to waive his right to be present. On April 16, 1948, appellant filed under Rule 35 the motion with which we are now concerned, a motion to “vacate judgments and sentences imposed under Indictment No. 17205 and Count One of Indictment No. 17206”. This motion was denied on May 3, 1948, and the present appeal is from that order of denial. For the reason already stated, appellant is entitled to the vacation of the district court’s order of January 20, 1948, amending the original judgment by the addition of a fine. But if appellant is also entitled to insist that the original judgment, sentencing him to imprisonment merely, must be vacated, then appellant will have to be escorted under guard on a transcontinental trip from Alcatraz to Boston to be present at the reseiitencing. That consequence would seem to be particularly absurd in the circumstances of this case. Appellant is in error in his suggestion that if the original sentence is vacated he may indicate his intention to plead guilty, and consent to the transfer of the case to the United States District Court for the Northern District of California for disposition, under the provisions of Rule 20, F.R.Cr.P. Rule 20 deals with the situation where an accused is arrested in a district other than that in which the indictment is pending against him, and provides that with the approval of the United States Attorney for each district the defendant may waive trial in the district in which the indictment is pending and consent to be sentenced in the district wherein the arrest took place, upon plea of guilty. The rule has no application to the situation presented in the case at bar. Cook has been tried, found guilty and sentenced in the District , of Massachusetts, and if there is any correction of sentence to be done, it must be done by the district court in Massachusetts. The original sentence of imprisonment only, in No. 17205, was not null and void. The term imposed was within the limit authorized by 18 U.S.C.A. § 315; in fact it was the maximum term of imprisonment prescribed by Congress for that offense. No doubt the sentence was defective in its failure to include a fine. This was a defect of which the Government was entitled to complain. Thus, if there had been an appeal from the original judgment, the appellate court, upon suggestion of the United States Attorney, might have remanded the case with direction to correct the sentence by the imposition of a fine. Barrow v. United States, 1924, 54 App.D.C. 128, 295 F. 949. And we suppose that in the case at bar the Government would have been entitled to move in the district court under Rule 35 for correction of sentence by the addition of a fine. On principle, we think it is clear that the defect in the original sentence here, the lack of a fine, was not prejudicial to the defendant and was not a defect of which the defendant was entitled to Complain. It has been so held in many cases, with which we entirely agree. Bartholomew v. United States, 6 Cir., 1910, 177 F. 902, certiorari denied 1910, 217 U.S. 608, 30 S.Ct. 697, 54 L.Ed. 901; Nancy v. United States, 9 Cir., 1926, 16 F.2d 872; Flynn v. United States, 7 Cir., 1931, 50 F.2d 1021; Jordan v. United States, 4 Cir., 1932, 60 F.2d 4, certiorari denied 1932, 287 U.S. 633, 53 S.Ct. 84, 77 L.Ed. 549; Matchok v. United States, 3 Cir., 1932, 60 F.2d 266; Widener v. Harris, 4 Cir., 1932, 60 F.2d 956. These cases are a complete answer to the apprehension expressed by appellant that (unless the sentence is lawfully corrected now by the addition of a fine) he will be subject to the risk that, when in the future he begins to serve the prison sentence imposed by the original judgment in 17205, he may thereafter be brought back to the court below and resentenced to the maximum term of five years in prison, accompanied by a fine, with no credit for the time already served under the original sentence. If this apprehension were well-founded in law, the cases just cited could not have held that the defect in the original sentence was not prejudicial to the defendant and did not constitute an error of which the defendant was entitled to complain. Our conclusion is not inconsistent with the holding in Bozza v. United States, 1947, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818. In this case the accused was convicted of an offense under § 2833(a) of the Internal Revenue Code, 26 U.S.C.A. § 2833 (a), which called for a mandatory penalty of a fine of not less than $100 and imprisonment for not less than thirty days nor more than two years. The sentence originally pronounced was two years’ imprisonment. The prisoner was then taken to a local detention jail awaiting transportation to the penitentiary. But five hours after the imposition of sentence, the district judge recalled the prisoner and corrected the sentence by the imposition of the minimum mandatory fine. Though the prisoner had technically begun the service of his sentence, 18 U.S.C.A. § 709a [now § 3568], the Supreme Court upheld the action of the district judge in amending the sentence by the imposition of the mandatory fine, as against the argument that such action constituted double jeopardy in violation of the Federal Constitution. The Court said, 330 U.S. at page 166, 67 S.Ct. at page 649, 91 L.Ed. 818: “The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.” We find not even a remote suggestion in the Bozza case to the effect that if the defendant there had served a substantial part of the sentence under the original judgment, the trial court could have vacated such judgment in its entirety and resentenced him for a. two-year term of imprisonment, together with the mandatory fine, so that the defendant, getting no credit for the time already served, might have been required to serve in the aggregate a term in excess of the maximum term prescribed by law for the offense in question. Cf. King v. United States, 1938, 69 App.D.C. 10, 98 F.2d 291, 295 n. 3. In his motion to vacate the original judgments and sentences in Nos. 17205 and 17206, appellant also sought to raise various objections to the technical sufficiency of the indictments. These objections might have been raised by appropriate motions prior to verdict, or perhaps by a motion in arrest of judgment “within 5 days after determination of guilt” as provided in Rule 34, F.R.Cr.P. Such objections are now untimely. See Colbeck v. United States, 8 Cir., 1926, 14 F.2d 801; Audette v. United States, 9 Cir., 1938, 99 F.2d 113; Bugg v. United States, 8 Cir., 1944, 140 F.2d 848. A motion for correction of sentence under Rule 35 presupposes a valid conviction and affords a procedure for bringing an improper sentence < into conformity with the law. The short time limit upon motions in arrest of judgment, as provided in Rule 34, cannot be circumvented by a motion at any time after conviction for vacation of judgment and sentence on the ground of defects in the indictment upon the theory that such a motion is merely a motion to “correct an illegal sentence” under Rule 35. The object of such a motion would be not to “correct” a .sentence but to be relieved of it altogether. The order of the District Court entered January 20, 1948, amending the original judgment by the addition of a fine is vacated, and the case is remanded to the District Court for further proceedings not inconsistent with this opinion. Although Rule 35 states that an illegal sentence may be corrected “at any time”, perhaps the district eoiirt would be without power to impose a fine after the defendant had fully served the term imposed by the original judgment; in this situation, a question of double jeopardy would be presented. 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_numresp

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES v. DICKINSON. SAME v. WITHROW. Nos. 5419, 5420. Circuit Court of Appeals, Fourth Circuit. Jan. 4, 1946. "Roger P.'Marqüis, Atty., Department of Justice, of Washington, D. C. (J.. Edward' Williams, Acting Head, Lands Division,' Department of Justice, of Washington, D. C., and Leslie E. Given, Ú. S. Atty., of Charleston, W. Va.,' on the brief), for appellant. Ernest K. James, of Charleston,'W. Va., for appellees. Before S'OPER, Circuit Judge, and COLEMAN and BARKSDALE, District Judges. SOPER, Circuit Judge. These appeals were taken by the United States from judgments against it'in two suits brought by landowners under the Tucker Act, 28 U.S.C.A. § 41 (20), to recover compensation for the taking of their, lands and for the erosion and intermittent flooding thereof caused by raising the water level of the Kanawha River in South Charleston, West Virginia, by the erection and operation of the Winfield Lock and Dam. Dickinson’s land consisted of a tract 3.1 acres in extent which bounded on the low-water mark of the river for a distance of 411 'feet. Dickinson acquired the land on August 16, 1937, and between that date and September 22, 1938, which the court found to be the date of the taking, he made substantial improvements thereon in the form of' grading and filling, construction of sewers, water and gas lines, the installation of a gasoline filling station and the erection of a large residence near the top of the river bank. By reason of raising the level of the river and the operation of . the dam 0.22 . acre of land was permanently submerged and 0.10 acre thereof lying between the elevation of 566 feet and 574 feet above mean sea level will be subject to intermittent flooding. The court found that on September 22, 1938, the 0.22 acre permanently flooded had a fair market value of $400 and the flowage easement to flood intermittently the 0.10 acre a fair market value of $75. The court also found that during the latter raises in the stage of the river, and after the attainment of the present permanent level of 566 feet, considerable erosion of the residue of the plaintiff’s property at the river bank occurred which was caused by the saturation and softening of the soil and the wave action thereon that resulted from the permanent flooding of the 0.22 acre of tire plaintiff’s land. For the damages caused by this erosion the District Judge allowed the property owner the sum of $4,245.63 on the theory that for this sum appropriate protective work along the river bank to prevent the erosion, consisting of a rock toe wall and stone riprapping up to an elevation of 569 feet, could have been installed. Withrow’s property is a tract of land, 'containing a number of city lots, and fronting on the river approximately 180 feet. The District Court found that 0.11 acre thereof was permanently submerged and 0.04 acre will be subject to intermittent flooding as the result of the raising of the level of the river and the operation of the dam. The court found that the land was taken on September 22, 1938, and that then the fair market value of the land permanently submerged was $200 and the fair market value of the flowage easement to flood intermittently the 0.04 acre was $35. The court also found that, during the latter stages in the rise of the river and after the attainment of the permanent pool stage of 566 feet above mean sea level, considerable erosion to the residue of the property at the river bank ■was caused by the saturation and softening of the soil and the wave action thereon which was the direct and proximate result of the taking of the 0.11 acre permanently flooded. For the damages caused by the erosion the court allowed the sum of $1,859.40 on the theory that for this sum of money the owner could have erected a rock toe wall and stone riprapping to an elevation of . 569 feet above sea level which would have protected the property from erosion. The first important contention raised by the United States is that both suits were barred by limitations under the Tucker Act because they were not instituted until the month of April, 1943, the complaint of Dickinson on April 1 and the complaint of Withrow on April 10, more than six years after the rights of action accrued. The decision of this question depends upon the date upon which the taking of the plaintiffs’ properties occurred and for this purpose it is necessary to consider the several steps which took place leading to the construction and completion of the dam and the raising of the river from time to time as the pool was filled. The improvement of the river to support a 9 foot channel by substituting four new locks and dams for those previously in place was authorized by the Acts of July 3, 1930, 46 Stat. 918, 928, and August 30, 1935, 49 Stat. 1028, 1035. The Winfield Lock and Dam was constructed under the authority of these Acts, and on July 1, 1936, notice was given to the holders of War Department permits in the area that the water elevation would be raised, and shrubbery and vegetation along the river banks were cut by the government. By October 21, 1936, construction of the dam had proceeded far enough to raise the elevation in the pool of a previous dam downstream from the plaintiffs’ properties which, however, were not affected thereby. Subsequently the river was raised by the operation of the Winfield Dam at the plaintiffs’ properties by gradual stages from a previous elevation of 554.65 to the present elevation of 566 feet above mean sea level, namely, on May 30, 1937, to 556 feet; on October 20, 1937, to 558 feet; on January 6, 1938, to 563.15 feet; on August 26, 1938 to 565 feet; on September 1, 1938, to 565.5 feet and on September 22, 1938, to 566 feet. The dam was officially inspected and accepted by the federal government on August 20, 1937. The District Judge held that the cause of action in each case accrued on September 22, 1938, when the pool was filled and the river was finally raised to the contemplated new level of 566 feet, an increase of 11.35 feet over the former normal level, whereby the lands of the plaintiffs were permanently submerged as above described. Under this holding the suits of the plaintiffs instituted in April, 1943, were not barred by limitations. The United States, however, contends that the taking occurred and the right of action accrued on October 21, 1936, before the lands of the plaintiffs were actually invaded, but when the construction of the dam had proceeded far enough to raise the level of the pool downstream below the lands of the plaintiffs. Alternatively the government suggests that the taking occurred on May 30, 1937, when the level of the river opposite the plaintiffs’ lands was first raised by the operation of the dam from 554.65 to 566 feet and plaintiffs’ lands were first partially submerged. It will be observed that if the earlier daté is accepted as correct, the pending suits were barred; but if the later date is accepted, the pending suits were brought in due time. In either event it is important to fix the precise date because it is said that the cases at bar were selected as tests to determine the legal principles to be applied in similar süits now pending in the District Court. It is conceded by both parties that although the use of the lands by the United States was continuous, only one cause of action accrued; and this position is sustained by the decisions which hold that when a permanent structure erected by government authority results in the invasion of or damage to land, only one right of action arises and this accrues upon the completion of the structure and the happening of the injury, and in this action, all damages, past, present and prospective are recoverable. Suehr v. Chicago Sanitary District, 242 Ill. 496, 90 N.E. 197; Carpenter v. Lancaster, 212 Pa. 581, 61 A. 1113; King v. Board of Council of City of Danville, 128 Ky. 321, 107 S.W. 1189; 4 Sutherland on Damages, 4 Ed., § 1039; 1 Am.Jur., Actions, § 117. The contention of the United States that the pending suits are barred by limitations rests primarily upon the decisions of the Court of Claims in County Court of Marion County, W. Va., v. United States, 53 Ct. Cl. 120, and Dooner et al. v. United States, 95 Ct. Cl. 392. In the first of these cases it was suggested that it might be said that the statute of limitations begins to run in cases of this kind when the dam is completed and put in operation, or when the first damage is suffered, or at some subsequent time when the taking is to be deemed complete. The case before the court concerned certain county roads which were occasionally invaded by intermittent floods alleged to be caused by the erection of a government dam which was completed and began to fill on November 3, 1903. The suit was not brought until November 5, 1911. The landowner claimed that the taking did not occur until 1911, contending that the statute did not begin to run until the cause of action was complete and the roads had been abandoned. But .the evidence showed that all the roads were subject to intermittent flooding as soon as the pool filled and the court therefore rejected the landowner’s contention and, without stating that the right of action accrued when the dam was finished or when the water first began to submerge the land, held that so far as there was any taking, it was complete when the water had reached pool level. The point was emphasized that the time of accrual of the right of action did not depend on the time when the county decided to abandon the use of the roads. Again, in the second cited case from the Court of Claims, Dooner et al. v. United States, 95 Ct.Cl. 392, 397, 399, it was held that the owner of permanently flooded lands was entitled to interest from the date when the land was completely submerged. We think that this is the rule to be applied in the cases now under consideration. The taking occurred in the course of the exercise by the United States of its right to improve the navigation of the river, but without prior condemnation or purchase of the land which it intended to invade. These circumstances gave rise to an implied contract to pay for the land taken, but the subject matter of the contract and the extent of the land to be taken were not established with certainty until the pool was raised to its permanent level. Until this occurred the whole matter was subject to government change and control and the taking was not complete. It is established that the mere fact that the government has undertaken a flood control project and completed a part thereof without the invasion of the land of abutting owners does not- amount to a taking thereof. United States v. Sponenbarger, 308 U.S. 256, 265, 60 S.Ct. 225, 84 L.Ed. 230; Danforth v. United States, 308 U.S. 271, 286, 60 S.Ct. 231, 84 L.Ed. 240. An intention ultimately to use the land is not sufficient to constitute a taking under these circumstances. When we come to the merits of the case we find no denial of liability on the part of the United States for the value of the land permanently submerged or for the damage, if any, to the land from permanent intermittent floods caused by the operation of the dam. Both invasions, if found to exist, are conceded to be takings for which compensation must be paid by the government under the rules established by the decisions, and the values placed by the District Judge upon the land are not attacked. The decision of the District Judge is attacked principally because he allowed substantial compensation — $4,245.63 in the case of Dickinson and $1,859.40 in the case of Withrow — for the erosion and damage caused by the raising of the pool to the residue of the property not permanently submerged. The United States contends that the losses suffered by the landowners in this respect were not the result of a taking of the property in the constitutional sense, but were merely consequential damages attendant upon a public undertaking for which no recovery can be allowed by the courts. Many cases are cited in which the courts have been called upon to consider damages to land from flooding or erosion caused by the erection of dams, dykes and other structures under governmental authority; and it has been necessary to draw the difficult line between the taking involved in the direct appropriation of private land for public use for which the United States is liable at the suit of the landowner, and the indirect consequential damages flowing from the construction of public structures which are recoverable only by act of Congress. These cases illustrate a variety of circumstances in which heavy damages from flooding or erosion took place and it was held that the United States was not liable for the loss sustained or for the cost of protective measures to prevent it. But these decisions do not touch the specific point upon which the landowners here rely, for in none of them was there a permanent submersion and an acknowledged taking of any part of the land such as has occurred in the cases now before the court. The landowners rest their case in this respect on another line of authority which holds that when part of an owner’s land is completely taken, he is entitled not only to compensation therefor but also to compensation for any damage occasioned to his remaining land. It was on this theory that the court below based its findings in the sums above stated for the cost of protecting the residue of the lands against erosion and flood damage. The court found as to the Dickinson property that between 5,000 and 7,000 cubic yards of the river bank broke off and slipped into the river, approximately thirty trees, ranging in diameter from six inches to one foot six inches, slipped into the river or were destroyed, and a large crack developed iri the earth above the top of the river bank and extended through the foundation of Dickinson’s residence causing substantial damage. This erosion and damage the court found to be due to the saturation and flooding of the soil and wave action as the direct and proximate result of the permanent flooding of the above described 0.22 acre of Dickinson’s land. With respect to Withrow’s land the court made the similar finding that considerable erosion of the river bank abutting the property occurred, a substantial part of the bank broke off and slipped into the river, approximately twenty trees ranging in diameter from six to twenty-four inches slipped into the river or were destroyed, and the unpaved portion of the river road near its dead end in front of Withrow’s residence subsided from four to eight inches. This erosion and damage was due to the same causes as in the case of Dickinson and was the result of the taking of the aforesaid described 0.11 acre of With-row’s land which was permanently flooded. The court also found that in view of the character and value of the properties as of September 28, 1938 when the pool was filled, it would have been sound economy for Dickinson to have spent the sum of $4,245.63 and for Withrow the sum of $1,-859.40 to protect the residue of their respective properties against erosion and damages. There is abundant authority to support this point of view, for example, United States v. Grizzard, 219 U.S. 180, 31 S.Ct. 162, 55 L.Ed. 165, 31 L.R.A.,N.S., 1135, where a part of a farm was taken for the purpose of improving the navigation of a stream by the erection of government locks and dams, and in addition an easement of access from the land to a public road was destroyed. The court held that the government was liable for the damage to the residue, saying (219 U.S. at pages 183, 184, 185, 31 S.Ct. at page 163) : “ * * * Whenever there has been an actual physical taking of a part of a distinct tract of land, the compensation to be awarded includes not only the market value of that part of the tract appropriated, but the damage to the remainder resulting from that taking, embracing, of course, injury due to the use to which the part appropriated is to be devoted. * * * “The constitutional limitation upon the power of eminent domain possessed by the United States is that ‘private property shall not be taken for public use without just compensation.’ The ‘just compensation’ thus guaranteed obviously requires that the recompense to the owner for the loss caused to him by the taking of a part of a parcel, or single tract of land, shall be measured by the loss resulting to him from the appropriation. If, as the court below found, the flooding and taking of a part of the plaintiff’s farm has depreciated the usefulness and value of the remainder, the owner is not justly compensated by paying for only that actually appropriated, and leaving him uncompensated for the depreciation over benefits to that which remains. In recognition of this principle of justice it is required that regard be had to the effect of the appropriation of a part of a single parcel upon the remaining interest of the owner, by taking into account both the benefits which accrue and the depreciation which results to the remainder in its use and value. Thus, in Bauman v. Ross, 167 U.S. 548, 574, 17 S.Ct. 966, 967, 42 L. Ed. 270, 283, it is said: ‘Consequently, when part only of a parcel of land is taken for a highway, the value of that part is not the sole measure of compensation or damages to be paid to the owner; but the incidental injury or benefit to the part not taken is also to be considered. When the part not taken is left in such shape or condition as to be in itself of less value than before, the owner is entitled to additional damages on that account. When, on the other hand, the part which he retains is specially and directly increased in value by the public improvement, the damages to the whole parcel by the appropriation of part of it are lessened.’ ” See also, United States v. Welch, 217 U.S. 333, 30 S.Ct. 527, 54 L.Ed. 787, 28 L.R.A.,N.S., 385, 19 Ann.Cas. 680; Campbell v. United States, 266 U.S. 368, 45 S.Ct. 115, 69 L.Ed. 328; United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 156 A.L.R. 390; Lewis on Eminent Domain, 3d Ed., §§ 686 and 710. A more recent application of the rule is found in cases in which losses to the property of the Chicago, B. & Q. Railroad Company were occasioned by improvements in the navigation of the Mississippi River. In United States v. Chicago, B. & Q. R. Co., 8 Cir., 82 F.2d 131, 106 A.L. R. 942, certiorari denied 298 U.S. 689, 56 S. Ct. 957, 80 L.Ed. 1408, it wa§ shown that the level of the river was raised by a government dam to such a height as to flood twenty-four acres of the railroad’s property and to cover the right of way and railroad embankment to a point 3.45 feet below the top of the railroad ties. Hence it became necessary to raise and widen the embankment and to raise the tracks so as to create a freeboard of seven feet above the new level of the pool and also to raise culverts and bridges and riprapp the embankment with .rock. This work was necessary in order that the railroad might have as good and safe a track as it had before the improvement and to secure protection against the effect of 'saturation, wave action and distortion by ice. The suit was brought by the United States for condemnation of the floodway easement over the right of way and railroad embankment, and it was held that the railroad was entitled to recover not only the value of the twenty-four acres permanently submerged, which was comparatively small, but also the cost for the changes in the embankment and the railroad line which were needed to protect the railroad and enable it to continue in operation. A verdict in favor of the railroad for $240,000 was sustained. This decision was followed by United States v. Chicago, B. & Q. R. Co., 7 Cir., 90 F.2d 161, in which the railroad was allowed the sum of $400 for 1.6 acre submerged and the additional sum of $347,411.65 as just compensation for the damage to the remainder of the railroad’s property caused by the construction and operation of the dam. We think that this rule is applicable here and that in each case the landowner should be compensated for the loss to the residue of his property occasioned by the building of the dam. The District Judge, as we have seen, based the amount of the recovery in each case upon the reasonable cost, as of September 22, 1938, of protective work adequate to prevent the damage by erosion if installed prior to the raising of the level of the river. He found that the cost of such work in the Dickinson case would have been $4,245.63 and in the Withrow case $1,859.40 and that in each instance it would have been sound economy, in view of the character and nature of the property, to have made the expenditure. The United States argues that there was no showing as to whether or not these sums exceeded the damages from erosion and therefore should not have been allowed because the government is not liable for any sum greater than the market value of the property that might otherwise be destroyed. The testimony, however, shows that Dickinson’s property was wprth $45,000 and Withrow’s property $1*5,000 in September, 1938, and qualified witnesses testified that- in view of the character and value of the property, the expenditure of larger sums than those allowed by the court to prevent erosion and damages would have been economically justified. This evidence can only mean that the erosion unchecked would destroy property values equal to or in excess of the cost of preventive structures. The issue involved is one of fact, and there was evidence to support the finding of the judge. There was abundant evidence given at the hearing to show that erosion had resulted and would result from the operation of the dam; and it was the function of the trial court to determine the amount of the resultant damage. We find no reason to upset its findings in these respects. The United States also contends that Dickinson is not entitled to compensation for the permanent flooding of the entire 0.22 acre submerged, because in the year 1940, with the permission of the Secretary of War, he reclaimed the greater part thereof. This was done at a cost of $16,000 by the installation of protective work consisting of earth and rock fill to prevent further erosion and damage. The fill exceeded the amount of the river bank that had been washed into the river, with the result that all but 0.05 acre of the land originally submerged was reclaimed. It is therefore contended that Dickinson is entitled to be compensated only for the 0.05 acre, and the decision in Kelley’s Creek & N. R. Co. v. United States, 100 Ct.Cl. 396, 412, is cited in support of the contention. We disagree with the holding in that case insofar as it may be thought to lead to the conclusion that Dickinson was not entitled to be paid for the value of the entire acreage completely taken on September 26, 1938. At that time the land was taken under an implied contract on the part of the United States to pay for it. It is clear that the government was not relieved from this obligation by the mere fact that the landowner, with its approval, subsequently recovered a part of the acreage at his own expense. Finally, the government contends that there was no evidence to support the finding that the government took an easement to flood the land intermittently or to support the value placed upon the easement by the court. In neither aspect can the contention be sustained. The easement relates to the land between the permanent elevation of the pool at 566 feet and elevation 574 feet above sea level covering 0.10 acre of Dickinson’s land for which $75 was allowed and 0.04 acre of With-row’s land, for which $35 was allowed. Qualified witnesses estimated the diminution of value that would occur upon the assumption that the acreage would be flooded from time to time and these estimates were in excess of the allowances made by the court. There was in addition evidence to support the finding that the acreage would be subject to intermittent flooding by the operation of the dam. It was shown that the government had acquired by condemnation flowage easements extending to the elevation of 574 feet on non-navigable streams contributory to the Winfield Pool in the vicinity of the Dickinson and With-row properties and that within the eight foot area between the elevations of 566 and 574 feet the stage of the river can be made to rise and fall through the manipulation of the dam. The frequency within which the flooding will occur was not shown, but we think that the acquisition of flowage easements in the vicinity and the construction of the dam with equipment capable of flooding the lands to the elevation of 574 feet indicate an intent to subject the land to intermittent flooding and amount to the taking of easements for which compensation was due. See Peabody v. United States, 231 U.S. 530, 34 S.Ct. 159, 58 L.Ed. 351. The judgments of the District Court will be Affirmed. The intention of the United States to use the land of a private owner as a suitable field over which to fire heavy guns installed for the purpose may constitute a taking; Peabody v. United States, 231 U.S. 530, 34 S.Ct. 159, 58 L.Ed. 351; Portsmouth Harbor Land & Hotel Co. v. United States, 250 U.S. 1, 39 S.Ct. 399, 63 L.Ed. 809; but it is obvious that in such a situation, the existence of the intention itself deprives the owner of the use of his land and constitutes a taking. Pumpelly v. Green Bay & Mississippi Canal Co., 13 Wall. 166, 37 S.Ct. 380, 61 L.Ed. 746; United States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539; United States v. Cress, 243 U.S. 316, 20 L.Ed. 257; Jacobs v. United States, 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142, 96 A. L.R. 1; United States v. Sponenbarger, 308 U.S. 256, 267, 60 S.Ct. 225, 84 L.Ed. 230; United States v. Willis, 4 Cir., 141 F.2d 314, 316. Gibson v. United States, 166 U.S. 269, 17 S.Ct. 578, 41 L.Ed. 996; Bedford v. United States, 192 U.S. 217, 24 S.Ct. 238, 48 L.Ed. 414; Manigault v. Springs, 199 U.S. 473, 26 S.Ct. 127, 50 L.Ed. 274; Jackson v. United States, 230 U.S. 1, 33 S.Ct. 1011, 57 L.Ed. 1363; Hughes v. United States, 230 U.S. 24, 33 S.Ct. 1019, 57 L.Ed. 1374, 46 L.R.A.,N.S., 624; Cubbins v. Mississippi River Comm., 241 U.S. 351, 36 S.Ct. 671, 60 L.Ed. 1041; Horstmann Co. v. United States, 257 U.S. 138, 42 S.Ct. 58, 66 L.Ed. 171; Sanguinetti v. United States, 264 U.S. 146, 44 S.Ct. 264, 68 L.Ed. 608; United States v. Chicago, M., St. P. & P. R, Co., 312 U.S. 592, 313 U.S. 543, 61 S.Ct. 772, 85 L.Ed. 1064; United States v. Willow River Power Co., 324 U.S. 499, 65 S.Ct. 761; Salliotte v. King Bridge Co., 6 Cir., 122 F. 378, 65 L.R.A. 620; Franklin v. United States, 6 Cir., 101 F.2d 459; W. A. Ross Const. Co. v. Yearsley, 8 Cir., 103 F.2d 589;' Cf. Coleman v. United States, C.C. N.D.Ala., S.D., 181 F. 599. Question: What is the total number of respondents in the case? Answer with a number. Answer:

songer_respond1_3_3

G

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant. BANGOR AND AROOSTOOK RAILROAD COMPANY, Petitioner, v. INTERSTATE COMMERCE COMMISSION, Respondent, Maine Central Railroad Company et al., Intervenors. MAINE CENTRAL RAILROAD COMPANY, Petitioner, v. UNITED STATES of America, and Interstate Commerce Commission, Respondents, Bangor and Aroostook Railroad Company, Intervenor. Robert W. MESERVE and Benjamin H. Lacy, Trustees of the Property of Boston and Maine Corporation, Debtor, Petitioners, v. UNITED STATES of America, and Interstate Commerce Commission, Respondents. Nos. 77-1082, 77-1105 and 77-1108. United States Court of Appeals, First Circuit. Argued Sept. 12, 1977. Decided March 30, 1978. Rehearing Denied No. 77-1082 May 12, 1978. See 578 F.2d 444. Laurence S. Fordham, Boston, Mass., with whom Verne W. Vance, Jr., Scott C. Moriearty, Boston, Mass., Todd D. Rakoff, Foley, Hoag & Eliot, Boston, Mass., William M. Houston, Edward T. Robinson, and Ga-ston, Snow & Ely Bartlett, Boston, Mass., were on briefs, for Bangor and Aroostook Railroad Co. Peter J. Nickles and Eugene D. Gulland, Washington, D. C., with whom Covington & Burling, Washington, D. C., and Scott W. Scully, Portland, Me., were on briefs, for Maine Central Railroad Co. Sidney Weinberg, Boston, Mass., for Robert W. Meserve and Benjamin H. Lacy, Trustees of the Property of Boston and Maine Corp., Debtor. Lee A. Monroe and Sidley & Austin, Washington, D. C., on brief for intervenor Canadian Pacific Limited. Charles H. White, Jr., Associate Gen. Counsel, Washington, D. C., with whom Mark L. Evans, Gen. Counsel, John H. Shenefield, Acting Asst. Atty. Gen., Carl D. Lawson, Daniel J. Conway, Attys., Dept, of Justice, and Raymond Michael Ripple, Atty., Washington, D. C., were on briefs, for I. C. C. and the United States. Before CAMPBELL, Circuit Judge, TUTTLE, Circuit Judge, and WOLLENBERG, District Judge. Of the Fifth Circuit, sitting by designation. Of the Northern District of California, sitting by designation. LEVIN H. CAMPBELL, Circuit Judge. These are consolidated petitions to review cease and desist orders and damage awards entered by the Interstate Commerce Commission in a report and order of February 4, 1977. 28 U.S.C. §§ 2321, 2342, 2344. The Commission’s actions followed administrative proceedings concerning the legality of interchange arrangements between the Bangor and Aroostook Railroad Co. (BAR) and Canadian Pacific Ltd. (CP). Initiated in 1973 by the Commission itself, the proceedings focused upon complaints which Maine Central Railroad (MEC) and the Boston and Maine Corporation (B&M) filed in 1974 seeking damages on account of BAR’s purportedly unlawful preference of CP. In agreement with an administrative law judge, the Commission concluded that BAR, “aided” by CP, had “unduly prejudiced Maine Central Railroad Co. and Boston and Maine Corporation ... in the distribution of traffic in violation of section 3(4) of the Interstate Commerce Act [the Act],” 49 U.S.C. § 3(4). Acting under authority of § 16(1) of the Act, 49 U.S.C. § 16(1), the Commission held BAR liable in damages to the two complaining carriers. But the Commission’s assessment of the amount of damages was considerably lower than the ALJ’s. It ordered BAR to pay damages of $176,323 to MEC and $86,917 to B&M, with 4% interest. BAR here challenges the Commission’s ruling that it was guilty of conduct viola-tive of § 3(4). It also challenges the Commission’s awarding damages to MEC and B&M and the amounts assessed. In separate petitions, MEC and B&M also contest the amount of damages, claiming that the ALJ’s higher assessments should have been adopted. We conclude that the Commission had ample basis to find that BAR violated § 3(4) and that its conduct damaged MEC and B&M. We also sustain the Commission’s determination of damages. However, since we find the cease and desist orders to be overly broad, we vacate those orders and remand that aspect of the case for clarification. I At the heart of BAR’s allegedly improper conduct is a formal agreement that BAR and CP concluded in July, 1970, initiating a shipper solicitation program in an attempt to divert “as much traffic as possible” from MEC and B&M onto BAR’s alternative connecting line, CP. The facts we state are drawn from the opinions of the ALJ and the Commission. Except as noted, they are substantially undisputed. BAR’s track network spans 541 miles in Maine. It connects with CP at Brownville Junction, located 45.3 miles north of Northern Maine Junction, where BAR interchanges with MEC. MEC connects further on with B&M. These four railroads skirt and cross the Canadian border in the northeastern reaches of Maine, offering alternative through routes for shippers with goods to be transported across the region. Paper, frozen vegetables, starch, clay, and wood-pulp, primarily, are shipped over these lines. Depending on a shipper’s origination and destination points, he may have the option of routing his traffic via BAR and CP, or via BAR with MEC and B&M. BAR is primarily an originating carrier, receiving goods directly from shippers rather than from other railroads, and shipping them out toward destinations not reached by its lines. In October of 1969, the Amoskeag Co., a company controlled by a “voluntary association” known as Dumaines, purchased 99 percent of BAR stock. Frederic C. Du-maine, who controls Dumaines, became a director and chief executive officer of BAR after the purchase. When this purchase was made, Amoskeag owned 26 percent of MEC stock as well; the Commission found that “word of an impending merger between MEC and BAR became widespread” after the acquisition. In early November, 1969, the president of BAR (who had stayed on at the request of Dumaine) asked that BAR’s general freight manager prepare a traffic study showing which of the cars presently traveling via Northern Maine Junction could instead be interchanged at Brownville Junction, without modifying their destinations. A series of memos on this subject followed; most were passed on to Dumaine by the president of BAR, in late November and early December of 1969. The memos detailed the commodities and numbers of carloads that were subject to such a diversion; one set forth the estimated loss, about $2.8 million per year, that was predicted to accrue to MEC and B&M should all 24,000 such carloads successfully be rerouted. Another memo, circulated in mid-December, compared transit times for goods traveling the alternative routes, and showed little over-all difference between the two routes. Negotiations between CP and BAR to arrange a cooperative effort in support of a freight diversion plan were initiated late in 1969, and continued through the first half of 1970. Salient features of the negotiations were BAR’s undertaking to furnish CP origin and destination statistics of all traffic subject to diversion, CP’s duty aggressively to solicit new traffic, and CP’s agreement to expand and improve its interchange facilities at Brownville Junction in order to handle the expected additional traffic. CP also indicated by letter its understanding that any agreement regarding concerted solicitation efforts that was ultimately concluded would be “long-term and not subject to any reversal of policy” by BAR. In mid-January, BAR investigated the potential financial impact on BAR of the proposed re-routing efforts: it compared the divisions that it would receive from additional traffic of different commodities when shipped over CP instead of over MEC. The investigation showed that diversion would decrease BAR’s revenues in some cases and induced CP to offer to pay BAR a “car allowance” for every additional car moving over its lines that would otherwise give BAR a diminished division. After further discussion and correspondence, the terms of an agreement were reached in early June of 1970, and activity pursuant to that agreement intensified. Under the heading “PRIVATE” a written confirmation of the agreement set forth inter alia that BAR had, “agree[d] to interline with CP Rail via Brownville Junction as many cars of paper products and potatoes as it is possible for it so to interline and anticipates that by reason of this agreement such interline traffic will be increased by approximately 24,000 cars annually as follows: “Forwarded to CP Rail Paper 11,000 Potatoes 4,500 Other 3,500 Sub-total 19,000 Received from CP Rail Misc. 5,000” The agreement described the allowances that CP agreed to pay BAR on additional carloads of potatoes and paper products that would be interlined at Brownville Junction; those payments were to be made “quarterly by check through the Claims Section of the Auditor of Freight Claims”. CP also formally undertook to improve its interchange facilities. Not specifically spelled out in the memorandum, but apparent from the correspondence and testimony regarding the negotiations of early 1970, was the commitment of both parties vigorously to solicit traffic on behalf of CP. The pact was to bind the parties over a fifteen year period; there was provision, however, for reopening and renegotiation every five years, on 180-day notice. The agreement was not formally executed until July 31, 1970, but it was by its terms to take effect retroactively, as of January 1, 1970. The Commission received evidence that pursuant to this agreement, both carriers approached shippers, urging them to route their traffic over CP instead of via MEC. Though service differences such as transit time, reliability, and car supply were sometimes cited to the shippers in support of the solicitations, those comparisons do not appear to have been grounded in either fact or prior study. BAR also “distributed suggested routes to the principal shippers on its lines. ... All suggested routes were via Brownville Junction.” CP and BAR personnel made some solicitation visits jointly, in search of more traffic for CP. The sales efforts of BAR and CP coincided, with a drop in traffic shipment over MEC that was marked enough to prompt MEC’s inquiry of shippers and carriers about the possible reasons behind the decrease. As MEC became generally aware of the intensified promotion campaign on CP’s behalf, MEC engaged in some counter-solicitation in an attempt to stem the tide, and evidently had some success. BAR’s and CP’s efforts continued in varying intensity over five years, until the agreement was terminated at CP’s request on February 18, 1975, retroactive to January 1, 1975. II Liability under § 3(4) Section 3(4) of the Act, entitled “Interchange of traffic”, provides, “All carriers subject to the provisions of this chapter shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines and connecting lines, and for the receiving, forwarding, and delivering of passengers or property to and from connecting lines; and shall not discriminate in their rates, fares, and charges between connecting lines, or unduly prejudice any connecting line in the distribution of traffic that is not specifically routed by the shipper. As used in this paragraph the term ‘connecting line’ means the connecting line of any carrier subject to the provisions of this chapter or any common carrier by water subject to chapter 12 of this title.” [Emphasis supplied.] 49 U.S.C. § 3(4). In a rate discrimination case brought under the section, the Supreme Court has commented generally, “In the absence of any settled construction of § 3(4), ... its manifest purpose to deprive railroads of discretion to apportion economic advantage among competitors at a common interchange must be the basic guide to decision.” Western Pacific Ry. Co. v. United States, 382 U.S. 237, 244, 86 S.Ct. 338, 343, 15 L.Ed.2d 294 (1965). The Supreme Court has not had occasion expressly to construe the language in § 3(4) barring “undue prejudice” in the distribution of traffic. However, a three-judge court in Southern Pacific Ry. v. United States, 277 F.Supp. 671 (D.Neb.1967), aff’d mem., 390 U.S. 744, 88 S.Ct. 1442, 20 L.Ed.2d 275 (1968), has interpreted this part of § 3(4) to prohibit a carrier from soliciting traffic preferentially, in favor of one connecting line over another: “The prohibition of Section 3(4) is against discriminatory conduct of the carrier against connecting lines. The Act cannot be circumvented by wrongfully inducing the shipper to commit the discrimination in place of the carrier. In other words, the legislation is not to be so weakly construed that it permits the carrier to accomplish indirectly what he cannot do by direct preferential routing. In view of the clear policy expressed by the statute, we see no meaningful distinction between arbitrarily soliciting the unrouted freight at that time and arbitrarily routing it should the shipper leave it unrout-ed. . . . ‘[T]here is no basis for the contention that Congress intended to exempt any discriminatory action or practice of interstate carriers affecting interstate commerce which it had authority to reach.’ U “. . . [W]e feel that preferential solicitation when done on a ‘preconcerted’ and ‘systematic’ discriminatory basis, . falls within the statutory prohibition of Section 3(4) as well [as preferential routing]. The preferential solicitation dictated by the agreement is without concern for competitive benefits of similar lines and without relationship to the best possible service to the shipper. It is as much an apportionment of ‘economic advantage’ as direct routing itself.” 277 F.Supp. at 685, quoting Houston, East & West Texas R. Co. v. United States, 234 U.S. 342, 356, 34 S.Ct. 833, 58 L.Ed. 1341 (1914), and Western Pacific Ry., supra. It is to be noted that the judgment in Southern Pacific was summarily affirmed by the Supreme Court, although summary affirmance on statutory questions such as were there presented does not inevitably conclude future interpretations of § 3(4). Mandel v. Bradley, 432 U.S. 173, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977) (per curiam); Fusari v. Steinberg, 419 U.S. 379, 95 S.Ct. 533, 42 L.Ed.2d 521 (1975) (Burger, C. J., concurring). We accept the district court’s interpretation in Southern Pacific, and the Commission’s similar construction in this case. Section 3(4) addresses the “interchange of traffic.” The proscribed act is “unduly prejudicpng] a connecting line in the distribution of traffic.” A defense is provided carriers who route traffic “specifically routed by the shipper,” New York v. United States, 568 F.2d 887, 894 n. 12 (2d Cir. 1977); this is consistent with other provisions of the Act that protect shippers’ freedom. The other subsections within § 3(4) all speak to a carrier’s obligation to afford even-handed treatment to its connecting lines, except room is allowed for different treatment when warranted by so-called “service considerations.” The provision seems obviously meant to avert the anti-competitive effects of a powerful or well-positioned carrier using its influence and position in favor of one connecting line over another, and thus skewing the market as that market is structured under the Act. Especially in light of Southern Pacific, we think the language of the statute put BAR fairly on notice that its conduct was prohibited. BAR, primarily an originating carrier, waged a broad-gauged and long-term solicitation campaign in support of only one of its connecting lines, CP. There is substantial evidence supporting the Commission’s finding that the sales effort was initiated, and continued, not on the basis of any markedly superior service (i. e. “service considerations”) that CP furnished its shippers, but rather for some other motive. The evidence indicated that in the study of comparative transit times undertaken prior to BAR’s broaching the possibility of joint solicitation with CP, no one carrier demonstrated a distinct advantage. Until after the negotiations had begun, BAR attempted no assessment of the reliability of alternative carriers, nor even of BAR’s own divisions in the rates of commodities shipped over the two available routes. An examination of the latter subsequently revealed that BAR itself would lose revenues on potatoes and paper products should those goods be interlined with CP rather than with MEC, causing CP to agree to pay BAR so-called “car allowances” for diverted traffic. The facilities of CP did not dictate that it would be in every shipper’s interest to ship via CP: CP had to expand and upgrade its interchange facilities with BAR as part of the agreement to solicit the divertible traffic. Further, BAR points in its brief to no specific instances where BAR’s recommendations to shippers were individually tailored according to service considerations. BAR’s solicitation efforts were uniformly on behalf of CP. Its undertaking was to solicit “all traffic possible” for CP, not just traffic that CP could, objectively, handle better than others. The agreement BAR entered into with CP committed it to seek traffic on behalf of CP over a fifteen-year period, without provision for release in less than five years. Should CP’s service have deteriorated, BAR remained obliged to solicit on its behalf. The agreement was a secret one; the “car allowances” CP was to pay BAR appear to have been concealed as freight claim payments. BAR favored CP by providing it with a detailed list of shippers and commodities originating on BAR lines; BAR distributed no such lists to other carriers as a matter of policy. This cannot conceivably constituted even-handed treatment in the distribution of traffic. Post hoc characterization of these activities as salutary promotion of competition through fair-minded recommendations to strong and sophisticated shippers is implausible. Though the Commission made no express finding that these solicitations were fraudulent or coercive, nor that competition, as distinct from competitors, was injured by the campaign, its findings did not reveal the impartial approach toward connecting lines in the distribution of traffic that is required of an originating carrier by § 3(4). We therefore have little hesitancy in upholding the Commission on the facts of this case. In so doing, we go no further than to support a ruling that active and deliberate solicitation by an originating carrier for one or more of its connecting lines, to the plain neglect and detriment of other connecting lines, violates § 3(4) of the Act, when such solicitation is not supported by a significant service differential between those carriers (or any other specific exception grounded in the Act) that objectively could justify a departure from impartial treatment. While this construction of § 3(4) seems clear enough, BAR disagrees, and has launched a multi-faceted attack on both the Commission’s interpretation and application of the section. First, with CP, it urges that the traffic that it solicited was “specifically routed by the shipper,” in that it arrived at BAR’s loading platforms, for example, with routing instructions signed by the shipper. BAR argues that it merely followed the shippers’ instructions when it routed the solicited traffic via CP. Moreover, BAR claims to have been prohibited by § 3(4) from rerouting that traffic in derogation of the shippers’ wishes. BAR relies correla-tively on sections 15(10), 15(11), and 15(12) of the Act, 49 U.S.C. §§ 15(10), 15(11), 15(12), as exemplifying Congress’ intention to protect “unfettered shipper choice,” and submits that to construe § 3(4) as prohibiting BAR from routing in accordance with shippers’ instructions would “make a mockery” of § 15(10), and conflict with the purposes of the Act. We find no merit in this argument. Section 3(4), while consistent with the subsections of § 15, does not blindly deify “shipper choice.” Its focus is inter-carrier relations. The shipper choice that BAR relies on in its defense was tainted by BAR and CP’s solicitation efforts, which were not founded upon the shippers’ service interests, and provides no satisfactory justification of the systematic favor BAR bestowed on CP. BAR objects that no inquiry was made into whether the prejudice suffered by MEC and B&M was “undue.” It contends that “undue” prejudice refers to injury incurred as a result of harm to competition, drawing an analogy to antitrust law. But while the Commission has characterized the statute as “pro-competitive”, that characterization does not thrust § 3(4)’s construction into the thick of antitrust doctrine. BAR’s analogy asks too much. Undue prejudice may refer to a disadvantage to a connecting line that is unwarranted by service considerations. Such harm to connecting lines as may result from a carrier’s breach of the strictures of § 3(4) are recoverable in damages under the terms of the Act without an independent assessment of the state of “competition” in the market, and the Commission is empowered to make such an award. 