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lawma-instructions_gemma2_8k

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songer_genapel1

C

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. UNITED STATES of America, Plaintiff-Appellant, v. Jerry V. MITCHELL and Roger Woods, Defendants-Appellees. No. 90-7423. United States Court of Appeals, Eleventh Circuit. Feb. 26, 1992. Frank W. Donaldson, U.S. Atty., Anthony A. Joseph, James A. Sullivan, Asst. U.S. Attys., Birmingham, Ala., for plaintiff-appellant U.S. John C. Robbins, Doug Jones, Birmingham, Ala., for defendant-appellee Jerry V. Mitchell. Jo Allison Taylor, Birmingham, Ala., for defendant-appellee Roger Woods. Before TJOFLAT, Chief Judge, CLARK , Senior Circuit Judge, and KAUFMAN , Senior District Judge. See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit. Honorable Frank A. Kaufman, Senior U.S. District Judge for the District of Maryland, sitting by designation. TJOFLAT, Chief Judge: The Government appeals from an order in the Northern District of Alabama granting a motion in limine to preclude certain expert testimony on the basis of Fed. R.Evid. 403 and 702. In the absence of a record of the pre-trial hearing on this motion, we find ourselves unable to affirm the challenged order. We therefore vacate the district court’s order and remand the case for further proceedings. I. Defendants Jerry V. Mitchell, Chief of Police for Albertville, Alabama, and Roger Woods are charged with three counts of conspiracy to commit extortion, and defendant Mitchell individually with twelve counts of extortion, all in violation of the Hobbs Act, 18 U.S.C. § 1951 (1988). Specifically, defendants stand accused of “fixing” tickets for driving under the influence of alcohol (DUI) in exchange for money. In order to obtain a conviction under the Hobbs Act, the Government must establish a connection between the extortionate conduct and interstate commerce. 18 U.S.C. § 1951(a). On the morning of the scheduled trial date, June 11, 1990, both defendants, prior to the empaneling of the jury, filed motions in limine to preclude the testimony of Dr. Robert A. Voas. Upon hearing arguments from counsel and receiving the Government’s proffer of Dr. Voas’ testimony in camera, the district court orally granted the motions. No record of the arguments, the proffer, or the court’s oral ruling exists because the in camera hearing on the motions occurred in the absence of a court reporter. In a written order issued later that day, the court precluded Dr. Voas’ testimony “under [Fed.K.Evid.] 702 and 403.” Left without the assistance of a record of the Government’s proffer, we turn to the court’s written order for a brief summary of the proffer. According to the court’s order, Dr. Voas, “[i]f permitted to testify ... would establish his qualifications as an expert in alcoholism and highway safety and then testify to the same matters that were presented by him as a witness in United States v. Wright, 797 F.2d 245, 249 (5th Cir.1986) [, cert. denied, 481 U.S. 1013, 107 S.Ct. 1887, 95 L.Ed.2d 495 (1987) ].” In a footnote to the quoted sentence, the order further explains that “[t]he government has indicated that it would not attempt to elicit from Voas in this case his opinion that failure to prosecute DWI charges has a demoralizing effect upon police officers.” On June 11, 1990, the Government filed its notice of appeal from the district judge’s order granting defendants’ motions to preclude Dr. Voas’ testimony. On June 15, 1990, the Government filed its certification that the appeal was not taken for purposes of delay and that the precluded evidence constitutes a substantial proof of a fact material in the proceedings. Accordingly, we have jurisdiction pursuant to 18 U.S.C. § 3731 (1988). II. We review the preclusion of evidence under an abuse of discretion standard. United States v. Norton, 867 F.2d 1354, 1361 (11th Cir.) (quoting United States v. Mitchell, 666 F.2d 1385, 1390 (11th Cir.), cert. denied, 457 U.S. 1124, 102 S.Ct. 2943, 73 L.Ed.2d 1340 (1982)), cert. denied, 491 U.S. 907, 109 S.Ct. 3192, 105 L.Ed.2d 701 (1989). In order for us to hold, however, that the district court did not abuse its discretion in precluding Dr. Voas’ testimony prior to trial and in the absence of a detailed and reported proffer by the Government, we would have to conclude that the precluded testimony could under no circumstances have been admissible. Based on the relevant parts of the record in this case, which include defendants’ motions in limine and the district court’s bare-bones order, we cannot reach this categorical conclusion. We first consider the reasons for precluding Dr. Voas’ testimony enunciated in the district court’s order. We then determine whether Dr. Yoas’ testimony, under all possible trial scenarios, would have been inadmissible as irrelevant. A. To affirm the district court’s pretrial order precluding Dr. Yoas’ testimony pursuant to Fed.R.Evid. 702, we would have to find either that Dr. Voas’ “scientific, technical, or other specialized knowledge” under no circumstances could have “assisted] the trier of fact [in this case, the jury] to understand the evidence or to determine a fact in issue,” or that the district court properly exercised its discretion in finding Dr. Voas unqualified as an expert, or both. Addressing the latter alternative first, we point to Dr. Voas’ conspicuous absence at the in camera hearing that supposedly settled his lack of qualifications. The district court therefore would have had to find Dr. Voas unqualified without ever having asked Dr. Voas a single question and without ever having observed or heard Dr. Voas respond to a question posed to him by counsel for either side. Should there have been a dispute about Dr. Voas’ qualifications—and, in the absence of a record or a more detailed order, we can only speculate—the district court could not have resolved it based solely upon arguments presented by counsel without abusing its discretion. Turning to the other possible basis for precluding Dr. Voas’ testimony pursuant to Rule 702, we cannot rule out that this testimony might have assisted the jury. Looking into our crystal ball for clues about what the trial might look like and about what might have transpired at the time the Government puts forth Dr. Voas’ testimony, we can easily make out a scenario in which Dr. Voas’ testimony benefits the jury. Although defendant Mitchell, based on his experience as Police Chief, might well be familiar with the effects that failure to prosecute DUI offenders might or might not have on interstate commerce, defendant Mitchell might well decide not to testify, or, should he take the stand, might decide not to give his opinion on this subject. In either case, Dr. Voas’ testimony on this issue would not be cumulative, and therefore would assist the jury in its deliberations. Without the benefit of a trial transcript or a record of a detailed outline of what the trial transcript would include, which conceivably could have been established at the pre-trial hearing on defendants’ motions in limine, we cannot eliminate the possibility that Dr. Voas’ testimony might assist the jury. Accordingly, we cannot conclude that the trial court did not abuse its discretion in precluding Dr. Voas’ testimony. B. Similarly, we could affirm the pretrial preclusion of Dr. Voas’ testimony on the basis of Fed.R.Evid. 403 only if we found that there exists no possible trial scenario in which the probative value of this testimony would not be “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed.R.Evid. 403. In the absence of a trial transcript or a recorded and very detailed road map of the case, we cannot with any confidence arrive at this conclusion. On the sparse record before us, we simply cannot determine what probative value, if any, Dr. Voas’ testimony might have at the time it is presented by the Government. Rule 403 requires a delicate balancing of probative value against certain effects that testimony might have on the jury or on the trial proceedings at the moment it is presented. We can fill neither dish of this balance. On the one hand, the probative value, if any, of Dr. Voas’ testimony depends heavily upon what has transpired at trial before and what will transpire following its presentation, including, but not limited to, defendant Mitchell’s testimony, should he take the stand. On the other hand, the effect on the jury of Dr. Voas’ testimony will depend crucially on the specific posture of the trial at the time of its presentation. Cf. United States v. Beechum, 582 F.2d 898, 915 (5th Cir.1978) (en banc) (“a significant consideration in determining the probative value of extrinsic offense evidence is the posture of the case”), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). Whether or not Dr. Voas’ testimony will cause undue delay or waste of time will likewise entirely depend upon when it is introduced. A scenario in which Dr. Voas’ testimony might not constitute cumulative evidence already has been outlined above. Finally, even if we could, and clearly we cannot, foresee where Dr. Voas’ testimony would fall on the balance to be struck under Fed.R.Evid. 403 at the time of its introduction at trial, certainly we cannot predict with any confidence whether or not the district court, by giving a limiting instruction instead of excluding the evidence altogether, could circumvent any or all of the negative effects contemplated in Fed. R.Evid. 403 that might be associated with this testimony. C. Not only are we unable to conclude that Dr. Voas’ testimony, under all possible trial scenarios, would have been inadmissible on the grounds cited in the district court’s preclusion order, but also we cannot find that Dr. Voas’ testimony necessarily would have been inadmissible as irrelevant. On the contrary, Dr. Voas’ testimony might well have revealed a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. Dr. Voas’ testimony regarding the effects of failing to prosecute DUI offenders does not appear clearly irrelevant to the interstate commerce element of the Hobbs Act crimes charged in the indictment. See United States v. Wright, 797 F.2d 245, 249 (5th Cir.1986) (upholding a finding, based on testimony by Dr. Voas, that failure to prosecute DUI offenders results in interference with interstate commerce sufficient for Hobbs Act purposes), cert. denied, 481 U.S. 1013, 107 S.Ct. 1887, 95 L.Ed.2d 495 (1987). Even if we were to find that Dr. Voas’ testimony could never be relevant to any fact placed at issue in the pleadings prior to trial, we cannot exclude the possibility that this testimony might become relevant as the trial progresses and additional facts become of consequence to the trial’s outcome. For example, Dr. Voas’ testimony about the effects of failing to prosecute DUI offenders might become relevant as the defense, through testimony, seeks to establish either that one or both of the defendants knew nothing of any effects on interstate commerce caused by a failure to prosecute DUI offenders, or that no such effects exist. At that time, Dr. Voas’ testimony would become relevant as to the credibility of the defense witness rendering this testimony, insofar as a witness’ credibility becomes a consequential fact as soon as he or she takes the stand. III. For the reasons stated above, we VACATE the district court’s order precluding the testimony of Dr. Voas and REMAND the case with the instruction to conduct an adequate hearing on defendants’ preclusion motions in the presence of a court reporter. VACATED and REMANDED. . The Fifth Circuit in Wright, 797 F.2d at 249, found not clearly erroneous the district court’s factual findings underlying its conclusion that the government had proved the interstate commerce element of a Hobbs Act crime, which conclusion relied on the following testimony given by Dr. Voas, as summarized by the Fifth Circuit: Mr. Voas testified that the consumption of alcohol is "a major, perhaps the major factor in causing highway accidents[ ]’’ [and] that the more serious an automobile accident is, the more likely it is that a drinking driver is involved. Voas also testified that a person who has been arrested for DWI has a much greater chance of later being involved in a fatal accident than has a person with no DWI arrest or conviction record. It was Voas' opinion that the higher risk can be reduced either by treating the drinking driver or by suspending or revoking his driving privileges. Voas also testified that when the public became aware, either through the press or by word of mouth, that people arrested for DWI are not being prosecuted, then the deterrent effect of criminal sanctions is diminished. Failure to prosecute cases where the evidence is sufficient to sustain a conviction has a demoralizing effect on police officers to the point that they tend to make fewer arrests. Finally, Voas testified that alcoholism is a tremendous problem in the United States, costing the nation one hundred billion dollars per year in medical expenses and lost working time, and that people with drinking problems who finally do seek help often do so because they have been arrested and prosecuted on a charge of drunk driving. Id. . In its entirety, Fed.R.Evid. 702 provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. . The district court’s order does not indicate on which of these potential grounds it relies. . The order provided in relevant part: In Wright, a majority of the appellate panel upheld a Hobbs Act conviction based on Voas’ opinions that had been received in a non-jury trial apparently without objection. Here, in this jury trial, the defendants have objected to that testimony and the court concludes under [Fed.R.Evid.] 702 and 403 that such testimony should not be permitted. . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. . We further urge the district court to consider whether it would be prudent to rule on defendants’ preclusion motions prior to the time at which the Government intends to put Dr. Voas on the stand. As our opinion indicates, a ruling prior to trial would appear questionable in the absence of detailed presentations by both parties predicting with sufficient certainty the exact state of the record at the time the Government seeks to present Dr. Voas' testimony. 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_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. Richard A. DOUGHERTY, Appellant. No. 84-5152. United States Court of Appeals, Eighth Circuit. Submitted April 11, 1985. Decided May 31, 1985. Peter Thompson, Minneapolis, Minn., for appellant. Janice M. Symchych, Asst. U.S. Atty., Minneapolis, Minn., for appellee. Before LAY, Chief Judge, McMILLIAN, Circuit Judge, and WOODS, District Judge. The Honorable Henry Woods, United States District Judge for the Eastern District of Arkansas, sitting by designation. HENRY WOODS, District Judge. After a jury trial, the appellant, Richard A. Dougherty, was found guilty of twenty-five counts of misapplying $14,500,000 in funds of the First National Bank of St. Paul, Minnesota, and falsifying the bank’s books and records. The nine counts of misapplication dealt with the improper issuance of bankers’ acceptances in violation of 18 U.S.C. § 656. The remaining sixteen counts charged a violation of 18 U.S.C. § 1005 in that appellant willfully failed to record these transactions. Appellant was given concurrent sentences of a year and a day on three counts, five years of probation, and a $15,000 fine on the remaining counts by the trial judge. Appellant challenges the sufficiency of the evidence and the correctness of the jury instructions. We affirm the convictions. Appellant was a vice president in charge of the International Banking Division of the third largest bank in the Ninth Federal Reserve District. The offenses charged were mainly related to the financial difficulties of a seafood processing venture by Transalaska Fisheries Corporation (Transalaska). Based in Seattle, the company proposed to convert a ship into a floating seafood processor and to harvest mainly king crab. In April, 1979, Dougherty secured approval of the bank’s loan committee for a $3,500,000 advance for which Transalaska gave a term note. Conversion of the ship ran into delays and cost overruns, with the result that the ship was not ready for the 1979 king crab harvest. The 1980 season fell far below expectations. During conversion in September, 1979, Dougherty disbursed $350,000 beyond the approved limit, documenting the excess amount in a memo to the bank’s president and in comments placed in the Transalaska credit file (T. 162-63). Transalaska’s financial difficulties worsened, and its officers began calling on Dougherty for more financing. He complied by using the device of unapproved bankers’ acceptances. The First National Bank of St. Paul required approval of its senior loan committee for loans and credit extensions in excess of $100,000 (T. 143-45). Dougherty sat on the senior loan committee and participated in its weekly discussion and decisions on lending (T. 123-27, 1078-80). He presented none of the bankers’ acceptances for Transalaska to the loan committee for approval (T. 15, 1361-62, 1378-79). Nor were they posted in the bank’s general ledger. Proceeds of the acceptances were deposited into the company’s checking account. On maturity date Dougherty paid off the maturing acceptance with a new one, in an amount equal to or greater than the maturing acceptance, since the customer was unable to meet the obligation on its due date. An overdraft would have resulted if he had allowed the account to be charged on the due dates. When a customer’s account suffers an overdraft of $1,000 for five days, a computerized printout automatically goes to the loan review personnel (T. 169, 1090). This pattern of roll-overs prevented what would have been a series of overdraft reports from coming to the attention of the loan review committee. The same system of bankers’ acceptances and concealment was used by Dougherty to finance the operation of David No-land, who was engaged in the restaurant business in the Minneapolis-St. Paul area. Dougherty extended Noland more than $400,000 in bankers acceptances during 1979 and 1980, none of which were paid. These advances were made in spite of the fact that Noland was a very poor credit risk. If anything, bankers’ acceptances were more inappropriate in Noland’s case than in the advances to Transalaska Fisheries. Although the Transalaska and No-land transactions were not recorded in the bank ledger, Dougherty maintained a private desk drawer accounting of the transactions (Berg 31). When it appeared that an audit in progress would uncover the concealed multi-million dollar losses of the bank, Dougherty went to the bank president and confessed that he had issued the unauthorized acceptances. Four days later he tendered his resignation. There is no evidence that appellant personally profited from any of these transactions or that he had any type of special relationship with the officers of Transalaska Fisheries Corporation or David Noland. I. SUFFICIENCY OF THE EVIDENCE In determining the sufficiency of the evidence, this court must accept all reasonable inferences in support of the jury verdict and resolve all conflicts in its favor. Klein v. United States, 728 F.2d 1074 (8th Cir.1984). The fact that appellant did not personally profit from his criminal conduct is not a legal excuse for his action. United States v. Mouton, 617 F.2d 1379, 1385 (9th Cir.1980), cert. denied, 449 U.S. 860, 101 S.Ct. 163, 66 L.Ed.2d 77 (1980). There was a great deal of conduct on appellant’s part on which the jury could have based a guilty verdict. The jury was entitled to conclude that appellant led the bank’s internal auditor, Patricia Slater, to believe that lending limits were monitored with respect to bankers acceptances by virtue of monthly reports to the loan committee. (See Exhibit A, Question 3(c) to the testimony of Patricia Slater.) This was a false statement, as were his statements to the same auditor that the acceptances were accounted for in ledger entries (Slater 25-26). The jury could quite understandably have disbelieved Dougherty’s statement that he did not record the transactions because he was too immersed in the daily business of Transalaska and Noland (T. 1247-49), particularly since he found time to record the transactions in a private log kept in his desk (T. 1413-15). The jury was entitled to infer that the motive for not recording 72 unapproved bankers’ acceptances was to practice deception on officials of the bank. The jury was also entitled to believe that appellant used bankers’ acceptances in an unconventional and improper fashion and breached virtually all the statutory and regulatory requirements for such instruments. In so doing, appellant was actually extending conventional loans to Transalaska and Noland totally beyond his authority and in complete circumvention of the bank’s loan committee. By this secretive device he extended $14,500,000 in unauthorized credit to these two customers. This amount of absolute liability on the part of the bank caused its financial condition to be misrepresented during the period involved to its officers, shareholders, the public, and the federal bank examiners. The evidence in this case is sufficient to show an intentional misapplication and falsification of bank records. Such evidence has been found sufficient in several cases before this court involving similar improprieties on the part of bank officials. II. THE INSTRUCTIONS. A. Specific Intent. Appellant argues vigorously that the court should have instructed that specific intent was a necessary element in all the charges and that the court erred in refusing his proferred instruction No. 20 (A. 21), which is essentially Devitt & Black-mar, Federal Jury Practice and Instructions, No. 14.03. This instruction would have required the government to “prove that the defendant knowingly did an act which the law forbids or knowingly failed to do an act which the law requires, purposely intending to violate the law.” (A. 21.) In another requested instruction (No. 27), appellant wanted the jury to be told that misapplication required “The specific intent to do something the law forbids; that is to say, with bad purpose either to disobey or to disregard the law.” (A. 28.) With regard to the intent element of 18 U.S.C. § 656, Judge Devitt charged that it was only necessary that the government prove “That the defendant acted willfully and with intent to injure or defraud the bank or to deceive its officers, directors, and examiners” (T. 1519). With regard to the intent required for a conviction under 18 U.S.C. § 1005, he charged that the government must prove “that the defendant made or omitted such entry willfully and with knowledge of the resulting falsifying and with the intent to deceive the officers or examiners.” He then gave the standard definition of “willfully” and “knowingly.” The above instructions of the trial judge correctly declared the law and are in accord with the view of “specific intent” taken by all the circuit committees who have promulgated Model Jury Instructions. For instance, the Seventh Circuit committee recommends “avoiding instructions that distinguish between ‘specific intent’ and ‘general intent.’ In place thereof the Committee recommends that an instruction be given which defines the precise mental state required by the particular offense charged.” Federal Criminal Jury Instructions of the Seventh Circuit, p. 79 (West Publishing Co. 1980). This is precisely the course followed by Judge Devitt. The Seventh Circuit Committee points out that appellant’s suggested distinction between “general intent” and “specific intent” confuses more than enlightens juries, citing United States v. Bailey, 444 U.S. 394, 400-409, 100 S.Ct. 624, 629-36, 62 L.Ed.2d 575 (1980). The requirement that a defendant must know that his act violates the law is ordinarily not an essential element of the offense. “Defendants [are] not entitled to an instruction which [includes] the ... phrase [that the defendant knowingly did an act which the law forbids, purposely intending to violate the law]. ‘A requirement of proof not only of this knowledge of likely effects, but also of a conscious desire to bring them to fruition or to violate the law would seem particularly, in such a context, both unnecessarily cumulative and unduly burdensome.’ ” United States v. Brighton Building & Maintenance Co., 598 F.2d 1101, 1106 (7th Cir.1979) cert. denied, 444 U.S. 840, 100 S.Ct. 79, 62 L.Ed.2d 52 (1979) (criminal antitrust prosecution). The same point was made in United States v. Arambasich, 597 F.2d 609 (7th Cir.1979) where the court held that the trial court properly refused a stock specific intent instruction. Accord, W. LaFave & A. Scott, Criminal Law § 28 at 202 (1972); Model Penal Code § 2.02, Comment (Tent.Draft No. 4 1955). “The stock ‘specific’ and ‘general intent’ instructions should be avoided in favor of instructions that precisely define the requisite mental state of the particular crime charged: e.g. ... 18 U.S.C. § 1005 (intent to injure or defraud a bank).” Federal Criminal Jury Instructions of the Seventh Circuit, pp. 81-82 (West Pub. Co. 1980). The same approach is taken by the Committee on Model Jury Instructions of the Ninth Circuit. “For example, to speak of a defendant’s ‘purpose’ or to use the phrase ‘purposely intending to violate the law’ requires a jury to find that a defendant knew his act violated the law. Ordinarily, that is not an essential element of the offense, and defendant is not entitled to such an instruction. Cooley v. United States, 501 F.2d 1249, 1253 (9th Cir.1974); cert. denied, 419 U.S. 1123, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975); United States v. Fierros, 692 F.2d 1291, 1293-95 (9th Cir.1982). Thus the standard instructions should be avoided.” Manual of Model Jury Instructions For The Ninth Circuit (West Pub. Co. 1984). We believe that the view expressed by the above authorities and formulated by Judge Devitt’s instructions is the better view. It also has the approval of the Supreme Court. United States v. Bailey, supra. Unless used in the statute itself or unless the crime falls within that rare type of offense where defendant’s knowledge that he is violating the law is an element of the offense, there is no occasion for an instruction defining specific intent. B. Other Objections to the Instructions. Appellant claims that the trial judge summarized the evidence in a manner that was unfair to him, that he virtually directed a verdict on the misapplication count, and that he failed to submit appellant’s theory of the case to the jury. These contentions are without merit. Judge Devitt’s summary of the respective positions of the parties was neutral (T. 1527-30). He mentioned in his comments the defenses upon which appellant could justifiably rely. We find no indication of bias or prejudice in the charge to the jury. As to the contention that Judge Devitt directed a verdict on the misapplication count, it is sufficient to say that no more was said in his remarks than appellant and his attorney admitted in the course of the trial. Counsel in his opening statement told the jury that except for the issue of intent, there would be substantial agreement with the government’s case (T. 63). Then in summation, appellant’s counsel stated that the real essence of the ease was whether the government had proved an intent to deceive (T. 1480-81). Appellant admitted that approval of the loan committee had not been obtained and that proper • entries had not been made, in addition to other significant facets of the government’s case (T. 1331, T. 1334). These admissions were acknowledged by appellant’s counsel in summation (T. 1481). We agree that the testimony of appellant and statements of his counsel were tantamount to admission of the second element of the offense of misapplication: “That the defendant misapplied the funds or credits of the bank.” The issue in the case was whether the government could establish element number three: “That the defendant acted willfully and with intent to injure or defraud the bank, or to deceive its officers, directors, and examiners.” (T. 1519.) This was made perfectly clear in the instructions of the trial judge (T. 1530). The convictions are affirmed. . The Honorable Edward J. Devitt, Senior United States District Court Judge, District of Minnesota. . A bankers acceptance is a negotiable instrument, governed by 12 U.S.C. § 372 and applicable regulations and rulings of the Federal Reserve Board, which define and interpret the "eligibility” of the financing instrument (Anderson 10). An "eligible” bankers acceptance is one which the Federal Reserve has authority to purchase (Anderson 10). Eligible bankers' acceptances ordinarily, and for purposes of this case, are used to finance shipments of goods between foreign countries (Anderson 12-13). The typical transaction involves an exporter who proves in some manner to the bank that he has a given amount of product which will be shipped to a foreign country. He must have goods or a firm contract at least equal to the amount of financing. The shipment must be consummated in 180 days or less. The bank may then agree to finance for whatever period of time the shipment will require by taking the exporter’s promise to pay in the form of a written draft. The bank stamps the word “accepted” on the draft, and the authorized officer signs or initials the item. The document will provide for a given sum to be due on a given date, correlating with the completion of the shipment. An authorized officer then places on the face of the instrument an eligibility clause, describing the international transaction in goods which is represented by the acceptance. The proceeds of the shipment then are to be used to liquidate the transaction, without expectation of resorting to collateral or other security. (Anderson 25, 31; T. 613.) The bank may choose to hold the acceptance until maturity, at which time the customer pays the bank. More commonly, however, the bank sells acceptances at a discount on the secondary market, with the bank paying the holder in the face amount upon maturity (Anderson 44-49). The market maintains a high interest in the instrument because it is a secure, no-risk investment due to the bank's absolute obligation to pay upon maturity, regardless of the customer’s ability to pay the proceeds from the transaction (Anderson 85; T. 476). . He had been discharged from his employment and had a poor credit record, and his commission checks from a former employer were assigned to the bank (T. 171-72). In November, 1980, he had a negative net worth of $635,000 (T. 176). . In sum, the prerequisites to an eligible bankers’ acceptance are:. (a) that there be a specific transaction involving the shipment of goods usually between foreign countries; (b) that there be actual goods or a firm contract for sale of the goods, in either case, representing at least the face value of the acceptance; (Anderson 26, 29); (c) that the transaction take no longer than 180 days, to correlate to the time set forth on the acceptance; and (d) that the acceptance be paid upon maturity with the proceeds of the transaction. (Anderson 12, 79; T. 1350-52.) . See nn. 2 and 4, supra. . United States v. Mohr, 728 F.2d 1132 (8th Cir.1984) (exceeding loan limit and concealing documents); United States v. Ness, 665 F.2d 248 (8th Cir.1981) (check-rolling without deposits to customer accounts, which were not really legitimate loans); United States v. Bevans, 496 F.2d 494 (8th Cir.1974) (rollover of insufficient fund checks and their treatment as new checks each day to avoid posting as overdrafts). . "Willfully” connotes a voluntary, intentional violation of a known legal duty ... and the word “knowingly” ... means that the acts charged were done voluntarily and intentionally and not because of accident or other innocent mistake (T. 1516-17). . This new approach, exemplified in the American Law Institute’s Model Penal Code, is based on two principles. First, the ambiguous and elastic term "intent" is replaced with a hierarchy of culpable states of mind. The different levels in this hierarchy are commonly identified, in descending order of culpability, as purpose, knowledge, recklessness, and negligence. See LaFave & Scott 194; Model Penal Code § 2.02. Perhaps the most significant, and most esoteric, distinction drawn by the analysis is that between the mental states of "purpose” and “knowledge.” As we pointed out in United States v. United States Gypsum Co., 438 U.S. 422, 445 [98 S.Ct. 2864, 2877, 57 L.Ed.2d 854] (1978), a person who causes a particular result is said to act purposefully if "‘he consciously desires that result, whatever the likelihood of that result happening from his conduct,' ” while he is said to act knowingly if he is aware “ 'that that result is practically certain to follow from his conduct, whatever his desire may be as to that result.’ ” 444 U.S. at 404, 100 S.Ct. at 631. . It does not appear in these statutes, and our attention has not been called to any others using the term “specific intent.” . In the case of United States v. Marvin, 687 F.2d 1221, 1227 (8th Cir.1982), cert. denied, 460 U.S. 1081, 103 S.Ct. 1768, 76 L.Ed.2d 342 (1983), this court held that it was error not to give Devitt & Blackmar § 14.03, the specific intent instruction. An examination of that opinion reveals that the court intended to require, for that particular offense, the defendant’s actual knowledge that he was violating the law, thus placing the offense of acquiring and possessing food stamps in that narrow range of cases where such knowledge is essential. 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_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". THOMASSON v. BURLINGTON TRANSP. CO. No. 2405. Circuit Court of Appeals, Tenth Circuit. May 19, 1942. Rehearing Denied June 26, 1942. Emmett Thurmon, of Denver, Colo., for appellant. J. L. Rice, of Denver, Colo. (J. C. James and J. H. Cummins, both of Denver, Colo., on the brief), for appellee. Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges. HUXMAN, Circuit Judge. William R. Thomasson instituted an action against the Burlington Transportation Company in the District Court of the United States for the District of Colorado to recover damages for personal injuries sustained by him in an automobile collision at the intersection of Eighteenth Street and Glenarm Place, in the City of Denver. At the conclusion of the evidence offered by plaintiff, the court instructed a verdict for the defendant. Judgment was entered thereon and plaintiff has appealed. There is a conflict between the state law and the ordinances of the City of Denver defining the rights and duties of persons' who approach a street intersection ■ at right angles. Ch. 16, § 208, of the Colorado Statutes Annotated, 1935, provides:. “(a) The driver of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has entered the intersection from a different highway. “(h) When two vehicles enter an intersection from different . highways at the same time the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.” Ordinance No. 16 (Series of 1932), § 65(a), of the City of Denver, as far as material herein, provides: “Every .driver of a vehicle approaching the intersection of a street shall yield the right-of-way at such intersection to the driver of any vehicle approaching from the right, and the driver of the vehicle on the left shall decrease the speed of the vehicle operated by him and have said vehicle under- control before crossing such intersection, and it shall be his duty to yield the right-of-way to the vehicle on the right; ...” Plaintiff contends that where there is a conflict, as here, between the city ordinance and the state law, the former must give way and that the respective rights and duties of the parties are to be measured by the state law. The Supreme Court of Colorado does not sustain plaintiff in this position. In City and County of Denver v. Henry, 95 Colo. 582, 38 P.2d 895, 898, the Supreme Court said: “Our conclusion is that the right of way at street intersections in the city of Denver is controlled by the ordinance in question, not by the statute.” The question of plaintiff’s contributory negligence therefore must be measured by the requirements of the city ordinance of the City of Denver. Eighteenth Street and Glenarm Place intersect at right angles. At the time of the accident, plaintiff was driving his automobile on Eighteenth Street and approached the intersection from a northwesterly direction. Defendant’s bus was being driven along Glenarm Place, and approached the intersection from a southr westerly direction. Defendant’s bus therefore appeared on plaintiff’s right and had the right of way at the intersection. The duty which rested upon plaintiff as he approached this intersection under these circumstances has been clearly defined by the Supreme Court of Colorado. In Golden Eagle Dry Goods Co. v. Mockbee, 68 Colo. 312, 189 P. 850, 851, the court, in interpreting the meaning -of such an ordinance, said: “We think the right rule is that it is the duty of every driver when approaching a street intersection to use reasonable care to see whether there is likelihood ’of collision with any car approaching from the right, and, if there is, to yield to it the right of way, and to keep his car under such control that he can do so.” If, when plaintiff reached the crossing, conditions were such that it would raise a, question, in the mind of a reasonably prudent person whether he had time to cross in the face of a car approaching from his right, it was his duty to stop and yield the right of way to defendant. Each street is 48 feet wide and has a 16-foot sidewalk on each side. Plaintiff testified that he approached the intersection of the street at an approximate speed of ten to twelve miles per hour; that as he came to the west sidewalk line, he looked to his right and saw defendant’s bus about 125 to 130 feét away, approaching at a speed of fifteen miles per hour; that he proceeded into the intersection and looked to his left to observe traffic from that direction; that he then looked up and saw the bus coming at a speed of from twenty-five to thirty miles per hour and only approximately 25 feet away; that he then jammed on his brakes, and the crash occurred. He testified that he did not reduce his speed before he applied his brakes. It must be borne in mind that estimates of distances and speeds are subject to a considerable margin of error, especially when formed on a moment’s glance while approaching an intersection. All of this prompts a reasonably prudent person to stop before crossing an intersection in the face of an approaching car which has the right of way, unless it clearly appears that it is safe to cross. A reasonably prudent person takes no needless chances at a street crossing. The ordinance required plaintiff to reduce his speed when he entered the intersection. Notwithstanding that he saw a car approaching which had the right of way, only 130 feet away, and realizing, as he must have, that he might be in error both as to the distance and the speed of the car, nevertheless he drove into the intersection without reducing the speed of his car, as the ordinance required, and paid no further attention to the approaching car that had the right of way until it was too late for him to stop, as he was required to do. It needs no extended discussion to support the conclusion that in the most favorable light of the evidence, plaintiff was guilty of contributory negligence as a matter of law. While not much stress is laid on it in plaintiff’s brief, one of the assignments of error relates to the doctrine , of the last clear chance. Defendant’s bus had the right of way. The driver had the right to assume that plaintiff would stop. Of course, if defendant saw plaintiff in a place of danger and could stop, it was his duty to do so. Under such circumstances it would be negligence for which defendant would be liable to fail to stop, notwithstanding that plaintiff was negligent in bringing about his peril. It is sufficient to say that there is no evidence in the record from which it can be concluded that defendant’s bus driver saw the peril in which plaintiff had placed himself at a time when he could have stopped. 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_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"). DISTRICT OF COLUMBIA v. KENDALL Court of Appeals of District of Columbia. Submitted May 3, 1927. Decided May 26, 1927. No. 4544. Criminal law <§=»1024(5)~ Court of Appeals held without jurisdiction to review by writ of error judgment of not guilty found by court sitting without jury (Code, §§ 44 and 935). Where prosecution for violation of Employment Agency Act, § 8, as amended by 35 Stat. 641, was tried to court without jury on agreed statement of facts, and the defendant adjudged not guilty and discharged, held, under District of Columbia Code, §§ 44, 935, Court of Appeals had no jurisdiction of writ of error by District of Columbia to review trial court’s action. In Error to Police Court of the District of Columbia. John D. Kendall was charged with violation of statute, and to review a judgment of the police court finding him not guilty and discharging him, the District of Columbia brings error. Writ of error dismissed. F. II. Stephens and E. W. Thomas, both of Washington, D. C., for plaintiff in error. S. A. Syme, of Washington, D. C., for defendant in error. Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices. MARTIN, Chief Justice. The District of Columbia filed an information in the police court of the District against John D. Kendall, charging him with violation of section 8 of the Employment Agency Act (as amended by 35 Stat. 641), by unlawfully receiving from an applicant for employment a sum of money greater than $2, as a fee for the procurement of employment and work for the applicant. The defendant pleaded not guilty, and the issue was tried to the court without a jury, upon an agreed statement of facts. The court found and adjudged the defendant not guilty, and he was discharged. The District of Columbia noted an exception to the finding and judgment of the police court “on the matters of law contained therein,” and filed various assignments of error, all of which challenged the interpretation placed by the court upon the statute in question. A writ of error was issued from this court, upon application of the District, for a review of these proceedings. We are satisfied, however, that we are without jurisdiction in the case. The right of the plaintiff in error to such a review by this court is based upon the provisions of section 935, D. C. Code, which section reads as follows, to wit: “In all criminal prosecutions the United States or the District of Columbia, as the ease may be, shall have the same right of appeal that is given to the defendant, including the right to a bill of exceptions: Provided, that if on such appeal it shall be found that there was error in the rulings of the court during a trial, a verdict in favor of the defendant shall not be set aside.” It may be noted, under section 44, D. C. Code, the finding and judgment entered by the police court in this case are entitled to “the same force and effect in all respects as if the same had been entered and pronounced upon the verdict of a jury.” In United States v. Evans, 30 App. D. C. 58, it was held that under section 935, an appeal by the prosecution does not lie from a judgment discharging the accused after a verdict of not guilty, based upon exceptions taken during the trial. In District of Columbia v. Burns, 32 App. D. C. 203, which was a prosecution for an alleged violation of the pure food statute, this court held that it has no power to review, on writ of error to the police court of this District, a judgment of that, court of not guilty, noi jury trial having been demanded by the accused, Mr. Chief Justice Shepard, speaking for the court, said: “Under the procedure prescribed in the police court a jury is not called unless demanded by the accused. None was demanded in this case, and the question of the guilt of defendant, as a matter of law and fact, was submitted to the court. Instead of quashing the information and dismissing the prosecution, the court, after hearing some evidence and excluding other, adjudged him not guilty, and discharged him as a result of that judgment. T.he effect of the judgment is the same as if it had been entered on the verdict of a jury. The defendant cannot be retried for the same offense. Were this court to entertain jurisdiction and determine that the judgment of the police court was erroneous, it could not be vacated and a new trial ordered. * * * It is unfortunate, therefore, that the'police court did not content itself with quashing the information and dismissing the prosecution, in accordance with its view of the law, without going further and adjudging the defendant not guilty. While it seems probable that the court took an erroneous view of the law, we are without jurisdiction to express an opinion upon the question, by reason of the judgment actually rendered.” It is immaterial that the facts in the present case were submitted to the court by means of an agreed statement, rather then by the testimony of witnesses. Consistently with the foregoing decisions, the writ of error issued in this case is dismissed. 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_circuit

I

What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. INTERNATIONAL VIDEO CORPORATION, Plaintiff-Appellee, v. AMPEX CORPORATION, Defendant-Appellant. No. 71-1935. United. States Court of Appeals, Ninth Circuit. Sept. 4, 1973. Francis A. Even (argued), John F. Flannery, of Fitch, Even, Tabin & Lue-deka, Chicago, 111., J. Bruce McCubbrey, San Francisco, Cal., for defendant-appellant. Karl A. Limbach (argued), Richard E. Peterson, Thomas A. Gallagher, of Lim-bach, Limbach & Sutton, San Francisco, Cal., for plaintiff-appellee. Before CHAMBERS and TRASK, Circuit Judges, and TAYLOR, District Judge. Honorable Fred M. Taylor, Senior United States District Judge for the District of Idaho, sitting by designation. TRASK, Circuit Judge: This is an appeal from an order dismissing both a complaint for declaratory-judgment and a counterclaim for patent infringement on the basis that there was no actual or justiciable controversy between the parties. Appellant, Ampex Corporation (Ampex), claims the court had no authority to dismiss its counterclaim over its objection and challenges the court’s discretion in refusing to award attorneys’ fees. We affirm. International Video Corporation (International), the plaintiff-appellee, originally sought a declaratory judgment that it was not infringing an Ampex patent covering video tape recording apparatus. Ampex unsuccessfully sought dismissal of the action asserting by way of Motion to Dismiss, that there was no justiciable controversy. Thereafter, Ampex “reluctantly” filed a compulsory counterclaim to prevent waiver of its right to sue International for patent infringement. Fed.R.Civ.P. 13(a). The counterclaim alleged : “Without hereby waiving its denial of the existence heretofore of a justi-ciable controversy between the Plaintiff, International Video Corporation, and the Defendant, Ampex Corporation, with respect to the Defendant’s Patent 2,956,114, or to infringement thereof by the Plaintiff; and without waiving its right of review of the District Court’s denial of the Defendant’s motion to dismiss the declaratory judgment complaint herein for want of justiciable controversy; and to prevent possible loss of right for failure to assert what may be held to be a compulsory counterclaim, the Defendant counterclaims against the Plaintiff, IVC, ...” C.T. at 71. A year later, International having changed its position completely, filed a Motion to Reopen Defendant’s Motion to Dismiss, arguing that the factual context of the action had changed and that the action should be dismissed as Ampex had previously suggested. The court granted International’s motion explaining: “In effect, plaintiff argues that the circumstances giving rise to this action have so changed that it would serve no useful purpose to proceed further. In light of plaintiff’s presentation, this argument is persuasive. Although the parties may still be in some disagreement over the patent in question, the changes in circumstances referred to by plaintiff demonstrate that ‘there are no longer adverse parties with sufficient legal interests to maintain the litigation.’ 6A Moore’s Federal Practice j[ 57.13, at 3074 (2d ed. 1966). See Cover v. Schwartz, 133 F.2d 541 (2d Cir.), cert, denied, 319 U.S. 748, [63 S.Ct. 1158, 87 L.Ed. 1703] (1942). Therefore, the motion to reopen is granted, and the complaint is dismissed. “Dismissal of the complaint does not require dismissal of the counterclaim. See Altvater v. Freeman, 319 U.S. 359, [63 S.Ct. 1115, 87 L.Ed. 1450] (1943). However, defendant has made it clear both in the counterclaim itself, and in opposing plaintiff’s motion, that the counterclaim was reluctantly filed to protect against a waiver under Federal Rule of Civil Procedure 13(a). Since the complaint has been dismissed, defendant need fear waiver no longer. There being no actual controversy between the parties, the counterclaim is also dismissed.” C.T. at 236. Ampex does not challenge that part of the court’s order dismissing International’s complaint. However, it has appealed dismissal of its counterclaim. Ampex contends that the dismissal of its counterclaim for patent infringement was error because it has never agreed to a voluntary dismissal under Rule 41(a)(2), Fed.R.Civ.P. and because the prerequisites for an involuntary dismissal under Rule 41(b) or (c) have not been met. Ampex argues that dismissal of a complaint does not necessarily require dismissal of a counterclaim which has a jurisdictional basis independent of the main action. See McGraw-Edison Co. v. Preformed Line Products Co., 362 F.2d 339 (9th Cir. 1966). Here, Ampex asserts, there was such an independent jurisdictional basis for the counterclaim —federal patent jurisdiction. Ampex relies on Pioche Mines Consolidated, Inc. v. Fidelity-Philadelphia Trust Co., 206 F.2d 336 (9th Cir. 1953), where a similar order of dismissal of a counterclaim was reversed because the counterclaim rested independently upon separate federal grounds for jurisdiction, specifically, diversity of citizenship. We conclude that Rule 41 is inapplicable to the dismissals in this case which were predicated on lack of jurisdiction. Rule 41, cited by appellant, applies to voluntary dismissals and involuntary dismissals other than dismissals for lack of jurisdiction. Rule 12 dismissals for lack of jurisdiction are non-discretionary and are to be entered whether the parties object or not. Ampex’s argument must fail because it ignores the crucial threshold question — whether a justiciable controversy exists — underlying the court’s orders of dismissal. If there is no controversy, there is no jurisdiction in a constitutional sense regardless of whether statutory jurisdiction might otherwise be properly founded. In hearing the original motion to dismiss brought by appellant Ampex, the court concluded that a justiciable controversy existed. Ampex has never retreated from its original argument that the declaratory judgment complaint was dismissable for want of a justiciable controversy. The mere filing of a compulsory counterclaim does not establish a justiciable controversy where none previously existed. Cf. Dragor Shipping Corp. v. Union Tank Car Co., 378 F.2d 241 (9th Cir. 1967). The Ampex counterclaim shows on its face that no justiciable controversy is being asserted. The counterclaim expressly asserts Ampex’s continuing position that the alleged dispute raised by International’s complaint does not amount to a justiciable controversy. The counterclaim was filed nonetheless because it might be considered a compulsory counterclaim which Ampex could lose forever if not then asserted. A comparison of the International complaint for declaratory judgment with the Ampex counterclaim for patent infringement convinces us that identical issues are involved in each. We do not quite understand how one can be dismissed for want of a justiciable controversy without the dismissal of the other. Both dismissals are required because the court lacks jurisdiction to adjudicate unless there is an actual controversy. This court has stated: “Compulsory counterclaims are required to be dismissed only when the complaint is dismissed for want of jurisdiction.” Pioche Mines Consolidated, Inc. v. Fidelity-Philadelphia Trust Co., supra, 206 F.2d at 336. Here the complaint was dismissed for want of an actual controversy and dismissal of the counterclaim was mandatory because it suffered from the same fatal jurisdictional defect. Although the court’s conclusion that the International complaint should be dismissed for lack of an actual controversy has not been directly attacked, we have nevertheless considered that finding and agree that it is not clearly erroneous. The court’s original conclusion that jurisdiction existed was based on the testimony and arguments by the parties and was strongly urged by the plaintiff-appellee, International. When the court was asked by that same party, which had reversed its position, to reconsider the appellant’s motion to dismiss, there was no longer a party arguing that a controversy existed. Ampex weakly maintained that the court should be bound by its original determination but Ampex produced no new evidence concerning the controversy. Ampex does not appear to be claiming, even now, that an actual controversy exists; rather, Ampex contends it will be prejudiced by a dismissal. The damages it could recover should it ever elect to bring a new infringement claim against International may be less than the amount it could recover if the date of the counterclaim in this action were used as the triggering date for the assessment of damages under the patent marking statute, a statutory limitation upon the recovery of damages, 35 U.S.C. § 287. The court avoided any injury to the interests of Ampex by providing that the dismissal of the counterclaim was without prejudice to its right to refile the claim. In answer to the claim that the amount of recoverable damages might be less, the court promptly stipulated that if Ampex refiled its claim within six months from the date of dismissal, it would be permitted to assert damages and rights retroactively to the date of the filing of the counterclaim. Ampex did not refile its claim within that grace period. Under these circumstances where neither party appears to be asserting that any real controversy exists, and the rights of Ampex could be fully protected, the court properly concluded that the complaint and counterclaim should both be dismissed. Appellant further contends that the district court abused its discretion in refusing to award Ampex attorneys’ fees occasioned by International’s suit. Ampex argues that International’s capricious change of position and the resultant dismissal of the action mandate such an award. Appellant predicates the court’s authority to award attorneys’ fees on Rule 41(a)(2) which provides for “terms and conditions” in dismissal orders. International does not dispute that the court had the power to award attorneys’ fees but maintains that the court’s discretionary conclusion against such an award should be sustained. International points out that Ampex’s conduct was not so exemplary and International’s so heinous that equity would require an award of attorneys’ fees in this case. Allowance of attorneys’ fees is normally within the judicial discretion of the trial court. Lea v. Cone Mills Corp., 467 F.2d 277 (4th Cir. 1972). Furthermore, an award of attorneys’ fees is ordinarily improper in the absence of a statute or under the most unusual circumstances. Maier Brewing Co. v. Fleischmann Distilling Corp., 359 F.2d 156 (9th Cir. 1966). We conclude that there was no abuse of discretion in denying appellant’s request for an award of its attorneys’ fees. Affirmed. . Rule 41(a)(2) provides in pertinent part: “If a counterclaim lias been pleaded by a defendant prior to the service upon him of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court.” . Rule 12(h) provides, for instance : “. . . whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” . U.S.Const., art. Ill, § 2. The test for a justiciable controversy was suggested in Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941) : “Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient' immediacy and reality to warrant the issuance of a declaratory judgment.” . Ampex has counterclaimed saying at the same time that it challenges jurisdiction. Query: could Ampex challenge jurisdiction after losing on the merits of the counterclaim? 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_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". FLYNN ex rel. YOUNG QUONG ON v. TILLINGHAST, Commissioner of Immigration. No. 2760. Circuit Court of Appeals, First Circuit. Feb. 18, 1933. MORTON, Circuit Judge, dissenting. Everett Flint Damon, of Boston, Mass. (A. Warner Parker, of Washington, D. C., on the brief), for appellant. John W. Schenck, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Boston, Mass., on the brief), for appellee. Before BINGHAM, WILSON, and MORTON, Circuit Judges. WILSON, Circuit Judge. The issue in this class of eases where admission is denied is (3) whether tho applicant was given a fair hearing, that is, was permitted to introduce all the evidence he desired and have it made a part of tho record of the administrative board before which his ease was heard; (2) whether there was an entire lack of convincing evidence, or any substantial evidence contra, on which the conclusion of the immigration officials could rest. The burden of proving his right to enter the country as a citizen is on the applicant. This burden involves satisfying the immigration officials, "who have the sole power to determine the credibility of witnesses, and the weight of the evidence as to the facts entitling the applicant to enter as a citizen. The conclusion of a Special Inquiry Board may rest, therefore, on a lack of evidence of sufficient weight in the minds of the members to carry conviction. Bearing in mind that they have the power to determine the credibility of witnesses, and whether the evidence has sufficient weight to sustain the burden on the applicant, to reverse a decision of the immigration officials refusing admission to an applicant, and of the District Court in denying a petition for habeas corpus, this court must find that the evidence in favor of the applicant is so clear and convincing that the immigration officials must have acted arbitrarily in rejecting the evidence in favor of the applicant because in their opinion the witnesses for the applicant were unworthy of belief, or in finding ,that all the evidence in applicant’s favor did not satisfy the members of the board that the applicant was a citizen of this country. It is often difficult to determine, not only what evidence the immigration officials rejected as unworthy of belief and on what ground, but also what weight they attached to the evidence in favor of or against the applicant. The question is not what this court would have found on the evidence that appears in the printed record. • The Supreme Court said, in Chin Yow v. United States, 208 U. S. 8, at page 13, 28 S. Ct. 201, 203, 52 L. Ed. 369: “But, unless and until it is proved to the satisfaction of the judge that a hearing properly so called was denied, the merits of the case are not open,, and, we may add, the denial of a hearing cannot be established by proving that the decision was wrong.” U. S. ex rel. Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 106, 47 S. Ct. 302, 71 L. Ed. 560; Tisi v. Tod, 264 U. S. 131, 133, 44 S. Ct. 260, 68 L. Ed. 590. The conduct of the hearing and the conclusion of the immigration officials must be so clearly arbitrary and unfair as to amount to a denial of due process. Tang Tun v. Edsell, 223 U. S. 673, 681, 32 S. Ct. 359, 56 L. Ed. 606. Upon the evidence as it appears in the printed case, a court exercising judicial powers might have decided that the applicant was a son of a citizen of this country. Six different witnesses stated that the alleged father, Quong Yuen, alias Young Quong Yuen, had a son, by name Quong On, or referred, to him by that name, three of whom were not related, but were testifying in support of the applicant on the other occasions, when he was deported. A brother of the alleged father and one son also testified, in other proceedings, that Quong Yuen had a son, by name Quong On. The alleged father and a younger brother of the applicant stated that there was a picture of the alleged father and the applicant framed and hanging on the walls of the home in China, which the applicant at first denied and said he was never photographed with any other member of his family. After the evidence was closed, the infimigration board opened the case to permit the offering of the photograph, which the alleged father claimed to have had forwarded from China. The picture was identified by the applicant and the younger brother as that of the alleged father and the applicant. The father said the photograph was taken at Hong Kong in 1911, or just before the.first application for admission by this applicant, though it does not appear to have been produced in support of that application. While the applicant on his first examination in this ease insisted that there was no such photograph, when it was produced he remembered with considerable detail that it was taken sixth month S. H. 3; or just before he sailed for Vancouver in 1911. He recalled how he and his alleged father went to Hong Kong, and where they stayed; that he had his passport photograph taken at the same time; that their costumes were furnished by the photographer, whose name he remembered, and also the route by which they returned home. Such plethora of detail of an event of which he remembered nothing a short time before may have raised a suspicion in the minds, of the immigration officials that whoever wrote him that his case was to be reopened may have given him more ■information. If the immigration officials believed all these witnesses and there was no discrediting evidence, they could have found that the applicant was the son of an American citizen; the citizenship of Quong Yuen being admitted. Upon what grounds then, may the Board of Inquiry have denied the applicant’s right to enter? In the first place, this was. the applicant’s third application, he having been twice rejected before, first in 1911 and again in 1923. On his previous applications, the alleged father and the applicant gave their names as Quong Yuen and Quong On. They now claim the family name is Young. An alleged uncle of the applicant and all the uncle’s family go by the family name of Quong. Standing alone, a Chinese name would have little significance, though the family name is considered of great importance in China, as the deceased members of the family are objects of reverent worship. No adequate explanation of this change of name was made. The applicant testified that he worked on his father’s farm, which consisted of five ows of land in one parcel, and was working on it during one of his father’s visits to China. The alleged father testified that he had no single parcel as large as five ows, but his farming land consisted of several smaller parcels, and that at none of his visits did the applicant work on the land farming. The applicant, after his denial of admission in 1923, lived in what is called the Straits Settlement. The alleged father says he wrote to him while there at least two letters each year, and received at least one letter each year from the applicant. The applicant testified he neither wrote his father during that time nor received any letters from him. These discrepancies by themselves, however, we deem of minor importance. But the immigration board may have properly attached considerable weight to the evidence of the applicant, the alleged father, and the alleged uncle and his family as to the date and place of the death of the paternal father and mother of the alleged father. Ancestor worship is a well-known and deep-rooted custom in China, and the younger generations hold in reverence their forbears, especially after their decease. One would have a right, therefore, to expect some degree of accord in the family testimony as to the date and place of death of the parents and grandparents, and their place of burial. Here, however, appears a striking inconsistency which may have resulted in the immigration officials giving little, if any, credence to the evidence of many of the witnesses, as. their testimony cannot be harmonized. The applicant states that he saw both his paternal grandfather and grandmother; that they lived in a house in the sixth row in the village, which now, if not during their lifetime, belongs to his alleged father; that his grandfather died first and his grandmother about a year before his application in 1911. At the time of his application in 1911, when 18 or 19 years old, the applicant testified that his grandfather was then living and his grandmother was dead; he now says they both died about twenty years ago, and the grandfather died first; that they were both buried in Gong Bing How, with a stone at each grave; that his grandmother’s stone is marked Hor She though both he and his alleged father have previously testified that her name was Look She. The applicant at the first hearing said both grandparents died in the house in the sixth row in Ng Young Village. On his second application, he said they died in the house in the seventh row where his parents resided, but now says the grandparents died in the house in the sixth row. The alleged father, however, says his mother, the grandmother of the applicant, died before the applicant was born; that his father died about 1900, in the house in the sixth row and not in the seventh, as the applicant has stated. Both agree that the paternal grandfather and grandmother of the applicant were buried in Gong Bing How.' The blood brother of the alleged father and all his family have testified on other occasions that the parents of the alleged father and the alleged uncle died in Kim Goo Village, and were buried in War Long How, and their graves were not marked. The applicant says the name of his grandfather was Young Yoke Toy and his grandmother’s name was Hor She; the alleged uncle’s family say the grandfather’s name was Quong Young Wah or Wai, and the grandmother’s name was Look She. Certainly a blood brother of the alleged father and the brother’s children should know the names of the paternal ancestors, where and when they died, and whore they were buried, and how their graves were marked, equally as well as the applicant and his alleged father. Both cannot be right. The immigration officials must have been obliged to reject one or the other as unworthy of belief. If the applicant’s grandmother died before he was born, he could not have seen her. His testimony and that of the alleged father as to the time of her death cannot be reconciled. Bearing in mind that in 1911 the applicant was 18 years old when he testified as to their death but a short time previous, while the father says his mother died before 1894 and the father about 1900, the immigration officials cannot be said to have been arbitrary in also rejecting one or the other of these witnesses as unworthy of belief. The applicant was testifying in 1911-as to what he said were recent 'occurrences. The father said they had occurred from ten to twenty years before. It is quite evident that the immigration officials could not have given credence to both the testimony of the uncle’s family and that of the alleged father and the applicant; and that there were such discrepancies in the testimony of the alleged father and this applicant that also warranted the rejection of the testimony of one or the other. Granted the power to determine which, if any, of these witnesses the immigration officials did believe, we do not think it can be said they' acted arbitrarily in concluding finally that the evidence did not satisfy them that the applicant was the son of Young Quong Yuen. If the officials found that the alleged fa- • ther or the applicant, or both, were not worthy of belief, they might have given little weight to’ the photograph alleged to have been taken just before 'the first application was made. At least, they expressly found it was not of sufficient weight to overcome the other adverse testimony. . In case there is a practice of bringing in Chinamen under a fraudulent claim of relationship, as the numerous cases rejected and the careful scrutiny of the claims would indicate, the determination of relationship from photographs as between members of the Chinese race is not an entirely safe guide on which to rely. If the board found that the testimony of these witnesses could not be relied on, the photograph proves no more than at some time Young Quong On, alias Quong On, accompanied Young Quong Yuen, alias,.-Quong Yuen, to Hong Kong, where ■they, had -their photograph taken together. The decree of the District Court 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_appnatpr

0

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. William Ernest DICKERSON et al., Plaintiffs-Appellees-Cross Appellants, v. CONTINENTAL OIL COMPANY et al., Defendants-Appellants-Cross Appellees, and Charles N. Duddleston, d/b/a Duddleston Welding Company, Defendant-Appellee, HOUMA WELL SERVICE, INC. and Crown Petroleum Corporation, Third-Party Defendants-Appellees. No. 30631. United States Court of Appeals, Fifth Circuit. Sept. 28, 1971. Rehearings Granted In Part Dec. 1, 1971, Jan. 13, 1972. Rehearing Denied Feb. 9, 1972. Fred H. Sievert, Jr., Lake Charles, La., Breard Snellings, New Orleans, La., for Continental Oil Co.; Stockwell, St. Dizier, Sievert & Viccellio, Lake Charles, La., of counsel. Samuel C. Gainsburgh, New Orleans, La., Leonard Fuhrer, Alexandria, La., Bob F. Wright, Lafayette, La., Louisiana Trial Lawyers Assn., amicus curiae. Wm. B. Baggett, Lake Charles, La., for William Ernest Dickerson; Bag-gett, Hawsey & McClain, Lake Charles, La., of counsel. Gilbert L. Dozier, Baton Rouge, La., for Doyle. John R. Martzell, Martzell & Montero, New Orleans, La., for Ruth Clark and Houma Well Service, Inc. Russell T. Tritico, Lake Charles, La., for D. Clark. Young & Burson, Eunice, La., for Guillory. Frank M. Brame, Lake Charles, La., for Lula Mae Taylor; Brame, Stewart & Bergstedt, Lake Charles, La., of counsel. Henry L. Yelverton, Lake Charles, La., for Dunham. Jones & Jones, Cameron, La., for Charles and Virginia Duddleston; J. B. Jones, Jr., Cameron, La., of counsel. Daniel J. McGee, Mamou, La., for Monk. Beeson & Beggs, Vidor, Tex., Payton R. Covington, Lake Charles, La., for Bishop. John B. Scofield, Thomas M. Berg-stedt, Scofield & Bergstedt, Lake Charles, La., for Ins. Co. of North America. John G. Torian, II, J. J. Davidson, Jr., Davidson, Meaux, Onebane & Donohoe, V. Farley Sonnier, Lafayette, La., for Charles N. Duddleston d/b/a Duddleston Welding Co. Edgar F. Barnett, R. W. Farrar, Jr., for Houma Well Service, Inc. and Aetna Cas. and Sur. Co.; Hall, Raggio, Farrar & Barnett, Lake Charles, La., of counsel. Edward S. Bagley, Terriberry, Rault, Carroll, Yancey & Farrell, New Orleans, La., for Crown Petroleum Corp. Before TUTTLE, WISDOM and IN-GRAHAM, Circuit Judges. TUTTLE, Circuit Judge: This appeal, accurately described by the trial court as “a multiple donnybrook” in which theories of initial, contingent and secondary liabilities abound, arose out of an explosion and fire which occurred on February 3, 1967 on an offshore stationary (fixed) drilling platform located in the Gulf of Mexico, on the Outer Continental Shelf. Multiple suits for damages for wrongful deaths, personal injuries and property damage growing out of the explosion were filed. Before discussing the merits of these suits, it is necessary briefly to set forth the facts involved and, in so doing, to delineate the relationships of the multiple parties involved. I. FACTS Prior to February 3, 1967, the date of the explosion, Houma Well Service, a drilling contractor under a written agreement with Continental Oil Company, the owner of the stationary platform involved, was drilling oil wells on the platform. The drilling rig utilized was owned by Houma, but prior to the accident, it was sold to Crown Petroleum Corporation. On January 23, 1967, Continental hired an independent contractor to begin testing one of these wells. During these tests, water, gas and oil were produced. This product was run through a separator and thereby stripped of its liquids. These liquids, referred to as “condensate,” were highly volatile and unstable. Though there were various methods of disposing of the condensate, Continental directed that it be poured into a white tank located on the northeast corner of the platform. This tank was normally used for storing diesel fuel, which is not highly volatile, and the record reveals that all those working in the general area thought the tank contained only diesel fuel. Indeed, prior to the explosion, condensate was never even stored on a drilling platform, much less in a “diesel” tank. The tank itself was not plugged and Continental’s representative told no one that it contained condensate. While this testing was proceeding Continental hired a contract welder, Duddle-ston, to do some work on a rack on which a Schlumberger unit was to be placed. Pursuant to this agreement, Jim Dud-dleston, son of the owner of the welding operations, reported to the platform. One Harvey Herrington also came aboard. He was to act as a tool pusher for the new owner of the rig, Crown Petroleum. On February 2nd, while testing was still in progress, Donald Ray Smith, the foreman for Continental and their only representative on the platform, called together both Herrington and Jim Duddleston to tell them they were to install the rack. Smith testified that this conversation occurred at about 7:00 a. m. on February 2nd. He also testified that later that morning — about 10:00 a. m. — he noticed that the four inch bull plug was not in the top of the white tank and asked Herrington to find it and put it on. He also said that he wanted no drilling done on the rack while the plug was missing, but never told anyone just what the tank contained nor how dangerous it really was. Smith also testified that at no time did he think that there would be cutting done with a cutting torch above the white tank. He left the platform around noon on February 3rd, leaving Herrington in charge. At about 3:45 that afternoon, while Dud-dleston was welding over the white tank, the explosion occurred. A bucket which one of Herrington’s workers had placed over the hole, apparently disappeared and the trial court found that there was no covering over the hole from 11:30 a. m. until the time of the explosion. All plaintiffs, except those in the Dud-dleston case, an entirely separate issue to be dealt with infra, named as original defendants, Continental Oil Company and Duddleston Welding Company. Continental has, in turn, filed third party demands and/or cross claims against Crown Petroleum Corporation, Insurance Company of North America, Dud-dleston and Houma Well Service, Inc. These parties have also cross-claimed but we will deal first with the issues raised by the original plaintiffs and defendants. Of the six plaintiffs in this case, five —Joyce A. Clark, Esta Faye Bishop, Ruth Clark, Lula Mae Taylor, and Shirley Hester — are appealing from what they consider inadequate and erroneous damage awards for wrongful death; the sixth, William Ernest Dickerson, appeals from his award for personal injuries on the ground of inadequacy. In addition, while agreeing with the trial court’s finding that the negligence of Donald Ray Smith, Continental’s drilling foreman, was a proximate cause of the accident, they also maintain that the trial court erred in failing to impose liability on James Duddleston, the welder. They argue that welding over the open tank made him a joint tort feasor; it was a contributing cause to the explosion but was not such as to insulate Continental from liability. We will deal first with these latter contentions, and then exam-me the individual damage awards of the plaintiffs. II. APPLICABLE LAW In Rodrigue v. Aetna Casualty and Surety Company, 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360, the Supreme Court held that fixed platforms on the Outer Continental Shelf were “artificial islands.” They were to be treated as federal enclaves within a state, and were to be governed by the Outer Continental Shelf Lands Act, 43 U.S.C.A. § 1331 et seq., which incorporated and federalized the law of the adjacent state where not inconsistent with federal law. In determining liability and the amount of . damages to be awarded in this case the law of Louisiana thus applies. III. CONTINENTAL’S LIABILITY We begin with the liability of Continental. The trial court found that the negligence of Continental was “clear, convincing and gross.” Specifically Continental was negligent in the following particulars which proximately caused the explosion: (a) In failing to provide safe storage for liquids and gases with highly volatile properties; (b) In causing or permitting said liquids and gases to be stored in a tank which was being used for diesel fuel and liquids of less dangerous properties; (c) In permitting welding operations in an area containing an explosive atmosphere nearby; (d) In failing to post signs and otherwise warn workmen that the storage tank contains highly volatile liquids and gases; and (e) In storing condensate on board a platform at sea when safer alternatives were available. We agree with these findings and the conclusion of the trial court. It is Continental’s view, however, that the trial court held it liable primarily on the basis of a failure to warn the plaintiffs that condensate had been placed in the tank and that it was highly volatile, This, they feel, was not a substantial cause of this accident, particularly when taken in connection with other facts found by the trial court. For example, it notes the finding that had the four-inch opening on the top of the tank been closed in a proper manner, the accident probably would not have occurred. The Louisiana courts have generally defined proximate cause as being: Any cause which is natural and continuous sequence, unbroken by any efficient intervening cause, produces the result complained of and without which the result would not have occurred; and from which it ought to have been foreseen or reasonably anticipated by a person of ordinary prudence in the exercise of ordinary care that the injury complained of, or some similar injury, would result therefrom as a natural and probable consequence. Sumrall v. Aetna Casualty and Surety Company, 124 So.2d 168, 176 (La. App.1960). See also, Ardoin v. Williams, 108 So.2d 817 (La.App.1959); Harvey v. Great American Indemnity Company, 110 So.2d 595 (La.App. 1959). Applying this standard to the case at bar, we have no trouble agreeing with the trial court’s conclusion. In addition to arguing that it was not liable, Continental also contends that the trial court erred in failing to find Duddleston also negligent, thereby at least making him a joint tort feasor and at best, an intervening cause insulating Continental from all liability. We have already dealt with Continental’s liability and have concluded its negligence was a proximate cause of the accident. Regarding Duddleston, we again agree with the trial court and hold that he was not a joint tort feasor. It is argued, however, that if Duddle-ston, who was cutting with his torch on a piece of pipe directly above the opening of the tank, had merely stepped down and checked its contents by smell, he would have realized that it contained condensate. It is also noted that he failed to place any wet sack or material beneath him to protect this area from fallen molten material. In addition, it is contended that the doctrine of Res Ipsa Loquitur applies and, in any event, that liability may be found under Article 2315 of the Louisiana Civil Code. Once again, we agrée with the conclusion of the trial court. Failure to check the tank below or take any extra precautions is excusable in light of the fact that everyone involved thought that only diesel fuel, a nonvolatile substance, was in the tank. Further, the record reveals that when Duddleston came aboard and began his job, the regular rig welder had already been working in that general area for six days. Finally, as emphasized above, no warning whatsoever was given regarding the contents of the white tank. We also hold that the doctrine of Res Ipsa Loquitur does not apply. The trial court based its holding on Fidelity and Casualty of New York v. Funel, 383 F.2d 42 (5th Cir. 1967). Plaintiffs and Continental, however, argue that Moak v. Link Belt Company, 229 So.2d 395 (La. App.1969) compels a contrary result. We feel neither case applies. As stated in Moak, supra, res ipsa loquitur simply means: “That the circumstances involved in or connected with an accident are of such an unusual character as to justify, in the absence of other evidence bearing on the subject, the inference that the accident was due to the negligence of the one having control of the thing which caused the injury. This inference is not drawn merely because the thing speaks for itself, but because all of the circumstances surrounding the accident are of such a character that, unless an explanation can be given, the only fair and reasonable conclusion is that the accident was due to some omission of the defendant's duty.” Id. at 406. The res ipsa argument advanced in this case is that Duddleston was in control of a dangerous instrumentality, a welding torch, and that he was using it over an open tank. This does not fit the res ipsa doctrine outlined above. “The thing which caused the injury” was the open tank. This was the dangerous instrumentality involved in the accident, not the torch. Duddleston had no control over it and no knowledge whatsoever as to its explosive contents. Further the circumstances of this accident are not of such a character that “the only fair and reasonable conclusion is that the accident was due to some omission of the defendant’s duty.” We have already delineated what we feel to have been the proximate cause of this tragic event. The fact that Duddleston innocently lit the fuse of Continental’s unmarked time bomb does not invoke the doctrine of res ipsa loquitur, nor does it impose liability upon him. It is also argued that Duddleston is liable under Article 2317 of the Louisiana Civil Code. Regarding this point, we agree with the reasoning of the trial court. Article 2317 does not impose absolute liability for damages caused by one’s property, but rather a refutable presumption of negligence. Dupre v. Travelers Insurance Company, 213 So.2d 98 (La.App.1968). In effect, it may be equated with res ipsa loquitur. In so doing, we reach, of course, the same conclusion as stated above. IV. DAMAGE CLAIMS Each plaintiff argues that the amount he or she received in damages is insufficient. Before examining the individual claims of the plaintiffs, we will first deal with an issue common to all. It is argued that in fixing the awards, the trial court did not act independently, but rather seemed constrained by Louisiana jurisprudence in that it seemed bound by a system of “standard or uniform awards.” Though little monetary distinction was made between the widows and surviving children, we do not feel that this was due to the fact that the trial judge was failing to exercise his discretion, or indeed, that he felt constrained by Louisiana jurisprudence. The trial court explicitly stated: Damages in cases such as this cannot be computed by mathematical formulae nor derived from fixed principles susceptible, of being programmed into a computer * * * The simple truth is that there are too many variables. None of us can devine the future. Here, we are governed by Louisiana. The Supreme Court of that state had categorically rejected the use of mathematical formulae in awarding damages. McFarland v. Illinois Central Railroad [241 La. 15], 127 So.2d 183; Pennington v. Justiss-Mears Oil Company [242 La. 1], 134 So.2d [53] 59. The amount to be fixed in each case calls for the independent judgment of an independent judge, (emphasis added). The fact that the trial judge was aware of this leads us to the conclusion that even though some of the awards were similar, they were, nonetheless, arrived at by the exercise of the court’s discretion. We now examine the individual claims of the plaintiffs. (a) Joyce A. Clark. Mrs. Clark received a total of $146,521. It was itemized in three items: 1. For the loss of support, contributions, or, as sometimes stated, pecuniary loss for Mrs. Clark and her three children; 2. for the loss of society, love and companionship of deceased and anguish of beneficiaries, (i. e., Mrs. Clark and the same three children) ; 3. funeral expenses. Although Mrs. Clark claimed an item of pain and suffering of the deceased prior to his death, the trial court made no finding with respect to whether such pain and suffering was actually experienced by Mr. Clark, and included no item of pain and suffering in the aggregate arrived at in favor of Mrs. Clark. With respect to the claim of Mrs. Lulu Mae Taylor, whose husband also died, the trial court itemized the damages in the same manner as in the Clark case, but it also added an item for “conscious pain and suffering of decedent prior to his death,” amounting to $10,000. In the cases of persons who filed claims for personal injuries, but who were not killed, the trial court made plain in each instance that the aggregate sum allowed included all elements of injury, including pain and suffering. It seems, therefore, to be apparent that had the trial court intended to make an allowance for Mrs. Clark with respect to pain and suffering of her husband during the short time before he died, it would have done so as a separate item and would not have lumped it into any of the other items constituting the award. Mrs. Ulark claims that under the Louisiana cases the element of pain and suffering must be expressly itemized in a finding of fact. See Hall v. State through Department of Highways, 213 So.2d 169 (La.App. 3 Cir., 1968), and also contends that this is required by Federal Rules of Civil Procedure 52(a). Whether or not the Federal rule requires a separate itemization (it is the Federal Rules that would apply to the matter of findings by a trial court in this federal trial), it seems clear to us that the trial court simply failed to make a finding with respect to a claimed item and with respect to which there was some evidence. We are, therefore, without the guidance of the trial court’s determination as to whether the evidence warranted the making of such an award. The essential facts concerning what happened to the decedent are not in dispute. At the time of the explosion he went overboard and into the ocean. The coroner testified that death was from drowning, and in response to the inquiry as to “interval between onset and death” he had entered the notation “immediate.” He had second and third degree burns of the face. The coroner testified in response to question from appellant’s counsel as to what he meant by “immediate,” as follows: “Immediate from asphyxiation from drowning would mean that the time actually it would take him to drown, which could be of varying period of time, from five to ten minutes.” The following question and answer then followed: “Doctor, if we assume that both of these gentlemen had sustained burns while on a stationary platform and that subsequently they were found in the water, and their cause of death was found to be drawing, would it be probable, sir, that they, from a medical standpoint, that they experienced pain and suffering prior to their death ? A They would have some, yes.” Although it does not appear from the record that the decedent was conscious while in the water, neither does it appear that he was unconscious. If the former, then it must be without dispute that he did suffer some pain, not only from the burns but also from the anguish of struggling against drowning. See Hall v. State through Department of Highways, supra. Upon remand, the court should make findings with respect to whether, on the undisputed facts of this case, the judgment in favor of Mrs. Clark should include an award for pain and suffering. (b) Shirley Hester. Mrs. Hester received a total of $91,623.40. She too argues that a finding regarding the pain and suffering endured by her husband prior to his death should have been made. Since her situation is precisely the same as Mrs. Joyce Clark’s, we reverse this portion of the case for further consideration by the trial court. In addition, it is also argued that Mrs. Hester’s award for “loss of support” is unduly low. It is felt that she and her children were penalized and the only thing of record that could account for this was the fact that in July, 1965 she and her husband had been informally separated. She argues that though the marriage was “stormy” at the outset, it had developed into a harmonious marriage. We do not doubt that a reconciliation took place, but in putting money values on essentially priceless relationships, no hard and fast rules can apply. Since we feel there has been no abuse of discretion on the part of the trial court, we affirm this part of the award. See, Neal v. Saga Shipping Company, 407 F.2d 481 (5th Cir. 1962); Ohio Barge Line, Inc. v. Oil Transport Company, 280 F.2d 448 (5 Cir. 1960). (c) Esta Faye Bishop. Mrs. Bishop received a total award of $95,919.95. She too argues that, because of Mr. Bishop’s fine character, good job and the happy, and successful marriage they had, she should have been awarded a larger sum for the death of her husband. For the reasons stated above, we affirm the judgment of the trial court. Mrs. Bishop also argues that recovery should have been allowed for the five children in their family. Mr. Bishop had two children by his first marriage but both were grown and not dependent upon him for support at the time of the filing of the claim. Subsequent to filing this claim, Rodrique was decided which, plaintiff contends, by making Louisiana law applicable, gave these two children a claim. A motion was filed to amend the complaint, but it was denied by the trial court as having been filed more than a year after the death and thus beyond the Louisiana prescription date. It is argued that Huson v. Chevron Oil Co. v. Otis Engineering Corporation, 430 F.2d 27 (5th Cir. 1970) compels a different result. We disagree. This case specifically states that “unlike death actions for which Art. 2315 prescribes both the right and time, non-death rights created by Art. 2315 find their time restrictions in Art. 3536.” Because of this, the court held that the one year limit did not apply to non-death rights. Here, we deal with a claim made under Article 2315 for wrongful death. The one year limit thus applies. It is also contended that three minor children of a former marriage of Mrs. Bishop ought to recover. These children, however, were not adopted by Mr. Bishop. We feel compelled to agree with the trial court. “It is true that the Supreme Court of the United States in Levy v. Louisiana, 391 U.S. 68 [88 S.Ct. 1509, 20 L.Ed.2d 436], faulted the Louisiana courts for holding that the word ‘child’ in Article 2315 meant ‘legitimate’ child. The Supreme Court conceded that Louisiana had a broad power to make classifications, but emphasized that it had no right to draw a line which constituted an invidious discrimination against a particular class. It was, added the Court, invidious discrimination to construe the word child so as to deny recovery under Article 2315 by illegitimate children. This cases is not Levy. Here, there is neither a biological nor legal relationship between Mrs. Bishop’s children and the deceased. These children do not fit within the classes of persons to whom Louisiana has accorded a right of action for death of another.” (d) Mrs. Ruth Clark. Mrs. Clark also argues that amendment of her complaint to include her two major children should have been allowed. For the reasons stated above, we disagree. She also contends that the trial court did not properly apply the law to the evidence in awarding pecuniary loss and loss of love, affection and companionship. Again, not finding that this award was clearly erroneous, we affirm its judgment. (e) Lula Mae Taylor. Mrs. Taylor attacks only the adequacy of the award of the trial court to her and her five year old son. She was awarded $140,791.25. As with the other plaintiffs, we do not feel the trial court abused its discretion and therefore, affirm. (f) William Ernest Dickerson. Dickerson argues that the $50,000 award he received for the personal injuries he sustained was inadequate. Though the award may be on the conservative side, we cannot find it to be clearly erroneous. Intervention of Insurance Company of North America Since, as noted above, Crown Petroleum Corporation purchased the drilling rig involved prior to the explosion, it was the statutory employer of most of the employees whose deaths or injuries precipitated this litigation. INA was the insurance carrier for Crown covering all risk to the drilling rig. As stated by the trial court: “The rig was appraised as having a ‘sound insurable value’ of $421,873. After the fire, the rig was sold back to Crown for salvage of $60,000. INA paid on the face amount of its policy $402,000 plus $3,000 sue and labor charges. Deducting the salvage, INA claims a net loss of $345,000. By virtue of its payment of $345,000 to Crown, INA is legally subrogated to all of the rights which its insured had against Continental.” INA thus brought suit against Continental and Duddleston to recover the $345,000. The trial court, however, denied his claim on the grounds of the contributory negligence of the Crown tool pusher, Herrington. Although Crown was not made a defendant in the suits brought by its employees and the representatives of its deceased employees, this holding, INA argues, coupled with the holding that Rodrigue demanded application of the doctrine of contributory negligence, defeated their damage claim against Continental in its entirety. Thus, at issue is whether Rodrigue compels application of this doctrine and if so, whether Herrington was negligent. V. RODRIGUE v. AETNA CASUALTY COMPANY Rodrigue involved the death of two men who were killed while working on artificial island drilling rigs located on the Continental Shelf more than a marine league from the Louisiana coast. Suit was brought under the Death on the High Seas Act and under Louisiana law which, it was argued, was made applicable by the Outer Continental Shelf Lands Act. The District and Appellate Courts held that the Seas Act was the exclusive remedy. The Supreme Court reversed, stating: “The purpose of the Lands Act was to define a body of law applicable to the seabed, the subsoil, and the fixed structures such as those in question hereon the outer Continental Shelf. That this law was to be federal law of the United States, applying state law only as federal law and then only when not inconsistent with applicable federal law, is made clear by the language of the Act. * * * ****** However, for federal law to oust adopted state law federal law must first apply. The court below assumed the Seas Act did apply, since the island was located more than a marine league off the Louisiana coast. But that is not enough to make the Seas Act applicable. The Act redresses only those deaths stemming from wrongful actions or omissions ‘occurring on the high seas,’ and these cases involve a series of events on artificial islands. Moreover, the islands were not erected primarily as navigational aids, and the accidents here bore no relation to any such function. Admiralty jurisdiction has not been construed to extend to accidents on piers, jetties, bridges, or even ramps or railways running into the sea. To the extent that it has been applied to fixed structures completely surrounded by water, this has usually involved collision with a ship and has been explained by the use of the structure solely or principally as a navigational aid. But when the damage is caused by a vessel admittedly in admiralty jurisdiction, the Admiralty Extension Act would now make available the admiralty remedy in any event. The accidents in question here involved no collision with a vessel, and the structures were not navigational aids. They were islands, albeit artificial ones, it was an island albeit an artificial one and the accidents had no more connection with the ordinary stuff of admiralty than do accidents on piers.” We feel Rodrigue compels the application of Louisiana’s doctrine of contributory negligence in this case. Though maritime law utilizes a doctrine of comparative negligence, the events in question here, as in Rodrigue, all occurred on the platform. As the Supreme Court stated, “for federal law to oust adopted state law federal law must first apply.” Since that court has decided that accidents which occur on such platforms have “no more connection with the ordinary stuff of admiralty than do* accidents on piers,” we are compelled to agree that Louisiana law applies. VI. HERRINGTON’S NEGLIGENCE We now turn to the alleged contributory negligence of Crown employee, Herrington. The trial court found Herrington negligent in the following particulars : (a) In failing to properly supervise the work that was being done at the time of the fire and explosion; (b) In failing to cover the four-inch opening when he knew that welding was to be performed over it and when he knew or should have known that condensate was in the tank. For Her-rington to permit welding above the tank without having a plug put in the four-inch hole, as he had told Smith, the Continental pusher, that he, Her-rington, would do, and then not to make sure that it was done is negligence of the grossest kind. INA, however, argues that the trial court’s conclusion that Herrington “knew or should have known” there was condensate in the tank cannot be justified. They note that Smith, Continental's tool-pusher, testified that he told no one that condensate was in the tank. They also contend that the trial court’s exclusion of evidence attempting to prove that Herrington, in fact, thought that only diesel fuel was in the tank was erroneous and, in short, reversible error. Finally, they contend that Herrington was the borrowed servant of Continental and even if he were negligent, that negligence ought to be imputed to Continental. We do not feel that even assuming that Herrington thought that only diesel fuel was in the tank, that that fact alone exonerates him from fault. Smith not only specifically directed him to find a bull plug for the tank, but warned that he wanted no welding done in that area until one was found. Surely, this should have alerted Herrington that at least the possibility of danger existed or, in other words, that something other than diesel fuel may have been in the tank. Further, Herrington was left in charge of the platform. He was being depended upon by Smith to take care of the tank. He assumed this responsibility and regardless of his knowledge of its contents, the fact he failed to carry out this duty was negligence which, we find, proximately contributed to the tragedy that occurred. INA also argues that even if Herring-ton is found to be negligent, this negligence should be imputed to Continental. The trial court, however, found that: “* * * Herrington, the tool pusher for Crown, was in charge at the time of the explosion. He was in the course and scope of his employment with Crown pursuant to Houma’s contract with Continental.” We feel there is sufficient evidence to support this finding. Here the matter rests. Having dealt with the issues raised by the original plaintiffs and defendants in this suit, as well as the intervention of INA, we now turn to the cross claims. VII. CONTINENTAL v. HOUMA WELL SERVICE and AETNA Houma Well Service and its insurer, Aetna, are third party defendants. Continental filed a third party complaint against Houma, seeking indemnification for any sums which Continental might be liable for. The basis of this claim is found in the indemnity provisions of the drilling contract between Continental and Houma, which was signed on August 15, 1966. Houma argues that it should not be held to this agreement since it sold its rig on January 24, 1967 to Crown. It is contended that this sale was, in effect, a novation which relieved Houma of its contractual obligations with Continental. Thus, these obligations were taken over by Crown, all with the knowledge and assent of Continental. The trial court found to the contrary and we ágree: “There is considerable factual dispute as to the relationship of Houma and Crown, but no formal notice of the sale of the rig was ever given to any authorized official of Continental, and never was there any written notice of any kind to Continental, either by Houma or Crown. Nor was there any written assignment of the contract so as to relieve Houma of its liability, Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:

sc_respondent

163

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. MISSOURI PACIFIC RAILROAD CO. v. ELMORE & STAHL. No. 292. Argued March 3, 1964. Decided May 4, 1964. Thurman Arnold argued the cause for petitioner. With him on the briefs were Abe Fortas, Abe Krash and Dennis G. Lyons. John C. North, Jr. argued the cause and filed a brief for respondent. Gregory 8. Prince, William M. Moloney and J. Edgar McDonald filed a brief for the Association of American Railroads, as amicus curiae, urging reversal. Michael C. Bernstein and William Augello, Jr. filed a brief for the United Fresh Fruit & Vegetable Association et al., as amici curiae, urging affirmance. MR. Justice Stewart delivered the opinion of the Court. The question presented in this case is whether a common carrier which has exercised reasonable care and has complied with the instructions of the shipper, is nonetheless liable to the shipper for spoilage in transit of an interstate shipment of perishable commodities, when the carrier fails to prove that the cause of the spoilage was the natural tendency of the commodities to deteriorate. The petitioner is a common carrier and the respondent is a fruit shipper. The respondent sued the petitioner in a Texas court to recover for damage to a carload of honeydew melons shipped from Rio Grande City, Texas, to Chicago, Illinois. In accordance with Texas practice, special issues were submitted to the jury at the close of the evidence. The jury affirmatively found that the melons were in good condition at the time they were turned over to the carrier in Rio Grande City, but that they arrived in damaged condition at their destination in Chicago. The jury also affirmatively found that the petitioner and its connecting carriers performed all required transportation services without negligence. The jury were instructed that “inherent vice” means “any existing defects, diseases, decay or the inherent nature of the commodity which will cause it to deteriorate with a lapse of time.” They answered “No” to a special issue asking whether they found from a preponderance of the evidence that the condition of the melons on arrival in Chicago was due solely to an inherent vice, as so defined, “at the time the melons were received by the carrier at Rio Grande City, Texas, for transportation.” On the basis of these special findings, the trial judge entered judgment for damages against the carrier. The judgment was affirmed by the Texas Court of Civil Appeals, 360 S. W. 2d 839, and by the Texas Supreme Court, upon the ground that, as a matter of federal law, “the carrier may not exonerate itself by showing that all transportation services were performed without negligence but must go further and establish that the loss or damage was caused by one of the four excepted perils recognized at common law.” 368 S. W. 2d 99, 100. The court concluded, in view of the jury’s findings, that, although “[a] common carrier is not responsible for spoilage or decay which is shown to be due entirely to the inherent nature of the goods, . . . petitioner has not established that the damage in this case was caused solely by natural deterioration.” Id., at 103. We granted certiorari, 375 U. S. 811, because of a conflict with an almost contemporaneous decision of the United States Court of Appeals for the Ninth Circuit holding that “in the case of perishable goods the burden upon the carrier is not to prove that the damage resulted from the inherent vice of the goods, but to prove its own compliance with the rules of the tariff and the shipper’s instructions.” For the reasons which follow, we affirm the judgment before us. The parties agree that the liability of a carrier for damage to an interstate shipment is a matter of federal law controlled by federal statutes and decisions. The Carmack Amendment of 1906, § 20 (11) of the Interstate Commerce Act, makes carriers liable “for the full actual loss, damage, or injury . . . caused by” them to property they transport, and declares unlawful and void any contract, regulation, tariff, or other attempted means of limiting this liability. It is settled that this statute has two undisputed effects crucial to the issue in this case: First, the statute codifies the common-law rule that a carrier, though not an absolute insurer, is liable for damage to goods transported by it unless it can show that the damage was caused by “(a) the act of God; (b) the public enemy; (c) the act of the shipper himself; (d) public authority; (e) or the inherent vice or nature of the goods.” Bills of Lading, 52 I. C. C. 671, 679; Chesapeake & O. R. Co. v. Thompson Mfg. Co., 270 U. S. 416, 421-423; Adams Express Co. v. Croninger, 226 U. S. 491, 509; Hall & Long v. Railroad Companies, 13 Wall. 367, 372. Second, the statute declares unlawful and void any “rule, regulation, or other limitation of any character whatsoever” purporting to limit this liability. See Cincinnati & Texas Pac. R. Co. v. Rankin, 241 U. S. 319, 326; Boston & M. R. Co. v. Piper, 246 U. S. 439, 445. Accordingly, under federal law, in an action to recover from a carrier for damage to a shipment, the shipper establishes his prima facie case when he shows delivery in good condition, arrival in damaged condition, and the amount of damages. Thereupon, the burden of proof is upon the carrier to show both that it was free from negligence and that the damage to the cargo was due to one of the excepted causes relieving the carrier of liability. Galveston, H. & S. A. R. Co. v. Wallace, 223 U. S. 481, 492; Chicago & E. I. R. Co. v. Collins Co., 249 U. S. 186, 191; Chesapeake & O. R. Co. v. Thompson Mfg. Co., 270 U. S. 416, 420-423; Thompson v. James McCarrick Co., 205 F. 2d 897, 900. The disposition of this case in the Texas courts was in accordance with these established principles. It is apparent that the jury were unable to determine the cause of the damage to the melons. “[T]he decay of a perishable cargo is not a cause; it is an effect. It may be the result of a number of causes, for some of which, such as the inherent defects of the cargo . . . the carrier is not liable.” But the jury refused to find that the carrier had borne its burden of establishing that the damaged condition of the melons was due solely to “inherent vice/’ as defined in the instruction of the trial judge — including “the inherent nature of the commodity which will cause it to deteriorate with a lapse of time.” The petitioner does not challenge the accuracy of the trial judge’s instruction or the jury’s finding. Its position is simply that if goods are perishable, and the nature of the damage is spoilage, and the jury affirmatively find that the carrier was free from negligence and performed the transportation services as required by the shipper, then the law presumes that the cause of the spoilage was the natural tendency of perishables to deteriorate even though the damage might, in fact, have resulted from other causes, such as the acts of third parties, for which no exception from carrier liability is provided. Consequently, it is argued, the question of “inherent vice” should not have been submitted to the jury, since the carrier in such a case does not bear the affirmative burden of establishing that the damage was caused by the inherent vice exception of the common law. The petitioner appears to recognize that, except in the case of loss arising from injury to livestock in transit— a well-established exception to the general common-law rule based on the peculiar propensity of animals to injure themselves and each other — no distinction was made in the earlier federal cases between perishables and non-perishables. It is said, however, that the “large-scale development, in relatively recent years, of long distance transportation of fresh fruit and vegetables in interstate commerce has led to the evolution” of a new federal rule governing the carrier’s liability for spoilage and decay of perishables, similar to the “livestock rule,” which absolves the carrier from liability upon proof that the carrier has exercised reasonable care, and has complied with the shipper’s instructions. We are aware of no such new rule of federal law. As recently as 1956, in Secretary of Agriculture v. United States, 350 U. S. 162, this Court gave no intimation that the general rule placing on the carrier the affirmative burden of bringing the cause of the damage within one of the specified exceptions no longer applied to cases involving perishable commodities. Nor do Rules 130 and 135 of the Perishable Protective Tariff, relied upon by petitioner, reflect any such change in the federal law, when read in the light of the history underlying their adoption in 1920 by the Interstate Commerce Commission. Rule 130, declaring that a carrier does not “undertake to overcome the inherent tendency of perishable goods to deteriorate or decay,” merely restates the common-law rule that a carrier shall not be held liable in the absence of negligence for damage resulting solely from an inherent vice or defect in the goods. And Rule 135, declaring that the carrier shall not be “liable for any loss or damage that may occur because of the acts of the shipper or because the directions of the shipper were incomplete, inadequate or ill-conceived,” merely reiterates the common-law and bill-of-lading rule that the carrier shall not be liable, in the absence of negligence, for the “act or default of the shipper or owner.” Neither of these rules refers to the presumptions or burdens of proof imposed by the common law, and it is clear that it was not the intention of the Commission in approving these rules to modify or reduce the common-law liability of a carrier. Indeed, the Commission stated at the time these rules were adopted in 1920 that “such declarations can have no controlling effect, for the carrier’s liability for loss or damage is determined by the law. Nothing can be added to or subtracted from the law by limitations or definitions stated in tariffs .... There is the constant risk, therefore, if such declarations are included, of misstating the law and misleading the parties to no good purpose.” Perishable Freight Investigation, 56 I. C. C. 449, 482. Although the Commission concluded for this reason that this type of rule was generally objectionable, id., at 483, it recognized the desirability of giving “some warning to shippers” that a carrier was not liable for the inherent tendency of perishable goods to deteriorate or decay, or for the shipper’s failure to give proper transportation instructions. Ibid. The rules themselves reflect nothing more than this objective. That this was the limited purpose of Rules 130 and 135 is confirmed by the Commission’s action in rejecting an additional proposal made by the carriers at the time these Rules were approved in 1920. The carriers sought to include a provision to be known as Item 20 (d), reading: “Nothing in this tariff shall be construed as relieving carriers from such liability as may rest upon them for loss or damage when same is the result of carriers’ negligence.” See 56 I. C. C., at 481. The Commission emphatically rejected the provision on the express ground that “a carrier may be liable under the common law for loss or damage which is not the result of its negligence, and this item implies that there may be something in the tariff which seeks to limit such liability.” Id., at 483. (Emphasis supplied.) Finally, all else failing, it is argued that as a matter of public policy, the burden ought not to be placed upon the carrier to explain the cause of spoilage, because where perishables are involved, the shipper is peculiarly knowledgeable about the commodity’s condition at and prior to the time of shipment, and is therefore in the best position to explain the cause of the damage. Since this argument amounts to a suggestion that we now carve out an exception to an unquestioned rule of long standing upon which both shippers and carriers rely, and which is reflected in the freight rates set by the carrier, the petitioner must sustain a heavy burden of persuasion. The general rule of carrier liability is based upon the sound premise that the carrier has peculiarly within its knowledge “[a] 11 the facts and circumstances upon which [it] may rely to relieve [it] of [its] duty .... In consequence, the law casts upon [it] the burden of the loss which [it] cannot explain or, explaining, bring within the exceptional case in which [it] is relieved from liability.” Schnell v. The Vallescura, 293 U. S. 296, 304. We are not persuaded that the carrier lacks adequate means to inform itself of the condition of goods at the time it receives them from the shipper, and it cannot be doubted that while the carrier has possession, it is the only one in a position to acquire the knowledge of what actually damaged a shipment entrusted to its care. Affirmed. The complaint contained four independent counts, each stating a separate claim for damage to a different shipment of perishables. The shipment involved here is solely that covered by Count 1, which related to the shipment of 640 crates of honeydew melons in Car ART 35042 from Rio Grande City to Chicago. The jury also refused to find that the damage was caused by acts or omissions of the shipper in the shipping instructions: “Do you find from a preponderance of the evidence that the worsened condition . . . was caused solely by carrying out the instructions for handling this shipment given by the shipper to the carrier, although these instructions, together with the obligations of the defendant uhder the bill of lading and in the performance of all other matters not covered by the bill of lading and the instructions were carried out in a reasonably prudent manner, if you have so found? “Answer ‘yes’ or ‘no-’ “We, the jury, answer: No.” Larry’s Sandwiches, Inc., v. Pacific Electric R. Co., 318 F. 2d 690, 692-693. Cf. Trautmann Bros. Co. v. Missouri Pac. R. Co., 312 F. 2d 102; United States v. Reading Co., 289 F. 2d 7; Atlantic Coast Line R. Co. v. Georgia Packing Co., 164 F. 2d 1. 34 Stat. 595. See 24 Stat. 386, as amended; 49 U. S. C. §20 (11). The meaning of § 20 (11) was reaffirmed by the Cummins Amendment of 1915. 38 Stat. 1196. Clearly recognizing that the phrase “caused by” did not limit the carrier’s liability to cases of negligence, but covered liability without fault except where the specific common-law exceptions could be established, the Cummins Amendment permitted the carrier to require the shipper to file a timely notice of his claim prior to filing a lawsuit in cases where the carrier was without fault but forbade such a condition where the loss resulted from the carrier’s negligence. See Chesapeake & O. R. Co. v. Thompson Mfg. Co., 270 U. S. 416, 422. The proviso forbidding the notice requirement in cases of negligence was repealed in 1930 (46 Stat. 251). Schnell v. The Vallescura, 293 U. S. 296, 305-306. The petitioner does appear to argue, however, that the rule applied by the Texas courts required it to show some specific peculiar defect in this particular shipment of perishables. We find no intimation of such a requirement either in the trial court’s instructions or in the Texas Supreme Court’s opinion. The Texas courts merely placed upon the petitioner the affirmative burden of satisfying the jury that the cause of the spoilage was the natural tendency of perishables to deteriorate over time. “[T]he carrier is responsible without regard to the exercise of due care, even though the damage or loss be occasioned by the independent act of third persons.” Commodity Credit Corp. v. Norton, 167 F. 2d 161, 164-165. See, e. g., North Pennsylvania R. Co. v. Commercial Bank, 123 U. S. 727, 734. With respect to wholly intrastate shipments, this is the rule in a number of States. See, e. g., Southern Pacific Co. v. Itule, 51 Ariz. 25, 74 P. 2d 38. The Court noted that it was “conceded” that §20 (11) of the Interstate Commerce Act codified “the common-law rule making a carrier liable, without proof of negligence, for all damage to the goods transported by it, unless it affirmatively shows that the damage was occasioned by the shipper, acts of God, the public enemy, public authority, or the inherent vice or nature of the commodity.” 350 U. S., at 165-166 n. 9. “RULE 130 — CONDITION OF PERISHABLE GOODS NOT GUARANTEED BY CARRIERS.— “Carriers furnishing protective service as provided herein do not undertake to overcome the inherent tendency of perishable goods to deteriorate or decay, but merely to retard such deterioration or decay insofar as may be accomplished by reasonable protective service, of the kind and extent requested by the shipper, performed without negligence.” General Rules and Regulations of the Interstate Commerce Commission, Perishable Protective Tariff No. 17, I. C. C. No. 34, W. T. Jamison, Agent. “RULE 135 — LIABILITY OF CARRIERS.— “Property accepted for shipment under the terms and conditions of this tariff will be received and transported subject to such directions, only, and to such election by the shipper respecting the character and incidents of the protective service as are provided for herein. The duty of the carrier is to furnish without negligence reasonable protective service of the kind and extent so directed or elected by the shipper and carriers are not liable for any loss or damage that may occur because of the acts of the shipper or because the directions of the shipper were incomplete, inadequate or ill-conceived.” Ibid. The suggestion is made that because the shipper elected to ship under the terms and conditions of the Uniform Domestic Straight Bill of Lading, the carrier’s liability is limited to negligence. But insofar as damage to merchandise in transit is concerned, the bill provides for full “common-law liability.” Section 1 (a) of the bill provides that “[t]he carrier or party in possession of any of the property herein described shall be liable as at common law for any. loss thereof or damage thereto, except as hereinafter provided.” Section 1 (b) provides, in pertinent part, that a carrier shall not be liable for damage “resulting from a defect or vice in the property.” Nothing in the language of this contract even remotely suggests that the carrier does not bear the affirmative burden of proving that the damage was caused by a defect or vice in the property. Indeed, we think it significant that the identical bill of lading is used for the shipment of both perishable and nonperishable commodities, while a quite different contract, the Uniform Live Stock Contract, is employed in the shipment of livestock. See Uniform Freight Classification No. 4, p. 204. Limitations on liability contained in other sections of the bill of lading apply to circumstances not covered by the Carmack Amendment. It could not lawfully be otherwise, for the Amendment codified the common-law 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_oththres

B

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court refuse to rule on the merits of the appeal because of a threshhold issue other than lack of jurisdiction, standing, mootness, failure to state a claim, exhaustion, timeliness, immunity, frivolousness, or nonjusticiable political question?" 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". George DUCKETT and Delores Duckett, Plaintiffs-Appellants, v. Eve SILBERMAN, Defendant-Appellee. No. 31, Docket 77-7164. United States Court of Appeals, Second Circuit. Argued Sept. 15, 1977. Decided Jan. 6, 1978. James I. Meyerson, New York City (Nathaniel R. Jones, Thomas Hoffman, and N. A. A. C. P., New York City, on the brief), for píaintiffs-appellants. Gerald Murray, Jamaica, N. Y., for defendant-appellee. Before MANSFIELD and TIMBERS, Circuit Judges, and DOOLING, District Judge. Hon. John F. Dooling, Senior United States District Judge, Eastern District of New York, sitting by designation. TIMBERS, Circuit Judge: On this appeal from an order entered after a bench trial in the Eastern District of New York, Thomas C. Platt, District Judge, which dismissed an action for declaratory and injunctive relief plus damages brought by plaintiffs who alleged violation of their constitutional and civil rights resulting from defendant’s refusal to sell her house to plaintiffs assertedly because of plaintiffs’ race, the issue is whether the district court was clearly erroneous in finding that defendant refused to sell her house to plaintiffs for reasons unrelated to race and that plaintiffs were not willing to purchase it on the terms specified by defendant. We hold that the district court’s findings of fact were not clearly erroneous. We affirm. I. In October 1974 defendant, Mrs. Eve Silberman, a white citizen, decided to sell her one-family house in the Kew Garden Hills section of Queens, New York. She and her daughter, Mrs. Ravelle Brickman (the “sellers”), engaged a realtor, Peter Smetana, who stated that he could get at least $60,-000 for the house. Subsequently Mrs. Silberman went to live in Wisconsin with her son, whereupon Mrs. Brickman assumed responsibility for selling the house. Thereafter the sellers received several offers ranging from $40,000 to $50,000, all of which were rejected. In February 1975 the asking price was reduced from $60,000 to $55,-000, but no acceptable offers within this range were received. The house remained vacant after Mrs. Silberman left for Wisconsin, until eventually a buyer was found. In late June 1975 plaintiffs Mr. and Mrs. George Duckett, a black couple, conferred with Smetana about purchasing a house. He informed them of the availability of the Silberman house and arranged for them to see it. Smetana pointed out that certain plumbing repairs were necessary. He told the Ducketts that the price had been reduced from $60,000 to $55,000. Early in July, after obtaining an appraisal of their own, the Ducketts offered $42,000 for the house. Smetana promised to inform the sellers of this offer. About two weeks later, having heard nothing from Smetana, the Ducketts asked him if their offer was acceptable. Smetana told them that in response to their offer the asking price had been reduced to $49,000. Smetana testified that Mrs. Brickman had asked him whether the prospective buyers were Jewish. Smetana responded that they were not but that they were black. According to Mrs. Brickman, she told Smetana that it would be nice to have a black family in the neighborhood. On July 26, the day after their conversation with Smetana referred to above, the Ducketts raised their offer to $44,000. Shortly thereafter they made a final offer of $45,000. This offer was communicated to the sellers. At this point Mrs. Brick-man’s brother in Wisconsin (son of Mrs. Silberman) asked Smetana to delay acting on the Ducketts’ offer to see if any better offer could be obtained. On August 19, however, the sellers agreed to accept the Ducketts’ offer of $45,000, this being $10,-000 less than the price originally asked of the Ducketts. Mrs. Brickman testified that the price was reduced upon the understanding that the Ducketts would accept the house “as is”. Gerald Murray, Esq., the sellers’ attorney, was out of the country when the agreement was reached. Upon his return he drafted a contract of sale. On September 2 he discussed the terms of the contract with Thomas Hoffman, Esq., the Ducketts’ attorney. Hoffman requested that the sellers repair the bathroom and kitchen plumbing; that they assume the risk of unintentional damage to the house from the date of the contract to the date of closing; and that the appliances be delivered in working condition. On behalf of the sellers Murray rejected these conditions and told Hoffman that the deal was off. Hoffman asked Murray to discuss the conditions with his clients before cancelling the agreement. Hoffman contacted Murray several times after their September 2 conversation, but Murray had not received a response from his clients. In the meantime the Ducketts instructed Hoffman to withdraw the proposed conditions in order to facilitate the contract signing. On September 19 Hoffman informed Murray by telephone that the Ducketts’ were prepared to sign the contract at the agreed price of $45,000 without the proposed conditions. Murray said that he would discuss this with his clients. Not having heard from Murray after their September 19 conversation, Hoffman called Murray again on October 3 to determine the status of the Ducketts’ offer. Murray informed him that another person was interested in buying the house. Hoffman responded that he was authorized to match any bona fide offer, although he later conceded that at that time he did not have a power of attorney to make such an offer. On the same day Hoffman sent Murray a letter formally withdrawing the conditions and stating that his clients “would like the right of first refusal on any bona fide offer.” On October 9 Murray informed Hoffman that on the previous day, October 8, Mrs. Silberman had entered into a contract to sell the house for $46,000 to a white couple, Mr. and Mrs. Menahem Medel Beer (the “buyers”). This was $1,000 more than the Ducketts had offered to pay. Moreover, since no realtor was involved in the sale to the Beers, the sellers saved $2,000 in brokerage fees. At the signing of the Silberman-Beer contract the buyers requested the sellers to make repairs, as the Ducketts had, but did not insist on them when the sellers objected. For aught that appears in the record, at no time during the SilbermanBeer negotiations did the buyers ask the sellers to guarantee the appliances or to bear the risk of damage to the property between the date of the contract and the date of closing. Nevertheless, although the contract of sale provided that the premises were sold “as is”, it also specified that the appliances were to be in operating condition and that the sale price was to be reduced if the premises were damaged prior to the date of closing. The Silberman-Beer closing took place on April 8, 1976. II. The instant action was commenced October 20, 1975 — eight days after the contract of sale was signed and almost six months before title was closed. The gravamen of the Ducketts’ complaint was that, because of their race, they were denied equal access to and an opportunity to pursue to completion the purchase of the Silberman house. They alleged violations of their constitutional and civil rights, including violations of the Thirteenth Amendment and the Fair Housing Act of 1968, 42 U.S.C. §§ 3601-31 (1970). They sought declaratory and injunctive relief, plus damages. Simultaneously with the commencement of the action, plaintiffs by an order to show cause sought a preliminary injunction, pursuant to Fed.R.Civ.P. 65, to bar the proposed sale of the Silberman house to other persons pending the outcome of the litigation. Defendants cross-moved for summary judgment, pursuant to Fed.R.Civ.P. 56, or for dismissal of the complaint for failure to state a claim on which relief could be granted, pursuant to Fed.R.Civ.P. 12(b)(6). Following a hearing on these motions in November 1975 (at which plaintiffs called as witnesses, realtor Smetana, George Duckett and attorney Hoffman), the court filed an opinion on January 26, 1976 denying plaintiffs’ motion for a preliminary injunction under the settled law of this Circuit and also denying defendant’s cross-motion for summary judgment on the ground that factual issues remained for trial. Thereafter the court decided the case on the merits in an opinion filed March 15, 1977. In addition to the record which was before the court on the earlier motions, the decision on the merits was based on a stipulation of facts and three depositions taken by plaintiffs. The court ordered that the action be dismissed essentially on the grounds that plaintiffs had failed to establish that “there [was] no apparent reason for the refusal of the defendant to [sell] the property to the [plaintiffs] other than [plaintiffs’] race” or that "the [plaintiffs were] willing to purchase the property on the terms specified by the owner” before a new purchaser had agreed to pay more for the property, citing Bush v. Kaim, 297 F.Supp. 151, 162 (N.D.Ohio 1969); Fred v. Kokinokos, 347 F.Supp. 942 (E.D. N.Y.1972). From the order of March 15,1977 directing that the action be dismissed, the instant appeal has been taken. III. We hold that the district court correctly followed the now generally accepted conditions set forth in Bush v. Kaim, supra, 297 F.Supp. at 162; and further that the court was not clearly erroneous in finding that defendant refused to sell her house to plaintiffs for reasons unrelated to race and that plaintiffs were not willing to purchase it on terms specified by defendant. The record amply supports the court’s finding that plaintiffs were unwilling to purchase on the terms specified by defendant. It was important to defendant that the house be sold “as is”. It had been vacant for some time. Numerous repairs were necessary. The kitchen and bathroom plumbing leaked. The garage door was dilapidated. At the time of the negotiations with plaintiffs, defendant was preparing to live in a rest home. Her son and daughter were not well situated to handle repairs. The evidence established that the asking price was reduced from $60,000 to $45,000 upon the condition that the buyer would accept the house “as is”. According to Mrs. Silberman’s daughter, at $45,000 “not a screw was to be changed” for plaintiffs. On appeal plaintiffs point out that two of the other terms proposed by them were included in the contract with the Beers, the ultimate white buyers. True, that contract did provide that the appliances were to be turned over to the buyer in “operating” condition. But it is not clear that this amounted to the “guarantee” of appliances requested by plaintiffs. Nor was the Silberman-Beers clause providing for reduction of the purchase price if the premises should be damaged prior to closing clearly what plaintiffs had requested. It referred only to immaterial damage which might occur between the date of the contract and the date of the closing. Plaintiffs had requested that defendant bear the risk of any unintentional damage to the house prior to the closing. In view of plaintiffs’ injection of conditions despite defendant’s reduction of the sale price and her specification of terms, the record supports the finding that as of September 2 plaintiffs were not willing to purchase on defendant’s terms. Plaintiffs argue that when their conditions were withdrawn on September 19 defendant was under a duty to renew negotiations with plaintiffs. We disagree. Under the circumstances it would be unreasonable to hold that defendant was precluded from seeking another buyer after September 2. The house was vacant and, as such, a substantial liability. It was reasonable for defendant to have had second thoughts about a sale price of $45,000. At the outset the realtor had told her that he could get at least $60,000 for the house. At one point she received an offer of $50,000, but rejected it. In view of plaintiffs’ initial refusal to take the house “as is” at $45,000 it was reasonable for defendant to assume that plaintiffs would not make a better offer and still accept the house in its then condition. Plaintiffs’ injection of conditions contrary to defendant’s offer amounted to nothing more than a counteroffer. Defendant was under no duty to accept it. This does not end our inquiry. We turn to the other branch of the district court’s finding, namely, that plaintiffs failed to establish that there was no apparent reason for the refusal of defendant to sell to plaintiffs other than the latter’s race. At the outset, it is undisputed that there was no evidence that race actually was considered a factor by the seller. In the only relevant testimony, Smetana, the realtor, stated that Mrs. Brickman had asked if the Ducketts were Jewish; and Mrs. Brickman stated that Smetana volunteered the information that the Ducketts were black. This certainly is a far cry from establishing that defendant’s refusal to sell to plaintiffs was race-related. Moreover, in view of our holding above, it follows that we believe there was substantial evidence to support the finding that defendant acted for reasons unrelated to race in selling to the Beers rather than to plaintiffs. Significant among such evidence was defendant’s lowering of the offering price after learning of plaintiffs’ race and Beer’s firm offer of a substantially higher price. As pointed out above, even if we were to accept arguendo plaintiffs’ contention that all obstacles to a sale to them at $45,000 had been withdrawn on September 19 before the new buyer was found, the record justifies an inference that by that time, because of plaintiffs’ addition (and withdrawal) of conditions, defendant was having doubts about whether plaintiffs would go through with the transaction and decided to look for a better offer. And, of crucial significance, where credibility as to the September 19 withdrawal is an important factor, we decline to second-guess the findings of the trial judge in a case which is essentially factual. He was there. We were not. Affirmed. . Apparently no judgment was ever entered here, although the court’s decision of March 15, 1977 expressly so directed. We recently have indicated our displeasure with such practice. Mallis v. Federal Deposit Ins. Corp., 568 F.2d 824, 827 n. 4 (2 Cir. 1977), cert. dismissed, - U.S. - (1978). We renew our criticism here. Indeed, the appendix furnished to us in the instant case does not comply with F.R.A.P. 30. Aside from omitting the unfiled judgment, it does not contain the complaint despite the heavy reliance upon its allegations in the court’s opinions and in the briefs on appeal. We think this Court deserves better of counsel. . On this branch of the district court’s finding, we have carefully considered such cases as Jones v. Alfred H. Mayer, 392 U.S. 409 (1968); Burris v. Wilkins, 544 F.2d 891 (5 Cir. 1977); Moore v. Townsend, 525 F.2d 482 (7 Cir. 1975); Williams v. Mathews Co., 499 F.2d 819 (8 Cir.), cert. denied, 419 U.S. 1021, 1027 (1974); United States v. Pelzer Realty, 484 F.2d 438 (5 Cir. 1973), cert. denied, 416 U.S. 936 (1974). Upon the facts of the instant case, however, and especially in the light of our essential holding that the district court’s findings of fact were not clearly erroneous, we believe that the cases cited above are inapposite. Question: Did the court refuse to rule on the merits of the appeal because of a threshhold issue other than lack of jurisdiction, standing, mootness, failure to state a claim, exhaustion, timeliness, immunity, frivolousness, or nonjusticiable political question? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_district

B

What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". UNITED STATES of America, Petitioner-Plaintiff-Appellee, v. 63.04 ACRES OF LAND, MORE OR LESS, SITUATE AT LIDO BEACH, NEAR CITY OF LONG BEACH, TOWN OF HEMPSTEAD, COUNTY OF NASSAU, State of NEW YORK, and Irving A. Nemerov et al., Defendants-Appellants. No. 251, Docket 24886. United States Court of Appeals Second Circuit. Argued March 14, 1958. Decided June 24, 1958. Paul Windels, Brooklyn, N. Y., for defendants-appellants. (On the brief: Nathan D. Shapiro, Brooklyn, N. Y., for Bessie N. Shapiro, Samuel Kresberg and Benjamin Kresberg; Jacob Patent, Brooklyn, N. Y., for Gilbert D. Paisner et al.; Leonard R. Fisher, New York City, for Irving A. Nemerov; Isidor E. Leinwand, New York City, for Sam H. Lipson, Trustee in Bankruptcy for William T. Nemerov and Joseph Margolis.) Harry T. Dolan, Sp. Asst, to Atty. Gen., for petitioner-plaintiff-appellee. (On the brief: Perry W. Morton, Asst. Atty. Gen., Roger P. Marquis and Elizabeth Dudley, Attorneys, Department of Justice, Washington, D. C.) Before CLARK, Chief Judge, HINCKS, Circuit Judge, and BRENNAN, District Judge. PER CURIAM. Shortly after the remand of this condemnation case as ordered in our earlier opinion, 245 F.2d 140, Chief Judge Inch, who had served as trier at the first trial, assigned the case for prompt hearing and announced that he construed the appellate order to require only a reopening of the judgment and of the record already made to permit of the introduction of evidence of the September 1954 sale, the exclusion of which had been the only ground of reversal. We think this interpretation not unreasonable: it is consistent with procedure sanctioned when a trial judge grants a “motion for a new trial” under Rule 59(a), Federal Rules of Civil Procedure. Even though the opinion several times spoke of a “new trial” and remanded “for a new trial on the valuation of the condemned property,” it also noted that the “new trial” was necessary only because of the exclusion of the September sale and thus might be deemed to imply that the proceedings on remand need go no further than to expand the record by proofs as to the September sale and a redetermination of the value on the record thus enlarged. This interpretation was obviously in harmony with considerations of expedition and of economy in judicial administration. Cf. United States v. City of New York, 2 Cir., 165 F.2d 526. And the practice which it envisaged had previously been utilized in this circuit. United States v. Brooklyn Union Gas Co., 168 F.2d 393 ; United States v. 25.4 Acres of Land, D. C., 83 F.Supp. 433; Gulbenkian v. Gulbenkian, 147 F.2d 173; Riordan v. Ferguson, 147 F.2d 983. If the defendants, when first informed of the Judge’s ruling, had promptly applied to the panel of this court which had handed down the former opinion for a clarification, cf. National Comics Publications v. Fawcett Publications, 2 Cir., 198 F.2d 927, it is highly likely, especially in view of the cases just above cited, that Judge Inch’s interpretation of the mandate would have been approved. In view of all the foregoing, we dispose of the defendants’ principal ground of appeal by sustaining Judge Inch’s action in limiting the scope of the proceedings on remand. Other grounds of appeal are still less tenable. In view of the limited scope of the proceedings, we think the celerity with which the hearing was scheduled and held was not improper. The denial of the motion for trial by jury first made after the remand was not erroneous. And we find no error in denying on July 3, 1957 the other requests in the defendants’ motion of June 28, 1957. Affirmed. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:

songer_casetyp1_9-3

D

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "miscellaneous". UNITED STATES of America, Appellee, v. Thomas Robert HOSMER, Defendant, Appellant. No. 7639. United States Court of Appeals, First Circuit. Dec. 4, 1970. U. Charles Remmel, II, Portland, Me., by appointment of the Court, with whom Thompson, Willard, Hewes & Smith, Portland, Me., was on brief for defendant-appellant. Roy R. Bartlett, Associate Gen. Counsel, Selective Service System, with whom Clarence R. Harris, Asst. Gen. Counsel, Selective Service System, Washington, D. C., and Peter Mills, U. S. Atty., Portland, Me., were on brief, for appellee. Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges. McENTEE, Circuit Judge. Defendant was convicted of refusing to submit to induction into the armed forces of the United States in violation of 50 U.S.C. App. § 462(a) (1964). He had duly registered with his local draft board in Kennebunk, Maine, on August 29, 1961, shortly after his eighteenth birthday. From January 1964 until August 1968 he held a student deferment, except for a brief period during the winter of 1964-65 when he was reclassified I-A apparently because he had dropped out of college. On September 30, 1968, the local draft board ordered him to report for induction on October 23. But upon learning that he had obtained employment as a teacher at the Hampshire Country School in Rindge, New Hampshire, the board postponed his induction until June 1, 1969. On May 6,1969, defendant was ordered to report for induction on June 19. Three days later he wrote to the local board claiming a recurrence of a past knee injury, which he substantiated by letters from two doctors. On June 11 the board arranged for defendant’s knee to be examined by an orthopedic specialist in Portland, Maine. Subsequent to that examination, he “fled” to Canada for two weeks and failed to report for induction on June 19. On June 30 he appeared at the local board office and informed the clerk that he had “evaded the draft.” Upon his request for a new induction date, he was ordered to report on August 27. Defendant was notified on July 1 that the Portland physician had found him physically qualified to serve in the armed forces, and on August 26 he wrote to the Surgeon General’s office in Hampton, Virginia, complaining that he had not been properly examined. He reported for induction on August 27, was found qualified but, after all of the proper warnings, refused to step forward. On September 17 defendant was interviewed by a Special Agent of the Federal Bureau of Investigation. He was arrested on October 14, prior to which time he had consulted a Portland and also a Boston attorney. On October 24 he wrote the local board, “I believe that I am a Conscientious Objector.” The board promptly mailed him SSS Form 150, the “Special Form for Conscientious Objectors,” which he filled out and returned. In that form defendant stated that, although he practiced no religion at all, his beliefs in non-violence were “sincere and meaningful” so as to meet the test, as explained to him by his lawyer, laid down in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). He took the position that he had not been a conscientious objector prior to his arrest, explaining “My beliefs were dormant as far as having the depth of conviction I now feel which probably were (sic) catalyzed into deep conviction as a result of my refusal to be inducted and subsequent indictment.” On December 29, the local board granted defendant a “courtesy appearance” but denied a request by his Portland attorney to be present. On January 6 the board wrote the defendant as follows: “As a result of a courtesy appearance on December 29, 1969, and having carefully examined all evidence in support of your claim of conscientious objector, the local board determined not to reopen your classification, inasmuch as there have been no circumstances beyond your control which arose since you were mailed an order to report for induction on September 30, 1968.” Defendant’s principal argument can be summarized as follows: (1) Upon his submission of the SSS Form 150, the local board was required to reopen his classification; or, alternatively, even if not required to do so, the board did reopen his classification de facto at his “courtesy appearance.” (2) The reopening of his classification cancelled his Order to Report for Induction. 32 C.F.R. § 1625.14 (Supp.1970). (3) He cannot be convicted of refusing to submit to an induction order that has been cancelled. Assuming, for the moment, that the first two points of this argument are correct, the third clearly is not. Defendant does not contend that the induction order was defective at the time he refused to submit to it. On the contrary, he claims that his conscientious objection “crystallized” after that date. Cf. United States v. Stoppelman, 406 F.2d 127, 131 n. 7 (1st Cir.), cert. denied, 395 U.S. 981, 89 S.Ct. 2141, 23 L.Ed.2d 769 (1969); United States v. Stafford, 389 F.2d 215, 218 (2d Cir. 1968). As we said in United States v. Powers, 413 F.2d 834 (1st Cir.), cert. denied, 396 U.S. 923, 90 S.Ct. 923, 24 L.Ed.2d 205 (1969), “once a valid order to report for induction has been wilfully disobeyed, a crime has been committed, and ‘[w]hat occurs after refusal * * * is not relevant to that issue.’ ” Id. at 838. Accord, United States v. Stoppelman, supra, at 406 F.2d 131-133; Palmer v. United States, 401 F.2d 226 (9th Cir. 1968); United States v. Stafford, supra (by implication); Davis v. United States, 374 F.2d 1, 4 (5th Cir. 1967). Thus, even if defendant is correct that his induction order should have been cancelled in January 1970, he would still be guilty of refusal to submit to induction in August 1969 when his induction order was admittedly valid. Moreover, we conclude that defendant’s contention that his induction order should have been cancelled in January 1970 is also incorrect. Because defendant has raised some important questions about the meaning of Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970), and other recent court cases, we will review this issue briefly. In doing so, we conclude that defendant’s local board acted properly in every respect. Defendant bases his contention that the local board was required to reopen his classification on Mulloy v. United States, supra. In that case the Supreme Court held that a local board is required to reopen a registrant’s classification if he presents a prima facie case for reclassification which is not “plainly incredible, or * * * conclusively refuted by other information in the applicant’s file.” Id. at 418 n. 7, 90 S.Ct. at 1772. The government contends that the Mulloy ruling does not apply to a request for reclassification made after the registrant’s induction order has been issued, citing Paszel v. Laird, 426 F.2d 1169 (2d Cir. 1970). We note that most courts that have been faced with this issue have not followed Paszel, concluding instead that a modified version of the Mulloy rule applies during the period after the induction order has been issued but prior to the induction date itself. See note 3 supra. Nevertheless, we see no indication in Mulloy that we should overturn the well settled rule that a registrant’s right to have his classification reconsidered ceases after he refuses to submit to induction. See United States v. Powers, supra, and cases cited with it. In view of our conclusion that defendant’s claim, even if proved, would not constitute a defense to the crime charged, we see no need to reach the other arguments he has raised. Affirmed. . A “courtesy appearance-’ is authorized by 32 C.F.R. § 1625.1(c) (Supp.1970) and is to be distinguished from a “personal appearance” to which defendant would have been entitled had the board decided to reopen his classification. See 32 C.F.R. §§ 1625.13 and 1624.1 (Supp. 1970). . The board applied the standard set out in 32 C.F.R. § 1625.2, which provides that “the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction * * * unless the local board first specifically finds there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.” . Relying on 32 C.F.R. § 1625.2 (Supp. 1970), quoted note 2 supra, Paszel held that, after the induction order has been issued, the local board cannot reopen a classification until it has reviewed the entire case on its merits. Under the Paszel rule, a decision to reopen would require the same quantum of evidence as a decision to reclassify. Id. at 1174. This holding would appear to conflict with dictum in Mulloy v. United States, supra, in which the Supreme Court stressed that “evaluative” issues, such as registrant’s demeanor and sincerity, should be reviewed after his case has been reopened so that he can be accorded the rights of personal appearance and appeal, 32 C.F.R. § 1625.13 (Supp.1970). Id. 398 U.S. at 416, 417, 90 S.Ct. 1766. The requirement that the board must find a “change in circumstances” before reopening a post-induction order case (32 C.F.R. § 1625.2) and the Mulloy dictum were reconciled by the Tenth Circuit in United States ex rel. Brown v. Resor, 429 F.2d 1340 (10th Cir. 1970). See also Lubben v. Selective Service System, Local Board No. 27, 316 F.Supp. 230 (D.Mass.1970); Lane v. Local Board No. 17, 315 F.Supp. 1355 (D.Mass.1970). Question: What is the specific issue in the case within the general category of "miscellaneous"? A. miscellaneous interstate conflict B. other federalism issue (only code as issue if opinion explicitly discusses federalism as an important issue - or if opinion explicity discusses conflict of state power vs federal power) C. attorneys (disbarment; etc) D. selective service or draft issues (which do not include 1st amendment challenges) E. challenge to authority of magistrates, special masters, etc. F. challenge to authority of bankruptcy judge or referees in bankruptcy G. Indian law - criminal verdict challenged due to interpretation of tribal statutes or other indian law H. Indian law - commercial disputes based on interpretation of Indian treaties or law (includes disputes over mineral rights) I. Indian law - Indian claims acts and disputes over real property (includes Alaska Native Claims Act) J. Indian law - federal regulation of Indian land and affairs K. Indian law - state/local authority over Indian land and affairs L. Indian law - tribal regulation of economic activities (includes tribal taxation) M. other Indian law N. international law O. immigration (except civil rights claims of immigrants and aliens) P. other Q. not ascertained Answer:

songer_respond2_7_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 "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the race or ethnic identity of this litigant as identified in the opinion. Names may be used to classify a person as hispanic if there is little ambiguity. All aliens are coded as "not ascertained". Gene ALBRIGHT and Bettie J. Page, Plaintiffs-Appellees, v. The GOOD SHEPHERD HOSPITAL, dba Good Shepherd Medical Center and The Board of Trustees of the Good Shepherd Hospital, Defendants-Appellants. No. 89-2279 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 16, 1990. John M. Smith, Harbour, Smith, Harris & Cammack, Longview, Tex., Erin E. Lunee-ford, Wood, Luckinger & Epstein, Houston, Tex., Hugh M. Smith, Glen Rose, Tex., for defendants-appellants. Larry R. Daves, San Antonio, Tex., for plaintiffs-appellees. Before REAVLEY, KING and JOHNSON, Circuit Judges. PER CURIAM: Defendants The Good Shepherd Hospital and its Board of Trustees (collectively “Good Shepherd”) appeal a judgment awarding attorney’s fees and expenses to plaintiffs Gene Albright and Bettie J. Page under 42 U.S.C. § 1988. We vacate the award and remand. I. Albright initiated this case by suing Good Shepherd under 42 U.S.C. § 1983 for damages resulting from his termination as Personnel Director of Good Shepherd and his subsequent arrest by the Longview Police Department for distributing leaflets on hospital property. His claims were consolidated with those of Page, who sought damages under state law, Title VII, and 42 U.S.C. § 1981 for her alleged wrongful termination from Good Shepherd. A jury returned a verdict and an award of damages for each plaintiff. Additionally, the district court found that Good Shepherd had discriminated against Page on the basis of race, in violation of section 1981 and Title VII, and awarded back pay, reinstatement, and accommodations at work for a shoulder injury. Albright v. Longview Police Dep't, 884 F.2d 835, 837-38 (5th Cir.1989). The district court subsequently awarded Page and Albright, who were represented by the same attorney, $74,012.95 in attorney’s fees and $2,342.01 in expenses, as prevailing parties under 42 U.S.C. § 1988. The award did not delineate which portion was attributable to each plaintiff’s case. On appeal of the merits, a Fifth Circuit panel reversed the judgment for Albright’s section 1983 claim and remanded for consideration of Albright’s false arrest claim under state tort law. Id. at 841-43. However, the panel affirmed the judgment for Page on her state and federal claims. Id. at 844. Good Shepherd now appeals the award of attorney’s fees and costs, pointing out that to recover attorney’s fees under section 1988 one must prevail under an applicable federal statute. Since Albright’s section 1983 claim was reversed, Good Shepherd contends that he is no longer entitled to attorney’s fees and that the award must be vacated and remanded for apportionment. We agree. II. The Civil Rights Attorney’s Fee Statute provides in relevant part: In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. 42 U.S.C. § 1988. To obtain attorney’s fees under this statute, a litigant must be a “prevailing party.” Davis v. West Community Hosp., 755 F.2d 455, 468 (5th Cir.1985). Although qualification is not contingent upon prevailing on all claims, see Hensley v. Eckerhart, 461 U.S. 424, 434-35, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d 40 (1983), a litigant must “receive at least some relief on the merits of his claim before he can be said to prevail,” Hewitt v. Helms, 482 U.S. 755, 760, 107 S.Ct. 2672, 2675, 96 L.Ed.2d 654 (1987). Albright clearly does not meet this requirement. Judgment on his federal claim has been reversed and therefore cannot support the award. See Harris v. Pirch, 677 F.2d 681, 689 (8th Cir.1982). His only possible basis for recovery is state tort law, which cannot provide grounds for a section 1988 attorney’s fee award when all federal claims have been rejected on the merits. McDonald v. Doe, 748 F.2d 1055, 1057 (5th Cir.1984); cf. Heath v. Brown, 807 F.2d 1229, 1233 (5th Cir.1987) (pendent state law claims can support the recovery of attorney’s fees under section 1988 when the court has avoided a substantial constitutional claim in the ease). Accordingly, the attorney’s fee award must be adjusted to reflect the fact that Page was the sole plaintiff to prevail under federal law. Plaintiffs seek to avoid apportionment by pointing out that the Supreme Court does not require a fee reduction merely because all claims are not successful. See Hensley, 461 U.S. at 435, 103 S.Ct. at 1940. They then claim that the entire award should be affirmed on the ground that their claims “involve[d] a common core of facts.” Id. Plaintiffs seek to establish factual commonality by pointing to (1) the joinder of the two cases; and (2) Albright’s assertion that he was fired for assisting a group of nursing supervisors, including Page, in filing grievances against Good Shepherd regarding racial discrimination. At the outset, we point out that fee entitlement for unsuccessful claims does not rest solely upon a commonality of facts or legal theories. Rather, the relevant inquiry is the success achieved in a lawsuit and the reasonableness of time expended in relation to that success. Plaintiffs obtaining excellent results are entitled to recover full compensation, even if they do not prevail on every contention. Id. However, those achieving limited or partial success may recover only that which is reasonable in light of the relief obtained. Id. at 436, 103 S.Ct. at 1941. In a case involving limited success, such as this, joinder alone cannot support full recovery of attorney’s fees. Additionally, while Albright’s assistance regarding grievance filings may indicate some overlap between the cases, it cannot justify recovery of all fees incurred in pursuit of his claims. Evidence of Albright’s grievance activity may well have added fuel to Page’s section 1983 and racial discrimination claims. However, that was not the sum total of Albright’s case; his claim regarding the arrest represented a substantial portion. The arrest claim was unrelated to those of Page and did not aid her victory. Counsel is therefore not entitled to recover for services on that claim. Id. at 435, 103 S.Ct. at 1940. The difficulty here is determining which costs may be charged fairly to counsel’s pursuit of the Page case. In the hearing on attorney’s fees, plaintiffs’ counsel stated that the proof, discovery, and research regarding Page’s and Albright’s claims overlapped to the point of being unseverable. However, to serve the overriding goal of compensating counsel in light of the “results obtained,” the fees must be apportioned. Id. at 434-36, 103 S.Ct. at 1939-41. The manner of determining the award and its ultimate amount are committed to the discretion of the district court. See id. at 436-37, 103 S.Ct. at 1941; Gilbert v. City of Little Rock, Ark., 867 F.2d 1063, 1066-67 (8th Cir.) (sustaining fifteen percent reduction for fee award due to the fact that only four of thirteen original plaintiffs obtained relief), cert. denied, — U.S. -, 110 S.Ct. 57, 107 L.Ed.2d 25 (1989). We therefore VACATE the award and REMAND for proceedings not inconsistent with this opinion. . The record indicates that the court upheld Page's section 1983 claim. However, it is unclear whether she recovered any damages on this claim. . Although Hensley was decided with regard to a single plaintiff, we see no reason for adopting a different rule in cases involving more than one plaintiff. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the race or ethnic identity of this litigant as identified in the opinion? A. not ascertained B. caucasian - specific indication in opinion C. black - specific indication in opinion D. native american - specific indication in opinion E. native american - assumed from name F. asian - specific indication in opinion G. asian - assumed from name H. hispanic - specific indication in opinion I. hispanic - assumed from name J. other Answer:

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 LINDH v. MURPHY, WARDEN No. 96-6298. Argued April 14, 1997 Decided June 23, 1997 Souter, J., delivered the opinion of the Court, in which Stevens, O’Connor, Ginsburg, and Breyer, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which Scalia, Kennedy, and Thomas, JJ., joined, post, p. 337. James S. Liebman argued the cause for petitioner. With him on the briefs were Richard C. Neuhoff and Keith A. Findley. Sally L. Wellman, Assistant Attorney General of Wisconsin, argued the cause for respondent. With her on the brief was James E. Doyle, Attorney General Judy Clarke and Lisa Kemler filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, and Simon B. Karas and Jon C. Walden, Assistant Attorneys General, Christine 0. Gregoire, Attorney General of Washington, and Paul D. Weisser and John J. Samson, Assistant Attorneys General, John M. Bailey, Chief States Attorney of Connecticut, and Gus F. Diaz, Acting Attorney General of Guam, joined by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E. Lungren of California, Gale A. Norton of Colorado, M. Jane Brady of Delaware, Robert Butterworth of Florida, Michael J. Bowers of Georgia, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, James E. Ryan of Illinois, Jeffrey A. Modisett of Indiana, Carla J. Stovall of Kansas, A. B. Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Hubert Humphrey III of Minnesota, Mike Moore of Mississippi, Jeremiah W. Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Peter Verniero of New Jersey, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, Drew Edmondson of Oklahoma, D. Michael Fisher of Pennsylvania, Jeffrey B. Pine of Rhode Island, Charles M. Con-don of South Carolina, Mark Barnett of South Dakota, John Knox Walkup of Tennessee, Jan Graham of Utah, James B. Gilmore III of Virginia, Julio A. Brady of the Virgin Islands, and William U. Hill of Wyoming; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; and for the Washington Legal Foundation by Daniel J. Popeo, Paul D. Kamenar, and Ronald D. Maines. Justice Souter delivered the opinion of the Court. The Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214, signed into law on April 24, 1996, enacted the present 28 U. S. C. § 2254(d) (1994 ed., Supp. II). The issue in this case is whether that new section of the statute dealing with petitions for habeas corpus governs applications in noncapital cases that were already pending when the Act was passed. We hold that it does not. W Wisconsin tried Aaron Lindh on multiple charges of murder and attempted murder. In response to his insanity defense, the State called a psychiatrist who had spoken with Lindh immediately after the killings but had later, and before Lindh’s trial, come under criminal investigation by the State for sexual exploitation of some of his patients. Although, at trial, Lindh tried to ask the psychiatrist about that investigation, hoping to suggest the witness’s interest in currying favor with the State, the trial court barred the questioning. Lindh was convicted. On direct appeal, Lindh claimed a violation of the Confrontation Clause of the National Constitution, but despite the denial of relief, Lindh sought neither review in this Court nor state collateral review. Instead, on July 9,1992, he filed a habeas corpus application in the United States District Court, in which he again argued his Confrontation Clause claim. When relief was denied in October 1995, Lindh promptly appealed to the Seventh Circuit. Shortly after oral argument there, however, the federal habeas statute was amended, and the Seventh Circuit ordered Lindh’s case be reheard en bane to see whether the new statute applied to Lindh and, if so, how his case should be treated. The Court of Appeals held that the Act’s amendments to chapter 153 of Title 28 generally did apply to cases pending on the date of enactment. 96 F. 3d 856, 863 (1996). Since the court did not read the statute as itself answering the questions whether or how the newly amended version of § 2254(d) would apply to pending applications like Lindh’s, id., at 861-863, it turned to this Court’s recent decision in Landgraf v. USI Film Products, 511 U. S. 244 (1994). Landgraf held that, where a statute did not clearly mandate an application with retroactive effect, a court had to determine whether applying it as its terms ostensibly indicated would have genuinely retroactive effect; if so, the judicial presumption against retroactivity would bar its application. The Seventh Circuit concluded that applying the new § 2254(d) to cases already pending would not have genuinely retroactive effect because it would not attach “new legal consequences” to events preceding enactment, and the court held the statute applicable to Lindh’s case. 96 F. 3d, at 863-867 (citing Landgraf, supra, at 270). On the authority of the new statute, the court then denied relief on the merits. 96 F. 3d, at 868-877. The Seventh Circuit’s decision that the new version of § 2254(d) applies to pending, chapter 153 cases conflicts with the holdings of Edens v. Hannigan, 87 F. 3d 1109, 1112, n. 1 (CA10 1996), Boria v. Keane, 90 F. 3d 36, 37-38 (CA2 1996) (per curiam), and Jeffries v. Wood, 114 F. 3d 1484 (CA9 .1997). In accord with the Seventh Circuit is the § 2253(c) case of Hunter v. United States, 101 F. 3d 1565, 1568-1573 (CA11 1996) (en banc) (relying on Lindh to hold certain amendments to chapter 153 applicable to pending cases). We granted certiorari limited to the question whether the new § 2254(d) applies to Lindh’s case, 519 U. S. 1074 (1996), and we now reverse. II Before getting to the statute itself, we have to address Wisconsin’s argument that whenever a new statute on its face could apply to the litigation of events that occurred before it was enacted, there are only two alternative sources of rules to determine its ultimate temporal reach: either an “express command” from Congress or application of our Landgraf default rule. In Landgraf, we said: “When a case implicates a federal statute enacted after the events in suit, the court’s first task is to determine whether Congress has expressly prescribed the statute’s proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect.... If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.” Landgraf, supra, at 280. Wisconsin insists that this language means that, in the absence of an express command regarding temporal reach, this Court must determine that temporal reach for itself by applying its judicial default rule governing retroactivity, to the exclusion of all other standards of statutory interpretation. Brief for Respondent 9-14; see also Hunter v. United States, supra, at 1569 (suggesting that Landgraf may have announced a general clear-statement rule regarding the temporal reach of statutes). Wisconsin’s reading, however, ignores context. The language quoted disposed of the question whether the practice of applying the law as it stands at the time of decision represented a retreat from the occasionally conflicting position that retroactivity in the application of new statutes is disfavored. The answer given was no, and the presumption against retroactivity was reaffirmed in the traditional rule requiring retroactive application to be supported by a clear statement. Landgraf thus referred to “express eom-mand[s],” “unambiguous directive[s],” and the like where it sought to reaffirm that clear-statement rule, but only there. See Landgraf v. USI Film Products, 511 U. S., at 263 (“[U]n-ambiguous directive” is necessary to authorize “retroactive application”); id., at 264 (statutes “will not be construed to have retroactive effect unless their language requires this result” (internal quotation marks and citation omitted)); id., at 272-273 (“Requiring clear intent assures that Congress itself has affirmatively considered the potential unfairness of retroactive application”); id., at 286 (finding “no clear evidence of congressional intent” to rebut the “presumption against statutory retroactivity”); id., at 286 (SCALIA, J., concurring in judgment) (agreeing that “a legislative enactment affecting substantive rights does not apply retroactively absent clear statement to the contrary”). In determining whether a statute’s terms would produce a retroactive effect, however, and in determining a statute's temporal reach generally, our normal rules of construction apply. Although Landgrafs default rule would deny application when a retroactive effect would otherwise result, other construction rules may apply to remove even the possibility of retroactivity (as by rendering the statutory provision wholly inapplicable to a particular case), as Lindh argues the recognition of a negative implication would do here. In sum, if the application of a term would be retroactive as to Lindh, the term will not be applied, even if, in the absence of retroactive effect, we might find the term applicable; if it would be prospective, the particular degree of prospectivity intended in the Act will be identified in the normal course in order to determine whether the term does apply to Lindh. III The statute reveals Congress’s intent to apply the amendments to chapter 153 only to such cases as were filed after the statute’s enactment (except where chapter 154 otherwise makes select provisions of chapter 153 applicable to pending cases). Title I of the Act stands more or less independent of the Act’s other titles in providing for the revision of federal habeas practice and does two main things. First, in §§ 101-106, it amends § 2244 and §§ 2253-2255 of chapter 153 of Title 28 of the United States Code, governing all habeas corpus proceedings in the federal courts. 110 Stat. 1217— 1221. Then, for habeas proceedings against a State in capital cases, § 107 creates an entirely new chapter 154 with special rules favorable to the state party, but applicable only if the State meets certain conditions, including provision for appointment of postconviction counsel in state proceedings. 110 Stat. 1221-1226. In § 107(c), the Act provides that “Chapter 154... shall apply to cases pending on or after the date of enactment of this Act.” 110 Stat. 1226. We read this provision of § 107(c), expressly applying chapter 154 to all cases pending at enactment, as indicating implicitly that the amendments to chapter 153 were assumed and meant to apply to the general run of habeas cases only when those cases had been filed after the date of the Act. The significance of this provision for application to pending cases becomes apparent when one realizes that when chapter 154 is applicable, it will have substantive as well as purely procedural effects. If chapter 154 were merely procedural in a strict sense (say, setting deadlines for filing and disposition, see 28 U. S. C. §§ 2263, 2266 (1994 ed., Supp. II); 110 Stat. 1223, 1224-1226), the natural expectation would be that it would apply to pending cases. Landgraf, supra, at 275 (noting that procedural changes “may often be applied in suits arising before their enactment without raising concerns about retroactivity”). But chapter 154 does more, for in its revisions of prior law to change standards of proof and persuasion in a way favorable to a State, the statute goes beyond “mere” procedure to affect substantive entitlement to relief. See 28 U. S. C. § 2264(b) (1994 ed., Supp. II); 110 Stat. 1223 (incorporating revised legal standard of new § 2254(d)). Landgraf did not speak to the rules for determining the temporal reach of such a statute (having no need to do so). While the statute might not have a true retroactive effect, . neither was it clearly “procedural” so as to fall within the Court’s express (albeit qualified) approval of applying such statutes to pending cases. Since Landgrafwzs the Court’s latest word on the subject when the Act was passed, Congress could have taken the opinion’s cautious statement about procedural statutes and its silence about the kind of provision exemplified by the new § 2254(d) as counseling the wisdom of being explicit if it wanted such a provision to be applied to cases already pending. While the terms of § 107(c) may not amount to the clear statement required for a mandate to apply a statute in the disfavored retroactive way, they do serve to make it clear as a general matter that chapter 154 applies to pending cases when its terms fit those eases at the particular procedural points they have reached. (As to that, of course, there may well be difficult issues, and it may be that application of Landgrafs default rule will be necessary to settle some of them.) The next point that is significant for our purposes is that everything we have just observed about chapter 154 is true of changes made to chapter 153. As we have already noted, amended § 2254(d) (in chapter 153 but applicable to chapter 154 cases) governs standards affecting entitlement to relief. If, then, Congress was reasonably concerned to ensure that chapter 154 be applied to pending cases, it should have been just as concerned about chapter 153, unless it had the different intent that the latter chapter not be applied to the general run of pending cases. Nothing, indeed, but a different intent explains the different treatment. This might not be so if, for example, the two chapters had evolved separately in the congressional process, only to be passed together at the last minute, after chapter 154 had already acquired the mandate to apply it to pending cases. Under those circumstances, there might have been a real possibility that Congress would have intended the same rule of application for each chapter, but in the rough-and-tumble no one had thought of being careful about chapter 153, whereas someone else happened to think of inserting a provision in chapter 154. But those are not the circumstances here. Although chapters 153 and 154 may have begun life independently and in different Houses of Congress, it was only after they had been joined together and introduced as a single bill in the Senate (S. 735) that what is now § 107(c) was added. Both chapters, therefore, had to have been in mind when § 107(c) was added. Nor was there anything in chapter 154 prior to the addition that made the intent to apply it to pending cases less likely than a similar intent to apply chapter 153. If anything, the contrary is true, as the discussion of § 2264(b) will indicate. The insertion of § 107(c) with its different treatments of the two chapters thus illustrates the familiar rule that néga-tWe implications raised by disparate provisions are strongest when the portions of a statute treated differently had already been joined together and were being considered simultaneously when the language raising the implication was inserted. See Field v. Mans, 516 U. S. 59, 75 (1995) (“The more apparently deliberate the contrast, the stronger the inference, as applied, for example, to contrasting statutory sections originally enacted simultaneously in relevant respects ...”). When § 107(c) was added, that is, a thoughtful Member of the Congress was most likely to have intended just what the later reader sees by inference. The strength of the implication is not diminished by the one competing explanation suggested, see Brief for Respondent 11—12, which goes as follows. Chapter 154 provides for expedited filing and adjudication of habeas applications in capital cases when a State has met certain conditions. In general terms, applications will be expedited (for a State’s benefit) when a State has made adequate provision for counsel to represent indigent habeas applicants at the State’s expense. Thus, § 2261(b) provides that “[tjhis chapter is applicable if a State establishes ... a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State post-conviction proceedings brought by indigent prisoners . . . .” 110 Stat. 1221-1222. There is an ambiguity in the provision just quoted, the argument runs, for it applies chapter 154 to capital cases only where “a State establishes ... a mechanism,” leaving a question whether the chapter would apply if a State had already established such a mechanism before chapter 154 was passed. The idea is that the present tense of the word “establishes” might be read to rule out a State that already had “established” a mechanism, suggesting that when § 107(c) was added to provide that the chapter would apply to “eases pending” it was meant to eliminate the ambiguity by showing that all pending cases would be treated alike. This explanation of the significance of § 107(c) is not, however, very plausible. First, one has to strain to find the ambiguity on which the alternative explanation is supposed to rest. Why would a Congress intent on expediting capital habeas cases have wanted to disfavor a State that already had done its part to promote sound resolution of prisoners’ petitions in just the way Congress sought to encourage? It would make no sense to leave such States on the slower track, and it seems unlikely that federal courts would so have interpreted § 2261(b). Second, anyone who had seen such ambiguity lurking could have dispatched it in a far simpler and straightforward fashion than enacting § 107(c); all the drafter would have needed to do was to insert three words into § 2261(b), to make it refer to a State that “establishes or has established ... a mechanism.” It simply is not plausible that anyone so sensitive as to find the unlikely ambiguity would be so delphic as to choose § 107(c) to fix it. Indeed, § 107(c) would (on the ambiguity hypothesis) be at least as uncertain as the language it was supposed to clarify, since’ “cases pending” could be read to refer to cases pending in States that set up their mechanisms only after the effective date of the Act. The hypothesis of fixing ambiguity, then, is too remote to displace the straightforward inference that chapter 153 was not meant to apply to pending cases. Finally, we should speak to the significance of the new § 2264(b), which Lindh cites as confirming his reading of § 107(c) of the Act. While § 2264(b) does not speak to the present issue with flawless clarity, we agree with Lindh that it tends to confirm the interpretation of § 107(c) that we adopt. Section 2264(b) is a part of the new chapter 154 and provides that “[following review subject to subsections (a), (d), and (e) of § 2254, the court shall rule on the claims [subject to expedited consideration] before it.” 110 Stat. 1223. As we have said before, § 2254 is part of chapter 153 applying to habeas cases generally, including cases under chapter 154. Its subsection (a) existed before the Act, simply providing for a habeas remedy for those held in violation of federal law. Although § 2254 previously had subsections lettered (d) and (e) (dealing with a presumption of correctness to be accorded state-court factual findings and the production of state-court records when evidentiary sufficiency is challenged, respectively) the Act eliminated the old (d) and relettered the old (e) as (f); in place of the old (d), it inserted a new (d) followed by a new (e), the two of them dealing with, among other things, the adequacy of state factual determinations as bearing on a right to federal relief, and the presumption of correctness to be given such state determinations. 110 Stat. 1219. It is to these new provisions (d) and (e), then, that § 2264(b) refers when it provides that chapter 154 determinations shall be made subject to them. Leaving aside the reference to § 2254(a) for a moment, why would Congress have provided specifically in § 2264(b) that chapter 154 determinations shall be made subject to §§ 2254(d) and (e), given the fact that the latter are part of chapter 153 and thus independently apply to habeas generally? One argument is that the answer lies in § 2264(a), which (in expedited capital cases) specially provides an exhaustion requirement (subject to three exceptions), restricting federal habeas claims to those “raised and decided on the merits in the State courts. ...” 110 Stat. 1223. See 96 F. 3d, at 862-863. The argument assumes (and we will assume for the sake of the argument) that in expedited capital cases, this provision of § 2264(a) supersedes the requirements for exhaustion of state remedies imposed as a general matter by §§ 2254(b) and (c). The argument then goes on, that § 2264(b) is explicit in applying §§ 2254(d) and (e) to such capital cases in order to avoid any suggestion that when Congress enacted § 2264(a) to supersede §§ 2254(b) and (c) on exhaustion, Congress also meant to displace the neighboring provisions of §§ 2254(d) and (e) dealing with such things as the status of state factual determinations. But we find this unlikely. First, we find it hard to imagine why anyone would read a superseding exhaustion rule to address the applicability not just of the other exhaustion requirement but of provisions on the effect of state factual determinations. Anyone who did read the special provision for exhaustion in capital cases to supersede not only the general exhaustion provisions but evidentiary status and presumption provisions as well would have had to assume that Congress could reasonably have meant to leave the law on expedited capital cases (which is more favorable to the States that fulfill its conditions) without any presumption of the correctness of relevant state factual determinations. This would not, we think, be a reasonable reading and thus not a reading that Congress would have feared and addressed through § 2264(b). We therefore have to find a different function for the express requirement of § 2264(b) that chapter 154 determinations be made in accordance with §§ 2254(d) and (e). Continuing on the State’s assumption that § 2264(a) replaces rather than complements § 2254’s exhaustion provisions, we can see that the function of providing that §§ 2254(d) and (e) be applicable in chapter 154 cases is, in fact, supportive of the negative implication apparent in § 107(c). There would have been no need to provide expressly that subsections (d) and (e) would apply with the same temporal reach as the entirely new provisions of chapter 154 if all the new provisions in both chapters 153 and 154 were potentially applicable to cases pending when the Act took effect, as well as to those filed later. If the special provision for applying §§ 2254(d) and (e) in cases under chapter 154 has any utility, then, it must be because subsections (d) and (e) might not apply to all chapter 154 cases; since chapter 154 and the new sections of chapter 153 unquestionably apply alike to cases filed after the Act took effect, the cases to which subsections (d) and (e) from chapter 153 would not apply without express provision must be those cases already pending when the Act took effect. The utility of § 2264(b), therefore, is in providing that when a pending case is also an expedited capital case subject to chapter 154, the new provisions of §§ 2254(d) and (e) will apply to that case. The provision thus confirms that Congress assumed that in the absence of such a provision, §§ 2254(d) and (e) (as new parts of chapter 153) would not apply to pending federal habeas cases. This analysis is itself consistent, in turn, with Congress’s failure in § 2264(b) to make any express provision for applying §§ 2254(f), (g), (h), or (i). Subsections (f) and (g) deal with producing state-court evidentiary records and their admissibility as evidence. Congress would obviously have wanted these provisions to apply in chapter 154 pending cases, but because they were old provisions, which had already attached to “pending” capital habeas cases (only their letter designations had been amended), Congress had no need to make any special provision for their application to pending capital habeas cases that might immediately or later turn out to be covered by chapter 154. Subsections (h) and (i), however, are new; if Congress wanted them to apply to chapter 154 cases from the start it would on our hypotheses have had to make the same special provision that § 2264(b) made for subsections (d) and (e). But there are reasons why Congress need not have made any special provisions for subsections (h) and (i) to apply to the “pending” chapter 154 cases. Subsections (h) and (i) deal, respectively, with the appointment of counsel for the indigent in the federal proceeding, and the irrelevance to habeas relief of the adequacy of counsel’s performance in previous postconviction proceedings. See 110 Stat. 1219-1220. There was no need to make subsection (h) immediately available to pending cases, capital or not, because 21 U. S. C. § 848(q)(4)(B) already authorized appointment of counsel in such cases. And there was no reason to make subsection (i) immediately available for a State’s benefit in expedited capital cases, for chapter 154 already dealt with the matter in § 2261(e), see 110 Stat. 1222. There is, therefore, a good fit of the § 2264(b) references with the inference that amendments to chapter 153 were meant to apply only to subsequently filed cases; where there was a good reason to apply a new chapter 153 provision in the litigation of a chapter 154 case pending when the Act took effect, § 2264(b) made it applicable, and when there was no such reason it did no such thing. There is only one loose end. Section 2254(a) was an old provision, without peculiar relevance to chapter 154 cases, but applicable to them without any need for a special provision; as an old provision it was just like the lettered subsections (f) and (g). Why did § 2264(b) make an express provision for applying it to chapter 154 cases? No answer leaps out at us. All we can say is that in a world of silk purses and pigs’ ears, the Act is not a silk purse of the art of statutory drafting. The upshot is that our analysis accords more coherence to §§ 107(c) and 2264(b) than any rival we have examined. That is enough. We hold that the negative implication of § 107(c) is that the new provisions of chapter 153 generally apply only to cases filed after the Act became effective. Because Lindh’s case is not one of these, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. The other titles address such issues as restitution to victims of crime (Title II), various aspects of international terrorism (Titles II, III, IV, VII, VIII), restrictions on various kinds of weapons and explosives (Titles V and VI), and miscellaneous items (Title IX). See 110 Stat. 1214-1217. Section 103 also amends Rule 22 of the Federal Rules of Appellate Procedure. 110 Stat. 1218. Section 108 further adds a “technical amendment” regarding expert and investigative fees for the defense under 21 U. S. C. § 848(q). 110 Stat. 1226. In United States v. Nordic Village, Inc., 503 U. S. 30, 34-37 (1992), this Court held that the existence of “plausible” alternative interpretations of statutory language meant that that language could not qualify as an “unambiguous” expression of a waiver of sovereign immunity. And eases where this Court has found truly “retroactive” effect adequately authorized by a statute have involved statutory language that was so clear that it could sustain only one interpretation. See Graham & Foster v. Goodcell, 282 U. S. 409, 416-420 (1931) (holding that a statutory provision “was manifestly intended to operate retroactively according to its terms” where the tax statute spelled out meticulously the circumstances that defined the claims to which it applied and where the alternative interpretation was absurd); Automobile Club of Mich. v. Commissioner, 353 U. S. 180, 184 (1957) (finding a clear statement authorizing the Commissioner of Internal Revenue to correct tax rulings and regulations “retroactively” where the statutory authorization for the Commissioner’s action spoke explicitly in terms of “retroactivity”); United States v. Zacks, 375 U. S. 59, 65-67 (1963) (declining to give retroactive effect to a new substantive tax provision by reopening claims otherwise barred by statute of limitations and observing that Congress had provided for just this sort of retroactivity for other substantive provisions by explicitly creating new grace periods in which otherwise barred claims could be brought under the new substantive law). Cf. Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 55-57 (1996) (finding a clear statement of congressional abrogation of Eleventh Amendment immunity where the federal statute went beyond granting federal jurisdiction to hear a claim and explicitly contemplated “the State” as defendant in federal court in numerous provisions of the Act). Landgraf suggested that the following language from an unenacted precursor of the statute at issue in that case might possibly have qualified as a clear statement for retroactive effect: “[This Act] shall apply to all proceedings pending on or commenced after the date of enactment of this Act.” 511 U. S., at 260 (emphasis added; internal quotation marks omitted). But, even if that language did qualify, its use of the sort of absolute language absent from § 107(e) distinguishes it. Cf. United States v. Williams, 514 U. S. 527, 531-532 (1995) (finding a waiver of sovereign immunity “unequivocally expressed” in language granting jurisdiction to the courts over “[a]ny civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected” (emphasis in Williams; internal quotation marks omitted)); id., at 541 (Scaua, J., concurring) (“The [clear-statement] rule does not . . . require explicit waivers to be given a meaning that is implausible ...”). See 96 F. 3d 856, 861 (CA7 1996). Lindh concedes this much. Brief for Petitioner 23, n. 15. Amendment 1199, offered by Senator Dole on May 25,1995, added what was then § 607(e) and now is § 107(c). See 141 Cong. Rec. 14600, 1461 Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspecifiable 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 In re Weiner MERCHANT, Debtor. ANDREWS UNIVERSITY, Plaintiff-Appellant, v. Weiner MERCHANT, Defendants Appellee. No. 90-1969. United States Court of Appeals, Sixth Circuit. Argued Sept. 16, 1991. Decided March 11, 1992. Robert A. Yingst, Holly F. Underwood (argued and briefed), Boothby, Ziprick & Yingst, Berrien Springs, Mich., for plaintiff-appellant. Weiner Merchant, pro se. Before KEITH and NORRIS, Circuit Judges, and JOHNSTONE, District Judge. The Honorable Edward H. Johnstone, United States District Judge for the Western District of Kentucky, sitting by designation. JOHNSTONE, District Judge. Andrews University appeals from an order of the United States District Court for the Western District of Michigan holding in a chapter 7 bankruptcy proceeding that (1) an educational bank loan guaranteed by a private educational institution is discharge-able, (2) a private educational institution’s extensions of credit for educational expenses are dischargeable, and (3) a prepetition creditor violates 11 U.S.C. § 362 by withholding the transcript of a debtor-student. For the reasons given, the order of the district court is reversed in part and affirmed in part. I. , Weiner Merchant, a citizen of Great Britain, came to the United States to attend Andrews University. Merchant received a loan from Michigan National Bank to pay a portion of her educational expenses. The Bank made the loan in connection with a student loan program arranged with the University. The program included a provision to give the Bank full recourse against the University in the event a student defaults on the debt. In addition to the Bank loan, Merchant received assistance for educational expenses which are evidenced by promissory notes payable to the University. After graduation, Merchant defaulted on both her obligations to the Bank and the University. The University, pursuant to the guaranty agreement, paid the Bank, took assignment of the note, and became the sole student loan creditor for Merchant’s educational expenses. One year after graduation, faced with $28,892.40 in debts, of which $23,614.00 was attributable to these educational loans, Merchant filed a chapter 7 bankruptcy. Soon thereafter, in an effort to gain citizenship, Merchant asked the University for a copy of her academic transcript. When her request was refused she filed an adversary proceeding against the University claiming its refusal violated the automatic stay provision, 11 U.S.C. § 362(a). The University claimed that both the educational loan and credit extensions are excepted from discharge under 11 U.S.C. § 523(a)(8) and thus it had a right to withhold the transcript. The bankruptcy court held that neither the Bank loan nor the extensions of credit fall within the exceptions to discharge under 11 U.S.C. § 523(a)(8) and that the University violated 11 U.S.C. § 362(a) by withholding the transcript. On appeal, the district court affirmed. Three issues are raised in this appeal. First, whether educational loans, made by commercial lenders and guaranteed by private educational institutions, are discharge-able under 11 U.S.C. § 523(a)(8). Next, whether extensions of credit for educational expenses are dischargeable under 11 U.S.C. § 523(a)(8). Finally, whether a school may withhold the transcript of a student who has defaulted on educational loans and filed for bankruptcy under chapter 7. II. Under In re Vause, 886 F.2d 794, 798 (6th Cir.1989), the court applies a de novo standard of review in determining Congress’ intent when enacting 11 U.S.C. § 523(a)(8). This statute provides: (a) A discharge under section 727, 1141, 1228(a), 1228(b) or 1328(b) of this title does not discharge an individual debtor from any debt— (8) for an educational benefit overpayment or loan made, insured, or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution.... To ascertain the Congressional intent we review the language of the statute together with the design and policy underlying the overall statutory scheme. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 1817, 100 L.Ed.2d 313 (1988); Crandon v. United States, 494 U.S. 152, 110 S.Ct. 997, 1001, 108 L.Ed.2d 132 (1990). The Bankruptcy Code was drafted to provide a discharge procedure that enables insolvent debtors the ability to reorder their affairs and enjoy “a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.” Grogan v. Garner, — U.S. —, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991) (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934)). Congress elected to exclude certain obligations from the general policy of discharge based upon the conclusion that the public policy in issue, availability and solvency of educational loan programs for students, outweighs the debtor’s need for a fresh start. The legislative history of the 11 U.S.C. § 523(a)(8) teaches us that the exclusion of educational loans from the discharge provisions was designed to remedy an abuse by students who, immediately upon graduation, filed petition for bankruptcy and obtained a discharge of their educational loans. This was due to the fact that unlike commercial transactions where credit is extended based on the debtor’s collateral, income, and credit rating, student loans are generally unsecured and based solely upon the belief that the student-debtor will have sufficient income to service the debt following graduation. See H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 466-75 reprinted in 1978 U.S.Code Cong. & Admin.News 5787. As stated by Senator DeConcini on the floor of the Senate: Section 523(a)(8) represents a compromise between the House bill and the Senate amendment regarding educational loans. This provision is broader than current law which is limited to federally insured loans. Only educational loans owing to a governmental unit or a nonprofit institution of higher education are made non-dischargeable under this paragraph. 124 Cong.Rec. S33998 (daily ed. Oct. 5, 1978) (statement of Sen. DeConcini). Thus, Congress decided that many student loans should not be dischargeable in bankruptcy. With this background we turn to examine the statutory language addressed in the issues raised on this appeal. A. The district court correctly found that (1) the University is a nonprofit institution, and (2) a student loan program existed between the University and the Bank. However, we reject its finding that the University did not “fund in whole or in part” an educational bank loan. The district court reasoned that a nonprofit institution funds an educational bank loan when they agree to purchase every loan and that the University did not fund the educational loan because it purchased such loans only in the event of default. We are of the opinion that this narrow construction of the discharge provision failed to give proper weight to the design and policy underlying the overall statutory scheme of the educational loan exception to discharge. In summary, the University, a nonprofit educational institution, processed and submitted Merchant’s student loan application to the Bank. Upon default, the Bank had full recourse against the University for the balance due on the note. The University’s participation in the student loan program was crucial to Merchant receiving money to fund a portion of her education. We hold that Merchant’s obligation to the Bank was funded, in part, by the University and that the loan is not dischargeable under 11 U.S.C. § 523(a)(8). B. The district court found that credit extensions in favor of Merchant as evidenced by the promissory notes payable to the University were beyond the scope of the definition of a “loan” as found in 11 U.S.C. § 523(a)(8). We disagree. The term “loan” is not defined in the Bankruptcy Code; therefore, the court must infer that Congress intended for the term “loan” to be construed in accordance with its established meaning. NLRB v. Amax Coal Co., 453 U.S. 322, 329, 101 S.Ct. 2789, 2793, 69 L.Ed.2d 672 (1981). While this Circuit has not defined the term “loan” other circuits have adopted the following definition: [A] contract whereby, in substance one party transfers to the other a sum of money which that other agrees to repay absolutely, together with such additional sums as may be agreed upon for its use. If such be the intent of the parties, the transaction will be considered a loan without regard to its form. In re Grand Union Co., 219 F. 353 (2nd Cir.1914). See also United States Dept. of Health and Human Services v. Smith, 807 F.2d 122, 124 (8th Cir.1986); United Virginia Corp. v. Aetna Casualty and Surety Co., 624 F.2d 814, 816 (4th Cir.1980); Calcasieu-Marine Natl. Bank v. American Employer’s Insurance Co., 533 F.2d 290, 296-7 (5th Cir.1976) (using Grand Union’s “classic definition of a loan”). Notwithstanding this broad definition, both the district court and the bankruptcy court determined that the University’s credit extension was not within the 11 U.S.C. § 523(a)(8) exception to discharge. The district and bankruptcy courts rejected the reasoning of In re Hill, 44 B.R. 645 (Bankr.D.Mass.1984). The Hill court found that the term “loan” under section 523(a)(8) included extensions of credit when the following factors are present: (1) the student was aware of the credit extension and acknowledges the money owed; (2) the amount owed was liquidated; and (3) the extended credit was defined as “a sum of money due to a person”. We find the Hill analysis persuasive. In this case Merchant signed forms evidencing the amount of her indebtedness before she registered for classes. She received her education from the University by agreeing to pay these sums of money owed for educational expenses after graduation. The credit extensions were loans for educational expenses. Following the Hill analysis we hold the credit extensions are not dischargeable under 11 U.S.C. § 523(a)(8). C. The final issue presented in this appeal is whether in refusing to provide a student-debtor their educational transcript because they are in default on a prepetition debt, a school violates the automatic stay provision, 11 U.S.C. § 362. This section states: (a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title ... operates as a stay, applicable to all entities, of ... (6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case.... We held in In re Smith, 876 F.2d 524 (6th Cir.1989), that this provision was to be broadly interpreted and that it is self executing. Thus it automatically takes effect when a petition is filed in bankruptcy. Various courts have found that the withholding of a debtor’s transcript or the refusal to issue a transcript until a debtor pays a prepetition debt is an act to collect, assess, or recover a prepetition debt and thus a violation of section 362(a)(6). See In re Gustafson, 111 B.R. 282 (Bankr. 9th Cir.1990), rev’d. on other grounds 934 F.2d 216 (9th Cir.1991); In re Watson, 78 B.R. 232 (9th Cir.BAP 1987) (creditor may proceed with an action to hold its debt non-dischargeable without violating 362 and, after a finding of non-dischargeability, may attempt to collect the debt); In Re Parham, 56 B.R. 531 (Bankr.E.D.Va.1986); In re Reese, 38 B.R. 681 (Bankr.N.D.Ga.1984); In Re Ware, 9 B.R. 24 (Bankr.W.D.Mo.1981); In re Heath, 3 B.R. 351 (Bankr.N.D.Ill.1980); In re Howren, 10 B.R. 303 (Bankr.D.Kan.1980). We follow the reasoning of these decisions and hold a violation of 11 U.S.C. § 362(a) arises when a prepetition creditor withholds a student-debtor's transcript. Given this determination, we must now determine if Congress made it an exception to the automatic stay provision. Section 362(b) sets forth the exceptions. While many of the exceptions to discharge found in 11 U.S.C. § 523 are exceptions from the automatic stay found in 11 U.S.C. § 362(b), educational loans are not. Thus, the automatic stay applies to creditors of education loans and remains in effect until (1) the case is closed, (2) the case is dismissed, or (3) a discharge is granted or denied. 11 U.S.C. § 362(c)(2)(C). Merchant filed a petition for bankruptcy under chapter 7 and later the University failed to turn over her transcript. Although there is a presumption that the educational debts are not dischargeable, as stated above, they are not listed within the exceptions to the automatic stay found in 362(b). Accordingly, the University violated section 362(a). Having found the student loan debt excepted from discharge, the stay will terminate when the district court enters an order consistent with this opinion. See 11 U.S.C. § 362(c)(2)(C). We affirm the Bankruptcy Court and District Court in finding the University in violation of 11 U.S.C. § 362(a)(6). As the violation was not willful, sanctions are not merited. CONCLUSION In summary, Congress enacted 11 U.S.C. § 523(a)(8) in an effort to prevent abuses in and protect the solvency of the educational loan programs. The transactions in issue here were educational loans funded in whole and in part by Andrews University, a nonprofit educational institution. The financial assistance programs made possible by the University enabled Merchant to obtain an education which she might otherwise have been denied. Congress, by excepting educational loans from discharge, has determined that the continued solvency of educational funding and financial aid programs override the need to provide debtor’s with a fresh start in their financial affairs. Congress, however, has not excepted educational loans from the automatic stay provision. Accordingly, the judgment of the district court holding the indebtedness dischargea-ble is reversed. The judgment of the district court refusing to hold the appellant in contempt is affirmed. This case is remanded to the district court for entry of judgment in compliance with this opinion. . The statute was amended November 29, 1990. The following language was added, "or for an obligation to repay funds received as an educational benefit, scholarship, or stipend_” While this section is not to be considered with cases commenced before November 29, 1990, it does strengthen the court’s interpretation of Congress’ intent. . This is further supported by In re Shipman, 33 B.R. 80 (Bankr.W.D.Mo.1983), which held that the "central issue in determining dischargeability is whether the funds were for educational purposes, not whether the funds constituted a 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:

songer_treat

D

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. ALEXANDRINE v. COE, Commissioner of Patents. Patent Appeal No. 6107. Court of Appeals of the District of Columbia. Argued April 3, 1934. Decided May 14, 1934. Maurice Leon, of New York City, and Edmund H. Parry, Jr., of Washington, D. C., for appellant. T. A. Hostetler, Solicitor of the Patent Office, of Washington, D. C., for appellee. Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRO-NER, Associate Justices. ROBB, Associate Justice. Appeal from a decree in the Supreme Court of the District dismissing appellant’s bill to enjoin the Commissioner of Patents from canceling appellant’s trade-mark No. 206729, for gloves, registered December 8, 1925, and consisting of a fanciful design with the word “Alexandrine” across it. in August, 1928, Marshall Field & Co., an Illinois corporation, applied for the registration, under the 10-year clause of section 5 (b) of the Trade Mark Act of 1905 (33 Stat. 724, 725), as amended (section 85 (b), tit. 15, U. S. C., 15 USCA § 85 (b), of the name “Alexandre” for gloves. Thereupon interference was declared between the two marks and, after due proceedings, priority was awarded to Marshall Field & Co., as a result of which registration was granted to that company. In December, 1931, Marshall Field & Co. instituted proceedings in the Patent Office for the cancellation of appellant’s trademark. The application was sustained by the Examiner of Interferences, and on October 18, 1932, was affirmed by the Commissioner. Thereupon, on December 5, 1932) appellant filed this bill under section 4915, R. S., as amended (section 63, tit. 35, U. S. C., 35 US CA § 63). On December 7, 1932, due notice was given Marshall Field & Co. The court below ruled that Marshall Field & Co., being an adver'se party in the Patent Office, is an indispensable party to this suit and that the Commissioner of Patents is neither a necessary nor a proper party. The answers to the questions involved are to be found in United States ex rel. Baldwin Co. v. Robertson, 265 ü. S. 168, 44 S. Ct. 508, 68 L. Ed. 962. The Baldwin Company filed a bill in the Supreme Court of the District against the Commissioner of Patents to enjoin that officer from canceling two registered trade-marks claimed by it. The Howard Company intervened and resisted the injunction to prevent the cancellation. The Commissioner of Patents filed an answer denying the right of the Baldwin Company to the relief sought. The court said (265 U. S. at page 177, 44 S. Ct. 508, 509, 68 L. Ed. 962) that the main question to be considered was whether “by the statutes applicable to procedure in settling controversies over the registration of trade-marks in interstate and foreign trade, a remedy by bill in equity to enjoin the Commissioner of Patents from canceling a registered trade-mark is given to the owner of the trade-mark so registered.” The court further said (page 179 of 265 U. S., 44 S. Ct. 508, 510): “The defeated party in the hearing before the Commissioner is not asking registration of a trade-mark, but is seeking to prevent the cancellation of trade-marks already registered. * * * It seems clear that the complainant below was a dissatisfied party to an application for the cancellation of the registration of a trade-mark. We think that both the applicant for cancellation and the registrant opposing it are given the right of appeal to the District Court of Appeals under that section [section 9 of the Trade Mark Act; section 89, tit. 15, U. S. C., 15 USCA § 89]. The next inquiry is whether in addition to such appeal and after it proves futile, the applicant is given a remedy by bill in equity as provided for a defeated applicant for a patent in section 4915, R. S. We have in the cases cited [American Steel Foundries v. Robertson, 262 U. S. 209, 43 S. Ct. 541, 67 L. Ed. 953; Baldwin Co. v. Howard Co., 256 U. S. 35, 39, 41 S. Ct. 405, 65 L. Ed. 816; Atkins & Co. v. Moore, 212 U. S. 285, 29 S. Ct. 390, 53 L. Ed. 515] given the closing words of section 9 [of the Trade Mark Act] a liberal construction in the view that Congress intended by them to give every remedy in respect to trade-marks that is afforded in proceedings as to patents, and have held that under them a hill of equity is afforded to a defeated applicant for trade-mark registration just as to a defeated applicant for a patent. It is not an undue expansion of that construction to hold that the final words were intended to furnish a remedy in equity against the Commissioner in every case in which by section 9 an appeal first lies to the Court of Appeals. This necessarily would give to one defeated by the Commissioner as a party to an application for the cancellation of the registration of a trade-mark * * * a right to resort to an independent bill in equity against the Commissioner to prevent cancellation. * * * The applicants in section 9 wore of four kinds and to each of them were intended to be accorded the same resort to the Court of Appeals and the same remedy in equity as to the applicant for a patent in section 4915.” (Italics ours.) There, as here, it was contended that section 9 of the Trade Mark Act should not bo held to authorize the use of a suit in equity for all of the four eases in which appeals were provided to the Court of Appeals (now to the Court of Customs and Patent Appeals) because by section 22 of the Trade Mark Act (section 102, tit. 15, U. S. C., 15 USCA § 102) there was a special provision for remedy in equity where there were interfering registered trade-marks. The court rejected the contention, saying (265 U. S. at page 181, 4.4 S. Ct. 508, 510): “Section 9 of the Trade-Mark Act is wider than section 22 in its scope. It includes one who applies for registration of an unregistered trade-mark which interferes with one already registered.” See, also, Corning Glass Works v. Robertson, 62 App: D. C. 130, 65 F.(2d) 476, certiorari denied 290 U. S. 645, 54 S. Ct. 63, 78 L. Ed.-. In the present case appellant was the unsuccessful party in a cancellation proceeding, and elected to proceed under section 4915, R. S., as amended, instead of appealing to the United States Court of Customs and Patent Appeals under section 9 of the Trade Mark Act, as amended (15 USCA § 89). The Commissioner points out that in the Baldwin Case the adverse party intervened and that in the present ease it has not. A bill under section 4915, while a proceeding de novo, “intends a suit according to the ordinary course of equity practice and procedure, * * yet the proceeding is, in fact and necessarily, a part of the application for the patent.” Gandy v. Marble, 122 U. S. 432, 439, 7 S. Ct. 1290, 1293, 30 L. Ed. 1223; American Steel Foundries v. Robertson, 262 U. S. 209, 213, 43 S. Ct. 541, 67 L. Ed. 953; Lucke v. Coe, 63 App. D. C. 61, 69 F.(2d) 379. Marshall Field & Co., having initiated and prosecuted the cancellation proceeding, is in no position to complain because appellant has filed a bill in equity against the Commissioner, which is necessarily a part of the proceeding in the Patent Office. Under the provisions of section 9 of the Trade Mark Act, as amended, and section 4915, R. S., as amended, appellant in the cancellation proceeding, had it so elected, might have prosecuted an appeal to the United States Court of Customs and Patent Appeals. Marshall Field & Co. would necessarily have been a party to that appeal. The filing of a bill in equity is an alternative remedy and, under the authority of the Baldwin Case, properly may be brought against the Commissioner here. The decree is reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed and remanded. 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