49 U.S.C. §§ 8, 13(1), 16(l). And as the Commission noted, it is “inapposite for BAR and CP to maintain that the BAR-CP agreement promoted competition when a normal competitive situation presupposes that each connecting line has equal advantage and opportunity to solicit shippers.” BAR further urges that its soliciting activities and agreement with CP were not shown to have “distributed traffic.” It says that it would be illogical to conclude that the ultimate routing instructions given by the shippers on each of the thousands of shipments reflected BAR’s choice rather than the shipper’s choice. But while it might be possible for a minor connecting carrier to maintain that its solicitations on behalf of another connecting line did not carry enough weight to amount to “distribution”, an originating carrier such as BAR, controlling many miles of track by which shippers gained railway access to various destination points, could reasonably be found to command a position from which it exerts substantial influence over shippers’ choice of routes, regardless of a shipper’s experience or sophistication. This is not to say that an originating carrier necessarily controls its shippers — it may depend on them collectively as much as they on the carrier — nor that a carrier could sanction noncooperative shippers by simply refusing them service — other sections of the Act limit a carrier’s power in dealing with shippers; but a shipper might well feel compelled to cooperate with an originating carrier rather than incur its disfavor. Further, BAR and CP instituted and carried out a systematic program of solicitation, pursuant to agreement, rather than sporadically asking for business in a few instances. We see no reason not to characterize this as an effort to “distribut[e] traffic” in contravention of § 3(4). Last, BAR asserts that the Commission’s reading of the statute conflicts with the first amendment of the United States Constitution. This contention was not raised before the agency, but even assuming it is now open we see no merit in it. Though first amendment protection has lately been afforded some types of commercial speech, see Bates v. State Bar, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977) (attorney advertising); Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977) (residential “for sale” signs); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (advertising of drug prices), the first amendment has not yet been held to limit regulation in areas of extensive economic supervision, such as the securities, antitrust, and transportation fields, where the exchange of information can be a vital element in an illegal scheme. Shaping the regulation of “speech” in those areas is more a matter of policy development than one of constitutional right; it lies most appropriately with Congress and the regulatory agency. Even if some language in the above-cited cases may have seemed to herald a new era of first amendment law, see Virginia State Board of Pharmacy, supra, 425 U.S. at 762, 96 S.Ct. 1817, the revolution has yet to envelop the transportation field to the extent BAR asserts. Moreover, unlike the statutes questioned in the cases cited by BAR, the challenged construction of § 3(4) does not dictate silence on the part of carriers. It does not prevent an originating carrier from providing information of any and all sorts to shippers on an even-handed basis. It does require that an originating carrier make good faith efforts to ascertain the accuracy of purported “information,” and it limits the pressure that an originating carrier may put on a shipper. Without demonstrable superiority of a connecting line, an originating carrier, in its influential position, is precluded from sponsoring that line. Cf. Bates v. State Bar, supra, 433 U.S. at 4904, 97 S.Ct. 2691. It is hard to see how this standard does violence to first amendment values. In the present case, despite the absence of an express ruling that BAR’s solicitation included statements that were fraudulently or deceptively made, the Commission’s opinion leaves little doubt that BAR’s statements were at least misleading. That a few of the statements were discovered after the fact to have been inadvertently accurate offers no justification for BAR’s manifestly unequal treatment of CP and MEC, and does not rebut an overall judgment that the solicitations were recklessly made. Finally, we dismiss BAR’s argument that the Commission’s findings were not supported by substantial evidence on the record viewed as a whole. Though BAR can point to portions of the record that might have justified findings different from the Commission’s, the Commission could properly choose to rely on the evidence that it found most trustworthy and plausible. Consolo v. FMC, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966). Its conclusions derive substantial support from the record: this is the test they must satisfy. Illinois Central RR. Co. v. Norfolk & Western Ry. Co., 385 U.S. 57, 66, 69, 87 S.Ct. 255, 17 L.Ed.2d 162 (1966); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); 5 U.S.C. § 706(2)(E). Ill Damages 1. The Commission’s method of calculation. To calculate the extent of the damage to MEC and B&M resulting from BAR and CP’s unlawful conduct, the Commission applied a “before and after” test. It projected the expected market shares of the two carriers in certain divertible commodity traffic on the basis of previolation market figures, and compared those shares with the actual market shares enjoyed by MEC and B&M over the period from 1970 through 1974, when the unlawful activity was in progress. The market share differential was then translated into terms of carloads lost by the carriers for each commodity. Each carload of a given commodity was assigned a figure representing the average gross revenue brought in by such carloads. To each carload was also attributed a portion of the carrier’s operating expenses, including certain overhead costs which were determined in accordance with guidelines developed in rate-making procedures before the Commission. These costs were integrated into the damage formula by application of certain “operating ratios” calculated in standard fashion by the Commission; those ratios reflect the proportion of expenses to revenues in traffic of a given commodity. The Commission totaled the estimated net revenues lost per carload in each type of traffic, combined with the number of carloads lost per commodity by virtue of BAR’s conduct, to give a monetary estimate of the injury suffered by MEC and B&M. The Commission attempted to exclude from its calculation, traffic that originated or terminated on MEC, B&M, or CP, since that traffic would not have been subject to diversion. B&M’s damages were assessed essentially as a proportion of MEC’s award. See infra. 2. Damages — The carriers’ primary objections All three carriers complain at length about the Commission’s computation of damages. BAR strenuously argues that no damages at all should be recovered by MEC and B&M. It says that the proofs relied on by the Commission and proposed by those carriers are “purely speculative” and fail to satisfy the standards of proximate cause required in a court of law. We find this contention without merit. A similar “before and after” comparison of market shares has been accepted in antitrust litigation when more precise measurements of the plaintiff’s damage would be too burdensome or are unobtainable for some other reason. See, e. g., Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 66 S.Ct. 574, 90 L.Ed. 652 (1946); Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544 (1931); Harverhill Gazette Co. v. Union Leader Corp., 333 F.2d 798, 804-07 (1st Cir.), cert. denied, 379 U.S. 931, 85 S.Ct. 329, 13 L.Ed.2d 343 (1964). BAR contends that by examining interchange reports for Brownville and Northern Maine Junctions over 1970-74 and interviewing shippers, the injured carriers could and should have reconstructed unlawful solicitations and the shippers’ state of mind with regard to individual shipments in order to arrive at a precise count of shipments that were unlawfully diverted. But such an investigation would have required combing through the records of more than ten thousand shipments in each year of the five-year period. The difficulty of the task has been augmented by BAR’s destruction, since the violation, of interchange information concerning the destinations of the diverted freight, as well as of the computer printouts on shippers that BAR passed on to CP. The law does not demand that injured parties be so burdened. The wrongdoer could be required to bear the risk of uncertainty in the calculation of the number of carloads diverted by its actions, see Story Parchment, supra, 282 U.S. at 563-65, 51 S.Ct. 248. The Commission supportably found that MEC and B&M had met the burden of establishing “some resultant injury” from the § 3(4) violation. This was a rational inference, for, as the ALJ explained, “[tjhere are no facts of record which evidence service superiority in movements via Brownville Junction over Northern Maine Junction. In 1969 the transit times via the two interchange points were comparable. Routing changes resulting from carrier rate adjustments and concessions are short term and occur in both study and compared periods. There is no evidence of any abnormal market trend in the compared periods which affected originations and terminations on BAR. Nor is there any evidence of changes in supply sources and sales outlets that required elimination of MEC or MEC and B&M participation as intermediate carrier or carriers in the movements. What were present in the 1970-74 periods which were not present in 1969 were (1) the BAR-CP agreement and solicitation campaign and (2) the Great Northern-CP 100 car a month agreement.” Once the fact of injury was demonstrated, the Commission was authorized to determine if “any party . is entitled to an award of damages under the provisions of this chapter for a violation thereof.” 49 U.S.C. § 16(1). The method of assessing the damages to be charged to BAR became a matter for the Commission’s reasoned judgment, based on its expertise in the field. NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 73 S.Ct. 287, 97 L.Ed. 377 (1953); see Bagel Bakers Council v. NLRB, 555 F.2d 304, 305 (2d Cir. 1977). The Commission had merely to settle on a reasonable and rational method of computation, see Bagel Bakers Council, supra. We must defer its choice among rational methods. NLRB v. Seven-Up Bottling Co., supra. The Commission’s decision to award damages for this § 3(4) violation, with its reasoned conclusion as to their measurement, reflected a policy choice peculiarly within its realm. See 49 U.S.C. § 12; Consolo v. FMC, supra, 383 U.S. at 620-21, 86 S.Ct. 1018 (1966); Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962); United Van Lines, Inc. v. ICC, 545 F.2d 613 (8th Cir. 1976); cf. American Power and Light Co. v. SEC, 329 U.S. 90, 67 S.Ct. 133, 91 L.Ed. 103 (1946); Maine Potato Growers v. Butz, 540 F.2d 518 (1st Cir. 1976). See generally 4 Davis, Administrative Law Treatise § 30.10 (1958). Applying these principles, we disagree with BAR that the Commission’s methodology was outside acceptable limits, as providing a reasonable yardstick for estimating the harm visited on MEC and B&M by BAR’s actions. While BAR seeks elimination or reduction of the award, the injured carriers seek reinstatement of the ALJ’s higher assessments. Thus they ask us to remand the case with instructions to reinstate the ALJ’s decision and award. However, it is not our province to choose between the awards of the ALJ and the Commission. Any review of the ALJ’s actions is only incidental to our review of the Commission’s decision. See 2 Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant? A. Food & Drug Administration B. General Services Administration C. Government Accounting Office (GAO) D. Health Care Financing Administration E. Immigration & Naturalization Service (includes border patrol) F. Internal Revenue Service (IRS) G. Interstate Commerce Commission H. Merit Systems Protection Board I. National Credit Union Association J. National Labor Relations Board K. Nuclear Regulatory Commission Answer:

songer_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 ZERBST, Warden, v. McPIKE. No. 8634. Circuit Court of Appeals, Fifth Circuit. June 16, 1938. Lawrence S. Camp, U. S. A tty., and Flarvey H. Tisinger, H. T. Nichols, and J. Ellis Mundy, Asst. U. S. Attys., all of Atlanta, Ga., for appellant. Before FOSTER, SIBLEY, and HUT-CHESON, Circuit Judges. SIBLEY, Circuit Judge. Will McPike by habeas corpus challenged the legality of his imprisonment in the federal penitentiary at Atlanta, on the ground that the sentence of three years imposed on him Nov. 7, 1933, in the District Court for the Western District of Louisiana had expired. He obtained a judgment of discharge and the warden of the penitentiary appeals. The undisputed evidence is that Mc-Pike was arrested by the State of Louisiana and was in the parish jail awaiting trial. On Nov. 6, 1933, he was 'indicted in the federal court for fraudulently impersonating a United States officer. On Nov. 7th the State officers brought McPike into the federal court and suffered him to be tried. He pleaded guilty and was sentenced to serve in the penitentiary for three years, no time being fixed for the commencement of the sentence. He was then taken by the State officers back to jail. On Nov. 13th he was tried and convicted for a State offense and sentenced to the State penitentiary for three to five years. The commitment which the clerk of the federal court issued on Nov. 7th was not executed but was returned Nov. 24th with an entry that McPike was confined as a prisoner in the Louisiana penitentiary as a State prisoner. After serving the State sentence he was taken on an alias commitment to the federal penitentiary Aug. 2, 1936. The deputy marshal testifies that McPike was maintained in the jail as a State prisoner before and after his trial in federal court, and was never maintained there as a federal prisoner and the District Attorney who handled the case testifies that the State never yielded jurisdiction over him to the federal government, except to try him. Under the inviolable rules of comity, which are reciprocal, the State having first arrested and imprisoned McPike could not without its consent be deprived of his custody until through with him. Ableman v. Booth, 21 How. 506, 16 L.Ed. 169; Covell v. Heyman, 111 U.S. 176, 4 S.Ct. 355, 28 L.Ed. 390. But the State could “lend” the prisoner to the federal government in order to afford him a speedy trial and to convenience the witnesses who might be necessary to be assembled for or against him. 'This can be done without a complete surrender of the prior jurisdiction over him which the State had acquired. This we think is fairly decided in the case of Ponzi v. Fessenden, 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607, 22 A.L.R. 879. There the prisoner was serving a federal sentence and was taken on habeas corpus to the State court to be tried for a State offense, the federal officer accompanying him and maintaining federal custody. Ponzi was evidently to be returned to his federal service after the trial. It was held that the procedure was lawful. The fact that Ponzi was originally in federal rather than State custody does not alter the principle, nor does the fact that he had been already convicted when “loaned” to the State distinguish that case from this. The prior right acquired by first arrest continues unchanged until the arresting government has completed the exercise of its powers, and a waiver extends no further than it is intended to extend. Without the consent of the State authorities the United States Marshal could not lawfully take the person of McPike from the State officers, although McPike had been brought into the federal court and tried; and he did not attempt to. When McPike was taken back to jail he entered it not to await transportation to the federal penitentiary but to await trial in the State court. The proviso of 18 U.S.C.A. § 709a therefore does not apply. His federal sentence could begin to run only from “the date on which [he] is received at the penitentiary, reformatory or jail for service of said sentence”, by the express provision of that law. It has not yet Been fully served. The judgment is reversed with direction to remand the prisoner to the custody of the warden. Judgment reversed. 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_usc1