028

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them. Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. THOMAS v. ARIZONA. No. 88. Argued March 4-5, 1958. Decided May 19, 1958. W. Edward Morgan argued the cause and filed a brief for petitioner. Wesley E. Polley, Special Assistant Attorney General of Arizona, and John O. Pidgeon argued the cause for respondent. With them on the brief were Robert Morrison, Attorney General, and James H. Green, Jr., Chief Assistant Attorney General. Mr. Justice Clark delivered the opinion of the Court. Petitioner has been convicted of first degree murder and sentenced to death by an Arizona court for the killing of one Janie Miscovich. He asks this Court to reverse his conviction on the ground that a confession received in evidence at his trial was coerced by fear of lynching, in violation of his rights under the Due Process Clause of the Fourteenth Amendment. The victim, proprietor of a grocery store in Kansas Settlement, Arizona, was killed while tending her store on the evening of March 16, 1953. No one witnessed the crime, but strong circumstantial evidence indicated that it occurred between 10 p. m. and 11 p. m., and that petitioner was responsible. He was arrested the next day under circumstances which lend credence to his assertion of a “putative lynching." The confession at issue, however, was not made until the day following the arrest, when he was taken before a Justice of the Peace for preliminary examination. After an initial determination of voluntariness, the trial judge in the Superior Court of Cochise County, Arizona, submitted the issue of coercion to the jury under instructions to ignore the confession as evidence unless it was found entirely voluntary. A general verdict of guilty was returned by the jury and accepted by the trial court. The Supreme Court of Arizona affirmed, 78 Ariz. 52, 275 P. 2d 408, and we denied certiorari. 350 U. S. 950 (1956). Petitioner then made application for habeas corpus in the United States District Court for the District of Arizona. After reviewing the entire record, the District Court denied the writ without a hearing. The Court of Appeals affirmed, 235 F. 2d 775, and we granted certiorari because of the seriousness of petitioner’s allegations under the Due Process Clause. 352 U. S. 1024. An exhaustive review of the record, however, impels us to conclude that petitioner’s confession was “the expression of free choice,” Watts v. Indiana, 338 U. S. 49, 53 (1949), and not the product of fear, duress, or coercion. The prosecution’s use of a coerced confession first led to this Court’s reversal of a state conviction in Brown v. Mississippi, 297 U. S. 278 (1936). Our resolution of similar claims in subsequent cases makes clear that “the question whether there has been a violation of the due process clause of the Fourteenth Amendment by the introduction of an involuntary confession is one on which we must make an independent determination on the ■ undisputed facts.” Malinski v. New York, 324 U. S. 401, 404 (1945). No encroachment of the traditional jury function results, for the issue of coercion, unlike the basic facts on which coercion is ascertained, involves the application of constitutional standards of fundamental fairness under the Fourteenth Amendment. See Brown v. Allen, 344 U. S. 443, 507 (1953) (concurring opinion). In each instance our inquiry must weigh the “circumstances of pressure against the power of resistance of the person confessing.” Fikes v. Alabama, 352 U. S. 191, 197 (1957), quoting Stein v. New York, 346 U. S. 156, 185 (1953). We turn then to the undisputed portions of the record to ascertain the facts against which petitioner’s claim of coercion must be measured. I. Petitioner is an itinerant Negro laborer who lived with his common-law wife and four other Negroes, including one Ross Lee Cooper, a 17-year-old boy, in an old barracks provided by his employer about a half mile from the victim’s store. Petitioner is a Navy veteran, 27 years old at the time of the murder, with a partial high school education. He had a criminal record of three different convictions, the most serious being a five-year larceny sentence, as well as two terms in the Navy brig for twice being absent without leave from his service post. The body of Janie Miscovich was found Tuesday morning, March 17. A supplier noticed smoke coming from the store and summoned the help of three men constructing a building nearby, one of whom was petitioner. Petitioner did nothing to assist in putting out the fire, and left the scene before the victim's body was discovered, declaring that he “never could stand the stench of burning flesh.” Although the body was severely beaten and burned, death was attributed to knife wounds in the heart, inflicted with a large knife found later in the store. Preliminary investigation by local police disclosed that petitioner and Cooper were at the store together Monday afternoon and evening. After they returned to the barracks at approximately 8:30 p. m., petitioner left again by himself, returning around midnight. A trail of blood and footprints was traced from the store to within 50 yards of the barracks, where a strip of freshly harrowed ground made further tracking impossible. Blood spots were found in the kitchen of the barracks, and two bloody gloves were found hidden near the barracks. Both gloves were for the right hand and one of them was slit across the middle, ring and little fingers. Matching gloves were found in the store, where nine pairs plus two gloves for the left hand remained out of 12 pairs of gloves stocked by Janie Miscovich on Monday. The only pair of shoes petitioner owned, found under his bed in the barracks, exactly matched the 13%-inch footprints trailed to the barracks. He had returned to the barracks after discovery of the fire and exchanged his shoes for a pair of old work boots he got “out of the trash pile.” II. A posse of 12 to 15 men headed by the Sheriff of Cochise County apprehended petitioner Tuesday at 3 p. m. lying under a pasture brush pile over 200 yards from the road and about iy2 miles from Kansas Settlement. Three fingers of his right hand had been severely cut, matching the slits in the bloody glove found outside the barracks. Petitioner was placed under arrest by the Sheriff and handcuffed by a state highway patrolman with the posse. When asked by the Sheriff “why he had killed the woman,” petitioner asserted that he had not killed her, but that he could take the posse to the man who had done so, accusing Cooper of the murder. He also stated that he had cut his hand on a can. At this point a local rancher on horseback, who had no official connection with the Sheriff’s posse, lassoed petitioner around the neck and jerked him a few steps in the general direction of both the Sheriff’s car and the nearest trees, some 200 yards away. The Sheriff quickly intervened, removed the rope, and admonished, “Stop that. We will have none of that . . . .” There was no talk of lynching among the other members of the posse. The Sheriff then put petitioner and two other men in his car and drove a few miles south where petitioner directed him in search of Cooper. They found Cooper working in a field about half a mile off the road. The Sheriff borrowed a horse from a member of the posse— which had followed the Sheriff’s car — and rode alone across the field to arrest Cooper. As he was bringing Cooper back to the car, a second rancher on horseback roped Cooper around the waist and led him along. When they reached the car, the Sheriff removed the rope. Petitioner, who had a full view of Cooper’s apprehension, got out of the car and identified Cooper as the Miscovich killer. Cooper was handcuffed and standing beside petitioner when the rancher responsible for Cooper’s roping lassoed both men, catching them either by their shoulders or their necks and pulling them down to their knees. The Sheriff, looking “kind of mad,” reacted “immediately,” removing the rope and shouting, “Hey, stop that. We will have no more of that.” Two or three other men joined the Sheriff in protesting the third roping incident. No trees at all could be seen from the location of these last two ropings, and no mention or threat of lynching was heard. By 4:30 p. m. both prisoners had been placed in the Sheriff’s car. They were taken directly to Willcox, the nearest town with a Justice Court, for preliminary examination in compliance with Arizona law. However, the judge, who was also a school bus driver, already had departed on the evening run. Before leaving Willcox, the Sheriff stopped briefly at the local mortuary, where the body of the murder victim was shown to both suspects. The prisoners then were taken to Bisbee, site of the county jail and courthouse. Arriving there after closing time of the nearest Justice Court, the Sheriff took them to nearby Warren for questioning by the County Attorney. It was 6 p. m. when the Sheriff and his prisoners reached the home of the County Attorney, whom a prior injury had confined to a full body cast and stretcher. Petitioner and Cooper were placed together in a back bedroom under guard of an armed deputy, but each was separately quizzed for an hour in a front room. Petitioner was questioned solely by the County Attorney, though six other men, some of whom were armed, were present. Petitioner was barefoot; his shoes had been seized as evidence in the case, and there were no shoes at the jail large enough to fit him. He wore the same coveralls in which he was arrested. The County Attorney first identified each man in the room, assured petitioner that no threats and no promises would be made, “explained to him his rights,” and told him to tell the truth. No force was used or threatened against either prisoner. While petitioner’s statement was never tendered in evidence at the trial, it was filed with the United States District Court in the habeas proceeding as proof of his composure on the very day of his arrest. The statement included petitioner’s stout denial' of any responsibility for the murder, and a detailed story designed to incriminate Cooper, a young and backward boy called “Baby John.” Petitioner claimed to have returned to the store with Cooper a second time the night before, and to have waited outside while Cooper entered the store to buy beer. Upon hearing screams, petitioner said he rushed inside, found Cooper holding a knife over the woman, cut his hand trying to seize the knife from Cooper, and then ran back to the barracks, leaving Cooper with the woman. He illustrated the story in some detail by tracing his movements with crayons on a diagram of the Miscovich store. At 9 p. m., the Cochise County Under-Sheriff took petitioner to a hospital where his hand was treated, and at 10 p. m. left him at the county jail. Later the Sheriff stopped by petitioner’s cell, but nothing was said aside from the Sheriff’s inquiry as to “how he was feeling.” At 11:30 a. m. the next morning, Wednesday, March 18, the Sheriff brought petitioner before the Lowell Justice Court for preliminary examination. Petitioner was barefoot, and remained so until the Sheriff bought him a pair of shoes. Prior to leaving the jail for court, the Sheriff gave petitioner a pack of cigarettes. Upon further inquiry as to how he was feeling, petitioner complained of his hand injury, and the Sheriff said he would see that it was dressed again. When petitioner arrived at the court, three other men were conducting business with the Justice of the Peace, delaying petitioner’s hearing for five minutes until they finished and departed. Then, in the presence of the Sheriff, a Deputy Sheriff, and a female secretary, Justice of the Peace Frazier read the complaint to petitioner, advised him of his rights to preliminary hearing and to counsel, told him the hearing could be waived, and instructed him that he could plead guilty or not guilty as he chose, but that a guilty plea would automatically waive the preliminary. Petitioner immediately replied with the oral confession in issue here: “I am guilty. I don’t need any lawyer. I killed the woman.” Judge Frazier asked if the murder was committed with an axe. Petitioner said, “No. I killed her with a knife.” Immediately thereafter, the Sheriff again took petitioner to the home of the County Attorney, where a detailed confession was made in the presence of the County Attorney, his secretary, the Sheriff, and a Deputy Sheriff. Just as he had the night before, the County Attorney identified those present and told petitioner that no threats or promises would be made. He also warned petitioner that the secretary would record everything said, and concluded, “You don't have to talk to me if you don’t want to, but you can, if you will, tell me in your own words, in your own free will, just what took place out at Kansas Settlement.” Later in the afternoon, after his return to the jail, petitioner was taken downstairs to the County Attorney’s courthouse office,' where in the presence of five people he read through and signed the typed transcript of his confession at the County Attorney’s home. Either the next day, Thursday, March 19, or else Friday, March 20 (the record being inconclusive), a newspaper reporter visited petitioner in jail. At the trial he testified petitioner seemed nervous and afraid. Petitioner indicated that he’d been “roughed up” and that the Sheriff had saved his life. At the reporter’s request, he posed for a picture with the Sheriff. Petitioner asked the Sheriff on Thursday to be moved to a part of the jail where he could be by himself, and the Sheriff said he would try to arrange it. On the same day, the Sheriff took petitioner to a doctor for additional treatment of his hand. The third and last confession was taken down on Friday, March 20, in the County Attorney’s office in the presence of seven men, including a Deputy United States Marshal. After the same preliminary precautions as preceded petitioner’s statements Tuesday night and Wednesday afternoon, the County Attorney obtained a detailed confession. Several days later, on April 1, the Marshal met alone with petitioner and had him read the transcript of this last confession, telling him to initial the bottom of each page if, and only if, the material thereon was true. After an hour’s reading, petitioner initialed all the pages. The written confessions, signed on the 18th and the 1st, were found “procured by threat of lynch” and declared involuntary by the trial judge after his preliminary inquiry. Although the oral confession before the Justice of the Peace was made between the time of the ropings and the written confessions, the trial judge made an initial determination that it was voluntary. He justified this seeming incongruity on the basis of the different circumstances under which the oral statement was made, namely, the judicial surroundings and the presence of the Sheriff with only one other deputy, the Sheriff being “the very man who had protected [petitioner].” III. Deplorable as these ropings are to the spirit of a civilized administration of justice, the undisputed facts before us do not show that petitioner’s oral statement was a product of fear engendered by them. Arizona’s determination that the written confessions were involuntary cannot control the separate constitutional inquiry posed by the character of the oral confession. And since ours is to be an independent resolution of the issue of coercion, the range of our inquiry is not limited to those factors which differentiate the oral from the written confessions. The inquiry to be made here, primary in both time and logic, is the voluntariness of the oral confession, which was admitted into evidence. Consequently we do not consider the subsequent confessions. Coercion here is posited solely upon the roping incidents. There is no claim and no evidence of physical beating, as in Brown v. Mississippi, 297 U. S. 278 (1936) ; of continuous relay questioning, as in Watts v. Indiana, 338 U. S. 49 (1949); of incommunicado detention, as in Fikes v. Alabama, 352 U. S. 191 (1957); or of psychiatric inducement, as in Leyra v. Denno, 347 U. S. 556 (1954). Petitioner is neither of tender age, as was the accused in Haley v. Ohio, 332 U. S. 596 (1948), nor of subnormal intelligence, as was the defendant in Fikes v. Alabama, supra. Nor, in view of his extensive criminal record, can he be thought an impressionable stranger to the processes of law. The 20-hour interval between the time of the ropings and petitioner’s oral confession was devoid of all coercive influences other than the sight of the victim’s body. No threats were made, no promises offered, no force used, and no intimation of mob action existent. Petitioner’s own activity during the crucial 20 hours is eloquent rebuttal of the contention that he was a man dominated by fear. At the logical height of oppression, during the ropings themselves, petitioner stoutly denied the offense and attempted to put the police on the trail of Cooper. That very evening he reiterated his position in a detailed story of Cooper’s guilt and his own innocence, notwithstanding Cooper’s presence with him in the same house. Even though petitioner appeared apprehensive and worried to a newspaperman two or three days after the oral statement, his demeanor both at the County Attorney’s home the night of his arrest and before the Justice Court the next morning bespoke complete voluntariness to other witnesses, including Judge Frazier. Nothing in the undisputed record seriously substantiates the contention that a fear engendered by the ropings overbore petitioner’s free will at the time he appeared in the Justice Court. His statement appears to be the spontaneous exclamation of a guilty conscience. Petitioner relies heavily on the testimony of the state patrolman who was present at the first roping. He testified that when petitioner was first roped, the Sheriff said, “Will you tell the truth, or I will let them go ahead and do this.” Petitioner argues that this testimony completely negates the Sheriff’s role as petitioner’s “protector,” eliminating one of the two factors by which the trial judge distinguished the oral from the other confessions. The Sheriff, however, expressly denied making any such statement, and all other witnesses of the first roping agreed that no such threat ever was uttered. Whatever the merits of this dispute, our inquiry clearly is limited to a study of the undisputed portions of the record. “[T]here has been complete agreement that any conflict in testimony as to what actually led to a contested confession is not this Court’s concern. Such conflict comes here authoritatively resolved [against petitioner] by the State’s adjudication.” Watts v. Indiana, 338 U. S. 49, 51-52 (1949). Time and again we have refused to consider disputed facts when determining the issue of coercion. See Gallegos v. Nebraska, 342 U. S. 55, 60-61 (1951); Haley v. Ohio, 332 U. S. 596, 597-598 (1948); Ward v. Texas, 316 U. S. 547 (1942). The rationale behind such exclusion, of course, lies in the superior opportunity of trial court and jury to observe the witnesses and weigh the fleeting intangibles which may indicate truth or falsehood. We abide by the wisdom of that reasoning. IV. Petitioner has an alternative prayer that his case be remanded to the District Court for a plenary hearing on the issue of coercion. There is no merit, however, to his contention that the District Court erred in denying the writ on the basis of the record without a full hearing. The granting of a hearing is within the discretion of the District Court, Brown v. Allen, 344 U. S. 443, 463-46 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_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). Darrell G. NIMNICHT, Plaintiff-Appellant, v. DICK EVANS, INC., et al., Defendants-Appellees. No. 72-3125 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 19, 1973. Darryl J. Tschirn, C. T. Williams, Jr., New Orleans, La., for plaintiff-appellant. John O. Charrier, Jr., New Orleans, La., for defendants-appellees. Before GEWIN, COLEMAN and MORGAN, Circuit Judges. Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I. PER CURIAM: This is a seaman’s action for damages for personal injuries sustained while working on a barge off the coast of Louisiana. Darrell G. Nimnicht was employed by Dick Evans, Inc. on Lay Barge No. 23 owned by J. Ray McDermott and Company, Inc. On February 13, 1970, Nimnicht was assigned to remove a small hand-operated hydraulic pump from a gondola cart on a total saturation diving system aboard Barge No. 23. The diving system was owned by Evans. This gondola cart was used to move a diving bell into position so that the divers could be transferred from the system to the bell and vice-versa. While in the process of removing this pump, Nimnicht sustained an injury to his back. Alleging the unseaworthiness of the barge and negligence of his employer, Nimnicht filed suit under the Jones Act and General Maritime Law against Evans, McDermott, and McDermott’s insurer, Travelers Insurance Company. The case was submitted to the jury on interrogatories. On the special interrogatories submitted to it, the jury found that Nimnicht was a seaman but that his employer was not negligent and that the barge was not unseaworthy. Nevertheless, in response to another interrogatory pertaining to compensatory damages, the jury entered an award of $13,500. In addition, the jury made certain findings regarding maintenance and cure which are not on appeal here. The relevant interrogatories answered by the jury are as follows: 1. Was plaintiff, Darrell G. Nimnicht, injured aboard McDermott Barge #23 on February 13, 1970? A. Yes. 2. Was plaintiff a seaman or a member of the crew of Mc-Dermott #23? A. Yes. 3. Was the barge McDermott #23 unseaworthy ? A. No. 5. Did Dick Evans own, operate, control or have an operational interest in the barge in question? A. Yes. 6. Was the defendant, Dick Evans, Inc., through its employees, negligent ? A. No. 9. Was the plaintiff, Darrell Nimnicht, negligent? A. No. 11. Without any reduction for negligence on the part of the plaintiff, if any, what amount do you find will fairly and adequately compensate plaintiff for the damages he sustained ? A. $13,500. After receiving the verdict responding to the interrogatories, the trial court pointed out to the jury that finding no negligence or unseaworthiness on the part of appellees there was no party which could be held liable to pay the damage award. Then, the Court, acting on the authority of Rule 49(b) F.R.Civ.P., entered judgment for appellees. Appellant moved for a new trial on the ground that the inconsistent verdicts evinced confusion on the part of the jury. Motion denied. He appeals. We affirm. There was no objection to the form of the interrogatories as propounded to the jury. It, therefore, is too late to complain on appeal, Wyoming Construction Company v. Western Casualty & Surety Company, 10 Cir., 1960, 275 F.2d 97, cert. denied 362 U.S. 976, 80 S.Ct. 1061, 4 L.Ed.2d 1011, Halprin v. Mora, 3 Cir., 1956, 231 F.2d 197. This leaves only the question of whether the trial court proceeded correctly in entering judgment for the appellees, notwithstanding the response to Interrogatory 11. For the answer to this we look to Rule 49(b), F.R.Civ.P., which provides: “The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are harmonious, the appropriate judgment upon the verdict and answers shall be entered pursuant to Rule 58. When the answers are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in 'accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial.” This case presents a situation in which the answers to the special interrogatories were consistent with each other but inconsistent with the findings as to the quantum of damages. Under Rule 49(b) the trial court had three alternatives: (1) to enter judgment in accordance with the special answers, notwithstanding the general verdict, (2) to return the jury for further deliberation, or (3) to order a new trial. The trial court chose the first alternative, holding, in effect, that the answers to the special interrogatories inexorably negated the award of damages. We are of the opinion that those findings left the District Court with no room to adopt any other course. In the absence of unseaworthiness or negligence, damages could not be awarded. The jury should not have responded to Interrogatory No. 11. The fact that it mistakenly did so could not change the answers to the prerequisite questions, upon which any damages at all had to live or die. The judgment of the District Court 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_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. MINE HILL & SCHUYLKILL HAVEN R. CO. v. SMITH. Nos. 10171, 10172. United States Court of Appeals Third Circuit Argued June 9, 1950. Decided Oct. 4, 1950. Morse Garwood, Philadelphia, (Harold Evans, Philadelphia, Pa., MacCoy, Evans & Lewis, Philadelphia, Pa., on the brief), for appellant. Harry Baum, Sp. Asst, to Atty. Gen. (Theron Lamar Caudle, Asst. Atty. Gen., Ellis N. Slack, Sp. Asst, to Atty. Gen., and Gerald A. Gleeson, U. S. Atty., and Thomas J. Curtin, Asst. U. S. Atty., Philadelphia, Pa., on the brief), for appellee. Before MARIS, GOODRICH and KALODNER, Circuit Judges. KALODNER, Circuit Judge. These are appeals from judgments f&r the defendant entered by the District Court in two actions brought by the Mine Hill & Schuylkill Haven Railroad Company (“taxpayer”) for the recovery of income taxes. The cases involve a common question, but different tax years. They were consolidated for trial in the Court below and for argument in this Court. The facts as stipulated and found by the District Court may be summarized as follows : Taxpayer owns certain railroad lines in eastern Pennsylvania which are leased to the Reading Company under a 999 year lease entered into in 1896. The lease required the Reading Company to maintain the lines in good order and repair, but expressly excepted from this requirement any lines or portions thereof “which are or may be from time to time used exclusively by any one colliery which is now or may hereafter be abandoned, or the working thereof may be discontinued, or which does not furnish and supply sufficient traffic to pay the needful repairs and expenses of the portion of said railroad leading to said colliery.” No. 10,171 In 1941 taxpayer and the Reading Company jointly filed an application with the Interstate Commerce Commission for a certificate of public convenience permitting taxpayer to abandon certain branch lines of a total distance of 5.89 miles. The application and Return to Questionnaire stated that these lines had not been operated or maintained since 1933, that practically all the ties were decayed and a substantial part of the rails and track materials had been stolen, that there had been no train service or traffic over them for many years, and that the collieries which these lines were constructed to serve had been abandoned for some years. In 1942 the Interstate Commerce Commission granted the application on the grounds requested and issued a certificate of convenience authorizing taxpayer and the Reading Company to abandon the lines. In its income tax return for 1942 taxpayer claimed a loss deduction of $95,078.05, on the theory that the lines had been abandoned in that year. The amount of loss claimed represented taxpayer’s investment in the lines less salvage value. The Commissioner disallowed the claim. The taxpayer then paid the resulting deficiency and when its claim for refund was rejected brought suit in the District Court. No. 10,172 In 1943 taxpayer and the Reading Company jointly filed another application with the Interstate Commerce Commission for a certificate of public convenience permitting taxpayer to abandon a certain branch line of a total distance of 2.06 miles. The application and Return to Questionnaire stated that the line had not been operated or maintained for the past 12 years, the track proposed to be abandoned was in a poor state of maintenance with some of the rails and ties missing, that there had been no train service or traffic over it for many years, and that the colliery served by it 'had long since been abandoned. Within the same year the Interstate Commerce Commission granted the application on the grounds requested and issued a certificate of convenience authorizing taxpayer and the Reading Company to abandon the line. In its income tax return for 1943 taxpayer claimed a loss deduction of $69,324.28, on the theory that the line had been abandoned in that year. The amount of loss claimed represented taxpayer’s investment less estimated salvage value. Actual salvage exceeded the estimated salvage, reducing the claimed loss to $68,060.22. The Commissioner disallowed the loss. Taxpayer paid the resulting deficiency and when its claim for refund was rej ected, brought suit in the District Court. Discussion The crux of the issue presented to the District Court was when the losses resulting from the abandonment of the branch lines involved actually occurred. The taxpayer claimed that they occurred in the years in which the Interstate Commerce -Commission issued certificates of convenience authorizing taxpayer and the -Reading Company to abandon the lines.- The District Court subscribed to the prior determination of the Commissioner of Internal Revenue that the lines were actually abandoned in years preceding the action of the Interstate Commerce Commission. Applicable to.the issue are the following well-settled principles; To be deductible losses of the type asserted by the taxpayer must have been sustained in fact during the taxable year; determination of the year of loss calls for “a practical, not a legal, test”.and requires a consideration of all pertinent facts and circumstances, regardless of their objective or subjective nature; the standard for determining the year fo-r the deduction of a loss “is a flexible one, varying according to the circumstances of each, case” ; the taxpayer’s conduct and attitude are to be considered but they are not decisive; the taxpayer has the burden of establishing that a claimed deductible loss was sustained in the taxable year; the question as to the year when the loss was ‘sustained is purely one of fact to be determined in the first instance by the trier of the facts; the circumstance that the facts are stipulated does not make the issue any less factual in nature; the trier of the facts is entitled to draw whatever inferences and conclusions it deems reasonable from such facts; it is immaterial that different conclusions might fairly be drawn from the undisputed or stipulated facts and the appellate court is limited to a consideration whether the fact finding was “clearly erroneous” and the decision of the trial court was “in accordance with law”; and finally, the requirements of the interstate Commerce Act, 49 U.S.C.A. § 1 et seq., are not determinative of liability under the Revenue Act. We must immediately note, in applying the principles stated to the situation here, that it is our function merely to determine whether the District Court erred as a matter of law and whether its fact-finding was “clearly erroneous”. The substance of the taxpayer’s position is (1) the taxpayer had no knowledge that the branch lines in question were not being maintained; (2) there was nothing in the record to sustain the District Court’s finding that the taxpayer or its lessee intended to abandon prior to the Interstate Commerce Commission proceedings; (3) there must be a coincidence of intention to abandon with the act of abandonment and proof of non-use is not alone sufficient; and (4) there could not have been a lawful abandonment of the branch lines without the permission of the Interstate Commerce Commission under the terms of the Interstate Commerce Act as amended by the Transportation Acts of 1920 and 1940, and consequently the years of abandonment were the years in which the Commission granted its permission. As to taxpayer’s first point it is only necessary to stale that under the principles cited its lack of knowledge, assuming it to he so, was not decisive on the question of abandonment. As to its second point, which demonstrates disagreement with the District Court’s fact finding, we need only state that we do not find such finding “clearly erroneous” in view of the disclosure in the record that the rail lines had not been used for many years following abandonment of the collieries which they had served; that the railroad ties were decayed and a substantial part of the rails and track materials had been stolen. As to taxpayer’s third and fourth points, which are based on its view of the law, we need only state as to the former that under Boehm v. Commissioner of I. R., cited in Footnote 7, there need not he a coincidence of intention of abandonment with the act of abandonment and that the act alone is sufficient, and as to the fourth point, that under Old Colony R. Co. v. Commissioner of 1. R. and Kansas City Southern Ry. Co. v. Commissioner of I. R. cited in Footnote 8, the requirements of the Interstate Commerce Act are not, as previously pointed out, determinative of liability under the Revenue Act. In sum, upon consideration of the record, the District Court’s findings of fact and its clear and exhaustive discussion of the testimony and applicable law, we are of the opinion that the taxpayer has failed to establish either error of law or such clear error of fact as would require reversal. For the reasons stated the judgments of the District Court will be affirmed. . The application set forth the following reasons for requesting the certificate: “(a) As shown in answer to Question No. 2, the branches and portions of branches involved in this application were constructed and have been used exclusively to serve anthracite collieries and washeries which have been abandoned for some years. * * * “(b) No train service has been operated for the past seven to thirteen years over the lines of railroad which applicants here seek to abandon, and no need for future train service over these lines is anticipated. “(c) Applicants desire to salvage the rails and other track materials remaining on the lines of railroad in question before they are stolen.” (file Return to Questionnaire stated in reply to Question 4 (Exhibit 3): “Practically all the ties on the portions of line here sought to be abandoned are decayed and a substantial part of the rails and track materials has been stolen.” . The certificate recited that: “The collieries located on the segments have been abandoned for many years. The last train movement over any portion of the lines sought to be abandoned was more than seven years ago. Since discontinuance of service, maintenance has been neglected, practically all the ties have decayed, and a substantial part of the rail and track material has been stolen. The total net salvage value of the recoverable material is estimated by the applicants to be $5,096. There are no stations on the lines, and few, if any, inhabitants in the territories tributary thereto.” . The application set forth the following reasons for requesting the certificate: “Applicants desire to abandon the line since it no longer serves any industry, train service has not been operated there-over within the last twelve years, and applicants desire to salvage the rails and other track materials remaining in the line so as to put the same to economic use and to prevent theft thereof.” The Return to Questionnaire stated in reply to Question 4 (Exhibit 3): “The track proposed to be abandoned is in a poor state of maintenance with some of the rails and ties missing.” , The certificate recited that: “The anthracite colliery formerly served long since has been abandoned, and no trains have operated over the line for at least 12 years. Few, if any, inhabitants reside in the tributary territory, and no one is dependent upon the line for transportation service. In its isolated location the track materials are subject to theft, and the applicants desire to salvage such rails and fastenings as may still remain for use on other parts of their system or for scrap purposes,” . The opinion of the District Court in No. 10,172 is .reported at 88 F.Supp. 803. The opinion in.No. 10,171 is not reported. . Section 23(f) of the Internal Revenue Code, 26 U.S.C.A. § 23 authorizes a deduction from gross income of “losses sustained during the taxable year and not compensated for by insurance or otherwise.” ' Section 29.23 (e)-l of Treasury Regulations lll’p'rovidcs that the-loss must be “actually sustained during the taxable pe=riod for which allowed”, and “substance and not mere form will govern in determining taxable loss”. Section 29.23(e)-3 of the Regulations provides that in the case of “Doss of Useful Value” of business assets, the difference between the basis, of the property and its salvage value may be claimed for the year in which the loss occurs, “When, through some change in business conditions the usefulness in the business of some or all of the capital assets is suddenly terminated, so that the taxpayer discontinues the business or discards such assets permanently from use in such business.” Section 29.2,3 (f)-l makes the relative provision of Sec. 29.23(e) applicable to corporations as well as individuals. . Boehm v. Commissioner I. R., 1945, 326 U.S. 287, 292, 293, 66 S.Ct. 120, 124, 90 L.Ed. 78, 166 A.L.R. 708, rehearing denied, 326 U.S. 811, 66 S.Ct. 468, 90 L.Ed. 495; Lucas v. American Code Co., 1930, 280 U.S. 445, 449, 50 S.Ct. 202, 74 L.Ed. 538, 67 A.L.R. 1010; Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A.; United States v. U. S. Gypsum Co., 1948, 333 U.S. 364, 394, 395, 68 S.Ct. 525, 92 L. Ed. 746; United States v. Yellow Cab Co., 1949, 338 U.S. 338, 341, 342, 70 S.Ct. 177. . Old Colony R. Co. v. Commissioner I. R., 1932, 284 U.S. 552, 562, 52 S.Ct. 211, 76 L.Ed. 484; Kansas City Southern Ry. Co. v. Commissioner of I. R., 8 Cir.; 1931, 52 F.2d 372, certiorari denied 284 U.S. 676, 52 S.Ct. 131, 76 L.Ed. 572. 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_treat

G

What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. Eda Mae PAGE, Plaintiff-Appellant, v. BARKO HYDRAULICS, Defendant-Appellee. No. 80-3642. United States Court of Appeals, Fifth Circuit. April 16, 1982. Frank S. Thackston, Jr., Greenville, Miss., for plaintiff-appellant. Butler, Snow, O’Mara, Stevens & Cannada, Walter G. Watkins, Jr., Roger C. Land-rum, Jackson, Miss., for defendant-appellee. Before CLARK, Chief Judge, THORN-BERRY and GARZA, Circuit Judges. CLARK, Chief Judge: Rufus Page, an employee of the City of Greenville, Mississippi, died in the course of his employment when he was engulfed in flames while operating a hydraulic knuckle-boom loader manufactured by Barko Hydraulics, Inc. His mother, Eda Mae Page, administratrix of her son’s estate, brought a wrongful death action in the Circuit Court of Washington County, Mississippi against Barko and the City on theories of strict liability in tort and negligence. Page settled with the City and thereafter Barko removed the case to the United States District Court claiming diversity jurisdiction. At the conclusion of the evidence the district court directed a verdict for Barko on the strict liability claim. The negligence claim was permitted to' go to the jury, which returned a verdict for Barko. Applying Mississippi law, we affirm the jury’s verdict, but reverse the directed verdict and remand for a new trial on the issue of strict liability. The limb loader, as it is called by the parties, is a machine designed to be mounted on a truck. It has hydraulically powered arms located at the end of a boom which can pick up felled tree limbs and load them onto the bed of the truck for removal and disposal. The limb loader in question was sold to the City by one of Barko’s dealers, Tri-State Equipment Company of Memphis, Tennessee. City of Greenville employees originally mounted the limb loader on one of the city’s trucks. After that vehicle was involved in a minor accident the limb loader was removed and mounted on a second city truck. The proof at trial demonstrated that the method of mounting on both trucks conformed to Barko’s instructions. The parties stipulated in the pre-trial order that the day prior to the fatal fire, August 16, 1978, there were two fires on the limb loader, and that Rufus Page reported these fires to the city maintenance shop. A city mechanic, Eugene Watson, went out to where Page was working and determined that a hose coupling known as the Aeroquip 90° coupling, or swivel, was leaking hydraulic fluid. Watson brought the swivel back to the city shop for repair. He took it apart and then consulted with his superior, Oscar Worbington. Together, they discovered that the leak resulted from two worn “0” rings in the swivel. Lacking identical replacement parts, Watson and Worbington proceeded to insert four smaller “0” rings into the space provided for the original two. They then reconnected the parts of the swivel and used the original snap ring to lock them back together. Watson reattached the swivel onto the limb loader, and then watched the machine operate for several minutes without incident. Watson testified that he returned that afternoon to where Page was operating the limb loader and once again found no leaking from the repaired swivel. The fatal fire occurred the next morning approximately thirty minutes after Page began operating the limb loader. The parties stipulated that the Aeroquip swivel separated, allowing hydraulic fluid to spew onto the truck’s hot exhaust manifold which caused it to ignite. The manifold was hot because the truck’s engine had to be running for the limb loader to operate. Page suffered second and third degree burns over eighty-seven percent of his body. He was hospitalized for eighteen days, during which’ time he suffered excruciating pain, and then died. The parties disagree as to what caused the swivel to separate. Did Watson’s installation of four incorrect “0” rings in the space where two were designed to fit have anything to do with the swivel’s coming apart? Did Watson correctly replace the snap ring holding the swivel together? Was the snap ring as designed by Barko sufficient to hold the swivel under stress? Did the hydraulic oil surging through the swivel cause it to knock repeatedly against the truck frame resulting in separation? I. Strict Liability Ultimately, the precise cause of the swivel’s separation is immaterial to plaintiff’s primary theory of recovery, which pertains to the overall design configuration of the loader. This theory is based on the fact that in Barko’s approved mounting of the limb loader on the truck, the operator is positioned directly over a number of hydraulic hoses, couplings and valves. These hoses and couplings are in turn positioned directly over the truck’s necessarily hot exhaust manifold. The hoses and couplings, including the Aeroequip 90° swivel, were admitted by Barko to be normal “wear” items not intended to be permanent. Thus, when one of them inevitably failed and leaked, its direct position over the hot, unshielded manifold could result in a fire which would endanger the life of the operator. Page claims that (1) the operator’s seat should have been shielded, or (2) a shield should have been placed over the exposed manifold, or (3) the manifold should have been rerouted. She argues that lacking any such safety features, the limb loader was defectively designed and unreasonably dangerous within the meaning of section 402A. Alternatively, she claims that since Barko knew the swivel would eventually wear out, and admitted that nine out of ten mechanics couldn’t properly repair it, the machine was rendered unreasonably dangerous because of Barko’s failure to warn would-be repairmen to replace the swivel with a new one instead of attempting to repair it. These same allegations were also framed in terms charging Barko with negligent'product design, and negligent failure to warn. Barko’s defense rested primarily on the incorrect repair job done by the City repairmen. Barko argued that the repair constituted a substantial change in the product so as to defeat one of the elements of strict liability. See Fruehauf Corp. v. Trustees of First United Methodist Church, 387 So.2d 106, 109 (Miss.1980). The improper repair was asserted to be an unforseeable misuse of the product which placed no duty on Barko. See Ford Motor Company v. Matthews, 291 So.2d 169, 174-75 (Miss.1974). Furthermore, Barko offered proof that Watson never consulted the repair manual, so that any warning not to attempt to repair the swivel was irrelevant. The jury was told that the incorrectly done repair constituted the sole proximate cause of the fire. The defense argued that this machine and many others like it had operated hundreds of hours without a single incident of this type. This not only inferred reasonableness of design, Ward v. Hobart Manufacturing Co., 450 F.2d 1176, 1182 (5th Cir. 1971), but also, since the first fire of this magnitude on the Greenville truck occurred almost immediately after the misrepair, it created an inference that the misrepair alone caused the fatal fire. Barko asserted for purposes of defeating both the strict liability and negligent design theories that any danger here was open and obvious. See Ward v. Hobart Manufacturing Co., 450 F.2d at 1182. They claimed that in light of the previous day’s fires, Page couldn’t have been told anything more than he already knew — that something was wrong with this machine, and that this machine could burn. The district court directed a verdict on strict liability in part because the plaintiff had failed to offer the requisite proof that there had been no substantial change in the physical parts making up the limb loader since its manufacture. The colloquy between plaintiff’s counsel and the court concerning this point reveals that the district court correctly and explicitly distinguished the two different theories of strict liability potentially involved here, one being defective manufacture or design of such component parts as the swivel and snap ring, and the other being a defective overall design configuration as described above. Insofar as the plaintiff sought to prove that some physical part was defective, we agree with the trial judge that in light of the evidence adduced of changes made to the limb loader, the plaintiff’s failure to rebut that proof by showing the allegedly defective physical articles had remained substantially unchanged was fatal to that aspect of their case. See Fruehauf Corp. v. Trustees of First United Methodist Church, 387 So.2d at 109. As the trial court acknowledged, the plaintiff’s primary theory was based on a defective overall design configuration and not a defect in a component part. However, the court’s directed verdict made no exception for that theory, although the court did recognize that the plaintiff had met her burden of proving that the allegedly defective overall design configuration had remained unchanged. See Ford Motor Co. v. Matthews, 291 So.2d at 173. Rather, the court’s ruling as to defective overall design was limited to three grounds: 1) that the evidence showed all limb loaders were so designed, 2) that this equipment was not the type of product which would bring section 402A liability into play because the hazard of hydraulic oil leaking out and catching on fire if exposed to a manifold was open and obvious and 3) that use of this equipment did not pose the type of inherently dangerous situation of which a consumer like the City of Greenville would be unaware. The first of these grounds, while relevant to negligence, Ward v. Hobart Manufacturing Co., 450 F.2d at 1182, is clearly an incorrect legal standard in strict liability. For purposes of determining whether a product is defective and unreasonably dangerous within the meaning of section 402A, industry custom is inconclusive. An inquiry concerning industry custom obscures the fundamental difference between strict liability and negligence because finding that a product conforms to industry practice necessarily infers the reasonableness of the manufacturer in designing its product. But in strict liability the focus is on the safety of the product itself. See Early-Gary, Inc. v. Waiters, 294 So.2d 181, 186 (Miss.1974). The question is whether the product meets the reasonable expectations of the ordinary consumer as to its safety, id.; State Stove Manufacturing Co. v. Hodges, 189 So.2d 113, 120-21 (Miss. 1966), irrespective of all the care that the manufacturer might have put into making it. Id.; W. Prosser, Handbook of the Law of Torts, § 103 at 672 (4th ed. 1971). Accordingly, the fact that all machines might be made by a common dangerous design would not preclude a finding that a particular brand of limb loader did not meet the reasonable expectations .of the ordinary user as to its safety. The second enumerated basis for the directed verdict on strict liability, that the danger here was open and obvious, is a finding that, on this record, should have been left for the jury. That hydraulic fluid will ignite is like the meatgrinder which injured the hand inserted into it in Ward v. Hobart Manufacturing Co., 450 F.2d at 1186-87. That sort of danger is open and obvious. But. here the danger consisted of an unusual chain of events: hydraulic fluid spewed out of a closed system that should have contained it, it fell upon an exhaust manifold which happened to be directly below, and the resulting inferno engulfed an operator who was located well above the entire apparatus. We cannot say that reasonable minds could not differ as to whether such a danger was open and obvious. The third ground for the directed verdict was that this type of equipment did not pose a danger to which a consumer like the City of Greenville would be unaware. However, the court incorrectly focused on the City, rather than Rufus Page. Because strict liability creates a duty to any foreseeable user of the product, obviousness of danger must likewise be measured in reference to all foreseeable users. See Gordon v. Niagara Machine & Tool Works, 574 F.2d 1182, 1189 (5th Cir. 1978). Reasonable minds could differ that the danger here was obvious to Rufus Page. The evidence showed that Barko approved the design configuration of the limb loader, and that the allegedly defective configuration remained unchanged through the date of the accident. See Ford Motor Co. v. Matthews, 291 So.2d at 173. Because the evidence was of such quality and weight that reasonable jurors could differ, the court erred in directing a verdict that the limb loader was not defective and unreasonably dangerous. Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969). On remand the defendants may still seek to disprove that the limb loader was defective and may seek to prove that the City’s repair was the sole proximate cause of the fire. But based on this record, these issues are for the jury to resolve. “Whether a product is reasonably safe or not is a flexible standard responsive to the facts of each case. It is a question of fact whether the particular article involved was reasonably safe when it left the control of the manufacturer.” State Stove Manufacturing Co. v. Hodges, 189 So.2d at 121. II. Negligence As to negligence, the jury’s verdict must be permitted to stand because it has sufficient evidence to support it. Mary S. Krech Trust v. Lake Apartments, 642 F.2d 98, 103 (5th Cir. 1981). The jury could permissibly have found that Barko was not negligent because it exercised a reasonable standard of care in designing this product which conformed to general industry standards. See Ward v. Hobart Manufacturing Co., 450 F.2d at 1182. The jury could have found the city’s repair constituted an unforeseeable misuse of the product, relieving Barko of any liability. Ford Motor Company v. Matthews, 291 So.2d at 174. Finally, it might have found the repair to be a superseding and sole proximate cause. Id. at 176. The plaintiff advances three evidentiary points on appeal which assertedly mandate reversal of the jury’s verdict. The first point pertains to the exclusion of expert testimony by Dr. Courtney Busch, whose ballpeen hammer testing procedures assertedly proved that the swivel separated as a result of knocking against the truck frame. The court excluded Dr. Busch’s testimony because he was unable to quantify the hammer force applied in his attempt to simulate the knocking of the swivel against the truck frame. A trial court has wide discretion to admit or exclude expert testimony, and only if we determine that a ruling is manifestly erroneous may we find that discretion abused. Stancill v. McKenzie Tank Lines, Inc., 497 F.2d 529, 535 (5th Cir. 1974). Dr. Busch persuasively asserted that it was unnecessary to quantify the force he applied in order for his ultimate conclusions to be relevant. However, we find no abuse by the district court in excluding this testimony. Because he did not duplicate the actual mechanics involved, permitting a jury to consider his experiments, and counsel’s inevitable criticism of the methods utilized, could have been more confusing than helpful. The second evidentiary point relates to the exclusion of rebuttal testimony by Oscar Worbington, Watson’s superior, to the effect that he had read the Barko manual, and found no warnings therein concerning the danger of attempting to. repair, rather than replace, the Aeroquip swivel. The plaintiff offered this testimony to rebut the defendant’s proof that Watson had not consulted the repair manual, thereby making immaterial Barko’s failure to warn. The district judge acknowledged the relevance and importance of this testimony. However, he declined to permit plaintiff’s lawyers to remedy what he perceived to be a defect in their case-in-chief through rebuttal testimony. The conduct of a fair trial is a matter within the trial judge’s discretion. Excel Handbag Co. v. Edison Brothers Stores, Inc., 630 F.2d 379, 388 (5th Cir. 1980). The judge had forewarned all counsel that he intended to be strict in his rulings on rebuttal testimony. We find no abuse of discretion here. The final evidentiary ruling presents a more difficult question. The court admitted, over plaintiff’s strenuous objection, Eda Mae Page’s deposition testimony recalling a conversation between herself and Rufus Page several days after the accident. This conversation took place while Rufus was in the hospital. Mrs. Page testified in this deposition that Rufus said to her: “Mamma, I’m ruint, ain’t I? I’m ruint for life. I’m burnt. This didn’t have to happen. [I] asked them to put new lines on the truck.” Plaintiff’s counsel made a hearsay objection. In response the defendant was unable to establish any other basis for admission of this statement other than the residual, or “catch all”, exception to the hearsay rule provided by the Federal Rules of Evidence 803(24). After hearing extensive arguments from counsel on this point, the district court concluded that all the elements of the rule were present and admitted the testimony. The most troubling aspect of admitting this testimony is subpart (B) of the Rule— that the offered statement is more probative on the point for which it is offered than other evidence which the proponent can procure. Rufus Page was suddenly engulfed in flames and thereafter died. He could not see what caused the fire which severely burned him. He knew only that in response to the previous day’s fires, the City had repaired the Aeroquip swivel. He did not see Watson repair the swivel. His statement to his mother, which was intended to convince the jury that the city’s failure to repair caused the accident, was speculation which had little probative value. Compare Huff v. White Motor Corp., 609 F.2d 286, 292 (7th Cir. 1979). It was most surely cast in an emotional and potentially prejudicial setting. A trial court’s rulings on relevancy and materiality of evidence will not be disturbed absent a clear showing of abuse of discretion. Richardson v. McClung, 559 F.2d 395, 396 (5th Cir. 1977). So too, a district court has considerable discretion in applying the residual exception to the hearsay rule which a court of appeals will not disturb absent a definite and firm conviction that the court made a clear error of judgment in the conclusion it reached based upon a weighing of the relevant factors. Huff v. White Motor Corp., 609 F.2d at 291. The defendants had other witnesses whose testimony was far more probative, and direct, as to the cause of the fire than the statement attributed to Rufus Page. Compare Huff v. White Motor Corp., 609 F.2d at 295. Unquestionably, their testimony was far less prejudicial. In our opinion it would have been a more precise application of Rule 803(24), and would have best served the interests of justice, Rule 803(24)(C), to exclude the offered statement. However, our standard of review requires more than a judgment that we would have ruled differently and so we decline to hold that the statement’s admission was reversible error. Because these evidentiary issues will probably recur on retrial, though not in precisely the same context, we emphasize that our rulings today are not precedent for that time. The district court will be free to reconsider these issues anew. AFFIRMED IN PART, REVERSED AND REMANDED IN PART. . Mississippi has adopted section 402A of the American Law Institute’s Restatement of Torts (Second) as the appropriate standard of strict liability for product manufacturers. State Stove Manufacturing Co. v. Hodges, 189 So.2d 113, 118 (Miss. 1966), cert. denied 386 U.S. 912, 86 S.Ct. 860, 17 L.Ed.2d 784 (1967). Section 402A provides: Special Liability of Seller of Product for Physical Harm to User or Consumer— (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. . Rule 803(24) provides: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (24) Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness if the court determines that (A) the statement is offered as evidence of a material fact, (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence ... Rule 804(5), which relates to a situation such as is present here where the declarant is unavailable, is identical to Rule 803(24). Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:

songer_opinstat

B

What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. REPUBLIC OF FRANCE and Compagnie Generale Transatlantique, Appellants, v. UNITED STATES of America et al., Appellees. No. 18064. United States Court of Appeals Fifth Circuit. Aug. 24, 1962. Edwin Longcope, New York City, Clarence S. Eastham, Houston, Tex., for appellants. John R. Greene, Asst. U. S. Atty., Houston, Tex., Samuel D. Slade, Carl C. Davis, Alan S. Rosenthal, Edward A. Groobert, Dept. of Justice, Washington, D. C., Preston Shirley, Galveston, Tex., for appellees. Before TUTTLE, Chief Judge, and HUTCHESON, RIVES, CAMERON and JONES, Circuit Judges. PER CURIAM. In entering the judgment in this ease pursuant to the opinion reported at 5 Cir., 290 F.2d 395, certiorari denied 369 U.S. 804, 82 S.Ct. 644, 7 L.Ed.2d 550, no express provision was made as to costs. The petitioners-appellants, Republic of France and Compagnie Generale Trans-atlantique, present their bill of costs, the correctness of which is not questioned, as follows: "1. Clerk’s docketing fee $ 25.00 “2. Clerk’s charges for printing record on appeal 9,024.25 “3. Printing brief on appeal $ 75.00 “4. Proctor’s fee on appeal 100.00 “5. Transcript of oral argument on appeal 261.30 $9,485.55” Petitioners-appellants concede that costs are not taxable against the United States, but, under New Orleans Coal & Bisso Towboat Co. v. United States, 5 Cir., 1937, 89 F.2d 967, move for an order allowing recovery to them of one half of the costs aforesaid from the claimant-ap-pellee, Texas City Terminal Railway Company. Texas City Terminal, on its part, “has no quarrel with the total amount of costs listed by appellants in their motion,” “does not here contest the ruling in New Orleans Coal & Bisso Towboat Co. v. United States, et al.,” and “recognizes that it is responsible for some of the costs in this Court.” It states its position as follows: “(1) Reconstruction Finance Corporation, as a separate corporate entity, filed its claim contesting the limitation proceedings and continued to do so (R. 114, 119 and 188). Under the authority of R. F. C. v. [J. G.] Menihan, 312 U.S. 81 [61 S.Ct. 485, 85 L.Ed. 595], it should bear its proper proportion of the costs. “(2) As a prerequisite for assessing costs, Appellants must show who were and who were not Appellees and under the record in this case, it appears that there may be numerous Appellees who under the prior rulings of this Court would also share in the cost assessment.” Position (2) may be quickly disposed of by noting that the only appellee other than the United States was the Texas City Terminal Railway Company. As said in our original opinion: “The claims of all persons who made assignments to the United States were dismissed on January 27, 1958. Many persons who had not made assignments to the United States thereafter voluntarily withdrew their claims. The only remaining claimant, other than the United States, is the Texas City Railway Terminal Co. That Company did not file under the Texas City Relief Act because it was not willing to assign an uninsured loss of nearly five million dollars for the $25,000.00 maximum allowed under the Relief Act. In addition to its assigned claims, the United States filed a claim in the amount of $350,000, as successor to the Reconstruction Finance Corporation, for the loss of goods in a warehouse awaiting loading on another vessel.” Republic of France v. United States, 5 Cir., 1961, 290 F.2d 395, 396. Thus, as the issue remains, the petitioners-appellants contend that Texas City Terminal should be assessed one half of the taxable costs. Texas City Terminal, on the other hand, relying upon R. F. C. v. J. G. Menihan, supra, insists that the United States as successor to R. F. C. should bear one third of the costs. The United States, on its part, points out: “In R. F. C. v. [J. G.] Menihan, 312 U.S. 81 [61 S.Ct. 485, 85 L.Ed. 595] (1940), the R. F. C., which was then in active operation, brought in its own name and in its corporate capacity an unsuccessful suit for trade-mark infringement, and the question arose as to whether it was subject to costs. The Court considered the question by reference to the essential nature of the Government corporation and also the intent of Congress with respect to the taxation of costs. The Court pointed out that the R. F. C., like any other corporate entity, had the power to sue and be sued in its corporate capacity. Accordingly, the Court reasoned that there was nothing in the statute suggesting any intention of Congress that in suing and being sued the R. F. C. should not be subject to the ordinary incident of unsuccessful litigants in being liable for the costs which might properly be awarded against a private party in a similar case. “However, the Congressional intent that the Supreme Court failed to find in the original Reconstruction Finance Corporation Act, namely that R. F. C. should not be liable for costs, was supplied in the amendment to the Reconstruction Finance Corporation Act (15 U.S.C. 601 et seq.) by the Act of May 25, 1948, Chapter 334, 62 Stat. 261, in which section 3(a) had the following language inserted, ‘The corporation shall be entitled to and granted the same immunities and exemptions from the payment of costs, charges and fees as are granted to the United States pursuant to the provisions of law, codified 543, 548, 555, 557, 578 and 578(a) of Title 28 United States Code, 1940 Edition.’ ” Of the cited sections, Section 543 dealt with costs in the then Circuit Couirt of Appeals. Immunity was granted to the R. F. C. from such costs. True, a month later, on June 25, 1948, the new Judicial Code was adopted, Act of June 25, 1948, Chapter 646, 62 Stat. 868, and by that Act, Section 543 and certain other sections referred to in the R. F. C. Act of May 25, 1948, were repealed. The immunity of the United States was more comprehensively stated in Section 2412 (a) of the new Judicial Code, as follows: “(a) The United States shall be liable for fees and costs only when such liability is expressly provided for by Act of Congress.” 28 U.S.C.A. §'2412(a). There is thus no indication that Congress intended by the repeal of Section 543 to destroy the immunity granted to the R. F. C. by the Act of May 25, 1948. It results that no costs can be assessed against the United States as successor to the R. F. C. One half of the taxable costs as hereinabove listed are therefore taxed against Texas City Terminal Railway Company, the other one half of such costs to be not taxed at all. The judgment herein will be amended accordingly, Question: Is the opinion writer identified in the opinion, or was the opinion per curiam? A. Signed, with reasons B. Per curiam, with reasons C. Not ascertained Answer:

songer_origin

H

What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. COCHRAN v. COMMISSIONER OF INTERNAL REVENUE. No. 9386. Circuit Court of Appeals, Third Circuit. Argued June 4, 1947. Decided July 9, 1947. Rehearing Denied Aug. 19, 1947. Morse Garwood, of Philadelphia, Pa. (Shippen Lewis and MacCoy, Brittain, Evans & Lewis, all of Philadelphia, Pa., on the brief), for petitioner. Louise Foster, of Washington, D. C. (Sewall Key, Acting Asst. Atty. Gen., and George A. Stinson, Sp. Asst, to Atty. Gen., on the brief), for respondent. Before McLAUGHLIN and O’CONNELL, Circuit Judges, and LEAHY, District Judge. O’CONNELL, Circuit Judge. In 1925, petitioner inherited real estate valued at $67,000 in the decedent’s estate tax return. In 1927, she sold the property. The sale price was $97,500, of which $27,-500 was paid in cash and the remaining $70,000 was covered by a purchase money bond and mortgage bearing 6% interest. She did not report the taxable gain in either her 1927 or any subsequent income tax return. In 1932, on the due date of the mortgage, the purchaser defaulted. Petitioner agreed to let the purchaser remain on the property in return for the payment of the 6% interest as it accrued. This arrangement continued until 1936, when the interest rate was reduced to 3%. In 1941, the purchaser failed to pay the interest and asked that the mortgage be reduced from $70,000 to $5,000. This request was refused. Petitioner investigated the' purchaser’s financial condition, as a result of which she concluded that the mortgage debt, over and above the value of the collateral, was uncollectible. She thereupon instructed her agent to write off on the agent’s records the difference between $70,-000 and $26,800, the value of the property at that time. Entry on the agent’s records-was made accordingly, and petitioner claimed on her 1941 return the difference, $43,200, as a partial bad debt deduction. Respondent, disallowing most of that deduction, determined a deficiency in petitioner’s 1941 tax return. In an unreported memorandum opinion, the Tax Court held that petitioner was entitled to claim a partial bad debt in 1941, since that was the date when “she ascertained * * * that the debtor had no assets other than the property in question from which she might reasonably have expected to make any substantial recovery on the indebtedness.” The Tax Court further held, however, that petitioner had erred in computing the deduction. It said, “No evidence was offered by petitioner as to the value of the note as of the date of ■sale in 1927. The only evidence in the case •as to such value is the determination by the respondent fixing said value at $37,238.75 * * *.” Petitioner was accordingly held entitled to a deduction of only $10,438.75. Petitioner urges that the purchase money bond and mortgage in 1927 was worth its face value, $70,000. The Tax 'Court finding is alleged to be wrong on two grounds: (a) petitioner did introduce evidence of the value of the note, in that the sale price of $97,500 was evidence that the note was worth face value, and (b) respondent’s “deficiency letter is not evidence before the Tax Court, unless it is stipulated to be,” and consequently respondent’s valuation of $37,238.75 “was not in evidence at all.” There can be no doubt that the value of the note in 1927 — be it $70,000, $37,238.75, or some third figure — as well as the value of the property itself, are purely questions of fact. See Mistrot v. Commissioner, 5 Cir., 1936, 84 F.2d 545, and Maxfield v. United States, 9 Cir., 1945, 152 F.2d 593. If there is any evidentiary basis for the Tax Court’s finding, therefore, it is equally clear that this court may not substitute its own evaluation for that of the Tax Court. See Dobson v. Commissioner, 1943, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248; John Kelley Co. v. Commissioner, 1946, 326 U.S. 521, 527, 66 S.Ct 299, 90 L.Ed. 278. The deficiency letter of the Commissioner was part of the record before the Tax Court, by virtue of Rule 6(i) of the Rules of Practice Before the Tax Court of the United States, revised August 1, 1946, 26 U.S.C.A. Int.Rev.Code, following section £012, which rule is authorized by Section 1111 of the Internal Revenue Code, 26 U. S.C.A. Int.Rev.Code, § 1111, as amended by Section 504 of the Revenue Act of 1942, October 21, 1942, 56 Stat. 798, 26 U.S.C.A. Int.Rev.Code, § 1100. Consequently, whether or not the deficiency letter was stipulated is immaterial; and, even if we were to assume arguendo that the evidence of the 1927 sale was also evidence of the fair value of the property and note, petitioner’s position at best would be to allege that her basis of computation was more sound than that of respondent. In such reweighing of factual evidence we may not indulge. “The Tax Court has the primary function of finding the facts in tax disputes, weighing the evidence, and choosing from among conflicting factual inferences and conclusions those which it considers most reasonable. The Circuit Courts of Appeal have no power to change or add to those findings of fact or to reweigh the evidence. And when the Tax Court’s factual inferences and conclusions are determinative of compliance with statutory requirements, the appellate courts are limited to a determination of whether they have any substantial basis in the evidence. The judicial eye must not in the first instance rove about searching for evidence to support other conflicting inferences and conclusions which the judges or the litigants may consider more reasonable or desirable. It must be cast directly and primarily upon the evidence in support of those made by the Tax Court. If a substantial basis is lacking the appellate court may then indulge in making its own inferences and conclusions or it may remand the case to the Tax Court for further appropriate proceedings. But if such a basis is present the process of judicial review is at an end. [Citing cases.]” Commissioner v. Scottish American Co., 1944, 323 U.S. 119, 123, 124, 65 S.Ct. 169, 171, 89 L.Ed. 113. Accordingly, we need not review defenses of respondent directed to the merits of the case at bar. The decision of the Tax Court will be affirmed. Respondent arrived at this figure by subtracting from $67,000, the value at inheritance, (1) $2,261.25, depreciation at 2% for the two-year period during which she owned the property, and (2) $27,500, the cash payment made at the time of sale. The burden of proving respondent’s determination invalid was, of course, upon petitioner. Rule 32, Rules of Practice Before the Tax Court of the United States; and see Helvering v. Taylor, 1935, 293 U.S. 507, 515, 55 S.Ct. 287, 79 L.Ed. 623. Pertinent portions of the rule are as follows: “Rule 6. * * * The Petition shall be complete in itself so as fully to state the issues. It shall contain: * * * ❖ * * * “(i) A copy of the notice of deficiency (or liability, as the case may be), shall be appended to the petition. If a statement has accompanied the notice of deficiency, so much thereof as is material to the issues set out in the assignments of error likewise shall be appended. * * * ” We point out in passing that petitioner’s evaluation depends upon a note being worth its face value, a conclusion on which a difference of opinion is by no moans unlikely. 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_r_subst

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. In the Matter of JERSEY CITY MEDICAL CENTER, Debtor. Appeal of FINCH FUEL OIL COMPANY. Appeal of FINCH FUEL OIL COMPANY, a general unsecured creditor in the above designated bankruptcy proceeding. No. 86-5408. United States Court of Appeals, Third Circuit. Argued Jan. 23, 1987. Decided May 4, 1987. George B. Gelman (Argued), Philip L. Guarino, Gelman & McNish, Hackensack, N.J., for appellant. Sheldon Schachter, Kleinberg, Moroney, Masterson & Schachter, Millbum, N.J., Jack M. Zackin (Argued), Ravin, Greenberg & Zackin, P.A., Roseland, N.J., for appellee. Before SEITZ, BECKER, and MANSMANN, Circuit Judges. OPINION OF THE COURT MANSMANN, Circuit Judge. This matter comes before us on appeal from an order of the district court, which affirmed a bankruptcy judge’s order confirming the debtor’s modified plan for the adjustment of its debts under Chapter 9 of the Bankruptcy Code. We possess jurisdiction pursuant to 28 U.S.C. § 158(d) (Supp. II 1984). Because the debtor proposed the plan lawfully and in good faith, and since the plan permissibly classified the claims of the debtor’s various unsecured creditors, we will affirm the judgment of the district court. I. The Jersey City Medical Center (“JCMC” or “the debtor”) is a public municipal hospital which, since 1936, has provided health care for the Hudson County, New Jersey community, including a substantial number of indigent patients. The plaintiff, Finch Fuel Oil Co. (“Finch”), is a general unsecured creditor to which (according to Finch) JCMC became indebted in the amount of $408,339.40. In January of 1982, after the State Commissioner of Health found JCMC “financially distressed,” then-Govemor Byrne appointed a reconstituted Board of Managers to replace JCMC’s Board. On December 29, 1982, JCMC filed a petition under Chapter 11 of the Bankruptcy Code, which the bankruptcy judge dismissed on the ground that JCMC was a municipal corporation and was, therefore, ineligible for Chapter 11 reorganization. On February 10, 1983, JCMC filed a petition for the adjustment of the debts of a municipality under Chapter 9 of the Bankruptcy Code. 11 U.S.C. §§ 901-946. The Official Unsecured Creditors’ Committee objected to the petition because the City of Jersey City allegedly remained liable for the debtor’s debts. The bankruptcy judge denied the committee’s motion to dismiss the petition, and the district court affirmed that judgment. Following extended negotiations, JCMC on March 29, 1985 filed a plan for the adjustment of its debts along with a disclosure statement. In May of 1985, Finch and the Unsecured Creditors’ Committee filed objections to the disclosure statement, insisting that the debtor possessed funds sufficient to satisfy 100% of all creditors’ claims by virtue of the reimbursement of JCMC’s pre-petition costs from the State Department of Health, and contending that the City of Jersey City was responsible for JCMC’s debts. The bankruptcy judge, however, approved the disclosure statement as amended. It is instructive to note that, prior to the confirmation of JCMC's Chapter 9 petition, Finch filed suit in state court against the City of Jersey City seeking a declaration that the city was liable for JCMC’s outstanding debts. Yet the trial court entered summary judgment in favor of the city and against Finch. The appellate division affirmed that judgment and the New Jersey Supreme Court denied Finch’s petition for certification. On June 4, 1985, the debtor submitted a modified plan. That plan provides that priority claims (designated “Class One” under the plan) will be paid on the plan’s effective date. Claims of governmental units will be satisfied within six years from the date of their assessment, with interest at the prevailing rate established by Internal Revenue Service regulations. The court will disburse costs, expenses, and fees by order. Furthermore, the plan divides the debt- or’s unsecured creditors into four additional classes. “Class Two” creditors — physicians with claims arising out of agreements with the debtor for indemnity against medical malpractice awards — will receive 100% of their claims as finally allowed. “Class Three” creditors — holders of pre-petition medical malpractice claims against JCMC— will get 30% of their claims. Both “Class Two” and “Class Three” payments will come directly from the Jersey City Insurance Fund Commission which, on July 30, 1985, entered into a contract with the debt- or to that effect. “Class Four” creditors — employee benefit plan non-priority claims — and “Class Five” claimants — general creditors — will obtain 30% of their claims on the effective date of the plan. Disputed claims from these classes will be paid upon the entry of non-appealable orders of the court. Classes Four and Five also will receive pro rata shares from a “surplus fund” and from a pool consisting of 50% of the debtors’ excess 1984 gross revenues. Notably, the modified plan preserved the creditors’ rights to recover the rest of their debts from third parties, including the City of Jersey City. The ballot for approval of the plan provided: The acceptance and/or rejection by the undersigned creditor of the Debtor’s Modified Plan of Reorganization does not constitute a waiver or release of any rights to seek recovery of the creditor’s debt in excess of the dividend under the Modified Plan of Reorganization against third parties or other entities liable by contract or as a matter of law for said obligation. On July 25, 1985, Finch — the only dissenting member of the general unsecured creditors’ committee — filed objections to the modified plan. The bankruptcy judge held a lengthy hearing on August 6, 1985. Following the hearing, the attorney for the debtor reported to the judge which classes of claimants had accepted the plan and which had rejected it, according to 11 U.S.C. § 1126. The ballots indicated that Classes Three and Four rejected, and that “Class Five” accepted, the plan. Members of “Class Two” did not vote, apparently since the plan left their claims unimpaired. See 11 U.S.C. § 1126(f). The bankruptcy judge found that the plan comported with the bankruptcy code and with the best interests of the creditors. The district court entered an order affirming the bankruptcy judge’s order confirming the debtor’s plan, and this appeal followed. II. A. Finch presses two issues on appeal. First, it argues that the bankruptcy judge erred in confirming the debtor’s modified plan for the adjustment of its debts since the plan violates the requirement in 11 U.S.C. § 1129(a)(3) that “[t]he plan [must have] been proposed in good faith and not by any means forbidden by law.” Finch cites three instances of JCMC’s alleged bad faith. Finch complains: (a) that the debtor has failed to pursue a claim against the city supposedly arising when the debtor surrendered its right to occupy certain city properties without paying rent; (b) that JCMC by virtue of the state’s rate-setting procedures, had recouped its pre-petition costs— including all debts owing to the general unsecured creditors — in full; and (c) that the debtor misappropriated funds allocated by law for pre-petition debts in order to improve its facilities. Second, Finch contends in its points of error that the bankruptcy judge erroneously confirmed the debtor’s plan, since the disparate treatment of “Class Two” and the other general unsecured creditors allegedly contravenes the provision in § 1129(b) that the plan must not discriminate unfairly with respect to each class of impaired, dissenting claimants. B. Oh review, the bankruptcy judge’s factual findings should stand unless clearly erroneous. In re Morrissey, 717 F.2d 100, 104 (3d Cir.1983); Bankr.R. 8013, 11 U.S.C. (Supp. II 1984). We independently determine questions of law. See Universal Minerals v. C.A. Hughes & Co., 669 F.2d 98, 101-02 (3d Cir.1981). III. The bankruptcy judge found that the debtor’s plan for the adjustment of its debts satisfied the statutory requirement that “[t]he plan [be] proposed in good faith and not by any means forbidden by law.” 11 U.S.C. § 1129(a)(3). The bankruptcy judge’s findings of fact in support of this conclusion are not clearly erroneous. A. We find devoid of merit Finch’s complaint that the debtor failed to obtain remuneration, from the City of Jersey City allegedly owing from the debtor’s surrender of city premises which it occupied rent-free. Although the record indicates that the city plans to convert the former JCMC buildings into a residential condominium complex, Finch offers neither a factual basis nor a legal theory to support its argument that the debtor deserves compensation as a former gratis tenant. B. Similarly, there is no evidence that JCMC, by virtue of the state’s rate-setting procedures, had recouped its pre-petition costs in full. We cannot label clearly erroneous the bankruptcy judge’s factual finding that JCMC’s modified plan distributes all funds available as a result of JCMC’s 1982 rate adjustment. The record directly belies Finch’s assertion that “thirteen million dollars has been awarded [JCMC] to cover its 1982 costs.” Concededly, JCMC’s disclosure statement reported that funds available to creditors pursuant to the plan represented a portion of a $13,000,000 rate adjustment authorized by the State Department of Health. As JCMC Executive Director Harvey Holzberg and Chief Financial Officer Ronald DiVito testified, however, JCMC historically collected only about 65% to 75% of its billings, due to its substantial number of indigent patients. Thus, JCMC’s accounts receivable always exceeded actual receipts by 25% to 35%. The following exchange between counsel for Finch and the bankruptcy judge emphasizes that the debtor had collected far less than $13,000,000: MR. GELMAN: And, I think I am trying to show, in my own humble way, that in point of fact the Medical Center which claims its bankruptcy was precipitated by the failure of the State to fund its operations fully in 1982, has collected some thirteen million dollars on account of the — wait a minute, Judge. On account of the 1982 deficiency. # * * * * * THE COURT: If you are going to tell me that’s the testimony of either of the two witnesses before me, I’m going to tell you if that is what you are relying on, you haven’t even come close, because maybe I am ignorant both of accounting and of Chapter 9, but I have heard this witness. I think I have a pretty good idea of the way the State operates, and to make a statement of collecting thirteen million dollars as having come from the cross-examination of these two witnesses is totally, Mr. Gelman, off base. It bears no relationship to what they have said. This witness has very carefully tried to differentiate his testimony in response to your questions, and I think very frankly he has done an excellent job of explaining the State system, which I happen, by reasons of some other experience of my own, have some vague understanding of. And, there is just simply no statement before me that says that they have collected thirteen million dollars of these back charges. Furthermore, the bankruptcy judge found “deceptive” the subsequent testimony of Finch's witness, Ronald Hibbs (a rate setting analyst with the State Department of Health), who attempted to rebut the testimony of both Holzberg and DiVito. The record nowhere evinces that the debtor had collected revenues by means of its 1982 rate adjustment sufficient to increase payments to Finch and to the other general unsecured creditors under the modified plan. C. Moreover, we agree with the bankruptcy judge that JCMC acted properly in expending funds to improve its facilities and in depreciating its property for rate determination purposes. Indeed, it appears from the testimony of Finch’s own witness, Hibbs, that state regulations provide that amounts taken for depreciation expenditures should be used for capital improvements. In sum, we hold that the bankruptcy judge correctly found that the debtor proposed its plan lawfully and in good faith and, thereby, satisfied 11 U.S.C. § 1129(a)(3). IV. We turn next to Finch’s argument that the debtor’s plan discriminates unfairly among the general unsecured creditors and that, therefore, confirmation of the plan was error. A. At the outset, nothing in the Bankruptcy Code precludes the debtor from variously classifying the unsecured claims here. Title 11 U.S.C. § 1122 governs the classification of claims or interests in Chapter 9 plans: (a) Except as provided in subsection (b) of this section, a plan may place a claim or an interest in a particular class only if such claim or interest is substantially similar to the other claims or interests of such class. (b) A plan may designate a separate class of claims consisting only of every unsecured claim that is less than or reduced to an amount that the court approves as reasonable and necessary for administrative convenience. The express language of this statute explicitly forbids a plan from placing dissimilar claims in the same class; it does not, though, address the presence of similar claims in different classes. Although the legislative history behind § 1122 is inconclusive regarding the significance (if any) of this omission, it remains clear that Congress intended to afford bankruptcy judges broad discretion to decide the propriety of plans in light of the facts of each case. Cf. In re U.S. Truck Co., Inc., 800 F.2d 581, 584-86 (6th Cir.1986) (discussing the legislative history of § 1122). Accordingly, we agree with the general view which permits the grouping of similar claims in different classes. See In re U.S. Truck Co., Inc., 800 F.2d at 587; Matter of LeBlanc, 622 F.2d 872, 879, reh’g denied, 627 F.2d 239 (5th Cir.1980); Barnes v. Whelan, 689 F.2d 193, 200-01 (D.C.Cir.1982). See also In re AOV Industries, Inc., 792 F.2d 1140, 1150 (D.C.Cir.1986) (requiring an objecting creditor to show not only that similar claimants appear in different classes, but also that those in its class have disparate claims); 5 Collier on Bankruptcy ¶ 1122.03[l][b] at 1122-7 (15th Ed.1986) (noting that § 1122 “does not require that all claims that are substantially similar be placed in the same class”). In addition, however, the authorities recognize that the classification of the claims or interests must be reasonable. As the Court of Appeals for the Sixth Circuit has observed: [Tjhere must be some limit on a debtor’s power to classify creditors in such a manner [to assure that at least one class of impaired creditors will vote for the plan and make it eligible for cram down consideration by the court]. The potential for abuse would be significant otherwise. Unless there is some requirement of keeping similar claims together, nothing would stand in the way of a debtor seeking out a few impaired creditors (or even one such creditor) who will vote for the plan and placing them in their own class. [Footnote omitted.] In re U.S. Truck Co., Inc., 800 F.2d at 586. The court in Matter of LeBlanc likewise found that a plan should not “arbitrarily” designate classes. 622 F.2d at 879. JCMC’s plan passes muster under these standards. We immediately note the reasonableness of distinguishing the claims of physicians, medical malpractice victims, employee benefit plan participants, and trade creditors. We additionally recall that JCMC’s unsecured trade creditors overwhelmingly favored the plan. This fact commends the plan’s classification scheme, at least insofar as it affects Finch. See id., citing In re Palisades-on-the-Desplaines, 89 F.2d 214 (7th Cir.1937). Further, we find nothing to show arbitrariness toward Finch as a member of “Class Five”; indeed, the general unsecured creditors’ committee points out in its brief that both “Class Five” and “Class Four” ultimately will receive 30% of their claims on the effective date of the plan. Moreover, the separate classification of trade creditors like Finch does not alone insure judicial approval of the debtor’s plan. It still must “provide the same treatment for each claim or interest of a particular class....” 11 U.S.C. § 1123(a)(4). Yet, as the Court of Appeals for the Ninth Circuit has noted, “[Section 1123(a)(4) ] only requires equality of treatment of ‘claims’ or ‘interests’ placed in the same class.” In re Acequia, Inc., 787 F.2d 1352, 1363 (9th Cir.1986). See 5 Collier on Bankruptcy ¶ 1123.01[4] at 1123-8-1123-9. JCMC’s plan satisfies that requirement. B. Finally, Finch insists that JCMC’s plan fails to satisfy the “cram down” provisions of 11 U.S.C. § 1129(b)(1). That section comes into play only “if all of the applicable requirements of subsection (a) of this section other than paragraph (8) are met with respect to a plan....” 11 U.S.C. § 1129(b)(1) (emphasis added). Section 1129(a)(8) provides: (a) The court shall confirm a plan only if all of the following requirements are met: (8) With respect to each class of claims or interests— (A) such class has accepted the plan; or (B) such class is not impaired under the plan. Here, since “Class Five” (to which Finch belongs) has accepted JCMC’s plan, see supra note 4, § 1129(b)(1) affords Finch no protection. We, therefore, need not address whether the plan satisfies the “cram down” provision. V. The bankruptcy judge properly concluded that the debtor proposed its plan lawfully and in good faith. The plan, as well, permissibly classified the claims of JCMC’s various unsecured creditors. The judgment of the district court affirming the bankruptcy judge’s order confirming the debtor’s modified plan for the adjustment of its debts will, accordingly, be affirmed. . The modified plan defines “surplus fund” as "the difference between $4,619,200[,] the Debt- or’s estimate of priority claims, exclusive of administration fees and expenses, and the total amount of priority claims allowed herein exclusive of administration fees and expenses, together with 30% of the difference between $7,820,-125, the Debtor’s estimate of Class Four and Five claims and the total amount of Class Four and Five claims allowed herein." . The original plan defined “excess 1984 gross revenues” as "the amount, if any, by which unrestricted cash received by and credited to the Debtor in calendar year 1984 exceeded the sum of $64,336,000.00." The modified plan fixed that amount at $120,000. . 11 U.S.C. § 1126(c) provides: A class of claims has accepted a plan if such plan has been accepted by creditors ... that hold at least two-thirds in amount and more than one-half in number of the allowed claims of such class held by creditors ... that have accepted or rejected such plan. . "Class Three" cast one vote for and twenty-five against the plan; the ballots stated claims in the amount of $32,400,000. "Class Five" voted 251 to 10 in favor of the plan. The ten dissenting claimants held claims totaling just $462,874 out of an aggregate $4,970,000. The “Class Four" ballots showed that 274 of 344 claimants opted to accept the plan, but that their claims represented only $445,934 or approximately 54 percent of the $820,888 owing to "Class Four." However, one dissenting class member asserted a claim exceeding $100,000 for vacation and holiday pay which had accrued 180 days prior to the debtor’s bankruptcy petition. This ballot seemed patently erroneous. The bankruptcy judge, nonetheless, assumed that "Class Four” had rejected the plan. Although the debtor reserved the right to defer consideration of the plan and to poll "Class Four" again, no party on appeal has contested the bankruptcy judge’s actions on this issue. Thus, we assume without deciding that “Class Four" rejected the plan. . 11 U.S.C. § 901(a) makes various sections of the Bankruptcy Code at large applicable to the adjustment of the debts of a municipality pursuant to Chapter 9. Section 901(a) provides: Sections 301, 344, 347(b), 349, 350(b), 361, 362, 364(c), 364(d), 364(e), 364(f), 365, 366, 501, 502, 503, 504, 506, 507(a)(1), 509, 510, 524(a)(1), 524(a)(2), 544, 545, 546, 547, 548, 549(a), 549(c), 549(d), 550, 551, 552, 553, 557, 1102, 1103, 1109, 1111(b), 1122, 1123(a)(1), 1123(a)(2), 1123(a)(3), 1123(a)(4), 1123(a)(5), 1123(b), 1124, 1125, 1126(a), 1126(b), 1126(c), 1126(e), 1126(f), 1126(g), 1127(d), 1128, 1129(a)(2), 1129(a)(3), 1129(a)(8), U29(a)(10), 1129(b)(1), 1129(b)(2)(A), 1129(b)(2)(B), 1142(b), 1143, 1144, and 1145 of this title apply in a case under this chapter. . In its brief, Finch also complained that the plan does not take into account the averred liability of the City of Jersey City for JCMC’s debts. At oral argument, however, Finch conceded that issue. When Finch filed its notice of appeal to our court, the New Jersey Supreme Court had yet to act upon Finch’s petition for certification in its action to determine the liability of the City of Jersey City for JCMC’s debts. (The state Supreme Court subsequently denied the petition.) Thus, Finch apparently believed that the decision of the appellate division lacked finality, at least so long as the petition for certification remained pending. We emphasize, however, that 28 U.S.C. § 1738 requires federal courts to afford state court judgments the same preclusive effect which would exist in the rendering state. Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980). See Migra v. Warren City Dist. Bd. of Educ., 465 U.S. 75, 80-81, 104 S.Ct. 892, 895-96, 79 L.Ed.2d 56 (1984). New Jersey law recognizes a judgment as "final” for res judicata purposes, even though it is pending on appeal. See, e.g., Gregory Marketing Corp. v. Wakefern Food Corp., 207 N.J.Super. 607, 504 A.2d 828, 836 (1985). Since the New Jersey Supreme Court has now denied the petition for certification, there is no question that the judgment is now final for res judicata purposes as Finch concedes. . Although "Class Three” similarly will obtain 30% of its claims, additional sums apparently will pass through "Class Two" to “Class Three.” We, therefore, refrain from comparing "Class Three" to Classes Four and Five. Question: What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number. Answer:

sc_issue_2

41

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. CORRECTIONAL SERVICES CORP. v. MALESKO No. 00-860. Argued October 1, 2001 Decided November 27, 2001 Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-nor, Scajua, Kennedy, and Thomas, JJ., joined. Scalia, J., filed a concurring opinion, in which Thomas, J., joined, post, p. 75. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined, post, p. 75. Carter G. Phillips argued the cause for petitioner. With him on the briefs were Frank R. Volpe, George P. Stasiuk, and Karen M. Morinelli. Jeffrey A. Lamken argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Underwood, Deputy Solicitor General Clement, Barbara L. Herwig, and Thomas M. Bondy. Steven Pasternak argued the cause for respondent. With him on the brief was David C. Vladeck. Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union by Elizabeth Alexander, Margaret Winter, David Fathi, and Steven R. Shapiro; and for the Legal Aid Society of the City of New York by Daniel L. Greenberg and John Boston. Chief Justice Rehnquist delivered the opinion of the Court. We decide here whether the implied damages action first recognized in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), should, be extended to allow recovery against a private corporation operating a halfway house under contract with the Bureau of Prisons. We decline to so extend Bivens. Petitioner Correctional Services Corporation (CSC), under contract with the federal Bureau of Prisons (BOP), operates Community Corrections Centers and other facilities that house federal prisoners and detainees. Since the late 1980’s, CSC has operated Le Marquis Community Correctional Center (Le Marquis), a halfway house located in New York City. Respondent John E. Malesko is a former federal inmate who, having been convicted of federal securities fraud in December 1992, was sentenced to a term of 18 months’ imprisonment under the supervision of the BOP. During his imprisonment, respondent was diagnosed with a heart condition and treated with prescription medication. Respondent’s condition limited his ability to engage in physical activity, such as climbing stairs. In February 1993, the BOP transferred respondent to Le Marquis where he was to serve the remainder of-his sentence. Respondent was assigned to living quarters on the fifth floor. On or about March 1,1994, CSC instituted a policy at Le Marquis requiring inmates residing below the sixth floor to use the staircase rather than the elevator to travel from the first-floor lobby to their rooms. There is no dispute that respondent was exempted from this policy on account of his heart condition. Respondent alleges that on March 28, 1994, however, Jorge Urena, an employee of CSC, forbade him to use the elevator to reach his fifth-floor bedroom. Respondent protested that he was specially permitted elevator access, but Urena was adamant. Respondent then climbed the stairs, suffered a heart attack, and fell, injuring his left ear. Three years after this incident occurred, respondent filed a pro se action against CSC and unnamed CSC employees in the United States District Court for the Southern District of New York. Two years later, now acting with counsel, respondent filed an amended complaint which named Urena as 1 of the 10 John Doe defendants. The amended complaint alleged that CSC, Urena, and unnamed defendants were “negligent in failing to obtain requisite medication for [respondent’s] condition and were further negligent by refusing [respondent] the use of the elevator.” App. 12. It further alleged that respondent injured his left ear and aggravated a pre-existing condition “[a]s a result of the negligence of the Defendants.” Ibid. Respondent demanded judgment in the sum of $1 million in compensatory damages, $3 million in anticipated future damages, and punitive damages “for such sum as the Court and/or [j]ury may determine.” Id., at 13. The District Court treated the amended complaint as raising claims under, Bivens v. Six Unknown Fed. Narcotics Agents, supra, and dismissed respondent’s cause of action in its entirety. App. to Pet. for Cert. 20a. Relying on our decision in FDIC v. Meyer, 510 U. S. 471 (1994), the District Court reasoned that “a Bivens action may only be maintained against an individual,” and thus was not available against CSC, a corporate entity. App. to Pet. for Cert. 20a. With respect to Urena and the unnamed individual defendants, the complaint was dismissed on statute of limitations grounds. The Court of Appeals for the Second Circuit affirmed in part, reversed in part, and remanded. 229 F. 3d 374 (2000). That court affirmed dismissal of respondent’s claims against individual defendants as barred by the statute of limitations. Respondent has not challenged that ruling, and the parties agree that the question whether a Bivens action might lie against a private individual is not presented here. With respect to CSC, the Court of Appeals remarked that Meyer expressly declined “‘to expand the category of defendants against whom Bivens-type actions may be brought to include not only federal agents, but federal agencies as well.’ ” 229 F. 3d, at 378 (quoting Meyer, supra, at 484 (emphasis deleted)). But the court reasoned that private entities like CSC should be held liable under Bivens to “accomplish the . . . important Bivens goal of providing a remedy for constitutional violations.” 229 F. 3d, at 380. We granted certiorari, 532 U. S. 902 (2001), and now reverse. In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), we recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights. Respondent now asks that we extend this limited holding to confer a right of action for damages against private entities acting under color of federal law. He contends that the Court must recognize a federal remedy at law wherever there has been an alleged constitutional deprivation, no matter that the victim of the alleged deprivation might have alternative remedies elsewhere, and that the proposed remedy would not significantly deter the principal wrongdoer, an individual private employee. We have heretofore refused to imply new substantive liabilities under such circumstances, and we decline to do so here. Our authority to imply a new constitutional tort, not expressly authorized by statute, is anchored in our general jurisdiction to decide all cases “arising under the Constitution, laws, or treaties of the United States.” 28 U. S. C. § 1331. See, e. g., Schweiker v. Chilicky, 487 U. S. 412, 420-421 (1988); Bush v. Lucas, 462 U. S. 367, 373-374 (1983). We first exercised this authority in Bivens, where we held that a victim of a Fourth Amendment violation by federal officers may bring suit for money damages against the officers in federal court. Bivens acknowledged that Congress had never provided for a private right of action against federal officers, and that “the Fourth Amendment does not in so many words provide for its enforcement by award of money damages for the consequences of its violation.” 403 U. S., at 396. Nonetheless, relying largely on earlier decisions implying private damages actions into federal statutes, see id., at 397 (citing J. I. Case Co. v. Borak, 377 U. S. 426, 433 (1964)); 403 U. S., at 402-403, n. 4 (Harlan, J., concurring in judgment) (“The Borak case is an especially clear example of the exercise of federal judicial power to accord damages as an appropriate remedy in the absence of any express statutory authorization of a federal cause of action”), and finding “no special factors counseling hesitation in the absence of affirmative action by Congress,” id., at 395-396, we found an implied damages remedy available under the Fourth Amendment. In the decade following Bivens, we recognized an implied damages remedy under the Due Process Clause of the Fifth Amendment, Davis v. Passman, 442 U. S. 228 (1979), and the Cruel and Unusual Punishments Clause of the Eighth Amendment, Carlson v. Green, 446 U. S. 14 (1980). In both Davis and Carlson, we applied the core holding of Bivens, recognizing in limited circumstances a claim for money damages against federal officers who abuse their constitutional authority. In Davis, we inferred a new right of action chiefly because the plaintiff lacked any other remedy for the alleged constitutional deprivation. 442 U. S., at 245. (“For Davis, as for Bivens, it is damages or nothing”). In Carlson, we inferred a right of action against individual prison officials where the plaintiff’s only alternative was a Federal Tort Claims Act (FTCA) claim against the United States. 446 U. S., at 18-23. We reasoned that the threat of suit against the United States was insufficient to deter the unconstitutional acts of individuals. Id., at 21 (“Because the Bivens remedy is recoverable against individuals, it is a more effective deterrent than the FTCA remedy”). We also found it “crystal clear” that Congress intended the FTCA and Bivens to serve as “parallel” and “complementary” sources of liability. 446 U. S., at 19-20. Since Carlson we have consistently refused to extend Bivens liability to any new context or new category of defendants. In Bush v. Lucas, supra, we declined to create a Bivens remedy against individual Government officials for a First Amendment violation arising in the context of federal employment. Although the plaintiff had no opportunity to fully remedy the constitutional violation, we held that administrative review mechanisms crafted by Congress provided meaningful redress and thereby foreclosed the need to fashion a new, judicially crafted cause of action. 462 U. S., at 378, n. 14, 386-388. We further recognized Congress’ institutional competence in crafting appropriate relief for aggrieved federal employees as a “special factor counseling hesitation in the creation of a new remedy.” Id., at 380. See also id., at 389 (noting that “Congress is in a far better position than a court to evaluate the impact of a new species of litigation between federal employees”). We have reached a similar result in the military context, Chappell v. Wallace, 462 U. S. 296, 304 (1983), even where the defendants were alleged to have been civilian personnel, United States v. Stanley, 483 U. S. 669, 681 (1987). In Schweiker v. Chilicky, we declined to infer a damages action against individual Government employees alleged to have violated due process in their handling of Social Security applications. We observed that, our “decisions have responded cautiously to suggestions that Bivens remedies be extended into new contexts.” 487 U. S., at 421. In light of these decisions, we noted that “[t]he absence of statutory relief for a constitutional violation . . . does not by any means necessarily imply that courts should award money damages against the officers responsible for the violation.” Id., at 421-422. We therefore rejected the claim that a Bivens remedy should be implied simply for want of any other means for challenging a constitutional deprivation in federal court. It did not matter, for example, that “[t]he creation of a Bivens remedy would obviously offer the prospect of relief for injuries that must now go unredressed.” 487 U. S., at 425. See also Bush, supra, at 388 (noting that “existing remedies do not provide complete relief for the plaintiff”); Stanley, supra, at 683 (“[I]t is irrelevant to a special factors analysis whether the laws currently on the books afford Stanley ... an adequate federal remedy for his injuries” (internal quotation marks omitted)). So long as the plaintiff had an avenue for some redress, bedrock principles of separation of powers foreclosed judicial imposition of a new substantive liability. Chilicky, supra, at 425-427. Most recently, in FDIC v. Meyer, we unanimously declined an invitation to extend Bivens to permit suit against a federal agency, even though the agency — because Congress had waived sovereign immunity — was otherwise amenable to suit. 510 U. S., at 484-486. Our opinion emphasized that “the purpose of Bivens is to deter the officer,” not the agency. Id., at 485 (emphasis in original) (citing Carlson v. Green, supra, at 21). We reasoned that if given the choice, plaintiffs would sue a federal agency instead of an individual who could assert qualified immunity as an affirmative defense. To the extent aggrieved parties had less incentive to bring a damages claim against individuals, “the deterrent effects of the Bivens remedy would be lost.” 510 U. S., at 485. Accordingly, to allow a Bivens claim against federal agencies “would mean the evisceration of the Bivens remedy, rather than its extension.” 510 U. S., at 485. We noted further that “special factors” counseled hesitation in light of the “potentially enormous financial burden” that agency liability would entail. Id., at 486. From this discussion, it is clear that the claim urged by respondent is fundamentally different from anything recognized in Bivens or subsequent cases.. In 30 years of Bivens jurisprudence we have extended its holding only twice, to provide an otherwise nonexistent cause of action against individual officers alleged to have acted unconstitutionally, or to provide a cause of action for a plaintiff who lacked any alternative remedy for harms caused by an individual officer’s unconstitutional conduct. Where such circumstances are not present, we have consistently rejected invitations to extend Bivens, often for reasons that foreclose its extension here. The purpose of Bivens is to deter individual federal officers from committing constitutional violations. Meyer made clear that the threat of litigation and liability will adequately deter federal officers for Bivens purposes no matter that they may enjoy qualified immunity, 510 U. S., at 474, 485, are indemnified by the employing agency or entity, id., at 486, or are acting pursuant to an entity’s policy, id., at 473-474. Meyer also made clear that the threat of suit against an individual’s employer was not the kind of deterrence contemplated by Bivens. See 510 U. S., at 485 (“If we were to imply a damages action directly against federal agencies ... there would be no reason for aggrieved parties to bring damages actions against individual officers. [T]he deterrent effects of the Bivens remedy would be lost”). This case is, in every meaningful sense, the same. For if a corporate defendant is available for suit, claimants will focus their collection efforts on it, and not the individual directly responsible for the alleged injury. See, e. g., TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443, 464 (1993) (plurality opinion) (recognizing that corporations fare much worse before juries than do individuals); id., at 490-492 (O’Con-nor, J., dissenting) (same) (citing authorities). On the logic of Meyer, inferring a constitutional tort remedy against a private entity like CSC is therefore foreclosed. Respondent claims that even under Meyer’s deterrence rationale, implying a suit against private corporations acting under color of federal law is still necessary to advance the core deterrence purpose of Bivens. He argues that because corporations respond to market pressures and make decisions without regard to constitutional obligations, requiring payment for the constitutional harms they commit is the best way to discourage future harms. That may be so, but it has no relevance to Bivens, which is concerned solely with deterring the unconstitutional acts of individual officers. If deterring the conduct of a policymaking entity was the purpose of Bivens, then Meyer would have implied a damages remedy against the Federal Deposit Insurance Corporation; it was after all an agency policy that led to Meyer’s constitutional deprivation. Meyer, supra, at 473-474. But Bivens from its inception has been based not on that premise, but on the deterrence of individual officers who commit unconstitutional acts. There is no reason for us to consider extending Bivens beyond this core premise here. To begin with, no federal 'prisoners enjoy respondent’s contemplated remedy. If a federal prisoner in a BOP facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual officer, subject to the defense of qualified immunity. The prisoner may not bring a Bivens claim against the officer’s employer, the United States, or the BOP. With respect to the alleged constitutional deprivation, his only remedy lies against the individual; a remedy Meyer found sufficient, and which respondent did not timely pursue. Whether it makes sense to impose asymmetrical liability costs on private prison facilities alone is a question for Congress, not us, to decide. Nor are we confronted with a situation in which claimants in respondent’s shoes lack effective remedies. Cf. Bivens, 403 U. S., at 410 (Harlan, J., concurring in judgment) (“For people in Bivens’ shoes, it is damages or nothing”); Davis, 442 U. S., at 245 (“For Davis, as for Bivens, it is damages or nothing” (internal quotaton marks omitted)). It was conceded at oral argument that alternative remedies are at least as great, and in many respects greater, than anything that could be had under Bivens. Tr. of Oral Arg. 41-42,43. For example, federal prisoners in private facilities enjoy a parallel tort remedy that is unavailable to prisoners housed in Government facilities. See Brief in Opposition 13. This case demonstrates as much, since respondent’s complaint in the District Court arguably alleged no more than a quintessential claim of negligence. It maintained that named and unnamed defendants were “negligent in failing to obtain requisite medication . . . and were further negligent by refusing . . . use of the elevator.” App. 12 (emphasis added). It further maintained that respondent suffered injuries “[a]s a result of the negligence of the Defendants.” Ibid, (emphasis added). The District Court, however, construed the complaint as raising a Bivens claim, presumably under the Cruel and Unusual Punishments Clause of the Eighth Amendment. Respondent accepted this theory of liability, and he has never sought relief on any other ground. This is somewhat ironic, because the heightened “deliberate indifference” standard of Eighth Amendment liability, Estelle v. Gamble, 429 U. S. 97, 104 (1976), would make it considerably more difficult for respondent to prevail than on a theory of ordinary negligence, see, e. g., Farmer v. Brennan, 511 U. S. 825, 835 (1994) (“[Deliberate indifference describes a state of mind more blameworthy than negligence”). This also makes respondent’s situation altogether different from Bivens, in which we found alternative state tort remedies to be “inconsistent or even hostile” to a remedy inferred from the Fourth Amendment. 403 U. S., at 393-394. When a federal officer appears at the door and requests entry, one cannot always be expected to resist. See id., at 394 (“[A] claim of authority to enter is likely to unlock the door”). Yet lack of resistance alone might foreclose a cause of action in trespass or privacy. Ibid. Therefore, we reasoned in Bivens that other than an implied constitutional tort remedy, “there remained]... but the alternative of resistance, which may amount to a crime.” Id., at 395 (internal quotation marks and citation omitted). Such logic does not apply to respondent, whose claim of negligence or deliberate indifference requires no resistance to official action, and whose lack of alternative tort remedies was due solely to strategic choice. Inmates in respondent’s position also have full access to remedial mechanisms established by the BOP, including suits in federal court for injunctive relief and grievances filed through the BOP’s Administrative Remedy Program (ARP). See 28 CFR §542.10 (2001) (explaining ARP as providing “a process through which inmates may seek formal review of an issue which relates to any aspect of their confinement”). This program provides yet another means through which allegedly unconstitutional actions and policies can be brought to the attention of the BOP and prevented from recurring. And unlike the Bivens remedy, which we have never considered a proper vehicle for altering an entity’s policy, injunc-tive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally. In sum, respondent is not a plaintiff in search of a remedy as in Bivens and Davis. Nor does he seek a cause of action against an individual officer, otherwise lacking, as in Carlson. Respondent instead seeks a marked extension of Bivens, to contexts that would not advance Bivens’ core purpose of deterring individual officers from engaging in unconstitutional wrongdoing. The caution toward extending Bivens remedies into any new context, a caution consistently and repeatedly recognized for three decades, forecloses such an extension here. The judgment of the Court of Appeals is reversed. It is so ordered. CSC is hardly unique in this regard. The BOP has since 1981 relied exclusively on contracts with private institutions and state and local governments for the operation of halfway house facilities to help federal prisoners reintegrate into society. The BOP contracts not only with for-profit entities like CSC, but also with charitable organizations like Volunteers for America (which operates facilities in Indiana, Louisiana, Maryland, Minnesota, New York, and Texas), the Salvation Army (Arkansas, Florida, Illinois, North Carolina, Tennessee, and Texas), Progress House Association (Oregon), Triangle Center (Illinois), and Catholic Social Services (Pennsylvania). The Courts of Appeals have divided on whether FDIC v. Meyer, 510 U. S. 471 (1994), foredoses the extension of Bivens to private entities. Compare Hammons v. Norfolk Southern Corp., 156 F. 3d 701, 705 (CA6 1998) (“Nothing in Meyer prohibits a Bivens claim against a private corporation that engages in federal action”), with Kauffman v. Anglo-American School of Sofia, 28 F. 3d 1223, 1227 (CADC 1994) (“[Under] Meyer’s conclusion that public federal agendes are not subject to Bivens liability, it follows that equivalent private entities should not be liable either”). We hold today that it does. Since our decision in Borak, we have retreated from our previous willingness to imply a cause of action where Congress has not provided one. See, e. g., Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 188 (1994); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11, 15-16 (1979); Cannon v. University of Chicago, 441 U. S. 677, 688 (1979); id., at 717-718 (Rehnquist, X, concurring). Just last Term it was noted that we “abandoned” the view of Borak decades ago, and have repeatedly declined to “revert” to “the understanding of private causes of action that held sway 40 years ago.” Alexander v. Sandoval, 532 U. S. 275, 287 (2001). Justice Stevens’ claim that this case does not implicate an “extension” of Bivens, post, at 76-77, 82 (dissenting opinion), might come as some surprise to the Court of Appeals which twice characterized its own holding as “extending Bivens liability to reach private corporations.” 229 F. 3d 374, 381 (CA2 2000). See also ibid. (“Bivens liability should extend to private corporations”). Justice Stevens claims that our holding in favor of CSC portends “tragic consequence[s],” post, at 81, and “jeopardize^] the constitutional rights of... tens of thousands of inmates,” ibid. He refers to examples of cases suggesting that private correctional providers routinely abuse and take advantage of inmates under their control. Post, at 81, n. 9 (citing Brief for Legal Aid Society of City of New York as Amicus Curiae 8-25). See also Brief for American Civil Liberties Union as Amicus Curiae 14-16, and n. 6 (citing and discussing “abundant” examples of such abuse). In all but one of these examples, however, the private facility in question housed state prisoners — prisoners who already enjoy a right of action against private correctional providers under 42 U. S. C. § 1983. If it is true that the imperatives for deterring the unconstitutional conduct of private correctional providers are so strong as to demand that we imply a new right of action directly from the Constitution, then abuses of authority should be less prevalent in state facilities, where Congress already provides for such liability. That the trend appears to be just the opposite is not surprising given the BOP’s oversight and monitoring of its private contract facilities, see Brief for United States as Amicus Curiae 4-5, 24-26, which Justice Stevens does not mention. Where the government has directed a contractor to do the very thing that is the subject of the claim, we have recognized this as a special circumstance where the contractor may assert a defense. Boyle v. United Technologies Corp., 487 U. S. 500 (1988). The record here would provide no basis for such a defense. Question: What is the issue of the decision? 01. voting 02. Voting Rights Act of 1965, plus amendments 03. ballot access (of candidates and political parties) 04. desegregation (other than as pertains to school desegregation, employment discrimination, and affirmative action) 05. desegregation, schools 06. employment discrimination: on basis of race, age, religion, illegitimacy, national origin, or working conditions. 07. affirmative action 08. slavery or indenture 09. sit-in demonstrations (protests against racial discrimination in places of public accommodation) 10. reapportionment: other than plans governed by the Voting Rights Act 11. debtors' rights 12. deportation (cf. immigration and naturalization) 13. employability of aliens (cf. immigration and naturalization) 14. sex discrimination (excluding sex discrimination in employment) 15. sex discrimination in employment (cf. sex discrimination) 16. Indians (other than pertains to state jurisdiction over) 17. Indians, state jurisdiction over 18. juveniles (cf. rights of illegitimates) 19. poverty law, constitutional 20. poverty law, statutory: welfare benefits, typically under some Social Security Act provision. 21. illegitimates, rights of (cf. juveniles): typically inheritance and survivor's benefits, and paternity suits 22. handicapped, rights of: under Rehabilitation, Americans with Disabilities Act, and related statutes 23. residency requirements: durational, plus discrimination against nonresidents 24. military: draftee, or person subject to induction 25. military: active duty 26. military: veteran 27. immigration and naturalization: permanent residence 28. immigration and naturalization: citizenship 29. immigration and naturalization: loss of citizenship, denaturalization 30. immigration and naturalization: access to public education 31. immigration and naturalization: welfare benefits 32. immigration and naturalization: miscellaneous 33. indigents: appointment of counsel (cf. right to counsel) 34. indigents: inadequate representation by counsel (cf. right to counsel) 35. indigents: payment of fine 36. indigents: costs or filing fees 37. indigents: U.S. Supreme Court docketing fee 38. indigents: transcript 39. indigents: assistance of psychiatrist 40. indigents: miscellaneous 41. liability, civil rights acts (cf. liability, governmental and liability, nongovernmental; cruel and unusual punishment, non-death penalty) 42. miscellaneous civil rights (cf. comity: civil rights) Answer:

songer_appnatpr

0

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. William L. COMER Family Equity Pure Trust; Myra L. Comer, Trustee; William L. Comer & Myra, T.R.Y.E.-A. Trust; William L. Comer, Trustee, American Way Trust; Myra L. Comer, Trustee, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 86-1738. United States Court of Appeals, Sixth Circuit. Submitted Sept. 17, 1987. Decided Sept. 9, 1988. William L. Comer, Myra L. Comer, Clare, Mich., pro se. Jean Owens, Acting Counsel, IRS, William F. Nelson, Chief Counsel, I.R.S., Michael L. Paup (Lead Counsel), Roger M. Olsen, Tax Div., Dept, of Justice, Washington, D.C., Robert S. Pomerance, for respondent-appellee. Before ENGEL, Chief Judge , RYAN, Circuit Judge, and CELEBREZZE, Senior Circuit Judge. The Honorable Albert J. Engel assumed the duties of Chief Judge effective April 1, 1988. RYAN, Circuit Judge. After successfully resisting the government’s efforts to assess deficiency penalties against them, petitioners sought reasonable litigation costs pursuant to 26 U.S. C. § 7430. The Tax Court denied the petitioners’ motions as untimely or, alternatively, for lack of evidence that the respondent acted unreasonably after the petitions were filed. Petitioners appeal. On review we find that the motions were timely. We also conclude that the government’s pre-litigation and in-litigation conduct must be evaluated to determine whether the position of the United States was unreasonable for the purposes of an award pursuant to § 7430. Therefore, we reverse the Tax Court’s order dismissing the petitioners’ motions for litigation costs, and remand for consideration of whether the government’s pre-litigation position was unreasonable. I. Petitioners Myra and William Comer are husband and wife. Mr. Comer established three trusts of which he and Mrs. Comer are trustees. In January 1983, Mr. Comer was notified that the trusts were to be audited for the 1981 tax year. The affidavit supported allegations detailing the subsequent conduct of the IRS agents are troublesome, to say the least. One example of the contrived theories concocted by the respondent’s agents in their attempt to win deficiency assessments against the petitioners is the Commissioner’s claim, in the deficiency assessment against the Comers, that the trusts are shams and their income taxable to the Comers. In contrast, in the deficiency assessments against the trusts, the Commissioner claimed the trusts are valid entities taxable in their own right. The petitioners received four notices of deficiency totaling about $18,000 and assessing interests and costs. One notice was for the Comers’ joint return and the other three notices were directed to the three trusts: the Comer Family Equity Pure Trust; the American Way Trust; and the T.R.Y.E-A. Trust. Upon receiving these notices, Mr. Comer requested a meeting with an appeals officer. He received no response. Thereafter, in June of 1985, he filed four petitions in the Tax Court. The petitions were docketed for trial on May 12,1986. A pretrial stipulation settlement conference was held for two and one-half days in early April. This conference produced the parties’ stipulated agreement adopted by the Tax Court in its decisions entered by May 27, 1986. The agreement declared that the petitioners were not liable for any deficiencies, penalties, or interest with respect to the 1981 tax year. Although the petitioners’ original petitions sought litigation costs, the stipulated agreement was silent on this matter and does not indicate whether the silence was intended or due to oversight. On May 30, 1986, petitioners filed motions for litigation costs pursuant to 26 U.S.C. § 7430. Reasonable litigation costs are awardable in a civil tax proceeding brought against the United States in the Tax Court if the taxpayer has “substantially prevailed with respect to the amount in controversy,” § 7430(c)(2)(A)(ii)(I) and “establishes that the position of the United States in the civil proceeding was unreasonable.” § 7430(c)(2)(A)(i) (1982). The Tax Court denied the motions on June 19, 1986, on two grounds. First, the motions were “untimely” because they had not been filed prior to the Tax Court’s decisions, and second, there was no evidence of unreasonable behavior by the government after the filing of the petitions, that is, when the controversy became a lawsuit. Subsequently, petitioners filed a motion to vacate the Tax Court’s May decisions in the four petitions solely to enable the petitioners to file timely motions for costs. The motions to vacate were denied on July 2, 1986. Because the petitions raised similar issues they were consolidated. II. First, we address the Tax Court’s determination that petitioners’ motions for reasonable litigation costs, filed three days after the Tax Court’s decision incorporating the stipulated agreements was filed, were untimely. Although § 7430 establishes the availability of costs, it does not detail the procedural path to be taken to obtain them. The only part of § 7430 remotely relevant to this inquiry is subsection (e) which states: (e) Right of appeal. An order granting or denying an award for reasonable litigation costs under subsection (a), in whole or in part, shall be incorporated as a part of the decision or judgment in the case and shall be subject to appeal in the same manner as the decision or judgment. 26 U.S.C. § 7430(e). But the plain meaning of § 7430(e) does not mandate that a motion for costs be filed before the entry of a decision. The focus of subsection (e) is the appealability of an order granting or denying costs, not the time for filing a motion for costs. The subsection simply provides that if an order on costs exists when the decision is reached, it “shall be incorporated as a part of the decision” and is thus appealable. It does not mandate when the motion for such an order should be made. Since the plain meaning of the statute’s language sheds no light as to its meaning, the Congressional intent must be gleaned from other sources. The Commissioner cites the House Report explaining that Congress expect[ed] the courts to develop procedures or take action, by court rules or otherwise, concerning the time and manner in which taxpayers’ claims for awards of litigation costs are to be made. H.R.Rep. No. 97-404, 97th Cong., 1st Sess. 12 (1982). As a result, the Tax Court enacted Tax Court Rules of Practice and Procedure 281. Rule 231(a)(2) speaks to cases in which all issues other than litigation costs have been settled. Its language describes the situation in this case: Rule 231. CLAIMS FOR LITIGATION COSTS (a) Time and Manner of Claim: (2) Unagreed Cases: Where a party has substantially prevailed and wishes to claim reasonable litigation costs, and there is no agreement as to that party’s entitlement to such costs, a claim shall be made by motion filed&emdash; (i) Within 30 days after the service of a written opinion determining the issues in the case; (ii) Within 30 days after the service of the pages of the transcript that contain findings of fact or opinion stated orally pursuant to Rule 152 (or a written summary thereof); or (iii) After the parties have settled all issues in the case other than litigation costs. See paragraphs (b)(2) and (c) of this Rule regarding the filing of a stipulation of settlement with the motion in such cases. Tax Court Rule of Practice and Procedure 231(a)(2). Rule 231(a)(2) provides three alternative times for filing a motion for litigation costs. If subsection (a)(2)(i) of the rule applies to this case, clearly the petitioners’ motions were timely because they were filed within thirty days of the Tax Court’s written order. But respondent argues that (i) applies to non-settled cases in which the Tax Court writes a decisional opinion and is, therefore, inapplicable to this case which the parties settled. If so, then it is clear that (iii) of the subsection applies, which provides that a motion for costs “shall be made by motion filed ... (iii) [a]fter the parties have settled all issues in the case other than litigation costs.” Respondent argues, however, that under (iii), the motion must be “made ... [a]fter the parties have settled....”, but before the Tax Court’s final decision in the case is rendered, so that the decision on the motion for costs may be “incorporated in the decision itself.” The short answer to that contention is that (iii) states only that the motion must be made after the settlement is reached. It imposes no limitation relative to the time the settlement agreement is memoralized in a Tax Court order. The respondent cites Sanders v. Commissioner, 813 F.2d 859 (7th Cir.1987), in support of his view. We do not believe, however, that this case is controlled by Sanders. There, the taxpayer’s deficiency action was dismissed pursuant to the taxpayer’s own motion to dismiss for lack of jurisdiction, due to the lack of a valid deficiency notice. Id. at 861. Thereafter, the taxpayer filed a motion for costs under § 7430. The Seventh Circuit held that once the deficiency action was dismissed, the Tax Court had no jurisdiction to hear the petition for costs. Id. at 862 (citing Fuller v. Commissioner, 51 T.C.M. 336 (1986)). However, the Tax Court subsequently overruled the Fuller decision in Weiss v. Commissioner, 88 T.C. 1036, 1039 (1987). Thereafter, the Weiss decision, allowing a motion for costs pursuant to § 7430 to be filed within thirty days of the dismissal of the case due to lack of jurisdiction, was upheld by the Ninth Circuit in Sponza v. Commissioner, 844 F.2d 689, 690 (9th Cir.1988). The Seventh Circuit was convinced that “in enacting § 7430, Congress did not provide a time limit that would allow litigants to file for fees after a final disposition of a tax case.” Sanders, 813 F.2d at 862. The court arrived at this conclusion after observing that the “Equal Access to Justice Act, on which Congress expressly relied on in enacting § 7430,” explicitly provides that a party may file for fees within thirty days after the final disposition of the case. Id. However, in his concurring opinion, Judge Reynolds noted that: The suggestion in this case that the taxpayer’s motion for fees and costs could have been saved had he submitted the request simultaneously with his motion to dismiss for lack of jurisdiction might make sense as a matter of convenience, but it is certainly not required by either the statute or as a matter of logic. Id. at 863 (Reynolds, J., concurring). We are unwilling to infer from Congress’ silence the intent to preclude motions for costs being filed after a final decision. Moreover, Tax Court Rule of Practice and Procedure 231 provides simply that a motion for costs shall be filed “[ajfter the parties have settled all the issues in the case.” We note also that the Tax Court has decided at least one case contrary to the position the government is espousing. In Minahan v. Commissioner, 88 T.C. 516 (1987), a petitioner was permitted to file a motion for costs after the entry of a stipulated decision incorporating the parties’ stipulated agreement. Id. at 517. This was apparently so routine that it received no discussion and was merely reported in the facts of the case. Pursuant to these stipulated decisions, the parties agreed that no deficiencies in Federal gift tax are due from, or over-payments due to, petitioners_ Petitioners thereafter moved this Court to award litigation costs pursuant to section 7430 and Rule 231. Id. In sum, we see no language in § 7430(e) or in Rule 231(a)(2)(iii) requiring motions for costs pursuant to § 7430 to be filed prior to the filing of the Tax Court’s decision. Therefore, because petitioners’ motions were filed within the limitations described by Rule 231(a)(2)(i), we believe the Tax Court incorrectly dismissed the motions as untimely. Therefore, we must address the Tax Court’s alternative ground for dismissal. III. The Tax Court declared that even if the petition had been timely, the petitioners were not entitled to an award of reasonable litigation costs because there was “no evidence the respondent acted unreasonably after the petitions were filed.” (Emphasis added.) This finding was consistent with the Tax Court’s position, announced in Baker v. Commissioner, 83 T.C. 822 (1984), that § 7430 permits the court to consider only the government’s conduct during litigation in determining the reasonableness of the “position of the United States in the civil proceeding.” The petitioners, however, contend that the inquiry should extend to the government’s conduct which compelled them to file their petition in the Tax Court. This issue of statutory construction is one of first impression in this circuit, and it is one which has split other circuits. The District of Columbia, Eighth, Tenth, and Eleventh Circuits have held that only the government’s in-court litigation position is relevant. Wickert v. Commissioner, 842 F.2d 1005 (8th Cir.1988); Ewing and Thomas, P.A. v. Heye, 803 F.2d 613 (11th Cir.1986); Baker v. Commissioner, 787 F.2d 637 (D.C.Cir.1986), aff’g, 83 T.C. 822 (1984); United States v. Balanced Fin. Management, Inc., 769 F.2d 1440 (10th Cir.1985). However, the First, Fifth, and Ninth Circuits permit the inquiry to extend to the government’s pre-litigation conduct. Sliwa v. Commissioner, 839 F.2d 602 (9th Cir.1988); Powell v. Commissioner, 791 F.2d 385 (5th Cir.1986); Kaufman v. Egger, 758 F.2d 1 (1st Cir.1985). Because we find the latter view more attuned to the remedial and deterrent purposes of § 7430, we adopt it for this circuit. The Ninth Circuit has aptly summarized the First and Fifth Circuits’ interpretation of § 7430. In Kaufman v. Egger, 758 F.2d 1 (1st Cir.1985), the First Circuit cited the legislative history of section 7430 in support of its broad reading of the statute. Noting that the intent of Congress in passing section 7430 was to “deter abusive actions and overreaching by the Internal Revenue Service and ... enable individual taxpayers to vindicate their rights regardless of their economic circumstances,” H.R.Rep. 97-404, 97th Cong., 2d Sess. 13 (1982), the Kaufman court determined that it would frustrate the purpose of Section 7430 if [the court] were to interpret it in such a way that the IRS, after causing a taxpayer all kinds of bureaucratic grief at the administrative level, could escape attorney’s fee liability by merely changing its tune after the initiation of a suit by the taxpayer. Kaufman, 758 F.2d at 4. The court therefore found that Congress intended the liability of the IRS to be triggered by unreasonable IRS conduct regardless of at which stage in the proceedings such conduct occurred, and that pre-litigation conduct could be relevant in determining liability. Id. The Fifth Circuit reached the same conclusion in Powell v. Commissioner by analogy to the Equal Access to Justice Act (EAJA) and the legislative history of its amendments, noting the similarity of the intent behind and purposes of the two statutes. See generally, Powell, 791 F.2d 385 (5th Cir.1986). Like the Kaufman court, the court in Powell noted that the intent of the statute might be frustrated were the court not to examine conduct by the government in administrative proceedings before the onset of the litigation in its consideration of the reasonableness of the government’s position. (“If a taxpayer is forced to resort to litigation by an unreasonable IRS administrative position, § 7430 does not require the captious position to be ignored. The taxpayer must be the plaintiff in Tax Court proceedings. If the IRS takes an arbitrary position and forces a taxpayer to file a suit, then, after the papers have been filed, becomes sweet reason, the taxpayer should be permitted to recover the cost of suing”) 791 F.2d at 391. Sliwa, 829 F.2d at 606. Thereafter, the Ninth Circuit reviewed the deterrent and remedial purposes of § 7430 and adopted the broader reading of “position of the United States in a civil proceeding.” Id. at 607. We too are convinced that the relevant inquiry extends to the reasonableness of the behavior which forced the taxpayer to incur the expenses related to the filing of a petition. Because the Tax Court did not make that inquiry, we remand this issue for determination. IV. Accordingly, we REVERSE the United States Tax Court’s order of dismissal and REMAND for a determination regarding the reasonableness of the government’s pre-litigation position and for further proceedings consistent with this opinion. . This interpretation is consistent with the current version of § 7430, in particular § 7430(c) as amended by the Tax Reform Act of 1986. That subsection provides that, in civil actions commenced after December 31, 1985, ‘“position of the United States’ includes — (A) the position taken by the United States in the civil proceeding, and (B) any administrative action or inaction by the District Counsel of the Internal Revenue Service (and all subsequent administrative action or inaction) upon which such proceeding is based.” 20 U.S.C. § 7430(c)(4) (1988 Supp.). However, this definition is not dispositive of cases, such as this one, which were filed prior to December 31, 1985. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. 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. Esther KOSBERG, Administratrix, Estate of Roberta Ann Clark, Appellant, v. WASHINGTON HOSPITAL CENTER, INC., et al., Appellees. No. 20792. United States Court of Appeals District of Columbia Circuit. Argued Feb. 15, 1968. Decided April 18, 1968. Mr. Philip Shinberg, Washington, D.C., for appellant. Mr. John L. Laskey, Washington, D.C., for appellee, Washington Hospital Center. Mr. Gerald W. Farquhar, Washington, D.C., for appellee, Klein. Mr. J. Joseph Barse, Washington, D.C., for appellee, Rudnai. Before Bazelon, Chief Judge, and Burger and Leventhal, Circuit Judges. PER CURIAM: This is a wrongful death, malpractice action. Decedent was a newly married, 22-year-old girl whose medical problems began with symptoms suggestive of pregnancy. She was successively treated by a series of three doctors: a general practitioner, a psychiatrist, and an internist. The general practitioner, a defendant here, treated decedent for “morning sickness” and malnutrition and, when she did not improve significantly, referred her to the psychiatrist for treatment of a suspected emotional problem. The psychiatrist, also a defendant here, hospitalized decedent in defendant hospital and gave her electroshock therapy preceded and followed by administration of the drug thorazine. Decedent’s condition thereupon became critical, and Dr. Schulman, the internist, was called in. He ordered various drugs for decedent, but she failed to respond and died two days after receiving the electroshock therapy. Dr. Schulman was plaintiff’s expert witness, and his opinion as to the cause of death differed in certain respects from the inferences arising during his cross-examination and from the testimony of Dr. Edmonds, the head of the hospital’s autopsy service. At the close of plaintiff’s case the trial judge directed verdicts for all three defendants. We affirm as to the hospital and the general practitioner but reverse as to the psychiatrist. A prima facie ease of medical malpractice must normally consist of evidence which establishes the applicable standard of care, demonstrates that this standard has been violated, and develops a causal relationship between the violation and the harm complained of. Plaintiff’s case against the hospital is deficient on all three of these particulars, while her case against the general practitioner is devoid of evidence on the third essential — assuming, without deciding, that the first two factors were present. Evidence of a standard of care and its violation was also lacking in the case against the psychiatrist. But plaintiff was prevented from supplying these essentials when the trial judge ruled that Dr. Schulman was not qualified to testify concerning electroshock therapy. We think this was error. The fact that an internist is not a specialist in psychiatry or neurology does not preclude him from testifying about the physical effects of electroshock therapy and the ability of a person in decedent’s condition to withstand this treatment. See Baer-man v. Reisinger, 124 U.S.App.D.C. 180, 363 F.2d 309 (1966). Such testimony, if believed by the jury, might have established both the standard of care and its violation. Moreover, on the third essential of plaintiff’s case against the psychiatrist — evidence of causation — we think there was sufficient proof in the present state of the record to go to the jury. Dr. Schulman testified that in his expert opinion the cause of death was the consecutive administration of thora-zine (a tranquilizer) and electroshock therapy to someone in decedent’s weak condition. Dr. Edmonds, who directed the autopsy, testified — in answer to questions by the judge — that in his view thorazine and electroshock standing alone would not have caused death, but that death was caused when this treatment was followed by administration of another drug, levophed, a combination that resulted in infarction of deceased’s bowels. Dr. Schulman contested that the levophed, which he himself had prescribed, contributed to death. Thus, there was a conflict in the testimony as to the cause of death. But conflicts in the testimony of witnesses, including expert witnesses, called by a party are not necessarily fatal to his case. The jury may assign a preference to one item of testimony over the other — a preference that may be based on differences in the hypothetical facts assumed by each expert and, in the last analysis, on depth and lucidity of expression. Affirmed in part; reversed in part and remanded for a new trial. . Rodgers v. Lawson, 83 U.S.App.D.C. 281, 282, 170 F.2d 157, 158 (1948) (doctor); Garfield Memorial Hospital v. Marshall, 92 U.S.App.D.C. 234, 239, 204 F.2d 721, 725, 37 A.L.R.2d 1270 (1953) (hospital). . Agency principles are of no help to plaintiff in establishing liability, since there is no suggestion in the record that any of the doctors involved was an agent of either the hospital or another of the doctors. . Later Dr. Schulman attributed the cause of death to electrolyte imbalance, depression, and phenothiazine reaction. Appel-lees have failed to demonstrate that this testimony on causation was so inconsistent with the earlier testimony of Dr. Schulman as to render the whole testimony inconclusive and require removal of the case from the jury. Compare Quick v. Thurston, 110 U.S.App.D.C. 169, 290 F.2d 360, 88 A.L.R.2d 299 (1961) (en banc). . It is by no means clear that Dr. Edmonds was invited to take into consideration what Dr. Schulman’s testimony assumed, namely, the already extreme condition of decedent at the time Dr. Schulman came on the case and prescribed levophed. . See Diggs v. Lail, 201 Va. 871, 114 S.E.2d 743 (1960). Compare Mudano v. Philadelphia Rapid Transit Co., 289 Pa. 51, 137 A. 104 (1927). See generally Annot., 53 A.L.R.2d 1229 (1957). Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. Answer:

songer_fedlaw

A

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. R. Wayne JOHNSON, Petitioner-Appellant, v. O.L. McCOTTER, Director of Texas Department of Corrections, Respondent-Appellee. No. 86-1219. Summary Calendar. United States Court of Appeals, Fifth Circuit. Oct. 31, 1986. R. Wayne Johnson, pro se. David B. Fannin, Asst. Atty. Gen., Austin, Tex., for respondent-appellee. Before RUBIN, RANDALL and HIGGINBOTHAM, Circuit Judges. PER CURIAM: In 1978 Ronald Wayne Johnson was convicted of aggravated rape by a jury in Texas and was sentenced to serve ninety-nine years. On direct appeal, the Texas Court of Criminal Appeals affirmed his conviction. In 1984 Johnson filed a pro se § 2254 petition alleging that (1) the evidence was insufficient to support his conviction; (2) the state court jury charge was fundamentally defective; (3) his court-appointed trial counsel was ineffective; and (4) his fourth amendment right to be free from unlawful search and seizure was violated. Johnson alleged his trial counsel was ineffective because he (1) failed to object to the allegedly defective jury charge; (2) failed to appeal the denial of his motion to suppress; (3) failed to argue on appeal that the evidence of his prior conviction was insufficient; and (4) failed to challenge the array of the jury. The district court denied Johnson’s petition. In February 1985 Johnson filed the present pro se § 2254 petition alleging that his state court trial counsel was ineffective and that he was denied his constitutional right to represent himself at his state court trial. Specifically, Johnson claimed his counsel was ineffective because he (1) failed to conduct a proper pretrial investigation so as to present an insanity defense; (2) failed to file a motion for rehearing; (3) failed to present several witnesses; (4) failed to request a jury charge requiring the jury to disregard illegally obtained evidence; and (5) failed to request a jury charge that Johnson had a right to remain silent during the punishment phase of his trial. In his petition Johnson stated he did not present these grounds for his ineffective-assistance claim in his prior petition because he did not discover their legal significance until he performed legal research on September 1, 1984. Johnson also alleged he did not present his self-representation claim in his prior petition because he did not discover the legal basis for the claim until October 13, 1984, while in the Ector County Jail. The state filed a motion to dismiss alleging that Johnson’s petition was an abuse of the writ. The state also filed an answer addressing the substantive merits of Johnson’s petition. Johnson filed responses in opposition to the state’s motion to dismiss and answer. After an evidentiary hearing was held on the substantive merits of Johnson’s petition, the district court dismissed Johnson’s petition. Johnson filed a timely notice of appeal. I Rule 9(b) of the Rules Governing § 2254 Cases, 28 U.S.C. foil. § 2254, provides: Successive petitions. A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ. “The purpose of [Rule 9(b)] is to avoid piecemeal litigation, with petitioners advancing claims one at a time.” Hamilton v. McCotter, 772 F.2d 171, 176 (5th Cir. 1985) (quoting Rudolph v. Blackburn, 750 F.2d 302, 305 (5th Cir.1984)). A habeas petitioner abuses the writ by failing to raise his present claim in a previous habeas petition without legal excuse. Daniels v. Blackburn, 763 F.2d 705, 707 (5th Cir. 1985); Jones v. Estelle, 722 F.2d 159, 163 (5th Cir.1983) (en banc), cert. denied, 466 U.S. 976, 104 S.Ct. 2356, 80 L.Ed.2d 829 (1984). Abuse of the writ may be raised by the state or the district court sua sponte. Daniels, 763 F.2d at 707. Where, as here, the state raises the issue of writ abuse, it must recite petitioner’s writ history, specify new claims alleging writ abuse, and allege that it is not aware of any new facts or changes in the law that justify a new petition. Urdy v. McCotter, 773 F.2d 652, 655 (5th Cir.1985); Jones, 722 F.2d at 164. The burden then shifts to the petitioner to prove by a preponderance of the evidence that he has not abused the writ. Urdy, 773 F.2d at 655-6; Daniels, 763 F.2d at 707. Although the state met its burden, the district court neglected to give Johnson notice that the court was considering dismissal of his petition as an abuse of the writ. In Urdy, this court held that a “petitioner must be given specific notice that the court is considering dismissal and given at least 10 days in which to explain the failure to raise the new grounds in a prior petition.” 773 F.2d at 656. The court should notify the petitioner (1) that dismissal is being considered; (2) that his petition will be dismissed automatically if he fails to respond; and (3) that his response should present facts rather than opinions or conclusions. Id. Johnson was not provided with a Rule 9(b) form nor was he provided with other notice that satisfied these requirements. Although the state’s motion to dismiss put Johnson on notice that it considered his petition as an abuse of the writ, Johnson was not forewarned that his petition would be summarily dismissed if he failed to respond or that he should present facts, not legal argument. This court has strictly construed the notice requirement. See Urdy, 773 F.2d at 656-67; see also Soileau v. Blackburn, 789 F.2d 1209, 1210 (5th Cir.1986) (Rule 9(a)). Nonetheless, the district court’s failure to provide Johnson with notice was harmless, for the following reasons. Despite the absence of notice, Johnson filed a response in opposition to the state’s Rule 9(b) motion. According to Johnson, he did not know he had a constitutional right to represent himself until he was in the Ector County Jail in October 1984. Johnson did not explain why he did not raise the present grounds for his ineffective-assistance claim in his prior petition. II “A claim of ineffective assistance of counsel, once raised, litigated and rejected at an earlier habeas proceeding cannot be raised in a later proceeding merely by varying the factors allegedly demonstrating incompetency.” McDonald v. Estelle, 590 F.2d 153, 155 (5th Cir.1979); Cunningham v. Estelle, 536 F.2d 82 (5th Cir.1976). Having claimed his trial counsel was ineffective in a prior petition, Johnson’s present ineffectiveness-claim was barred by Rule 9(b) even though he alleged additional grounds of ineffective assistance. Although the district court erred by not giving Johnson notice, this error was harmless since there were no facts that Johnson could have alleged to prevent his ineffective-assistance claim from being dismissed under Rule 9(b). Nor did we create a conflict with McDonald in our recent decision in Passman v. Blackburn, 797 F.2d 1335 (5th Cir. 1986) where we explained that “the only issue before us regarding the abuse of the writ doctrine is the standard for determining a petitioner’s knowledge of legal claims.” Id. at 1344 n. 11. (Emphasis supplied.) Judge Randall’s careful opinion in Passman did not address Johnson’s variation on a theme contention. He admittedly knew of his claim. Passman does not allow the reassertion of claims for the sole reason that petitioner has now thought of another argument in support of the same claim. Ill The district court also summarily dismissed Johnson’s self-representation claim. Johnson contends that this dismissal is error, as his constitutional right to self-representation was violated. For the purposes of this analysis, Johnson’s allegations are taken as true. On December 27, 1977, petitioner wrote a letter to the state court judge in which he stated: I’m requesting information concerning an attorney. Is it written in the law that I can not represent myself? You see, I would choose to represent myself, providing I had the proper equipment. Under the circumstances I don’t believe the court would assist me in my secretarial work. By no means am I a thoroughly schooled lawyer, but I am a man who can ask simple logical questions, in my own behalf. Needless to say, a well educated lawyer isn’t needed for such questioning. Please understand, I do not need a lawyer to talk for me, or to question my witness. It is said I will have to bare [sic] with the decision of the court and a court appointed attorney. If at any time, my attorney appears not to be representing me properly, I will have him removed from my case immediately! Because the trial court did not respond to this letter, Johnson says he assumed that he did not have a right to represent himself. In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court held that a defendant has a constitutional right to self-representation in a state criminal case. Nonetheless, this court has held that the demand to defend pro se must be stated clearly and unequivocally. Lyles v. Estelle, 658 F.2d 1015, 1019 (5th Cir.1981); Chapman v. United States, 553 F.2d 886, 892-93 (5th Cir.1977). Moreover, “[e]ven after the defendant has unequivocally asserted the right to defend pro se, he may waive that right.” Chapman, 553 F.2d at 893 n. 12. Johnson did not unequivocally inform the trial court that he wished to defend himself. In his letter, Johnson states that he would defend himself if he had the proper equipment but that he did not believe the court would provide him with the needed assistance. This statement is ambiguous at best. A fair reading of this statement is that Johnson did not wish to represent himself since he would not be provided with the proper equipment. This interpretation is buttressed by Johnson’s statement at the end of his letter that he would seek to have his counsel withdrawn if he became dissatisfied with counsel’s representation. The record evinces that Johnson did not clearly and unequivocally assert his desire to fore-go legal representation. See Moreno v. Estelle, 717 F.2d 171, 174-75 (5th Cir.1983), cert. denied, 466 U.S. 975, 104 S.Ct. 2353, 80 L.Ed.2d 826 (1984). Alternatively, Johnson clearly waived his right to self-representation. Two days after his letter was received by the trial court, Johnson requested that counsel be appointed to represent him. His request was granted on January 6, 1978. A careful review of the state court record reveals that Johnson made no subsequent request to proceed pro se. Thus, the record shows that Johnson waived his right to self-representation. See Brown v. Wainwright, 665 F.2d 607, 610-11 (5th Cir. 1982). IV Reversal is inappropriate if the ruling of the district court can be affirmed on alternative grounds. Bickford v. International Speedway Corp., 654 F.2d 1028, 1031 (5th Cir.1981). Although the district court erred by not giving notice of the Rule 9(b) dismissal, reversal would be inappropriate since Johnson’s petition lacked merit. See Manning v. Warden, Louisiana State Penitentiary, 786 F.2d 710, 711 (5th Cir. 1986). AFFIRMED. . Respondent concluded that Johnson has adequately exhausted his state remedies; the district court did not mention exhaustion in its memorandum opinion. Question: Did the interpretation of federal statute by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

sc_casesource

031

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. AMERICAN TEXTILE MANUFACTURERS INSTITUTE, INC., et al. v. DONOVAN, SECRETARY OF LABOR, et al. No. 79-1429. Argued January 21, 1981 Decided June 17, 1981 Brennan, J., delivered the opinion of the Court, in which White, Marshall, Blackmun, and Stevens, JJ., joined. Stewart, J., filed a dissenting opinion, post, p. 541. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., joined, post, p. 543. Powell, J., took no part in the decision of the cases. Robert H. Bork argued the cause for petitioners in both cases. With him on the briefs for petitioners American Textile Manufacturers Institute, Inc., et al. were Neil J. King, A. Stephen Hut, Jr., Robert T. Thompson, Samuel K. Abrams, H. J. Elam III, Neil W. Koonce, Dan M. Byrd, Jr., Thomas A. Evins, Roger L. Tuttle, Lovic A. Brooks, Jr., Richard H. Monk, Jr., and C. Powers Dorsett. Charles M. Crump filed briefs for petitioner National Cotton Council of America. Deputy Solicitor General Getter argued the cause for the federal respondent in both cases. With him on the brief were Solicitor General McCree, Barry Sullivan, Benjamin W. Mintz, Allen H. Feldman, Dennis K. Kade, Diane E. Burkley, and John A. Bryson. George H. Cohen argued the cause for the American Federation of Labor and Congress of Industrial Organizations et al., respondents in both cases under this Court’s Rule 19.6. With him on the brief were Robert M. Weinberg, Jeremiah A. Collins, Laurence Gold, J. Albert Woll, Elliot Bredhoff, and Arthur IN. Goldberg. Together with No. 79-1583, National Cotton Council of America v. Donovan, Secretary of Labor, et al., also on certiorari to the same court. Briefs of amici curiae urging reversal were filed by Robert C. Barnard, Richard DeC. Hinds, and R. Bruce Dickson for the American Industrial Health Council; and by Stephen A. Bokat and Stanley T. Kdleczyc for the Chamber of Commerce of the United States. J. Davitt McAteer and John A. Pillion filed a brief for the Brown Lung Association et al. as amici curiae urging affirmance. Briefs of amici curiae were filed by Allen A. Lauterbach and C. David Mayfield for the American Farm Bureau Federation; by Jerome Powell, W. Scott Railton, Barton C. Green, and David Berber for the American Iron and Steel Institute; by William J. Kilberg, Stephen E. Tallent, and H. Frederick Tepker for ASARCO Inc.; by Edwin H. Seeger and William F. Boyd for Bunker Hill Co.; and by J. Gordon Arbuckle and David B. Robinson for the Chocolate Manufacturers Association. Justice Brennan delivered the opinion of the Court. Congress enacted the Occupational Safety and Health Act of 1970 (Act) “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . . .” § 2 (b), 84 Stat. 1590, 29 U. S. C. § 651 (b). The Act authorizes the Secretary of Labor to establish, after notice and opportunity to comment, mandatory nationwide standards governing health and safety in the workplace. 29 U. S. C. §§655 (a), (b). In 1978, the Secretary, acting through the Occupational Safety and Health Administration (OSHA), promulgated a standard limiting occupational exposure to cotton dust, an airborne particle byproduct of the preparation and manufacture of cotton products, exposure to which induces a “constellation of respiratory effects” known as “byssinosis.” 43 Fed. Reg. 27352, col. 3 (1978). This disease was one of the expressly recognized health hazards that led to passage of the Act. S. Rep. No. 91-1282, p. 3 (1970), Legislative History of the Occupational Safety and Health Act of 1970, p. 143 (Comm. Print 1971) (Leg. Hist.). Petitioners in these consolidated cases, representing the interests of the cotton industry, challenged the validity of the “Cotton Dust Standard” in the Court of Appeals for the District of Columbia Circuit pursuant to § 6 (f) of the Act, 29 U. S. C. § 655 (f). They contend in this Court, as they did below, that the Act requires OSHA to demonstrate that its Standard reflects a reasonable relationship between the costs and benefits associated with the Standard. Respondents, the Secretary of Labor and two labor organizations, counter that Congress balanced the costs and benefits in the Act itself, and that the Act should therefore be construed not to require OSHA to do so. They interpret the Act as mandating that OSHA enact the most protective standard possible to eliminate a significant risk of material health impairment, subject to the constraints of economic and technological feasibility. The Court of Appeals held that the Act did not require OSHA to compare costs and benefits. AFL-CIO v. Marshall, 199 U. S. App. D. C. 54, 617 F. 2d 636 (1979). We granted certiorari, 449 U. S. 817 (1980), to resolve this important question, which was presented but not decided in last Term’s Industrial Union Dept. v. American Petroleum Institute, 448 U. S. 607 (1980), and to decide other issues related to the Cotton Dust Standard. I Byssinosis, known in its more severe manifestations as “brown lung” disease, is a serious and potentially disabling respiratory disease primarily caused by the inhalation of cotton dust. See 43 Fed. Reg. 27352-27354 (1978); Exhibit 6-16, App. 15-22. Byssinosis is a “continuum . . . disease,” 43 Fed. Reg. 27354, col. 2 (1978), that has been categorized into four grades. In its least serious form, byssinosis produces both subjective symptoms, such as chest tightness, shortness of breath, coughing, and wheezing, and objective indications of loss of pulmonary functions. Id., at 27352, col. 2. In its most serious form, byssinosis is a chronic and irreversible obstructive pulmonary disease, clinically similar to chronic bronchitis or emphysema, and can be severely disabling. Ibid. At worst, as is true of other respiratory diseases including bronchitis, emphysema, and asthma, byssino-sis can create an additional strain on cardiovascular functions and can contribute to death from heart failure. See Exhibit 6-73, App. 72 (“there is an association between mortality and the extent of dust exposure”). One authority has described the increasing seriousness of byssinosis as follows: “In the first few years of exposure [to cotton dust], symptoms occur on Monday, or other days after absence from the work environment; later, symptoms occur on other days of the week; and eventually, symptoms are continuous, even in the absence of dust exposure.” A. Bouhuys, Byssinosis in the United States, Exhibit 6-16, App. 15. While there is some uncertainty over the manner in which the disease progresses from its least serious to its disabling grades, it is likely that prolonged exposure contributes to the progression. 43 Fed. Reg. 27354, cols. 1 and 2 (1978); Exhibit 6-27, App. 26; Exhibit 11, App. 162. It also appears that a worker may suddenly contract a severe grade without experiencing milder grades of the disease. Exhibit 41, App. 192. Estimates indicate that at least 35,000 employed and retired cotton mill workers, or 1 in 12 such workers, suffer from the most disabling form of byssinosis. 43 Fed. Reg. 27353, col. 3 (1978); Exhibit 124, App. 347. The Senate Report accompanying the Act cited estimates that 100,000 active and retired workers suffer from some grade of the disease. S. Rep. No. 91-1282, p. 3 (1970), Leg. Hist. 143. One study found that over 25% of a sample of active cotton-preparation and yarn-manufacturing workers suffer at least some form of the disease at a dust exposure level common prior to adoption of the current Standard. 43 Fed. Reg. 27355, col. 3 (1978) ; Exhibit 6-51, App. 44. Other studies confirm these general findings on the prevalence of byssinosis. See, e. g., Ct. of App. J. A. 3683; Ex. 6-56, id., at 376-385. Not until the early 1960’s was byssinosis recognized in the United States as a distinct occupational hazard associated with cotton mills. S. Rep. No. 91-1282, supra, at 3, Leg. Hist. 143. In 1966, the American Conference of Governmental Industrial Hygienists (ACGIH), a private organization, recommended that exposure to total cotton dust be limited to a “threshold limit value” of 1,000 micrograms per cubic meter of air (1,000 /xg/m3) averaged over an 8-hour workday. See 43 Fed. Reg. 27351, col. 1 (1978). The United States Government first regulated exposure to cotton dust in 1968, when the Secretary of Labor, pursuant to the Walsh-Healey Act, 41 U. S. C. § 35 (e), promulgated airborne contaminant threshold limit values, applicable to public contractors, that included the 1,000 /xg/m3 limit for total cotton dust. 34 Fed. Reg. 7953 (1969). Following passage of the Act in 1970, the 1,000 /xg/m3 standard was adopted as an “established Federal standard” under § 6 (a) of the Act, 84 Stat. 1593, 29 U. S. C. § 655 (a), a provision designed to guarantee immediate protection of workers for the period between enactment of the statute and promulgation of permanent standards. In 1974, ACGIH, adopting a new measurement unit of respirable rather than total dust, lowered its previous exposure limit recommendation to 200 pg/m3 measured by a vertical elutriator, a device that measures cotton dust particles 15 microns or less in diameter. 43 Fed. Reg. 27351, col. 1, 27355, col. 2 (1978). That same year, the Director of the National Institute for Occupational Safety and Health (NIOSH), pursuant to the Act, 29 U. S. C. §§ 669 (a)(3), 671 (d)(2), submitted to the Secretary of Labor a recommendation for a cotton dust standard with a permissible exposure limit, (PEL) that “should be set at the lowest level feasible, but in no case at an environmental concentration as high as 0.2 mg lint-free cotton dust/cu m,” or 200 pg/m3 of lint-free respirable dust. Ex. 1, Ct. of App. J. A. 11; 41 Fed. Reg. 56500, col. 1 (1976). Several months later, OSHA published an Advance Notice of Proposed Rulemaking, 39 Fed. Reg. 44769 (1974), requesting comments from interested parties on the NIOSH recommendation and other related matters. Soon thereafter, the Textile Worker’s Union of America, joined by the North Carolina Public Interest Research Group, petitioned the Secretary, urging a more stringent PEL of 100 /¿g/ms. On December 28, 1976, OSHA published a proposal to replace the existing federal standard on cotton dust with a new permanent standard, pursuant to § 6 (b)(5) of the Act, 29 U. S. C. § 655 (b)(5). 41 Fed. Reg. 56498. The proposed standard contained a PEL of 200 /¿g/m3 of vertical elutriated lint-free respirable cotton dust for all segments of the cotton industry. Ibid. It also suggested an implementation strategy for achieving the PEL that relied on respirators for the short term and engineering controls for the long term. Id., at 56506, cols. 2 and 3. OSHA invited interested parties to submit written comments within a 90-day period. Following the comment period, OSHA conducted three hearings in Washington, D. C., Greenville, Miss., and Lubbock, Tex., that lasted over 14 days. Public participation was widespread, involving representatives from industry and the work force, scientists, economists, industrial hygienists, and many others. By the time the informal rulemaking procedure had terminated, OSHA had received 263 comments and 109 notices of intent to appear at the hearings. 43 Fed. Reg. 27351, col. 2 (1978). The voluminous record, composed of a transcript of written and oral testimony, exhibits, and posthearing comments and briefs, totaled some 105,000 pages. 199 U. S. App. D. C., at 65, 617 F. 2d, at 647. OSHA issued its final Cotton Dust Standard — the one challenged in the instant case — on June 23, 1978. Along with an accompanying statement of findings and reasons, the Standard occupied 69 pages of the Federal Register. 43 Fed. Reg. 27350-27418 (1978); see 29 CFR § 1910.1043 (1980). The Cotton Dust Standard promulgated by OSHA establishes mandatory PEL’s over an 8-hour period of 200 /¿g/m3 for yarn manufacturing, 750 /¿g/m3 for slashing and weaving operations, and 500 ng/m3 for all other processes in the cotton industry. 29 CFR § 1910.1043 (c) (1980). These levels represent a relaxation of the proposed PEL of 200 /¿g/m3 for all segments of the cotton industry. OSHA chose an implementation strategy for the Standard that depended primarily on a mix of engineering controls, such as installation of ventilation systems, and work practice controls, such as special floor-sweeping procedures. Full compliance with the PEL’s is required within four years, except to the extent that employers can establish that the engineering and work practice controls are infeasible. § 1910.1043 (e)(1). During this compliance period, and at certain other times, the Standard requires employers to provide respirators to employees. § 1910.1043 (f). Other requirements include monitoring of cotton dust exposure, medical surveillance of all employees, annual medical examinations, employee education and training programs, and the posting of warning signs. A specific provision also under challenge in the instant case requires employers to transfer employees unable to wear respirators to another position, if available, having a dust level at or below the Standard’s PEL’s, with “no loss of earnings or other employment rights or benefits as a result of the transfer.” § 1910.1043 (f) (2) (v)s. On the basis of the evidence in the record as a whole, the Secretary determined that exposure to cotton dust represents a “significant health hazard to employees,” 43 Fed. Reg. 27350, col. 1 (1978), and that “the prevalence of byssinosis should be significantly reduced” by the adoption of the Standard’s PEL’s, id., at 27359, col. 3. In assessing the health risks from cotton dust and the risk reduction obtained from lowered exposure, OSHA relied particularly on data showing a strong linear relationship between the prevalence of byssinosis and the concentration of lint-free respirable cotton dust. Id., at 27355-27359; Exhibit 6-51, App. 29-55. See also Ex. 6-17, Ct. of App. J. A. 235-245; Ex. 38D, id., at 1492-1839. Even at the 200 /¿g/m3 PEL, OSHA found that the prevalence of at least Grade % byssinosis would be 13% of all employees in the yarn manufacturing sector. 43 Fed. Reg. 27359, cols. 2 and 3 (1978). In promulgating the Cotton Dust Standard, OSHA interpreted the Act to require adoption of the most stringent standard to protect against material health impairment, bounded only by technological and economic feasibility. Id., at 27361, col. 3. OSHA therefore rejected the industry’s alternative proposal for a PEL of 500 ng/m3 in yarn manufacturing, a proposal which would produce a 25% prevalence of at least Grade % byssinosis. The agency expressly found the Standard to be both technologically and economically feasible based on the evidence in the record as a whole. Although recognizing that permitted levels of exposure to cotton dust would still cause some byssinosis, OSHA nevertheless rejected the union proposal for a 100 yg/m3 PEL because it was not within the “technological capabilities of the industry.” Id., at 27359-27360. Similarly, OSHA set PEL’s for some segments of the cotton industry at 500 yg/m3 in part because of limitations of technological feasibility. Id., at 27361, col. 3. Finally, the Secretary found that “engineering dust controls in weaving may not be feasible even with massive expenditures by the industry,” id., at 27360, col. 2, and for that and other reasons adopted a less stringent PEL of 750 yg/m3 for weaving and slashing. The Court of Appeals upheld the Standard in all major respects. The court rejected the industry’s claim that OSHA failed to consider its proposed alternative or give sufficient reasons for failing to adopt it. 199 U. S. App. D. C., at 70-72, 617 F. 2d, at 652-654. The court also held that the Standard was “reasonably necessary and appropriate” within the meaning of § 3 (8) of the Act, 29 U. S. C. § 652 (8), because of the risk of material health impairment caused by exposure to cotton dust. 199 U. S. App. D. C., at 72-73, and n. 83, 617 F. 2d, át 65A-655, and n. 83. Rejecting the industry position that OSHA must demonstrate that the benefits of the Standard are proportionate to its costs, the court instead agreed with OSHA’s interpretation that the Standard must protect employees against material health impairment subject only to the limits of technological and economic feasibility. Id., at 80-84, 617 F. 2d, at 662-666. The court held that “Congress itself struck the balance between costs and benefits in the mandate to the agency” under § 6 (b)(5) of the Act, 29 U. S. C. § 655 (b)(5), and that OSHA is powerless to circumvent that judgment by adopting less than the most protective feasible standard. 199 U. S. App. D. C., at 81, 617 F. 2d, at 663. Finally, the court held that the agency’s determination of technological and economic feasibility was supported by substantial evidence in the record as a whole. Id., at 73-80, 617 F. 2d, at 655-662. We affirm in part, and vacate in part. II The principal question presented in these cases is whether the Occupational Safety and Health Act requires the Secretary, in promulgating a standard pursuant to § 6 (b) (5) of the Act, 29 U. S. C. § 655 (b)(5), to determine that the costs of the standard bear a reasonable relationship to its benefits. Relying on §§ 6 (b)(5) and 3 (8) of the Act, 29 U. S. C. §§655 (b)(5) and 652 (8), petitioners urge not only that OSHA must show that a standard addresses a significant risk of materiál health impairment, see Industrial Union Dept. v. American Petroleum Institute, 448 U. S., at 639 (plurality opinion), but also that OSHA must demonstrate that the reduction in risk of material health impairment is significant in light of the costs of attaining that reduction. See Brief for Petitioners in No. 79-1429, pp. 38-41 Respondents on the other hand contend that the Act requires OSHA to promulgate standards that eliminate or reduce such risks “to the extent such protection is technologically and economically feasible.” Brief for Federal Respondent 38; Brief for Union Respondents 26-27. To resolve this debate, we must turn to the language, structure, and legislative history of the Act. A The starting point of our analysis is the language of the statute itself. Steadman v. SEC, 450 U. S. 91, 97 (1981); Reiter v. Sonotone Corp., 442 U. S. 330, 337 (1 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. 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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_stpolicy

B

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the 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". Alan ADAMS, Appellee, v. Roger AGNEW, et al., Appellants. Nos. 88-7012, 88-7013. United States Court of Appeals, District of Columbia Circuit. Argued Oct. 3, 1988. Decided Oct. 28, 1988. Harry F. Cole, Washington, D.C., for appellants. Barry H. Gottfried, with whom Martin R. Leader and Andrew R. Polott, Washington, D.C., were on the brief, for appellees. Before RUTH BADER GINSBURG and SILBERMAN, Circuit Judges, and POLLACK, Senior United States District Judge. Of the United States District Court for the Southern District of New York, sitting pursuant to 28 U.S.C. § 294(d). Opinion Per Curiam. PER CURIAM: Moana Kai Broadcasting Associates and Agnew-Sachs Broadcasting, both general partnerships, were competing applicants for a permit from the Federal Communications Commission (FCC or Commission) to construct an FM broadcast station in Honolulu, Hawaii. This case concerns the vitality of an agreement under which Agnew-Sachs would dismiss its permit application in exchange for payments from Moana Kai, personally guaranteed by George Kimble, one of Moana Kai’s principals. The district court, upon finding that the parties had reached an enforceable agreement, granted Moana Kai’s motion for a declaratory judgment. We reverse. If indeed there was ever an enforceable agreement, a matter we need not and do not decide, the failure of Moana Kai promptly to demonstrate readiness to carry out its side of the bargain released Agnew-Sachs from its undertaking. I. The episode-in-suit opened when Moana Kai, Agnew-Sachs, and a third party, Alan Adams, filed mutually exclusive applications at the FCC for a permit to build and operate a new radio station in Honolulu. The FCC scheduled a comparative hearing for May 7, 1985. On May 6, Adams and Moana Kai agreed that Adams would dismiss his application in exchange for a 25 percent interest in Moana Kai and a payment of $15,000 by Moana Kai’s principals. Moana Kai and Agnew-Sachs, at that same time, were attempting to reach a settlement whereby Moana Kai would pay Agnew-Sachs to withdraw its application. On May 7, the parties advised the FCC Administrative Law Judge (AU) of their negotiations and asked for additional time to complete them. The AU expressed concern, based on past experience with announced settlements that later fell apart; he therefore sought concrete assurance that the parties would reach a dispositive agreement. The next day, May 8, the parties submitted to the AU a Joint Motion to Suspend Hearing Dates (Joint Motion), reprinted in Appendix (App.) at 19-24, which set forth in some detail the terms that had been discussed and “agreed to in principle.” Id. at 1; App. at 19. According to the Joint Motion, Agnew-Sachs would dismiss its application in exchange for $35,000 in cash and a three-year promissory note for $65,000, paid in monthly allotments. The note was to be secured by “personal guarantees” of George Kimble, a Moana Kai principal, and Alan Adams. The Joint Motion also stated that the parties would proceed in good faith, and as diligently as possible, from “agreement-in-principle” to “final resolution and completion of the necessary documents.” Id. at 5; App. at 23. “[T]he final settlement agreement” and “all supporting documents” were to be submitted to the AU “within 21 days.” Id. Based on these representations in the Joint Motion, the AU on May 13 granted the request for a twenty-one day continuance. On June 3, counsel for Agnew-Sachs, with the authorization of counsel for Moana Kai, requested a two-week extension, which expired on June 17. On June 18, counsel for Agnew-Sachs wrote to the AU, stating that the parties had reached an impasse on one aspect of the arrangement and were “presently unable to submit documents which represented a complete and mutually-agreeable settlement.” Letter from Mark A. Kirsch, Counsel for Agnew-Sachs, to AU John A. Conlin (June 18, 1985). Although the two-week extension had expired, the parties did not formally request additional time; counsel for Agnew-Sachs stated, however, that he would file a further status report with the AU on June 24. Id. During their exchanges between May 8 and June 24, the parties wrangled over the terms of Kimble’s personal guarantee. Specifically, it appears that Agnew-Sachs wanted a firm “payment guarantee,” which would permit Agnew-Sachs to seek payment immediately from Kimble in the event of a default on the note, whereas Kimble considered “fairer” a diluted version, more in the nature of a “collection guarantee,” whereby Agnew-Sachs would first have to attempt collection on a judgment against Moana Kai before proceeding against Kimble. Thus, when Agnew-Sachs’ counsel on May 20 mailed to Kim-ble’s counsel a set of proposed documents which included a payment guarantee, Kim-ble’s counsel on June 10 sent back a set of revised documents which included a collection guarantee. On June 19, Agnew-Sachs’ attorney wrote what the parties now call the “ultimatum letter”; this communication advised Kimble and Moana Kai that Agnew-Sachs would accept only a payment guarantee. The letter, sent by overnight mail, enclosed the documents needed to fulfill the parties’ agreement and stated that there would be no further settlement discussions unless all the documents were executed and returned to Agnew-Sachs by June 21. Stipulation 49, Stipulated Facts in Adams v. Agnew, No. 85-2270 (D.D.C. Nov. 9, 1987) [available on WESTLAW, 1987 WL 20240]. Moana Kai returned executed copies of some of the documents on June 21 and June 24, but did not return an executed note or guarantee from Kimble. Because of Moana Kai’s failure to comply with the terms of the ultimatum letter, Agnew-Sachs notified Moana Kai and the AU on June 24 that a settlement of the case had not been achieved; accordingly, Agnew-Sachs reported to the AU that it was prepared to proceed with the comparative hearing. Letter from Mark A. Kirsch, Counsel for Agnew-Sachs, to AU John H. Conlin (June 24, 1985). The comparative hearing took place on July 17, 1985, and on October 21 the AU granted Agnew-Sachs’ application and denied Moana Kai’s (Adams had withdrawn his application). The FCC Review Board affirmed the AU’s decision, Agnew-Sachs Broadcasting, 103 F.C.C.2d 899 (Rev.Bd. 1986), and the full Commission denied Moa-na Kai’s application for review. Agnew-Sachs Broadcasting, F.C.C. 86-506 (released Nov. 14, 1986). Adams and Moana Kai then filed suit in the United States District Court for the District of Columbia alleging that Agnew-Sachs had entered into, and breached, a binding settlement agreement. The district court decided that there was a binding agreement as of May 8, 1985. The court considered it clear that the Joint Motion, corroborated by statements made before the AU, was a writing evidencing an agreement. With regard to Kimble’s guarantee, which proved to be the focus of contention after May 8, the court said that the term “personal guarantee,” as used in the Joint Motion, is a commercial term of art that unambiguously denotes a payment guarantee. Thus, the district court concluded, the parties’ subsequent dispute over the wording of the guarantee did not vitiate the agreement reached on May 8. Memorandum and Declaratory Order, Adams v. Agnew, No. 85-2270 (D.D.C. Nov. 9, 1987). The district court, however, did not specifically advert to the question whether, assuming a May 8 agreement, Moana Kai’s failure to perform its obligation to execute conforming, formal settlement documents in a timely fashion released Agnew-Sachs from its obligation to dismiss its FCC permit application. We assume, without deciding, that there was a contract on May 8, but hold that Moana Kai’s delay and failure to return a payment guarantee by Kimble in compliance with Agnew-Sachs’ “ultima-turn letter” justified Agnew-Sachs’ refusal to negotiate further and its report back to the AU on the unsettled status of the case and its readiness “to go forward with the hearing.” See Letter from Mark A. Kirsch, Counsel for Agnew-Sachs, to AU John H. Conlin (June 24, 1985). II. Assuming a Moana Kai — Agnew-Sachs agreement on May 8 which included Kim-ble’s payment guarantee, the parties were obliged to submit the final documents by a certain time in order to cancel the comparative hearing. The AU several times voiced concern that he did not want to suspend the hearing date only to see the settlement fall through and the hearing placed back on track weeks later. See, e.g., App. at 14-15, 18, 29, 31. The Joint Motion itself stated that the parties would submit “the final settlement agreement” and “all supporting documents” within twenty-one days. Joint Motion at 5; App. at 23. (Both sides interpreted this to mean twenty-one days after the AU granted the Joint Motion to suspend the hearing, not twenty-one days after the filing of the Joint Motion.) Just before expiration of the suspension period, on June 3, the parties requested two weeks more to negotiate. By June 19, there still was no final agreement to present to the AU. At that point, given the prompting from the AU to submit settlement documents as undertaken in the Joint Motion or proceed with the hearing, and given that the time limit, even as extended, had expired, Agnew-Sachs had cause to demand that Moana Kai perform its contractual undertaking by returning the executed documents — including, particularly, Kimble’s payment guarantee — by June 21. Under District of Columbia law, one party can unilaterally make performance on the date specified in the contract or some subsequent date a condition for'his own obligation, even if the contract does not specify that time is of the essence, by notifying the other party and giving that party reasonable time to perform. See Drazin v. American Oil Co., 395 A.2d 32, 35 (D.C.1978); see also 3A Corbin, Contracts § 723, at 382-84 (1960). The reasonableness of the time allowed depends on the character of the performance required and the surrounding circumstances. See Drazin, 395 A.2d at 35; 3A Corbin, supra, § 723, at 384. In this case, the agreement embodied in the Joint Motion provided that all documents, in proper form, would be filed by June 3, a time limit then extended to June 17. Agnew-Sachs’ “ultimatum letter” on June 19 notified Moana Kai that time was of the essence, and gave Moana Kai until June 21 to execute and return documents then, for the most part, familiar to Moana Kai. Assuming that Moana Kai did not receive the documents, sent by overnight mail, until June 20, Kimble had only a brief turn around time to sign the papers and send them back by overnight mail. In light of the character of the performance required and the surrounding circumstances, however, Agnew-Sachs’ demand was not unreasonable. If, as appellees allege and the district court held, the parties had firmly agreed on May 8 to a payment guarantee, then all that was required of Kimble on June 20 was to acknowledge, at last, that that was indeed the quality of his undertaking and to act accordingly. Moreover, even if an objection to same day return might have been in order, Kimble failed to sign and mail the guarantee by June 24; four days was surely ample time to perform the modest task of signing and mailing documents, when the contents of those documents were, in the main, known weeks earlier. Although Kimble might well have indicated his reluctance to furnish the guarantee the district court found he had promised, and, after May 8, might have sought modification of the arrangement, once Agnew-Sachs made time of the essence, Kim-ble was no longer free to resist performance. When Kimble then continued to hold back a guarantee of the quality the agreement necessitated, Agnew-Sachs was obliged to wait no longer and appellees could no longer claim entitlement to specific performance. Although the district court did not address the issue whether Agnew-Sachs’ ultimatum letter made time of the essence and afforded Moana Kai and Kimble reasonable time, under the surrounding circumstances, for performance, we need not remand for findings on this question because our decision, as just recounted, is based on undisputed historic facts contained in the record. Cf. Otto v. Variable Annuity Life Ins. Co., 814 F.2d 1127, 1138 & n. 11 (7th Cir.1986) (holding that, in interest of judicial economy, remand is unnecessary where issues are clear and turn on undisputed facts in record), cert. denied, — U.S. -, 108 S.Ct. 2004, 100 L.Ed.2d 235 (1988); Richmond Leasing Co. v. Capital Bank N.A., 762 F.2d 1303, 1313 (5th Cir.1985) (same); Shaw v. FBI, 749 F.2d 58, 63 (D.C.Cir.1984) (same); ACS Hosp. Sys., Inc. v. Montefiore Hosp., 732 F.2d 1572, 1578 (Fed.Cir.1984) (same); King v. Commissioner of Internal Revenue, 458 F.2d 245, 249 (6th Cir.1972) (same); McComb v. Utica Knitting Co., 164 F.2d 670, 674 (2d Cir.1947) (same). Conclusion For the reasons stated, we reverse the judgment of the district court and instruct the entry of judgment for Agnew-Sachs. It is so ordered. . See Transcript, May 7, 1985 Hearing Conference before Administrative Law Judge John H. Conlin, In the Matter of: Honolulu, Hawaii, FCC No. MM 84-985, reprinted in Appendix (App.) at 7-18. . See App. at 29, 33. .At the May 8 conference on the Joint Motion, the AU stated his understanding “that if, for some reason, the agreement doesn’t come about, we go back to [comparative] hearing in 21 days." Transcript, May 8, 1985, FCC No. MM 84-985, reprinted in App. at 29. . See Deposition of George W. Kimble at 43 (deponent states he didn’t sign documents Agnew-Sachs sent because ”[w]e were still trying ta get a fairer personal guarantee agreement negotiated”). . The settlement negotiations in May 1985 occurred in the District among counsel practicing here, and in the context of conferences with an FCC ALJ here. We therefore assume the application of District law, which no party has suggested should be displaced by any other regulating rule. See generally Restatement (Second) of Conflict of Laws §§ 6, 188, 194 (1971). . We stress in this regard that Moana Kai and Kimble do not maintain that any of the documents dispatched by Agnew-Sachs on June 19, 1985 are out of accord with the parties’ agreement. Far from suggesting that another form of guarantee would be "fairer,” see supra note 4, they now agree with the district court that from the start the obligation to furnish a payment guarantee was unambiguous. 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_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". Frank STEWART, Plaintiff-Appellant, v. Charles H. DAMERON, District Attorney ad hoc, East Baton Rouge Parish, et al., Defendants-Appellees. No. 71-1483 Summary Calendar. United States Court of Appeals, Fifth Circuit. Sept. 16, 1971. Benjamin E. Smith, New Orleans, La., for plaintiff-appellant. Emile C. Rolfs, III, Baton Rouge, La., Durrett, Hardin, Hunter, Dameron & Fritehie, Baton Rouge, La., for Charles H. Dameron, Dist. Atty., Ad Hoc, defendant-appellee. Cheney C. Joseph, Jr., Ralph L. Roy, Baton Rouge, La., for Sargent Pitcher. Carlos G. Spaht, Baton Rouge, La., for John S. Covington, Joseph F. Keogh, Baton Rouge, La., William M. Shaw, Homer, La., for Capt. Watson & Sargent Pitcher. Before JOHN R. BROWN, Chief Judge, INGRAHAM and RONEY, Circuit Judges. Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, et al., 5 Cir., 1970, 431 F.2d 409. INGRAHAM, Circuit Judge: Plaintiff-appellant Stewart brought this action seeking injunctive relief and damages under the United States Constitution and 42 U.S.C. § 1983, against defendants-appellees, who are various law enforcement officers for the Parish and City of Baton Rouge, Louisiana. Plaintiff, a VISTA worker active in a black community in the Baton Rouge area, alleged that he was a victim of a police conspiracy to entrap him. Plaintiff sought to enjoin the defendants from further state court prosecution on a pending charge of conspiracy to commit murder. The district court, after holding a hearing on the merits, denied the in-junctive relief sought and dismissed plaintiff’s suit, 321 F.Supp. 886. At this hearing the district court placed the burden of proof on the State to prove the good faith of its prosecution, and plaintiff Stewart was not allowed to put on any evidence concerning his allegations of bad faith prosecution and harassment. In essence, the court placed the entire burden of proof on the prosecution, a move to which both parties disagreed. We hold that the district court erred by placing the burden of proof on the defendants. Accordingly, we vacate and remand for reconsideration in light of Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L.Ed.2d 669 (1971), and for the appropriate evidentiary hearing required thereby, in which plaintiff shall be allowed to introduce evidence regarding his allegations of bad faith prosecution and harassment. Vacated and remanded. . The attorney for defendant Dameron told the court: “My appreciation of the law, your Honor, is that in a matter such as this, the plain- tiff would be required to put on any evidence that he may have with respect to improper motivation of the prosecuting attorney.” 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_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. William Reece JOHNSTON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. No. 622-69. United States Court of Appeals, Tenth Circuit. April 17, 1970. William L. Panagulis for plaintiff-appellant. Richard Oxandale, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., on the brief), for defendant-appellee. Before LEWIS, BREITENSTEIN and SETH, Circuit Judges. BREITENSTEIN, Circuit Judge. Appellant Johnston was convicted in 1957 of bank robbery and the conviction was affirmed. Johnston v. United States, 10 Cir., 260 F.2d 345, cert. denied 360 U.S. 935, 80 S.Ct. 1454, 4 L.Ed.2d 1547. This is his seventh application for post-conviction relief. The first was in 1960 on the ground that the trial judge was improperly assigned to the District of Kansas. It was denied and no appeal taken. The second was in 1960 and alleged mental incompetency because of administration of drugs. After an evidentiary hearing, relief was denied and we affirmed. Johnston v. United States, 10 Cir., 292 F.2d 51, cert. denied 368 U.S. 906, 82 S.Ct. 186, 7 L.Ed.2d 100. The third was in 1961 and was based on denial of the right of allocution. After a hearing, relief was denied and we again affirmed. Johnston v. United States, 10 Cir., 303 F.2d 343. The fourth was in 1963 and claimed trial errors. It was denied without hearing and we affirmed. Johnston v. United States, 10 Cir., 331 F.2d 997. The fifth was in 1965 and was based on the legality; a search of an automobile. An evidentiary hearing was held and relief denied. On appeal, we affirmed in an unreported decision based on Gaitan v. United States, 10 Cir., 317 F.2d 494. Certiorari was denied, Johnston v. United States, 384 U.S. 920, 86 S.Ct. 1371, 16 L.Ed.2d 441. The sixth was in 1966 and complained of illegal surveillance of conversations between applicant and his attorney. The district court held an evidentiary hearing and denied relief. No appeal was taken. The seventh, and pending, application for relief under 28 U.S.C. § 2255, was filed in 1969, and raises the question of the car search which was disposed of by the fifth application. We again call to the attention of the district judges the decision in Sanders v. United States, 373 U.S. 1, 15-19, 83 S.Ct. 1068, 10 L.Ed.2d 148, which sets out the principles governing successive applications for post-conviction relief. The Court pointed out that a “judge is not required to limit his decision on the first motion to the grounds narrowly alleged” and “is free to adopt any appropriate means for inquiry into the legality of the prisoner’s detention in order to ascertain all possible grounds upon which the prisoner might claim to be entitled to relief.” Ibid at 22, 83 S. Ct. at 1081. One method of meeting the problem is described in the article “PreTrial Suggestions” by Judge James M. Carter in 32 F.R.D. 391. Counsel for the applicant says that the present application is made in changed circumstances because of the 1969 decision in Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227, which holds that a claim of an unconstitutional search and seizure is cognizable in a § 2255 proceeding. That principle is not new in this circuit. We held to the same effect in our 1963 Gai-tan decision. See Kaufman, supra, at 221, n. 4, 89 S.Ct. 1068. . The facts are not in dispute. Johnston and a companion were arrested on September 28, 1957, by a Milwaukee traffic officer who observed that the car in which they were riding was covered by a pickup order. He commandeered a private car, gave chase, and when the other car was stopped by a traffic light, he arrested the two occupants. He frisked them for weapons, observed a bag on the floor of the passenger’s side of the front seat, was joined by motorcycle officers, and forced the car’s occupants to drive to the police station about a mile and a half away. They were there searched, and substantial amounts of money were found on their persons. The traffic officer and others then went to the car and retrieved the bag which contained two loaded guns and a substantial amount of currency. There was no search warrant for the ear. There was no evidence that federal officers participated, directly or indirectly, in the arrest, the search, or the seizure or that any of those acts were for the benefit of the United States. At the trial evidence of the search was received without objection. There was testimony that the guns appeared similar to those used by the two bank robbers. A particular one-dollar bill was identified as having come from the robbed bank. By its 1960 decisions in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669, and Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688, the Supreme Court overturned the silver platter doctrine, which permitted the use in federal court of evidence obtained by state officers in an unlawful search. In Gaitan, supra, we considered a § 2255 proceeding where the question was the retroactivity of Elkins. We held that the decisional change made by Elkins and Rios should not be applied retrospectively. In the case before us, the arrest, the search, the seizure, the trial, and the decision on appeal all preceded Elkins and Rios. The 1964 decision in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, is not pertinent. There the arrest and the search occurred in 1961. See United States v. Sykes and Preston, 6 Cir., 305 F.2d 172, 174. The Court had no concern with the silver platter doctrine. The important consideration is not the retroactivity of Preston but rather the retroactivity of Elkins and Rios. In Gaitan we declined to apply those decisions retroactively. We believe that bur action finds support in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601. The Court was there concerned with the retroactivity of the rule announced in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, that evidence seized in violation of the Fourth Amendment could not be used in state courts. The Court held that the exclusionary rule did not apply to convictions which had become final before the Mapp decision. In the case at bar the conviction was final before Elkins and Rios were decided. The Linkletter reasoning against retroactivity applies with equal force to the instant case. We are not constrained to reexamine our Gaitan decision, and we remain convinced, as we were in 1965, that Gaitan controls and forecloses the relief requested. Affirmed. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:

songer_district

H

What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". James W. PRICE, Appellant, v. FRANKLIN INVESTMENT COMPANY, INC., et al. No. 76-1022. United States Court of Appeals, District of Columbia Circuit. Argued April 27, 1977. Decided Feb. 23, 1978. Al J. Daniel, Jr., Washington, D. C., for appellant. Charles R. Donnenfeld, Washington, D. C., with whom Cameron M. Blake, Washington, D. C., Dennis A. Davison and Bernard D. Lipton, Silver Spring, Md., were on the brief for appellee, Franklin Inv. Co., Inc. Stanley M. Karlin, Silver Spring, Md., for appellee, Center Motors, Inc. Before MacKINNON, ROBB and WILKEY, Circuit Judges. Opinion for the court filed by Circuit Judge MacKINNON. MacKINNON, Circuit Judge: The principal question raised by this appeal is whether, on the facts of this case, a finance company that purchased a consumer installment contract from an automobile dealer shared the dealer’s liability for violations of the Truth in Lending Act, Title I of the Consumer Credit Protection Act, 15 U.S.C. §§ 1601-66 (1970 & Supp. V 1975), and the Federal Reserve Board’s Regulation Z, 12 C.F.R. §§ 226.1-.1002 (1977). The district court, in granting summary judgment in favor of the finance company, answered this question in the negative. We reverse on this issue, but affirm the order of the district court in other respects. I. The facts are substantially undisputed. On June 5, 1972, appellant, a District of Columbia resident, purchased a used 1971 Ford Pinto automobile from appellee Center Motors, Inc. (Center), an automobile dealer located in Maryland about a mile outside the District of Columbia. On November 5, 1973, appellant traded the Pinto in to Center on a used 1972 Ford Torino. In each case, appellant signed a “Conditional Sales Contract” filled out by Center. While Center was denominated in the contracts as the lender, the contract forms were supplied by appellee Franklin Investment Company, a financial concern whose sole office was located in the District of Columbia and the forms provided that payments were to be made not to Center but to the “assignee.” Center and Franklin enjoyed a close and long-standing relationship. Center normally did no credit investigation of its own, and admittedly did no such investigation in connection with either advance of credit to appellant. Franklin financed at least a portion of Center’s car inventory on a “floor plan” basis (App. 286-87) and purchased at a discount a substantial percentage of Center’s loan contracts. From 1970 to 1973 not less than 16% of the total conditional sale contracts purchased by Franklin were acquired from Center (App. 257). On each assignment, $25 was placed into a “reserve account” available to compensate Center for its liabilities on contracts sold with recourse or repurchase rights. The loan contract on the Pinto was assigned to Franklin on the day of the sale. When appellant traded in the Pinto, Center initially wrote the conditional sales contract for the Torino to require payment in a lump sum on the following day, and then on November 7, 1973, substituted a rewritten contract providing for installment payment. Franklin had apparently reapprovéd appellant’s credit during the interim, and the rewritten contract was then assigned to Franklin. Franklin subsequently sent appellant a coupon book and letters referring to him as its “customer” and soliciting his further business. Soon after the trade-in, appellant had mechanical problems with the Torino.' Repairs by Center did not cure the problems, and Center refused to make further repairs. Appellant arranged for transmission repairs by a private shop and notified appellees of this fact, but declined to pay the repair charges or make any further payments on the contract. Franklin then repossessed the car from the repair shop, paying for the transmission repairs, and notified appellant that he could redeem the car by paying an amount totaling about $644. This sum consisted principally of the amount claimed to be due on the contract, the repair charges, and storage charges. Appellant did not redeem, and Franklin gave notice that the Torino would be sold at public sale. However, the car was apparently sold privately to Center, and a deficiency of about $351 was assessed against appellant. On November 5, 1974, appellant filed suit in the district court against Center and Franklin, charging that the “Credit Sales Disclosure Statement” dated November 5, 1973 (App. 145) prepared by Center in connection with the Torino conditional sale contract contained violations of the Truth in Lending Act and Regulation Z, and that Center and Franklin were jointly liable to' him for these violations. Appellant also asserted a number of “pendent” state-law claims, including usury, “loan sharking,” and breach of warranty, arising out of both loans. He sought damages and injunctive relief on all claims on behalf of himself and a class of persons similarly situated. Appellant later amended his complaint, however, to omit all class action claims. Franklin counterclaimed for the deficiency allegedly due on the conditional sale contract. The parties filed cross-motions for summary judgment and partial summary judgment. After a hearing the district court held that the Torino disclosure statement had violated the Truth in Lending Act and Regulation Z in several respects. Summary judgment was entered in favor of appellant against Center and Franklin’s counterclaim was dismissed. Appellant was awarded the maximum statutory penalty of $1,000 plus costs and attorneys’ fees, but no injunctive relief was ordered. The district court entered summary judgment against the appellant on his claims against Franklin and dismissed his state law claims against both defendants for lack of jurisdiction. On May 17, 1976, appellant demanded and received Center’s payment of the $1,000.00 penalty and court costs, but the amount of the reasonable attorneys’ fees still owing remains to be determined. Appellant now challenges the district court’s grant of summary judgment in favor of Franklin and its dismissal of the state claims, as well as the court’s refusal to enjoin further violations by the appellees. Neither Center nor Franklin has appealed. II. As a threshold issue, both appellees argue that this appeal became moot when appellant accepted Center’s tender of part payment of the judgment against it. Alternatively, they assert that this acceptance either waived appellant’s right to challenge the judgment or estops him from doing so. It is a settled rule of law that a litigant may not accept all or a substantial part of the benefit of a judgment and subsequently challenge the unfavorable aspects of that judgment on appeal. There is, however, a “firmly established exception that when a judgment or decree adjudicates separable or divisible controversies, the appealing party may accept the benefit of the separable or divisible feature in his favor and challenge the feature adverse to him . . .” Luther v. United States, 225 F.2d 485, 497 (10th Cir. 1955), and cases cited therein. In the present case, two reasons suggest that the claims against Center and Franklin are sufficiently “separable” that an appeal is not foreclosed despite appellant’s acceptance of Center’s payment. First, on appeal, since Franklin and Center occupy a different status, the statute might be construed to allow a separate statutory recovery against each defendant. Second, even if the statute is construed to allow only a single penalty, the two appellees might be held to be jointly liable. Such a determination would be relevant on remand, as the amount of the reasonable attorneys’ fees still owing will vary depending on whether or not appellant is deemed to have been successful against Franklin so as to merit an award of court costs and fees attributable to this part of its action under the Act. The Act clearly intends that the award of fees and costs is at least as important a part of a plaintiff’s potential recovery as the small statutory penalty it establishes. Thus, issues affecting the determination of - these fees have an independent significance and should be appealable under the Luther standard. Having determined on this basis that the case before us is not moot, we proceed to the merits of the appeal. III. As to the federal claims, the district court’s amended order contained only the conclusion that Center violated the Act and Regulation Z in several respects, and the conclusion that Center alone was liable to appellant for the violations. The court made no summary of material facts not in issue, and did not offer any explanation of his conclusions of law. The review process therefore must begin with a reconstruction of the reasoning of the district judge. The district court held, on the facts most favorable to Center, that Center was liable for violations of the Act and Regulation Z. This holding necessarily rests on the conclusion that Center was a “creditor,” and that as such “creditor” it was required to make the required disclosures. These holdings are not challenged by any party to this appeal. Nor is there any challenge to the specific violations found by the district court. The district court concluded that the disclosure statement violated three parts of Regulation Z: (1) 12 C.F.R. §§ 226.4(a)(3), (2) 226.6(d), and (3) 226.8(b)(4). Section 226.-4(a) provides that the amount of any finance charge shall be computed to include “(3) Loan fee, points, finder’s fee, or similar charge.” Section 226.6(d) provides that “[i]f there is more than one creditor . in a transaction, each creditor shall be clearly identified . . . .” Section 226.8(b)(4) requires the disclosure of “[t]he amount, or method of computing the amount, of any default, delinquency, or similar charges payable in the event of late payments.” The principal issue raised in this appeal is whether the district court properly entered summary judgment in favor of Franklin on appellant’s claims. This is a question of first impression in this jurisdiction. A Franklin may be held liable under the Truth in Lending Act if it can be successfully characterized as a “creditor.” Section 121(a) of the Act, 15 U.S.C. § 1631(a), provides that “[e]ach creditor” shall make the required disclosures, and section 130(a) provides that “any creditor who fails to comply with any requirement imposed under this chapter with respect to any person is liable to such person . .” in the sums specified in the statute. 15 U.S.C. § 1640(a) (emphasis added). The definition of “creditor” in both the Act and Regulation Z includes those who regularly “arrange for the extension of” credit as well as those who “extend” credit. The district court clearly considered that Franklin was a “creditor.” In concluding that Center had violated section 226.6(d), which requires the disclosure of the identity of “each creditor," — “if there is more than one creditor . . .” (emphasis added) — the district court necessarily concluded that both Franklin and Center were “creditors” on the Torino loan. No other possible “creditors” are involved. Moreover, the court’s finding that Center had failed to disclose a “[l]oan fee, points, [or] finder’s fee,” section 226.4(a)(3), presumably was based on the $25 rebate from Franklin to Center, and further suggests that the district court concluded that Franklin was a “creditor.” Other courts have had no difficulty in concluding that under the Act and Regulation Z, a seller who arranges credit with a lender on behalf of a customer, but who does not himself become bound on the instrument, is nevertheless a “creditor” liable for failure to make required disclosures. A number of other courts have confronted the situation like that in the present case, in which a seller of goods executes a loan contract with the customer, and then immediately assigns the contract to a finance company. Based on the nature of the transaction and the relationship between the two defendants, virtually all of these courts have concluded that the seller acted as a “conduit” for the finance company and held that both were “creditors” liable for the failure to make disclosures required by the Truth in Lending Act and Regulation Z. In each of these cases, the relationship between the seller and the finance company-assignee very closely resembled that between Center and Franklin in the present case. For example, in Meyers v. Clearview Dodge Sales, Inc., 539 F.2d 511 (5th Cir. 1976), Clearview, an automobile dealer, frequently took a financial statement from a prospective customer and submitted it to several credit institutions with which it regularly dealt. If any one of the lenders approves the customer’s credit, Clearview completes the sale and immediately assigns the commercial papers to an approving lender. This practice of prearranging the assignment of commercial paper is a regular and essential part of Clearview’s business and is . tantamount to arrang- ing for the extension of credit. . Consequently, in this factual setting, both appellants are “creditors” under the Act. 539 F.2d at 515. Both the dealer and the finance company were held to be “obligated to make the disclosures mandated by the Act and Regulations,” id., and both were held jointly and severally liable for the statutory penalties for noncompliance. Similarly, in Joseph v. Norman’s Health Club, Inc., 532 F.2d 86 (8th Cir. 1976), the health club sold “lifetime memberships” on an installment plan, immediately assigning the notes, at a prearranged discount, to one of several finance companies. The companies were alerted and did a credit check almost simultaneously with the execution of the note, and refused the assignment of only about five percent of the notes executed. 532 F.2d at 91. On the basis of these facts, the Eighth Circuit reversed the district court’s entry of judgment in favor of the finance companies, and remanded for further proceedings. In entering summary judgment in favor of Franklin on appellant’s claims, the district court did not expressly conclude that on the facts most favorable to appellant, the relationship between Center and Franklin was distinguishable as a matter of law from the relationships between the “creditors” in Meyers, Joseph, and similar eases. Franklin argues that these cases are distinguishable from the present one because there is no evidence that Franklin dictated to Center “how the [conditional sales contract] forms were to be filled out or the terms of the transaction.” Franklin Brief 14. However, we disagree with Franklin’s analysis of the law. Cases such as Meyers and Joseph did not require that the assign-ee-finance company actually participate with the assignor-seller in drafting the price terms of the loan contract. Rather, it is sufficient under these decisions if the relationship between the defendants is sufficiently close to indicate that the seller was acting as the agent or “conduit” of the assignee in arranging the loan. “Where a finance company becomes an integral part of the seller’s financing program, the financing company must bear full responsibility for all disclosure required under the Truth in Lending Act,” Joseph, 532 F.2d at 92. The closeness of the parties here is strengthened by Franklin’s floor plan financing of Center’s cars and the provision for consignment of some cars (App. 286-87). We do not, however, go quite so far as the Eighth Circuit in Joseph. The conclusion that Franklin was a “creditor” does not in our view require that it be held liable for all deficiencies in disclosure. Most of the courts that have considered the liability of multiple creditors under the Act have found them liable without fully addressing the effect of Regulation Z, § 226.6(d). That section provides: If there is more than one creditor or lessor in a transaction, each creditor or lessor shall be clearly identified and shall be responsible for making only those disclosures required by this Part which are within his knowledge and the purview of his relationship with the customer or lessee. [2] If two or more creditors or lessors make a joint disclosure, each creditor or lessor shall be clearly identified. [3] The disclosures required under paragraphs (b) and (c) of § 226.8 shall be made by the seller if he extends or arranges for the extension of credit. [4] Otherwise disclosures shall be made as required under paragraphs (b) and (d) of § 226.8 or paragraph (b) of § 226.15. (Bracketed numbers added). There has been a split among the Circuits as to the proper construction of this regulation. The Third Circuit, in Manning v. Princeton Consumer Discount Co., 533 F.2d 102 (3d Cir.), cert. denied, 429 U.S. 865, 97 S.Ct. 173, 50 L.Ed.2d 144 (1976), found that a transaction in which an automobile dealer arranged a loan for a customer with a finance company was in reality a “credit sale,” and that both the dealer and the finance company were “creditors” within the meaning of the Act and the Regulation. It held, however, that the duty of each to make the required disclosures, and the liability for failure to do so, was controlled by section 226.6(d). It noted that the first sentence of that section would require “each creditor” to make “those disclosures . which are within his knowledge and the purview of his relationship with the customer,” but concluded that the more specific language of the third sentence controls whenever a “seller . . . arranges credit.” By its terms, the Manning court held, the third sentence limits both the duty and the liability to the seller alone. Three other courts have reached the opposite conclusion. In Hinkle v. Rock Springs Nat’l Bank, 538 F.2d 295 (10th Cir. 1976), the Tenth Circuit held that both a seller and the lender with whom the seller arranged consumer financing were liable for the failure to make required disclosures. It cited section 226.6(d) for the proposition “that when there are several ‘creditors’ they each shall be responsible for disclosures which are within the scope of its relationship with the consumer. . and of the data they possess.” 538 F.2d at 297. The Hinkle court thus relied upon the first, sentence of section 226.6(d) in assessing liability even though a seller had arranged the extension of credit. The view of the Hinkle court was elaborated and adopted in preference to that of Manning by district courts in Williams v. Bill Watson Ford, Inc., 423 F.Supp. 345, 354-357 (E.D.La.1976) and a similar result reached in Lipscomb v. Chrysler Credit, No. C72-792 (N.D.Ohio 1973). We concur with the analysis presented in Hinkle. We are loathe in the absence of clearly compelling language to adopt a reading that would permit a finance company to escape all liability for nondisclosures by enlisting a seller of goods to arrange for an extension of credit. We are particularly reluctant to do so here because of the closely integrated relationship of Center and Franklin. To the extent that the finance company influences the conduct of the seller, the deterrent purpose of the liability provisions of the Act is advanced by interpreting the first sentence of section 226.6(d) to control liability for failure to make required disclosures. The limitation of “responsibility]” in the first sentence to disclosure of matters “within [the creditors’] knowledge and the purview of his relationship with the customer” confines multiple creditors’ potential liability to nondisclo-sures for which they are justifiably held responsible, and is the interpretation most consistent with sections 121(a) and 130(a) and the general purposes of the Act. The “knowledge” and “purview” tests are not defined in the Act or Regulation Z. They appear to have independent significance primarily in cases involving co-extenders with differing relationships to the customer. In a “conduit” case like the present one, these two tests overlap to a considerable degree. The matters the Williams court found not to meet these tests were minor matters collateral to the contract and solely within the control of the seller. In contrast, the matters for which the finance company was held liable in Hinkle were essential terms of the contract. At a minimum, the holding that the seller arranged the extension of credit as the “conduit” of the assignee includes the conclusion that the assignee exercised sufficient control over the central terms of the contract to be held liable for their nondisclosure. In addition, the assignee may be charged with the nondisclosure of other matters over which it is shown to have exercised some control. In the present case, Franklin’s identity as a creditor is a sufficient basis upon which to rest liability without placing any reliance upon Franklin’s apparent rebate of $25 to Center’s reserve account. Thus, as a matter of law, on the undisputed facts, Franklin is liable to appellant for the nondisclosure of its relationship. B The “conduit” theory of creditor’s liability under the Truth in Lending Act as it has been described above is applicable to those assignees whose dealings with the assignor were so close that the assignor in reality acted to “arrange for the extension of credit” on behalf of the assignee. In addition, the Act provides for proceedings “against any subsequent assignee,” including bona fide assignees, whether or not the primary creditor worked in league with them in obtaining the financing contract. As one would expect, however, Section 131 of the Act, 15 U.S.C. § 1641 (1970) provides for more limited liability for subsequent assignees than that established under the conduit theory. This section states that as to an assignee without knowledge, “written acknowledgement of receipt [of a disclosure statement] shall be conclusive proof of delivery thereof and, unless the violation is apparent on the face of the statement, of compliance with this part.” (Emphasis added). The clear implication of this language is that a loan customer may obtain a recovery directly from a person who takes assignment of a loan contract accompanied by a disclosure statement containing a “violation apparent on [its] face.” Thus, Section 131 provides an alternative basis for Franklin’s liability if Franklin can be shown to have taken the loan assignment under such a manifestly inaccurate disclosure statement. Appellant contends that various violations were “apparent on the face of the statement” accepted by Franklin. In evaluating these contentions, we must be conscious of the underlying purpose stated in both the original Act and its 1974 Amendments, “to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit . . .” Section 102, 15 U.S.C. § 1601 (Supp. V 1975). See Mourning v. Family Publications Service, 411 U.S. 356, 364-365, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973). With this purpose in mind we turn to appellant’s first contention which is that the description of the collateral and the security interest was inadequate and thus in violation of section 128(a)(10) of the Act, 15 U.S.C. § 1638(a)(10), and Section 226.8(b)(5) of the Regulation. Both the Act and the Regulation require the disclosure of “a description of any security interest . to be retained.” The disclosure statement in the present case describes the collateral only as “1972 Ford.” In evaluating the adequacy of this description in light of the Act’s purpose of providing for meaningful disclosure for credit customers, the reference to a “1972 Ford” seems clearly sufficient. There can be no question that in the setting in which the disclosure statement was prepared and given to appellant, this description fully identified the object of the security interest. It is not the intent of the Act that the disclosure statement be as detailed in all respects as the credit contract itself; this would defeat, rather than serve, the goal of providing usable information to the customer. The adequacy of the description of the security interest in Center’s disclosure statement is a closer question than that of the sufficiency of the description of the collateral, but on balance we conclude that it also was sufficient. The language of the Act and Regulation Z differ somewhat in their statement of how technical a description is required. Section 128(a)(10) of the Act simply requires a “description of the security interest,” while the Regulation Z, § 226.8(b)(5) requires a “description or identification of the type of security interest” (emphasis added). In the latter, both “description” and “identification” could be read as modifying “type of security interest,” thus requiring disclosure in every case of the specific legal “type” into which the security interest falls. Cf. Regulation Z § 226.2(z). The effect of the various “types” of security interests upon a credit customer, however, differs very little, and this information would be of relatively little use to him. Requiring the identification of the “type of security interest” would, accordingly, not comport with the statutory purpose of informing the consumer of his options. Furthermore, a comparison of section 226.8(b)(5) with the section of the Act itself upon which this regulation is based suggests that “description” and “identification of the type” are alternative modifications “of [the] security interest,” and under this reading, it would be sufficient if the creditor described the security interest, even though he did not place it in a legal category. The latter reading adequately serves the purposes of the Act and by avoiding excessive technicality, may actually better inform the consumer than a legally accurate description. The recitation in the disclosure statement that the “transaction is secured by a Security Agreement of even date herewith” was sufficient to put the appellant on notice of the existence of a security agreement and to direct him to the specific agreement, which was readily available for inspection by him prior to his purchase of the automobile. This was a sufficient “description ... of the security interest” to comply with both the Act and the Regulation. Other alleged inadequacies in the disclosure statement are the failure to disclose that (1) the contract provides for the payment of attorneys’ fees of 15 percent in the event the contract is placed with an attorney for collection, (2) that the contract contains an acceleration clause, and (3) that the creditor retains the right of self-help repossession. Appellant contends that these omissions were violations which were “apparent on the face of the statement.” In this respect, however, Section 128(a)(9), 15 U.S.C. § 1638(a)(9), and Regulation Z, § 226.8(b)(4), only require the disclosure of the “default, delinquency, or similar charges payable in the event of late payments.” A number of circuit courts have recently interpreted this language to apply only to charges automatically payable in the event of late payments or default. This view has been adopted by the Federal Reserve Board itself in interpretation letters. We find this authority persuasive, and accordingly conclude that the optional remedies in question here are not required to be disclosed by the Act or Regulation Z. It is further obvious from such reading of the statute and Regulation Z, that neither the right of self-help repossession, nor the attorneys’ fees that might be due if the creditor elects to refer the past due account to an attorney for collection are “default, delinquency or similar charges” which must be disclosed, since these provisions are not automatically invoked. Similarly, the acceleration clause in the conditional sale contract provides: “In the event of death of any Purchaser, or in case of insolvency, bankruptcy, or failure of business, all amounts due hereunder shall at the option of the Seller or assigns become immediately due and payable in full without demand or notice.” (Emphasis added). This clause, although clearly optional presents a somewhat more difficult question than those providing for self-help or collection of fees, because some courts have held that acceleration represents a “charge” if the unearned prepaid finance charge is not rebated in an amount at least equal to the rebate the purchaser would receive in the event of voluntary prepayment. See, e. g., Johnson v. McCrackin-Sturman Ford, 527 F.2d 257, 264-69 (3d Cir. 1975); Black v. G. B. Enterprises, supra, mem. op. at 10-15 and cases cited therein. The contract in the present case does not contain an express provision for the rebate of unearned finance charges in the event of acceleration, but the District of Columbia and Maryland law both require such a rebate and that is sufficient to preclude characterizing the acceleration as a “charge.” In the present case, the District of Columbia had the “most significant contacts” relationship to the contract, and thus its law would apply and require a rebate of unearned finance charges, nor would the conclusion be different if Maryland law was applied. We therefore hold that the acceleration clause did not include a “default, delinquency, or similar charge[].” Finally, appellant argues that a variation between the disclosure statement and the conditional sale contract runs afoul of the requirements of section 128(a)(9) and Regulation Z, § 226.8(b)(4), and is “apparent on the face of the statement.” The contract provides- that the purchaser “shall pay” a delinquency collection charge of five percent of each installment in default for ten days, while the disclosure statement indicates only that the purchaser “may be required to pay a delinquency and collection charge equal to 5% of each installment in default.” (Emphasis added). The disclosure statement leaves the impression that the default charge is discretionary with the creditor; the contract, on the other hand, leaves no doubt that these charges are automatic. We agree with appellant that this inaccuracy was “apparent on the face of the statement.” Although the misstatement in question is not an obvious omission that would be “apparent” to one who had not examined the underlying contract, we conclude that if section 128(a)(9) is to provide consumers with the protection Congress intended, the assignee must be held to the knowledge of the underlying contract and of any inconsistency between its terms and the disclosure statement. We have no doubt that the inaccuracy in question is sufficiently serious to constitute a cognizable violation of the Act. As a matter of law, therefore, this variation between the contract and the disclosure statement is “apparent on the face of the statement,” and Franklin, as an assignee, is liable for this violation. C Since we hold that Franklin is liable to appellant as both a “creditor” and an assignee, it remains to determine the nature and extent of its liability. Appellant concedes that each violation does not give rise to a separate penalty, but contends that a separate statutory recovery may be obtained from each creditor. The difficulty with appellant’s position is that Franklin’s liability as a “creditor” is solely of a vicarious nature, based on the conclusion that Center acted to “arrange the extension of credit” to appellant on Center’s behalf. In similar factual situations, the courts have unanimously held that the two “creditors” are jointly liable for a single statutory penalty. A new section 130(g) was added by the 1974 amendments, codifying this result: The multiple failure to disclose to any person any information required under this part to be disclosed in connection with a single account under [a] . consumer credit sale . . . shall entitle the person to a single recovery under this section but continued failure to disclose after a recovery has been granted shall give rise to rights to additional recoveries. (Emphasis added). This amendment was expressly made applicable to all pending cases and limits the liability of persons held to have violated the Act either as “creditors” or “subsequent assignees.” The present case involves a failure to disclose in connection with a “single account” — the contract involving the 1972 Torino. It is therefore clear, both under the prevailing interpretation of section 130(a) and under the new section 130(g), that appellant is entitled only to a single award from the two appellees. On remand, summary judgment will be entered against Franklin on appellant’s claims, and Franklin will be held jointly liable for the penalty assessed against Center. In awarding costs and attorneys’ fees, the district court should consider that appellant has been “successful” against both Franklin and Center, section 130(a)(3), 15 U.S.C. § 1640(a)(3). Since appellant does not challenge the district court’s conclusion that he suffered no “actual damage” com-pensable under section 130(a)(1), we do not disturb, that portion of the district court’s order. IV. ' Appellant also argues that it was error for the district court to dismiss his state claims and deny summary judgment on Franklin’s counterclaim on the basis of a lack of jurisdiction. Under the two-tiered test enunciated in United Mine Workers v. Gibbs, 383 U.S. 715, 725-26, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), a federal court has power to determine “pendent” state-law claims if the “state and federal claims . . . derive from a common nucleus of operative fact” and “are such that [the plaintiff] would be expected to try them all in one proceeding.” In the present case, the Truth in Lending claims arose solely out of the transaction involving the Torino. The state usury and misrepresentation claims based on the earlier Pinto sale did not derive from a nucleus of operative fact common to the federal action, so it was not within the district court’s power to consider these claims to be pendent to the federal claims. The local law claims arising out of the Torino transaction, on the other hand, were within the district court’s power to exercise pendent jurisdiction. But these claims would have required the resolution of complex choice of law and substantive questions involving the statutory and common law governing usury, loan sharking, and breach of warranty. All of these claims are completely unrelated to the Truth in Lending claims. Had the district court elected to retain the pendent claims, the result would have been virtually unmanageable for the courts and the parties. In addition, once the local law claims based on the Pinto sale were properly dismissed, the rationale for retaining jurisdiction over the remaining pendent claims became even weaker. Liberal joinder rules in both the District of Columbia and Maryland would probably permit all of these claims to be tried in a single proceeding, resulting in greater economy and convenience than would have resulted from the retention of jurisdiction over the local law claims based upon the Torino purchase alone. We conclude that the district court did not abuse its discretion in dismissing the pendent claims. For the same reáson it was proper to deny appellant summary judgment on Franklin’s counterclaim. For the foregoing reasons, we vacate the district court’s order of summary judgment in favor of Franklin Investment Company and remand for entry of summary judgment against Franklin on appellant’s claims. Appellees Franklin and Center Motors, Inc., will be held jointly liable to appellant for a single statutory penalty under 15 U.S.C. § 1640(a)(2)(A), and costs and fees will be awarded on the basis that appellant has been “successful” against Franklin as well as Center, § 1640(a)(3). In all other respects, the amended order of the district court is affirmed. Judgment accordingly. . Center asserts it was its policy to deduct “$25.00 from the face value of each contract assigned to Franklin . . . ” (App. 280). Franklin identified this $25.00 as a “payment . . for the assignment of the contract . . ” (App. 237) “ . . . to reserve” (App. 256) a “dealer’s reserve . . ” (App. 258). . Appellant contends that the disclosure statement executed at the time of the Pinto loan contained similar violations, but concedes that recovery for any such violations was barred by the one-year limitations period in section 130(e) of the Act, 15 U.S.C. § 1640(e) (1970). . Section 130(a) of the Act, as amended in 1974, provides Except as otherwise provided in this section, any creditor who fails to comply with any requirement imposed under this part or part D of this subchapter with respect to any person is liable to such person in an amount equal to the sum of— (1) any actual damage sustained by such person as a result of the failure; 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_adminaction_is

B

What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. CIVIL AERONAUTICS BOARD v. DELTA AIR LINES, INC. No. 492. Argued April 27, 1961. Decided June 12, 1961. John F. Davis argued the cause for petitioner in No. 492. On the briefs were former Solicitor General Rankin, Solicitor General Cox, Assistant Attorney General Loevinger, Assistant Attorney General Bicks, Richard A. Solomon, Irwin A. Seibel, O. D. Ozment and Franklin M. Stone. Albert F. Grisard argued the cause and filed a brief for petitioner in No. 493. R. S. Maurer argued the cause for respondent. With him on the briefs were James W. Callison and Robert Reed Gray. Together with No. 493, Lake Central Airlines, Inc., v. Delta Air Lines, Inc., also on certiorari to the same Court. Mr. Chief Justice Warren delivered the opinion of the Court. This case concerns the power of the Civil Aeronautics Board to alter a certificate of public convenience and necessity, granted to respondent Delta Air Lines, after that certificate had become effective under § 401 (f) of the Federal Aviation Act of 1958. 72 Stat. 731, 755, 49 U. S. C. § 1371 (f). The administrative proceedings from which the present dispute arises date back to May 1955, and involve consideration by the Board of a number of applications for new service between cities located in an area extending from the Great Lakes to Florida. The Board divided the proceedings into two general categories, consolidating the applications for long-haul service in the Great Lakes-Southeast Service Case and those for short-haul flights in the Great Lakes Local Service Investigation Case. In order to protect fully the interests of local service carriers, the Board allowed these carriers, including petitioner Lake Central Airlines, to intervene in the hearings on the long-haul applications. At the conclusion of the Great Lakes-Southeast Service Case a number of awards were made, including one permitting Delta to extend an existing route northwest so as to provide service from Miami to Detroit and to add Indianapolis and Louisville as intermediate points on its existing Chicago-to-Miami route. Certain restrictions for the protection of local carriers were imposed on many of the awards, these restrictions generally providing that flights between specified intermediate cities had to originate at or beyond given distant points. The stated purpose of these restrictions was to prevent the long-haul carrier from duplicating so-called “turn-around” service already provided by existing local carriers. One such restriction was applied to Delta’s run between Detroit and various locations in Ohio but, by and large, Delta’s award was free of protective, limitations. The Board’s order issued on September 30, 1958, and it specified that Delta’s certificate was to become effective on November 29, 1958, unless postponed by the Board prior to that date. Shortly thereafter,within time limits set by the Board, numerous petitions for reconsideration were filed, including one by Lake Central protesting the breadth of Delta’s certificate. Lake Central requested that, if the Board should be unable to decide its petition for reconsideration before November 29, the effective date of the certificate be put off. On November 28, one day before Delta’s certificate was to become effective, the Board issued a lengthy memorandum and order, which stated in substance that the requests for stays, with one immaterial exception, were denied, but that judgment on the merits of the petitions for reconsideration would be reserved. The Board explained that the parties had not made a sufficient showing of error to justify postponements and that, in view of the advent of the peak winter season, further delay would be particularly inappropriate; the Board then said: “To the extent that we have considered the petitions for reconsideration in the present order we have done so only for the purposes of assessing the probability of error in our original decision. We feel that such action is necessary to a fair consideration of the stay requests, and is in no way prejudicial to the legal rights of those parties seeking reconsideration. Nothing in the present order forecloses the Board from full and complete consideration of the pending petitions for reconsideration on their merits.” For reasons not presently pertinent, Delta’s certificate became effective on December 5, rather than November 29, 1958, and Delta commenced its newly authorized operations shortly thereafter. On May 7, 1959, the Board issued a new order disposing of the still-pending petitions for reconsideration. By this order, the Board amended Delta’s certificate in response to the restrictions proposed by Lake Central. Specifically, the Board barred Delta’s operations between ten pairs of intermediate cities unless the flights initiated at Atlanta or points farther south; the effect of this order was to bar certain •flights Delta was then operating. Even then, the Board’s action was not final; the Board reserved the power to lift these restrictions pending the outcome of the Great Lakes Local Service Case. , The Board’s disposition of the petitions was taken summarily, without formal notice to the parties or the opportunity for a hearing prior to decision. Delta sought review of this order before the Board, challenging the Board’s power to change the terms of its certificate after the effective date thereof without notice or hearing. The Board overruled Delta’s objection, stating that: “[W]e believe we have such power, and we have exercised it in the past. Moreover, there is no showing, and we are unable to conclude, that any significant adverse effect will result to either Delta or the public from observance of the conditions here involved.” On review in the Court of Appeals for the Second Circuit, however, the Board’s order was overturned, the court reasoning that Congress had made notice and hearing a prerequisite to the exercise of the Board’s power to change an existing certificate. Delta Air Lines, Inc., v. Civil Aeronautics Board, 280 F. 2d 43. The issue in this case is narrow and can be stated briefly: Has Congress authorized the Board to alter, without formal notice or hearing, a certificate of public convenience and necessity once that certificate has gone into effect? If not, should it make any difference that the Board has purported to reserve jurisdiction prior to certification to make summary modifications pursuant to petitions for reconsideration? We think that both these questions must be answered in the negative. Whenever a question concerning administrative, or judicial, reconsideration arises, two opposing policies immediately demand recognition: the desirability of finality, on the one hand, and the public interest in reaching what, ultimately, appears to be the right result on the other. Since these policies are in tension, it is necessary to reach a compromise in each case and petitioners have argued at length that the Board’s present procedure is a happy resolution of conflicting interests. However, the fact is that the Board is entirely a creature of Congress and the determinative question is not what the Board thinks it should do but what Congress has said it can do. See United States v. Seatrain Lines, 329 U. S. 424, 433. Cf. Delta Air Lines v. Summerfield, 347 U. S. 74, 79-80. This proposition becomes clear beyond question when it is noted that Congress has been anything but inattentive to this issue in the acts governing the various administrative agencies. A review of these statutes reveals a wide variety of detailed provisions concerning reconsideration, each one enacted in an attempt to tailor the agency’s discretion to the particular problems in the area. In this respect, the Federal Aviation Act is no exception since, in § 401 (f) and (g) of the Act, Congress has stated the limits of the Board’s power to reconsider in unequivocal terms. Section 401 (f) provides that “Each certificate shall be effective from the date specified therein, and shall continue in effect until suspended or revoked as hereinafter provided.” The phrase “as hereinafter provided” refers to § 401(g), which states: “Authority to Modify, Suspend, or Revoke “(g) The Board upon petition or complaint or upon its own initiative, after notice and hearings, may alter, amend, modify, or suspend any such certificate, in whole or in part, if the public convenience and necessity so require, or may revoke any such certificate, in whole or in part, for intentional failure to comply with any provision of this title or any order, rule, or regulation issued hereunder or any term, condition, or limitation of such certificate: Provided, That no such certificate shall be revoked unless the holder thereof fails to comply, within a reasonable time to be fixed by the Board, with an order of the Board commanding obedience to the provision, or to the order (other than an order issued in accordance with this proviso), rule, regulation, term, condition, or limitation found by the Board to have been violated. Any interested person may file with the Board a protest or memorandum in support of or in opposition to the alteration, amendment, modification, suspension, or revocation of the certificate.” (Emphasis added.) This language represents to us an attempt by Congress to give the Board comprehensive instructions to meet all contingencies and the Board’s duty is to follow these instructions, particularly in light of the fact that obedience thereto raises no substantial obstacles. It is true, of course, that statutory language necessarily derives much of its meaning from the surrounding circumstances. However, we think that, while there is no legislative history directly on point, the background of the Aviation Act strongly supports what we believe to be the plain meaning of § 401 (f) and (g). It is clear from the statements of the supporters of the predecessor of the Aviation Act — the Civil Aeronautics Act of 1938 — that Congress was vitally concerned with what has been called “security of route” — i. e., providing assurance to the carrier that its investment in operations would be protected insofar as reasonably possible. And there is no other explanation but that Congress delimited the Board’s power to reconsider its awards with precisely this factor in mind; hence the language that a certificate “shall he effective . . . until suspended or revoked as hereinafter provided” (emphasis supplied), language which is absent from several of the Acts to which reference has been made. Thus, the structure of the statute, when considered in light of the factor persuading Congress, indicates to us that the critical date in the mind of Congress was the date on which the carrier commenced operations, with the concomitant investment in facilities and personnel, not the date that abstract legal analysis might indicate as the “final” date. In other words, it seems clear to us that Congress was relatively indifferent to the fluctuations an award might undergo prior to the time it affected practical relationships, but that Congress was vitally concerned with its security after the wheels had been set in motion. In light of this, we think the result we reach follows naturally: to the extent there are uncertainties over the Board’s power to alter effective certificates, there is an identifiable congressional intent that these uncertainties be resolved in favor of the certificated carrier and that the specific instructions set out in the statute should not be modified by resort to such generalities as “administrative flexibility” and “implied powers.” We do not quarrel with those who would grant the Board great discretion to conjure with certificates prior to effectuation. But, we feel that we would be paying less than adequate deference to the intent of Congress were we not to hold that, after a certificate has gone into effect, the instructions set out in the statute are to be followed scrupulously. However, petitioners argue that there is an implied exception to the statutory mandate when the Board, pursuant to a petition for reconsideration filed before the certificate’s effective date, makes a statement that the certificate is subject to later amendment after further deliberation upon the petition. Petitioners admit that there is no express statutory authority for the Board to entertain petitions for reconsideration even prior to the effective date of the certificate, but they assert, and we assume arguendo they are correct, that the Board has implied power to accept such petitions. This being the case, petitioners claim that the existence of an outstanding petition for reconsideration gives a double meaning to the term "effective” as used in the Act: certificates are "effective” on the date specified therein for the purpose of allowing the certificated carrier to commence operations, but they are not “effective” as the term is used in § 401 (f) so as to preclude modification outside the procedures specified in § 401 (g). The appeal of this argument comes, in the main, from the general notion that an administrative order is not “final,” for the purposes of judicial review, until outstanding petitions for reconsideration have been disposed of. See, e. g., Outland v. Civil Aeronautics Board, 109 U. S. App. D. C. 90, 284 F. 2d 224; Braniff Airways, Inc., v. Civil Aeronautics Board, 79 U. S. App. D. C. 341, 147 F. 2d 152. Once it is established that the certificate is not “final” for one purpose, the argument runs, then it is logical to assume that the certificate lacks “finality” for another. The difficulties with this line of reasoning, however, are many. First, insofar as it is bottomed on cases such as Outland and Braniff, the argument relies on holdings that were never made. The Courts of Appeals in these cases decided only that petitions for review were timely if filed in time from the date on which the Board disposed of pending petitions for reconsideration; the question whether the Board’s action on the petitions for reconsideration should have been taken after notice and hearing did not arise. Furthermore, petitioners’ argument skips an important logical step; it assumes, without explanation, that questions of administrative finality present the same problems, and therefore deserve the same solutions, as questions concerning the timeliness of an appeal. In point of fact, this assertion is not only unsupported but erroneous. The pertinent statutory language is not similar in the two instances. and the other points under analysis are different. Thus, a court considering the timeliness of a litigant's appeal is concerned with the wisdom of exercising its own power to act, and the result depends on such factors as fairness to the appellant and the intent of Congress in passing a general statute — § 10 (c) of the Administrative Procedure Act— which applies equally to almost all administrative agencies. There is no call, as Outland, and similar cases illustrate by their omissions, for considering either the sections of a particular act which are not concerned with appellate review or the problem — which at that point is of historical interest only — whether the petition for reconsideration should have been decided summarily or after notice and hearing. One might argue, of course, that the question is similar in both instances because, if the Board’s action on the petition for reconsideration is too late, then an appeal which is timely only from the Board’s action on reconsideration is also too late. However, this line of reasoning overlooks the confines of the result we are reaching in this case. We are not saying that the Board cannot entertain petitions for reconsideration after effective certification, nor are we holding that such petitions cannot be denied summarily; all we hold is that the petitions cannot be granted and the certificated carrier’s operations curtailed without notice or hearing. Therefore, since the cases such as Outland concerned the denial of a petition for reconsideration, there is no conflict, express or implied, between those decisions and this one. In this connection, the statement of a leading commentator seems particularly pertinent: . “The tendency to assume that a word which appears in two or more legal rules, and so in connection with more than one purpose, has, and should have precisely the same scope in all of them runs all through legal discussions. It has all the tenacity of original sin and must constantly be guarded against.” Cook, The Logical and Legal Bases of the Conflict of Laws, 159. Thirdly, were we to adopt the position urged by petitioners, we would have to hold that, in the words of a former chairman of the Board, the power to reconsider a case may be the lever for “nullify [ing] an express provision of the Act.” Ryan, The Revocation of an Airline Certificate of Public Convenience and Necessity, 15 J. Air L. & Comm. 377, 384. As Commissioner Ryan indicated, the power the Board asks for in this case seems nothing more or less than the power to do indirectly what it cannot do directly. Parenthetically, it should be noted that, for purposes of this dispute, it is difficult to draw a distinction between a petition for reconsideration filed by a party and one initiated by the Board sua sponte. Sprague v. Woll, 122 F. 2d 128. This being the case, it is all the more significant that the Court in United States v. Seatrain Lines, 329 U. S. 424, while overruling the Interstate Commerce Commission’s contention that it had inherent power to reconsider effective certificates, paid no attention to the fact that the Commission had made the original certificate effective, subject “to such terms, conditions, and limitations as are now, or may hereafter be, attached to the exercise of such authority by this Commission.” Although we feel that the language and background of the statute are sufficiently clear so that affirmance can rest solely on that basis, it seems appropriate, in light of petitioners’ vigorous assertion that policy reasons compel their result, to discuss some of the ramifications of our decision. In the first place, it bears repetition that we are not deciding that the Board is barred from reconsidering its initial decision. All we hold is that, if the Board wishes to do so, it must proceed in the manner authorized by statute. Thus, for example, the Board may reconsider an effective certificate at any time if it affords the certificated carrier notice and hearing prior to decision; or, if it feels uncertain about the decision prior to its effective date, it may postpone the effective date until all differences have been resolved; and, if neither of these procedures seem practical in a given case, the Board may issue a temporary certificate set to expire on the date the Board -prescribes for re-examination. Indeed, with all these weapons at its command, it is difficult to follow the argument that the Board should be allowed to improvise on the powers granted by Congress in order to preserve administrative flexibility. Furthermore, it would seem that any realistic appraisal of the relative hardships involved in this case cuts in favor of the respondent. To be sure, the Board may be able to act quicker under the rule it espouses and, by eliminating the necessity of a new hearing, Lake Central will be spared the expense of preparing a new record. However, were the Board correct, respondent would be subjected to the loss of valuable routes, routes it had already begun to operate after considerable initial investment, without being heard in opposition. The Board points out that respondent had notice that the Board had reserved the right to amend the certificate. But it is not clear what comfort respondent could take from such notice; respondent could not hedge, since § 401 (f) of the Act provides that a certificated carrier may lose the right to conduct any service it does not initiate within 90 days of certification. Concededly, the fact of notice gives considerable surface appeal to petitioners’ assertions; they can and do argue that respondent knew what it was getting into and should not be heard to complain when the gamble turns out unfavorably. However, it must be remembered that the problem is not presented to us in the abstract; we are dealing with it in the context of this particular statute. And, as stated above, a major purpose behind the enactment of the Aviation Act was to eliminate the element of risk from a carrier’s operations. With Congress on record as affirmatively desiring to eliminate the necessity of gambling, we do not feel that the “assumption of the risk” argument carries much weight. The Board also argues that respondent “in substance” enjoyed the hearing contemplated by § 401 (g) because the matters impelling the Board to change its mind were matters that had been thrashed out during the hearings on the original certificate. However, this contention assumes a fact that we do not have before us — that a hearing would not have disclosed any further evidence or, perhaps more importantly, any post-certification events weighty enough to alter the Board’s thinking. In short, our conclusion is that Congress wanted certificated carriers to enjoy “security of route” so that they might invest the considerable sums required to support their operations; and, to this end, Congress provided certain minimum protections before a certificated operation could be cancelled. We do not think it too much to ask that the Board furnish these minimum protections as a matter of course, whether or not the Board in a given case might think them meaningless. It might be added that some authorities have felt strongly enough about the practical significance of these protections to suggest that their presence may be required by the Fifth Amendment. See Seatrain Lines v. United States, 64 F. Supp. 156, 161; Handlon v. Town of Belleville, 4 N. J. 99, 71 A. 2d 624; see also 63 Harv. L. Rev. 1437, 1439. Petitioners’ final argument is that their position is supported by consistent administrative construction and analogous case authority. The administrative construction argument appears less than substantial in light of the fact that, on the last and, it appears, only occasion when the present question was expressly considered, the Board said in dictum that it had “grave doubts” about proceeding in the manner followed in this case. Kansas City-Memphis-Florida Case, 9 C. A. B. 401; cf. Smith Bros., Revocation of Certificate, 33 M. C. C. 465. See generally Ryan, supra, where Commissioner Ryan went to great lengths to expose what he felt were the fallacies in the contentions now advanced by petitioners. With respect to prior cases, petitioners again are unable to cite any holdings on point. Petitioners rely heavily on Frontier Airlines, Inc., v. Civil Aeronautics Board, 104 U. S. App. D. C. 78, 259 F. 2d 808, but the dispute here involved was not raised in that case. The closest analogy in Frontier is to the argument put forward by a party whose petition for reconsideration had been denied; and the Court of Appeals reported this argument and the reasons for overruling it as follows: “[T]he order on reconsideration is a nullity because it was rendered after the petition for judicial review had been filed and after the certificates previously issued had become effective; and, if that order is a nullity, the basic order is also a nullity because it fails to cover certain points. “We do not find the order denying reconsideration invalid because rendered after this petition was filed. No harm was done. Had the Board been of a mind to grant reconsideration, it could have so indicated and a motion to remand would have been in order.” Perhaps more favorable to petitioners is this Court’s decision in United States v. Rock Island Motor Transport Co., 340 U. S. 419, where it was held that the Interstate Commerce Commission could modify a motor carrier’s effective certificate pursuant to a reservation in the initial order. However, two important distinctions between that case and this are apparent: (1) the Motor Carrier Act makes express provision for summary modifications after certification, 49 U. S. C. § 308, and (2) the Court in Rock Island was very careful to limit its holding to the particular modification made in that case. Finally, the decision which is analytically most relevant to this case, United States v. Seatrain Lines, supra, furnishes support for respondent, rather than petitioners. While Seatrain may be distinguishable on its facts, the Court spoke in general terms of the rule that supervising agencies desiring to change existing certificates must follow the procedures “specifically authorized” by Congress and cannot rely on their own notions of implied powers in the enabling act. In short, we do not find that prior authority clearly favors either side; however, to the extent that a broad observation is permissible, we think that both administrative and judicial feelings have been opposed to the proposition that the agencies may expand their powers of reconsideration without a solid foundation in the language of the statute. Therefore, since the language and background of the statute are against, rather than for, the Board, the judgment of the Court of Appeals must be Affirmed. This section provides: “Each certificate shall be effective from the date specified therein, and shall continue in effect until suspended or revoked as hereinafter provided, or until the Board shall certify that operation thereunder has ceased, or, if issued for a limited period of time under subsection (d) (2) of this section, shall continue in effect until the expiration thereof, unless, prior to the date of expiration, such certificate shall be suspended or revoked as provided herein, or the Board shall certify that operations thereunder have ceased: Provided, That if any service authorized by a certificate is not inaugurated within such period, not less than ninety days, after the date of the authorization as shall be fixed by the Board, or if, for a period of ninety days or such other period as may be designated by the Board any such service is not operated, the Board may by order, entered after notice and hearing, direct that such certificate shall thereupon cease to be effective to the extent of such service.” The Board’s regulations concerning petitions for reconsideration, 14 CFR § 302.37, provide in part that: “Petition for reconsideration — (a) Time for filing. A petition for reconsideration, rehearing or reargument may be filed by any party to a proceeding within thirty (30) days after the date of service of a final order by the Board in such proceeding unless the time is shortened or enlarged by the Board, except that such petition may not be filed with respect to an initial decision which has become final through failure to file exceptions thereto. However, neither the filing nor the granting of such a petition shall operate as a stay of such final order unless specifically so ordered by the Board. After the expiration of the period of filing a petition, a motion for leave to file such petition may be filed; but no such motion shall be granted except on a showing of unusual and exceptional circumstances, constituting good cause for failure to make timely filing. Within ten (10) days after a petition for reconsideration, rehearing, or reargument is filed, any party to the proceeding may file an answer in support of or in opposition to the petition.” A temporary stay was granted from November 29 to December 5 to enable the Court of Appeals to consider a request by Eastern Air Lines for a judicial stay of certain awards made in the original proceeding. Eastern did not get its stay nor was its challenge on the merits upheld. Eastern Air Lines v. Civil Aeronautics Board, 271 F. 2d 752. We are informed that this case has now been completed but no further action has been taken on Delta’s restrictions. See Tobias, Administrative Reconsideration: Some Recent Developments in New York, 28 N. Y. U. L. Rev. 1262, where the author observed: “Re-examination and reconsideration are among the normal processes of intelligent living. Admittedly no warranty of correctness or fitness attaches to a decision or an action simply because it is a thing of the past. Every-day experience teaches the contrary: while the choice first made may well remain the course ultimately followed, often enough it is found on further consideration to require revision. On the other hand, constant re-examination and endless vacillation may become ludicrous, self-defeating, and even oppressive. Whether for better or for worse so far as the merits of the chosen course are concerned, a point may be reached at which the die needs to be cast with some 'finality.' An opposition may thus develop between the right result and the final one.” See also the statement of the Board in its original opinion in this ease, denying a motion to reopen the record: “Our general policy with respect to motions to reopen the record for receipt of data on the most recent operating experience has consistently reflected the requirement of the public interest that the record in major route cases be brought to a close as expeditiously as possible, consistent with the requirements of full hearings; so that final decision may be rendered promptly. Institution of needed new services could be endlessly delayed were we to permit the record to be reopened in the final procedural stages of a case for the submission of more recent operating data (and the attendant cross-examination and exchange of rebuttal-evidence). Only in the cases where the situation under consideration has changed radically would such a course of action be justified.” Generally speaking, the less interested Congress has been in what has been called “security of certificate,” the wider the scope of reconsideration Congress has allowed to the supervising agency. See generally Davis, Res Judicata in Administrative Law, 25 Texas L. Rev. 199. It cannot be doubted that Congress was powerfully interested in “security of certificate” when it passed the Aviation Act. See 83 Cong. Rec. 6407. No one contends that the changes made upon reconsideration constituted the correction of inadvertent errors. See American Trucking Assns., Inc., v. Frisco Transportation Co., 358 U. S. 133. Speaking on behalf of the bill which became the predecessor of the Federal Aviation Act — the Civil Aeronautics Act of 1938— Congressman Lea, Chairman of the Committee on Interstate and Foreign Commerce which reported the bill, said: “One hundred and twenty million dollars has already been invested in commercial aviation in the United States. It is the information of the committee that $60,000,000 of this sum has been wiped out. The fact that so much money has been put into commercial aviation shows the faith, the genius, and the courage of the American people in that they are willing to invest as they have in aviation up to this date. However, in the absence of legislation such as we have now before us these lines are going to find it very difficult if not impossible to finance their operations because of the lack of stability and assurance in their operations. You would not want to invest $200 or $2,000 a mile in a line that has no assurance of security of its route and no protection against cutthroat competition. “Part of the proposal here is that the regulatory body created by the bill will have authority to issue certificates of convenience and necessity to the operators. This will give assurance of security of route. The authority will also exejcise rate control, requiring that rates be reasonable and giving power to protect against cutthroat competition. In my judgment, those two things are the fundamental and essential needs of aviation at this time, security and stability in the route and protection against cutthroat competition. “These are the two economic fundamentals presented and it is this necessity that the bill seeks to meet. We want to give financial stability to these companies so they can finance their operations and finance them to advantage.” 83 Cong. Rec. 6406-6407. The “finality” of an order for purposes of judicial review depends on § 10 (c) of the Administrative Procedure Act, 60 Stat. 243, 5 U. S. C. § 1009 (c). See 6 Stan. L. Rev. 531. In addition to the reasons mentioned in the text, those cases involving orders, rather than certificates—see Western Air Lines v. Civil Aeronautics Board, 194 F. 2d 211—are distinguishable for the reasons stated in Seatrain, supra, at 432. Similarly, the cases involving certificates under the Federal Communications Act are distinguishable for the reasons stated by Commissioner Ryan. See Ryan, The Revocation of an Airline Certificate of Public Convenience and Necessity, 15 J. Air L. & Comm. 377, 384-385. See also Hancock, Fallacy of the Transplanted Category, 37 Can. B. Rev. 535. One might argue, of course, that judicial review and administrative reconsideration are the same since both threaten a reversal of the prior award. However, Congress has shown no intent to preclude reconsideration, either judicial or administrative, after notice and hearing. Although the Board did not purport to issue a temporary certificate as prescribed in §401 (d)(2), petitioners now argue that the Board’s action was “equivalent” to a temporary certification. However, we do not find this proposition persuasive. As stated in the text, supra, we think that the Board must bow to the statutory procedure and cannot take short cuts. See note 15, infra. Moreover, the most natural reading of § 401 (d) (2) — which says that temporary certificates may be issued for “limited periods” — is that Congress was authorizing the Board to issue certificates running until a specified date. One reason for this construction is obvious; if a temporary certificate had unlimited duration, only subject to immediate revocation when the Board got around to considering various objections, it might play havoc with the ability of the carrier to accept advance reservations. Just such a contention was made by Delta before the Board in its petition for a stay of the Board’s May 7, 1959, order on reconsideration. Delta pointed out: “It is a fact that schedules for May and June, and timetables showing this early morning Chicago-Indianapolis-Evansville and Evansville-Indianapolis-Chicago service, have been released to the public and many reservations have been booked for these months. Furthermore, pilot bidding procedures and problems involving equipment rotation prohibit the immediate cancellation of this flight on short notice.” It appears clear, and the Board does not disagree, that the “hearing” specified in § 401 (g) means a “hearing” prior to decision. And, the Board does not contend that this requirement could have been satisfied by the allowance of a hearing after the decision on reconsideration was handed down. This course of action seems wise since (1) it is generally accepted on both principle and authority that a hearing after decision, although permissible in special circumstances, is not the equivalent of a predetermination hearing, see, e. g., Gelhorn and Byse, Administrative Law, 774; (2) it is not entirely clear that Delta could have procured a hearing after the Board’s decision. Delta sought a stay of the Board’s May 7 order until after the Great Lakes Local Service Investigation Case was decided, presumably with a view to introducing further evidence on the present point in that ease; the request for a stay was denied. Since Kansas City, the Board has reconsidered an effective award on three occasions. United Western, Acquisition of Air Carrier Property, 11 C. A. B. 701; Service to Phoenix Case, Order E-12039 (1957); South Central Area Local Service Case, Order E-14219 (1959). United Western did not involve a certificate of public convenience and necessity and, thus, has no relevance. See note 10, supra. Service to Phoenix involved a denial of reconsideration except on one point, which might arguably be termed the correction of inadvertent error. See note 7, supra. South Central did involve the alteration of a certificated carrier’s rights. As stated, the present point was not raised in any of these three cases. The potentially distinguishing feature about Seatrain is that the Court’s holding may rest on an alternate ground — viz.: that the Commission had no power to impose the conditions it did in the first instance. However, Seatrain cannot be distinguished on the grounds that the Court said “the certificate, when finally granted and the time fixed for rehearing has passed, is not subject to revocation in whole or in part except as specifically authorized . . . The point is that, under the Water Carrier Act, the Commission had express authority to entertain petitions for reconsideration at any time. See 49 U. S. C. § 916 (a), incorporating 49 U. S. C. § 17 (6) and (7). Therefore, it is clear that the Commission in Seatrain could have reached with impunity the result it wanted to reach by following the procedures set out by Congress. The force of the Seatrain decision is, then, that the commissions and boards must follow scrupulously the statutory procedures before they can alter existing operations and that arguments to the effect that “this is just another way of doing it” will not prevail. Question: Did administrative action occur in the context of the case? A. No B. Yes 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". UNITED STATES of America, Plaintiff-Appellee, v. GLEANERS AND FARMERS CO-OPERATIVE ELEVATOR COMPANY, Defendant-Appellant. No. 72-1064. United States Court of Appeals, Seventh Circuit. Argued Jan. 7, 1973. Decided July 3, 1973. Rehearing and Rehearing En Banc Denied July 31, 1973. See, also, 314 F.Supp. 1148. Victor John Roberts, Lowell, Ind., Charles W. Grubb, Cedar Lake, Ind., for defendant-appellant. William C. Lee, U. S. Atty., Charles W. Larmore, Asst. U. S. Atty., Fort Wayne, Ind., for plaintiff-appellee. Before KILEY, PELL and STEVENS, Circuit Judges. KILEY, Circuit Judge. Plaintiff, United States, brought suit against defendant, Gleaners and Farmers Co-operative Elevator Company (Gleaners), for satisfaction of a lien on crops which Gleaners had purchased from borrowers of the United States who defaulted on their obligation to repay the loans. The district court, sitting without a jury, entered judgment for the United States in the amount of $1,920.18. Gleaners has appealed. We affirm. On January 13, 1966, the United States Department of Agriculture made a loan of $12,000.00 to Donald and Judith Jurs (debtors) and in return accepted a promissory note executed on that date. To secure the indebtedness security agreements were executed in favor of the United States on April 10, 1967 and March 21, 1968 covering, inter alia, crops to be grown by the debtors. Financing statements were also signed by the parties and filed in the appropriate manner on March 24, 1965 and April 13, 1967. Subsequently, Gleaners, a grain elevator in the business of purchasing crops of farmers, purchased a large quantity of grain from the debtors’ 1968 crop which was subject to a security interest under the security agreement executed on March 21, 1968. Thereafter the debtors defaulted on their obligations under the promissory note and the litigation subject of this appeal followed. The vital issue before us is whether the United States had a perfected security interest in the debtors’ crops which was effective against Gleaners as purchaser. It is undisputed that the United States is bound by Article IX of the Uniform Commercial Code (U.C.C.). The U.C.C. as adopted by Indiana provides, in pertinent part: that a security interest does not attach to crops planted more than one year after the security agreement is executed, Burns Ind.Stats. § 19-9-204(4)(a), IC 1971, 26-1-9-204(4) (a); and that a financing statement must be filed to perfect a security interest, Burns Ind.Stats. § 19-9-302, IC 1971, 26-1-9-302, and must comply with the requirements enunciated in Burns Ind.Stats. § 19-9-402, IC 1971, 26-1-9-402. We decide the issue before us against this background. It is conceded by Gleaners that there was a security interest in the 1968 crops between the United States and debtors as a result of the March 21, 1968 security agreement. Gleaners argues, however, that the security interest was never perfected so as to be effective against all subsequent purchasers and creditors claiming an interest in the subject security. Its argument is based on the proposition that the April 13, 1967 financing statement was ineffective to perfect a security interest in the crops which were the subject of the March 21, 1968 security agreement. It also argues that since no financing statement had been filed at the time of or subsequent to the March 21, 1968 security agreement, Gleaners did not have notice of the security interest in the 1968 crops and was not bound thereby. Gleaners’ argument, that there was not a perfected security interest in the 1968 crops as a result of the failure to file a financing statement in 1968, ignores two sections of the U.C.C. which provide (1) that “[a] financing statement may be filed before a security agreement is made or a security interest otherwise attaches,” Burns Ind.Stats. § 19-9-402; and (2) that the filing of a financing statement is effective for a period of five years unless a shorter period is otherwise stated, Burns Ind. Stats. § 19-9-403, IC 1971, 26-1-9-403. Applying these sections to the facts before us, the April 13, 1967 filing of a financing statement was sufficient to satisfy the requirement necessary to perfect a security interest under the March 21,1968' security agreement. Moreover, Gleaners does not argue that the April 13, 1967 financing statement was not broad enough to cover the March 21, 1968 security agreement. We, therefore, agree with the district court and hold that under present Indiana law, the United States was under no obligation to file a 1968 financing statement in order to perfect the security interest. Our holding gains support from recent developments in pertinent U.C.C. sections. Since the adoption of the U.C.C. by the State of Indiana, which was in effect at times pertinent to this case, the American Law Institute and the National Conference of Commissioners on Uniform State Laws have given their attention to the official text of the U.C.C. A comprehensive revision of Article IX of the U.C.C. has resulted. The revisions have been published recently as the “1972 Official Text and Comments of Article 9 — Secured Transactions.” Since the promulgation of these comprehensive revisions to Article IX, most states, including Indiana, have had little or no time to amend their statutes. Nevertheless we are aided in our decision by these revisions and by the official comments on the issue before us. The most significant revision for our purposes is to be found in § 9-204 which, inter alia, permits and regulates the right of a secured party to acquire a security interest in crops. The section, before revision, as adopted by Indiana and discussed, supra, provided that no security interest could attach in crops which became such more than one year after the security agreement was executed. This section was designed to protect against farmers who would encumber their crops for many years in the future and was in substantial conformity .with the Indiana Chattel Mortgage Law which the U.C.C. replaced. The revised § 9-204, however, no longer restricts a security interest from attaching to crops which become such more than one year after the execution of the security agreement but rather has eliminated that provision. In articulating reasons for the changes, the commentators state that the former § 9-204(2) and (4) (a), applying to crops, were unworkable and confusing. Therefore, in the revision, section (2) was “eliminated as unnecessary” and (4) (a) was redesigned and numbered (2). In explaining the problems with the former section the commentators expressed reasons applicable to the issue before us. Therefore, we find the following explanation by the commentators of the change in former § 9-204(4) (a) persuasive in support of our determination of the case before us: The provision did not work because there was no corresponding limit on the scope of a financing statement covering crops, and under the Code’s notice-filing rules the priority position of a security arrangement covering successive crops would be as effectively protected by the filing of a first financing statement whether the granting clause as to successive crops was in one security agreement with an after-acquired property clause or in a succession of security agreements. On the other hand the clause did require an annual security agreement for crops even when the encumbrance on crops was agreed to as part of a long-term financing covering farm machinery and other assets. The provision thus appeared to be meaningless in operation except to cause unnecessary paperwork, but it did introduce some element of uncertainty as to its purpose. For the foregoing reasons the judgment of the district court is Affirmed. . Federal jurisdiction rests on 28 U.S.G. § 1345. . This was an operating loan made under the provisions of the Consolidated Farmers Home Administration Act of 1961. 7 U.S.C. § 1921 et seq. . Burns Ind.Stats. § 19-9-101 et seq., IC 1971, 26-1-9-101 et seq. . It is significant to note that the provisions of the U.O.C. make a distinction between the attaching of a security interest and its perfection. The concept of “attaching” refers to the creation of the security interest by virtue of the execution of a security agreement, while “perfection” is the additional step which makes the security interest effective against third parties by virtue of filing a financing statement. . The U.C.C. was adopted by Indiana in 1968 and became effective on July 1, 1964. . The revisions were originally drafted and recommended by the U.C.C.’s permanent Editorial Board and in 1971 approved and in 1972 published by the American Law Institute and the National Conference of Commissioners on Uniform State Laws. . U.C.C. § 9-204, Burns Ind.Stats. 19-9-. 204. When Security Interest Attaches; After-Acquired Property; Future Advances. (1) A security interest cannot attach until there is agreement (subsection (3) of Section 1-201) that it attach and value is given and the debtor has rights in the collateral. It attaches as soon as all of the events in the preceding sentence have taken place unless explicit agreement postpones the time of attaching. (2) For the purposes of this section the debtor has no rights (a) in crops until they are jdanted or otherwise become growing crops, in the young of livestock until they are conceived ; (b) in fish until caught, in oil, gas or minerals until they are extracted, in timber until it is cut; (c) in a contract right until the contract has been made; (d) in an account until it comes into existence. (3) Except as provided in subsection (4) a security agreement may provide that collateral, whenever acquired, shall secure all obligations covered by the security agreement. (4) No security interest attaches under an after-acquired property clause (a) to crops which become such more than one year after the security agreement is executed except that a security interest in crops which is given in conjunction with a lease or a land purchase or improvement transaction evidenced by a contract, a mortgage or deed of trust may if so agreed attach to crops to be grown on the land concerned during the period of sucli real estate transaction; (b) to consumer goods other than accessions (Section 9-314) when given as additional security unless the debtor acquires rights in them within ten days after the secured party gives value. (5) Obligations covered by a security agreement may include future advances or other value whether or not the advances or value are given pursuant to commitment. . Revised § 9-204 provides: (1) Noecept as provided in subsection (%), a security agreement may provide that any or all obligations covered by the security agreement are to be sectored by after-acquired collateral. (2) No security interest attaches under an after-acquired property clause to consumer goods other than accessions (Section 9-314) when given as additional security unless the debtor acquires rights in them within ten days after the sectored party gives value. (3) (5) Obligations covered by a security agreement may include future advances or other value whether or not the advances or value are given pursuant to commitment (subsection (1) of Section 9-105). Italicized portions indicates new language. 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:

sc_issue_1

47

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. CALLANAN v. UNITED STATES. No. 47. Argued November 15-16, 1960. Decided January 9, 1961. Morris A. Shenker and Sidney M. Glazer argued the cause and filed a brief for petitioner. Theodore George Gilinsky argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Wilkey and Beatrice Rosenberg. Mr. Justice Frankfurter delivered the opinion of the Court. Petitioner was convicted by a jury in the United States District Court for the Eastern District of Missouri on two counts. Count I charged a conspiracy to obstruct commerce by extorting money, and Count II charged the substantive offense of obstructing commerce by extortion, both crimes made punishable by the Hobbs Anti-Racketeering Act, 18 U. S. C. § 1951. Petitioner was sentenced to consecutive terms of twelve years on each count, but the sentence on Count II was suspended and replaced with a five-year probation to commence at the expiration of his sentence under Count I. On appeal, the conviction was affirmed, 223 F. 2d 171. Petitioner thereafter sought a correction of his sentence, invoking Rule 35 of the Federal Rules of Criminal Procedure as well as 28 U. S. C. § 2255. He claimed that the maximum penalty for obstructing interstate commerce under the Act by any means is twenty years and that Congress did not intend to subject individuals to two penalties. The District Court denied relief, holding that the Hobbs Act gave no indication of a departure from the usual rule that a conspiracy and the substantive crime which was its object may be cumulatively punished. 173 P. Supp. 98. The Court of Appeals for the Eighth Circuit affirmed this judgment, 274 F. 2d 601. Deeming the question raised by petitioner of sufficient importance, we brought the case here. 362 U. S. 939. Under the early common law, a conspiracy — which constituted a misdemeanor — was said to merge with the completed felony which was its object. See Commonwealth v. Kingsbury, 5 Mass. 106. This rule, however, was based upon significant procedural distinctions between misdemeanors and felonies. The defendant in a misdemeanor trial was entitled to counsel and a copy of the indictment; these advantages were unavailable on trial for a felony. King v. Westbeer, 1 Leach 12, 15, 168 Eng. Rep. 108, 110 (1739); see Clark and Marshall, Crimes, §2.03, n. 96 (6th ed.). Therefore no conviction was permitted of a constituent misdemeanor upon an indictment for the felony. When the substantive crime was also a misdemeanor, People v. Mather, 4 Wend. 229, 265 (N. Y.), or when the conspiracy was defined by statute as a felony, State v. Mayberry, 48 Me. 218, 238, merger did not obtain. As these common-law procedural niceties disappeared, the merger concept lost significance, and today it has been abandoned. Queen v. Button, 11 Q. B. 929, 116 Eng. Rep. 720; Pinkerton v. United States, 328 U. S. 640. Petitioner does not draw on this archaic law of merger. He argues that Congress by combining the conspiracy and the substantive offense in one provision, § 1951, manifested an intent not to punish commission of two offenses cumulatively. ■ Unlike the merger doctrine, petitioner’s position does not question that the Government could charge a conspiracy even when the substantive crime that was its object had been completed. His concern is with the punitive consequences of the choice thus open to the Government; it can indict for both or either offense, but, petitioner contends, it can punish only for one. The present Hobbs Act had as its antecedent the Anti-Racketeering Act of 1934. In view of this Court’s restrictive decision in United States v. Local 807, 315 U. S. 521 (1942), Congress, under the leadership of Representative Hobbs, sought to stiffen the 1934 legislation. After several unsuccessful attempts over a period of four years, a bill was passed in 1946 which deleted any reference to wages paid by an employer to an employee, on which the decision in Local 807 had relied. The 1934 Act was further invigorated by increasing the maximum penalty from ten to twenty years. Petitioner relies on numerous statements by members of Congress concerning the severity of the twenty-year penalty to illustrate that cumulative sentences were not contemplated. But the legislative history sheds no light whatever on whether the Congressmen were discussing the question of potential sentences under the whole bill or merely defending the maximum punishment under its specific sections. All the legislative talk only reiterates what the statute itself says — that the maximum penalty is twenty years. The distinctiveness between a substantive offense and a conspiracy to commit is a postulate of our law. “It has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses.” Pinkerton v. United States, 328 U. S. 640, 643. See also Pereira v. United States, 347 U. S. 1, 11. Over the years, this distinction has been applied in various situations. For example, in Clune v. United States, 159 U. S. 590, the Court upheld a two-year sentence for conspiracy over the objection that the crime which was the object of the unlawful agreement could only be punished by a $100 fine. The same result was reached when, as in the present case, both offenses were described within the same statute. In Carter v. McClaughry, 183 U. S. 365, cumulative sentences for conspiracy to defraud and fraud were upheld. “Cumulative sentences,” the Court pronounced, “are not cumulative punishments, and a single sentence for several offences, in excess of that prescribed for one offence, may be authorized by statute.” 183 U. S., at 394. This settled principle derives from the reason of things in dealing with socially reprehensible conduct: collective criminal agreement — partnership in crime — presents a greater potential threat to the public than individual delicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime makes more likely the commission of crimes unrelated to' the original purpose for which the group was formed. In sum, the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise. These considerations are the presuppositions of the separately defined crimes in § 1951. The punitive consequences that presumably flow from them must be placed in such context. Congress is, after all, not a body of laymen unfamiliar with the commonplaces of our law. This legislation was the formulation of the two Judiciary Committees, all of whom are lawyers, and the Congress is predominately a lawyers’ body. We attribute “to Congress a tacit purpose — in the absence of any inconsistent expression — to maintain a long-established distinction between offenses essentially different; a distinction whose practical importance in the criminal law is not easily overestimated.” United States v. Rabinowich, 238 U. S. 78, 88. These considerations are reinforced by a prior interpretation of the Sherman Act whose minor penalties influenced the enactment of the 1934 anti-racketeering legislation. In American Tobacco Co. v. United States, 328 U. S. 781, individual and corporate defendants were convicted, inter alia, of conspiracy to monopolize and monopolization, both made criminal by § 2. They were sentenced to a fine of $5,000, the maximum statutory penalty, on each of the counts. We affirmed these convictions on the basis of our past decisions in this field of law. 328 U. S., at 788-789. To dislodge such conventional consequences in the outlawing of two disparate offenses, conspiracy and substantive conduct, and effectuate a reversal of the settled interpretation we pronounced in American Tobacco would require specific language to the contrary. See also Albrecht v. United States, 273 U. S. 1, 11; Burton v. United States, 202 U. S. 344, 377. Petitioner argues that some of the other provisions of § 1951 seem to overlap and would not justify cumulative punishment for separate crimes. From this he deduces a congressional intent that the statute allows punishment for only one crime no matter how many separately outlawed offenses have been committed. These contentions raise problems of statutory interpretation not now here. That some of the substantive sections may be repetitive as being variants in phrasing of the same delict, or that petitioner could not be cumulatively punished for both an attempt to extort and a completed act of extortion, has no relevance to the legal consequences of two incontestably distinctive offenses, conspiracy and the completed crime that is its object. In the American Tobacco litigation it was decided that the attempt to monopolize, described in § 2 of the Sherman Act, merged with the completed monopolization, but this result did not qualify the holding that cumulative sentences for the conspiracy and the substantive crime, also contained within § 2, were demanded by the governing precepts of our law. Petitioner invokes “the rule of lenity” for decision in this case. But that “rule,” as is true of any guide to statutory construction, only serves as an aid for resolving an ambiguity; it is not to be used to beget one. “To rest upon a formula' is a slumber that, prolonged, means death.” Mr. Justice Holmes in Collected Legal Papers, p. 306. The rule comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers. That is not the function of the judiciary. In United States v. Universal C. I. T. Credit Corp., 344 U. S. 218; Bell v. United States, supra, and Ladner v. United States, 358 U. S. 169, the applicable statutory provisions were found to be unclear as to the appropriate unit of prosecution; accordingly, the rule of lenity was utilized, in javorem libertatis, to resolve the ambiguity. In Prince v. United States, 352 U. S. 322, and Heflin v. United States, 358 U. S. 415, the Court had to meet the problem whether various subsidiary provisions of the Federal Bank Robbery Act, 18 U. S. C. § 2113, which - punished entering with intent to commit robbery and possessing stolen property, merged when applied to a defendant who was also being prosecuted for the robbery itself. Again the rule of lenity served to resolve the doubt with which Congress faced the Court. Here we have no such dubieties within the statute itself. Unlike all of these cases, the problem before us does not involve the appropriate unit of prosecution— whether conduct constitutes one or several violations of a single statutory provision — nor is it an open question whether conspiracy and its substantive aim merge into a single offense. This is an ordinary case of a defendant convicted of violating two separate provisions of a statute, whereby Congress defined two historically distinctive crimes composed of differing components. If petitioner had committed two separate acts of extortion, no one would question that the crimes could be punished by consecutive sentences; the result seems no less clear in the present case. It was therefore within the discretion of the trial judge to fix separate sentences, even though Congress has seen fit to authorize for each of these two offenses what may seem to some to be harsh punishment. Affirmed. Section 1951 (a) is as follows: “Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.” The pertinent parts of the Hobbs Act Amendments of 1946, 60 Stat. 420, from which the 1948 codification was compiled, were as follows: “Sec. 2. Whoever in any way or degree obstructs, delays, or affects commerce, or the movement of any article or commodity in commerce, by robbery or extortion, shall be guilty of a felony. "Sec. 3. Whoever conspires with another or with others, or acts in concert with another or with others to do anything in violation of section 2 shall be guilty of a felony. “Sec. 4. Whoever attempts or participates in an attempt to do anything in violation of section 2 shall be guilty of a felony. “Sec. 5. Whoever commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of section 2 shall be guilty of a felony. “Sec. 6. Whoever violates any section of this title shall, upon conviction thereof, be punished by imprisonment for not more than twenty years or by a fine of not more than $10,000, or both.” The Reviser’s Note to the 1948 Code states that “The words ‘attempts or conspires so to do’ were substituted for sections 3 and 4 of the 1946 act, ...” Petitioner was released from imprisonment in April 1960 and currently is on parole. Both parties and the courts below apparently have interpreted the probationary period for Count II to commence at the expiration of petitioner’s parole for Count I. Both courts below ruled that 28 U. S. C. § 2255 was not available since it would be premature to claim the “right to be released” from a sentence not yet served. Since, as the Government concedes, Rule 35 is available to correct an illegal sentence when the claim is based on the face of the indictment even if such claim had not been raised on direct appeal, Heflin v. United States, 358 U. S. 415, 418, 422, the applicability of § 2255 need not be considered. The original bill, S. 2248, 73d Cong., 2d Sess., did not contain any provision concerning conspiracy. (Of course, the general conspiracy statute, R-. S. § 5440, now 18 U. S. C. § 371, which then provided for a maximum two-year sentence, was available.) The bill made punishable by imprisonment from one to ninety-nine years acts of violence, extortion, and coercion which interfered with interstate commerce. 78 Cong. Rec. 11403. The purpose of the legislation was to provide for direct prosecution of large-scale racketeering, which formerly had been ineffectively attempted through the Sherman Act, which had a maximum penalty of one-year imprisonment or $5,000 fine. S. Rep. No. 532, 73d Cong., 2d Sess. p. 1. After the bill had passed the Senate, 78 Cong. Rec. 5735, some question was raised as to whether legitimate labor activity was not threatened by the statutory phraseology, 78 Cong. Rec. 5859, 10867, and provisos were suggested by the House Judiciary Committee in reporting the measure to the full body. H. R. Rep. No. 1833, 73d Cong., 2d Sess. The Committee, upon the suggestion of the Attorney General, further added a section making conspiracy to comipit any of the designated substantive violations punishable. Ibid. The amended bill was passed by the House substantially as reported except that the penalty was decreased to ten years or $10,000. 78 Cong. Rec. 11403. The House bill was summarily approved by the Senate. 78 Cong. Rec. 11482, A little over two months after the decision, H. R. 7067 was introduced by Representative Hobbs in the House of Representatives, 88 Cong. Rec. 4080, following Hearings before a Subcommittee of the Committee on the Judiciary, 77th Cong., 2d Sess. The bill was reported favorably out of committee, the only major change being the reduction of the proposed twenty-year maximum sentence to ten years. In discussing the various provisions, the report stated: “The objective of Title I is to prevent anyone from obstructing, delaying, or affecting commerce, or the movement of any article or commodity in commerce by robbery or extortion as defined in the bill. A conspiracy or attempt to do anything in violation of section 2 is likewise made punishable . . . .” H. R. Rep. No. 2176, 77th Cong., 2d Sess., p. 9. No further congressional action was taken on the bill. The following year, Representative Hobbs introduced H. R. 653 which was identical with his prior bill. This time the Committee did not amend the twenty-year penalty. H. R. Rep. No. 66, 78th Cong., 1st Sess. The measure passed the House, 89 Cong. Rec. 3230, but no action was taken in the Senate. In 1945 Representative Hobbs again introduced his amendment. H. R. 32, 79th Cong., 1st Sess. The measure was passed by both bodies, 91 Cong. Rec. 11922, 92 Cong. Rec. 7308. Both Committee reports again stated that “A conspiracy or attempt to do anything in violation of section 2 is likewise made punishable.” S. Rep. No. 1516, 79th Cong., 2d Sess.; H. R. Rep. No. 238, 79th Cong., 1st Sess., p. 9. The pertinent parts of the amendment, 60 Stat. 420, are set out in n. 1, supra. Typical excerpts on which petitioner relies are: “Mr. DelaNey. The fact of the matter is that this committee report was not unanimous. Also, in the committee it was indicated by those who favor this legislation that the legislation is too drastic, that the $10,000 fine and 20 years in jail is too drastic. They think a modified bill might be more in consonance with present-day thinking.” (89 Cong. Rec. 3162.) “Mr. Fish. ... I want to refer likewise to some of the excessive penalties. The penalties in this bill in my opinion are too severe — 20 years and $10,000 fine. When we reach this section of the bill there should be very careful consideration given to reducing both the extent of the imprisonment and fines.” (89 Cong. Rec. 3194.) “Mr. SPRINGER. May I ask my distinguished colleague on the Committee on the Judiciary if it is not a fact that under the provisions of this bill the question of penalty is left entirely discretionary with the court trying the case ? Under the provisions of this bill a person could be penalized to the extent of 1 year or less than 1 year or up to 20 years, all in the discretion of the court. “Mr. Celler. Or his sentence might be suspended. I agree with the gentleman. But why do we single out labor and impose even a possible penalty of 20 years?” (89 Cong. Rec. 3201.) “Mr. RoBsroN. . . . There is some objection to the penalties pre scribed in this bill for robbery and extortion. It has gone forth to the country that the penalty is 20 years. That is not a correct statement. The penalties range from 1 hour up to 20 years, according to the offense, and fines of $1 to $10,000. In other words, the 20 years and the $10,000 fine are the maximum.” (89 Cong. Rec. 3226.) “Mr. Fish. . . . When the bill was before the Rules Committee it seemed to me at that time that these penalties were excessive. Twenty years is just about as bad as a life sentence, and I want to give the House the opportunity to reduce it by cutting it in half. This applies to threats. A man may be sent to jail for 20 years merely for threatening extortion.” (89 Cong. Rec. 3229.) For a discussion of these problems of the law of conspiracy see Developments in the Law — Criminal Conspiracy, 72 Harv. L. Rev. 920, 922-925, 968-971. The Senate Report which accompanied the original 1934 legislation described the purpose of the Act by setting forth a memorandum received from the Justice Department: ". . . The nearest approach to prosecution of racketeers as such has been under the Sherman Antitrust Act. This act, however, was designed primarily to prevent and punish capitalistic combinations and monopolies, and because of the many limitations engrafted upon the act by interpretations of the courts, the act is not well suited for prosecution of persons who commit acts of violence, intimidation, and extortion. . . . Moreover, a violation of the Sherman Act is merely a misdemeanor, punishable by 1 year in jail plus $5,000 fine, which is not a sufficient penalty for the usual acts of violence and intimidation affecting interstate commerce.” S. Rep. No. 532, 73d Cong., 2d Sess., p. 1. Representative Céller, in arguing for a less severe penalty during the 1945 debates, said: “If you look at the antitrust penalties against employers you find that they are only $5,000 or 1 year in jail. This bill has direct relation to the antitrust laws, the Clayton Act.” 91 Cong. Rec. 11902. See also Representative Celler’s remarks during the 1943 debates, 89 Cong. Rec. 3201. “When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity.” Bell v. United States, 349 U. S. 81, 83. The most notable illustration of this is the General Conspiracy Statute, 18 U. S. C. § 371. Question: What is the issue of the decision? 01. involuntary confession 02. habeas corpus 03. plea bargaining: the constitutionality of and/or the circumstances of its exercise 04. retroactivity (of newly announced or newly enacted constitutional or statutory rights) 05. search and seizure (other than as pertains to vehicles or Crime Control Act) 06. search and seizure, vehicles 07. search and seizure, Crime Control Act 08. contempt of court or congress 09. self-incrimination (other than as pertains to Miranda or immunity from prosecution) 10. Miranda warnings 11. self-incrimination, immunity from prosecution 12. right to counsel (cf. indigents appointment of counsel or inadequate representation) 13. cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty) 14. cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts) 15. line-up 16. discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations) 17. double jeopardy 18. ex post facto (state) 19. extra-legal jury influences: miscellaneous 20. extra-legal jury influences: prejudicial statements or evidence 21. extra-legal jury influences: contact with jurors outside courtroom 22. extra-legal jury influences: jury instructions (not necessarily in criminal cases) 23. extra-legal jury influences: voir dire (not necessarily a criminal case) 24. extra-legal jury influences: prison garb or appearance 25. extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment) 26. extra-legal jury influences: pretrial publicity 27. confrontation (right to confront accuser, call and cross-examine witnesses) 28. subconstitutional fair procedure: confession of error 29. subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy) 30. subconstitutional fair procedure: entrapment 31. subconstitutional fair procedure: exhaustion of remedies 32. subconstitutional fair procedure: fugitive from justice 33. subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case) 34. subconstitutional fair procedure: stay of execution 35. subconstitutional fair procedure: timeliness 36. subconstitutional fair procedure: miscellaneous 37. Federal Rules of Criminal Procedure 38. statutory construction of criminal laws: assault 39. statutory construction of criminal laws: bank robbery 40. statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy) 41. statutory construction of criminal laws: escape from custody 42. statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury) 43. statutory construction of criminal laws: financial (other than in fraud or internal revenue) 44. statutory construction of criminal laws: firearms 45. statutory construction of criminal laws: fraud 46. statutory construction of criminal laws: gambling 47. statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951 48. statutory construction of criminal laws: immigration (cf. immigration and naturalization) 49. statutory construction of criminal laws: internal revenue (cf. Federal Taxation) 50. statutory construction of criminal laws: Mann Act and related statutes 51. statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol 52. statutory construction of criminal laws: obstruction of justice 53. statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements) 54. statutory construction of criminal laws: Travel Act, 18 USC 1952 55. statutory construction of criminal laws: war crimes 56. statutory construction of criminal laws: sentencing guidelines 57. statutory construction of criminal laws: miscellaneous 58. jury trial (right to, as distinct from extra-legal jury influences) 59. speedy trial 60. miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure) Answer:

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. 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: 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_usc2

12

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 26. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times. UNITED STATES v. CONSOLIDATED GAS ELECTRIC LIGHT & POWER CO. OF BALTIMORE. No. 4546. Circuit Court of Appeals, Fourth Circuit. Jan. 8, 1940. Edward H. Hammond, Atty., Department of Justice, of Baltimore, Md. (Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key, Norman D. Keller, and Stephen J. Angling, Sp. Assts. to Atty. Gen., and Bernard J. Flynn, U. S. Atty., and G. Randolph Aiken, Asst. U. S. Atty., both of Baltimore, Md., on the brief), for appellant. Edwin M. Sturtevant, William C. Baxter, and Clyde T. Warren, all of Baltimore, Md., for appellee. Before PARKER and SOPER, Circuit Judges, and DOBIE, District Judge. SOPER, Circuit Judge. Certificates of indebtedness were issued to depositors of the Baltimore Trust Company, an insolvent banking institution of the City of Baltimore, on August 4, 1933, in accordance with a plan of reorganization which became- effective on that date. The certificates represented the unpaid balances due the depositors, plus accrued interest. Consolidated Gas, Electric Light & Power Company of Baltimore, a Maryland corporation, received a certificate in the face amount of $1,031,094.48, which was subsequently reduced to $825,523.58 by a partial distribution of the bank’s assets. On November 12, 1935, the Gas Company sold and assigned the certificate for $257,-976.12 to the Federal Water Service Corporation, but no revenue stamps were affixed to the certificate or to any of the transfer papers. In January, 1938, the Commissioner of Internal Revenue made an assessment against the Gas Company in the amount of $330.24, representing the stamp tax alleged to be due on the trans fer; and on March 17, 1938, the Gas Company paid the tax and filed its claim for refund on the ground that the tax had been wrongfully collected. The claim was rejected and the pending suit was filed, resulting in a judgment for the taxpayer. The statutes, under which the tax in suit was imposed, are § 800, Schedule A (1) of Title VIII of the Revenue Act of 1926, 44 Stat. 9, 99, 101, and the amendment thereof by § 724 of the Revenue Act of 1932, 47 Stat. 169, 274, 26 U.S.C.A. § 900 note. They are as follows: Revenue Act of 1926, c. 27, 44 Stat. 99. Title VIII, Stamp Taxes: “Sec. 800. On and after the expiration of thirty days after the enactment of this Act there shall be levied, collected, and paid, for and' in respect of the several bonds, debentures, or certificates of stock and of indebtedness, and other documents, instruments, matters, and things mentioned and described in Schedule A of this title, or for or in respect of the vellum, parchment, or paper upon which such instruments, matters, or things, or any of them, are written or printed, by any person who makes, signs, issues, sells, removes, consigns, or ships the same, or for whose use or benefit the same are made, signed, issued, sold, removed, consigned, or shipped, the several taxes specified in such schedule. The taxes imposed by this section shall, in the case of any article upon which a corresponding stamp tax is now-imposed by law, be in lieu of such tax. * * “Schedule A,- — Stamp Taxes “1. Bonds of indebtedness: On all bonds, debentures, or certificates of indebtedness issued by any corporation, and all instruments, however termed, issued by any corporation with interest coupons or in registered form, known generally as corporate securities, on each $100 of face value or fraction thereof, 5 cents * * *.” Revenue Act of 1932, c. 209, 47 Stat. 169: “Sec. 724. Stamp Tax on Transfer of Bonds, etc. “(a) Schedule A of Title VIII of the Revenue Act of 1926 is amended by adding at the end thereof a new subdivision to read as follows: “9. Bonds, etc., sales or transfers. On all sales, or agreements to sell, or memoranda of sales or deliveries of, or transfers of legal title to any of the instruments mentioned or described in subdivision 1 and of a kind the issue of which is taxable thereunder, • whether made by any assignment in blank or by any delivery, or by any paper or agreement or memorandum or other evidence of transfer or sale * * ” It is manifest from an examination of these sections that the instruments, whose transfer is taxable under the quoted section of the amendatory Act of 1932, are the kind of instruments whose issue is taxable under Schedule A(l) of the Act of 1926. We inquire, therefore, whether the certificates of indebtedness of the Baltimore Trust Company were taxable under the last mentioned section when they were issued as above described. It is stipulated that subsequent to the issuance of the certificates the Commissioner of Internal Revenue made an assessment upon the Trust Company on account of stamp taxes alleged to be due thereon under the statute; that the tax was paid on March 17, 1934 and a claim for refund was_ filed on November 9, 1936 on the ground that certificates of indebtedness issued by an insolvent bank are exempt from tax under § 22 of the Act of March 1, 1879, 20 Stat. 351, 12 U.S.C.A. § 570. This section provides in substance that no tax shall be assessed or collected or paid on account of any bank that has ceased to do business by reason of insolvency, which tax will diminish the assets necessary for th'e full payment of depositors. For a consideration of this statute, see United States v. Sterling, Receiver, 4 Cir., 106 F.2d 178. The Commissioner agreed to the refund after a review of the facts and the law contained in an opinion of January 4, 1937 of the Chief Counsel of the Bureau of Internal Revenue which is filed as part of the record in the pending case. The Chief Counsel reached the conclusion that the certificates of the Trust Company were not taxable because it had ceased to do business by reason of insolvency on March 17, 1934 when the certificates were issued. The refund was made on March 29, 1937. This action of the Commissioner, in our opinion, was a correct application of the statutory exemption provided by the Act of March 1, 1870 and thereby the freedom of the certificates from taxation at the time of issuance was established. It follows that the transfer of the certificates by the Gas Company on November 12, 1935 was not covered by § 724 of the Revenue Act of 1932 supra, which ■ imposes a stamp tax upon the transfer of only that kind of instrument which is subject to tax when issued. Having reached this conclusion, it is unnecessary to consider the additional contention of the taxpayer, also made in United States v. Sterling, Receiver, supra, that certificates of indebtedness issued by an insolvent bank are not corporate securities in the common understanding of that term, and that only such instruments as are generally known as corporate securities or investment securities were intended to be taxed by the Revenue Acts of 1926 and 1932. The judgment of the District Court is affirmed. No attempt was made to collect the issue tax from the transferee of the bank because of the ruling contained in Cum. Bull. (1932) Vol. XI-2, p. 542 (S.T. 547) which states: “The conclusion has been reached that the taxes in question, although imposed on the transferee as well as the transferor, and on the grantee as well as the grantor, are without application where the transferor or grantor is relieved from liability therefor by § 22 of the Act of March 1, 1879. This conelusion is based on the view that the statutory provision referred to is remedial in character and is to be liberally construed. Its manifest purpose is to relieve depositors from the burden of the tax. To tax the transferee or grantee in such case would be in effect, through the shifting of the burden of the tax to the transferor or grantor, to tax the insolvent bank and thus defeat the purpose of the statute”. Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 26. 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_sentence

A

What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?" 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". KING v. UNITED STATES. Circuit Court of Appeals, Sixth Circuit. April 5, 1928. No. 4889. 1. Criminal law <@=>l 129(1)— Sufficiency oí journal record of trial court is not open for consideration by appellate court, in absence of assignment (Circuit Court Rule 11). Under Circuit Court Rule Tl, sufficiency of journal record of trial court is not open for consideration by appellate court, in absence of assignment, except that appellate court may, at its option, notice a plain error. 2. Criminal law <@=>262 — Defendant’s proceeding to trial without objection for lack of formal arraignment and failure to plead to indictment implied waiver (Jud. Code, § 269 [28 USCA § 391]). Defendant’s proceeding to trial without raising objection to lack of formal arraignment or fact that he had not pleaded to indictment implies waiver thereof, or at least did not constitute such formal defect as would be prejudicial within meaning of Judicial Code, § 269 (28 USCA § 391), so as to authorize reversal in absence of assignment of error thereto. 3. Criminal law <@=>977(3) — Sentence may be postponed pending decision on motion for new trial. Trial court may properly postpone sentence pending decision on motion for new trial. 4. Criminal law <§=»950 — Successor to trial judge, dying after verdict, was competent to pass on new trial and allow bill of-exceptions (28 USCA § 776). Under 28 USCA § 776, successor in office to trial judge who died after verdict was returned was competent to pass oh motion for new. trial and to allow bill of exceptions. 5. Criminal law <@=>1144(15) — Publication of newspaper article while jury was separated for night held not to show error;-there being no assumption jury were not admonished. Failure of trial court to declare mistrial because of publication, on morning after jury had been permitted to- separate for the night, of article relative to defendant’s arrest on another charge, held not error, in absence of showing in record of exception and as to whether inquiry had been made of jury relative to reading article and jury thereafter cautioned against allowing such to influence the verdict, since it cannot be assumed, in absence of affirmative showing, that jury was not so admonished. 6. Post office <@=>50 — Complicity' of defendant in mailing letters pursuant to scheme to defraud by inducing addressees to ship goods on credit held for jury (Pen. Code, §§ 215, 332 [18 USCA §§ 338, 550]). In prosecution under Penal Code, § 215 (18 USCA § 338), for placing various letters in mails pursuant to a scheme to defraud by inducing addressees of letter to ship goods on credit, evidence of complicity on part of the defendant held, sufficient to require submission of ease to jury, in view of section 332 (18 USCA § 550). 7. Criminal law <@=>564(3) — Venue, held sufficiently proven by circumstances in prosecution for mailing letters pursuant to scheme to defraud (Pen. Code, § 215 [18 USCA § 338]). In prosecution under Penal Code, § 215 (18 USCA § 338), for placing various letters in mails pursuant to scheme to defraud by inducing addressees to ship goods on credit, venue held sufficiently proven, at least circumstantially. 8. Post office <@=>48(8) — Failure to prove alleged corporate -capacity of victims of fraud under scheme by use of mails in inducing addressees to ship goods on credit held immaterial (Pen. Code, § 215 [18 USCA § 338]). In prosecution under Penal Code, § 215 (18 USCA § 338), for placing various letters in the mails pursuant to scheme to defraud by inducing addressees to ship goods on credit, failure to prove corporate capacity of alleged victims of fraud as alleged in indictment held, immaterial, since gravamen of offense constituted misuse of the mails, and’ fact that intended vietims were partnerships and individuals rather than corporations was not such a variance as would justify a reversal. 9. Post office ¡©=348(8) — Proof of participation and complicity in misuse of mails supporting indictment for conspiracy held not fatal variance (Pen. Code, § 215 [18 USCA § 338]). In prosecution under Penal Code, § 215 (18 USCA § 338), for placing various letters in the mails pursuant to scheme to defraud by inducing addressees to ship goods on credit, fact that proof of participation and complicity in misuse of mails might also have supported indictment for conspiracy held not such variance as would support a judgment of reversal. 10. Criminal law ¡8=>1167(2)— Failure of proof as to certain counts did not justify reversal, where sentence was justified under conviction on another count. Failure of proof as to certain counts of indictment, even if apparent, does not justify reversal, where only sentence imposed was justified under conviction on another count amply supported by evidence. In Error to the District Court of the United States for the Western District of Tennessee; Harry B. Anderson, Judge. Fred W. King was convicted for placing in the United States mails various letters pursuant to a scheme to defraud, and ho brings error. Affirmed. L. H. Graves, of Memphis, Tenn., for plaintiff in error. Herbert L. Harper, Asst. U. S. Atty., of Memphis, Tenn. (Lindsay B. Phillips, U. S. Atty., and Arthur G. Brode, Asst. U. S. Atty., both of Memphis, Tenn., on the brief), for the United States. Before DENISON, Circuit Judge, and TUTTLE and HICKENLOOPER, District Judges. HICKENLOOPER, District Judge. Tbe plaintiff in error complains of a sentence pronounced June 2, 1926, upon a verdict of guilty returned June 3, 1925. Tbe ease was tried at the May, 1925, term of tbe District Court at Memphis; that is to say, on June 1, 2, and 3, 1925. The district attorney did not move for sentence immediately, and no action was taken upon the verdict prior to the death of the trial judge, which occurred July 9, 1925. The November term commenced November 23,1925, and motion to set aside the verdict and for a new trial was duly filed November 20, 1925, being thus within term. The indictment contained four counts, each charging a violation of section 215 of the Penal Code (18 USCA § 338) by placing in the United States mails at Memphis, Tenn., the various letters made the bases of the several counts. Each count submitted to the jury is founded upon correspondence with a separate alleged victim of the scheme to defraud. This scheme is alleged to have consisted of the making by tbe defendant of willfully false statements of the financial condition of the Contractors’ Mill & Lumber Company, of which the defendant was the acting president, for the purpose of inducing the addressees of the letters there set forth “to ship to defendant’s said company the goods referred to in said letters, on credit, and thus to assume a greater risk of loss of the value of said goods than the said letters indicated.” The second count was withdrawn from the consid oration of the jury at the close of the evidence, and a verdict of guilty under the first, third, and fourth counts was returned. The record is in exceedingly poor shape, and a motion to reverso and dismiss is made upon two grounds: (1) That there is no minute entry upon the records of the District Court showing that the defendant was ever arraigned for trial or entered a plea to the indictment, that there is not shown any list of names of the trial jurors, and that no minute entry of trial or verdict appears; and (2) that an entire term of court intervened between the trial and verdict and the entry óverruling the motion for a new trial and imposing sentence, the court thereby losing jurisdiction in the matter. This motion to reverse and dismiss must be denied. If the sufficiency of the journal record of the District Court is itself attacked, that question is not now open for consideration under Rule 11 for want of assignment, except that the court may, at its option, notice a “plain error,” and under this optional power we decline to notice errors not real and vital. Counsel for the defendant below prepared a bill of exceptions in which they incorporated, as an integral part thereof, not only the entire evidence in verbatim form, but also recitals of the impaneling of the jury, of proceeding to trial, and of the return of the verdict, a copy of the verdict, the motion for a new trial, the motion and affidavit for a mistrial, and the minute entry overruling the motion for a new trial and imposing sentence. While those things which should appear by the journal of the court have no proper place in a bill of exceptions, yet we must assume that tbe events recited did take place.' Except as to arraignment and plea, the recitals in the bill of exceptions show that, in any event, tbe record omissions, if any, are those which can ordinarily be supplied nune pro tunc; and, even though the defendant had not been formally arraigned, or had not pleaded to the indictment, his proceeding to trial without raising this objection would imply a waiver, or at least the formal defect would not be prejudicial. Garland v. State of Washington, 232 U. S. 642, 34 S. Ct. 456, 58 L. Ed. 772. Under these circumstances, we think that the alleged record omissions, if they exist, are defects which, giving effect to Judicial Code section 269 (28 USCA § 391), we ought not to regard as ground for reversal when err'or thereon is not assigned. In arguing that the court lost jurisdiction by reason of the November, 1925, term intervéning between verdict and sentence, counsel for the defendant fails to distinguish between postponing sentence pending the decision of a motion for a new trial and indefinitely deferring sentence, thus in effect suspending sentence or condoning the offense. The cases cited by plaintiff in error all relate to the latter aspect’at a time when the District Courts were not expressly authorized to suspend sentence. It is clearly competent for the trial court to postpone sentence pending decision of the motion for a new trial as was here done. Ormsby v. U. S., 273 F. 977 (C. C. A. 6). The trial judge having died after verdict, it was , also competent for his successor in office to pass upon the motion for a new trial and to allow the bill of exceptions. The conditions enumerated in R. S. § 953, as amended June 5, 1900, c. 717, § 1, 31 Stat. 270 (Comp. Stat. § 1590 [28 USCA § 776]), are all present in the case at bar. The next contention seriously urged is that the court erred in not granting the motion of the defendant to declare a mistrial. The jury was charged on the afternoon of June 2d, and, having failed to agree by the usual time for adjournment, were permitted to separate for the night, reconvening the next morning. As the defendant left the federal building on the evening of June 2d, he was arrested by two state officers on a charge of being a fugitive from justice from the state of Mississippi. This arrest was apparently made with the knowledge of the district attorney and without any remonstrance or objection upon his part. The fact of the arrest received publicity in the only morning newspaper published in Memphis, which carried an article headed in large type “■Another Warrant is Served on Fred King.” The article itself merely stated the facts.of the arrest and the giving of a bond, which facts, however, could not have been admitted in evidence and may have been prejudicial in the eyes of the jury. ’The bill of exceptions contains a copy of the affidavit and motion for a mistrial stated to have been filed on June 3d, the same day the verdict was returned. From its tenor it would seem that this motion was filed before the return of the verdict, although it does not appear whether it was specifically called to the attention of the court or what action was ■ taken thereon by the court. If properly called to the attention of the court,' denied by the court, and exception to such ruling duly reserved, such action might very properly constitute error. U. S. v. Marrin, 159 F. 767 (D. C. Pa.); Mattox v. U. S., 146 U. S. 140, 150, 13 S. Ct. 50, 36 L. Ed. 917; Harrison v. U. S., 200 F. 662 (C. C. A. 6). If called to the attention of the court, however, inquiry made of the jury as to whether the article had been read, and the jury clearly and emphatically cautioned against allowing such article to influence their verdict, it is at least doubtful whether failure to declare a mistrial would constitute error. This is the more apparent if, upon the trial, the defendant were content that the deliberations of the jury should continue under such instructions and reserved no exceptions. We cannot assume upon the present record that the jury was not so admonished. The record does not affirmatively disclose any error in this particular. It is further objected that the record does not contain any substantial 'evidence establishing venue, viz. that the offending letters were mailed in the Western district of Tennessee, and that the defendant’s connection with the writing of the letters was not sufficiently ghown, that the letters themselves were improperly admitted in evidence. These two contentions are best considered to-gether. As to both matters we think the evidence was sufficient. While the evidence that the defendant participated in the writing of the letters forming the bases of counts 3 and 4 is weak, there was substantial evidence as to the identity of the signature to all the letters with the signature of the defendant. Furthermore, the letters supporting the allegations of the first count were not included in the motion of the defendant to exclude, and in substance the defendant admitted his connection with, this correspondence to both the post office inspector and the credit manager of the addressee. While engaged principally in outside work and at the mill, the defendant was the president.of the Contractors’ Mill & Lumber Company, active in its affairs, and in and out of the office, and there is persuasive evidence in the record that he was fully conversant with the correspondence and co-operating in carrying it on. Under these circumstances, we think that there was sufficient evidence of complicity upon the part of the defendant to take the ease to the jury, in view of the provisions of section 332, Penal Code (18 USCA § 550), certainly as to count 1. Upon the question of venue, there is no direct, affirmative evidence that the letters forming the basis of the first count were mailed in Memphis or were in fact ever transmitted through the mails. There is substantial evidence, however, that the defendant was present and engaged in corporate affairs in the city of Memphis at the time these letters were written; that the corporation maintained an office in that city, where the company’s letters were transcribed; that it was the duty of the stenographer to post sreh letters at the close of each business day; that the letters of the second count, the third count, and the principal letter of the fourth count were received through the mails; and that the letters of the first count, of practically the same tenor as the others, found their way to Louisville, Ky., on the days following their dates. The envelopes were not saved or produced. There is no scintilla of suggestion that they were not mailed or that 'they were mailed elsewhere than in the city of Memphis. In the absence of any such suggestion, and merely by reason of the bare possibility that after transcription they were personally delivered, or taken to some other state or district for -mailing, we are of the opinion that venue as to letters of the first count, as well as of the third and fourth counts, was sufficiently proved, at least circumstantially. A reasonable conclusion to be drawn logically from the evidence is that, having been prepared in Memphis, under office routine which contemplated mailing in Memphis, and having been received at destination either through the mails or within the usual time for transmission by mail to a distant city, all the letters were in fact mailed in the city at which they were dated, in the Western district of Tennessee. Lastly, it is objected that there was no proof of the corporate capacity of the alleged victims of the fraud, the indictment averring that all such victims were corporations but the proof 'being silent as to such corporate capacity. The fact that the business of such victims was carried on under the names alleged in the indictment sufficiently appears, and is not disputed. The fact that the victims were corporations, as -distinguished from partnerships or individuals carrying on their business m the several names given, was a wholly immaterial averment, and failure of proof in this particular insufficient to justify the granting of a new trial. The gravamen of the offense was the misuse of the mails, and, had it affirmatively appeared that the intended victims of the fraud were partnerships or individuals of the same or closely similar names, there would he no such variance as would justify reversal. Beavers v. U. S., 3 F.(2d) 860 (C. C. A. 6); Kasle v. U. S., 233 F. 878 (C. C. A. 6); Bennett v. U. S., 227 U. S. 333, 338, 33 S. Ct. 288, 57 L. Ed. 531. Nor was there any such variance as would justify reversal because the proof of participation and complicity in the misuse of the mails might also have supported an indictment for conspiracy to so misuse the mails, which latter charge was not included in the indictment. Defectively prepared as the record is, the evidence is amply sufficient to support a verdict of guilty as to the first count, and possibly as to the third and fourth counts also. However, failure of proof as to the third and fourth counts, even if apparent, would not justify reversal, since only such sentence was imposed as was justified by the hypothesis of guilt of the crime charged in the first count. The judgment of the court below is affirmed. Question: Did the court conclude that some penalty, excluding the death penalty, was improperly imposed? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:

songer_appnatpr

0

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. SANTA CRUZ OIL CORPORATION v. ALLBRIGHT-NELL CO. No. 7195. Circuit Court of Appeals, Seventh Circuit. Nov. 1, 1940. George I. Haight and Fred Gerlach, both of Chicago, 111., for appellant. Franklin M. Warden and F. Allan Minne, both of Chicago, 111., for plaintiff-appellee. Before SPARKS and MAJOR, Circuit Judges, and BRIGGLE, District Judge. MAJOR, Circuit Judge. This is an appeal from a judgment entered November 16, 1939, in the amount of $59,038.26, plus interest in the amount of $23,615.30. The suit was instituted by complaint filed February 24, 1930, to-recover damages for an alleged breach of contract wherein the defendant, under date of March 4, 1925, acquired from the plaintiff the exclusive license to manufacture and sell products (presses and apparatus used in the extraction by pressure of oil products from meat) for which an application for a patent was pending. The interlocutory decree found the patent valid and infringed, awarded an accounting for the sums due under the contract, an injunction against infringement after the date of filing of the suit, and an accounting for such infringement. On appeal (hereinafter referred to as Appeal No. 4995) this court (Allbright-Nell Co. v. Stanley Hiller Co., 7 Cir., 72 F.2d 392) affirmed the finding that the contract remained in force until the suit was filed and the award of an accounting on the contract, and reversed that part of the decree which held the patent valid and infringed on the theory that its validity or infringement was not in issue. In conformity with that part of the District Court decree affirmed by this court, the Master proceeded to a hearing on the account ordered to be stated. During such hearing the District Court sustained a ruling by the Master that the defendant could not introduce evidence to prove a mutual agreement as to the selling price at variance with that contained in the original contract. A petition for writ of mandamus was applied for by defendant in this court (hereinafter referred to as No. 5470) to require the District Court to receive such evidence. On June 15, 1935, this court ordered the District Court to instruct the Master accordingly. In re AllbrightNell Co., 7 Cir., 78 F.2d 430. The proceedings before the Master were resumed, and the correspondence between the parties, which was in the record before this court on Appeal No. 4995 concerning the selling price, was supplemented by additional correspondence and oral testimony. The nature of the agreement in suit is described in the former opinions referred to and need not be repeated. This controversy, however, revolves largely around Paragraphs 4 and 8, which we set forth in a footnote. The Master filed a report June 21, 1937, and found that “the parties, subsequent to the execution of the written contract, entered into a mutual agreement, by which they agreed to sell the Hiller press at approximately the same price as the Anderson press of similar type, size, and capacity.” Sixty-eight presses were sold. The gross income received by the defendant from the sale of said presses, its manufacturing cost, plaintiff’s one-half share of profit with interest thereon, together with certain other minor adjustments, are shown in the Master’s summary. Plaintiff filed exceptions to the Master’s report, fixing the damages on the basis of the actual selling prices and for the allowance to defendant of a credit of $1000 advanced to the plaintiff for the completion of a press which it had contracted to furnish at the time of entering into the license agreement. Defendant filed exceptions to the report because it included profits on an auxiliary driving mechanism sold with the presses, interest on unliquidated damages, the disallowance of credits for goods which defendant claimed it delivered to plaintiff and certain other allowances. It will be observed that the Master’s statement of account is predicated upon the theory that the parties, by mutual agreement entered into subsequent to the execution of the license agreement, determined a price at which the presses were to be sold and that, therefore, the language of Paragraph 4, “such sale price shall be not less than twice the actual cost of such articles * * * ” was not to be applied. The District Court, in response to plaintiff’s exceptions to the report, reversed the Master’s finding that the selling price was agreed upon by the parties and, in effect, directed the Master to state the account in accordance with the court’s holding that the selling price had not been modified or changed. The effect of the court’s holding in this respect, as construed by the Master on the order of re-reference, was to order the Master to compute -the damages on the double-cost basis. The court affirmed the allowance by the Master to defendant of the credit for $1,000, but apparently made no ruling upon other exceptions to the report. Subsequently, the Master filed a second report similar in most respects to his first, except that in compliance with the court’s order on re-reference, plaintiff’s damages were computed and reported upon a selling price of double the cost. Under this theory, defendant’s gross revenue was $253,834.65, factory cost $128,418.87, leaving a net profit of $125,415.78. Certain other minor adjustments were made in the account, reducing the amount due plaintiff to $59.038.26, which, plus interest, totals $81,653.56, the amount awarded plaintiff. This report was approved by the court and judgment entered from which this appeal is taken. It is thus apparent that the question of prime importance on this appeal is whether plaintiff was entitled to a judgment in conformity with the Master’s first, or second report. This involves the propriety of the action of the District Court in sustaining exceptions to the first report, In other words, was the court justified in its refusal to accept findings of fact as made by a Master? Rule 53(e), Paragraph (2), of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides : “In an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous.” The language thus employed leaves no room for argument that the District Court is bound by such findings “unless clearly erroneous.” The rule binds the District Court to accept findings of a Master just as Rule 52(a) binds this court to accept findings of a District Court. In fact, the language of the two rules is quite similar. The latter rule provides: “Findings of fact shall not be set aside unless clearly erroneous.” These rules promulgate no new principle of procedure, as such principle has long been recognized by the courts. It was aptly stated in Adamson v. Gilliland, 242 U.S. 350, on page 353, 37 S.Ct. 169, 170, 61 L.Ed. 356, where the court said: “ * * * the case is preeminently one for the application of the practical rule that so far as the finding of the master or judge who saw the witnesses ‘depends upon conflicting testimony or upon the credibility of witnesses, or so far as there is any testimony consistent with the finding, it must be treated as unassailable.’ * * * ” Other cases where similar rules and statutes have been thus construed are: Davis v. Schwartz, 155 U.S. 631, 636, 15 S.Ct. 237, 39 L.Ed. 289; In re Mendota Building Co., 7 Cir., 92 F.2d 644, and Carter Oil Co. v. McOuigg, 7 Cir., 112 F.2d 275. We can recall to mind no case where this rule may be more appropriately applied than in the instant situation. Here we have a difficult and involved proceeding in accounting. In compliance with the Master’s subpoena, an account was stated by the defendant. Much labor and thought was given to the matter by an experienced Master, as is amply disclosed by a study of the first report rendered by him. He heard, saw and observed the witnesses and was in a better position to judge of their credibility and the weight to be given their testimony than either the District Court or this court, neither of which has. had such an opportunity. To set aside his findings “unless clearly erroneous” is not only contrary to the rule quoted and the accepted practice, but amounts to a trial de novo by the reviewing court with no assurance that any better or more accurate results could be achieved. That brings us to the question as to 'whether the findings of the Master were “clearly erroneous.” A careful examination of the oral testimony, in addition to the mass of documentary evidence, -convinces us not only that the findings of the Master were not “clearly erroneous” but that they were well grounded. It would prolong this opinion unduly to relate in detail the material testimony in this respect, but we will summarize what appears to us to furnish abundant support to the findings as made by the Master. As stated, the license agreement in question was entered into March 4,-1925. At that time, as well as prior and subsequent thereto, defendant was engaged in furnishing substantially complete rendering * equipment for meat packers, an essential part of which was what is designated as the screw press. Prior to the date of the license agreement, the press sold by defendant was what is known as the Anderson Screw Press, purchased by the defendant from the Anderson Press Company. There was nothing in the agreement which precluded the defendant from the use of the Anderson Press and, as a matter of fact, it used such press in some of its sales subsequent to the execution of the license agreement. There is some -controversy as to who initiated the negotiations which culminated in the license agreement, as well as the representations made by the plaintiff with reference to the character of work which plaintiff’s press was capable of performing. We do not regard any controversy in this respect as material to the question now under con■sideration. Regardless of what happened prior to the execution of the agreement, the question remains as to whether the selling price as fixed by the agreement was •changed by mutual action of the parties as found 'by the Master. A study of the correspondence which passed between the parties is, we think, convincing that the parties modified the provision of the agreement that the press was to be sold on the so-called double-cost basis. July 11, 1925, plaintiff wrote defendant as follows: ■“ * * * Also, you have never furnished us with any data as to what the price will be on this equipment, (press) We wish you would furnish us with the sales price, together with full information regarding commission.” It will be noted that this letter was written about four months after the license agreement had been entered into. July 28, 1925, defendant wrote in reply: “In regard to the selling price and commission on the Hiller Press, the writer is not entirely familiar with just what we are doing on this, but he believes that up to the present time we have been maintaining our selling price the same as for the Anderson Expeller.” October 17, 1925, plaintiff wrote as follows : “As soon as possible, please give us figures on the cost and selling prices on the Press as we are interested, as you know, in handling this for the fish business and we have been awaiting the. time when the machine would be successful and when you would be able to furnish us proper costs so we can figure on our work accordingly.” October 22, 1925, defendant replied: “As far as sales price goes, we have adopted the policy of making the price the same as Anderson’s for the time being. “Of course, the first press was very expensive on account of changes and the experimental work we had to do. These next two presses, however, are being built without changes, and we hope to have a good line’on costs.” December 4, 1925, defendant wrote: “Our contract calls for us to charge double our cost in order to make sales price. Of course you know that is impossible, but I wish to refer to it so that it does not miss your attention, but please let me know that you are satisfied with the prices as made at present. These prices are the same as Anderson’s, and that is all we can expect to get until we have got a record of service and know to what extent our press is superior to the Anderson.” On the same date defendant wrote plaintiff : “Presume you- know that Anderson’s prices are as follows: “Anderson Expeller, belt drive.. $2410.00 “Arranged for Motor Drive but without motor ............. 2610.00” December 14, 1925, plaintiff wrote: “Besides this, some day we hope to have some commissions coming to us.” February 28, 1926, defendant reported to plaintiff concerning the sale of three presses, in which report was itemized the cost of material as to each press, and disclosed a selling price of $2,410. Plaintiff acknowledged receipt of this report and replied that he would come to Chicago, which he did, and a conference was had on March 30, 1926, attended by plaintiff and three of defendant’s representatives. What was said at this conference is a matter of dispute. Defendant’s witnesses testified before the Master to the effect that plaintiff agreed to a selling price the same as that of Anderson’s, while such an agreement is disputed by plaintiff. July 21, 1926, after this conference, plaintiff wrote: “ * * * We feel that we can make a press of the same capacity as Anderson’s that will sell a little cheaper. * * * In turn, we must sell at the same price, owing to the fact that we only make one machine. Thus we feel that we will give Anderson a great deal' more of a rub than he ever is dreaming of.” August 27, 1926, defendant again reported to plaintiff concerning the first eight presses sold, showing the selling price of each to be $2,410. December 1, 1926, defendant reported the sale of eighteen presses, with the same selling price as Anderson’s. Concerning this report, plaintiff, December 24, 1926, wrote: “We are not going to comment on this at the present time as we are not in possession of enough facts regarding the cost of this equipment. We note, however, that the costs have not decreased at all— in fact we might say increased. “We had hoped by this time that you would be in position to materially cut these costs. However, we will leave this matter totally in your hands for the present at least to see how this matter is going to work out.” March 4, 1927, plaintiff forwarded to defendant photographs of a press which he had built, and the manufacture of which he was contemplating, with a view of having defendant sell them. In this letter, plaintiff stated: “Can you sell these presses for single Laab’s installations at $1875.-00 each. Our cost is approximately $1,-200.00, and we will split fifty-fifty same as all other arrangements with you.” Again, on May 28, 1928, defendant reported the sale of forty-eight presses at a selling price substantially the same as Anderson’s. A number of other exhibits, mostly letters passing between the parties, are in evidence, and at no time did plaintiff object to the price at which the press was being sold, and we think that the exhibits clearly disclose an acquiescence on his part. His chief complaint was the high cost of manufacture. As aptly pointed out by the Master: “ * * * The most reasonable, in fact almost unavoidable, inference to be drawn from the correspondence of the parties is that the controversy between them revolved around manufacturing costs, rather than selling price. From the cost controversy itself, there is a strong implication that defendant was not to account for twice the factory cost; for if that were Hiller’s understanding, he would not have objected to the high cost, because his returns would increase in a direct ratio with an increase in costs. On the other hand, if Hiller did not regard the defendant obligated to pay twice the cost his returns would decrease with increase of cost; hence, his objection to the costs reflects his realization that there was an agreed price. * * * ” It appears to be the contention of the plaintiff that the question as to whether the contract selling price was changed by mutual agreement of the parties has heretofore been decided by this court, and quotes the following paragraph from our opinion in Appeal No. 4995. Allbright-Nell Co. v. Stanley Hiller Co., 7 Cir., 72 F.2d 392, 394: “After the contract was signed the parties communicated by letter relative to the manufacture and marketing of the presses. There was some reference in the correspondence to the sale price of the presses, but we are satisfied that the correspondence never ripened into an agreement which changed the original contract.” In Appeal No. 5470, however (In re All-bright-Nell Co., 7 Cir., 78 F.2d 430, 431), we disclaimed the language used in the former opinion, and said: “ * * * Hence, whether the correspondence ever ripened into an agreement which changed the original contract was not before us. * $ * « It may also be pointed out that there was introduced in evidence before the Master correspondence in addition to that contained in the records formerly presented to this court. Plaintiff also contends that the modification of the original contract as to the fixing of a selling price by an oral agreement was in contravention of the Statute of Frauds. We think this contention is not sound for two reasons: First, the contention was waived by a failure of plaintiff to except to the Master’s report on the grounds now- alleged. It is true, no doubt, as stated by plaintiff, that the question was presented in its written argument to the District Court. That argument, however, is no part of the record here and, so far as appears from the “memorandum on exceptions” entered by the District Court, that question was not considered. The exceptions to the Master’s report were sustained according to this memorandum for the reason that the court did not believe the oral testimony of the witnesses, and upon the reasoning that it was unbelievable that business men would thus change the selling price without reducing the agreement to writing. Second, and a better reason why plaintiff’s- contention in this respect must be denied is that the Master’s finding was not based upon oral testimony alone, but such testimony was considered in connection with the letters and other written evidence bearing upon the question. We think the written evidence alone is'sufficient to sustain the Master’s finding, and if so, it becomes unnecessary to determine to what extent, if any, the original contract could have been modified by parol evidence. It is therefore our conclusion that the findings of the Master in this respect are supported b.y the record and that the court erred in sustaining plaintiff’s exceptions thereto. Plaintiff urgently insists that even though there was an agreement to sell at the Anderson’s price that the record fails to disclose what that price was, as well as the price at which defendant actually sold the press to its customers. In discussing this question, the Master said: “The difficulties in ascertaining defendant’s selling price are due primarily not to deficiencies in the defendant’s accounting methods, but to the defendants practice in making sales. The transactions, almost without exception, involve blanket prices for a large amount of equipment; that is, if ten articles were sold, the price of each article was not specified in the contract, but a price was stated for the entire order. * * $ ’> The Master found, however, and we think properly so, that the Anderson Press, prior to May 28, 1928, was listed at $2,400 and the motor mount and chain drive at $200. It will be remembered that $2,410 was the price reported to plaintiff by the defendant as that of the Anderson Press. The Master, in computing the price of the presses sold by defendant prior to May 28, 1928, with some slight exceptions not now important, charged the defendant $2,610 per press. Defendant excepted to the Master’s report as to $200 of this charge. This amount represented the price of a silent chain transmission which defendant argues was not covered by plaintiff’s patent, was open to the public, and that the defendant had a right to furnish it with any presses sold, whether plaintiff’s or otherwise. We do not think defendant’s position is tenable in this respect. The press driver was a necessary part of the press. It was delivered in connection with plaintiff’s press so that the same was complete and ready to be connected with the motor. It is hardly conceivable that the parties, when they agreed to a modification of the Selling price as fixed in the original agreement, contemplated that that price should be Anderson’s price merely for the naked press without any means of operation. There is no question involved as to whether the press drive is covered by plaintiff’s patent. Assuming it was not, it was attached to, made and sold as a part of, the apparatus covered by the license agreement, and we are of the opinion that defendant was chargeable with such price and that the Master was correct in so determining. May 28, 1928, defendant gave notice to plaintiff that the press had been redesigned and that subsequent presses would not embody any features of plaintiff’s patent rights,, and that it would not regard the future presses as coming within the contract. After the giving of this notice it appears that the presses were sold for the sum of $2,860, and this was the amount generally charged to defendant by the Master.' It appears that about the time this notice was given, the price of the Anderson press was increased to this amount so that defendant’s selling price remained substantially on a level with that of Anderson’s. Defendant, however, contends that it should not be required to account for any sales made' after the giving of the notice referred to for the reason that the press, as manufactured and sold, does not come within the terms of plaintiff’s patent, and defendant devotes considerable argument in an effort to demonstrate that such is the case. We do not regard this argument as pertinent. In the first place we think it has been decided adversely to defendant’s contention in Appeal No. 4995 (Allbright-Nell Co. v. Stanley Hiller Co., 7 Cir., 72 F.2d 392, 393). In the second place, as already pointed out, this is not a suit for infringement or an accounting for infringement, but upon a contract. Paragraph 1 of the contract in this regard, provides: “Nothing herein contained shall be construed as vesting in Second Party any title to any of said patents and that all improvements, and changes in designs, in the apparatus, machinery or equipment herein dealt with, whether patented or not, shall belong to First Party.” We think the Master correctly concluded that defendant should account for all presses sold prior to the institution of suit. Defendant also contends that it was entitled to a credit for certain items the total amount of which is $3648.97. The Master regarded these items as a claim for set-off and refused to allow them for the reason that the defendant had failed to file a counterclaim in compliance with Federal Equity Rule 30, 28 U.S.C.A.- following section 723. We approve the Master’s action in this respect. See Williams v. Bank of America Nat’l Ass’n, 2 Cir., 55 F.2d 884, 889. In this connection, the Master allowed defendant credit for a loan in the sum of $1000 made to plaintiff and expended by it in connection with the manufacture of one of its presses prior to the time the manufacture of such presses had been taken over by the defendant. We think this item was properly allowed. The Master, in his first report, as well as in the second, allowed plaintiff interest on the amount found owing it. In the first report the interest was calculated at 5% from February 24, 1930, the date the complaint was filed, but omitted one year for a portion of the time spent in litigation. Defendant contends that it is not liable for interest until plaintiff’s damages are liquidated. We do not think it is necessary to review the numerous authorities cited by defendant in support of its contention. They have to do largely with accountings for patent infringement and suits for the recovery of unliquidated damages. This is a suit on a written contract, and we think is governed by Section 2, Chapter 74 of the Revised Statutes of the State of Illinois. Under numerous holdings of this court, we think plaintiff clearly was entitled to interest as allowed by the Master. Morrison v. Rieman, 7 Cir., 261 F. 355, 356; Sanford Coal Co. v. Wisconsin Bridge & Iron Co., 7 Cir., 293 F. 735, 736; McGuire-Cummings Mfg. Co. v. United States Alloy Steel Corp., 7 Cir., 292 F. 832, 837. We have carefully read the numerous briefs and reply briefs filed by the respective parties and are willing to concede that there are a number of questions argued, especially by the plaintiff with apparent plausibility, but which a careful study discloses are without basis. It would serve no useful purpose for us to prolong this opinion in an effort to discuss and dispose of them. We think we have decided the essential questions in controversy. We are convinced that the Master’s first report came as near doing justice between the parties as could reasonably be hoped for considering the complicated and confused situation with which he was presented. We conclude that the District Court erred in sustaining plaintiff’s exceptions to that report. Therefore the judgment appealed from is reversed with directions to vacate the court’s order of re-reference and the Master’s second report, to overrule all exceptions to the Master’s first report and to enter judgment in favor of the plaintiff in conformity with said report. The costs of this appeal shall be shared equally by the parties thereto. “(4) It is understood and agreed that the selling price for all such machinery, equipment and apparatus shall be fixed by mutual agreement between the parties hereto, but in the event of any such agreement not being reached, such sale price shall be not less than twice the actual cost of such articles as the same may be shown by such books and records of Second Party; and the fixing of such prices, if by agreement, shall be in writing and may be changed from time to time in a similar manner.” “(8) Second Party shall pay to First Party, when and as received by said Second Party on each sale, one-half of the actual net selling price thereof, after first deducting and retaining the actual net cost to it of such article; that is to say, that from the first proceeds from the sale of each article manufactured by Second Party hereunder, it shall first deduct and retain the actual net cost of all labor and material, including overhead properly chargeable to the manufacturing cost of each article, but exclusive of any advertising or sales cost, and all excess of such selling price therefrom shall be divided equally between the parties hereto, collected by Second Party, and one-half thereof paid to First Party when as the same is received, including interest on any deferred or installment payments.” Gross Income on tlie Hiller Press $173,917.72 Extra Income on the Hiller Press 1,282.05 Total Income ...................... 175,199.77 Total Costs Allowed............... 138,485.65 Profit .............................. 36,714.12 Hiller’s one-half share of profit.. 18,357.06 Interest due on Hiller’s share at 5% from 2/24/30 until 2/24/37, excluding one year of litigation... 5,507.12 Interest due Hiller on deferred payments ........................ 500.00 Total due Hiller on presses as of February 24, 1937................. 24,364.18 Net Total due Hiller as of February 24, 1937, after deducting $1,-000 for Hiller loan._.............. 23,364.18 Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:

songer_geniss

G

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". STITZEL-WELLER DISTILLERY v. WICKARD, Secretary of Agriculture, et al. No. 7642. United States Court of Appeals for the District of Columbia. Decided Feb. 3, 1941. George R. Beneman and Norman J. Morrison, both of Washington, D. C., for appellant. Edward M. Curran, U. S. Atty., John L. Laskey, Asst. U. S. Atty., John S. L. Yost, Sp. Asst, to Atty. Gen., and Melva M. Graney, all of Washington, D. C., for appellees. Before GRONER, Chief Justice, and VINSON and EDGERTON, Associate Justices. GRONER, C. J. This is a suit against the Secretary of Agriculture, the Secretary of the Treasury, and the Treasurer of the United States, officially and individually, to obtain the distribution of a fund in excess of a million dollars, now in the United States Treasury and earmarked — “Proceeds, distilled spirits industry, parity payments”. The fund was accumulated under the following circumstances. In 1933 Congress passed the Agricultural Adjustment Act, 48 Stat. 31, in a declared effort to raise the prices of farm products and re-establish at the 1909-14 level their purchasing power with respect to the articles that farmers buy. The plan contemplated the reduction of the planted acreage of certain basic crops by agreement, the avoidance thereby of surplus production, and the payment to farmers of rentals and benefits based upon the acreage withdrawn from cultivation. The Act further authorized the Secretary of Agriculture to enter into marketing agreements with processors, and to issue licenses permitting them to engage in the handling of any agricultural commodity or product thereof, or any competing commodity, in the current of interstate or foreign commerce. When the Eighteenth Amendment was repealed a few months later, this Act created various problems for distillers. Whiskey is made more largely of corn than of any other grain, though rye, barley, and wheat are used in certain types. The use of corn and wheat subjected distillers to a processing tax under the Act which might be as great as the difference between the current average farm price and “the fair exchange value” of the commodity, which was defined as the price that will give the commodity the same purchasing power, with respect to the articles that farmers buy, as such commodity had in the pre-war period, August 1909-July 1914. The use of rye and barley was not subject to the tax, nor was molasses, sugar cane, or sugar beets, which could be used to make beverage alcohol for the manufacture of blended whiskey, gin, cordials, and liqueur. The cost of producing whiskey from beverage alcohol or molasses is less than from corn or rye, though the quality of the latter is superior. Presumably, therefore, distillers of grain whiskey had good reason, in order to avoid disorderly marketing conditions, to enter into a marketing agreement under the terms of the Act. In any case most, if not all, of the distillers did make such an agreement with the Secretary of Agriculture. They promised to use only cereal grains in the manufacture of distilled .spirits, except under special permits to use other materials in limited amounts. They also agreed to pay the “fair exchange value” for all cereal grains used. Whenever the current average farm price, plus the unit processing tax, was less than the fair exchange value, they would pay the difference into the Treasury of the United States (or other depositary designated by the Secretary), to be “utilized for rental or benefit payments or other disbursements under the Act with respect to grain.” The total amount of this “difference” between December 10, 1933, and April 18, 1934, when the agreement terminated, was in excess of a million dollars. The money was deposited in the United States Treasury, but was never used for the purpose intended. After certain provisions of the Agricultural Act were declared unconstitutional in United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477, 102 A.L.R. 914, the Comptroller General ruled that the money could not be so used, but should be kept in the Treasury. 15 Dec.Comp. Gen. 681. Subsequently Congress appropriated money to carry out the Secretary’s agreements for payments to farmers who had' complied with the provisions of the Act and regulations of the Secretary, and payments were made accordingly. 49 Stat. 1109, 1116, 1117. Appellant is one of the contracting distillers and brought this suit on behalf of itself and all others similarly situated, to obtain the appointment of a receiver to take possession of the fund and distribute it to the contributors as their interests might appear. The District Court granted a motion to dismiss the complaint. Appellant insists that the marketing agreement created a trust for the benefit of farmers complying with the Act, and the trust having failed, the Secretary as trustee should be required to return the money to the contributors, and that the United States are not necessary parties because the federal officers are acting solely as custodians of the fund. Appellant insists that the agreement exceeds the statutory authority of the Secretary of Agriculture as an officer of the United States, and on this premise argues that the Secretary must be considered as having acted in a private capacity and hence must be considered as trustee of a trust created by private parties entirely apart from governmental matters. The references in the •agreement to the provisions of the Act are explained simply as the incorporation of statutory terms by reference into a private contract. We do not think the agreement can be explained in this manner. Article I states clearly that the parties “desire to enter into a marketing agreement under the provisions of Section 8 (2) of the Act” •and therefore “agree as follows: * * * ”. This and other language of the agreement, taken in its ordinary sense, indicates that the distillers and the Secretary contemplated an agreement in accordance with a law enacted by Congress, and that the Secretary was to receive the money in his capacity as a government officer, not for the use of any particular parties but for use in a general purpose which the government had expressed in the Act, including administrative expenses. Furthermore, the agreement contained an application for a license for the distilling industry, and the -appellant correctly says this was an administrative or regulatory matter. In our opinion this and the fact that the money sued for is now in the Treasury and that the United States have not consented to be sued, makes unnecessary any inquiry as to how it' got there. In this view, we need not consider the validity of the marketing agreement or the authority of the Secretary to contract for and receive the payments. It is sufficient that the Secretary and the distillers voluntarily entered into the agreement under the provisions of the Act, and that the distillers received a license pursuant to its terms, whether or- not the Act authorized it, of which they had 'the benefit during the period when the contract was in effect, and that the payment of the money was made, by the express declaration of the parties, under the provisions of the Act, and was deposited in the Treasury of the United States. We have many times decided that in such circumstances an Act of Congress is necessary for its withdrawal. Haskins Bros. v. Morgenthau, 66 App.D.C. 178, 85 F.2d 677, certiorari denied 299 U.S. 588, 57 S.Ct. 118, 81 L.Ed. 433; Cummings v. Hardee, 70 App.D.C. 18, 102 F.2d 622, certiorari denied Hardee v. Murphy, 307 U.S. 637, 59 S.Ct. 1033, 83 L.Ed. 1518; Farley v. Albers, 72 App.D.C. 136, 112 F.2d 401, certiorari denied 61 S.Ct. 37, 85 L.Ed. -. In the Haskins Bros. case we said [66 App.D.C. 178, 85 F.2d 681]: “In the instant case it is therefore of no consequence whether the act under which the tax was collected be constitutional or unconstitutional. The fact that the tax has been collected and deposited in the treasury by the collecting officials of the government renders the custodian of the fund impotent to withdraw the money and disburse it unless and until directed to do so by an act of Congress or until the United States shall submit to be sued to determine its disposition. “It is equally of no consequence that the bill alleges that the fund belongs to appellant and others similarly situated. It. is not in the hands of the officers but in the treasury, and though earmarked as a special or trust fund, has been mingled with the moneys of the United States. The purpose of the bill, therefore, is to coerce the United States, through their officers to pay out money in the treasury as to which Congress has limited the power of withdrawal to the payment to the Philippine government. To permit this, would be to usurp the legislative function of appropriation, to substitute a court for the executive officers of the government, and to supplant by an order of court the duty and obligations imposed upon them by their oaths of office. It is therefore of no moment whether the United States have the use of this money as they do the ordinary revenues of the government or whether the money represents a trust fund created by Congress and earmarked for a specific purpose. In either case it is money in the Treasury of the United States as to which the United States had and have the power of control and disposition.” And there is nothing in Thompson v. Deal, 67 App.D.C. 327, 92 F.2d 478, to the contrary. In that case no interest of the United States was involved and the government officers themselves asserted that the United States had no proprietary interest in the fund. The officers held the money purely as .stakeholders for transactions between determinable private parties, and not, as here, for the express purpose of using it for obligations which the government had undertaken. This brings us to appellant’s second point, which is that Congress has provided for the withdrawal of this money and its distribution to the distillers. In 1934 Congress passed the Permanent Appropriation Repeal Act. It was the result of certain rulings of the Comptroller General directing the deposit of money in checking -accounts of officials into the Treasury in order that its disbursement should be subject to audit. The effect of the Comptroller’s action was to permit the withdrawal of the moneys by the particular officers, after deposit in the Treasury, without express appropriation. Congress objected to the method but not the purpose, and the Committee Report accompanying" H. R. 9410, 73d Cong., 2d Sess., recommended and Congress enacted that all moneys held by officers of the government by reason of their official capacity should be covered into the Treasury and that any subsequent disbursement be made only as the result of appropriation. Section 19 of the Act was intended to accomplish legally what Congress thought the ■ ruling of the Comptroller General would have accomplished illegally, and was in this language: “That donations, quasi-public and unearned moneys carried in official checking accounts of disbursing officers and of others required to account to the Comptroller General (including clerks and marshals of the United States District Courts), administered by officers of the United States by virtue of their official capacity, shall be deposited similarly into the Treasury as trust funds and are hereby appropriated and made available for disbursement under the terms of the trust.” Section 20 contained a list of 91 such funds. The distillers’ parity payment fund was not among those enumerated, but appellant explains that the Department of Agriculture had not catalogued its trust funds and therefore the Committee had no notice of them. Appellant’s position is that since the quoted provision directs disbursement of the fund according to the “terms of the trust”, and since, as it thinks, the terms of the trust created by distillers’ payments under the agreement include terms inferred as well as expressed, there was an implied direction that if the money paid in by distillers was not used as agreed, it was to be given back and that, the purpose having failed, there is no discretion left in the Secretary and he must refund the money. . We think this does not follow. As we have already seen, the distillers and the Secretary entered into a contract reciting that its purpose was to correct conditions existing and likely to exist after the repeal of the Eighteenth Amendment in the marketing o'f domestic agricultural commodities ordinarily used in the distilled spirits industry, and to effectuate the declared policy of the Agricultural Act. To this end, the contracting distillers agreed to pay into the Treasury or such other depositary as should be designated by the Secretary the difference between the then market price of grain, plus the processing tax, and its fair exchange value, the amount so paid in to be utilized for rental or benefit payments to farmers- or for other disbursements under the Act made with respect to grain. In other words, the United States, having agreed with farmers, under Section 8 (1) of the Act, for the reduction in grain acreages and being under obligation to pay the agreed benefits and having appropriated one hundred million dollars in aid of that purpose, anticipated through the agreement with the distillers, through processing taxes, and the payment of the additional agreed amounts, to have on hand a fund sufficient for the payments to farmers as well as for other disbursements proper under,the Act. After the Butler case was decided, the moneys received from processing taxes and the distillers’ fund were presumably held in a state' of suspense in the Treasury. Congress by a subsequent appropriation, 49 Stat. 1116, carried out the contracts with farmers, and by Act of June 3, 1937, 50 Stat. 246, 249, 7 U.S.C.A. § 672, ratified and confirmed all marketing agreements, licenses, orders, regulations, and provisions made by the Secretary under the Act. The above facts show, then, that the distillers contracted to pay to the United-States certain amounts of money and to receive from the United States a license authorizing them to engage in handling distilled spirits in interstate and foreign commerce. It is enough, we think, that the distillers voluntarily entered into the agreement, and received something from the United States which they considered then, if not now, a quid pro quo. In the circumstances, they certainly have no claim against the agent of the government through whom they contracted. Nor is their complaint framed on the theory of a wrongful act on his part. They seek no personal recovery from him. Instead, they claim under the contract in asking that he exercise powers which they say are conferred upon him by the Permanent Appropriation Repeal Act to withdraw the money from the Treasury. We are of opinion that the Act does not confer this authority, for there is certainly nothing in Section 19 of the Act which can be said specifically to declare the purpose of Congress to appropriate the sum in issue here for repayment to the distillers; and without such “specific” appropriation, there can be no withdrawal of the money. Nor is it any clearer that repayment to the distillers is a “term of the trust”. It is quite true that there is a general doctrine of equity that where a trust fails, the trustee will be compelled to return the money or property to the creator of the trust. Hopkins v. Grimshaw, 165 U.S. 342, 17 S.Ct. 401, 41 L.Ed. 739; Restatement of Trusts, Sec. 411. And appellant cites cases in which the rule has been treated as one of implied intention. Be that as it may, we do not think that Congress intended an appropriation to be made in this roundabout manner, namely that the money in this so-called “trust fund” was to be paid to the distillers in the face of an express provision in the marketing agreement that it was to be uséd for other purposes. We need not and do not express any opinion whether Section 19 even includes this fund or provides. for its disposition in any particular manner. We hold only that it does not appropriate it for the refund to appellant and others in the same position. While the case has been pending in this court, Henry A. Wallace has been succeeded in the office of Secretary of Agriculture by Claude R. Wickard. The name of the latter was substituted as a party, in his official capacity, without objection. Some doubt was expressed at the oral argument, however, on the propriety of the substitution insofar as the suit was originally filed against Wallace as an individual. Since in our opinion Henry A. Wallace was acting only in his official capacity in receiving this fund and depositing it in the Treasury, and the case is controlled by this point, we need not pass on the question thus raised. The complaint states no cause of action against either Wallace or Wickard as individuals. Aside from the matters we have discussed, appellant’s real position in this controversy is that it is inequitable and unfair for the government to use for general expenses a fund which the contracting distillers contributed in good faith to carry out a particular program which has since been declared unconstitutional and inoperative. This may well be true, but in seeking judicial enforcement of whatever equities may exist, appellant is met by a more important constitutional rule that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations. made by Law”. Const, art. 1, § 9, cl. 7. Relief must, therefore, be sought from Congress before the courts may act. Affirmed. “Sec. 8. In order to effectuate the declared policy,- the Secretary of Agriculture shall have power— ****** “(2) To enter into marketing agreements with processors, associations of producers, and others engaged in the handling, in the current of interstate or foreign commerce of any agricultural commodity or product thereof, after due notice and opportunity for hearing to interested parties. The making of any such agreement shall not be held to be in violation of any of the antitrust laws of the United States, and any such agreement shall be deemed to be lawful: Provided, That no such • agreement shall remain in force after the termination of this Act. For the purpose of carrying out any such agreement the parties thereto shall be eligible for loans from the Reconstruction Finance Corporation under section 5 of the Reconstruction Finance Corporation Act. Such loans shall not be in excess of such amounts as may be authorized by the agreements. “(3) To issue licenses permitting processors, associations of producers, and others to engage in the handling, in the current of interstate or foreign commerce, of any agricultural commodity or product thereof, or any competing commodity or product thereof. Such licenses shall be subject to such terms and conditions, not in conflict with existing Acts of Congress or regulations pursuant thereto, as may be necessary to eliminate unfair practices or charges that prevent or tend to prevent the effectuation of the declared policy and the restoration of normal economic conditions in the marketing of such commodities or products and the financing thereof. The Secretary of Agriculture may suspend or revoke any such license, after due notice and opportunity for hearing, for violations of the terms or conditions thereof. Any order of the Secretary suspending or revoking any such license shall be final if in accordance with law. Any such person engaged in such handling without a license as required by the Secretary under this section shall be subject to a fine of not more than $1,-000 for each day during which the violation continues.” 48 Stat. 34, 35. “See. 9 * * * (b) The processing tax shall be at such rate as equals the difference between the current average farm price for the commodity and the fair exchange value of the commodity; except that if the Secretary ha? reason to believe that the tax at such rate will cause such reduction in the quantity of the commodity or products thereof domestically consumed as to result in the accumulation of surplus stocks of the commodity or products thereof or in the depression of the farm price of the commodity, then he shall cause an appropriate investigation to be made and afford due notice and opportunity for hearing to interested parties. If thereupon the Secretary finds that such result will occur, then the processing tax shall be at such rate as will prevent such accumulation of surplus stocks and depression of the farm price of the commodity. In computing the current average farm price in the case of wheat, premiums paid producers for protein content shall not be taken into account. “(c) Eor the purposes of part 2 of this title, the fair exchange value of a commodity shall be the price therefor that will give the commodity the same purchasing power, with respect to articles farmers buy, as such commodity bad during the base period specified in section 2; and the current average farm price and the fair exchange value shall be ascertained by the Secretary of Agriculture from available statistics of the Department of Agriculture.” 48 Stat. 36. “Sec. 2 (1) * * * The base period in the case of all agricultural commodities except tobacco shall be the prewar period, August 1909-July 1914.” 48 Stat. 32. 48 Stat. 1224, 31 U.S.C.A. § 725 et seq. Act of June 30, 1903, section 9: “No Act of Congress liereafter passed shall be construed to make an appropriation out of the Treasury of the United States * * * unless such Act shall in specific terms declare an appropriation to be made * * 34 Stat. 764, 31 U.S.C.A. § 627. 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_district

F

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". Charles F. HANOVICH, Petitioner-Appellant, v. E. L. MAXWELL, Warden, Respondent-Appellee. No. 15895. United States Court of Appeals Sixth Circuit. March 3, 1965. James W. Halloran (Court Appointed), Cincinnati, Ohio, for appellant. Leo J. Conway, Asst. Atty. Gen., Columbus, Ohio, William B. Saxbe, Atty. Gen., John Cianflona, Asst. Atty. Gen., Columbus, Ohio, on brief, for appellee. Before WEICK, Chief Judge, O’SULLIVAN, Circuit Judge, and McALLIS-TER, Senior Circuit Judge. PER CURIAM. Appellant, Charles F. Hanovich, was convicted of first degree murder in the Court of Common Pleas of Cuyahoga County, Ohio, in the year 1929. Upon a recommendation of mercy by the jury, he was sentenced to life imprisonment. We are advised that he is now at liberty on parole. No appeal was taken from his conviction, which followed a trial at which he was represented by competent counsel of his own choosing. Appellant’s first effort to attack his conviction was in 1960 and his then original application to the Supreme Court of Ohio for a writ of habeas corpus was denied. Hanovich v. Alvis, 170 Ohio St. 360, 164 N.E.2d 739 (1960). Certiorari was denied by the United States Supreme Court, 363 U.S. 851, 80 S.Ct. 1630, 4 L.Ed.2d 1733 (1960). Application for delayed appeal was denied by the Court of Appeals and the Supreme Court of Ohio, and certiorari was again denied by the United States Supreme Court, Hano-vich v. Ohio, 372 U.S. 923, 83 S.Ct. 740, 9 L.Ed.2d 728 (1963). A motion for leave to file a petition for habeas corpus in the United States Supreme Court was also denied. Hanovich v. Maxwell, 373 U.S. 930, 83 S.Ct. 1556, 10 L.Ed.2d 701 (1963). Other efforts to attack appellant’s conviction need not be detailed. In 1961 this Court affirmed dismissal of an application of appellant for habeas corpus made to the United States District Court for the Southern District of Ohio. Hanovich v. Sacks, 290 F.2d 798 (CA 6, 1961), cert. denied, 368 U.S. 863, 82 S.Ct. 109, 7 L.Ed.2d 61 (1961). The opinion sets forth various procedures employed by Hanovich to obtain release from prison. His chief contention in that habeas corpus action was that the grand jury which indicted him was not composed as required by Ohio law. We held that under Ohio law “[wjhere the accused enters a plea to the indictment and proceeds to trial without raising any question concerning defects in the indictment he is deemed to have waived them.” 290 F.2d 799. Following our above decision, Hanovich filed a new habeas corpus application in the District Court. He made the same attack upon the indictment as had been found without merit by our above mentioned decision. He added allegations to the effect that in the course of his various legal actions in the state and federal courts, agents of the State of Ohio had altered court records and committed perjury. Although lacking in clarity, such allegations must be fairly read as relating to efforts by Ohio to support the regularity of its indictment. Hanovich complains here that the District Court should have held a hearing upon which he could prove such allegations. Our previous holding that his indictment is not now subject to attack obviated the necessity of taking such proofs. The District Judge dismissed the instant habeas corpus application without hearing, holding that it presented the same question as had been disposed of by the order of the District Court which had been affirmed by this Court in Hanovich v. Sacks, supra, 290 F.2d 798. We agree that the present application “presents no new ground not theretofore presented and determined.” 28 U.S.C.A. § 2244. We are of the opinion that the ends of justice would not be served by further inquiry into appellant’s claims. Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). Appellant further attacks the District Court order on the ground that prior to its entry Hanovich had filed an affidavit of prejudice against District Judge Underwood, who entered the order. We find this contention without merit in view of our holding that upon its face and upon the record of his previous application, appellant’s petition was groundless as a matter of law. The District Judge was of the view that the grounds of his dismissal order rendered the matter of his disqualification moot. Judgment affirmed. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:

sc_lcdisposition

C

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. ANDERSON v. CREIGHTON et al. No. 85-1520. Argued February 23, 1987 Decided June 25, 1987 Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, Powell, and O’Connor, JJ., joined. Stevens, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, p. 647. Andrew J. Pincus argued the cause for petitioner. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Ayer, Barbara L. Herwig, and Richard A. Olderman. John P. Sheehy argued the cause pro hac vice for respondents. With him on the brief was Ronald I. Meshbesher David Rudovsky, Jack D. Novik, and Michael Avery filed a brief for the American Civil Liberties Union as amicus curiae urging affirmance. Justice Scalia delivered the opinion of the Court. The question presented is whether a federal law enforcement officer who participates in a search that violates the Fourth Amendment may be held personally liable for money damages if a reasonable officer could have believed that the search comported with the Fourth Amendment. I Petitioner Russell Anderson is an agent of the Federal Bureau of Investigation. On November 11, 1983, Anderson and other state and federal law enforcement officers conducted a warrantless search of the home of respondents, the Creighton family. The search was conducted because Anderson believed that Vadaain Dixon, a man suspected of a bank robbery committed earlier that day, might be found there. He was not. The Creightons later filed suit against Anderson in a Minnesota state court, asserting among other things a claim for money damages under the Fourth Amendment, see Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). After removing the suit to Federal District Court, Anderson filed a motion to dismiss or for summary judgment, arguing that the Bivens claim was barred by Anderson’s qualified immunity from civil damages liability. See Harlow v. Fitzgerald, 457 U. S. 800 (1982). Before any discovery took place, the District Court granted summary judgment on the ground that the search was lawful, holding that the undisputed facts revealed that Anderson had had probable cause to search the Creighton’s home and that his failure to obtain a warrant was justified by the presence of exigent circumstances. App. to Pet. for Cert. 23a-25a. The Creightons appealed to the Court of Appeals for the Eighth Circuit, which reversed. Creighton v. St. Paul, 766 F. 2d 1269 (1985). The Court of Appeals held that the issue of the lawfulness of the search could not properly be decided on summary judgment, because unresolved factual disputes made it impossible to determine as a matter of law that the warrantless search had been supported by probable cause and exigent circumstances. Id., at 1272-1276. The Court of Appeals also held that Anderson was not entitled to summary judgment on qualified immunity grounds, since the right Anderson was alleged to have violated — the right of persons to be protected from warrantless searches of their home unless the searching officers have probable cause and there are exigent circumstances — was clearly established. Ibid. Anderson filed a petition for certiorari, arguing that the Court of Appeals erred by refusing to consider his argument that he was entitled to summary judgment on qualified immunity grounds if he could establish as a matter of law that a reasonable officer could have believed the search to be lawful. We granted the petition, 478 U. S. 1003 (1986), to consider that important question. II When government officials abuse their offices, “action[s] for damages may offer the only realistic avenue for vindication of constitutional guarantees.” Harlow v. Fitzgerald, 457 U. S., at 814. On the other hand, permitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties. Ibid. Our cases have accommodated these conflicting concerns by generally providing government officials performing discretionary functions with a qualified immunity, shielding them from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated. See, e. g., Malley v. Briggs, 475 U. S. 335, 341 (1986) (qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law”); id., at 344-345 (police officers applying for warrants are immune if a reasonable officer could have believed that there was probable cause to support the application); Mitchell v. Forsyth, 472 U. S. 511, 528 (1985) (officials are immune unless “the law clearly proscribed the actions” they took); Davis v. Scherer, 468 U. S. 183, 191 (1984); id., at 198 (Brennan, J., concurring in part and dissenting in part); Harlow v. Fitzgerald, supra, at 819. Cf., e. g., Procunier v. Navarette, 434 U. S. 555, 562 (1978). Somewhat more concretely, whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the “objective legal reasonableness” of the action, Harlow, 457 U. S., at 819, assessed in light of the legal rules that were “clearly established” at the time it was taken, id., at 818. The operation of this standard, however, depends substantially upon the level of generality at which the relevant “legal rule” is to be identified. For example, the right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right. Much the same could be said of any other constitutional or statutory violation. But if the test of “clearly established law” were to be applied at this level of generality, it would bear no relationship to the “objective legal reasonableness” that is the touchstone of Harlow. Plaintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights. Harlow would be transformed from a guarantee of immunity into a rule of pleading. Such an approach, in sum, would destroy “the balance that our cases strike between the interests in vindication of citizens’ constitutional rights and in public officials’ effective performance of their.duties,” by making it impossible for officials “reasonably [to] anticipate when their conduct may give rise to liability for damages.” Davis, swpra at 195. It should not be surprising, therefore, that our cases establish that the right the official is alleged to have violated must have been “clearly established” in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, see Mitchell, supra, at 535, n. 12; but it is to say that in the light of pre-existing law the unlawfulness must be apparent. See, e. g., Malley, supra, at 344-345; Mitchell, supra, at 528; Davis, supra, at 191, 195. Anderson contends that the Court of Appeals misapplied these principles. We agree. The Court of Appeals’ brief discussion of qualified immunity consisted of little more than an assertion that a general right Anderson was alleged to have violated — the right to be free from warrantless searches of one’s home unless the searching officers have probable cause and there are exigent circumstances — was clearly established. The Court of Appeals specifically refused to consider the argument that it was not clearly established that the circumstances with which Anderson was confronted did not constitute probable cause and exigent circumstances. The previous discussion should make clear that this refusal was erroneous. It simply does not follow immediately from the conclusion that it was firmly established that warrantless searches not supported by probable cause and exigent circumstances violate the Fourth Amendment that Anderson’s search was objectively legally unreasonable. We have recognized that it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and we have indicated that in such cases those officials — like other officials who act in ways they reasonably believe to be lawful — should not be held personally liable. See Malley, supra, at 344-345. The same is true of their conclusions regarding exigent circumstances. It follows from what we have said that the determination whether it was objectively legally reasonable to conclude that a given search was supported by probable cause or exigent circumstances will often require examination of the information possessed by the searching officials. But contrary to the Creightons’ assertion, this does not reintroduce into qualified immunity analysis the inquiry into officials’ subjective intent that Harlow sought to minimize. See Harlow, 457 U. S., at 815-820. The relevant question in this case, for example, is the objective (albeit fact-specific) question whether a reasonable officer could have believed Anderson’s warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed. Anderson’s subjective beliefs about the search are irrelevant. The principles of qualified immunity that we reaffirm today require that Anderson be permitted to argue that he is entitled to summary judgment on the ground that, in light of the clearly established principles governing warrantless searches, he could, as a matter of law, reasonably have believed that the search of the Creightons’ home was lawful. Ill In addition to relying on the reasoning of the Court of Appeals, the Creightons advance three alternative grounds for affirmance. All of these take the same form, i. e., that even if Anderson is entitled to qualified immunity under the usual principles of qualified immunity law we have just described, an exception should be made to those principles in the circumstances of this case. We note at the outset the heavy burden this argument must sustain to be successful. We have emphasized that the doctrine of qualified immunity reflects a balance that has been struck “across the board,” Harlow, supra, at 821 (Brennan, J., concurring). See also Malley, 475 U. S., at 340 (“ ‘For executive officers in general, . . . qualified immunity represents the norm’ ” (quoting Harlow, supra, at 807)). Although we have in narrow circumstances provided officials with an absolute immunity, see, e. g., Nixon v. Fitzgerald, 457 U. S. 731 (1982), we have been unwilling to complicate qualified immunity analysis by making the scope or extent of immunity turn on the precise nature of various officials’ duties or the precise character of the particular rights alleged to have been violated. An immunity that has as many variants as there are modes of official action and types of rights would not give conscientious officials that assurance of protection that it is the object of the doctrine to provide. With that observation in mind, we turn to the particular arguments advanced by the Creightons. First, and most broadly, the Creightons argue that it is inappropriate to give officials alleged to have violated the Fourth Amendment — and thus necessarily to have unreasonably searched or seized — the protection of a qualified immunity intended only to protect reasonable official action. It is not possible, that is, to say that one “reasonably” acted unreasonably. The short answer to this argument is that it is foreclosed by the fact that we have previously extended qualified immunity to officials who were alleged to have violated the Fourth Amendment. See Malley, supra (police officers alleged to have caused an unconstitutional arrest); Mitchell v. Forsyth, 472 U. S. 511 (1985) (officials alleged to have conducted warrantless wiretaps). Even if that were not so, however, we would still find the argument unpersuasive. Its surface appeal is attributable to the circumstance that the Fourth Amendment’s guarantees have been expressed in terms of “unreasonable” searches and seizures. Had an equally serviceable term, such as “undue” searches and seizures been employed, what might be termed the “reasonably unreasonable” argument against application of Harlow to the Fourth Amendment would not be available — just as it would be available against application of Harlow to the Fifth Amendment if the term “reasonable process of law” had been employed there. The fact is that, regardless of the terminology used, the precise content of most of the Constitution’s civil-liberties guarantees rests upon an assessment of what accommodation between governmental need and individual freedom is reasonable, so that the Creightons’ objection, if it has any substance, applies to the application of Harlow generally. We have frequently observed, and our many cases on the point amply demonstrate, the difficulty of determining whether particular searches or seizures comport with the Fourth Amendment. See, e. g., Malley, supra, at 341. Law enforcement officers whose judgments in making these difficult determinations are objectively legally reasonable should no more be held personally liable in damages than should officials making analogous determinations in other areas of law. For the same reasons, we also reject the Creightons’ narrower suggestion that we overrule Mitchell, supra (extending qualified immunity to officials who conducted warrantless wiretaps), by holding that qualified immunity may never be extended to officials who conduct unlawful warrant-less searches. Finally, we reject the Creightons’ narrowest and most Procrustean proposal: that no immunity should be provided to police officers who conduct unlawful warrantless searches of innocent third parties’ homes in search of fugitives. They rest this proposal on the assertion that officers conducting such searches were strictly liable at English common law if the fugitive was not present. See, e. g., Entick v. Carrington, 19 How. St. Tr. 1029, 95 Eng. Rep. 807 (K. B. 1765). Although it is true that we have observed that our determinations as to the scope of official immunity are made in the light of the “common-law tradition,” Malley, supra, at 342, we have never suggested that the precise contours of official immunity can and should be slavishly derived from the often arcane rules of the common law. That notion is plainly contradicted by Harlow, where the Court completely reformulated qualified immunity along principles not at all embodied in the common law, replacing the inquiry into subjective malice so frequently required at common law with an objective inquiry into the legal reasonableness of the official action. See Harlow, 457 U. S., at 815-820. As we noted before, Harlow clearly expressed the understanding that the general principle of qualified immunity it established would be applied “across the board.” The approach suggested by the Creightons would introduce into qualified immunity analysis a complexity rivaling that which we found sufficiently daunting to deter us from tailoring the doctrine to the nature of officials’ duties or of the rights allegedly violated. See supra, at 642-643. Just in the field of unlawful arrests, for example, a cursory examination of the Restatement (Second) of Torts (1965) suggests that special exceptions from the general rule of qualified immunity would have to be made for arrests pursuant to a warrant but outside the jurisdiction of the issuing authority, §§ 122, 129(a), arrests after the warrant had lapsed, §§ 122, 130(a), and arrests without a warrant, § 121. Both the complexity and the unsuitability of this approach are betrayed by the fact that the Creightons’ proposal itself does not actually apply the musty rule that is purportedly its justification but instead suggests an exception to qualified immunity for all fugitive searches of third parties’ dwellings, and not merely (as the English rule appears to have provided) for all unsuccessful fugitive searches of third parties’ dwellings. Moreover, from the sources cited by the Creightons it appears to have been a corollary of the English rule that where the search was successful, no civil action would lie, whether or not probable cause for the search existed. That also is (quite prudently but quite illogically) not urged upon us in the Creightons’ selective use of the common law. The general rule of qualified immunity is intended to provide government officials with the ability “reasonably [to] anticipate when their conduct may give rise to liability for damages.” Davis, 468 U. S., at 195. Where that rule is applicable, officials can know that they will not be held personally liable as long as their actions are reasonable in light of current American law. That security would be utterly defeated if officials were unable to determine whether they were protected by the rule without entangling themselves in the vagaries of the English and American common law. We are unwilling to Balkanize the rule of qualified immunity by carving exceptions at the level of detail the Creightons propose. We therefore decline to make an exception to the general rule of qualified immunity for cases involving allegedly unlawful warrantless searches of innocent third parties’ homes in search of fugitives. For the reasons stated, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. The Creightons also named other defendants and advanced various other claims against both Anderson and the other defendants. Only the Bivens claim against Anderson remains at issue in this case, however. The dissent, which seemingly would adopt this approach, seeks to avoid the unqualified liability that would follow by advancing the suggestion that officials generally (though not law enforcement officials, see post, at 654, 661-662, and officials accused of violating the Fourth Amendment, see post, at 659-667) be permitted to raise a defense of reasonable good faith, which apparently could be asserted and proved only at trial. See post, at 653. But even when so modified (and even for the fortunate officials to whom the modification applies) the approach would totally abandon the concern — which was the driving force behind Harlow’s substantial reformulation of qualified-immunity principles — that “insubstantial claims” against government officials be resolved prior to discovery and on summary judgment if possible. Harlow, 457 U. S., at 818-819. A passably clever plaintiff would always be able to identify an abstract clearly established right that the defendant could be alleged to have violated, and the good-faith defense envisioned by the dissent would be available only at trial. The Creightons argue that the qualified immunity doctrine need not be expanded to apply to the circumstances of this case, because the Federal Government and various state governments have established programs through which they reimburse officials for expenses and liability incurred in suits challenging actions they have taken in their official capacities. Because our holding today does not extend official qualified immunity beyond the bounds articulated in Harlow and our subsequent cases, an argument as to why we should not do so is beside the point. Moreover, even assuming that conscientious officials care only about their personal liability and not the liability of the government they serve, the Creightons do not and could not reasonably contend that the programs to which they refer make reimbursement sufficiently certain and generally available to justify reconsideration of the balance struck in Harlow and subsequent cases. See 28 CFR § 50.15(c) (1987) (permitting reimbursement of Department of Justice employees when the Attorney General finds reimbursement appropriate); 5 F. Harper, F. James, & O. Gray, Law of Torts § 29.9, n. 20 (2d ed. 1986) (listing various state programs). These decisions demonstrate the emptiness of the dissent’s assertion that “[tjoday this Court makes the fundamental error of simply assuming that Harlow immunity is just as appropriate for federal law enforcement officers ... as it is for high government officials.” Post, at 654 (footnote omitted). Just last Term the Court unanimously held that state and federal law enforcement officers were protected by the qualified immunity described in Harlow. Malley v. Briggs, 475 U. S. 335 (1986). We see no reason to overrule that holding. Of course, it is the American rather than the English common-law tradition that is relevant, cf. Malley, supra, at 340-342; and the American rule appears to have been considerably less draconian than the English. See Restatement (Second) of Torts §§ 204, 206 (1965) (officers with an arrest warrant are privileged to enter a third party’s house to effect arrest if they reasonably believe the fugitive to be there). Noting that no discovery has yet taken place, the Creightons renew their argument that, whatever the appropriate qualified immunity standard, some discovery would be required before Anderson’s summary judgment motion could be granted. We think the matter somewhat more complicated. One of the purposes of the Harlow qualified immunity standard is to protect public officials from the “broad-ranging discovery” that can be “peculiarly disruptive of effective government.” 457 U. S., at 817 (footnote omitted). For this reason, we have emphasized that qualified immunity questions should be resolved at the earliest possible stage of a litigation. Id., at 818. See also Mitchell v. Forsyth, 472 U. S. 511, 526 (1986). Thus, on remand, it should first be determined whether the actions the Creightons allege Anderson to have taken are actions that a reasonable officer could have believed lawful. If they are, then Anderson is entitled to dismissal prior to discovery. Cf. ibid. If they are not, and if the actions Anderson claims he took are different from those the Creightons allege (and are actions that a reasonable officer could have believed lawful), then discovery may be necessary before Anderson’s motion for summary judgment on qualified immunity grounds can be resolved. Of course, any such discovery should be tailored specifically to the question of Anderson’s qualified immunity. 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_const1

0

What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Susan P. DALTON, and Bob Warren, Appellants, v. UNITED STATES of America, Appellee. No. 85-2225. United States Court of Appeals, Fourth Circuit. Argued July 16, 1986. Decided Sept. 17, 1986. Rehearing and Rehearing En Banc Denied Oct. 30,1986. Bob Warren and C. Frank Goldsmith, Jr., Marion, N.C., for appellants. James H. Love (Roger M. Olsen and Glenn L. Archer, Jr., Asst. Attys. Gen., Michael L. Paup, Chief Appellate Section, Tax Div., Gary R. Allen, Tax Div. Washington, D.C., on brief), for appellee. Before PHILLIPS and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge. BUTZNER, Senior Circuit Judge. Susan P. Dalton appeals from a summary judgment entered for the United States denying her a refund of a $500 penalty imposed pursuant to 26 U.S.C. § 6702(a) (1982) for filing a frivolous income tax return in which she claimed a credit for federal military expenditures to which she objected. Bob Warren, the taxpayer’s attorney, appeals a judgment imposing sanctions on him of $613.22 pursuant to Fed.R. Civ.P. 11 to reimburse the government for its expense in defending the taxpayer’s action. The government questions the jurisdiction of the district court. We hold that the district court had jurisdiction and affirm both judgments. I The government asserts that the district court lacked subject matter jurisdiction because the taxpayer did not comply with 26 U.S.C. § 6703(c)(2) (1982) by bringing this action within 30 days after her claim for refund of the penalty was denied. The taxpayer contends that the 30-day provision of section 6703(c)(2) pertains only to collection of the penalty and that in any event the Internal Revenue Service extended the time for bringing suit. The record discloses that the chief of the examination branch of the Memphis Service Center wrote the taxpayer on January 22, 1985, that her claim for a refund of the penalty had been denied and that she could bring suit to recover it within 30 days from the date of the letter. Telephone conversations and correspondence between the taxpayer’s attorney and officials at the Center culminated in a letter dated March 11, 1985, from the manager of an examination unit granting an extension “to reply to the frivolous assessment” to March 22, 1985. On March 22, the taxpayer filed this action. The district court held that failure to file an action within 30 days from the denial of the refund did not deprive the court of jurisdiction. It construed section 6703(c)(1) and (2) to provide only that the government could collect the penalty if suit were not brought within 30 days. Accord Beard v. Internal Revenue Service, 624 F.Supp. 646, 647 (E.D.Tenn.1985). We cannot concur in the district court’s construction of section 6703(c)(1) and (2). In our view the 30-day requirement for bringing suit is a limitation on the right to seek judicial review of the penalty. It does not pertain merely to the government’s right to collect the penalty. In Flora v. United States, 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1958), aff'd on rehearing, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960), the Court held that full payment of a tax assessment is a jurisdictional prerequisite to a suit for a refund in the district court. Congress, however, relaxed the full payment requirement by enacting section 6703(c)(1), which permits a taxpayer to contest a penalty imposed by section 6702 by bringing a refund suit after paying only 15% of the penalty. By analogy to Flora, payment of the 15% is jurisdictional. See Thomas v. United States, 755 F.2d 728 (9th Cir.1985). Section 6703(c)(2) provides that if the taxpayer fails to comply with the 30-day requirement “paragraph (1) shall cease to apply____” Under these circumstances the taxpayer cannot proceed by paying merely 15% of the penalty. The taxpayer must pay the full amount to satisfy the jurisdictional prerequisite recognized in Flora. Consequently, we conclude that the 30-day requirement of § 6703(c)(2) is a limitation on the taxpayer’s right to seek judicial review by paying only 15% of the penalty. We agree with the district court that the 30-day requirement in section 6703(c)(2) is not jurisdictional. Again, we turn to the law pertaining to refund suits in general to ascertain the intent of Congress with respect to the 30-day requirement for refund suits brought pursuant to 6703(c)(2). Statutes pertaining to refund suits in general provide that six months after paying an allegedly erroneous assessment in full and filing an administrative claim, a taxpayer may bring a suit in the district court for a refund. See 26 U.S.C. §§ 6511, 7422, and 6532 and 28 U.S.C. § 1346(a)(1). The taxpayer’s action must be filed within two years from the date the Service mails a notice of disallowance unless the notice is waived or the time extended. See 26 U.S.C. § 6532(a). This two-year requirement is a period of limitation. Because § 6532(a) is a statute of limitations, the government may be precluded from relying on it in extraordinary circumstances. In Miller v. United States, 500 F.2d 1007 (2d Cir.1974), the court allowed a taxpayer to proceed with his refund suit when the Commissioner inadvertently sent a notice that led the taxpayer to believe the two-year deadline had been extended. Similarly, the Court of Claims allowed a refund suit to proceed when the taxpayer, acting reasonably, was “understandably confused” by a second notice of disallowance that inadvertently extended the period of limitations. Southeast Bank of Orlando v. United States, 230 Ct.Cl. 277, 676 F.2d 660, 664 (1982). The construction placed on § 6532(a) as a statute of limitations and the principles explained in Miller and Southeast Bank afford sound precedent for allowing the taxpayer to maintain her action. In all three cases the government explicitly extended the time to a date certain in which the taxpayer could act. We caution that the 30-day limitation in section 6703(c)(2), like the 2-year limitation in § 6532(a) cannot be lightly breached. The taxpayer’s inadvertence, neglect, or application for reconsideration of an administrative disallowance will not toll the statute. Moreover, the Service’s reconsideration and affirmance of a disallowance will not suffice to extend the time. Compare § 6532(a)(4). We hold only that when an official of the Service explicitly extends the time to a date certain in which the taxpayer can act, the taxpayer’s suit is not barred for lack of subject matter jurisdiction. Although our reasoning differs in part from that of the district court, we conclude that it did not err by denying the government’s motion to dismiss. II Section 6702(a) of Title 26 U.S.C. imposes a penalty on a person who files a tax return that facially indicates that the self-assessment is substantially incorrect due to a position that is frivolous. Congress envisioned “a ‘war tax’ deduction under which the taxpayer reduces his taxable income or shows a reduced tax due by that individual’s estimate of the amount of his taxes going to the Defense Department budget” as frivolous within the meaning of section 6702(a). See S.Rep. No. 494, 97 Cong., 2d Sess. 278, reprinted in 1982 U.S.Code Cong. & Admin.News 781, 1024. The taxpayer filed a return in which she claimed a credit for a portion of her tax that she computed would be spent for the military. After receiving notice of the assessment of a penalty for filing a frivolous return, she filed an amended return reflecting the proper tax. The district court found that her advocacy of peace and her opposition to military expenditures are sincere. Nevertheless, for reasons adequately explained by the district court, we con-elude that the Internal Revenue Service properly imposed the penalty specified in section 6702(a). We recently upheld the imposition of a penalty under substantially similar circumstances in McKee v. United States, 781 F.2d 1043 (4th Cir.1986). The principles explained in McKee govern the taxpayer’s case and fully sustain the judgment of the district court. Ill We also conclude that the district court properly exercised its discretion in imposing sanctions on the taxpayer’s attorney. Sanctions are authorized by Fed.R.Civ.P. 11, which was amended in 1983 to emphasize the responsibilities of an attorney and to reinforce “those obligations by the imposition of sanctions.” See Fed.R.Civ.P. 11 advisory committee note. Rule 11 provides in part: The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If this provision of the rule is violated, the court “shall impose ... an appropriate sanction.” The drafters explain that the standard for determining whether an attorney has discharged the affirmative duty imposed by the rule is “one of reasonableness under the circumstances.” It is a standard more stringent than good faith. See advisory committee note; Indianapolis Colts v. Mayor of Baltimore, 775 F.2d 177, 181 (7th Cir.1985); Eastway Construction Corp. v. City of New York, 762 F.2d 243, 253-54 (2d Cir.1985). Section 6702(a) clearly established that the taxpayer’s return warranted a penalty. Any doubt an attorney harbored about the nature of her war tax credit could be quickly dispelled by reading the legislative history. Moreover, as the district court pointed out, imposition of the penalty had been sustained in a number of cases. The advisory committee note admonishes: The rule is not intended to chill an attorney’s enthusiasm or creativity in pursuing factual or legal theories. The court is expected to avoid using the wisdom of hindsight and should test the signer’s conduct by inquiring what was reasonable to believe at the time the pleading, motion, or other paper was submitted. This cautionary note affords no shield to the taxpayer’s attorney. The theories he advanced were not creative. They had been uniformly rejected. It was not reasonable to believe that the taxpayer’s position was plausible. IV For reasons stated in Part III we grant the government’s motion for sanctions against the taxpayer and her attorney for prosecuting this frivolous appeal of the judgment denying a refund of the penalty imposed by section 6702(a). See Fed.R. App.P. 38. The government does not seek sanctions on account of the appeal brought by the taxpayer’s attorney to reverse the judgment imposing Rule 11 sanctions. Consequently, the government’s expenses must be prorated. We remand the case to the district court for determination of the amount to be awarded as sanctions. The government shall recover its costs as taxed by the clerk of this court. The judgments of the district court are affirmed. . The district court’s opinion is reported as Dalton v. United States, 56 AFTR 2d 85-6306 (W.D.N.C.1985). . 26 U.S.C. § 6703(c)(1) and (2) provides: Extension of period of collection where person pays 15 percent of penalty.— (1) In general. — If, within 30 days after the day on which notice and demand of any penalty under section 6700, 6701, or 6702 is made against any person, such person pays an amount which is not less than 15 percent of the amount of such penalty and files a claim for refund of the amount so paid, no levy or proceeding in court for the collection of the remainder of such penalty shall be made, begun, or prosecuted until the final resolution of a proceeding begun as provided in paragraph (2)---- (2) Person must bring suit in district court to determine his liability for penalty. — If, within 30 days after the day on which his claim for refund of any partial payment of any penalty under section 6700, 6701, or 6702 is denied (or, if earlier, within 30 days after the expiration of 6 months after the day on which he filed the claim for refund), the person fails to begin a proceeding in the appropriate United States district court for the determination of his liability for such penalty, paragraph (1) shall cease to apply with respect to such penalty, effective on the day following the close of the applicable 30-day period referred to in this paragraph. Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Answer:

songer_genresp1

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. 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. SPARTACUS, INC., a Pennsylvania Corporation, Marcia Lynn Poslik, Maureen Bottles, Patricia Ann Herd, April Mancini, Regina Golden, Sandra Blake and Janet Iverson, and Jane Does v. BOROUGH OF McKEES ROCKS, a Municipal Corporation, Thomas Connolly, Mayor of the Borough of McKees Rocks and individually, Ronald Panyko, Donald Panyko, Lou White and John Does, police officers of the Borough of McKees Rocks and as individuals, Spartacus, Inc., Appellant. No. 82-5312. United States Court of Appeals, Third Circuit. Submitted Under Third Circuit Rule 12(6) Oct. 26, 1982. Decided Dec. 10, 1982. Rochelle S. Friedman, Pittsburgh, Pa., for appellant. Samuel J. Pasquarelli, Jubelirer, Pass & Intrieri, P.C., Pittsburgh, Pa., for appellee. Before ADAMS, HUNTER and GARTH, Circuit Judges. OPINION OF THE COURT JAMES HUNTER, III, Circuit Judge. Appellants are Spartacus, Inc., a corporation doing business in the Borough of McKees Rocks, Pennsylvania, and the individuals who work at Spartacus. Appellees are the Borough, its mayor, and some of its police officers. Borough Ordinance No. 1343 requires that health clubs and massage technicians must obtain licenses. Failure to obtain a license is a summary offense carrying a fine of up to $300 or, if the fine goes unpaid, thirty days imprisonment. After Borough police had repeatedly inspected the premises of Spartacus and issued citations to appellants for failing to obtain the required licenses, appellants brought suit against appellees in the United States District Court for the Western District of Pennsylvania. Appellants claimed that, because the ordinance either did not apply to them or was vague, the frequent issuance of citations violated their rights under the first, fourth, fifth, and fourteenth amendments to the United States Constitution. Pursuant to 42 U.S.C. § 1983 (1976), appellants sought declaratory relief, damages, and also temporary and permanent injunctions against the enforcement of the ordinance. Appellants moved for the issuance of a preliminary injunction. On April 12, 1982, the district court issued an order denying the motion. In its oral opinion the court found that the ordinance did apply to appellants, was not vague, and did not violate appellants’ constitutional rights. The court also found that appellants had failed to demonstrate irreparable harm “in the equitable sense” because they had failed to apply for licenses. App. at 195. Appellants then filed this appeal. An appellant challenging the denial of a preliminary injunction “bears a heavy burden.” Chesimard v. Muleahy, 570 F.2d 1184, 1187 (3d Cir.1978) (citations omitted). As we stated in Kershner v. Mazurkiewicz, 670 F.2d 440 (3d Cir.1982) (en banc): A preliminary injunction is not granted as a matter of right. Eli Lilly & Co. v. Premo Pharmaceutical Laboratories, Inc., 630 F.2d 120, 136 (3d Cir.), cert. denied, 449 U.S. 1014, 101 S.Ct. 573, 66 L.Ed.2d 473 (1980). It may be granted, however, if the moving party demonstrates both a reasonable probability of eventual success in the litigation and that the party “will be irreparably injured pendente lite if relief is not granted.” Id. at 136; Kennecott Corp. v. Smith, 637 F.2d 181, 187 (3d Cir.1980). The trial court may also consider the possibility of harm to other interested persons from the grant or denial of the injunction, as well as harm to the public interest. Eli Lilly & Co., 630 F.2d at 136. The grant or denial of a preliminary injunction is committed to the sound discretion of the district judge, who must balance all of these factors in making a decision. Penn Galvanizing Co. v. Lukens Steel Co., 468 F.2d 1021, 1023 (3d Cir.1972). Consequently, the scope of appellate review of a trial court’s ruling is narrow. Unless the trial court abused its discretion, or committed an error in applying the law, we must take the judgment of the trial court as presumptively correct. Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 357 (3d Cir.1980). Id. at 443. In this appeal appellants raise only two issues. First, they argue that the evidence at trial was insufficient to sustain their convictions under the ordinance. Second, they urge that the ordinance is void for vagueness. Both arguments go only to appellants’ likelihood of success on the merits. Appellants fail to ask us to review the district court’s finding of no irreparable harm. To justify reversal of the trial court’s determination, however, appellants must demonstrate that the district court abused its discretion not only in holding that they had no reasonable probability of success on the merits, but also in holding that they would not be irreparably harmed. Chesimard, 570 F.2d at 1188. They have not done so. Accordingly, the order of the district court will be affirmed. . Appellants have since been convicted upon the citations before a magistrate. In a trial de novo, the Court of Common Pleas of Allegheny County, Pennsylvania, reversed the convictions of the individual appellants and affirmed the convictions of Spartacus, Inc. The appeal of Spartacus is still pending. . Appellants also have filed a Complaint in Equity in the Court of Common Pleas of Allegheny County seeking an injunction against further enforcement of the ordinance. That complaint was dismissed and the proceeding is no longer pending. Appellees contended below that the proceedings in the court of common pleas constituted the final adjudication of the issues now before us. Because appellees do not renew that contention on appeal, we do not address it. . The district court also queried but did not determine whether injunctive relief was improper under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1970). Although the appeal of Spartacus, Inc., is still pending, see note 1, we conclude that Younger does not bar injunctive relief in the instant case because appellants state that their complaint should be read to seek injunctions against only future citations and prosecutions under the ordinance. See Wooley v. Maynard, 430 U.S. 705, 709-711, 97 S.Ct. 1428, 1432-1433, 51 L.Ed.2d 752 (1977); Doran v. Salem Inn, 422 U.S. 922, 930, 95 S.Ct. 2561, 2567, 45 L.Ed.2d 648 (1975); Conover v. Montemuro, 477 F.2d 1073, 1080 (3d Cir.1973). . Appellants and appellees state that our appellate jurisdiction arises under 28 U.S.C. § 1291 (1976). The order of the district court is not a final decision within the meaning of that section, however. Instead, our jurisdiction arises under 28 U.S.C. § 1292(a)(1) (1976), which permits an appeal from the interlocutory order of a district court refusing to issue a preliminary injunction. . Of course, a United States Court of Appeals does not sit as a Pennsylvania appellate court to review the sufficiency of the evidence before the Pennsylvania Court of Common Pleas. We read appellants’ brief as inartfully arguing that appellants do not fall within the statute. . We agree with the concerns raised by the dissent. Although we have decided not to dismiss the appeal in this case, our opinion should not be read as approving in any way the submission of deficient briefs or appendices. Attomeys jeopardize their clients’ cases as well as their own professional standing by failing to comply with the Federal Rules of Appellate Procedure and the Rules of this Circuit. 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_appel1_7_4

A

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the citizenship of this litigant as indicated in the opinion. Dona H. SLY and Joann E. Sly, Plaintiffs-Appellants, v. The UNITED STATES of America, Defendant-Appellee. No. 86-7773. United States Court of Appeals, Eleventh Circuit. Feb. 2, 1988. Dona H. Sly, pro se. Joann E. Sly, pro se. John T. Robertson, Gadsden, Ala., for plaintiffs-appellants. Frank W. Donaldson, U.S. Atty., Caryl Privett, Asst. U.S. Atty., Birmingham, Ala., Michael L. Paup, Roger Olsen, U.S. Dept, of Justice, Gilbert S. Rothenberg, Tax Div., U.S. Dept, of Justice, Janet A. Bradley, Washington, D.C., for defendant-appellee. Before ANDERSON and EDMONDSON, Circuit Judges, and CARR , District Judge. Honorable George C. Carr, U.S. District Judge for the Middle District of Florida, sitting by designation. ANDERSON, Circuit Judge: This appeal presents the narrow issue of whether a tax is “paid” at the time the taxpayer’s real property is seized by the Internal Revenue Service (“IRS”) for collection of the tax or at the time of the sale of such property. We conclude that the tax is not “paid” until the seized property is sold. I. FACTS On March 4, 1981 and October 16, 1981, the IRS filed tax liens in the total amount of $3006.61 against two parcels of real property owned by appellants Dona and Joann Sly. The tax deficiency was from appellants’ 1976 tax year. On March 12, 1982, the IRS filed a notice of levy on the real property and on April 19, 1982, filed a notice of seizure. The Slys filed a refund claim on June 7, 1982. The IRS made two unsuccessful attempts to sell the property and thereafter determined that its value was insufficient to justify the cost of a sale. Consequently, the IRS returned the real property to the Slys on August 3, 1982. The IRS denied the Slys’ refund claim on October 26, 1983. The Slys’ outstanding tax liability was satisfied in full on March 25, 1983, following the IRS’ seizure and sale of the Slys’ automobile. The Slys then filed an amended refund claim on April 26, 1985, which the IRS denied on August 27, 1985. The Slys commenced this action for a refund on October 25, 1985, in the U.S. District Court for the Northern District of Alabama. At trial, the court granted a directed verdict in the government’s favor. The basis for the court’s decision was that neither of the Slys’ refund claims was filed within the applicable statute of limitations. 26 U.S.C. § 6511. Section 6511 requires that a taxpayer must file a refund claim either within three years following the date on which the return is filed or within two years after the tax is paid. The Slys assert that the tax was “paid” when the real property was seized on April 19, 1982; and therefore that their June 7, 1982 claim, filed less than two months after the seizure, was timely. The district court concluded, however, that seizure of property did not constitute payment of the tax and that payment was not made until the Slys’ automobile was seized and sold on March 25, 1983. Consequently, the Slys’ initial refund claim, filed on June 7, 1982, was premature and their second claim, filed on June 26, 1985, was outside the two-year statute of limitations by one month. II. DISCUSSION The sole issue raised on appeal is whether seizure of the Slys’ real property constitutes payment of the tax for the purposes of triggering the two-year statute of limitations of 26 U.S.C. § 6511(a). We conclude that a tax is not “paid” until the seized property is sold. This court has never explicitly addressed this issue. However, in Clark v. Campbell, 501 F.2d 108, 126 (5th Cir.1974), the former Fifth Circuit, in anther context, implied that a tax is not “paid” until property is seized, sold, and the proceeds applied to the tax liability. Accord Kabbaby v. Richardson, 520 F.2d 334, 335 n. 8 (5th Cir.1975) (“We indicated in Clark that seizure does not equal payment.”). The Supreme Court’s decision in United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983), also supports our conclusion that seizure does not constitute payment. The issue in Whiting was whether property seized by the IRS prior to the taxpayer’s declaration of Chapter 11 bankruptcy was part of the reorganization estate and thereby subject to the automatic stay provisions of the Bankruptcy Code which prohibited sale or disposition of the reorganization estate’s assets by a secured creditor. The court concluded that because the IRS’ seizure of property did not divest the taxpayer of his ownership of that property, the IRS was subject to the bankruptcy stay and could not sell the seized property to satisfy the tax liability. The court noted that ownership of the seized property did not transfer to the IRS until the property was sold at a tax sale. 462 U.S. at 209-12, 103 S.Ct. at 2316-17. Period of limitation on filing claim. Claim for credit or refund of an overpayment of any tax imposed by this Title in respect of which the taxpayer is required to file a return shall be filed by the taxpayer within three years from the time the return was filed or two years from the time the tax was paid, whichever of such periods expires the later.... By analogy, if ownership of property is not transferred from the taxpayer to the IRS when the latter seizes property pursuant to a tax lien and levy, it is impossible for the seizure to constitute payment. Payment only could occur when the IRS becomes the “owner” of the property, which under Whiting does not occur until the property is sold. Consequently, “payment” of a tax is concurrent with the IRS’ sale — not its seizure — of a taxpayer’s property. Our conclusion also is supported by policy considerations. The rule urged by the taxpayer here would introduce unnecessary uncertainty into an area where certainty is important. Unless there is a measure of certainty and predictability surrounding the two-year time period for filing a claim for refund, unwary taxpayers will fall into the trap of having the time period expire and be barred by the statute of limitations. Because the precise value of property seized often will be uncertain at the time of seizure, it will often be unclear whether such value equals the full amount of the tax due. Thus, it would be difficult for the taxpayer to know whether the tax has been paid in full and therefore whether the two-year time for claiming the refund has been triggered. For the foregoing reasons, the decision of the district court is AFFIRMED. . The parties agree that the three-year statute of limitations expired before the Slys’ initial claim was filed. They filed their 1976 tax return on April 11, 1977, thus the statute of limitations expired on April 11, 1980. Their first refund claim was not filed until June 7, 1982. . Section 6511(a) provides as follows: . The Slys’ argument is premised on the assumption, which we must accept in this directed verdict posture, that the jury reasonably could have concluded that the value of the real property on the seizure date was greater than or equal to the tax liability so that the tax would have been paid in full. . This case was decided prior to the close of business on September 30, 1981, and is binding precedent under Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981). . Also, the taxpayer's position would create an administrative problem. The IRS cannot know how much to credit the deficiency owed by the taxpayer until the sale fixes the value of the amount to be credited to the tax. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the citizenship of this litigant as indicated in the opinion? A. not ascertained B. US citizen C. alien Answer:

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. TAYLOR v. STURGELL, ACTING ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION, et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 07-371. Argued April 16, 2008 Decided June 12, 2008 Adina H. Rosenbaum argued the cause for petitioner. With her on the briefs were Brian Wolfman, Scott L. Nelson, and Michael John Pangia. Douglas Hallward-Driemeier argued the cause for the federal respondent. With him on the brief were former Solicitor General Clement, Acting Assistant Attorney General Bucholtz, Deputy Solicitor General Kneedler, Leonard Schaitman, and Robert D. Kamenshine. Catherine E. Stetson argued the cause for respondent Fairchild Corporation. With her on the brief were Christopher T Handman and N. Thomas Connolly. Briefs of amici curiae urging reversal were filed for the American Association for Justice by John Vail and Kathleen Flynn Peterson; for Civil Procedure and Complex Litigation Professors by David L. Shapiro and John Leubsdorf, both pro se; for the National Security Archive et al. by Meredith Fuchs; and for Lavonna Eddy et al. by James A. Feldman and Gerald S. Hartman. Mark L. Shurtleff, Attorney General of Utah, and Philip S. Lott and Peggy E. Stone, Assistant Attorneys General, filed a brief for the State of Utah as amicus curiae urging affirmance. Jack R. Bierig filed a brief for the American Dental Association as amicus curiae. Justice Ginsburg delivered the opinion of the Court. “It is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.” Hansberry v. Lee, 311 U. S. 32,40 (1940). Several exceptions, recognized in this Court’s decisions, temper this basic rule. In a class action, for example, a person not named as a party may be bound by a judgment on the merits of the action, if she was adequately represented by a party who actively participated in the litigation. See id., at 41. In this case, we consider for the first time whether there is a “virtual representation” exception to the general rule against precluding nonparties. Adopted by a number of courts, including the courts below in the case now before us, the exception so styled is broader than any we have so far approved. The virtual representation question we examine in this opinion arises in the following context. Petitioner Brent Taylor filed a lawsuit under the Freedom of Information Act seeking certain documents from the Federal Aviation Administration. Greg Herrick, Taylor’s friend, had previously brought an unsuccessful suit seeking the same records. The two men have no legal relationship, and there is no evidence that Taylor controlled, financed, participated in, or even had notice of Herrick’s earlier suit. Nevertheless, the D. C. Circuit held Taylor’s suit precluded by the judgment against Herrick because, in that court’s assessment, Herrick qualified as Taylor’s “virtual representative.” We disapprove the doctrine of preclusion by “virtual representation,” and hold, based on the record as it now stands, that the judgment against Herrick does not bar Taylor from maintaining this suit. The Freedom of Information Act (FOIA or Act) accords “any person” a right to request any records held by a federal agency. 5 U. S. C. § 552(a)(3)(A) (2006 ed.). No reason need be given for a FOIA request, and unless the requested materials fall within one of the Act’s enumerated exemptions, see § 552(a)(3)(E), (b), the agency must “make the records promptly available” to the requester, § 552(a)(3)(A). If an agency refuses to furnish the requested records, the requester may file suit in federal court and obtain an injunction “order[ing] the production of any agency records improperly withheld.” § 552(a)(4)(B). I The courts below held the instant FOIA suit barred by the judgment in earlier litigation seeking the same records. Because the lower courts’ decisions turned on the connection between the two lawsuits, we begin with a full account of each action. A The first suit was filed by Greg Herrick, an antique aircraft enthusiast and the owner of an F-45 airplane, a vintage model manufactured by the Fairchild Engine and Airplane Corporation (FEAC) in the 1930’s. In 1997, seeking information that would help him restore his plane to its original condition, Herrick filed a FOIA request asking the Federal Aviation Administration (FAA) for copies of any technical documents about the F-45 contained in the agency’s records. To gain a certificate authorizing the manufacture and sale of the F-45, FEAC had submitted to the FAA’s predecessor, the Civil Aeronautics Authority, detailed specifications and other technical data about the plane. Hundreds of pages of documents produced by FEAC in the certification process remain in the FAA’s records. The FAA denied Herrick’s request, however, upon finding that the documents he sought are subject to FOIA’s exemption for “trade secrets and commercial or financial information obtained from a person and privileged or confidential,” § 552(b)(4). In an administrative appeal, Herrick urged that FEAC and its successors had waived any trade-secret protection. The FAA thereupon contacted FEAC’s corporate successor, respondent Fairchild Corporation (Fairchild). Because Fairchild objected to release of the documents, the agency adhered to its original decision. Herrick then filed suit in the U. S. District Court for the District of Wyoming. Challenging the FAA’s invocation of the trade-secret exemption, Herrick placed heavy weight on a 1955 letter from FEAC to the Civil Aeronautics Authority. The letter authorized the agency to lend any documents in its files to the public “for use in making repairs or replacement parts for aircraft produced by Fairchild.” Herrick v. Garvey, 298 F. 3d 1184,1193 (CA10 2002) (internal quotation marks omitted). This broad authorization, Herrick maintained, showed that the F-45 certification records held by the FAA could not be regarded as “secre[t]” or “confidential” within the meaning of § 552(b)(4). Rejecting Herrick’s argument, the District Court granted summary judgment to the FAA. Herrick v. Garvey, 200 F. Supp. 2d 1321, 1328-1329 (Wyo. 2000). The 1955 letter, the court reasoned, did not deprive the F-45 certification documents of trade-secret status, for those documents were never in fact released pursuant to the letter’s blanket authorization. See id., at 1329. The court also stated that even if the 1955 letter had waived trade-secret protection, Fairchild had successfully “reversed” the waiver by objecting to the FAA’s release of the records to Herrick. Ibid. On appeal, the Tenth Circuit agreed with Herrick that the 1955 letter had stripped the requested documents of trade-secret protection. See Herrick, 298 F. 3d, at 1194. But the Court of Appeals upheld the District Court’s alternative determination — i. e., that Fairchild had restored trade-secret status by objecting to Herrick’s FOIA request. Id., at 1195. On that ground, the appeals court affirmed the entry of summary judgment for the FAA. In so ruling, the Tenth Circuit noted that Herrick had failed to challenge two suppositions underlying the District Court’s decision. First, the District Court assumed trade-secret status could be “restored” to documents that had lost protection. Id., at 1194, n. 10. Second, the District Court also assumed that Fairchild had regained trade-secret status for the documents even though the company claimed that status only “after Herrick had initiated his request” for the F-45 records. Ibid. The Court of Appeals expressed no opinion on the validity of these suppositions. See id., at 1194-1195, n. 10. B The Tenth Circuit’s decision issued on July 24,2002. Less than a month later, on August 22, petitioner Brent Taylor— a friend of Herrick’s and an antique aircraft enthusiast in his own right — submitted a FOIA request seeking the same documents Herrick had unsuccessfully sued to obtain. When the FAA failed to respond, Taylor filed a complaint in the U. S. District Court for the District of Columbia. Like Herrick, Taylor argued that FEAC’s 1955 letter had stripped the records of their trade-secret status. But Taylor also sought to litigate the two issues concerning recapture of protected status that Herrick had failed to raise in his appeal to the Tenth Circuit. After Fairchild intervened as a defendant, the District Court in D. C. concluded that Taylor’s suit was barred by claim preclusion; accordingly, it granted summary judgment to Fairchild and the FAA. The court acknowledged that Taylor was not a party to Herrick’s suit. Relying on the Eighth Circuit’s decision in Tyus v. Schoemehl, 93 F. 3d 449 (1996), however, it held that a nonparty may be bound by a judgment if she was “virtually represented” by a party. App. to Pet. for Cert. 30a-31a. The Eighth Circuit’s seven-factor test for virtual representation, adopted by the District Court in Taylor’s case, requires an “identity of interests” between the person to be bound and a party to the judgment. See id., at 31a. See also Tyus, 93 F. 3d, at 455. Six additional factors counsel in favor of virtual representation under the Eighth Circuit’s test, but are not prerequisites: (1) a “close relationship” between the present party and a party to the judgment alleged to be preclusive; (2) “participation in the prior litigation” by the present party; (3) the present party’s “apparent acquiescence” to the preclusive effect of the judgment; (4) “deliberate] maneuvering]” to avoid the effect of the judgment; (5) adequate representation of the present party by a party to the prior adjudication; and (6) a suit raising a “public law” rather than a “private law” issue. App. to Pet. for Cert. 31a (citing Tyus, 93 F. 3d, at 454-456). These factors, the D. C. District Court observed, “constitute a fluid test with imprecise boundaries” and call for “a broad, case-by-case inquiry.” App. to Pet. for Cert. 32a. The record before the District Court in Taylor’s suit revealed the following facts about the relationship between Taylor and Herrick: Taylor is the president of the Antique Aircraft Association, an organization to which Herrick belongs; the two men are “close associate^],” App. 54; Herrick asked Taylor to help restore Herrick’s F-45, though they had no contract or agreement for Taylor’s participation in the restoration; Taylor was represented by the lawyer who represented Herrick in the earlier litigation; and Herrick apparently gave Taylor documents that Herrick had obtained from the FAA during discovery in his suit. Fairchild and the FAA conceded that Taylor had not participated in Herrick’s suit. App. to Pet. for Cert. 32a. The D. C. District Court determined, however, that Herrick ranked as Taylor’s virtual representative because the facts fit each of the other six indicators on the Eighth Circuit’s list. See id., at 32a-35a. Accordingly, the District Court held Taylor’s suit, seeking the same documents Herrick had requested, barred by the judgment against Herrick. See id., at 35a. The D. C. Circuit affirmed. It observed, first, that other Circuits “vary widely” in their approaches to virtual representation. Taylor v. Blakey, 490 F. 3d 965, 971 (2007). In this regard, the D. C. Circuit contrasted the multifactor balancing test applied by the Eighth Circuit and the D. C. District Court with the Fourth Circuit’s narrower approach, which “treats a party as a virtual representative only if the party is ‘accountable to the nonparties who file a subsequent suit’ and has ‘the tacit approval of the court’ to act on the nonpart[ies’] behalf.” Ibid, (quoting Klugh v. United States, 818 F. 2d 294, 300 (CA4 1987)). Rejecting both of these approaches, the D. C. Circuit announced its own five-factor test. The first two factors— “identity of interests” and “adequate representation” — are necessary but not sufficient for virtual representation. 490 F. 3d, at 971-972. In addition, at least one of three other factors must be established: “a close relationship between the present party and his putative representative,” “substantial participation by the present party in the first case,” or “tactical maneuvering on the part of the present party to avoid preclusion by the prior judgment.” Id., at 972. Applying this test to the record in Taylor’s case, the D. C. Circuit found both of the necessary conditions for virtual representation well met. As to identity of interests, the court emphasized that Taylor and Herrick sought the same result — release of the F-45 documents. Moreover, the D. C. Circuit observed, Herrick owned an F-45 airplane, and therefore had, “if anything, a stronger incentive to litigate” than Taylor, who had only a “general interest in public disclosure and the preservation of antique aircraft heritage.” Id., at 973 (internal quotation marks omitted). Turning to adequacy of representation, the D. C. Circuit acknowledged that some other Circuits regard notice of a prior suit as essential to a determination that a nonparty was adequately represented in that suit. See id., at 973-974 (citing Perez v. Volvo Car Corp., 247 F. 3d 303, 312 (CA1 2001), and Tice v. American Airlines, Inc., 162 F. 3d 966, 973 (CA7 1998)). Disagreeing with these courts, the D. C. Circuit deemed notice an “important” but not an indispensable element in the adequacy inquiry. The court then concluded that Herrick had adequately represented Taylor even though Taylor had received no notice of Herrick’s suit. For this conclusion, the appeals court relied on Herrick’s “strong incentive to litigate” and Taylor’s later engagement of the same attorney, which indicated to the court Taylor’s satisfaction with that attorney’s performance in Herrick’s case. See 490 F. 3d, at 974-975. The D. C. Circuit also found its “close relationship” criterion met, for Herrick had “asked Taylor to assist him in restoring his F-45” and “provided information to Taylor that Herrick had obtained through discovery”; furthermore, Taylor “did not oppose Fairchild’s characterization of Herrick as his ‘close associate.’” Id., at 975. Because the three above-described factors sufficed-to establish virtual representation under the D. C. Circuit’s five-factor test, the appeals court left open the question whether Taylor had engaged in “tactical maneuvering.” See id., at 976 (calling the facts bearing on tactical maneuvering “ambigu[ous]”). We granted certiorari, 552 U. S. 1136 (2008), to resolve the disagreement among the Circuits over the permissibility and scope of preclusion based on “virtual representation.” II The preclusive effect of a federal-court judgment is determined by federal common law. See Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U. S. 497, 507-508 (2001). For judgments in federal-question cases — for example, Herrick’s FOIA suit — federal courts participate in developing “uniform federal rule[s]” of res judicata, which this Court has ultimate authority to determine and declare. Id., at 508. The federal common law of preclusion is, of course, subject to due process limitations. See Richards v. Jefferson County, 517 U. S. 793, 797 (1996). Taylor’s case presents an issue of first impression in this sense: Until now, we have never addressed the doctrine of “virtual representation” adopted (in varying forms) by several Circuits and relied upon by the courts below. Our inquiry, however, is guided by well-established precedent regarding the propriety of nonparty preclusion. We review that precedent before taking up directly the issue of virtual representation. A The preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as “res judicata.” Under the doctrine of claim preclusion, a final judgment forecloses “successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit.” New Hampshire v. Maine, 532 U. S. 742, 748 (2001). Issue preclusion, in contrast, bars “successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment,” even if the issue recurs in the context of a different claim. Id., at 748-749. By “precluding] parties from contesting matters that they have had a full and fair opportunity to litigate,” these two doctrines protect against “the expense and vexation attending multiple lawsuits, conserv[e] judicial resources, and foste[r] reliance on judicial action by minimizing the possibility of inconsistent decisions.” Montana v. United States, 440 U. S. 147, 153-154 (1979). A person who was not a party to a suit generally has not had a “full and fair opportunity to litigate” the claims and issues settled in that suit. The application of claim and issue preclusion to nonparties thus runs up against the “deep-rooted historic tradition that everyone should have his own day in court.” Rickards, 517 U. S., at 798 (internal quotation marks omitted). Indicating the strength of that tradition, we have often repeated the general rule that “one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.” Hansberry, 311 U. S., at 40. See also, e. g., Richards, 517 U. S., at 798; Martin v. Wilks, 490 U. S. 755, 761 (1989); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 110 (1969). B Though hardly in doubt, the rule against nonparty preclusion is subject to exceptions. For present purposes, the recognized exceptions can be grouped into six categories. First, “[a] person who agrees to be bound by the determination of issues in an action between others is bound in accordance with the terms of his agreement.” 1 Restatement (Second) of Judgments §40, p. 390 (1980) (hereinafter Restatement). For example, “if separate actions involving the same transaction are brought by different plaintiffs against the same defendant, all the parties to all the actions may agree that the question of the defendant’s liability will be definitely determined, one way or the other, in a ‘test case.’” D. Shapiro, Civil Procedure: Preclusion in Civil Actions 77-78 (2001) (hereinafter Shapiro). See also California v. Texas, 459 U. S. 1096, 1097 (1983) (dismissing certain defendants from a suit based on a stipulation “that each of said defendants ... will be bound by a final judgment of this Court” on a specified issue). Second, nonparty preclusion may be justified based on a variety of pre-existing “substantive legal relationship[s]” between the person to be bound and a party to the judgment. Shapiro 78. See also Richards, 517 U. S., at 798. Qualifying relationships include, but are not limited to, preceding and succeeding owners of property, bailee and bailor, and assignee and assignor. See 2 Restatement §§43-44, 52, 55. These exceptions originated “as much from the needs of property law as from the values of preclusion by judgment.” 18A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4448, p. 329 (2d ed. 2002) (hereinafter Wright & Miller). Third, we have confirmed that, “in certain limited circumstances,” a nonparty may be bound by a judgment because she was “adequately represented by someone with the same interests who [wa]s a party” to the suit. Richards, 517 U. S., at 798 (internal quotation marks omitted). Representative suits with preclusive effect on nonparties include properly conducted class actions, see Martin, 490 U. S., at 762, n. 2 (citing Fed. Rule Civ. Proc. 23), and suits brought by trustees, guardians, and other fiduciaries, see Sea-Land Services, Inc. v. Gaudet, 414 U. S. 573,593 (1974). See also 1 Restatement §41. Fourth, a nonparty is bound by a judgment if she “assumed] control” over the litigation in which that judgment was rendered. Montana, 440 U. S., at 154. See also Schnell v. Peter Eckrich & Sons, Inc., 365 U. S. 260,262, n. 4 (1961); 1 Restatement § 39. Because such a person has had “the opportunity to present proofs and argument,” he has already “had his day in court” even though he was not a formal party to the litigation. Id., Comment a, at 382. Fifth, a party bound by a judgment may not avoid its preclusive force by relitigating through a proxy. Preclusion is thus in order when a person who did not participate in a litigation later brings suit as the designated representative of a person who was a party to the prior adjudication. See Chicago, R. I. & P. R. Co. v. Schendel, 270 U. S. 611, 620, 623 (1926); 18A Wright & Miller §4454, at 433-434. And although our decisions have not addressed the issue directly, it also seems clear that preclusion is appropriate when a non-party later brings suit as an agent for a party who is bound by a judgment. See id., §4449, at 335. Sixth, in certain circumstances a special statutory scheme may “expressly foreclos[e] successive litigation by non-litigants ... if the scheme is otherwise consistent with due process.” Martin, 490 U. S., at 762, n. 2. Examples of such schemes include bankruptcy and probate proceedings, see ibid., and quo warranto actions or other suits that, “under [the governing] law, [may] be brought only on behalf of the public at large,” Richards, 517 U. S., at 804. Ill Reaching beyond these six established categories, some lower courts have recognized a “virtual representation” exception to the rule against nonparty preclusion. Decisions of these courts, however, have been far from consistent. See 18A Wright & Miller § 4457, at 513 (virtual representation lacks a “clear or coherent theory”; decisions applying it have “an episodic quality”). Some Circuits use the label, but define “virtual representation” so that it is no broader than the recognized exception for adequate representation. See, e. g., Becherer v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 193 F. 3d 415, 423,427 (CA6 1999) (en banc). But other courts, including the Eighth, Ninth, and D. C. Circuits, apply multifactor tests for virtual representation that permit non-party preclusion in cases that do not fit within any of the established exceptions. See supra, at 888-891, and n. 3. The D. C. Circuit, the FAA, and Fairchild have presented three arguments in support of an expansive doctrine of virtual representation. We find none of them persuasive. A The D. C. Circuit purported to ground its virtual representation doctrine in this Court’s decisions stating that, in some circumstances, a person may be bound by a judgment if she was adequately represented by a party to the proceeding yielding that judgment. See 490 F. 3d, at 970-971. But the D. C. Circuit’s definition of “adequate representation” strayed from the meaning our decisions have attributed to that term. In Richards, we reviewed a decision by the Alabama Supreme Court holding that a challenge to a tax was barred by a judgment upholding the same tax in a suit filed by different taxpayers. 517 U. S., at 795-797. The plaintiffs in the first suit “did not sue on behalf of a class,” their complaint “did not purport to assert any claim against or on behalf of any nonparties,” and the judgment “did not purport to bind” non-parties. Id., at 801. There was no indication, we emphasized, that the court in the first suit “took care to protect the interests” of absent parties, or that the parties to that litigation “understood their suit to be on behalf of absent [parties].” Id., at 802. In these circumstances, we held, the application of claim preclusion was inconsistent with “the due process of law guaranteed by the Fourteenth Amendment.” Id., at 797. The D. C. Circuit stated, without elaboration, that it did not “read Richards to hold a nonparty ... adequately represented only if special procedures were followed [to protect the nonparty] or the party to the prior suit understood it was representing the nonparty.” 490 F. 3d, at 971. As the D. C. Circuit saw this case, Herrick adequately represented Taylor for two principal reasons: Herrick had a strong incentive to litigate; and Taylor later hired Herrick’s lawyer, suggesting Taylor’s “satisfaction with the attorney’s performance in the prior case.” Id., at 975. The D. C. Circuit misapprehended Richards. As just recounted, our holding that the Alabama Supreme Court’s application of res judicata to nonparties violated due process turned on the lack of either special procedures to protect the nonparties’ interests or an understanding by the concerned parties that the first suit was brought in a representative capacity. See Richards, 517 U. S., at 801-802. Richards thus established that representation is “adequate” for purposes of nonparty preclusion only if (at a minimum) one of these two circumstances is present. We restated Richards’ core holding in South Central Bell Telephone Co. v. Alabama, 526 U. S. 160 (1999). In that case, as in Richards, the Alabama courts had held that a judgment rejecting a challenge to a tax by one group of taxpayers barred a subsequent suit by a different taxpayer. See 526 U. S., at 164-165. In South Central Bell, however, the nonparty had notice of the original suit and engaged one of the lawyers earlier employed by the original plaintiffs. See id., at 167-168. Under the D. C. Circuit’s decision in Taylor’s case, these factors apparently would have sufficed to establish adequate representation. See 490 F. 3d, at 973-975. Yet South Central Bell held that the application of res judicata in that case violated due process. Our inquiry came to an end when we determined that the original plaintiffs had not understood themselves to be acting in a representative capacity and that there had been no special procedures to safeguard the interests of absentees. See 526 U. S., at 168. Our decisions recognizing that a nonparty may be bound by a judgment if she was adequately represented by a party to the earlier suit thus provide no support for the D. C. Circuit’s broad theory of virtual representation. B Fairchild and the FAA do not argue that the D. C. Circuit’s virtual representation doctrine fits within any of the recognized grounds for nonparty preclusion. Rather, they ask us to abandon the attempt to delineate discrete grounds and clear rules altogether. Preclusion is in order, they contend, whenever “the relationship between a party and a non-party is ‘close enough’ to bring the second litigant within the judgment.” Brief for Respondent Fairchild 20. See also Brief for Respondent FAA 22-24. Courts should make the “close enough” determination, they urge, through a “heavily fact-driven” and “equitable” inquiry. Brief for Respondent Fair-child 20. See also Brief for Respondent FAA 22 (“there is no clear test” for nonparty preclusion; rather, an “equitable and fact-intensive” inquiry is demanded (internal quotation marks omitted)). Only this sort of diffuse balancing, Fair-child and the FAA argue, can account for all of the situations in which nonparty preclusion is appropriate. We reject this argument for three reasons. First, our decisions emphasize the fundamental nature of the general rule that a litigant is not bound by a judgment to which she was not a party. See, e. g., Richards, 517 U. S., at 798-799; Martin, 490 U. S., at 761-762. Accordingly, we have endeavored to delineate discrete exceptions that apply in “limited circumstances.” Id., at 762, n. 2. Respondents’ amorphous balancing test is at odds with the constrained approach to nonparty preclusion our decisions advance. Resisting this reading of our precedents, respondents call up three decisions they view as supportive of the approach they espouse. Fairchild quotes our statement in Coryell v. Phipps, 317 U. S. 406, 411 (1943), that privity “turns on the facts of particular cases.” See Brief for Respondent Fair-child 20. That observation, however, scarcely implies that privity is governed by a diffuse balancing test. Fairchild also cites Blonder-Tongue Laboratories, Inc. v. University of III. Foundation, 402 U. S. 313, 334 (1971), which stated that estoppel questions turn on “the trial courts’ sense of justice and equity.” See Brief for Respondent Fairchild 20. This passing statement, however, was not made with non-party preclusion in mind; it appeared in a discussion recognizing district courts’ discretion to limit the use of issue preclusion against persons who were parties to a judgment. See Blonder-Tongue, 402 U. S., at 334. The FAA relies on United States v. Des Moines Valley R. Co., 84 F. 40 (CA8 1897), an opinion we quoted with approval in Schendel, 270 U. S., at 619-620. Des Moines Valley was a quiet title action in which the named plaintiff was the United States. The Government, however, had “no interest in the land” and had “simply permitted [the landowner] to use its name as the nominal plaintiff.” 84 F., at 42. The suit was therefore barred, the appeals court held, by an earlier judgment against the landowner. As the court explained: “[W]here the government lends its name as a plaintiff... to enable one private person to maintain a suit against another,” the government is “subject to the same defenses which exist . . . against the real party in interest.” Id., at 43. Des Moines Valley, the FAA contended at oral argument, demonstrates that it is sometimes appropriate to bind a nonparty in circumstances that do not fit within any of the established grounds for nonparty preclusion. See Tr. of Oral Arg. 31-33. Properly understood, however, Des Moines Valley is simply an application of the fifth basis for nonparty preclusion described above: A party may not use a representative or agent to relitigate an adverse judgment. See swpra, at 895-896. We thus find no support in our precedents for the lax approach to nonparty preclusion advocated by respondents. Our second reason for rejecting a broad doctrine of virtual representation rests on the limitations attending nonparty preclusion based on adequate representation. A party’s representation of a nonparty is “adequate” for preclusion purposes only if, at a minimum: (1) The interests of the non-party and her representative are aligned, see Hansberry, 311 U. S., at 43; and (2) either the party understood herself to be acting in a representative capacity or the original court took care to protect the interests of the nonparty, see Richards, 517 U. S., at 801-802; supra, at 897-898. In addition, adequate representation sometimes requires (3) notice of the original suit to the persons alleged to have been represented, see Richards, 517 U. S., at 801. In the class-action context, these limitations are implemented by the procedural safeguards contained in Federal Rule of Civil Procedure 23. An expansive doctrine of virtual representation, however, would “recogniz[e], in effect, a common-law kind of class action.” Tice, 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_app_stid

33

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your task is to identify the state of the first listed state or local government agency that is an appellant. GREENE COUNTY PLANNING BOARD, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Power Authority of the State of New York, Intervenor. No. 137, Docket 74-2638. United States Court of Appeals, Second Circuit. Argued Oct. 1, 1975. Decided Dec. 22, 1975. Robert J. Kafin, Glens Falls, N. Y. (Neil E. Needleman, Kafin & Needle-man, Glens Falls, N. Y., of counsel), for petitioner. Philip R. Telleen, Atty., Federal Power Commission (Drexel D. Journey, Gen. Counsel, Federal Power Commission, John R. Staffier, Atty., Federal Power Commission, of counsel), for respondent. Scott B. Lilly, New York City (Morgan, Lewis & Bockius, Washington, D. C., of counsel), for intervenor. Before WATERMAN, OAKES and MESKILL, Circuit Judges. OAKES, Circuit Judge: This is a petition by Greene County Planning Board (the Planning Board), a municipal body which has been in this court previously in connection with transmission lines, to review a final order and Permit of the Federal Power Commission (FPC), both issued on September 13, 1974, permitting the construction of a 765,000 volt (765 kv) facility by the Power Authority of the State of New York (PASNY). The construction project approved by the Commission is for the bulk transmission of electric energy at the United States-Canadian boundary in the town of Fort Covington, Franklin County, New York. The project consists of a single circuit tower with supporting structure, land and facilities, which is to be connected with a similar circuit suspended from a similar tower on the Canadian side of the border. The purpose of the connection is to allow PASNY to import Canadian electric power to help meet New York demands. The FPC denied a petition for rehearing on October 25, 1974. The petition to review was then brought pursuant to § 313(b) of the Federal Power Act, 16 U.S.C. § 8257(b), and the Administrative Procedure Act, 5 U.S.C. §§ 701-06. The Planning Board has petitioned this court to reverse the order and revoke the permit issued by the FPC. The Board requests that we order the FPC to comply with NEPA and the Federal Power Act by conducting interdisciplinary consideration of all relevant environmental factors before issuing this construction permit. The respondent FPC argues that we do not have jurisdiction over this petition under the Federal Power Act. The Commission argues that its actions in this case were not “under” the Federal Power Act, but rather were pursuant to § 7(d) of the Energy Supply and Environmental Coordination Act of 1974 (ESECA), 15 U.S.C. § 793(d), and the provisions of Executive Order No. 10485, 3 C.F.R. 970 (1949-53 Comp.), dated September 3, 1953. The Commission’s position is that there is no statutory provision for review of actions taken under ESECA and Executive Order No. 10485, and, therefore, that we lack jurisdiction over the matters raised in the petition. PASNY makes the same arguments as does the FPC but also argues, first, that the petition for review must be dismissed for lack of standing because the Planning Board alleges no injury in fact from the issuance of the permit and, second, that the petition for review presents a nonjusticiable political question, viz., whether the permit was issued in accordance with the proper conduct of the foreign relations of the United States. We agree with the petitioner that it has standing to bring this petition for review. We agree with the FPC, however, that there is no jurisdiction under the Federal Power Act for us to review the order or permit issued by the Commission in this case. Lacking jurisdiction, we need not reach the political question point raised by PASNY. We accordingly deny the petition. I. PROCEEDINGS BELOW PASNY applied to the Commission on September 21, 1973, for authority to construct and operate the international connection facility at Fort Covington, Franklin County, New York. Since the application involved an international connection, PASNY requested that a Presidential Permit be issued to it pursuant to Executive Order No. 10485. The Greene County Planning Board filed a petition to intervene on October 16, 1973, claiming that the international connection was part of a “comprehensive integrated plan” — a plan which includes the Blenheim-Gilboa and Breakabeen hydroelectric projects (Commission Project Nos. 2685 & 2729) as well as other generating and transmission facilities in and about Greene County — and that this wider plan ultimately will harm the environment of Greene County. The Planning Board sought a consolidated consideration of the instant proceedings with the proceedings involving the Blenheim-Gilboa and Breakabeen projects. The contentions of the Planning Board are based on the view that the ultrahigh voltage transmission facilities here under consideration will make vast amounts of Canadian hydroelectric power available at the New York state border and that power will necessarily be transmitted eventually through Greene County. This, they argue, will require the construction of immense transmission lines in Greene County. The Planning Board points out, and PASNY concedes, that the power will be transmitted south via Massena to Marcy, near Edic, New York, in the vicinity of Utica, by way of a 765 kv line which PASNY has proposed to construct. (An application for construction of that line is now pending before the New York State Public Service Commission.) The Planning Board suggests that the power would then be transmitted to Gil-boa, where PASNY has already constructed, under an FPC license, the one million watt Blenheim-Gilboa pump storage hydroelectric project and has evidently applied to the FPC for authorization to build another. The Planning Board then suggests that a 765 kv transmission line would enter Greene County from Gilboa and travel eastward across Greene County for some 35 miles to Leeds. Authorization for this transmission corridor across the county is sub judice before the FPC at this time, after twice having been involved in litigation in this court. See note 1, supra. From Leeds, the Planning Board contends that the 765 kv transmission line would leave Greene County, cross the Hudson River and turn south to Pleasant Valley and eventually connect to New York. PAS-NY contends that the Planning Board’s contentions are merely speculative, and that a transmission line across Greene County might never be constructed since it is only one of several possible methods of “strengthening the statewide interconnecting transmission system in that area of the state.” While the Commission was considering PASNY’s application and the petition to intervene, which included a request for an environmental impact study under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq., Congress enacted ESECA, § 7(d) of which specifically related to the border crossing facilities here at issue. It provides that the Commission is authorized and directed to issue a Presidential permit pursuant to Executive Order 10485 . . . for the construction ... of facilities for the transmission of electrical energy at the borders of the United States without preparing an environmental impact statement pursuant to [42 U.S.C. § 4332] for facilities for the transmission of electric energy between Canada and the United States in the vicinity of Fort Covington, New York. 15 U.S.C. § 793(d). Accordingly, the Commission, in its authorization of this project, was proceeding solely under Executive Order No. 10485 and not under the terms of the Federal Power Act. Pursuant to the requirements of the Executive Order the Commission obtained recommendations of the Secretary of State and the Secretary of Defense pertaining to the proposed connection at Fort Covington and the contract between PASNY and Hydro-Quebec, the Canadian authority. On September 13, 1974, the FPC issued an order granting intervention for the Planning Board but denying its request for a hearing and for consolidation of the Fort Covington connection into the other proceedings affecting Greene County. It found that petitioner’s participation “may be in the public interest” and therefore granted the petitions to intervene but held that pursuant to ESECA the requests for a hearing and environmental impact statement and a consolidation of proceedings should be denied. It forthwith issued the Permit accompanied with a finding that it was in the public interest, as required by the Executive Order. The Commission subsequently issued an order denying a rehearing on October 25, 1974, which indicated the Commission’s belief that Congress intended all of the provisions of NEPA to be inapplicable to the Fort Covington action. The Commission rejected the contention that the Fort Covington application was subject to the provisions of the Federal Power Act either as a “project” within the meaning of § 3(11) of the Act, 16 U.S.C. § 796(H), or as part of a “comprehensive plan” within the meaning of § 10(a) of the Act, 16 U.S.C. § 803(a). It claimed that its licensing jurisdiction under Part One of the Act does not extend either to the border facilities or to related facilities which are part of the border connection project. Beyond this the Commission denied a public hearing on the basis that § 7(d) of ESECA clearly indicated a sense of urgency. The Commission stated that it had considered the petitioner’s objections, but concluded that an evidentiary hearing was not necessary or appropriate, pointing out that the petitioner represents interests in a county some 180 miles south of the border crossing point, and that no resident or public official or agency of Franklin County where the facilities in question are to be located had raised any objection. Thereafter the Planning Board filed this petition for review. II. STANDING PASNY relies on Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), for its argument that petitioners lack standing in this case. It contends that because the facilities here in question are located miles from Greene County the Planning Board cannot show any injury-in-fact from the granting of the Fort Covington Permit. PASNY points out that even if the remainder of the line connecting these facilities with midstate New York is built to Utica (or Edic) it will still be 72 miles from Greene County. Our own Greene County Planning Board v. FPC, 455 F.2d 412 (2d Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972) (Greene County I), and Greene County Planning Board v. FPC, 490 F.2d 256 (2d Cir. 1973) (Greene County II), involved proposed 765 kv transmission lines crossing Greene County from Gilboa to Leeds. The Planning Board urges that a connecting facility from Edic to Gilboa will have vast consequences on the proposed transmission corridor and the environment of Greene County. In Greene County I this court stated that the FPC could not “disregard impending plans for further power development” and that the court could not “tolerate the Commission cutting back on its expanded responsibility by binding itself to potential developments . .” 455 F.2d at 424. As Judge Mansfield also commented in dissent in Greene County II, “[o]ur earlier opinion scored the FPC for its failure to consider impending plans for further power development when it was analyzing a project likely to be influenced by such future development.” 490 F.2d at 261. These opinions indicate that it may well be artificial to separate portions of an integrated plan and allow only those persons physically located near each segment of the plan to challenge that particular portion of the unified scheme. When we are considering a unified transmission plan, those affected adversely by any particular portion may well be injured by approval of another portion of the plan by way of commitment of resources or otherwise, at least where the approved segment as here has no independent utility. PASNY concedes that, at the very least, it will construct a 765 kv line to its proposed Massena substation and from there to a proposed substation at Marcy. The Marcy substation will be adjacent and connected to the Niagara-Mohawk Power Corporation Edic substation in the vicinity of Utica. “From that point the power will be transmitted over existing lines to load centers throughout the interconnected system including lines to the Consolidated Edison Company system facilities at Pleasant Valley and from there on its lines to New York City.” Intervenor’s brief at 7. PASNY also concedes that the initial decision on the Gilboa-Leeds line provided that the line as constructed should be able to be upgraded to 765 kv. PASNY is already seeking FPC approval for immediate construction of a 345 kv line from Gilboa to Leeds and for a second 345 kv line from Breakabeen to Leeds. It is further conceded as it has to be that to some degree power from Canada will flow over an interconnected circuit system which includes these two 345 kv lines. See note 9 supra. Thus, at the very least, PASNY admits that a 765 kv line from Marcy-Edic to Gilboa and through Greene County “is one of several possible alternatives that would be available if there arose a need to strengthen the proposed 765 kv statewide transmission system.” They merely state that this will not be needed, if at all, until the 1980s. In an area where long-range planning is essential, see Cook, The Flow of Energy in an Industrial Society, Scientific American (Sept. 1971) 135, 144, it would border on the absurd to assert that a statutorily constituted county planning agency, in a county which has a real probability of being affected by transmission corridors in the future, would lack standing to raise the claim that is here made. The original petition to intervene argues that additional transmission corridors and lines in the county will be inconsistent with the historic, social and economic and cultural qualities of Greene County, and will cause environmental damage therein. It also objects that a piecemeal approach is employed by PASNY and the Commission which will deprive concerned parties of the opportunity for an overall evaluation. Cf. Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 508 F.2d 927, 934-35 (2d Cir. 1974), vacated and remanded, 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29 (1975) (in light of Pub.L. No. 94-83 and Aberdeen & Rockfish Railroad v. SCRAP, 422 U.S. 289, 95 S.Ct. 2336, 45 L.Ed.2d 191 (1975)); Scientists’ Institute for Public Information, Inc. v. AEC, 156 U.S.App.D.C. 395, 481 F.2d 1079, 1085-92 (1973). While it may be true that any number of other persons who live in assorted other areas of New York State could claim standing similar to those of Greene County, the Supreme Court has made it clear that standing is not to be denied because many people suffer the same injury. United States v. SCRAP, 412 U.S. 669, 686-87, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). “To deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody.” Id. at 688, 93 S.Ct. at 2416. See also id. at 689 n. 14, 93 S.Ct. 2405. The Greene County Planning Board is surely as greatly aggrieved as the Scenic Hudson Preservation Conference was in the original Storm King case, even though the threat here is one somewhat further in the future. See Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 616 (2d Cir. 1965) (injury to aesthetic, conservational and recreational interests alleged), cert. denied, Consolidated Edison Co. of New York v. Scenic Hudson Preservation Conference, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966); Wilderness Society v. Morton, 150 U.S.App.D.C. 170, 463 F.2d 1261 (1972). We reject the argument that petitioner lacks standing to challenge the Commission’s action in this case. III. APPLICABILITY OF THE FEDERAL POWER ACT Part One of the Federal Power Act § 3(11), 16 U.S.C. § 796(11), note 13 supra, defines a hydroelectric project, and § 4(e), 16 U.S.C. § 797(e), confers jurisdiction on the Commission to license such projects. Petitioner claims that the Fort Covington permit awarded by the Commission was a portion of such a project, and that the award was therefore made “under” the Federal Power Act. Orders made by the Commission “under” the Federal Power Act are reviewable in the courts of appeals. 16 U.S.C. §§ 8251(a), (b). The only way in which jurisdiction could obtain here would be if the transmission line facilities at issue were “the .primary line or lines transmitting power [from the hydroelectric project] to the point of junction with the distribution system or with the interconnected primary transmission system . . . .” 16 U.S.C. § 796(11), note 13 supra. However, there is no hydroelectric project within the Commission’s jurisdiction which is involved here (the Canadian generating facilities are not subject to FPC licensing), and hence the border crossing facility cannot conceivably be a “primary line” for such a project. Petitioner also claims we have jurisdiction to review the Commission’s order as a component of a “comprehensive plan.” Section 10(a) of the Act, 16 U.S.C. § 803(a), note 14 supra, does impose upon the Commission a duty to develop a “comprehensive plan,” but this duty arises only in connection with projects over which it has licensing jurisdiction. The condition of conformance to a comprehensive plan relates only to “[a]ll licenses issued under this Part . . . .” See note 14 supra. However much we might agree with the petitioner that there may be great need for a single regulatory body having planning responsibility over various aspects of electric generation and transmission, the FPC does not have such responsibility.in this situation, see FPC v. Louisiana Power & Light Co., 406 U.S. 621, 635-36, 92 S.Ct. 1827, 32 L.Ed.2d 369 (1972), for it is clear that these facilities are not subject to Commission regulations under the provisions of Part One of the Act. The argument advanced by petitioner is one for Congress, not the courts. Nor is Part Two of the Federal Power Act here involved. The Planning Board argues that the power contract between PASNY and Hydro-Quebec provides for the possible exportation of power by PASNY, and that PASNY is therefore required by § 202(e) of the Act, 16 U.S.C. § 824a(e), to obtain formal FPC authorization for the contract. This argument was, however, not made in the application for rehearing. Therefore we have no jurisdiction to entertain it for the first time here. 16 U.S.C. § 8257(b); FPC v. Colorado Interstate Gas Co., 348 U.S. 492, 75 S.Ct. 467, 99 L.Ed. 583 (1955); Rhode Island Consumers Council v. FPC, 164 U.S.App.D.C. 134, 504 F.2d 203 (1974). Even if we did have jurisdiction over this claim, we would have to reckon with the Commission’s administrative determination that for purposes of the exportation control authority under § 202(e) of the Act, state agencies such as PASNY which fall within the definition of municipalities in § 3(7) of the Act, 16 U.S.C. § 796(7), are not required to obtain export authorizations under § 202(e). See Lubeck (Maine) Water and Electric District Permit, FPC Docket No. E7527 (Aug. 21, 1970). It is, to the contrary, clear that Executive Order No. 10485, note 5 supra, delegates an executive function to the FPC, a function rooted in the President’s power with respect to foreign relations if not as Commander in Chief of the Armed Forces. Its predecessor, Executive Order No. 8202, 3 C.F.R. 560 (1938-43 Comp.), issued July 13, 1939, had called for the Commission to receive permit applications but then only to make recommendations to the President. The President retained power to grant permits and to impose conditions thereon. See generally United States v. La Compagnie Francaise des Cables Telegraphiques, 77 F. 495 (S.D.N.Y.1896); 30 Op.Att’y Gen. 217 (Aug. 14, 1913); 22 Op.Att’y Gen. 13, 25, 26, 27 (Jan. 1898). While Executive Order No. 10485 refers to § 202(e) of the Federal Power Act in its preamble, it does so simply to explain why the President delegated the duty to issue international connection permits. The preamble does not suggest that the Act is the basis for Executive Order No. 10485. Thus, it is clear that we lack jurisdiction under the Federal Power Act to review the Commission’s authorization of the border-crossing facilities at Fort Covington, New York. Petitioner has suggested that even though we lack jurisdiction under the Federal Power Act, the Administrative Procedure Act may provide jurisdiction in this case for the review of the order and Permit as “final agency action for which there is no other adequate remedy in court.” 5 U.S.C. § 704. See also 5 U.S.C. § 702. This court does not appear to have decided the much debated question whether the Administrative Procedure Act (APA) confers jurisdiction for review of all final agency action. See Aguayo v. Richardson, 473 F.2d 1090, 1101-02 (2d Cir. 1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 101 (1974). Compare Bradley v. Weinberger, 483 F.2d 410, 413 (1st Cir. 1973) (APA confers jurisdiction), with Chaudoin v. Atkinson, 494 F.2d 1323, 1328-29 (3d Cir. 1974) (APA does not confer jurisdiction), and Bramblett v. Desobry, 490 F.2d 405, 407 (6th Cir.) (same), cert. denied, 419 U.S. 872, 95 S.Ct. 133, 42 L.Ed.2d 111 (1974). Assuming, however, that the APA independently establishes jurisdiction for the review of agency action, we need only point out that such jurisdiction would lie originally in the district courts and not in the courts of appeals. See Bradley v. Weinberger, supra; Rettinger v. FTC, 392 F.2d 454, 457 (2d Cir. 1968). See generally Note, Jurisdiction to Review Federal Agency Action: District Court or Court of Appeals, 88 Harv.L.Rev. 980 passim (1975). Petition dismissed for lack of jurisdiction. See Appendix Aon next page. APPENDIX A . See Greene County Planning Board v. FPC, 455 F.2d 412 (2d Cir.), cert denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972); Greene County Planning Board v. FPC, 490 F.2d 256 (2d Cir. 1973). . The Agreement basically provides for the sale by Hydro-Quebec to PASNY of 800 MW of electric power and 2.14 billion kilowatt hours of energy in June-October of 1977 and 800 MW of power and 3 billion kwh of energy in April-October from 1977-1996. Under the agreement, PASNY also undertakes to sell energy during the winter months to Hydro-Quebec, under certain conditions. . Section 313(b) of the Federal Power Act, 16 U.S.C. § 8251 (b), provides in pertinent part: Any party to a proceeding under this [Act] aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the United States Court of Appeals for any circuit wherein the licensee or public utility to which the order relates is located or has its principal place of business, or in the United States Court of Appeals for the District of Columbia, by filing in such court, within sixty days after the order of the Commission upon the application for rehearing, a written petition praying that the order of the Commission be modified or set aside in whole or in part. . . No objection to the order of the Commission shall be considered by the court unless such objection shall have been urged before the Commission in the application for rehearing unless there is reasonable ground for failure so to do. The finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive. . 15 U.S.C. § 793(d) provides: In order to expedite the prompt construction of facilities for the importation of hydroelectric energy thereby helping to reduce the shortage of petroleum products in the United States, the Federal Power Commission is hereby authorized and directed to issue a Presidential permit pursuant to Executive Order 10485 of September 3, 1953, for the construction, operation, maintenance, and connection of facilities for the transmission of electric energy at the borders of the United States without preparing an environmental impact statement pursuant to section 102 of the National Environmental Policy Act of 1969 (83 Stat. 856) for facilities for the transmission of electric energy between Canada and the United States in the vicinity of Fort Covington, New York. . Executive Order No. 10485 [3 C.F.R. 970 (1949-53 Comp.)] provides in pertinent part: WHEREAS section 202(e) of the Federal Power Act, as amended, 49 Stat. 847 (16 U.S.C. 824a(e)), requires any person desiring to transmit any electric energy from the United States to a foreign country to obtain an order of the Federal Power Commission authorizing it to do so; SECTION 1. (a) The Federal Power Commission is hereby designated and empowered to perform the following-described functions: (1) To receive all applications for permits for the construction, operation, maintenance, or connection, at the borders of the United States, of facilities for the transmission of electric energy between the United States and a foreign country. (3) Upon finding the issuance of the permit to be consistent with the public interest, and, after obtaining the favorable recommendations of the Secretary of State and the Secretary of Defense thereon, to issue to the applicant, as appropriate, a permit for such construction, operation, maintenance, or connection. The Commission shall have the power to attach to the issuance of the permit and to the exercise of the rights granted thereunder such conditions as the public interest may in its judgment require. SEC. 5. Executive Order No. 8202 of July 13, 1939, is hereby revoked. DWIGHT D. EISENHOWER, The White House September 3, 1953. . Blenheim-Gilboa has been licensed by the Commission and the pump storage project, but - not the approved transmission lines, built. Breakabeen is pending. . Application of PASNY, N.Y.S. P.S.C. Case No. 26529. Section 2.3 of the agreement between PAS-NY and Hydro-Quebec refers expressly to “60 hertz alternating current” transmission facilities from Massena “to a point of major connection with [PASNY’s] own system near Utica, N. Y.” . The current proposal is only for a 345 kv line from Gilboa to Leeds, but such a line would evidently be upgradeable to 765 kv. . The Planning Board has attached to its brief a diagram which it claims is derived from Appendix C to the FPC Final Environmental Statement in FPC Project No. 2685 (GilboaLeeds) and the New York Power Pool 1974-1989 Plan filed by PASNY with the FPC on May 3, 1974. This diagram shows a 765 kv line crossing Greene County from Gilboa to Leeds. PASNY suggested at argument, however, that any 765 kv transmission would logically run over an existing 765 kv line from New Scotland in Albany County to Leeds (which, however, is in Greene County), barely touching and not crossing Greene County. Appended hereto as Appendix A is the Planning Board’s diagram with PASNY’s New Scotland line shown. We need not resolve the parties’ views on this matter since it is a scientific fact, conceded by PASNY at argument, that electrical energy flows through a system in a unitary fashion and “will flow to some degree over the line from Gilboa to Leeds.” See also Scenic Hudson Preservation Conference v. FPC, 453 F.2d 463, 489 n. 20 (2d Cir. 1971) (Oakes, J., dissenting), cert. denied, 407 U.S. 926, 92 S.Ct. 2453, 32 L.Ed. 2d 813 (1972). There is no real dispute that the power from Canada is intended to be transferred to New York City. . See note 4 supra. . The Department of State’s letter of August 22, 1974, “supports” the issuance of the permit. The Department of Defense letter of August 15, 1974, advises the FPC that the Department “is not aware of any existing reason to withhold approval of the request . Conditions were attached to the Permit including inspection by the Corps of Engineers and a Commission representative, liability to third parties, non-assignability, removal of facilities upon termination of the Permit and United States possession for safety purposes. . Section 3(11) of the Federal Power Act, 16 U.S.C. § 796(11), defines “project” as follows: “[P]roject” means complete unit of improvement or development, consisting of a power house, all water conduits, all dams and appurtenant works and structures (including navigation structures) which are a part of said unit, and all storage, diverting, or forebay reservoirs directly connected therewith, the primary line or lines transmitting power therefrom to the point of junction with the distribution system or with the interconnected primary transmission system, all miscellaneous structures used and useful in connection with said unit or any part thereof, and all water-rights, rights-of-way, ditches, dams, reservoirs, lands, or interest in lands the use and occupancy of which Question: What is the state of the first listed state or local government agency that is an appellant? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:

songer_district

H

What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". K. Chandapillai SETH, Plaintiff, Appellant, v. BRITISH OVERSEAS AIRWAYS CORPORATION, Defendant, Appellee. BRITISH OVERSEAS AIRWAYS CORPORATION, Defendant, Appellant, v. K. Chandapillai SETH, Plaintiff, Appellee. Nos. 6138, 6150. United States Court of Appeals First Circuit. Heard Oct. 9, 1963. Decided March 23, 1964. Daniel F. Featherston, Jr., Boston, Mass., with whom Stephen F. Ells and Choate, Hall & Stewart, Boston, Mass., were on brief, for K. Chandapillai Seth. David H. Fulton, Boston, Mass., with whom Robert Fulton, Boston, Mass., was on brief, for British Overseas Airways Corp. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. WOODBURY, Chief Judge. These are appeals from a judgment in the amount of $331.60 entered for the plaintiff in an action for the loss of two pieces of baggage. The plaintiff below, Kunniparampil Chandapillai Seth, referred to hereinafter for convenience as either the plaintiff or Seth, is a citizen of India and a priest of the Episcopal Church. The World Council of Churches awarded him a year’s fellowship for advanced study at the Episcopal Theological Seminary in Cambridge, Massachusetts, and presented him with two airline tickets it had purchased in his name from British Overseas Airways Corporation, BOAC, hereinafter. One ticket entitled Seth to passage from Trivandrum to Cochin and from Cochin to Bombay by Indian Air Lines and from Bombay to Beirut to London by Middle East Airlines. The other ticket issued by BOAC for its own account entitled Seth to passage on one of its flights from London to Boston. Under both tickets Seth was entitled to 20 kilograms of checked baggage without additional charge. Seth went by train from Trivandrum to Cochin, where, without declaring excess value, he checked his two bags weighing a total of 20 kilograms at the Indian Air Lines counter and departed on his flight to Bombay. At Bombay he presented the baggage checks he had received in Cochin, reclaimed his baggage, re-checked it with BOAC to London, receiving therefor two baggage claim tags in proper form, and passed his bags through customs. Seth has not seen them since. During a layover between planes at Beirut Seth inquired about his bags from BOAC employees who assured, him that his bags would be forwarded on his flight and that he could reclaim them by presenting his claim checks to BOAC in London. In London he presented his claim checks to BOAC, but his baggage could not be found. The next morning he presented his claim checks to BOAC again, but his baggage still could not be found, and he boarded his flight to Boston with only his passport and an attache case containing toilet articles. Diligent efforts by BOAC to trace Seth’s bags have proved fruitless. Where they disappeared and under what circumstances remain a mystery. Seth brought suit against BOAC in the United States District Court for the District of Massachusetts in three counts, each on a different theory, to recover the damage he alleges he sustained by the loss of his baggage, presumably, the court below found, in Beirut. The theory of the first count is that jurisdiction lies under Title 28 U.S.C. § 1331(a) because the suit is a civil action wherein the matter in controversy exclusive of interest and costs exceeds the sum or value of $10,000 and arises under a treaty of the United States, that is to say, the Warsaw Convention, so called, to be considered presently. The theory of the second count is that jurisdiction lies under Title 28 U.S.C. § 1337 because the suit is a civil action arising under an Act of Congress regulating commerce. The theory of the third count is that jurisdiction lies under Title 28 U.S.C. § 1350 because it is a civil action by an alien for a tort only committed in violation of a treaty of the United States. The court below held that it had jurisdiction but only under § 1331(a) supra, and that the limitation of liability for loss of cheeked baggage of the Warsaw Convention applied since the flight from India to the United States, although by several successive air carriers, was one undivided transportation between the territories of adherents to the Convention. Article 1 of the Warsaw Convention, 49 Stat. 3014, 3015 (1929). Wherefore the court entered judgment for BOAC on counts 2 and 3 and on count 1 awarded damages to Seth in the amount of $331.60, that being the conceded equivalent in United States money to 250 French gold francs per kilogram of the lost baggage. Both parties appealed, BOAC on the ground that the court below lacked jurisdiction, Seth on the ground that the court below erred in holding that BOAC was entitled to avail itself of the provision of the Warsaw Convention quoted from hereinafter limiting its liability for the loss of checked baggage to the amount awarded. We shall consider the contentions in the order stated. By adhering to the Warsaw Convention the United States agreed to a treaty which in its Article 18(1) provides that the air carrier “shall be liable for damage sustained” in the event of the loss of checked baggage taking place “during the transportation by air” and in its Article 18(2) defined “the transportation by air” as comprising “the period during which the baggage” is “in charge of the carrier, whether in an airport or on board an aircraft.” Moreover, the Convention in its Article 30(3) provides that in the case of transportation by various successive carriers falling within the definition of one undivided transportation as defined in its Article 1(3), which Seth’s transportation undoubtedly was, the passenger entitled to delivery “shall have a right of action against the last carrier.” Thus the Convention not only imposes liability on an air carrier for the loss of checked baggage but also gives a passenger whose baggage is lost a right of action to enforce that liability. Seth’s action, therefore, seems clearly to be one arising under a treaty of the United States. The question remains whether there is a sufficient amount in controversy to meet the jurisdictional requirement of § 1331(a). Seth alleged generally in his complaint that his loss amounted to more than double the $10,000 necessary for jurisdiction under § 1331(a). This seems a high valuation for two bags of an Indian cleric. But we cannot say that it apears to a legal certainty,” St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938), from the face of the complaint that Seth could not possibly recover the amount he claimed with the result that his claim must have been colorably made to confer jurisdiction. Seth’s claim of loss having been made in apparent good faith, his claim controls as to dismissal for want of jurisdictional amount, id. 303 U.S. at 288, 58 S.Ct. 586, 82 L.Ed. 845. But BOAC by pre-trial motion challenged jurisdiction on the ground that actually les? than the jurisdictional amount was involved. This put the value of Seth’s bags in issue, but it was not error for the court below to deny this motion and postpone decision of that issue until after trial, Food Fair Stores v. Food Fair, 177 F.2d 177, 182 (C.A. 1, 1949), for: “As there is no statutory direction for procedure upon an issue of jurisdiction, the mode of its determination is left to the trial court.” Gibbs v. Buck, 307 U.S. 66, 71, 72, 59 S.Ct. 725, 729, 83 L.Ed. 1111 (1939). The only testimony introduced at the trial was Seth’s deposition. In it he testified that his lost bags contained miscellaneous articles of wearing apparel and books, which he valued at over $1,000, and the only copies in existence of manuscripts for two books which he valued at $10,000. Seth’s valuations may well be excessive. Indeed the court below found that they were. But we do not think it follows “to a legal certainty” from the plaintiff’s proofs that he never could have been entitled to recover the amount he claimed. We think that manuscripts for religious treatises properly form part of the baggage of a cleric and scholar on his way to pursue advanced study. See Wood v. Cunard S.S. Co., 192 F. 293, 41 L.R.A.,N.S., 371 (C.A. 2, 1911), and cases cited. And although the manuscripts were unique, and in the case of an author without an established reputation manuscripts not accepted for publication are incapable of exact valuation in money, it does not follow that Seth’s manuscripts were worthless. They had value to Seth for the many hours of labor he said he had put into them, see Newman v. Clayton F. Summy Co., 133 F.2d 465, 466 (C.A. 2, 1943), and, as the court below found, value to him also in preparing academic theses, in earning higher academic degrees, in enhancing his professional reputation and in securing employment in his church. While Seth’s valuation may be excessive, we are not prepared to say “to a legal certainty” that his valuation was colorable in order to confer jurisdiction. St. Paul Mercury Indemnity Co. v. Red Cab Co., supra, 303 U.S. 289, 58 S.Ct. 586, 82 L.Ed. 845. We hold that federal jurisdiction lies under § 1331(a) and therefore do not consider or need to consider whether federal jurisdiction might also be predicated upon § 1337 or § 1350, supra. Seth’s principal contention as appellant in No. 6138 is that BOAC is not entitled to avail itself of the provisions of Article 22(2) of the Warsaw Convention limiting its liability for baggage checked without a special declaration of value to 250 gold French francs per kilogram for the reason that it failed to comply with the requirement of Article 4 of the Convention which so far as material provides: “(1) For the transportation of baggage, other than small personal objects of which the passenger takes charge himself, the carrier must deliver a baggage check. * ***** “(3) The baggage check shall contain the following particulars: ****** “(f) The number and weight of the packages; ****** “(h) A statement that the transportation is subject to the rules relating to liability established by this convention. “(4) * * * if the baggage check does not contain the particulars set out at * * * (f), and (h) above, the carrier shall not be entitled to avail himself of those provisions of the convention which exclude or limit his liability.” We accept the decision and the reasoning of the court below as to compliance with sub-paragraph (f). That court said: “Plaintiff has not proved that defendant failed to comply with sub-paragraph (f). Exhibit 1, the passenger ticket and baggage check covering all that part of Seth’s air journey from Trivandrum to London, explicitly stated that Seth had two pieces of baggage which weighed 20 pounds, [actually, but immaterially, 20 kilograms] That was a precisely correct statement of the number and weight of Seth’s packages when he left Trivandrum. Exhibit 2, the passenger ticket and baggage check covering the journey from London to Boston, did not show any baggage on that leg of the journey. But Seth has not shown that he had any baggage when he reached London or on the stage of the journey from London to Boston. Hence there is no reason to find that that ticket had an error or omission.” Seth v. British Overseas Airways Corp., 216 F.Supp. 244, 248 (D.Mass. 1963). Seth’s main contention is that the statement on the passenger ticket that: “Carriage hereunder is subject to the rules and limitations relating to liability established by the Convention for the Unification of Certain Rules relating to International Carriage by Air, signed at Warsaw, October 12,1929 (hereinafter called "the Convention’), unless such carriage is not ‘international carriage’ as defined by the Convention”, does not constitute compliance with sub-paragraph (h) of Article 4(3), supra, requiring: “A statement that the transportation is subject to the rules relating to liability established by this convention.” The argument in a nutshell is that the “unless” clause destroys what otherwise would constitute compliance with sub-paragraph (h) because considered as a whole the statement on the ticket does not categorically inform the passenger that his transportation is subject to the Convention. We do not agree. The statement on the ticket quoted above gives the passenger clear notice that limitations on the carrier’s liability for the loss of checked baggage are provided by the Warsaw Convention and that the carrier will avail itself of those limitations if it can. The ticket does not leave the passenger in the dark as to a hidden risk he might not appreciate. It gives him fair warning of the existence of limitations on the carrier’s liability which he can avoid only on showing that the carriage undertaken by the carrier is not “international carriage” as defined in the Warsaw Convention. This gives the passenger blunt warning to find out the nature of his carriage and if covered by the Warsaw Convention to declare excess value and pay the price for increased liability in the event his baggage is lost. We think this constitutes compliance with sub-paragraph (h) of Article 4 of the Warsaw Convention. We are not aware of any precedent for this conclusion other than the decision of the court below nor are we aware of any precedent for the contrary conclusion. Flying Tiger Line, Inc., v. United States, 170 F.Supp. 422, 145 Ct.Cl. 1 (1959), is not even analogous support for Seth’s position, for in that case there was nothing whatever in the bill of lading itself which could be deemed to be compliance with a sub-paragraph (q) of Article 8 which is identical with sub-paragraph (h) of Article 4 but applies to air waybills for goods. To find any possible compliance with the requirement for notice of limitation of liability in the Flying Tiger case reference was necessary to the Charter Agreement between the air line and the government, to a second document referred to in that agreement and then to a third document referred to in the second document. See page 424 of 170 F.Supp. Nor is Westminster Bank, Ltd., v. Imperial Airways, Ltd., 55 Lloyd’s List L.R. 242 (K.B., 1936), also cited and relied upon by the plaintiff, an authority in his favor, for in that case the court held that the requirement of Article 8 (q), which as we have pointed out corresponds with subparagraph (h) of Article 4, was not satisfied by the statement on the back of a consignment note covering an air shipment of gold that: “The General Conditions of Carriage of Goods are applicable to both internal and international carriage. These General Conditions are based upon the Convention of Warsaw of Oct. 12, 1929, in so far as concerns international carriage within the special meaning of the said Convention.” Id. at 247-248. The court in reaching its conclusion did not mention the “in so far as” clause, which has relevance to the issue before us, but found the statement on the back of the shipping document insufficient because “a statement that the carriage is subject to certain general conditions of carriage of goods, which general conditions are based upon the Convention, is not a statement that the carriage is subject to the rules relating to liability established by the Convention. * * * To say that certain conditions are applicable to the carriage, which said conditions are based upon the Convention is, in my opinion, a very different matter than saying that the Convention governs the carriage.” Id. at 248. We are not persuaded by these authorities to disagree with the decision of the court below. Judgments will be entered affirming the judgment of the District Court; no costs. . BOAC issued this ticket as “agent only” for Indian Air Lines but as principal for its subsidiary Middle East Airlines. . Officially the “Convention for the Unification of Certain Rules relating to letter-national Transportation by Air” done at Warsaw on October 12, 1929, and adhered to by the United States as of October 29, 1934. 49 Stat. Part 2, 3000. Subsequent citations are to the English translation commencing at 49 Stat. 3014. . This testimony of the plaintiff clearly distinguishes this case from Panama Transport Co. v. Greenberg, 290 F.2d 125 (C.A.1), cert. denied, 368 U.S. 891, 82 S.Ct. 143, 7 L.Ed.2d 88 (1961), upon which counsel for BOAC relies. . The “Conditions of Contract” on the ticket note that “ticket” means both “passenger ticket” and “baggage check.” Seth does not contend that the cheek may not be so incorporated into the ticket. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:

songer_source

J

What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals. SMITH v. COMMISSIONER OF INTERNAL REVENUE. No. 2669. Circuit Court of Appeals, First Circuit. May 31, 1932. Lawrence E. Green (of Hale & Dorr) of Boston, Mass., for the petitioner for review. J. Louis Monarch, Sp. Asst, to the Atty. Gen. (G. A. Youngquisf, Asst. Atty. Gen., Bewail Key, Sp. Asst, to Atty. Gen., and C. M. Gharest, Gen. Counsel, and Philip A. Bayer, Bp. Atty., Bureau of Internal Revenue, both of Washington, D. C., on the brief), for the Commissioner. Before BINGHAM and WILSON, Circuit Judges, and MeLELLAN, District Judge. BINGHAM, Circuit Judge. This is a petition to review a decision of the Board of Tax Appeals determining deficiency income taxes for the years 1925 and 1926 in the sum of $498.53 and $494.35 respectively under the provisions of section 219(g) of the Revenue Acts of 1924 (26 USCA § 960 note) and 1926 (44 Stat. 32), which, in the particulars here in question, are the same in both acts. The petitioner, the wife of Emelins W. Smith, on December 26, 1924, created four trusts, one for each of her sons, Reginald Heber Smith, Cecil H. Smith, Harold C. Smith, and Kendall K. Smith. The trust agreements are the same except as to the name of the beneficiary, and each was accompanied by a schedule of property so given in trust. Two of the sons, Reginald and Cecil, were made trustees of each trust. In the trust to Reginald the income was payable to him during his life, and, on his death, it provided for the payment of the trust fund to his children if any survived him. It further provided: “C. Upon the death of my said son leaving no issue him surviving the trustees shall distribute and pay over the remaining principal of the trust fund and any unpaid or accumulated income in equal shares to the trustees for my son Cecil H. Smith, my son Harold C. Smith, and my son Kendall K. Smith, under instruments of trust similar to this instrument and bearing even date herewith as aforesaid, except that so far as the trusts under any one or more of said instruments shall have come to an end by the death of the first life tenant without issue or by failure of his issue the distribution shall bo to the trusts for the other sons or son, and if when my said son dies without issue he has survived all'iny other issue then the trustees shall if T still survive repay to me said remaining principal and unpaid or accumulated income, or in ease I have died shall distribute said property to and among those persons who would have been entitled to take my personal estate under the Massachusetts statutes of distribution if I had died domiciled in Massachusetts immediately after the death of such child.” Each trust agreement further provided: “5. I hereby create in myself, my husband Emelins W. Smith, Reginald Heber Smith, Cecil II. Smith, and James Adams of Brook-line in (lie County of Norfolk, a joint power exercisable at any time or from time to time by any three of said persons by instrument or instruments in writing signed by said three and delivered to- any trustee hereunder who may be one of themselves: “A. To remove any trustee hereunder. “B. To appoint a successor to any trustee who dies, resigns, or is removed. “C. To change and alter any of or all the trusts herein set forth and declare new trusts of the properly in any way or manner; also to terminate or modify the beneficial interests of any person, or class of persons and to name or appoint any other person or classes of persons as beneficiaries whether by way of addition or substitution; also to determine and alter the number of, the powers of, and the succession among the Committee. No exercise of this power shall exhaust it. It may, however, bo released, extinguished, or restricted by a like instrument so signed by any three of the Committee and delivered to a trustee as aforesaid. If either or both the powers to remove and appoint trustees shall have been released and/or extinguished, I reserve to myself acting alone and independent power to remove and appoint trustees in the manner aforesaid.” The income of the four trusts amounted in 1925 to $5,353.47 and in 1926 to $11,679.-90. These amounts were added to the petitioner’s income for the respective years on the ground that the trusts were revokable. In each of the years the beneficiary under each trust received the income and returned it as his taxable income. The creator of the trust did not. The Revenue Acts of 3924 and 1926 each contain the following provisions: “Sec. 219. * * (g) Where the grantor of a trust has, at any time during the taxable year, either alone or in conjunction with any person not a beneficiary of the trust, the power to revest in himself title to any part of the corpus of the trust, then the income of such part of the trust for such taxable year shall be included in computing the net income of the grantor. “(h) Where any part of the income of a trust may, in the discretion of the grantor of the trust, either alone or in conjunction with any person not a beneficiary of the trust, be distributed to the grantor or be held or accumulated for future distribution to him, or where any part of the income of a trust is or may be applied to the payment of premiums upon policies of insurance on the life of the grantor (except policies of insurance irrevocably payable for the purposes and in the manner specified in paragraph (10) of subdivision (a) of section 214), such part of the income of the trust shall be included in computing the net income of the grantor.” In reaching the conclusion that,the income of each of the four trusts was properly taxable to their creator, the Board of Tax Appeals held: (1) That the words of the statute, “or in conjunction with any person not a beneficiary of the trust,” meant the same as though it read “in conjunction with any person or persons not a beneficiary or beneficiaries of the trust” (U. S. 0. title c. 1, § 1 [1 USCA § 1]); (2) that, while the two sons, Reginald and Cecil, named as members of the committee, were beneficiaries, Emelius W. Smith, the husband, 'and James Adams, were not, and therefore the creator of the trust had the power, in 'conjunction with Emelius W. Smith and James Adams, at anytime to revoke or change the trusts; and (3) that the statute, as thus construed and applied to the facts in this case, was constitutional. The Board also took the view that the word “beneficiary” in section 219 (g) has reference “to a present beneficiary of a trust, not to one who has only a remote possibility of becoming a beneficiary in the future,” and because the likelihood of Emelius W. Smith, the husband, ever taking a vested interest under the trust was remote, he was not a beneficiary. It also .expressed the view that Emeli-us took, if at all, by virtue of the statute of distribution of Massachusetts. This manifestly is not so. The statute of distribution of Massachusetts, is made use of in the declaration of trust simply to define a class of persons, of which Emelius would be one, to whom the trust property would go upon the happening of a contingency named in the trust instrument. Then again in the trust •created for Reginald Heber Smith, Cecil H. Smith, one of the committee, is not a present beneficiary of that trust. His interest under that trust is conditional upon Reginald’s dying without issue surviving him, and his interest therein.may be greater or less, depending upon whether the other two brothers are then alive.. It is true that the possible vesting of his interest under that trust is less remote than that of Emelius, the father, but it is nevertheless contingent, not a present or fixed one. And .the same is true with reference to the interest of Reginald in the trust in which Cecil is the direct and immediate beneficiary. And, if the reasoning of the Board of Tax Appeals is correct — that the Revenue Act “has reference to a present beneficiary of a trust” — then neither Reginald, Cecil, nor the father, Emelius, would be a beneficiary under the other trusts created for Harold C. Smith or Kendall K. Smith, for their interests under each of those trusts are contingent. It would seem that Congress did not intend, by the use of the term “beneficiary” in section 219(g) only a beneficiary having a present vested interest, but intended to include within that term a beneficiary or beneficiaries having contingent interests as well as those haying present or vested ones. Undoubtedly Congress could have drawn a line between beneficiaries holding vested and contingent interests, or between those having contingent interests based on their respective degrees of remoteness, but it has done neither of these things. It is therefore far more reasonable to conclude that by the word “beneficiary” Congress intended to include persons or classes of persons designated, in the particular trust under consideration, entitled to take present or contingent interests thereunder. If this is the correct construction and meaning of the Revenue Acts (and we think it is), Emelius is a beneficiary, and, aside from the creator of the trust, there is no member of the committee who is not a beneficiary except Mr. Adams. In this situation, under the terms of the power reserved, these two (the creator of the trust and Mr. Adams) c.ould not exercise it, and the creator of the trust, within the language of the statute, would not have the power to revoke the trust. As the income was not taxable to Mrs. Smith within the meaning of the Revenue Acts, it is unnecessary to pass upon their constitutionality. The decision of the Board of Tax Appeals is reversed, and the case is remanded to that Board for further proceedings not inconsistent with this opinion. Question: What forum heard this case immediately before the case came to the court of appeals? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Court of Customs & Patent Appeals H. Court of Claims I. Court of Military Appeals J. Tax Court or Tax Board K. Administrative law judge L. U.S. Supreme Court (remand) M. Special DC court (not the US District Court for DC) N. Earlier appeals court panel O. Other P. Not ascertained Answer:

sc_petitioner

027

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them. Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. UNITED STATES v. PLESHA et al. No. 39. Argued November 8, 1956. Decided January 14, 1957. Lester S. Jayson argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Doub, Samuel D. Slade and David A. Turner. Lawrence A. Schei argued the cause for respondents. With him on the brief was Philip C. Wilkins. ' Mr. Justice Black delivered the opinion of the Court. Article IV of the Soldiers’ and Sailors’ Civil Relief Act of 1940 provided a plan under which men inducted into the armed forces would continue to receive the protection of previously purchased commercial life insurance while in the service without paying premiums. Insurance companies were required to keep the policies of servicemen who elected to come under the Act in effect until one year after their military service ended even though these men made no further payments. The Government assured the insurance companies that the premiums would eventually be paid by giving its promissory certificates to the companies. The respondents, Plesha, Mabbutt, and Kern, who entered the Army in 1941, had previously purchased commercial life insurance. They invoked the benefits of the Act by filing proper applications with their companies and the Veterans’ Administration. They made no further payment of premiums but the policies were kept in effect by government certificates. After leaving the Army, they were notified by the Veterans’ Administration that unless they paid back premiums with interest their policies would lapse. Respondents allowed the policies to lapse and the Government paid the insuring companies the back premiums after first deducting the cash surrender value of the policies. In this case, the Government contends that it has a legal right to be reimbursed for these payments. The District Court agreed with this contention. 123 F. Supp. 593. The Court of Appeals reversed, holding servicemen had no statutory or contractual obligation to the Government to repay the premiums. 227 F. 2d 624. We affirm the judgment below because the language of the 1940 Act, its legislative history and its administrative interpretation demonstrate that Congress intended that ex-soldiers would not have to reimburse the Government. 1. The Act. — As the Government concedes, the 1940 Act contained no express provision which required reimbursement for premiums paid by the Government on a lapsed policy. But significantly it did contain specific provisions to reduce any losses the Government might incur in administering the insurance plan by giving the Government certain other rights. Under § 408 the United States had a lien upon the policy from the time it came under the protection of the Act. When a soldier died the insurance company was authorized by § 409 to deduct unpaid premiums from the proceeds payable under the policy. If after leaving the service the insured desired to maintain his policy, § 410 required him to pay the unpaid premiums to the insurance company. If he chose not to pay these premiums, § 410 further provided that the policy would lapse. And if a policy lapsed, § 411 provided that the United States should be given credit for the policy’s cash surrender value as an offset against the Government’s promise to pay the back premiums. There was nothing that indicated that an ex-soldier had to reimburse the Government for any balance that it paid. 2. The legislative history. — The Government’s claim for reimbursement is refuted by the legislative history. Article IV of the 1940 Act substantially reenacted the insurance provisions of the Soldiers’ and Sailors’ Civil Relief Act of 1918 and had little independent legislative history. We agree with the Administrator of Veterans’ Affairs that this scant history “is of little, if any, help” in interpreting the 1940 Act. We must therefore examine the history of the 1918 bill. During the Senate Committee hearings on this bill, Senator Reed, who was the principal critic of its insurance provisions, interpreted them as permitting a soldier to let his policy lapse without any obligation to restore the premiums paid by the Government. He objected to the Government’s bearing any part of the cost and even suggested that the bill should be amended to authorize the Government to deduct the premiums from the soldier’s monthly pay. Professor John H. Wigmore, who as a major representing the Army had a dominant part in drafting the bill and presenting it to Congress, strongly objected to Senator Reed’s suggestions. Professor Wigmore pointed out that this benefit would be in keeping with the many new benefits which were being conferred on servicemen at that critical war period. When directly asked whether a soldier could be made to pay, he called attention to the fact that the Government had a lien on the policy and could recover the cash surrender value. He admitted, however, that the cash surrender value would not in all cases pay the entire amount of back premiums but predicted that the loss to the Government would be very slight. The Committee accepted Professor Wigmore’s position and reported the bill in the form he urged. The House Judiciary Committee made a comprehensive report on the 1918 bill. It referred to the insurance sections as providing a method for the Government to "carry” the premiums upon servicemen’s policies in private companies. The Committee recognized that carrying this insurance would cost the Government money, but expressed the hope that this burden would not be large because: “In the first place the Government only guarantees the payment of the premiums. If the soldier dies the insurance company will get its premiums out of the policy and the Government’s guaranty will not be called upon. If the soldier comes back from the war he will repay the premiums if he continues the policy, and if he lets the policy lapse the Government will be subrogated to his rights.” Thus, the Committee apparently thought that the Government must look to the cash surrender value to mitigate its loss where a policy was allowed to lapse. In 1942, the 1940 Act was amended to require ex-servicemen to reimburse the Government for back premiums paid by it on their lapsed policies. The Government contends that this 1942 Amendment was to clarify and reaffirm the meaning of the 1940 Act. However it appears that the Veterans’ Administration requested the 1942 Amendment to . . eliminate the possibility of requiring the Government to pay premiums on insurance which the insured does not intend to carry except during his period of active service . . . .” And during a hearing before the House Committee on Military Affairs a Veterans’ Administration representative testified, “[t]he insured is liable for all of the premiums of the $5,000 policy, the Government acting really as a guarantor. However, if there is a default [by the ex-serviceman], there would not be any liability for the whole amount, in excess of the cash [surrender] value under present construction of existing law.” If the legislative history of the 1942 Act indicates anything, it is that Congress thought that it was changing the law by changing the language of the Act. 3. The administrative interpretation. — The administration of the 1918 and 1940 Acts does not support the Government’s claim for reimbursement. The Government relies on the fact that a few soldiers who invoked the protection of the 1918 Act and allowed their policies to lapse were later required to reimburse it. However these collections were so sporadic and so insignificant that instead of supporting the Government’s position they contradict it. Under the 1940 Act, § 401 (2) required the Veterans’ Administration to issue notices explaining the Act. None of the notices promulgated prior to 1943 suggested any duty on the part of servicemen to reimburse the Government. But public statements of Veterans’ Administration officials gave the Act a squarely contrary construction. Section 401 (1) required soldiers seeking the benefit of the 1940 Act to file applications on forms prepared in accordance with the regulations of the Veterans’ Administration. The respondents here filed such an application which included within its terms the following agreement: “In consideration hereof, I hereby consent and agree that the United States shall be protected in the amount of any premiums and interest guaranteed on the above numbered policy in the event of its maturity as a claim, or out of the cash surrender value of the policy, at the expiration of the period of protection under the Act.” This contract, prepared by the Veterans’ Administration, contained no suggestion to soldiers that they would be expected to reimburse the Government for its payment of premiums if they permitted their policies to lapse. Had the Veterans’ Administration construed the Act as imposing such a liability on soldiers, we think it would have mentioned the obligation in the contract that it asked them to sign. Congress passed the 1918 and 1940 Acts at a time when men were being called from civilian life into the Army in the face of impending war. Great efforts were made to ease the burden on these men and their dependents. Among these, the Government generously provided family allotments, disability payments, and low-cost government insurance. Similarly the provisions under consideration here were adopted to assist soldiers who had bought insurance before entering the Army and did not require them to reimburse the Government. Affirmed. Mr. Justice Frankfurter, Mr. Justice Burton and Mr. Justice Harlan dissent for the reasons given by Circuit Judge Huxman in United States v. Hendler, 225 F. 2d 106. 54 Stat. 1183, 50 U. S. C. App. (1940 ed.) § 540. Plesha brought suit against the Government to recover a dividend declared on his National Service Life Insurance policy. The Government attempted to offset the amount it had paid on his commercial insurance. The other respondents intervened to litigate the same basic issue. We granted certiorari, 350 U. S. 1013, because this holding was in conflict with United States v. Hendler, 225 F. 2d 106. The Government contends that such an obligation should be implied from the Act and from general principles of the common law — particularly the doctrine that a guarantor who pays the debt of another is entitled to reimbursement. In regard to the common-law right of a guarantor, we are not persuaded from the record that the insured servicemen were indebted to the insurance companies for the wartime premiums either under the Act or the terms of their policies. Where no debt exists there is no basis for applying the common-law rules of guaranty. In any event, we would be very hesitant to infer a right to reimbursement from these servicemen in favor of the Government based on a common-law doctrine which was not referred to in the Act or in its congressional history. Cf. United States v. Gilman, 347 U. S. 507. 40 Stat. 444. “The only change in this article [insurance] relates to method of administration.” H. R. Rep. No. 3001, 76th Cong., 3d Sess. 4. Decisions of the Administrator of Veterans’ Affairs, No. 742 (April 1947), Vol. 1, Supp. 1, pp. 93, 98. The Government relies here on a discussion between Congressmen Voorhis and Arends during the House debates on the 1940 Act. 86 Cong. Rec., Part 12, 13132-13133. Apparently these gentlemen were not familiar with the specific provisions of the Act. This is not surprising since neither was a sponsor of the measure. Moreover, since the 1940 Act was a substantial reenactment of the 1918 Act, there were no committee hearings to inform congressmen of the precise scope and effect of the Act. As neither Mr. Voorhis nor Mr. Arends were lawyers, it cannot be assumed that they were aware of the technical common-law theory of guaranty which the Government relies on here. We think the Veterans’ Administrator was correct in concluding that the legislative history, which includes the Voorhis-Arends colloquy, “is of little, if any, help” to the Government’s claim. See Boone v. Lightner, 319 U. S. 561, 565. “If he comes back and wants to keep his insurance in effect, I take it the proposition here is that he must then pay the Government; but if he does not want to keep this policy in effect he still has the option to walk away and leave it.” Hearings before the Subcommittee of the Senate Committee on the Judiciary on S. 2859 and H. It. 6361, 65th Cong., 1st and 2d Sess. 135. In closing the argument over requiring the soldiers to pay, the following colloquy took place between Major Wigmore and Senator Reed: “Senator Reed: . . . Now, do you think that would be undesirable, Major, or do you think it would be greatly to be preferred that the Government just carry the risk? “Maj. Wigmore: I can only speak for myself in that respect; but, speaking from my own judgment, it would seem to me that that is going further than this Nation ought to wish to go against its soldiers and sailors. . . . “Senator Reed: ... You really think it is desirable that the Government should carry it, regardless of the attempt to reimburse itself out of the man's pay? “Maj. Wigmore: I only want to point out the fact that the Government, in the war-risk insurance bill . . . has offered to give Government insurance to soldiers and sailors at a rate of, I think, $8 a thousand, which I am told means that the Government pays the entire expenses of administration of that insurance .... They have therefore contributed that already to soldiers and sailors in providing insurance. If the Government has gone that far, it seems to me it would be inconsistent with that, in principle, not to go this far.” Id., at 137-138. H. R. Rep. No. 181, 65th Cong., 1st Sess. Id., at 8. “The amount paid by the United States to an insurer on account of applications approved under the provisions of this article, as amended, shall become a debt due to the United States by the insured on whose account payment was made . . . .” (Emphasis added.) 56 Stat. 775. Letter of the Veterans’ Administrator to the President of the Senate, appended to S. Rep. No. 716, 77th Cong., 1st Sess. 6. Hearings before the House Committee on Military Affairs on H. R. 7029, 77th Cong., 2d Sess. 38. Even the Veterans’ Administration stated in a formal decision in 1947 that: “Fairness compels admission that the legislative history of the 1942 act reflects a probable belief, though an incorrect one, on the part of the Seventy-seventh Congress that the 1940 act (passed by the Seventy-sixth Congress) had been construed as not giving rise to a debt owing by the insured to the Government upon the latter’s payment to the insurer of the amount by which the premiums with interest exceeded the cash surrender value.” Decisions of the Administrator of Veterans’ Affairs, No. 742 (April 1947), Vol. 1, Supp. 1, pp. 93, 103. According to the Government’s figures, 7,745 policies were brought within the protection of the 1918 Act; 476 of these policies were allowed to lapse. The total amount of back premiums paid by the Government on these policies was less than $20,000 or approximately $42 per policy, showing that Major Wigmore’s prophecy as to the smallness of the Government’s losses was a correct one. The Government sought reimbursement on only 10 of these 476 lapsed policies and total collections were $484.42. Records submitted show that all collections were obtained from soldiers who were still in the Army at the time they were called on to pay. The demands for payment went through regular military channels. Apparently the first time the Veterans’ Administration ever officially interpreted the Act as authorizing the Government to be reimbursed for its payment of premiums on lapsed policies was in Administrator’s Decision No. 513, March 1, 1943. This decision held that the Government’s agreement to carry policies under the 1940 Act was a “gratuitous assumption of liability” which had been retroactively changed by the 1942 Amendment. Decisions of the Administrator of Veterans’ Affairs, No. 513 (March 1943), Vol. 1, 781. However we agree with the view expressed in a later Administrator’s Decision, No. 742, that a serviceman’s liability under the 1940 Act must be determined under it and not under the 1942 Act. And see Lynch v. United States, 292 U. S. 571. Less than two months after the 1940 Act was passed, the Director of Insurance for the Veterans’ Administration replying to a telegraphic inquiry stated that “No provision is made in the Act for collecting from insured the amount paid by Government to insurer.” Shortly afterwards the Director made a similar statement to an insurance company representative. In the meantime the Assistant Director made the following statement for publication in an insurance journal: “There is no provision in the Act at this time for collecting from the insured the amount that the premium with interest may exceed the cash surrender value at the time of termination.” This same interpretation was given by the Assistant Director when testifying before the House Committee on Military Affairs in favor of the 1942 Amendment. See text at n. 14, supra. Question: Who is the petitioner of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:

songer_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. MURARKA et al. v. BACHRACK BROS., Inc. No. 262, Docket 22960. United States Court of Appeals, Second Circuit. Argued June 15, 16, 1954. Decided Aug. 3, 1954. Clarence P. Greer, New York City (Morris Einhorn, New York City, and Harold L. Flint, Great Neck, N. Y., on the brief), for plaintiffs-appellees-appel-lants, R. Murarka, R. F. Murarka, Kas-turi Bai, C. R. Agarwal, Mahanlal and Fatehchand, d/b/a Fatehchand Madan-gopol. Benjamin Adler, New York City, for defendant - appellant - appellee, Bachrack Bros., Inc. Before SWAN, MEDINA and HARLAN, Circuit Judges. HARLAN, Circuit Judge. The District Court in an action tried without a jury has held the defendant liable for breach of contract in the amount of $46,500, together with interest. The plaintiffs appeal, contending that the Court applied the wrong rule of damages and that their recovery should have been greater. The defendant cross appeals, arguing that the Court had no jurisdiction of the action, and that in any event it was not guilty of breach because of the plaintiffs’ failure to perform their obligations under the contract. The facts surrounding the transaction, as found by the District Court are essentially these: On December 23, 1946 the plaintiffs, a partnership doing business in Delhi, India, contracted to purchase from the defendant, a New York corporation, 10,000 war surplus cargo rayon parachutes at $7.00 each, plus a commission for plaintiffs’ purchasing agent of 35 cents on each chute. The parachutes were to be shipped by steamer from New York and were deliverable •F.A.S. dockside New York upon receipt from the plaintiffs of irrevocable letters of credit covering the purchase price, freight, and insurance. On January 7 and 8, 1947 two letters ,of credit, one for $64,000 and the other for $30,000, expiring February 10, 1947, were duly furnished by plaintiffs. On February 5, the defendant notified the pláintiffs that space had been procured for shipment of the parachutes on the “Steel Advocate” sailing February 15, 1947, and requested extension of the letters of credit for another 30 days. Actually the plaintiffs on February 3 had already set in motion extensions to February 28, which the defendant accepted, informing the plaintiffs that the parachutes would be shipped by the SS “Steel Director” on February 24. Following this, the defendant’s shipping agents put in process the necessary papers for shipping the parachutes on the SS “Steel Director” to the plaintiffs at Delhi, via Karachi. However, on February 25 the defendant, without notice to the plaintiffs, sold the parachutes to another Indian concern at an advanced price, and shipped them to that concern, via Bombay, on the “Steel Director,” ,whose sailing date had been postponed to March 2. On March 4 the defendant received from plaintiffs’ New York bank an extension of the $64,000 letter of credit to March 15, which the defendant returned to the plaintiffs on March 5. On these facts the Trial Court found that the defendant had breached its contract, and that the only question was one of damages. The defendant seeks to avoid the consequences of what it did on two grounds which we shall consider before coming to the plaintiffs’ contention that they were entitled to larger damages. The first ground is that the District Court had no jurisdiction of the action under 62 Stat. 930, 28 U.S.C.A. § 1332(a) (2) giving the Federal Courts jurisdiction over civil actions between “Citizens of a State, and foreign states or citizens or subjects thereof”, where the jurisdictional minimum amount is involved, since there was a failure of proof that the plaintiffs were “citizens or subjects” of a foreign state. Initially the complaint, which was filed on July 14, 1947, alleged, and the plaintiffs sought to prove, merely that each of them was “an alien and a subject of Great Britain,” and the District Court on December 1, 1952, dismissed the complaint without prejudice, for failure of such proof. Thereafter, on December 29, 1952, the Court granted the plaintiffs’ 'motion to reopen the case on the issue of jurisdiction, and on January 14, 1953, after the taking of additional evidence, the Court granted plaintiffs’ motion to amend their complaint so as to allege that “each plaintiff is an alien and a British Indian citizen.” After a trial on the merits in October 1953, the Court found that “each plaintiff was an alien, British Indian citizen and subject of Great Britain.’’ It is not altogether clear whether the finding that each plaintiff was a “British Indian citizen” was regarded by the Court as an alternative basis for jurisdiction, rather than merely the foundation for the finding that each was a “subject of Great Britain.” Be that as it may, the status of India at the time the complaint was filed (July 14, 1947), and certainly at the time of the amendment of the complaint (January 14, 1953), was such that in our opinion, the finding that each plaintiff was a “British Indian citizen,” if supported by the evidence, was a fully adequate basis for jurisdiction, even though in our view the evidence did not warrant the finding that each plaintiff was a “subject of Great Britain.” As to the latter finding, it is sufficient to say that British law was neither pleaded nor proved, see Chicago Pneumatic Tool Co. v. Ziegler, 3 Cir., 1945,151 F.2d 784, 793; United States ex rel. Zdunic v. Uhl, 2 Cir., 1943, 137 F.2d 858, 861; Iafrate v. Compagnie Generale Transatlantique, D. C.S.D.N.Y.1952, 106 F.Supp. 619, 622, that satisfactory evidence of the place of birth of the several plaintiffs was lacking, and that no other evidence that any of the plaintiffs was a British subject as a result of naturalization or otherwise was offered at the trial. Our first inquiry must be as to the status of India at the time of the filing of the complaint and thereafter. We may take judicial notice of the essential historical facts. The long standing aspirations of both Hindus and Moslems in India to achieve political independence from Great Britain — seriously embarrassed by the internal divisions between them — are a matter of common knowledge. Following the end of World War II, the British Government made various efforts to bring the contending factions together. The report of the Cabinet (Cripps) Mission issued on May 16,1946, recommended the formation of an interim government to work out a constitution acceptable to both major political parties, looking toward the political separation of India from Great Britain. An Interim Government was formed on September 2, 1946. By February 20, 1947, it was apparent that the Interim Government was failing to achieve the hoped for unity between Hindus and Moslems, but the British Government nevertheless on that date announced its firm intention to transfer power to some Indian authority by June 1948. See Statement on Indian Policy delivered February 20, 1947, to Parliament by the Prime Minister. The continued refusal of the Moslem political leaders to participate in the effort of the Constituent Assembly to draft a constitution led to the announcement by the British Government on June 3, 1947, that the Moslem areas of India would be given an opportunity to determine, by referendum, whether they would participate in the labors of the Assembly or whether they would work out their own constitution and become an independent nation separate from the rest of India. See Statement of Indian Policy delivered June 3, 1947, to Parliament by the Prime Minister. Finally, on July 18, 1947, the British Parliament enacted the Indian Independence Act (10 & 11 Geo. VI, c. 30, Public General Acts of 1947, Vol. 1, p. 236) under which power would be transferred to two new Dominions — Pakistan (Moslem)* and the Union of India (Hindu), which included Delhi where the plaintiffs were engaged in business — on August 15,1947. On that date the Union of India became a self-governing member of the British Commonwealth of Nations. On November 26, 1949, the Union of India adopted a Constitution, effective January 26, 1950, under which it became a sovereign republic, but elected to continue as a member of the Commonwealth of Nations. It appears from- a State Department communication which was before the lower Court that although our- Government did not formally recognize India as an independent nation until August 15, 1947, it took steps to recognize the Interim Government of India after its formation on September 2, 1946, by receiving in February 1947 India’s first ambassador, whose credentials were signed by the British Crown, and accrediting the first United States ambassador to India in April 1947. The parties have not directed our attention to any further act of recognition which occurred after the exchange of ambassadors, and we view the statement in the State Department communication to the effect that India did not become independent until August 15, 1947, as being rather in the nature of a legal conclusion Which adds little more to the significance of the already existing relations between that Government and our own. Whether the position of India be viewed as of July 14, 1947, when the complaint was filed, or as of January 14, 1953, when the complaint was amended, we think that at both times its international status was such as to give Indian citizens the right to sue in our Federal Courts. True, as of July 14, 1947 our Government had not yet given India'-de jure recognition, but its exchange of ambassadors in February and April 1947 certainly amounted at least to de. facto recognition, if not more. To all intents and purposes, these acts constituted a full recognition of the Interim Government of India at a time when India’s ties with Great Britain were in the process of withering away (see U. S: Foreign Relations 1913, p. 102), which was followed a month later, when partition took place between India and Pakistan, by the final severance of India’s status as a part of the British Empire. The significance of these events is not lessened by the fact that the credentials of the first Indian Ambassador to the United States were signed by the British Crown. We think that in its setting that act is more properly to be regarded as a mere expediency rather than as a significant act of sovereignty in the usual sense of that term. Unless form rather than substance is to govern, we think that in every substantial sense by the time this complaint was filed India had become an independent international entity and was so recognized by the United States. If we are to look only to formalities, it is beyond dispute that India became fully independent on August 15, 1947, when its status as a part of the British Empire finally ended. This was one month after the complaint was filed and five and a half years before the complaint was amended on January 14, 1953. Had the complaint, as amended, been first filed on that date, there would have been no room for argument but that India had long since been recognized by the United States as an independent power in every sense of the term. Since the six-year New York statute of limitations, N.Y.Civil Practice Act § 48(1), which governed this cause of action, had not run at the date of the amendment — the defendant’s breach of the contract having occurred on February 25, 1947 — it is clear that the complaint, as amended, could have been filed originally at that time. And in view of the fact that the dismissal of the original complaint was “without prejudice,” rather than “with leave to amend,” we would in any event be disposed to treat the amendment as in effect the filing of a supplemental complaint on January 14,1953, at which time India was unquestionably an independent foreign power fully recognized by the United States. F.R.C.P. 15(d), 28 U.S. C. A.; see Genuth v. National Biscuit Co., D. C.S.D.N.Y.1948, 81 F.Supp. 213, 214, appeal dismissed for lack of jurisdiction, 2 Cir., 1949, 177 F.2d 962. The remaining question as to jurisdiction relates to the sufficiency of the proof that the plaintiffs were citizens of India. This proof consisted of a certificate of the Indian Vice Consul at New York that the plaintiffs were “British India Citizens in July 1947 and are now Indian Citizens.” The issuance of this certificate was authorized by the Ministry of External Affairs of India, which in turn acted upon a certificate of the District Magistrate at Delhi, India. Clearly this evidence, if competent, was sufficient to prove the Indian citizenship of the plaintiffs. And we think the evidence was competent. What was sought to be proved was not a foreign record, but a determination of the Indian Government, that the plaintiffs were Indian citizens. The requirements for proof of foreign public records contained in 28 U.S.C.A. § 1741 and §§ 329 and 398 of the New York Civil Practice Act have no application here. The Consular certificate was properly authenticated by the Vice Consul who made it, who also testified that he had acted under instructions from his Government. And the plaintiffs are entitled to the presumption of regularity which has long attached to the procedures of foreign governments and agencies. See United States v. King, 1845, 3 How. 773, 44 U.S. 773, 784-786, 11 L.Ed. 824; Boissonnas v. Acheson, D.C.S.D.N.Y.1951, 101 F. Supp. 138,153. It is the undoubted right of each country to determine who are its nationals, and it seems to be general international usage that such a determination will usually be accepted by other nations. See Convention on Certain Questions Relating to the Conflict of Nationality Laws, Signed at the Hague, April 12, 1930, Arts. 1 and 2; Briggs, The Law of Nations, pp. 458-60 (2d ed. 1952); Dept, of State Bull. XXII, No. 559, pp. 433-441 (March 20, 1950); Stoeck v. Public Trustee, 2 Ch. 67 (1921). While neither side has given us a judicial decision involving such proof of foreign citizenship as was made here, we entertain no doubt on principle that the proof was competent. Cf. Decision No. 1 of British-Mexican Claims Commission in Great Britain (Lynch Claim) v. Mexico, Decisions and Opinions of the Commissioners, October 5, 1929 to February 15,1930, pp. 20-23. Our statutes provide for the issuance of certificates of United States nationality to others than naturalized citizens, by the Secretary: of State, or by officials to whom he has dele gated such power, for use in foreign judicial or administrative proceedings, 8 U.S.C.A. §§ 1502, 1104, and we see no reason why our courts should not give presumptive credit to similar certificates of foreign governments. The defendant has cast no cloud on the validity or accuracy of the consular certificate itself. We conclude that the District Court had jurisdiction over this action. The defendant claims that its sale of the parachutes to the other Indian concern was not a breach — or at least was an excusable breach — because of the plaintiffs’ alleged anticipatory breach of the contract. The alleged breach on the part of the plaintiffs is their failure to procure an extension of either of the letters of credit until after the defendant had sold the parachutes to the other Indian concern. We see no merit whatever to this contention. The contract, as evidenced by the defendant’s own writings, called for “delivery at once, on receipt of letter of credit * * * ” While the defendant sought to prove what would amount to an oral modification of the contract to encompass an obligation by the plaintiff^ to keep on extending the letters of credit until shipment was made by the defendant, the lower Court made no such finding, and the record does not support any such alleged modification of the written understandings. The letters of credit were furnished on January 7 and 8, 1947, and when it developed that shipment would not be made before their expiration date, the plaintiffs on their own initiative procured extensions of the letters to February 28, which the defendant accepted. The defendant, without any notice to plaintiffs, sold the parachutes to others on February 25 — while the letters of credit were still in full force. We find nothing to support the defendant’s professions that it sold to others because of its concern lest the letters of credit be not extended until shipment could be made. Indeed, both the letters of credit and the plaintiffs expressly authorized partial shipments if full shipment could not be effected at one time, and the defendant received notice of extension of the larger letter of credit after the parachutes, without the plaintiffs’ knowledge, had been sold by it. In light of these facts, and the .evidence of the plaintiffs’ impatience at the delays in shipment, the contention as to the plaintiffs’ anticipatory repudiation of the contract is wholly implausible. We hold that the lower Court’s finding that “there is no question of the defendant’s breach of the contract” is fully supported by the evidence. We come now to the plaintiffs’ contention that the District Court applied the wrong rule of damages. The Court found that prior to February 25, 1947, the date of the defendant’s breach, the plaintiffs had contracted to sell to four Indian concerns substantially all of the parachutes which they had purchased from the defendant. The Court further found that subsequent to the defendant's breach the plaintiffs made continuing efforts to purchase similar parachutes but were unsuccessful because none were available on the American market. Both findings are supported by the evidence. On the basis of these findings, plaintiffs contend that they were entitled to recover their loss of profits on the resale, and n*>t merely the difference between the price of the parachutes under their contract with the defendant and the price at which the defendant resold them. We think the plaintiffs are right. There is no dispute but that the New York rules of damage apply, this being a diversity case. Emerman v. Cohen, 2 Cir., 1952, 199 F.2d 857, 858. In an action for failure to deliver goods the New York rules are these: If there is an available market for the goods in question, the measure of damages is the difference between the contract price and the market price, unless there are “special circumstances showing proximate damages of a greater amount” (the so-called “special damage” rule). N.Y.Personal Property Law, McK.Consol.Laws, c. 41, § 148(3). And in such instance the price received by a defaulting seller who has resold may not be used as evidence of market value — Latimer v. Burrows, 1900, 163 N.Y. 7, 57 N.E. 95, — in contrast to the situation where the buyer is in default, in which case the seller’s resale price may be so used. See N.Y.Personal Property Law, §§ 144 and 145; Van Brocklen v. Smeallie, 1893, 140 N.Y. 70, 35 N.E. 415. But where, as here, there is no available market for the goods in question, the measure of damages “is the loss directly and naturally resulting in the ordinary course of events from the seller’s breach of contract”, N.Y.Personal Property Law, § 148(2); and it is well settled that such loss may be measured by the net profits, if not speculative, which the buyer would have earned had the seller performed. Orester v. Dayton Rubber Mfg. Co., 1920, 228 N.Y. 134,126 N.E. 510; Parrott v. Allison, 2 Cir., 1944, 145 F.2d 415; Emerman v. Cohen, supra. We think this was the rule of damages that should have been applied in this instance, since the Court found that there was no available market for parachutes, and the plaintiffs made specific proof of their loss of profits under their contracts of resale. The opinion of the District Court shows that it refused to allow the plaintiffs their loss of profits because the defendant had no notice of the plaintiffs’ actual or contemplated resale contracts prior to the time it contracted with the plaintiffs. But that principle, exemplified by Czarnikow-Rionda Co. v. Federal Sugar Refining Co., 1930, 255 N.Y. 33, 173 N.E. 913, 88 A.L.R. 1426, on which the lower Court relied, is applicable only in a situation where there is an available market for the goods in question, and the suing party is seeking special damages under § 148(3). Here the plaintiffs’ loss of profits constituted general damages recoverable under § 148(2) because there was no available market. See Orester v. Dayton etc., supra, 228 N.Y. at pages 137-139, 126 N.E. 510. Moreover, the Court was also in error in basing its calculation of damages upon the price received by the defendant on its wrongful resale. Where the § 148(3) “available market” or “special damage” rule applies, the seller’s resale price may not be taken into account. See Latimer v. Burrows, supra. Where the § 148(2) “no available market” rule applies, the seller’s resale price may be considered only in a situation where the buyer’s loss of profits is too speculative and there is no other way of measuring damages. See Murphy v. Lifschitz, 1944, 183 Misc. 575, 49 N.Y.S.2d 439, affirmed 1945, 294 N.Y. 892, 63 N.E.2d 26. Here the plaintiffs’ loss of profits was not speculative. We think it evident from Judge Murphy’s opinion that his use of the defendant’s resale price was not intended as a repudiation of his finding that there was no available market for parachutes. Bather, it seems to have resulted from the mistaken view that § 148 allowed only two measures of damage — market price less contract price and special damages— and that since there was no showing either of an available market or that defendant had notice of possible special damage, the only alternative was to use the defendant’s resale price as an element in measuring recovery. But as we have shown, under the circumstances present here § 148(2) provides a third measure, i. e., loss of profits. We regard as wholly untenable the defendant’s effort to impugn the bona fides of the plaintiffs’ resale contracts. Judge Murphy, who was made fully aware of the alleged irregularities in the depositions and the supposedly “incredible” circumstances attending the making of these resale contracts, found otherwise, and we are presented with nothing that moves us to disturb his finding. We must reverse on the plaintiffs’ appeal and remand the case to the District Court for recomputation of the plaintiffs’ damages in accordance with this opinion. On the defendant’s cross appeal, we affirm. . Italics throughout this opinion have been supplied. . Favoring the view that the Court intended “British Indian citizen” as affording an independent ground of jurisdiction — i. e., that the plaintiffs were citizens of what was formerly known as British India — is the fact that plaintiffs’ counsel after first proposing to amend the complaint so as to allege that “each plaintiff is an alien and a Britain [sic] Indian citizen and a subject of Great Britain,” then stated that he wished to “omit the words, ‘and a subject of Great Britain’; because I am not sure of that status.” And further, the Trial Court found: “At the time the complaint was filed the Government of India was an interim one recognized as such, dy the United States with an ambassador to Washington whose credentials were signed by His Majesty, Bung George the Sixth of the United Kingdom.”, . See British Nationality and Status of Aliens Act, 1914 (4 & 5 Geo. V, c. 3.7), 18 Chitty’s Statutes, p. 9 (6th ed., 1914-1916), as amended in 1938, 3922,1933 and 1943; for the status of subjects of the native Indian rulers, as distinguished from citizens of British India, see Jones, British Nationality Law and Practice, pp. 274, f. n. 1, 291 (1947), and Jones, Who Are British Protected Persons?, XXII British Year Book of International Law, pp. 322 et seq. (1945). Since the defendant objected to our considering the certificate of the British Consul in New Xork, which plaintiffs’ counsel tendered at the oral argument of this appeal, to the effect that plaintiffs were British subjects on July 14, 1947, we have paid no attention to that certificate. . The question as to whether plaintiffs’ loss of profits under their contracts for the resale of 8750 parachutes is a fair measure of their loss of profits on the full lot of 10,000 parachutes will be a matter for the District Court upon the recom-putation of damages. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:

songer_usc2

49

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 49. 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 ex rel. CITY OF LOS ANGELES v. INTERSTATE COMMERCE COMMISSION. Court of Appeals of District of Columbia. Submitted January 8, 1929. Decided February 25, 1929. No. 4863. Edwin C. Blanchard, of Washington, D. C., and Max Thelen, of San Francisco, Cal., for appellant. Daniel W. Knowlton, of Washington, D. C., for appellee. Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices. Judgment reversed 50 S Ct. 53, 74 L. Ed. —. VAN ORSDEL, Associate Justice. The city of Los Angeles, Cal., a municipal corporation, filed a petition for mandamus in the Supreme Court of the District of Columbia to compel defendant, the Interstate Commerce Commission, to make an order requiring the Southern Pacific, the Atchison, Topeka & Santa Fé, and the Los Angeles & Salt Lake Railroad Companies to construct, maintain, and operate, a union passenger station in the city of'Los Angeles, at a point near what is known as the Plaza. It appears that in 1921 the Railroad Commission of California, in a proceeding before it, ordered the carriers named to file plans for the erection of a union station at the point above designated in the city of. Los Angeles, and in a subsequent order required the carriers to secure sufficient land for the construction of the station and terminal, to submit plans therefor, and, upon approval by the commission, to proceed with the construction. The carriers appealed from the decision to the Supreme Court of California. Los Angeles & S. L. R. Co. v. Railroad Commission, 190 Cal. 214, 211 P. 460. The court reversed the order on the ground that the Transportation Act of 1920, 41 Stat. 456, had vested full authority over union depot facilities of interstate carriers by railroads in the Interstate Commerce Commission, divesting the state commission of jurisdiction in the premises. From this decision the state commission carried the ease to the Supreme Court of the United States. While the ease was there pending, the city of Los Angeles filed a complaint with the Interstate Commerce Commission praying the Commission to require the defendant carriers to construct and operate the union passenger station in question. During the pend-ency of this ease before the Commission, the Supreme Court rendered its opinion in Railroad Com. of Cal. v. Southern Pac. Co., 264 U. S. 331, 44 S. Ct. 376, 68 L. Ed. 713, hereafter for convenience referred to as the Los Angeles Case, in which the judgment of the Supreme Court of California (190 Cal. 214, 211 P. 460) was affirmed, the court holding, in substance, however, that defendant carriers could not be required to provide a union station and extend their terminal tracks until the Interstate Commerce Commission had acted under paragraphs 18 to 21 of section 402 of the Transportation Act (49 USCA § 1 (18-21). • The Commission then issued its report in the proceeding instituted by the City of Los Angeles, City of Los Angeles v. Los Angeles & S. L. R. Co., 100 I. C. C. 421, holding that it was powerless “to require carriers to construct union passenger stations under conditions such as are here present.” It, however, made findings in accordance with its interpret tation of the decision of the Supreme Court, to the effect that public convenience and necessity required such extensions and abandonments of lines and service and joint use of terminal tracks as would be necessary in the establishment and operation of a union passenger station at the point designated, and that the expense would not-impair the ability of the roads to perform their respective duties to the public. The Commission, however, refused to issue certificates as provided in the Transportation Act, but retained jurisdiction of the case, reserving the right to alter its findings in event that the plan evolved by the carriers or the state commission for the establishment of a union station might be materially different from that “here considered to be in the public interest.” The state commission reopened the ease, and on further hearing rendered a decision, with findings substantially identical with those made by the Interstate Commerce Commission, and in addition found that public convenience and necessity required the defendant carriers to construct a union passenger station at the point designated, with the terminal facilities incidental thereto, which in its opinion could be done at a cost of $10,-000,000. The state commission thereupon made an order requiring defendant carriers to carry out its findings when the Interstate Commerce Commission should promulgate an order authorizing the construction, extensions, and abandonments, as directed by the state commission. The city of Los Angeles and the state commission thereupon filed with the Interstate Commerce Commission petitions asking the Commission to issue certificates in accordance with the findings theretofore made by it, and to order said carriers to construct and thereafter operate the union passenger station in compliance with the plan announced by the state commission. The carriers filed answers opposing the relief sought. Evidence was taken, and the Interstate Commerce Commission, on May 8, 1928, rendered its report and order affirming the findings made in its earlier report with the finding that the report of the state commission is sufficiently supported in the record, and it accordingly issued certificates in conformity, with said findings. Los Angeles Passenger Terminal Case, 142 I. C. C. 489’. The -Commission, however, adhered to the decision reached in the earlier ease to the effect that it was not empowered to require the construction of a union passenger station, and denied the application in this particular. It was this decision which brought about the present suit, and, from the decision of the court below dismissing the petition, this' appeal is prosecuted. We think the Interstate Commerce Commission was in error in holding that it is without power under the Transportation Act to require the carriers in question to construct a union station. The purpose in the mind of Congress in vesting in the Commission the extensive control over interstate railways, set forth in the Transportation Act, is expressed in Dayton-Goose Creek Railway Co. v. United States, 263 U. S. 456, 478, 44 S. Ct. 169, 172 (68 L. Ed. 388, 33 A. L. R. 472), where the court said: “The new Act seeks affirmatively to build up a system of railways prepared to handie promptly all the interstate traffic of the country. It aims to give the owners of the railways an opportunity to earn enough to maintain their properties and equipment in such a state of efficiency that they can carry well this burden. To achieve this great purpose, it puts the railroad systems of the country more completely than.' ever under the fostering guardianship and' control of the Commission, which is to supervise their issue of securities, their car supply and distribution, their joint use of terminals, their construction of new lines', their abandonment of old lines, and by a proper division of joint rates, and by fixing adequate rates for interstate commerce, and in case of discrimination, for intrastate commerce, to secure a fair return upon the properties of the carriers engaged.” -This broad supervisory power, it is urged; does not extend to the requirement that an interstate carrier or system of carriers may be required by the Commission to install an interstate union station; but running throughout the act are provisions which authorize the Commission to impose most drastic limitations on a carrier’s control and use of its property in order to secure the convenience and welfare of the shipping and traveling public in interstate commerce. It specifically imposes upon the Commission the power and duty, when required by public convenience and necessity, to convert the passenger and freight station of one interstate carrier into a union station or depot. The inconsistency of granting this power without the analogous power of requiring a number of carriers converging at -a given point to erect, for the convenience of the traveling public and the carriers themselves, an interstate union station is pointed out in the Los Angeles Case, at page 344 of 264 U. S. (44 S. Ct. 378), where the court said: “This would be giving power to the Interstate' Commerce Commission to provide for a small and contracted union station of interstate carriers, limited to the terminals of one carrier, and would leave the larger and more important union stations of interstate carriers to the control of state commissions. We think, however, that means of control over installation of such new union stations for interstate carriers is given to the Interstate Commerce Commission in amended paragraphs (18 to 21) of section 402.” Under this construction of paragraphs 18 to 21, it is clear that an interstate carrier is not permitted to extend its line of railroad, or to construct a new line, or acquire a line of road or extension thereof, or engage in transportation over such line or lines, until it has procured from the Interstate Commerce Commission a certificate that public convenience requires it. Neither can a carrier abandon all or any portion of its line without a similar certificate. As was further said in the Los Angeles Case: “Such a certificate is, we think, neeessary in the construction of a new interstate union station, which involves a substantial and expensive extension of the main tracks or lines of interstate carriers who theretofore have maintained separate terminals. * * * Until the Interstate Commerce Commission shall have acted under paragraphs 18 to 21 of section 402 of the Transportation Act, the respondent railways cannot be required to provide a new interstate union station and to extend their main tracks thereto as ordered by the State Railroad Commission.” Following this suggestion, the Interstate Commerce Commission issued the following certificate: “It is hereby certified, that the present and future public convenience and necessity (1) require the construction by the Los Angeles & Salt Lake Railroad Company, the Southern Pacific Company, and the Atchison, Topeka & Santa Fé Railway Company, of extensions of their respective main lines of railroad in the City of Los Angeles, California, so as to reach and serve a union passenger station and terminal which they may construct in the Plaza district, pursuant to the order of the Railroad Commission of the State of California to that effect; (2) require the construction of the necessary extensions of their main lines, and permit the abandonment of such other portions of their main lines, as may be neeessary to provide for the rearrangement of passenger and freight routes incidental to the convenient and proper operation of such union passenger station and terminal; (3) permit the abandonment and operation of all passenger and freight train service, except incidental freight-train and freight-switching service, on the main line of the Southern Pacific on Alameda Street from College Street to east Fifteenth Street, inclusive, in the City of Los Angeles, California; and (4) require the use by any defendant steam carriers of so much of the terminal main-line track or tracks of any of the other defendant steam carriers in the City of Los Angeles, California, as may be incidental, and neeessary or convenient, to the proper operation of such union passenger station and terminal.” It will be observed that the Commission, in its certificate as to necessity and convenience, omits any certification to the fact “that the expense involved therein will not impair the ability of the carrier to perform its duty to the public.” This, however, we think is affirmatively implied in the certification as to necessity and convenience. Especially, in view of the findings of fact found by the Commission in its earlier decision, 100 I. C. C. 421, 459, 460, to the effect that the public convenience and necessity requires “the extension by defendants of their respective main lines of steam railroad in the City of Los Angeles, Calif., so as to reach and properly serve any union passenger station and terminal” at the point designated. Following these findings of fact, the Commission further found as follows: “That the extensions referred to in the preceding paragraph are reasonably required in the interest of the publie convenience and necessity, and that the expense involved therein will not impair the ability of defendants to perform their respective duties to the public.” In view of this express finding of fact by the Commission, the court would certainly not be justified in failing to determine the fundamental question of jurisdiction here involved merely upon the failure of the Commission to make an express certification on this point. The point at most is not jurisdictional, but incidental to the exercise of jurisdiction by the Commission. The question before us is not one involving direction of the Commission as to how it shall act, but merely the requirement that it take jurisdiction of the matter of establishing proper terminals and a union station at the point designated and proceed therein as required by law. Interstate Commerce Com. v. U. S. ex rel. Humbolt Steamship Co., 224 U. S. 474, 32 S. Ct. 556, 56 L. Ed. 849. We think the act clearly manifests the intention of Congress to give the Interstate Commerce Commission jurisdiction over the rearranging and extension of terminals and the establishment of union depots by converging interstate railroad lines, and to limit the jurisdiction of state commissions to matters purely intrastate and such exercise of police power as may be essential over interstate lines within the state. Paragraph 22 of section 402 (49 USCA § 1 (22) provides as follows: “The authority of the Commission conferred by paragraphs (18) to (21), both inclusive, shall not extend to the construction or abandonment of spur, industrial, team, switching, or side tracks, located or to be located wholly within one State, or all street, suburban, or interurban electric railways, which are not operated as a part or parts of a general steam railroad system of transportation.” The court in the Los Angeles Case at page 345 of 264 U. S. (44 S. Ct. 379) interpreted the above limitation upon the power of the Interstate Commerce Commission as follows: “This is a palpable distinction between the main tracks of an interstate carrier, and its spur, industrial, switching or side tracks, and shows the legislative intention to retain any substantial change in the main tracks within the control of the Interstate Commerce Commission. It may well be that a mere relocation of a main track of an interstate carrier which does not involve a real addition to, or abandonment of, main tracks and terminals, or a substantial change in destination, does not come within the paragraphs 18 to 21. One might, too, readily conceive of railroad crossings, or connections of interstate carriers in which the exercise by a state commission of the power to direct the construction of merely local union stations or terminals without extensions of main traeks and substantial capital outlay should be regarded as an ordinary exercise of the police power of the state for the public convenience and would not trench upon the power and supervision of the Interstate Commerce Commission in securing proper regulation of an interchange of interstate traffic or passengers.” We come now to the conceded facts as set forth in paragraph XVIII of the petition. The railroad terminal properties and track-age which would be used in carrying out the union depot plan, including the entire track-age along the Los Angeles river and nearly all of the land on which the union station is to be erected, are now owned by the three carriers here involved. The small portion of land still in private ownership is needed only for a proper approach to the main depot and for properly completing the project as planned. This land could be acquired, of course, by the carriers, either by purchase or by eminent domain under direction of the appropriate public authority. It thus appears that the whole project is such that under the act it has been removed from the jurisdiction of the state commission and placed within the jurisdiction of the Interstate Commerce Commission. If, in carrying out the project, necessity arises for the state to exercise its police power in the matter of protecting street crossings, etc., it would be merely incidental to the general scheme, co-operative with and not hostile to the jurisdiction of the Interstate Commerce Commission. The broad power conferred upon the Interstate Commerce Commission is set forth in paragraphs 3 and 4 of section 405 of the act (49 USCA § 3 (3, 4). Paragraph 4 empowers the Commission to regulate the terminal’ facilities of converging carriers to the extent of requiring an interchange of track-age by the different lines to facilitate the better operation and handling of freight and passengers. Paragraph 3 provides as follows: “All carriers, engaged in the transportation of passengers or property, subject to the provisions of this Act, shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines, and for the receiving, forwarding, and delivering of passengers or property to and from their several lines and those connecting therewith, and shall not discriminate in their rates, fares, or charges between such connecting lines, or unduly prejudice any such connecting line in the distribution of traffic that is not specifically routed by the shipper.” This section we think vests the Interstate Commerce Commission with almost unlimited power in the matter of establishing terminals and union stations for the proper interchange of traffic between the converging interstate railroad lines. The term “reasonable, proper, and equal facilities” is broad and comprehensive enough to include not only trackage but adequate station facilities. ■ The carriers, through counsel, challenge the constitutional power of Congress to vest th'e Interstate Commerce Commission with jurisdiction to order the construction and operation of a union passenger station as prayed for by the city of Los Angeles. This contention is based on decisions of the courts to the effect that the Commission may not order the carriers to perform a different service than that which they have undertaken to render. It is well established that, while public authority under legislative sanction and in the exercise of police power may require railroad companies to construct and operate union passenger stations, the facts tip on which such orders are based must be reasonable. In view of the facts in the instant case, the contention that the carriers cannot be required to extend their tracks to reach the proposed union station is without merit. The situation here disclosed is most reasonable and well within the jurisdiction of administrative authority. The three interstate carriers involved all enter the city of Los Angeles from the north, and pass under what is known as the North Broadway viaduct over the Los Angeles river. The main lines of the Southern Pacific and Santa Fé extend along the •west bank of the river, and the main line of the' Salt Lake Road runs along the east bank. The Santa Fé’s track runs directly across the site of the proposed terminal, the Southern Pacific track also extends across the site "along Alameda Street, and the Salt Lake’s branch line track extends directly across the river from the site. It will be observed that tb reach the terminal, instead of any material exténsion of trackage, it means merely a convenient readjustment of existing tracks. Prior to the enactment of the Transportation Act of 1920, the states in many instances, either by Constitution or statute, had vested jurisdiction in their Railroad Commissions to compel the construction of union stations. Railroad Commission of Alabama v. Alabama Northern Railway Co., 182 Ala. 357, 62 So. 749; Railroad Commission of Alabama v. Alabama Great Southern Railway Co., 185 Ala. 354, 64 So. 13, L. R. A. 1915D, 98; Mayor of Worcester v. Norwich & Worcester R. R. Co., 109 Mass. 103; Dewey v. Atlantic Coast Line, 142 N. C. 392, 55 S. E. 292; State v. St. Louis Southwestern Ry. Co. (Tex. Civ. App.) 165 S. W. 491. These state de^eisions go to the extent of upholding orders requiring a carrier to acquire additional property through eminent domain, the abandonment of existing passenger stations, or the acquiring of the right to use the property of a rival railroad. It was in effect held by the Supreme Court of California in the present controversy (190 Cal. 214, 211 P. 460) that the power vested in the State Railroad Commission of that state had passed by the Transportation Act of 1920 to the Interstate Commerce Commission. In this instance the State Railroad Commission derived its jurisdiction through a provision of the Constitution of the state of California. It was held, nevertheless, that Congress, in the exercise of its constitutional power to regulate, interstate commerce, could divest the State Railroad Commission of its jurisdiction and vest it in the Interstate Commerce Commission. This ruling was affirmed in the Los Angéles Case. The procedure adopted by the city, of Los Angeles in applying to the Interstate Commerce Commission for an order requiring the carriers to establish the union station in question was approved in the concluding words of the opinion in the Los Angeles Case, where-the court said: “We were advised by statements at the bar that, after the California Supreme Court handed down its decision in this ease, the City of Los Angeles filed a petition with the Interstate Commerce Commission, asking for an order to provide, maintain, and use a union station, that a hearing followed, and that, pending the decision in this court, the matter is held under consideration. For the reasons given, we think the course taken by the City of Los Angeles was the correct one.” The judgment is reversed, with costs, and the cause is remanded for further proceedings, not inconsistent with this opinion. Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 49. 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_usc2sect

841

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 21. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". UNITED STATES of America, Plaintiff-Appellee, v. Pablo CARREON, Defendant-Appellant. No. 79-2130. United States Court of Appeals, Seventh Circuit. Argued April 30, 1980. Decided July 9, 1980. Adam Bourgeois, Chicago, 111., for defendant-appellant. Thomas P. Sullivan, U.S. Atty., Douglas Miller, Asst. U.S. Atty., Chicago, 111., for plaintiff-appellee. Before CUMMINGS and BAUER, Circuit Judges, and EAST, Senior District Judge. The Honorable William G. East, Senior District Judge of the United States District Court for the District of Oregon, is sitting by designation. BAUER, Circuit Judge. Defendant Pablo Carreon appeals from his conviction on one count of conspiracy to distribute heroin in violation of 21 U.S.C. § 846 and on seven counts of distribution of heroin in violation of 21 U.S.C. § 841(a)(1). Carreon contends that his statutory and constitutional speedy trial rights were violated, that he was entrapped, and that his rights under the double jeopardy clause of the Fifth Amendment were violated. We affirm the judgment of conviction on all counts. I. Speedy Trial Rights A. Procedural History The original indictment against Carreon was filed on April 10, 1975. Shortly thereafter, he failed to appear at a scheduled plea hearing, and his case was placed on the district court’s fugitive calendar, where it remained for over a year. Ultimately, Carreon reappeared, and his case was assigned to Judge Alfred Y. Kirkland. A hearing was set for September 2, 1976, at which time it was contemplated that Carreon would plead guilty to two counts of the indictment and that the government would seek dismissal of the remaining counts. Because Judge Kirkland was unavailable on September 2, the hearing on Carreon’s guilty plea was held before Judge John F. Grady. After eliciting Carreon’s version of the facts, Judge Grady refused to accept the plea, ruling that an entrapment defense would be available if the facts were as Carreon had stated. On the following day, however, Carreon retendered his guilty plea to Judge Kirkland, who accepted it without detailed questioning. Carreon was sentenced to two concurrent terms of four years of imprisonment to be followed by three years of parole and was duly imprisoned. On March 10, 1977, Carreon filed a petition under 28 U.S.C. § 2255 seeking to set aside his conviction on the ground that his guilty plea had been involuntarily given. The district court granted summary judgment for the government on the petition, and Carreon appealed to this Court. On May 3,1978, while that appeal was pending, Carreon was released on parole; he had served twenty-six months in prison, including credit for time served prior to his conviction. On June 14, 1978, this Court reversed the district court’s grant of summary judgment on the § 2255 petition, ruling that Carreon’s guilty plea had not been taking in conformity with Fed.R.Crim.P. 11 and had not been made voluntarily. Carreon v. United States, 578 F.2d 176 (7th Cir. 1978) (Carreon I). Prior to June 28, 1978, when this Court’s mandate in Carreon I would have issued, the government moved for an extension of time in which to petition for rehearing. That motion was granted, and the mandate of this Court was stayed until July 28,1978. The government ultimately determined not to petition for rehearing, but, apparently because of a clerical oversight, the mandate did not issue on July 28. Meanwhile, Judge Kirkland conducted status calls in the case on June 22, August 8, and September 20, 1978; at the third status call, Judge Kirkland ordered that the case be removed from his calendar pending disposition by this Court. This Court’s mandate in Carreon I finally reached the district court on December 5,1978, but no further action was taken in the district court until May 1,1979, when Judge Kirkland’s illness caused the case to be reassigned to Judge Nicholas J. Bua. Judge Bua held a status hearing on May 30, 1979; at that hearing Judge Bua vacated Carreon’s conviction and sentence and ordered that he be permitted to withdraw his plea. The § 2255 action was then dismissed. On June 15,1979, the government moved to reopen the criminal case. Chief Judge James B. Parsons granted the motion and assigned the case to Judge Joel M. Flaum for arraignment. The arraignment was first set for June 26, but was continued to July 9,1979, because Carreon was unavailable on the earlier date. On July 9, Carreon pleaded not guilty to all counts of the indictment, and trial was set for August 27, 1979. On July 23, 1979, Carreon moved to dismiss the indictment with prejudice on speedy trial grounds. While this motion was pending, a superseding indictment was returned on August 21, 1979. On August 27, Judge Flaum denied Carreon’s motion to dismiss the prior indictment with prejudice, ruling that it should be dismissed without prejudice. Carreon then pleaded not guilty to all counts of the superseding indictment. A bench trial was had, after which Judge Flaum found Carreon guilty on all counts and sentenced him to two years of probation on each count, the sentences to run concurrently. This appeal followed. B. Speedy Trial Act Rights Carreon first contends that the trial court erred in applying the Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq. (1976). Specifically, Carreon maintains that § 3161(e) applies to this case, that its provision requiring retrial within sixty days of the final action occasioning retrial was violated, and that the trial court should have remedied the violation by dismissal of the original indictment with prejudice under the sanctions provisions in § 3162. The government responds that § 3161(i) is the applicable subsection, that even if § 3161(e) were applicable it was not violated, that no sanctions are available under the Act for a violation of either subsection, and that, in any event, the trial court correctly applied § 3162 in ruling that dismissal of the prior indictment should be without prejudice. Our analysis of the Speedy Trial Act issue does not differ materially from that of the district court. The district court apparently assumed that the sanctions of § 3162 were applicable in this case to a violation of either § 3161(e) or § 3161(i). For purposes of our decision, we will also assume their applicability. The district court next reasoned that it need not determine whether § 3161(e) was applicable, as Carreon contends, or whether § 3161(i) applied, as the government urges, because § 3161(e) had not been violated, and because, although § 3161(i) may have been violated, that violation would not justify dismissal of the original indictment with prejudice under the provisions of § 3162(a)(2). We agree that we need not decide which subsection of § 3161 applies to the facts at bar, but we prefer to base our ruling on the broader ground that, even assuming a violation of the time limits of either subsection, dismissal of the original indictment with prejudice was not mandated by the provisions of § 3162(a)(2). The district court therefore acted within its discretion in dismissing the first indictment without prejudice. In determining whether dismissal under § 3162(a)(2) should be with or without prejudice, the court must consider “among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of reprosecution on the administration of this chapter and on the administration of justice.” 18 U.S.C. § 3162(a)(2). As the district court noted, two of these factors favor dismissal without prejudice in this case. First, Carreon’s crimes were serious, and the sanction of dismissal with prejudice should therefore be imposed only for a correspondingly serious delay. Second, the adverse impact of reprosecution on the administration of justice and the Speedy Trial Act would be slight. The defendant claimed no prejudice due to the delay, the government did not intentionally seek delay, and the unusual circumstances of the case would be unlikely to recur, thus causing the sanctioning of similar delays in the future. Consideration of the third factor, the facts and circumstances that led to the delay, also indicates that dismissal without prejudice was proper. The total delay of which Carreon appears to complain amounted to just over a year, or from June 14, 1978, when Carreon I was issued, to July 23, 1979, when Carreon moved for dismissal. Carreon has no cause to complain of the delay resulting from the stay of this Court’s mandate until July 28, 1978. The delay in issuance of the mandate until December 5, 1978 was due not to the government but to a court error; although the government did not move for issuance of the mandate, neither did Carreon, who was the prevailing party and who makes no contention that he was not represented by counsel during the delay. Similarly, the delay between December 5,1978 and May 30,1979 was apparently due to Judge Kirkland’s illness and the fact that Judge Kirkland had removed the case from his calendar. Carreon took no steps in the district court to cut short this delay. Finally, we note that the two-week delay between June 26 and July 9, 1979 was due to Carreon’s unavailability. Because the delay was in major part due to the negligence of the parties and oversight in the courts, and because Carreon failed to assert his speedy trial rights or otherwise move to expedite the case prior to July 23, 1979, the reasons for the delay do not mandate dismissal of the prior indictment with prejudice. Accordingly, the trial court acted within its discretion in determining that to try Carreon would not violate the Speedy Trial Act. C. Sixth Amendment Speedy Trial Right What we have already said largely disposes, we think, of Carreon’s complaint that his Sixth Amendment speedy trial right was violated. Although Sixth Amendment speedy trial issues require a careful, ad hoc balancing approach, four critical factors are to be examined in every case. These are the “[ljength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530, 533, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). Considering these factors, we conclude that no Sixth Amendment violation occurred. The length of delay here involved was approximately one year. Though significant, the delay was not extreme. See United States v. Joyce, 499 F.2d 9, 20 (7th Cir.), cert. denied, 419 U.S. 1031, 95 S.Ct. 512, 42 L.Ed.2d 306 (1974). The delay was due, in part, to the government’s negligence in failing to move to expedite the case. Such negligence is to be “weighted less heavily” than intentional delay. Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. at 2192. The delay was also due to Carreon’s negligence, however; Carreon failed to asset his right during the entire period of the delay. As the Supreme Court emphasized in Barker, “failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” Id. at 532, 92 S.Ct. at 2193. Finally, Carreon has alleged no prejudice as a result of the delay. He was not in custody during the delay, he alleges no anxiety or concern as a result of the delay, and, most importantly, he does not allege any impairment of his ability to defend himself as a result of the delay. Thus, applying the Barker v. Wingo balancing test, we conclude, as did the trial court, that Carreon’s Sixth Amendment right to a speedy trial was not infringed. II. Entrapment Carreon next contends that the trial court erred in ruling that he was not entrapped. He argues that a transcript of his testimony given at the separate trial of his co-indictee and introduced by the government in its case-in-chief against Carreon raised the issue of entrapment, that the issue remained unrebutted by the remainder of the government’s case, and that he was therefore entitled to acquittal as a matter of law. In his prior testimony, Carreon stated, in substance, that he had not been involved in drug sales until his lover Maria Hernandez, who was then a government informant, induced him, by persistent requests and by use of her position of influence with him, to sell heroin. The trial court ruled that Carreon’s prior testimony did not require a finding of entrapment as a matter of law, that testimony given by government agents had demonstrated Carreon’s predisposition beyond a reasonable doubt and had thus rebutted any evidence of entrapment contained in Carreon’s prior testimony, and that, accordingly, Carreon had not been entrapped. Having reviewed the trial transcript and the transcript of Carreon’s former testimony, we find the trial court’s ruling on entrapment to be supported by sufficient evidence. Carreon does not contend that the use by the government of an informant who was also his lover violated the due process clause of the Fifth Amendment, but rather argues only that the government failed to prove beyond a reasonable doubt his predisposition to sell heroin. Under settled standards, predisposition is adequately proved, and an entrapment defense is not, therefore, available, see Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), if the government demonstrates that the accused exhibited “a willingness to commit the crime charged as evidenced by accused’s ready response to the inducement.” United States v. Viviano, 437 F.2d 295, 299 (2d Cir.), cert. denied, 402 U.S. 983, 91 S.Ct. 1659, 29 L.Ed.2d 149 (1971). Under this standard, the government sustained its burden. First, many portions of Carreon’s prior testimony indicating reluctance on his part were contradicted by the testimony of government agents. As Carreon himself did not take the stand, the trial court had no opportunity to observe his demeanor or assess his credibility; given this and Carreon’s obvious interest in the case, the court may have credited the agents’ testimony and discredited Carreon’s former testimony. Second, the agents testified to many incidents which, if believed, were sufficient to demonstrate Carreon’s predisposition. Among these were that Carreon had told agents that he desired to sell larger quantities of heroin to increase his profit, had informed agents that one sample of heroin was of poor quality, had initiated contact with the agents at least once, had endeavored to promote sales by informing the agents of the whereabouts of his source and the timeliness of his deliveries, had delivered the heroin in devious ways that tended to demonstrate his experience in drug sales, and had provided free samples to induce sales. Accordingly, we find sufficient evidence of record to support the trial judge’s finding that Carreon was not entrapped. III. Double Jeopardy Finally, Carreon contends that his rights under the double jeopardy clause of the Fifth Amendment were violated. His argument is in two parts. First, he argues that jeopardy attached when we was sworn to give testimony in the plea hearing before Judge Grady, and that he could not be later tried, therefore, upon the six counts of the indictment that were subsequently dismissed pursuant to the plea agreement that resulted in the guilty plea entered in Judge Kirkland’s court. Carreon cites no authority for this novel interpretation of the concept of jeopardy, and we decline the invitation to declare a rule that would undermine the entire system of plea bargaining. Second, Carreon contends that his sentence of two years probation violates the rule of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), that “the constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully ‘credited’ in imposing sentence upon a new conviction for the same offense.” Id. at 718-19, 89 S.Ct. at 2077. It does so, Carreon says, because the twenty-six months of imprisonment plus some months of parole that Carreon actually served more than cancel out a two-year probation term, and because, therefore, the crediting of the former against the latter requires that Carreon should have no remaining sentence to serve. Initially, we note that this issue was not raised in the district court by a post-sentencing motion. Accordingly, it cannot be considered on appeal unless it involves plain error or a defect affecting substantial rights. Fed.R.Crim.P. 52(b). We find no plain error, and none of Carreon’s substantial rights were affected. Carreon was sentenced to two years of probation on each of the eight counts of the indictment, the sentences to run concurrently. Even if we were to find a defect under Pearce with respect to the sentence on the two counts of the indictment of which Carreon had previously been convicted and on which he had previously been sentenced, the sentence of probation on the six remaining counts would still stand. Accordingly, no substantial right has been affected. See United States v. Peters, 617 F.2d 503, 506 (7th Cir. 1980). Although we need not go further, we note also that the trial court plainly intended to sentence Carreon to time served, to suspend that sentence, and to impose the two years of probation in lieu of what would have been a mandatory three-year special parole term under 21 U.S.C. § 841(b)(1)(A) had the sentence to time served not been suspended. The sentencing order read: “[T]he imposition of sentence is hereby suspended and defendant is placed on probation for a period of TWO (2) YEARS.” During the sentencing hearing, Judge Flaum stated: All right, I deem that the custody that Pablo Carreon has served in this case is sufficient, the 23 months that he has served . . . . However, I do deem it appropriate there be some probationary time for this offense, and I’m going to sentence Pablo Carreon to two years probation . The apparent reason that the suspended sentence was given was that Judge Flaum wished to avoid the mandatory parole term provisions of § 841(b)(1)(A); defense counsel was aware of this problem, and, indeed, he requested at the sentencing hearing that, for this reason, only a short term of probation be imposed. Counsel cannot argue now that the action formerly requested was in error, especially since the issue was not first raised in the district court. Moreover, we are at a loss to understand what Carreon could gain by prevailing on this issue. The proper remedy, were a Pearce violation to be found, would be to vacate the sentence on the two counts and remand for resentencing. Carreon’s argument appears to be that the trial court’s alternatives on remand would be either to increase the sentence or to set Carreon totally at liberty. The trial judge has already said that he finds a period of continued supervision necessary, and thus the likely outcome of a remand would be a sentence to time served plus the § 841(b)(1)(A) three-year parole term. This would leave Carreon with a heavier sentence than the one he currently bears. The trial court was lenient in sentencing Carreon to a period of probation, which when added to the terms of imprisonment and parole that he had already served, amounted to less than the total period of his prior sentence. We think Carreon has no complaint on this score. For all of the foregoing reasons, the judgment of conviction is affirmed. Affirmed. . We note that the trial court applied the Act as it stood prior to The Speedy Trial Act Amendments Act of 1979, Pub.L.No. 96-43, 93 Stat. 327 (the post-amendment text of the Act appears at 18 U.S.C.A. § 3161 et seq. (Supp. 1980)), which became effective on August 2, 1979. The parties have not challenged the correctness of that action, and no issue has been raised on appeal concerning the applicability of the 1979 amendments to this case. Nevertheless, the parties have referred in their briefs to several of the changes made by the 1979 amendments, and we have therefore examined the amendments and determined that application of them to this case would not alter our result. Because the parties appear to agree that the pre-amendment text of the Act applies, we will confine our analysis to that text. . Prior to the August 2, 1979 amendments to the Act, 18 U.S.C. § 316(e) provided, in pertinent part, If the defendant is to be tried again following an appeal or a collateral attack, the trial shall commence within sixty days from the date the action occasioning the retrial becomes final. . . . The 1979 amendments extended this time period from sixty to seventy days. See 18 U.S.C.A. § 3161(e) (Supp. 1980). . The relevant portion of 18 U.S.C. § 3162, § 3162(a)(2), was unchanged by the 1979 amendments to the Act, and provides, in pertinent part, If a defendant is not brought to trial within the time limit required by section 3161(c) extended by section 3161(h), the information or indictment shall be dismissed on motion of the defendant. The defendant shall have the burden of proof of supporting such motion . . . . In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice. Section 3161(c) is set out in note 4 infra. . 18 U.S.C. § 