26

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. SEELEY TUBE & BOX CO. v. MANNING. No. 9693. United States Court of Appeals Third Circuit. Argued Nov. 18, 1948. Decided Dec. 20, 1948. Albert Freeman, of Newark, N. J. (Bilder, Bilder & Kaufman, of Newark, N. J., and George G. Tyler and William J. Nolan, Jr., both of New York City, on the brief), for appellant. S. Dee Hanson, of Washington, D. C. (Tfaeron Lamar Caudle, Asst. Atty. Gen., George A. Stinson and Robert N. Anderson, Sp. Assts. to Atty. Gen., Isaiah Mat-lack, U. S. Atty., and Edward V. Ryan, Asst. U. S. Atty., both of Newark, N. J., on the brief), for appellee. Before BIGGS, Chief Judge, and GOODRICH and O’CONNELL, Circuit Judges. GOODRICH, Circuit Judge. This is a suit by a taxpayer to get back some money from the Government. The taxpayer was entitled to a refund for taxes paid in 1941. It was repaid $40,384.66 and the Government kept back $4513.34 which it claimed as interest upon an alleged deficiency. The District Court denied relief to the taxpayer who, therefore, seeks help here. The point of the case can best he understood if non-technically stated, leaving statutory references and the like for footnote elaboration. The taxpayer paid the tax it thought due for income and excess profits for 1941. Later deficiencies on both income and excess profits taxes were asserted by the Commissioner. Because the taxpayer had gone into bankruptcy the assessments were perfected in the accelerated fashion provided for in the statute. Then in 1943 the taxpayer had a severe operating loss. By the terms of the statute there is a carry-back provision for the operating loss and the taxpayer is entitled to credit therefor back through 1941. As a result of the application of the statutory rule the alleged deficiency in the taxpayer’s 1941 'tax disappeared. Not only that, but the taxpayer became entitled to a refund on the amount it had paid for the same year. It is the difference between what it paid and what the Government paid it back that is -the subject-matter of this suit. It is argued on behalf of the Commissioner that the money was due when the deficiency was asserted. The Government is, on this argument, 'entitled to interest on the difference between what the taxpayer paid and what the Government claimed until the debt due the Government was swept away by the application of the carry-back provisions of the statute already mentioned. The taxpayer, on the other hand, says that it does not owe interest for non-payment of deficiencies in taxes which, in the light of subsequent events, have been found not to exist. We think the argument here is overwhelmingly on the side of the taxpayer. It should be noted at the outset that the taxpayer is not claiming any interest from the United States. If it were, a different sort of problem would be presented and some of the rather elaborate argument made on behalf of the Commissioner would be in point. All the taxpayer wants is to get back the money it paid the Government which is undisputedly coming to it because of the carry-back provisions. It asks, in other words, for the return of principal only. Interest not contracted for by the terms of an agreement between parties is generally described as damages for the detention -of money to which another is entitled. The Government adopts that theory in this case. But what money was the Government entitled to here? As it turned out, taxpayer not only did not owe any money, but had money coming back to it. The only thing on which an interest claim could be predicated is the inchoate liability of the taxpayer which disappeared under the application of the carry-back provisions of the statute. We think that inchoate liability is not sufficient to call for the payment of anything but inchoate interest, whatever that may be, and so far as real money is concerned the taxpayer is entitled to get it back. Both sides admit there is little decided case law that is very helpful. The taxpayer certainly has analogous authority in its favor in one line of cases. These decisions allowed the recovery by the taxpayer against the Government of interest paid on a tax by the taxpayer in a situation where it developed that the assessment was erroneous. The taxpayer was allowed to recover the interest he had paid in spite of a compromise agreement made with the Government at the time he paid the interest. Big Diamond Mills Co. v. United States, 8 Cir., 1931, 51 F.2d 721; Colorado Milling & Elevator Co. v. Howbert, 10 Cir., 1932, 57 F.2d 769; Phelps v. United States, 2 Cir., 1939, 105 F.2d 904. It also cites a previous ruling by the Commissioner which tends to support this point of view. The Commissioner relies heavily on Brandtjen & Kluge, Inc. v. United States, D.C.Minn.1948, 78 F.Supp. 509. This case is not exactly in point because a plaintiff was trying to get back interest and the court did not think that a refund of a tax included interest. But it is pretty close to the case before us, and the court there relied upon the instant case in the District Court for authority. The Minnesota court also pointed out that the plaintiff’s argument was “appealing, forceful and persuasive of the lack of logic in the Bureau’s refusal to return the interest * * 78 F.Supp. 509, 513. After reviewing the authorities and reading the legislative history cited to us by each side we conclude to reverse. And the basis for that reversal, simply stated, is that the interest on nothing (what taxpayer owed the Government), is necessarily nothing. Therefore, the taxpayer is entitled to his money. The judgment will be reversed with directions to order judgment for the plaintiff. The taxpayer’s fiscal period involved here is from January 1, 1941 to September 30, 1941. It filed its tax returns and paid taxes covering this period, and it is these payments to which the carry-back provisions are applicable. Internal Revenue Code § 274, 26 U.S. C.A. § 274, provides: “§ 274. Bankruptcy and receiverships— (a) Immediate assessment. “Upon the adjudication of bankruptcy of any taxpayer in any bankruptcy proceeding or the appointment of a receiver for any taxpayer in any receivership proceeding before any court of the United States or of any State or Territory or of the District of Columbia, any deficiency (together with all interest, additional amounts, or additions to the tax provided for by law) determined by the Commissioner in respect of a tax imposed by this chapter upon such taxpayer shall, despite the restrictions imposed by section 272 (a) upon assessments be immediately assessed if such deficiency has not theretofore been assessed in accordance with law. In such cases the trustee in bankruptcy or receiver shall give notice in writing to the Commissioner of the adjudication of bankruptcy or the appointment of the receiver, and the running of the statute of limitations on the making of assessments shall be suspended for the period from the date of adjudication in bankruptcy or the appointment of the receiver to a date 30 days after the date upon which the notice from the trustee or receiver is received by the Commissioner; but the suspension under this sentence shall in no case be for a period in excess of two years. Claims for the deficiency and such interest, additional amounts and additions to the tax may be presented, for adjudication in accordance with law, to the court before which the bankruptcy or receivership proceeding is pending, despite tbe pendency of proceedings for the redetermination of the deficiency in pursuance of a petition to the Tax Court; but no petition for any such re-determination shall be filed with the Tax Court after the adjudication of bankruptcy or the appointment of the receiver.” The applicable provision of the Internal Revenue Code reads as follows: “§ 122. Net operating loss deduction “ (b) Amount of carry-back and, carryover — (1) Net operating loss carry-back. If for any taxable year beginning after December 31, 1941, the taxpayer has a net operating loss, such net operating loss shall be a net operating loss carry-back for each of the two preceding taxable years, except that the carry-back in the case of the first preceding taxable year shall be the excess, if any, of the amount of such net operating loss over the net income for the second preceding taxable year computed .(A) with the exceptions, additions, and limitations provided in subsection (d) (1), (2), (4), and (6) and (B) by determining the net operating loss deduction for such second preceding taxable year without regard to such net operating loss.” 26 U.S.C.A. § 122(b). The applicable sections of the Revenue Act of 1938, §§ 271, 292, 52 Stat. 534, 541, 26 U.S.C.A. §§ 271; 292, provide; “§ 271. Definition of deficiency “As used in this chapter in respect of a tax imposed by this title ‘deficiency’ means— “(a) The amount by which the tax imposed by this title exceeds the amount shown as the tax by the taxpayer upon his return; but the amount so shown on the return shall first be increased by the amounts previously assessed (or collected without assessment) as a deficiency, and decreased by the amounts previously abated, credited, refunded, or otherwise repaid in respect of such tax; or “(b) If no amount is shown as the tax by the taxpayer upon his return, or if no return is made by the taxpayer, then the amount by which the tax exceeds the amounts previously assessed (or collected without assessment) as a deficiency^ but such amounts previously assessed, or collected without assessment, shall first be decreased by the amounts previously abated, credited, refunded, or otherwise repaid in respect of such tax.” “§ 292. Interest on deficiencies “Interest upon the amount determined as a deficiency shall be assessed at the same time as the deficiency, shall be paid upon notice and demand from the collector, and shall be collected as a part of the tax, at the rate of 6 per centum per annum from the date prescribed for the payment of the tax (or, if the tax is paid in installments, from the date prescribed for the payment of "the first installment) to the date the deficiency is assessed, or, in the case of a waiver under section 272 (d), to the thirtieth day after the filing of such waiver or to the date the deficiency is assessed whichever is the earlier.” “It was only by reason of the permitted retrospective deduction for the taxable period * * * of the so-called ‘net operating loss carry-back’ from the later year, as provided by Section 122 (b) (1), that the taxpayer eventually became entitled to an abatement of the deficiency taxes. This, however, was after they had already been in existence for some considerable time, as already shown. Hence, the only amount the Commissioner was legally permitted to refund was the aggregate sum of the taxes paid, less the statutory interest on the deficiencies which had accrued between the due date of the payment of the taxes on December 15, 19-11, and the date of the deficiency assessments on August 2, 1943 (Section 292 (a)), no interest being refundable except that which accrued after the refund claims were filed on March 15, 1944 (Section 3771 (c)). Consequently, the Commissioner had no alternative than to refuse to refund the interest in question. The exaction of interest from the Government requires specific statutory authority * * * and it may be computed only according to (lie statutory provisions in force at the time of the allowance of a refund or credit. * * * ” Brief foi Appellee, pp. 13-14. 15 Am.Jur., Damages § 159 (1938); Restatement, Contracts § 337 (1932). Referring to penalties and interest collected without aulhority, this ruling states “ * * * that interest and penalties are in the nature of accretions to the tax and should be considered as a part thereof in connection with any refund or credit of the tax.” I.T. 1447, 1-2 C.B. 220 (1922). Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:

songer_initiate

A

What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. BISHOP et al. v. E. A. STROUT REALTY AGENCY, Inc. No. 6066. United States Court of Appeals Fourth Circuit. Argued April 19, 1950. Decided May 29, 1950. Sol C. Berenholtz, Baltimore, Md. (Solomon Kaplan, Baltimore,.Md., on brief), for appellants. John W. T. Webb and William W. Travers, Salisbury, Md. (Webb, Bounds, Travers & Adkins, Salisbury, Md., on brief), for appellee. Before PARKER, Chief Judge, and SOPER.and DOBIE,,Circuit Judges. PARKER, Chief Judge. This is an' appeal by plaintiffs from a judgment for defendant on a directed verdict in an action to recover damages for deceit. Plaintiffs are husband and wife who purchased a tract of land with water frontage for the purpose of using it as an angler’s camp. The defendant is the real estate agency that is alleged to have sold the property acting through its local representative or “associate”, one Oscar C. Davis, who was not joined in the action. The complaint alleges that plaintiffs were induced to purchase the land through the false and fraudulent representations of Davis as to the depth of the adjacent water and that they suffered damage as a result. The case was heard before a jury' and the trial judge directed verdict for defendant on the ground that the falsity of the representations -could have been discovered by plaintiffs by an examination of the property purchased. Defendant contends that the direction of. the verdict should be sustained on the ground given 'by the trial judge and also on the additional 'grounds that no fraudulent intent was shown, that there was no proof of damage and that it was not shown that Davis was acting for defendant in the sale of the property. As the case must be tried again it is not desirable to discuss the evidence in detail. It is sufficient to say that when taken in the light most favorable to plaintiffs, as it must be on motion for, directed verdict, it was amply sufficient to take the case to the jury. There was evidence tending to show that the property was listed with defendant for sale, that Davis handled business for defendant in the locality where the land was situate and that defendant after-wards recognized the sale as having been made through its agency. There was evidence that' plaintiffs notified Davis of the purpose for which they desired the property and of the necessity of having deep water adjacent to it-so that boats could be brought in, and that they were assured by him that this property would suit them to a “T” and that the water adjacent was not less than six feet deep at low tide and nine feet or more deep at high tide. They testified that they were shown- the property at high tide and relied upon these statements of Davis without making soundings because they trusted him and had no reason to believe that he was not telling the truth. Plaintiffs paid $3,000 down, giving a $4,000 mortgage for the remainder of .the purchase price, and entered into possession and made certain expenditures for improvements. Shortly thereafter they discovered that the water adjacent to the property was very shallow. Because of this, it was not at all suited for the purpose for which it had been purchased and plaintiffs had to abandon it. When they attempted to see Davis, they were unable to get -him to meet with them to discuss the matter. The mortgage given by plaintiffs was foreclosed and the property was bought in at the foreclosure sale for the amount of the mortgage debt. The evidence thus presents all the elements necessary to a recovery on the ground of actionable fraud, which are set forth by the Court of--Appeals of Maryland in Gittings v. Von Dorn, 136 Md. 10, 15, 109 A. 553, 554, as follows: “To entitle the plaintiff to recover it must be shown: 1. That the representation made is false; 2. that its falsity was either known to the speaker, or the misrepresentation was made with such a reckless indifference to truth as to be equivalent to actual knowledge; 3. that it was made for the purpose of defrauding the person claiming to be injured therebjs 4. that such person not only relied upon the misrepresentation, but had a right to rely upon it in the full belief of its truth, and that he would not have done the thing from which the injury resulted had not such misrepresentation been made; and 5. that he actually suffered damage directly resulting from such fraudulent misrepresentation. McAleer v. Horsey, 35 Md. 439; Buschman v. Codd, 52 Md. 202; Robertson v. Parks, 76 Md. 118, 24 A. 411; Cahill v. Applegarth, 98 Md. 493, 56 A. 794; Boulden v. Stilwell, 100 Md. 543 [551] 60 A. 609, 1 L.R.A.,N.S., 258.” We do not think that plaintiffs are precluded of recovery because they accepted and relied upon the representations of Davis as to the depth of the water without making soundings or taking other steps to ascertain their truth or falsity. The depth of the water was not a matter that was apparent to ordinary observation; Davis professed to know whereof he was speaking; and there was nothing to put plaintiffs on notice that he was not speaking the truth. There is nothing in law or in reason which requires one to deal as though dealing with a liar or a scoundrel, or that denies the protection of the law to the trustful who have been victimized by fraud. The principle underlying the caveat emptor rule was more highly regarded in former times than it is today; but it was never any credit to the law to allow one who had defrauded another to defend on the ground that his own word should not have been believed. The modern and more sensible rule is that applied by the Court of Appeals of Maryland in Standard Motor Co. v. Peltzer, 147 Md. 509, 510, 128 A. 451, where it was held not to be negligence or folly for a buyer to rely on what had been told him. This is in accord with the modern trend in all jurisdictions which is summed up in A.L.I. Restatement of Torts, sec. 540 as follows: “The recipient in a business transaction of a fraudulent misrepresentation of fact is justified in relying upon its truth, although he might have ascertained the falsity of the representation had he made an investigation.” The rule is thus stated with citation of the pertinent authorities in 55 Am.Jur. p. 539: “The tendency of the courts, however, is not to deny relief to a defrauded purchaser on the ground that he was negligent in relying on the vendor’s representations, and the mere fact that he could have ascertained by inquiry and investigation the falsity of express representations of existing facts, the truth of which was known to the vendor and unknown to the purchaser, will not necessarily bar him from relief. In this connection it has been said that the unmistakable drift is toward the doctrine that the vendor cannot shield himself from liability by asking the law to condemn the credulity of the purchaser.” Defendant places particular reliance upon the old case of Buschman v. Codd, 52 Md. 202, where the rule is stated: “Where the real quality of the thing is an object of sense, obvious to a person of ordinary intelligence, and the parties have equal knowledge or means .of acquiring information by the exercise of ordinary inquiry and diligence, and nothing is said for the purpose of preventing such inquiries as every prudent person ought to make, under such circumstances there is no warranty of the seller’s knowledge of the truth of his representations, or of the fact being as it is stated to be.” We do not think that this indicates that the law of Maryland differs from the law prevailing in other jurisdictions. See A.L.I.Restatement of Torts sec. 541. The case here, however, is not one of a represéntation obviously false but of a representation of fact which plaintiffs had no reason to doubt, made by one who professed to know whereof he was speaking and who made it for the purpose of influencing their judgment and bringing about a sale of the property. The rule applicable in such a situation is the general rule as set forth in the Restatement, which was applied by the Court of Appeals of Maryland in Standard Motor Company v. Peltzer, supra, where the false representation was that a 1917 model truck offered for. sale was a 1920 model and had been used for only a very short while. In answer to an argument based on Buschman v. Codd, supra, that the plaintiff was not justified in relying upon the representation, the court said: “The evidence showed that the buyer here had some experience as an owner and user of a truck, and that the truck was displayed for his inspection without restriction. On some of his visits to the salesrooms he remained an hour and more. He testified,' however, that his illiteracy rendered him unable to read marks or names on the truck and its engine, and that, having the statements of the selling agents to depend upon, he did not undertake to determine any of the facts for himself. He was not an expert in motor vehicles; he was a farmer. The selling agents, on the other hand, were presumably experts with exact information as to the track they were selling. And the court could not say that it was negligence and folly for this buyer to accept and rely on whatever had been told him.” [147 Md. 509, 128 A. 453.] Little need be said as to the other grounds urged to sustain the direction of the verdict. It is said that there was no evidence of fraudulent intent; but the misrepresentations were made for the purpose of inducing a sale apd, if Davis did not make them with knowledge of their falsity, it is a fair inference that he made them with “reckless indifference to truth.” The fact that he avoided an interview with the plaintiffs after they had discovered the wrong that had been done them was a circumstance tending to show guilty knowledge on his part. It is said there is no proof of damage resulting from the fraud; but plaintiffs are out more than $3,000 as a result of their experience and the fact that the property brought no more than the mortgage when offered at public sale is some evidence that it was not worth what plaintiffs paid for it when they were led to believe that it had deep water adjacent and was just the sort of property that they were looking for to establish an angler’s camp. It is significant that in the motion for directed verdict no question was raised as to the sufficiency of the proof on the issue of damages; and the trial judge gave no such reason for directing the verdict. As to proof of agency, the evidence that the property was listed with defendant and that after the sale defendant recognized it as having been made through its agency, is sufficient to take the case to the jury. Defendant could not do business through Davis and escape responsibility for his conduct by relying upon limitations in a contract of which plaintiffs had no notice. The rules of law applicable to. such a situation are too elementary to justify discussion. The judgment appealed from will be reversed and the case will be remanded for a new trial. Reversed and remanded. . Maryland Oases dealing with the right to recover on the ground of deceit are McAleer v. Horsey, 35 Md. 439; Buschman v. Codd, 52 Md. 202; Weaver v. Shriver, 79 Md. 530, 30 A. 189; Boulden v. Stilwell, 100 Md. 543, 60 A. 609, 610, 1 L.R.A.,N.S., 258; Gittings v. Von Dorn, 136 Md. 10, 109 A. 553; Standard Motor Co. v. Peltzer, 147 Md. 509, 128 A. 451; Purdum v. Edwards, 155 Md. 178, 141 A. 550; Babb v. Bolyard, Md., 72 A.2d 13. While these hold that mere statements of opinion or intent or statements which are obviously false do not furnish the basis for an action of deceit, there is nothing in any of them to indicate that the law of Maryland is not in accord with the general law on the subject to the effect that one who has made to another false representations as to material and subsisting facts, which are reasonably relied upon by the party to whom they are made and are acted upon by him to his damage, is liable for the damage resulting from the fraud. While statements the falsity of which should have been as obvious to the person to whom made as to the maker have been held not to furnish grounds of action, there is no holding ■ that a defrauded person is not justified in relying upon a false statement, of material fact which he has no reason to doubt. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:

songer_r_stid

14

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your task is to identify the state of the first listed state or local government agency that is a respondent. Sampath K. HEMMIGE, Plaintiff-Appellant, and Cross-Appellee, v. CHICAGO PUBLIC SCHOOLS, et al., Defendanfs-Appellees, and Cross-Appellants. Nos. 83-1443, 83-1548. United States Court of Appeals, Seventh Circuit. Argued Feb. 20, 1985. Decided March 10, 1986. Kathern MacKinnon, Northwestern Univ. Leg. Clinic, Chicago, 111., for plaintiff-appellant, and cross-appellee. Maria Campo, Chicago Board of Educ. Legal Dept., Chicago, 111., for defendantsappellees, and cross-appellants. Before CUDAHY, POSNER, Circuit Judges, and BROWN, Senior District Judge. The Honorable Wesley E. Brown, Senior District Judge of the United States District Court for the District of Kansas, is sitting by designation. WESLEY E. BROWN, Senior District Judge. In this civil rights action Sampath K. Hemmige, a school teacher, appeals from the judgment and order of the district court dismissing his employment discrimination claims against the Chicago Public School system which were brought under the provisions of 42 U.S.C. Sec. 2000e and 42 U.S.C. Sec. 1983. The defendants, members of the Board of Education of the City of Chicago, and various employees of the board, appeal a judgment in favor of Hemmige which awarded him $570.41 as damages for unpaid teaching hours. Hemmige, an East Indian Hindu, was employed as a non-tenured, day-to-day substitute teacher in the Chicago Public Schools from the fall of 1977 through July, 1980, pursuant to temporary teaching certificates which were issued upon a yearly basis. His application for a temporary certificate for the 1980-1981 school year was denied in July, 1980, upon a finding that his teaching performance had been unsatisfactory. Hemmige contends that his teaching certificate was not renewed because of discrimination against his national origin and religion, and in retaliation for filing a complaint with the Equal Employment Opportunity Commission (EEOC). He also claims that he was denied procedural due process because he was not given a hearing on the decision not to renew his certificate. Since an issue has been raised with respect to the appropriate scope of the judicial proceedings below, we first discuss in some detail the background of this case. While Hemmige has been a teacher for more than thirty years, most of his teaching experience has been in India, Ethiopia and Canada. He has two Masters Degrees — one in English Literature, and the other in Education, and he is qualified as an expert in teaching English as a second language. In June, 1977, he moved to Chicago, Illinois and applied for a temporary teacher’s certificate with the Board of Education for the City. He was granted a certificate for the 1977-1978 school year, and was employed as a day-to-day substitute teacher. This was a non-tenured position whereby Hemmige was “on-call” on a daily basis as the need for substitute teachers might dictate. The temporary certificate expired by its own terms on August 31, at the end of each academic year, and in June, 1978, Hemmige reapplied for a certificate for the 1978-1979 school year. In a letter dated July 28, 1978, he was advised that a certificate was being denied due to an unsatisfactory teaching report. On August 31, 1978, Hemmige filed a discrimination charge with the Illinois Fair Employment Practices Commission, claiming that he had been discriminated against because of his East Indian national origin. The school board subsequently issued a certificate for the 1978-1979 school year, and again, a certificate for the 1979-1980 school year. On June 13, 1980, Hemmige filed a charge of religious and national origin discrimination by defendants with the Equal Employment Opportunity Commission. In this charge Hemmige made the following allegations: “I have been employed by the Chicago Board of Education as a Substitute Teacher since September 1979. (sic) On June 11,1980 while working at the above named facility (Montefiore High School) I was called a poor Hindu, Indian, told to get out, pushed, and not allowed to sign out by Daniel G. Griffin, Principal. The Board of Education employs more than 15 people. “I was called names, pushed and told to leave without being allowed to sign out by Mr. Griffin because I had gone to the restroom. The Board of Education’s contract with the Chicago Teachers Union Sections 6-17,17-2 and 25-1 allow teachers to have a lunch period and a free period during the day. Teachers are not required to work more than 6 periods a day. There are at least five (5) minutes between classes for breaks. “I believe that I have been discriminated against because of my national origin, East Indian, in that: I was not allowed to take a break during the day. After he learned that I had taken a break during class, Mr. Griffin pushed me and yelled, ‘poor Hindu, Indian get the hell out and go to your country. I won’t let you sign out.’ He also called the police. Officer Ramao ... asked Mr. Griffin to allow me to sign out. Mr. Griffin refused and at 2:20 p.m. I left the building. “Mr. Griffin refused to allow me to sign out. He told me I would not be paid for the day.” While this charge was pending, Hemmige applied for a temporary certificate for the 1980-1981 school year. In a letter dated July 18, 1980, Hemmige was informed by the Board that it would not renew his teaching certificate, citing seven unsatisfactory reports from various Chicago public schools. After receiving a right to sue letter, Hemmige filed a pro se complaint in this action. He there complained of discrimination in race, color, sex, religion, and national origin, claiming that he had been ill treated in every respect. After counsel was appointed, a four count amended petition was filed, which claimed that defendants discriminated against him on the basis of national origin and Hindu religion, retaliated against him for filing the EEOC charge, denied due process by deciding not to renew the certificate, without prior notice or opportunity to be heard, and that the defendants had breached his contract by failing to pay him for all of his work. On February 10, 1982, the District Court granted defendant’s motion to dismiss charges of alleged discrimination occurring prior to August 19, 1979 because they were not timely filed. The court noted that an incident which occurred at Moses Montefiore School on June 11, 1980, was the subject matter of the EEOC charge filed by Hemmige on June 13, 1980. The scope of the amended complaint, however, covered alleged discrimination from September, 1977 to September, 1980, and in addition, included a charge of retaliation for filing the 1980 charge. In determining the appropriate scope of the amended complaint, as it related to the EEOC charge, the trial court recognized that the scope of the judicial complaint is not limited to the precise facts set out in the EEOC charge — but rather “to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” See Jenkins v. Blue Cross Mut. Hospital Ins., Inc., 538 F.2d 164, 167 (7 Cir.1976), cert. denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598, citing the standard applied in Danner v. Phillips Petroleum Co., 447 F.2d 159, 162 (5 Cir.1971): “The correct rule to follow in construing EEOC charges for purposes of delineating the proper scope of a subsequent judicial inquiry is that ‘the complaint in the civil action * * * may properly encompass any * * * discrimination like or reasonably related to the allegations of the charge and growing out of such allegations ****.’ ” (Citing King v. Georgia Power Co., 295 F.Supp. 943, 947 (N.D.Ga.1968)). The trial court found that the allegations of Count II of the amended petition, which related to a pattern of discrimination by defendant against minorities, vastly exceeded any investigation which could reasonably be expected to grow out of the charge of discrimination relating to the events at Montefiore High School on June 11, 1980. Accordingly, Count II was dismissed in its entirety. Count I of the petition concerned several incidents of conduct which preceded the incident of June 11,1980. The court found that any alleged acts which occurred before August 19, 1979 (300 days before the EEOC charge was filed) were untimely under Section 706(e) of Title VII, 42 U.S.C. Sec. 2000e-5(e), which provides that: “... (I)n a case of unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice ... such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceeding under the State or local law, whichever is earlier____” See Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980). The retaliation claim was allowed to stand since the permissible scope of a judicial complaint includes any new acts occurring during the pendency of the charge before the EEOC. Plaintiff contends that the allegations in Count I establish a “continuing violation” theory of discrimination and that the district court erred in dismissing allegations which concerned incidents occurring prior to August 19, 1979. In Stewart v. CPC International Inc., 679 F.2d 117, 120 (7th Cir.1982), this Circuit determined that a plaintiff can charge a continuing violation when the employer has engaged in a practice of discrimination, usually involving hiring or promotion practices, where it is difficult to fix the exact day a particular violation may have occurred, or where an employer has covertly followed a practice of discrimination. However, in Stewart we recognized that a finding of continuing discrimination must be based upon a present violation, within the relevant time period. In our discussion of United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977) we noted that: “... the Supreme Court’s emphasis upon the need to show a present violation of Title VII indicates that an employer may be held liable for a continuing practice of discrimination ¿/the plaintiff can demonstrate that the practice has actually continued into the ‘present’ — that is, into the time period relevant to the date the charge of discrimination was filed. At least one discriminatory act must have occurred within the charge-filing period. Discriminatory acts that occurred prior to this period constitute relevant evidence of a continuing practice, and may help to demonstrate the employer’s discriminatory intent; and they will of course be used to determine the extent of the remedy that is in order____ But the prior discriminatory acts do not come into play at all unless the plaintiff can show in the first place that the discrimination is ‘presently’ continuing.” (679 F.2d at 121.) (Emphasis of the court) Because we find that plaintiff failed to establish any incident of a “present” discrimination, there was no basis for consideration of the theory of “continuing discrimination.” After our review of the transcripts and record, we agree with the trial court’s finding that the evidence in this case overwhelmingly establishes that plaintiff’s teaching certificate was not renewed because of his own failure as a substitute teacher, and not because of his national origin or religion, or because of any other discriminatory bias. In this connection, the court below made certain credibility determinations which were adverse to Hemmige’s position. For instance, plaintiff claimed that on June 11, 1980, Mr. Daniel G. Griffin, the Principal of Moses Montefiore School, called him “an ugly, poor old Indian,” and ordered him to leave the school without justification, all because of Griffin’s bias and prejudice against him. In giving evidence to the court, Mr. Griffin specifically denied calling plaintiff a name, or pushing him. Griffin testified that he ordered plaintiff to leave the school because he had left his class alone for an extended period of time, he used a telephone in a secretary’s office, instead of being in the washroom, as claimed, and that he was evicted from the premises only after plaintiff created a scene, indicating that he would not obey Mr. Griffin. In the face of this conflicting evidence, the trial court discredited plaintiff’s testimony, finding that Mr. Griffin was the one worthy of belief, and that his letter of June 11, 1980, was fully justified. Other incidents reflected plaintiff’s inability to work with students. In December, 1979, an altercation occurred in a girls’ chorus class which Hemmige was conducting at Roosevelt High School. The principal, Ursula Blitzner, reported the incident in this manner: a * * * * The student claimed that the teacher (Hemmige) requested her to change her seat three times. She moved twice and balked the third time. The student alleged that the teacher pushed her out of the chair, and she fell to the floor. The teacher claimed that he requested the student to move several times because she was disruptive, and he alleged that he did not in any way touch her or the chair. “The mother of the student came to school. A conference was held with the teacher, student, parent, and principal. The same impasse was reached at the conference. The student was checked by the matron at the time of the alleged incident and reported no bruises.” (Ex. 31) In March, 1980, Ms. Blitzner again found it necessary to report plaintiff’s behavior to the Director of Teacher Personnel: (Ex. 32) “Mr. Sampath K. Hemmige ... was a substitute at Roosevelt High School on Friday, March 21, 1980. His ability to work with high school students is extremely limited; his method of classroom management is to order the students to leave the class and not return. “I returned the students to his class during the morning session with the directions for our procedures for handling student discipline. During the afternoon session, he again ordered students out of his class. They alleged that he also used derogatory language. “In addition, he insisted that he was not going to cover a class that I asked him to cover, because he was ‘overworked and paid a mere pittance by the Board of Education, and that he needed the period to rest.’ I persisted, and he did cover the class. “Since this is the second incident that I have reported to your office about Mr. Hemmige, I request that he not be sent to Roosevelt High School at all.” After reviewing the evidence the trial court resolved credibility questions in favor of Ms. Blitzner’s testimony concerning incidents at Roosevelt High School and found that her actions and reports were not inspired in any way by plaintiff’s national origin or ethnic attributes, but rather by his conduct as a substitute teacher. Plaintiff also testified about an event which occurred at DuSable High School on May 21, 1980 when he allegedly was required to attend a “Gospel Choir,” and where the Principal, Judith Steinhagen, allegedly expressed a preference for a Jewish substitute. Although there was no contrary testimony, the trial court chose to discredit plaintiff’s testimony because he did not believe that plaintiff had testified truthfully as to a number of other material matters. In this respect, it was noted that plaintiff had testified in a manner “wholly contrary” to Ms. Steinhagen’s report dated May 21, 1980, received in evidence as Exhibit 34: “Mr. Sampath Hemmige was a substitute teacher at our school today. All students were assigned to report to a music assembly beginning at 9:42 seated by division teachers. Mr. Hemmige brought a chair in from the lunchroom and sat blocking the fire aisle. When questioned he told me that he had no division — he did and had the program card showing same. He then sat in an auditorium seat but refused to remove the chair after several requests. Within two minutes after the musical presentation began — our reknown (sic) Gospel Choir — he left the auditorium. “I followed him out and repeatedly explained his responsibility for supervision of his class. He refused to do so. I then told him that if he refused to discharge his duties he was released from DuSable. “He refused to leave and loudly and publicly in the main office challenged my competency to be in charge of this, or any school and called me a prejudiced dictator. He further stated that he was present and supervising for the entire assembly. This is not true. “I do not want him sent to DuSable and sincerely believe that some serious investigation should be made before he is given a temporary certificate for 1980-1981. He is unsatisfactory.” Pursuant to school board policy, a conference concerning the unsatisfactory report of Ms. Steinhagen was held with plaintiff on June 13,1980. After he was given a copy of the report, he denied all charges, stating that the principal was a racist and had referred to him as an “Indian.” The conference report (Ex. 35) further related that: “Mr. Hemmige contends that the principal requested that he perform duties which he feels are not in line with his-position as a teacher. He was advised of Board Rule 6-13 — Duties of Teachers. “Mr. Hemmige was made aware of the role of the principal and his role as a teacher. He was advised to be circumspect in his relationship with principals. “Mr. Hemmige was reminded that another unsatisfactory letter could cause his termination.” As previously noted the unsatisfactory report from the DuSable principal was followed by another unsatisfactory report from Mr. Griffin, under date of June 11, 1980. On June 25, 1980 a conference was held with plaintiff regarding this letter, where he was again informed that while serving in a school as a day-to-day substitute teacher, he was under the jurisdiction of the local school principal. Our lengthy review of the evidence which was before the trial court fully supports the finding that plaintiff was not a competent substitute teacher and this was why the Board did not renew his license. Likewise, the evidence did not support, “in any degree,” plaintiffs claim of unlawful discrimination, or retaliation against him because he had filed an EEOC charge. Plaintiff contends that he possessed a property interest in his teaching certificate which was protected by the Fourteenth Amendment, and that he was deprived of his right to due process because the Board refused to renew his certificate without notice or an opportunity for hearing. Here, it is clear that plaintiff was a non-tenured, temporarily employed teacher. Under Illinois law, only tenured teachers are entitled to notice and hearing pending dismissal, and plaintiff’s expectation of employment was governed by his one-year temporary certificate. The union contract provided that the services of an unsatisfactory temporarily certificated teacher could not be terminated “until he has been given an unsatisfactory rating by at least two principals.” There were no agreements between plaintiff and the Board that his temporary teaching certificates would be issued on a continuing basis. Each certificate was limited to a one year term, and was not subject to automatic renewal. Under Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) and our decisions in McElearney v. University of Illinois, 612 F.2d 285 (7th Cir.1979); Smith v. Board of Education, 708 F.2d 258 (7th Cir.1983); and Eichman v. Indiana State University Board of Trustees, 597 F.2d 1104 (7th Cir.1979) plaintiff had no property interest in a temporary teaching certificate. Contrary to the situation found in Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), there was no evidence that the Board’s rules or policies had fostered any expectation of continued employment. Likewise, our recent decision in Vail v. Board of Education, 706 F.2d 1435 (7th Cir.1984) affirmed by equally divided court, 466 U.S. 377, 104 S.Ct. 2144, 80 L.Ed.2d 377 (1984) may be distinguished, for there, the plaintiff had a two year employment promise. The district court found that plaintiff was entitled to payment for overtime in the sum of $570.41. The ruling in this regard was preceded by this comment: “Some of the testimony from the past or Board employees which I credited does support the conclusion that the plaintiff is wrong when he said he taught extra classes at the end of the school day. Some of the evidence suggests that there were no classes to be taught at the end of the day. Therefore, precluding the opportunity for the plaintiff to teach at that time. “In any event, I am going to find in favor of the plaintiff and- award him overtime pay of $570.41 that he says he has coming. The plaintiff, at least, has some documentary evidence in support of that figure. It is not, in relative terms, a large amount and it is simply unworthy of a legal or judicial analysis on a day-today basis in order to reach some greater precision.” We have reviewed the trial transcript and exhibits received in evidence in this case. The only evidence to support the award of overtime is plaintiffs self serving testimony and Exhibit 84, a “diary” of notes made by Hemmige concerning teaching assignments, travel notes, and other comments. The diary was written in the Hindi language and abbreviated English. Plaintiff testified that he marked his “overtime days” in this diary with an asterisk, although no times of arrival or departure are indicated. Plaintiff testified that his claim for overtime was based upon being asked to work extra classes, above his “normal load.” In this respect he claimed that the union contract governing overtime pay for substitute teachers provided for payment of $42.00 per day for a 6-hour day, and $50 per day for an 8-hour day, with certain increments after 100 days of service. (Ex. 56, p. 126) Hemmige claimed that he was not allowed to eat lunch at the Montefiore School, but the evidence shows that this was a closed campus and no teacher had a free lunch hour during the school day, which ended at 2:30. Teachers were then free to eat lunch or go home at that time. A similar situation existed at the Anderson School. In some instances, plaintiff claimed that he had to work after school hours until 4:30 p.m. but the testimony of principals was to the contrary— there were no classes lasting until 4:30, and plaintiff was not asked to take any extra classes at the end of the school day. Under the union contract a principal was allowed to assign teachers extra classes in emergency situations, and the first persons called upon for this service were the substitute teachers. While the trial court found that plaintiff at least had “some” evidence on his overtime claim, there was no finding that such evidence was credible. The record is in fact to the contrary. The court did not “believe that the plaintiff has testified truthfully as to a number of material matters,” and found that plaintiff refused to take classes when he had an obligation to do so. Plaintiff had the burden of proof in establishing his breach of contract claim, and in our view he failed to offer sufficient credible evidence to support a finding that he was entitled to $570.41 in overtime pay. The judgment entered in favor of all defendants and against the plaintiff on all claims of discrimination and retaliation is AFFIRMED. The judgment awarding plaintiff the sum of $570.41 on the issue of overtime pay is REVERSED. . Under date of December 15, 1977, the principal of one Chicago School wrote to the substitute teacher division advising that Hemmige, in his judgment was “unsatisfactory.” “He refused to take an assignment to teach a class because he said he would not take more than five classes. This was an emergency since we were short of substitutes.” "If he is not terminated, we certainly do not wish him sent here again.” (Ex. 24) Under date of March 6, 1978, a principal from a second high school reported that Hemmige was reluctant to accept assignments offered to him and requested that he not be sent to that school again. (Ex. 27) On June 12, 1978, a third principal reported that Hemmige became upset and created a scene in refusing to take an assigned class. This principal believed that Hemmige’s "actions and behavior were unprofessional” and he requested that Hemmige not be sent to that high school as a substitute in the future. (Ex. 26) . In this discrimination charge Hemmige claimed that he had not received any oral or written reports regarding his teaching performance from principals; that no principal had ever observed him in a classroom teaching assignment, and that “Dr. Ellenbogen has stated to me that 'You are an Indian so I have terminated you.’" (Ex. 67) . This letter, directed to the Substitute Teacher Center, was as follows: “Please do not send substitute teacher Sam-path K. Hemmige ... to Montefiore in the future. Today he left his class unattended and could not be found for a considerable period of time. He was finally discovered in a counselor’s office using a school telephone. I told him at that time (1:15 p.m.) to sign out and that he would only be credited with a half day. He refused to sign out. I called Sub-Center with the above information.” (Ex. 37) . Under the provisions of the Chicago Teachers Union contract in force for September, 1979 through August 1981, which governed plaintiffs rights under a temporary teaching certificate, Section 39-4.3 provided that: "When a temporarily certified teacher employed on a day-to-day basis receives an unsatisfactory rating, the Department of Personnel shall schedule a conference with such teacher to give him a written copy of the reasons and give him positive suggestions for improvement. "The services with the school system of an unsatisfactory temporarily certificated teacher employed on a day-to-day basis shall not be terminated until he has been given an unsatisfactory rating by at least two principals, unless there is evidence of moral laxity or serious misconduct.” (Tr. Vol. 1, p. 16) . During plaintiffs teaching appointments in Chicago, unsatisfactory reports were received from seven different schools. Conferences were held with him in January, 1978, February, 1979, and on the two occasions discussed in 1980. . Here, of course, plaintiffs employment was not “terminated,” while his 1979-1980 certificate was in force. . Other Exhibits purportedly summarized material in this diary, e.g., Exs. 71, 75, 76, 77 and 80. . While teachers had no "free” lunch period they could eat with the students during the student lunch hour if they preferred. Question: What is the state of the first listed state or local government agency that is a respondent? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:

sc_jurisdiction

B

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ. UNITED STATES v. OREGON STATE MEDICAL SOCIETY et al. No. 19. Argued January 4, 7, 1952. Decided April 28, 1952. Stanley M. Silverberg argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Morison, J. Roger Wollenberg and Daniel M. Friedman. Nicholas Jaureguy argued the cause for appellees. With him on the brief were Clarence D. Phillips and John J. Coughlin. Mr. Justice Jackson delivered the opinion of the Court. This is a direct appeal by the United States from dismissal by the District Court of its complaint seeking an injunction to prevent and restrain violations of §§ 1 and 2 of the Sherman Act. 26 Stat. 209, as amended, 15 U. S. C. §§ 1, 2. Appellees are the Oregon State Medical Society, eight county medical societies, Oregon Physicians’ Service (an Oregon corporation engaged in the sale of prepaid medical care), and eight doctors who are or have been at some time responsible officers in those organizations. This controversy centers about two forms of “contract practice” of medicine. In one, private corporations organized for profit sell what amounts to a policy of insurance by which small periodic payments purchase the right to certain hospital facilities and medical attention. In the other¡ railroad and large industrial employers of labor contract with one or more doctors to treat their ailing or injured employees. Both forms of “contract practice,” for rendering the promised medical and surgical service, depend upon doctors or panels of doctors who cooperate on a fee basis or who associate themselves with the plan on a full- or part-time employment basis. ' Objections of the organized medical profession to contract practice are both monetary and ethical. Such practice diverts patients from independent practitioners to contract doctors. It tends to standardize fees. The ethical objection has been that intervention by employer or insurance company makes a tripartite matter of the doctor-patient relation. Since the contract doctor owes his employment and looks for his pay to the employer or the insurance company rather than to the patient, he serves two masters with conflicting interests. In many cases companies assumed liability for medical or surgical service only if they approved the treatment in advance. There was evidence of instances where promptly needed treatment was delayed while obtaining company approval, and where a lay insurance official disapproved treatment advised by a doctor. In 1936, five private associations were selling prepaid medical certificates in Oregon, and doctors of that State, alarmed at the extent to which private practice was being invaded and superseded by contract practice, commenced a crusade to stamp it out. A tooth-and-claw struggle ensued between the organized medical profession, on the one hand, and the organizations employing contract doctors on the other. The campaign was bitter on both sides. State and county medical societies adopted resolutions and policy statements condemning contract practice and physicians who engaged in it. They brought pressure on individual doctors to decline or abandon it. They threatened expulsion from medical societies, and one society did expel several doctors for refusal to terminate contract practices. However, in 1941, seven years before this action was commenced, there was an abrupt about-face on the part of the organized medical profession in Oregon. It was apparently convinced that the public demanded and was entitled to purchase protection against unexpected costs of disease and accident, which are catastrophic to persons without reserves. The organized doctors completely reversed their strategy, and, instead of trying to discourage prepaid medical service, decided to render it on a nonprofit basis themselves. In that year, Oregon Physicians’ Service, one of the defendants in this action, was formed. It is a nonprofit Oregon corporation, furnishing prepaid medical, surgical, and hospital care on a contract basis. As charged in the complaint, “It is sponsored and approved by the Oregon State Medical Society and is controlled and operated by members of that society. It sponsors, approves, and cooperates with component county societies and organizations controlled by the latter which offer prepaid medical plans.” 95 F. Supp., at 121. After seven years of successful operation, the Government brought this suit against the doctors, their professional organizations and their prepaid medical care company, asserting two basic charges: first, that they conspired to restrain and monopolize the business of providing prepaid medical care in the State of Oregon, and, second, that they conspired to restrain competition between doctor-sponsored prepaid medical plans within the State of Oregon in that Oregon Physicians’ Service would not furnish prepaid medical care in an area serviced by a local society plan. The District Judge, after a long trial, dismissed the complaint on the ground that the Government had proved none of its charges by a preponderance of evidence. The direct appeal procedure does not give us the benefit of review by a Court of Appeals of findings of fact. The appeal brings to us no important questions of law or unsettled problems of statutory construction. It is much like United States v. Yellow Cab Co., 338 U. S. 338. Its issues are solely ones of fact. The record is long, replete with conflicts in testimony, and includes quantities of documentary material taken from the appellees’ files and letters written by doctors, employers, and employees. The Government and the appellees each put more than two score of witnesses on the stand. At the close of the trial the judge stated that his work “does not permit the preparation of a formal opinion in so complex a case. I will state my conclusions on the main issues and then will append some notes made at various stages throughout the trial. These may be of aid to counsel in the preparation of Findings of Fact and Conclusions of Law to be submitted as a basis for final judgment.” 95 F. Supp., at 104. These notes indicated his disposition of the issues, but the Government predicates a suggestion of bias on irrelevant soliloquies on socialized medicine, socialized law, and the like, which they contained. Admitting that these do not add strength ór persuasiveness to his opinion, they do not becloud his clear disposition of the main issues of the case, in all of which he ruled against the Government. Counsel for the doctors submitted detailed findings in accordance therewith. The Government did not submit requests to find, but by letter raised objections to various proposals of the appellees. The trial judge found that appellees did not conspire to restrain or attempt to monopolize prepaid medical care in Oregon in the period 1936-1941, and that, even if such conspiracy during that time was proved, it was abandoned in 1941 with the formation of Oregon Physicians’ Service marking the entry of appellees into the prepaid medical care business. He ruled that what restraints were proved could be justified as reasonable to maintain proper standards of medical ethics. He found that supplying prepaid medical care within the State of Oregon by doctor-sponsored organizations does not constitute trade or commerce within the meaning of the Sherman Act, but he declined to rule on the question whether supplying prepaid medical care by the private associations is interstate commerce. The Government asks us to overrule each of these findings as contrary to the evidence, and to find that the business of providing prepaid medical care is interstate commerce. We are asked to review the facts and reverse and remand the case “for entry of a decree granting appropriate relief.” We are asked in substance to try the case de novo on the record, make findings and determine the nature and form of relief. We have heretofore declined to give such scope to our review. United States v. Yellow Cab Co., supra. While Congress has provided direct appeal to this Court, it also has provided that where an action is tried by a court without a jury “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Rule 52 (a), Fed. Rules Civ. Proc. There is no case more appropriate for adherence to this rule than one in which the complaining party creates a vast record of cumulative evidence as to long-past transactions, motives, and purposes, the effect of which depends largely on credibility of witnesses. The trial court rejected a grouping by the Government of its evidentiary facts into four periods, 1930-1936, the year 1936, 1936-1941, and 1941 to trial. That proposal projected the inquiry over an eighteen-year period before the action was instituted. The court accepted only the period since the organization of Oregon Physicians’ Service as significant and rejected the earlier years as “ancient history” of a time “when the Doctors were trying to find themselves. ... It was a period of groping for the correct position to take to accord with changing times.” 95 F. Supp., at 105. Of course, present events have roots in the past, and it is quite proper to trace currently questioned conduct backwards to illuminate its connections and meanings. But we think the trial judge was quite right in rejecting pre-1941 events as establishing the cause of action the Government was trying to maintain, and adopt his division of the time involved into two periods, 1936-1941, and 1941 to trial. It will simplify consideration of such cases as this to keep in sight the target at which relief is aimed. The sole function of an action for injunction is to forestall future violations. It is so unrelated to punishment or reparations for those past that its pendency or decision does not prevent concurrent or later remedy for past violations by indictment or action for damages by those injured. All it takes to make the cause of action for relief by injunction is a real threat of future violation or a contemporary violation of a nature likely to continue or recur. This established, it adds nothing that the calendar of years gone by might have been filled with transgressions. Even where relief is mandatory in form, it is to undo existing conditions, because otherwise they are likely to continue. In a forward-looking action such as this, an examination of “a great amount of archeology” is justified only when it illuminates or explains the present and predicts the shape of things to come. When defendants are shown to have settled into a continuing practice or entered into a conspiracy violative of antitrust laws, courts will not assume that it has been abandoned without clear proof. Local 167 v. United States, 291 U. S. 293, 298. It is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption. Cf. United States v. United States Steel Corp., 251 U. S. 417, 445. But we find not the slightest reason to doubt the genuineness, good faith or permanence of the changed attitude and strategy of these defendant-appellees which took place in 1941. It occurred seven years before this suit was commenced and, so far as we are informed, before it was predictable. It did not consist merely of pretensions or promises but was an overt and visible reversal of policy, carried out by extensive operations which have every appearance of being permanent because wise and advantageous for the doctors. The record discloses no threat or probability of resumption of the abandoned warfare against prepaid medical service and the contract practice it entails. We agree with the trial court that conduct discontinued in 1941 does not warrant the issuance of an injunction in 1949. Industrial Assn. v. United States, 268 U. S. 64, 84. Appellees, in providing prepaid medical care, may engage in activities which violate the antitrust laws. They are now competitors in the field and restraints, if any are to be expected, will be in their methods of promotion and operation of their own prepaid plan. Our duty is to inquire whether any restraints have been proved of a character likely to continue if not enjoined. Striking the events prior to 1941 out of the Government’s case, except for purposes of illustration or background information, little of substance is left. The case derived its coloration and support almost entirely from the abandoned practices. It would prolong this opinion beyond useful length, to review evidentiary details peculiar to this case. We mention what appear to be some highlights. Only the Multnomah County Medical Society resorted to expulsions of doctors because of contract-practice activities, and there have been no expulsions for such cause since 1941. There were hints in the testimony that Multnomah was reviving the expulsion threat a short time before this action was commenced, but nothing came of it, and what that Society might do within the limits of its own membership does not necessarily indicate a joint venture or conspiracy with other appellees. Some emphasis is placed on a report of a meeting of the House of Delegates of the State Society at which it was voted that the “private patient status” policy theretofore applied to private commercial hospital association contracts be extended to the industrial and railroad type of contracts. Any significance of this provision seems neutralized -by another paragraph in the same report, which reads: “A receipt should be furnished each patient at the time of each visit, as it is understood the [industrial and railroad plan] companies concerned will probably establish a program of reimbursement to the affected employees.” That does not strike us as a threat to restrict the practice of industrial and railroad companies of reimbursing employees for medical expenses and we cannot say that any ambiguity was not properly resolved in appellees’ favor by the trial court. The record contains a number of letters from doctors to private associations refusing to accept checks directly from them. Some base refusal on a policy of their local medical society, others are silent as to reasons. Some may be attributed to the writers’ personal resistance to dealing directly with the private health associations, for it is clear that many doctors objected to filling out the company forms and supplying details required by the associations, and preferred to confine themselves to direct dealing with the patient and leaving the patient to deal with the associations. Some writers may have mistaken or misunderstood the policy of local associations. Others may have avoided disclosure of personal opposition by the handy and impersonal excuse of association “policy.” The letters have some evidentiary value, but it is not compelling and, weighed against the other post-1941 evidence, does not satisfy us that the trial court's findings are “clearly erroneous.” Since no concerted refusal to deal with private health associations has been proved, we need not decide whether it would violate the antitrust laws. We might observe in passing, however, that there are ethical considerations where the historic direct relationship between patient and physician is involved which are quite different than the usual considerations prevailing in ordinary commercial matters. This Court has recognized that forms of competition usual in the business world may be demoralizing to the ethical standards of a profession. Semler v. Oregon State Board of Dental Examiners, 294 U. S. 608. Appellees’ evidence to disprove conspiracy is not conclusive, is necessarily largely negative, but is too persuasive for us to say it was clear error to accept it. In 1948, 1,210 of the 1,660 licensed physicians in Oregon were members of the Oregon State Medical Society, and between January 1, 1947, and June 30, 1948, 1,085 Oregon doctors billed and received payment directly from the Industrial Hospital Association, only one of the several private plans operating in the State. Surely there was no effective boycott, and ineffectiveness, in view of the power over its members which the Government attributes to the Society, strongly suggests the lack of an attempt to boycott these private associations. A parade of local medical society members from all parts of the State, apparently reputable, credible, and informed professional men, testified that their societies now have no policy of discrimination against private health associations, and that no attempts are made to prevent individual doctors from cooperating with them. Members of the governing councils of the State and Multnomah County Societies testified that since 1940 there have been no suggestions in their meetings of attempts to prevent individual doctors from serving private associations. The manager of Oregon Physicians' Service testified that at none of the many meetings and conferences of local societies attended by him did he hear any proposal to prevent doctors from cooperation with private plans. If the testimony of these many responsible witnesses is given credit, no finding of conspiracy to restrain or monopolize this business could be sustained. Certainly we cannot say that the trial court's refusal to find such a conspiracy was clearly erroneous. The other charge is that appellees conspired to restrain competition between the several doctor-sponsored organizations within the State of Oregon. The charge here, as we understand it from paragraph 33 (i) of the complaint, 95 F. Supp., at 124, is that Oregon Physicians' Service, the state-wide organization, and the county-medical-society-sponsored plans agreed not to compete with one another. Apparently if a county was provided with prepaid medical care by a local society, the state society would stay out, or if the county society wanted to inaugurate a local plan, the state society would withdraw from the area. This is not a situation where suppliers of commercial commodities divide territories and make reciprocal agreements to exploit only the allotted market, thereby depriving allocated communities of competition. This prepaid plan does not supply to, and its allocation does not withhold from, any community medical service or facilities of any description. No matter what organization issues the certificate, it will be performed, in the main, by the local doctors. The certificate serves only to prepay their fees. The result, if the state association should enter into local competition with the county association, would be that the inhabitants could prepay medical services through either one of two medical society channels. There is not the least proof that duplicating sources of the prepaid certificates would make them cheaper, more available or would result in an improved service or have any beneficial effect on anybody. Through these nonprofit organizations the doctors of each locality, in practical effect, offer their services and hospitalization on a prepaid basis instead of on the usual cash fee or credit basis. To hold it illegal because they do not offer their services simultaneously and in the same locality through both a state and a county organization would be to require them to compete with themselves in sale of certificates. Under the circumstances proved here, we cannot regard the agreement by these nonprofit organizations not to compete as an unreasonable restraint of trade in violation of the Sherman Act. With regard to this charge, the court found, “The sale of medical services, by Doctor Sponsored Organizations, as conducted within the State of Oregon, is not trade or commerce within the meaning of Section 1 of the Sherman Anti-Trust Law, nor is it commerce within the meaning of the constitutional grant of power to Congress 'To regulate Commerce ... among the several States.’ ” 95 F. Supp., at 118. If that finding in both aspects is not to be overturned as clearly erroneous, it, of course, disposes of this charge, for if there was no restraint of interstate commerce, the conduct charged does not fall within the prohibitions of the Sherman Act. Almost everything pointed to in the record by the Government as evidence that interstate commerce is involved in this case relates to across-state-line activities of the private associations. It is not proven, however, to be adversely affected by any allocation of territories by doctor-sponsored plans. So far as any evidence brought to our attention discloses, the activities of the latter are wholly intrastate. The Government did show that Oregon Physicians’ Service made a number of payments to out-of-state doctors and hospitals, presumably for treatment of policyholders who happened to remove or temporarily to be away from Oregon when need for service arose. These were, however, few, sporadic and incidental. Cf. Industrial Assn. v. United States, supra, at 84. American Medical Assn. v. United States, 317 U. S. 519, does not stand for the proposition that furnishing of prepaid medical care on a local plane is interstate commerce. That was a prosecution under § 3 of the Sherman Act of a conspiracy to restrain trade or commerce in the District of Columbia. Interstate commerce was not necessary to the operation of the statute there. We conclude that the Government has not clearly proved its charges. Certainly the court’s findings are not clearly erroneous. “A finding is ‘clearly erroneous’ when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U. S. 364, 395. The Government’s contentions have been plausibly and earnestly argued but the record does not leave us with any “definite and firm conviction that a mistake has been committed.” As was aptly stated by the New York Court of Appeals, although in a case of a rather different substantive nature: “Face to face with living witnesses the original trier of the facts holds a position of advantage from which appellate judges are excluded. In doubtful cases the exercise of his power of observation often proves the most accurate method of ascertaining the truth. . . . How can we say the judge is wrong? We never saw the witnesses. . . . To the sophistication and sagacity of the trial judge the law confides the duty of appraisal.” Boyd v. Boyd, 252 N. Y. 422, 429, 169 N. E. 632, 634. Affirmance is, of course, without prejudice to future suit if practices in conduct of the Oregon Physicians’ Service or the county services, whether or not involved in the present action, shall threaten or constitute violation of the antitrust laws. Cf. United States v. Reading Co., 226 U. S. 324, 373. Judgment affirmed. Mr. Justice Black is of opinion that the judgment below is clearly erroneous and should be reversed. Mr. Justice Clark took no part in the consideration or decision of this ease. Pursuant to § 2 of the Expediting Act of 1903, 32 Stat. 823, as amended, 15 U. S. C. § 29. 95 F. Supp. 103. 26 Stat. 209, 15 U. S. C. § 1: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States ... is declared to be illegal . . . .” 15 U. S. C. § 2: “Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States . . . shall be deemed guilty of a misdemeanor . . . Judge Augustus Hand, “Trial Efficiency,” dealing with antitrust cases, Business Practices Under Federal Antitrust Laws, Symposium, New York State Bar Assn. (C. C. H. 1951) 31-32. See also Sec. VIII, Procedure in Anti-Trust and Other Protracted Cases, a Report adopted September 26, 1951, by the Judicial Conference of the United States. 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_typeiss

D

What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. In re MILLER & HARBAUGH. HARBAUGH v. CLARK. No. 6433. Circuit Court of Appeals, Ninth Circuit. Feb. 23, 1932. Barnett H. Goldstein, H. E. Collier, and S. J. Bischoff, all of Portland, Or., for appellant. Coan & Rosenberg, of Portland, Or., for appellee. Before WILBUR and SAWTELLE, Circuit Judges and WEBSTER, District Judge. Rehearing denied April 4, 1932. PER CURIAM. January 6, 1931, the order adjudging Paul C. Harbaugh in contempt of court was made and entered in the District Court of the United States for' the District of Oregon, for disobeying a turnover order made and entered in In re bankruptcy of Miller & Harbaugh, a corporation. January 28, 1931, petition for allowance of appeal to the United States Circuit Court of Appeals for the Ninth Circuit was filed in the District Court of the United States for the District of Oregon. January 28, 1931, assignment of errors was filed. January 28, 1931, an order was made and entered allowing an appeal to the United States Circuit Court of Appeals for the Ninth Circuit. January 28, 1931, citation on appeal was issued and served on the appellee, and due and timely and legal service was admitted the same day. April 7, 1931, the transcript in this cause was filed with the 'clerk of the United States Circuit Court of Appeals for the Ninth Circuit, and the cause was duly docketed. April 13, 1931, appellee entered his appearance in this court. April 14, 1931, appellant’s brief was filed. September 11, 1931, appellee’s brief was filed herein. September 17, 1931, appellant’s reply brief was filed herein. September 17, 1931, this cause was tried at the Portland, Or., session of the United States Circuit Court of Appeals for the Ninth Circuit. September 21, 1931, appellee filed an additional brief. October 26, 1931, a judgment was entered herein, 53 F.(2d) 176, reversing the order of the United States District Court for the District of Oregon. Thereafter appellee filed a petition and brief for a rehearing. December 14, 1931, an order was entered herein denying the petition for a rehearing, 54 F.(2d) 612. December 14, 1931, “upon application of Messrs. Coan & Rosenberg, counsel for the appellee,” an order Staying issuance of mandate was made and entered herein pending petition for a writ of certiorari to be filed with the Clerk of the Supreme Court of the United States. January 2, 1932, the clerk of this court forwarded (as of December 28, 1931), to the clerk of the Supreme Court of the United States the original and copies of the transcript of record for use upon petition to the Supreme Court of the United States for writ of certiorari. January 4, 1932, appellee served the motion now before the Court, and likewise served a motion to stay the issuance of mandate to March 10, 1932, and also prays that this court fix a time within which the petition for a writ of certiorari be docketed in the office of the clerk of the Supreme Court of the United States. No motion was ever filed to dismiss the appeal prior to the entry of the judgment in this court. The question presented by this motion was not argued in the briefs filed herein, nor was the question presented at the oral argument of the ease. The question was not presented upon the petition for rehearing. The court did not, prior to the rendition of this judgment, pass upon the matter sua sponte. Both parties have filed briefs, on the jurisdictional questions involved, and a further hearing of the motion is neither necessary nor desirable. It is clear that, if this appeal is from an order in a proceeding in bankruptcy, this court acquired no jurisdiction over the matter by the allowance of an appeal by the District Court. This was decided by this court in Standard Sanitary Mfg. Co. v. Momsen-Dunnegan-Ryan Co., 51 F.(2d) 684, in conformity with the decisions of other Circuit Courts of Appeal. Quarles v. Dennison (C. C. A. 10) 45 F.(2d) 585; Broders v. Lage (C. C. A. 8) 25 F.(2d) 288, 289; Taylor v. Voss, 271 U. S. 176, 181, 46 S. Ct. 461, 70 L. Ed. 889; Gate City Clay Co. v. Dickey (C. C. A. 8) 39 F.(2d) 581, and numerous eases cited; Shoreland Co. v. Conklin, 30 F.(2d) 489 (C. C. A. 5); Stanley’s Incorporated Store No. 3 v. Earl (C. C. A. 8) 25 F.(2d) 458; Schnurr v. Miller, 49 F.(2d) 109 (C. C. A. 8). That the order adjudicating the appellant in contempt for a failure to obey a turnover order is a proceeding in bankruptcy was decided by the Circuit Court of Appeals of the first circuit in Ahlstrom v. Ferguson, 29 F.(2d) 515. We see no reason to doubt the .correctness of this conclusion, and consequently the appeal must be dismissed. Appeal dismissed. 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_respondent

080

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. WEST v. CONRAIL et al. No. 85-1804. Argued February 25, 1987 Decided April 6, 1987 Stevens, J., delivered the opinion for a unanimous Court. Paul Alan Levy argued the cause for petitioner. With him on the briefs were Alan B. Morrison and Arthur L. Fox II. Laurence Gold argued the cause for respondents. With him on the brief for respondents Brotherhood of Maintenance of Way Employes, Local 2906, et al. were William J. Birney, William G. Mahoney, and David Silberman. W. Cary Edwards, Attorney General of New Jersey, James J. Ciancia, Assistant Attorney General, and Jeffrey Burstein, Deputy Attorney General, filed a brief for respondent New Jersey Transit Corp. Lucy S. L. Amerman, John B. Rossi, Jr., and Bruce B. Wilson filed a brief for respondent Consolidated Rail Corporation. Justice Stevens delivered the opinion of the Court. Petitioner Thomas West brought a “hybrid” suit against his employer, his union, and his union representative under the Railway Labor Act. He alleged that the employer had breached the collective-bargaining agreement and that the union and its representative had breached their duty of fair representation. The parties agree, for the purpose of our review of the Court of Appeals’ judgment, that petitioner’s cause of action accrued on March 25,1984, the date petitioner learned of the alleged breach of the union’s duty of fair representation. His complaint was filed on September 24, 1984, less than six months after the statute of limitations began to run. The summonses and complaints were mailed to respondents on October 10, 1984. Respondents acknowledged service of the complaint on dates ranging from October 12, 1984, through November 1, 1984. Thus, both the date on which the complaints were mailed and the date when the first acknowledgment of service was made were more than six months after the statute began to run. Because service was not effected within the 6-month period prescribed in § 10(b) of the National Labor Relations Act, the District Court granted respondents’ motion for summary judgment. App. to Pet. for Cert. 15a. The Court of Appeals for the Third Circuit affirmed. 780 F. 2d 361 (1986). We granted certiorari, 478 U. S. 1004 (1986), because the Third Circuit’s decision is at odds with a decision of the Court of Appeals for the Sixth Circuit, Macon v. ITT Continental Baking Co., 779 F. 2d 1166 (1985), cert. pending, No. 85-1400. Congress did not enact a federal statute of limitations that is expressly applicable to federal duty of fair representation claims. In DelCostello v. Teamsters, 462 U. S. 151 (1983), we filled that gap in federal law by deciding that the 6-month period prescribed in § 10(b) should be applied to hybrid claims under § 301 of the Labor Management Relations Act, 1947, 29 U. S. C. § 185. Section 10(b) authorizes the National Labor Relations Board (NLRB) to issue a complaint when a charging party asserts that an employer or a union has engaged in an unfair labor practice. The statute does not impose any time limit on the issuance of such a complaint, but it does provide that “no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made . . . See n. 1, supra. Given our holding in DelCostello, the Court of Appeals read this statutory language to require in hybrid suits of this kind that both the filing and the service of the complaint be made within the 6-month period of limitations. We did not, however, intend that result. The only gap in federal law that we intended to fill in DelCostello was the appropriate limitations period. We did not intend to replace any part of the Federal Rules of Civil Procedure with any part of § 10(b) of the National Labor Relations Act. Rule 3 of the Federal Rules of Civil Procedure provides that a civil action is commenced by filing a complaint with the court, and Rule 4 governs the procedure for effecting service and the period within which service must be made. The clerk of the district court must “forthwith issue a summons and deliver the summons to the plaintiff or the plaintiff’s attorney, who shall be responsible for prompt service of the summons and a copy of the complaint.” Fed. Rule Civ. Proc. 4(a). Service must normally be made within 120 days. See Rule 4(j). Although we have not expressly so held before, we now hold that when the underlying cause of action is based on federal law and the absence of an express federal statute of limitations makes it necessary to borrow a limitations period from another statute, the action is not barred if it has been “commenced” in compliance with Rule 3 within the borrowed period. See 4 C. Wright & A. Miller, Federal Practice and Procedure § 1056 (1969). We decline respondents’ invitation to require that when a federal court borrows a statute of limitations to apply to a federal cause of action, the statute of limitation’s provisions for service must necessarily also be followed, even when the borrowed statute is to be applied in a context somewhat different from the one in which those procedural rules originated. Inevitably our resolution of cases or controversies requires us to close interstices in federal law from time to time, but when it is necessary for us to borrow a statute of limitations for a federal cause of action, we borrow no more than necessary. Here, because of the availability of Rule 3, there is no lacuna as to whether the action was brought within the borrowed limitations period. 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. Section 10(b) of the National Labor Relations Act, 49 Stat. 453, as amended, 29 U. S. C. § 160(b), provides: “Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board, or any agent or agency designated by the Board for such purposes, shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect, and containing a notice of hearing before the Board or a member thereof, or before a designated agent or agency, at a place therein fixed, not less than five days after the serving of said complaint: Provided, That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made, unless the person aggrieved thereby was prevented from filing such charge by reason of service in the armed forces, in which event the six-month period shall be computed from the day of his discharge. Any such complaint may be amended by the member, agent, or agency conducting the hearing or the Board in its discretion at any time prior to the issuance of an order based thereon. The person so complained of shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the place and time fixed in the complaint. In the discretion of the member, agent, or agency conducting the hearing or the Board, any other person may be allowed to intervene in the said proceeding and to present testimony. Any such proceeding shall, so far as practicable, be conducted in accordance with the rules of evidence applicable in the district courts of the United States under the rules of civil procedure for the district courts of the United States, adopted by the Supreme Court of the United States pursuant to section 2072 of title 28.” (Emphasis added.) Although DelCostello and the Sixth Circuit’s opinion in Macon v. ITT Continental Baking Co., 779 F. 2d 1166 (1985), both involved a hybrid action brought under § 301 of the Labor Management Relations Act, 1947, 29 U. S. C. § 185, rather than a hybrid action brought under the Railway Labor Act, the parties agree that § 10(b) provides the applicable statute of limitations in this case. We find no reason to distinguish the Labor Management Relations Act, 1947, from the Railway Labor Act for the limited purpose of determining whether service must be effected within the limitations period. Under § 10(b), the employee’s charge is timely if a copy is served personally or mailed within the limitations period. See 29 CFR § 102.113(a) (1986). The complaint in an unfair labor practice proceeding is filed by the General Counsel after he or she has investigated the employee’s charge. See 29 U. S. C. § 153(d). When the underlying cause of action is based on state law, and federal jurisdiction is based on diversity of citizenship, state law not only provides the appropriate period of limitations but also determines whether service must be effected within that period. Walker v. Armco Steel Corp., 446 U. S. 740, 752-753 (1980). Respect for the State’s substantive decision that actual service is a component of the policies underlying the statute of limitations requires that the service rule in a diversity suit “be considered part and parcel of the statute of limitations.” Id., at 752 (footnote omitted). This requirement, naturally, does not apply to federal-question cases. Indeed, Walker expressly declined to “address the role of Rule 3 as a tolling provision for a statute of limitations, whether set by federal law or borrowed from state law, if the cause of action is based on federal law.” Id., at 751, n. 11. Our holding that the statute of limitations was tolled when the complaint was filed eliminates the potential difficulty of determining the actual dates on which service of the complaint was made on the various defendants. In some cases, the determination of the length of the borrowed period may require examination of the tolling rules that are followed in the jurisdiction from which the statute of limitations is borrowed. See, e. g., Wilson v. Garcia, 471 U. S. 261, 269 (1986) (suggesting that length of limitations period and “closely related questions of tolling and application” are governed by state law in action brought under 42 U. S. C. § 1983); Chardon v. Fumero Soto, 462 U. S. 650, 661-662 (1983) (§ 1988 requires borrowing Puerto Rico’s statute of limitations and its rule that, after tolling ends, the statute of limitations begins to run anew in § 1983 action); Board of Regents, Univ. of N. Y. v. Tomanio, 446 U. S. 478, 484-485 (1980) (§ 1988 requires federal courts in § 1983 actions to refer to state statute of limitations and coordinate tolling rules unless state law is inconsistent with federal law). The governing principle is that we borrow only what is necessary to fill the gap left by Congress. Respondents also argue that §10(b)’s service requirement must be adopted in order to assure that defendants receive prompt notice of suit against them. The requirement of timely service in Rule 4(j) satisfies this need without recourse to the service requirement of § 10(b). While it is possible that a defendant Will not be served with the complaint until 10 months after the cause of action accrues, this result is not inconsistent with our adoption of a 6-month statute of limitations for breach of contract/ breach of duty of fair representation claims. See DelCostello v. Teamsters, 462 U. S. 151 (1983). The administrative scheme for unfair labor practices only requires that the charge be filed and served within six months of the date the cause of action accrued. The defendant does not receive the complaint, if any, until the General Counsel has investigated the charge and decided to proceed. Under both the administrative procedure for unfair labor practices and the judicial procedure for hybrid claims, the statute of limitations and the tolling provisions extinguish stale claims; they guarantee that the defendant is not subject to suit for conduct that occurred more than six months before the complaining party initiates appropriate legal process, by filing either a charge with the NLRB or a complaint in federal court. 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_typeiss

D

What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. Winthrop C. CONDICT and Elsie E. Condict, Plaintiffs-Appellants, v. Alden Revelle CONDICT, Karen K. Condict, Leland Thomas Grieve, Kermit Brown, John MacPherson, James W. Hearne, Keith Schafer, Sharen Schafer, Ted Jenkins, Walter Junior Leavelle, Garland Bartlett, Sr., and Garland Bartlett, Jr., Defendants-Appellees. No. 85-2001. United States Court of Appeals, Tenth Circuit. March 25, 1987. Herbert K. Doby of Elletson, Doby & Felde, Cheyenne, Wyo., for plaintiffs-appellants. Randall R. Steichen (Raymond J. Turner, with him on the brief) of Sherman & Howard, Denver, Colo., for Alden Revelle Condict, Karen K. Condict, Keith Schafer, Sharen Schafer, Ted Jenkins, Garland Bartlett, Sr., Garland Bartlett, Jr., and James W. Hearne, defendants-appellees. Blair J. Trautwein of Hathaway, Speight & Kunz, Cheyenne, Wyo. (Kermit C. Brown of Brown & Davidson, Rollins, Wyo., with him on the brief), for Leland Thomas Grieve and Kermit C. Brown, defendantsappellees. James A. Applegate of Hirst & Apple-gate, Cheyenne, Wyo., for John MacPherson, defendant-appellee. Robert A. Van Vooren (of counsel) of Lane & Waterman, Davenport, Iowa, for James W. Hearne, defendant-appellee. Before HOLLOWAY, Chief Judge, and BALDOCK and McWILLIAMS, Circuit Judges. This case was formerly published at 815 F.2d 579. Republication was required because of inadvertent omission of a portion of footnote 3. McWILLIAMS, Circuit Judge. This case represents an effort to fit a family dispute over a family ranching operation into the RICO mold. The district court held that it didn’t fit and entered summary judgment on June 5,1985, for the defendants on the RICO claim and also dismissed a pendant claim based on common law fraud, deceit, and misrepresentation. We see no fit either, and on that basis we affirm. The Condict ranch properties at one time occupied approximately 26,000 acres in Carbon County, Wyoming, and ranching operations were begun in about 1885 by Winthrop C. Condict. His son, Winthrop C. Condict II, ran the ranch until his death in 1955. The will of Winthrop C. Condict II distributed the ranch property as follows: one-half interest to his wife, Aurilla, and one-sixth interests to each of his three children, Alden Condict, Winthrop C. Condict III, and Maysel Condict Beales. Thereafter the Condict Ranch was operated under a general partnership agreement by Aurilla Condict, the surviving widow; Alden Condict, a surviving son; Winthrop C. Condict III, another surviving son; and the latter’s wife, Elsie Condict. During the 1970’s and the early 1980’s a bitter family quarrel developed over the ranching operations, with Winthrop C. Con-dict III and his wife, Elsie, on one side, and Winthrop’s mother, Aurilla, and his brother, Alden, on the other side. In a setting of constant disagreement and continual family dispute over the ranch and its operation, Alden Condict and his mother, now deceased, brought an action in 1982 in the state district court in Carbon County, Wyoming, seeking partition of the ranch realty, dissolution of the partnership, an accounting, appointment of a receiver and damages, including $500,000 in punitive damages. Winthrop C. Condict III and his wife, Elsie, defendants in the state partition proceeding, filed a counterclaim alleging that Winthrop’s brother, Alden, and his mother, Aurilla, were guilty of fraud, concealment of assets, misappropriation of assets, waste, and sought damages, both compensatory and punitive. On November 23, 1982, a Wyoming state judge dissolved the partnership and, subsequently, a receiver was appointed to operate the ranch. The ranch properties later were divided temporarily by the state court, pursuant to stipulation, on a “north-south” split, using Wyoming Highway 130 as the dividing line. Although the state court proceedings have been tortuous, we are now advised that they are drawing to a close. As indicated, the general partnership was dissolved, a receiver has been operating the ranch and his reports have been approved. The realty has been divided. And, beginning on October 8,1985, the state court had a 10-week trial on the accounting phase of the dispute. However, we have not been advised as to whether the state court has ruled on the accounting matter. In any event, on October 30, 1984, Winthrop C. Condict III and his wife, Elsie, filed the instant action in the United States District Court for the District of Nebraska. The first claim for relief was a RICO claim based on the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-68 (1982 and Supp. III 1985). The second claim for relief was based on common law fraud, deceit, and misrepresentation. There are twelve named defendants. They are: Alden Condict and his wife, Karen; Sharen Schafer, Karen’s twin sister, and Sharen’s husband, Keith Schafer, both Colorado ranchers; Leland Grieve, the receiver for Condict Ranches; Kermit Brown, court appointed counsel for the receiver; John MacPherson, a Wyoming attorney who represented Alden and Aurilla Condict in the state partition proceeding; James Hearne, a certified public accountant in Cheyenne, Wyoming, who from 1979 to 1983 prepared tax returns for the partnership; Ted Jenkins and Walter Junior Leavelle, referred to in the complaint as “thugs,” in the employ of Alden Condict; and Garland Bartlett, Sr. and Garland Bartlett, Jr., also employees of Alden Condict, but not described as “thugs,” although they, according to the complaint, “beat up and intimidated Win and Elsie Condict.” The several defendants filed motions in the RICO proceeding in the United States District Court for the District of Nebraska, including a motion for change of venue pursuant to 28 U.S.C. § 1404(a). This latter motion was granted, and the case was transferred to the United States District Court for the District of Wyoming. Thereafter, the Honorable Ewing T. Kerr, a senior judge for the United States District Court for the District of Wyoming, heard defendants’ motions to dismiss or for summary judgment. Judge Kerr granted these motions and dismissed both of plaintiffs’ claims. Plaintiffs appeal such dismissal. We affirm. As stated, the several defendants variously filed motions to dismiss under Fed.R. Civ.P. 12(b), and, in the alternative, motions for summary judgment under Rule 56. The district court apparently did consider matters outside the four corners of the complaint, and accordingly, in a technical sense, granted summary judgment for the defendants. We agree that under the circumstances there is no genuine issue of fact and that judgment for the defendants, whether it be on the basis of Rule 12(b) or 56, was appropriate. According to the complaint, the gist of plaintiffs’ claim is that the defendants conspired to “seize control of the Condict Ranches, a ten million dollar plus ranching operation which had previously been run as a partnership by Aurilla Condict [the mother], her sons Win and Alden, and Win’s wife, Elsie Condict.” The complaint was filed specifically under 18 U.S.C. § 1964(c). In support of their RICO claim, the plaintiffs alleged that the defendants were guilty of fraud, consisting “of the previously mentioned conduct, including but not limited to Alden and Karen Condict’s attempts to wrongfully deprive Win and Elsie Condict of their rightful share of partnership income and to wrongfully impose upon them an inappropriate share of the partnership burdens. Further, the remaining principal defendants — Hearne, Grieve, Brown, MacPherson — were pulled into the original conspiracy to cover-up the original wrongs, for their own profit, and to drive Win and Elsie from the ranching business.” It was further alleged that “[e]ach defendant herein has engaged in ‘racketeering activity’ as that phrase is defined by 18 U.S.C. Section 1961(1)(B) in that he or she has engaged in wrongful conduct, as set forth herein, in violation of Title 18 of United States Code, Section 1341 (relating to mail fraud), and Section 1343 (relating to wire fraud).” And, in the same vein, it was alleged in the complaint that “[s]aid racketeering activity under section 1961(1) constituted a pattern under section 1961(5) in that, since October 15, 1970, defendants and their conspiracy utilized both the mails and wires on more than two occasions each during the past ten years in furtherance of the scheme described herein.” Finally, in support of their RICO claim, the plaintiffs alleged that: By virtue of the operation of their fraudulent and conspiratorial schemes, and acting with knowledge of functionally identical and consciously parallel fraud by defendants corrupted the Condict Ranches which is an “enterprise”, as that term is defined by 18 U.S.C. Section 1964(4). The connection between the defendants’ pattern of racketeering activity and the enterprise is that the defendants’ scheme to defraud was designed to wrongfully acquire plaintiffs’ interest in the ranch, to make plaintiffs pay too much support for the ranch and to cover up previous fraud by Alden and Karen Condict. The second claim for relief was a pendant claim for common law fraud, deceit and misrepresentation. By way of relief, the plaintiffs sought, both preliminarily and permanently, to enjoin the defendants from their unlawful acts, treble damages, restitution, together with costs and attorneys’ fees. The district court in dismissing the action and entering judgment for the defendants held that the complaint failed to state a claim upon which relief could be granted. Specifically, the district court held that the complaint failed to allege the following: (1) that activities of the defendants were in furtherance of a tie to organized crime or with criminal activities of an organized nature; (2) that the defendants, or any of them, have been convicted of the predicate acts of mail or wire fraud upon which the RICO claim is founded; (3) that the plaintiffs suffered a “distinct RICO injury”; and (4) that the predicate acts of mail and wire fraud were not pleaded with sufficient particularity. Further, the district court concluded that the Condict Ranch partnership is not an “enterprise” within the meaning of 18 U.S.C. § 1962. Having dismissed the RICO claim, the district court also dismissed the second claim for common law fraud, deceit and misrepresentation. About one month after the district court entered judgment in the instant case the Supreme Court in Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) held that in a RICO proceeding based on 18 U.S.C. § 1962(c) there is no requirement that a private action can proceed only against a defendant who has already been convicted of a predicate act or of a RICO violation and, further, that there is no requirement that the plaintiff in such private action suffer a “racketeering injury” as opposed to an injury resulting from the predicate acts themselves. Recognizing Sedima, the defendants on appeal concede that certain, though not all, of the reasons given by the district court for its action are no longer viable. Specifically, the defendants concede that an actionable RICO claim need not allege a distinct RICO injury, nor need it allege that the defendants have already been indicted for, or convicted of, the predicate acts of mail or wire fraud, or that the defendants had ties to organized crime. However, the defendants do argue that under Sedima the plaintiffs must still allege that the defendants are conducting, or are participating in conducting, the affairs of an “enterprise,” i.e., Condict Ranches, “through a pattern of racketeering activity.” In this particular, the defendants argue that the complaint is fatally deficient, while plaintiffs argue that the complaint does measure up to Sedima and 18 U.S.C. § 1962(c). The RICO claim in the instant case, as in Sedima, is based on alleged violations of 18 U.S.C. § 1962(c) and possibly 18 U.S.C. § 1962(d). ■ However, any claim under § 1962(d) based on a conspiracy to violate the provisions of 18 U.S.C. § 1962(a), (b), or (c) must necessarily fall if the substantive claims are themselves deficient. Accordingly, our interest necessarily focuses on 18 U.S.C. § 1962(c). That section of the statute provides as follows: (c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. In Sedima, the Supreme Court held that a violation of 1962(c) requires (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activities, and that a plaintiff to state a claim under 1962(c) must allege each of these four elements. Sedima, 105 S.Ct. at 3285. Our narrowing issue then is whether, under the record before us, the plaintiffs have charged the defendants, or any of them, with the conduct, or participation in the conduct, of an enterprise, i.e., Condict Ranches, through a “pattern of racketeering activities.” In this connection, our focus is specifically directed to the phrase “pattern of racketeering activities,” and, even more particularly, to the one word “pattern.” We believe the present complaint is deficient in these particulars, and that any evidentiary matter before the district court strengthens that conclusion. The gravamen of the present complaint is that the defendants engaged in common law fraud, and deceit and in the course of their conduct used the mails and wires more than twice. Such in our view does not make out a RICO claim under § 1962(c). In Sedima, at p. 3285, note 14, the Supreme Court commented as follows: As many commentators have pointed out, the definition of a “pattern of racketeering activity” differs from the other provisions in § 1961 in that it states that a pattern “requires at least two acts of racketeering activity,” § 1961(5) (emphasis added), not that it “means” two such acts. The implication is that while two acts are necessary, they may not be sufficient. Indeed, in common parlance two of anything do not generally form a “pattern.” The legislative history supports the view that two isolated acts of racketeering activity do not constitute a pattern. As the Senate Report explained: “The target of [RICO] is thus not sporadic activity. The infiltration of legitimate business normally requires more than one ‘racketeering activity' and the threat of continuing activity to be effective. It is this factor of continuity plus relationship which combines to produce a pattern.” S.Rep. No. 91-617, p. 158 (1969) (emphasis added). Similarly, the sponsor of the Senate bill, after quoting this portion of the Report, pointed out to his colleagues that “[t]he term ‘pattern’ itself requires the showing of a relationship ____ So, therefore, proof of two acts of racketeering activity, without more, does not establish a pattern____” 116 Cong.Rec. 18940 (1970) (statement of Sen. McClellan). See also id., at 35193 (statement of Rep. Poff) (RICO “not aimed at the isolated offender”); House Hearings, at 665. Significantly, in defining “pattern” in a later provision of the same bill, Congress was more enlightening: “criminal conduct forms a pattern if it embraces criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.” 18 U.S.C. § 3575(e). This language may be useful in interpreting other sections of the Act. Cf. Iannelli v. United States, 420 U.S. 770, 789, 95 S.Ct. 1284, 1295, 43 L.Ed.2d 616 (1975). A recent opinion of this court, Torwest DBC, Inc. v. Dick, et al, 810 F.2d 925 (10th Cir.1987), sheds considerable light on our present problem. In Torwest, two corporations, i.e., Vace and Great-West, formed a new corporation, Torwest, which would engage in the business of acquiring and developing real property. Great-West was to provide the financing for Torwest, and Vace was to find new properties for acquisition by Torwest. Thereafter the individual incorporators of Vace in a secret deal acquired realty in the name of a nominee corporation and then proceeded to “sell” the land to Torwest at an inflated price. When Torwest discovered the scheme, it brought suit against the individual incorporators of Vace, and their nominee corporation, Canusa Investments. Torwest asserted a RICO claim under the provisions of 18 U.S.C. § 1962(c), as well as pendant claims based on state law. The United States District Court for the District of Colorado dismissed Torwest's complaint under Rule 56, holding that allegations that directors of Vace secretly purchased realty and resold it at a substantial profit to Torwest did not allege the pattern of racketeering required to state a claim under 1962(c), there being only one scheme, one result, one set of participants, one victim, one method of commission, and thus, no continuity and no pattern of racketeering activity. Torwest DBC, Inc. v. Dick, et al, 628 F.Supp. 163, 165-66 (D.Colo.1986), aff'd, 810 F.2d 925 (10th Cir.1987). On appeal, we affirmed the judgment entered by the district court in Torwest. In so doing, we commented as follows: In this case, the court and the parties assumed for purposes of the court’s ruling that defendants engaged in numerous racketeering acts. It is clear that when, as here, the acts are part of a common fraudulent scheme, they satisfy the relationship requirement of Sedima. See, e.g., Superior Oil Co. v. Fulmer, 785 F.2d 252 (8th Cir.1986). However, to establish a RICO pattern, a plaintiff must also demonstrate continuity, that is, “the threat of continuing activity.” Sedima, 105 S.Ct. at 3285 n. 14. This element is derived from RICO’s legislative history, which indicates that RICO does not apply to “sporadic activity” or to the “isolated offender”. Id. The continuity requirement has been the source of considerable difficulty. Courts generally agree that to make an adequate showing of continuity under Sedima, a plaintiff must demonstrate some facts from which at least a threat of ongoing illegal conduct may be inferred. A scheme to achieve a single discrete objective does not in and of itself create a threat of ongoing activity, even when that goal is pursued by multiple illegal acts, because the scheme ends when the purpose is accomplished. Courts that have considered a RICO claim grounded on this type of scheme have therefore required some additional evidence showing that the scheme was not an isolated occurrence. See, e.g., Lipin Enters. Inc. v. Lee, 803 F.2d 322, 324 (7th Cir.1986) (acts to defraud one victim one time insufficient in absence of showing of other victims or other frauds). A more difficult question is presented when the RICO claim is based on one scheme involving one victim, but the plan contemplates open-ended fraudulent activity and does not have a single goal that, when achieved, will bring the activity to an end. Some courts have found that such an ongoing scheme is itself sufficient to satisfy the continuity element of a RICO pattern. See, e.g., Morgan v. Bank of Waukegan, 804 F.2d 970, 976 (7th Cir.1986); see also Illinois Dept. of Revenue v. Phillips, 771 F.2d 312 (7th Cir.1985). Other courts may require additional proof showing that the defendants have engaged in similar activity in the past, or have been involved in other criminal activity, or pose a threat of similar activity in the future. See, e.g., Superior Oil Co., 785 F.2d at 257. Torwest DBC, Inc., at 928-29. Based on our understanding of Sedima, and our pronouncement in Torwest, we believe that the present complaint does not, and cannot under the admitted facts, meet the “continuity requirement” commented on in Torwest or the “conduct of an enterprise through a pattern of racketeering activities” requirement of § 1962(c). Rather, this is but an unsuccessful effort to dress a garden-variety fraud and deceit case in RICO clothing. Certain of the defendants argue in this court that they are entitled to attorney’s fees under Fed.R.Civ.P. 11. A matter of this sort should be considered and ruled on initially by the district court. Judgment affirmed. . More specifically, it was alleged that Alden Condict utilized the "wires” more than twice to arrange the sale of hay in the summer of 1983 and that defendants Grieve, Brown, and MacPherson "repeatedly used the mails to submit court documents and bills." . Plaintiffs mistakenly cited 18 U.S.C. § 1964(4) as defining "enterprise”; the term is defined in 18 U.S.C. § 1961(4). "A notable exception to the continuity requirement is the case of R.A.G.S. Couture, Inc. v. Hyatt, 774 F.2d 1350 (5th Cir.1985), in which the court did not address the issue of continuity and held that a pattern could be established solely on the-basis of related illegal acts. R.A. G.S. has been criticized for its failure to heed the Supreme Court’s discussion in Sedima, see, e.g., Papagiannis v. Pontikis, 108 F.R.D. 177, 179 n. 3 (N.D.Ill.1985), and we do not find it persuasive.” Other courts have interpreted the Supreme Court’s Sedima discussion on pattern in a similar fashion. As the Eighth Circuit stated: [P]roof of a “pattern of racketeering activity” "requires more than one ‘racketeering activity' and the threat of continuing activity to be effective. It is this factor of continuity plus relationship which combines to produce a pattern." Superior Oil Co. v. Fulmer, 785 F.2d 252, 257 (8th Cir.1986), quoting Sedima, (isolated fraudulent effort, implemented by several fraudulent acts, insufficient to prove "continuity” required to form pattern). Reaffirming that position in an even more recent case, the Eighth Circuit in Holmberg v. Morrisette, 800 F.2d 205 (8th Cir.1986), reversed a lower court finding of liability on a RICO claim and held that "one scheme” did not constitute "the continuity necessary to form a 'pattern' of racketeering activity.” Id. at 210. The Ninth Circuit held that an "isolated event” did not establish the "threat of continuing activity” and therefore did not meet the requirement of a showing of "continuity plus relationship which combines to produce a pattern.” Schreiber Distributing v. Serv-Well Furniture Co., 806 F.2d 1393, 1399 (9th Cir.1986), citing Sedima, In Lipin Enterprises Inc. v. Lee, 803 F.2d 322 (7th Cir.1986), the Seventh Circuit, affirming a lower court’s dismissal for failure to allege a pattern, noted that much more than two acts must be shown in order to demonstrate a pattern. “The separate racketeering acts must reflect both 'continuity' and 'relatedness' in order to constitute a pattern.” Id. at 323, citing Sedima. For similar reasoning by lower courts, see also, Northern Trust Bank/O'Hare, N.A. v, Inryco, Inc., 615 F.Supp. 828 (D.C.Ill.1985) (noting that although footnote 14 of the Sedima decision is dicta, "its message was both plain and deliberate. Lower courts concerned about RICO's expansive potential would be best advised to focus on the hitherto largely ignored 'pattern' concept.” Id. at 832; Forstmann v. Culp, 648 F.Supp. 1379 (M.D.N.C.1986) ("the general consensus among the courts has been that Sedima's continuity element requires that the predicate racketeering acts alleged in the Complaint must have occurred in different criminal episodes," id. at 1388, quoting Frankart Distributors, Inc. v. RMR Advertising, 632 F.Supp. 1198, 1200 (S.D.N.Y.1986)); H.J. Inc. v. Northwestern Bell Telephone Co,, 648 F.Supp. 419 (D.Minn.1986) (plaintiffs’ attempt to “splinter a series of related acts” into a RICO cause of action "falls short of establishing a 'pattern.' ” Id. at 425). 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: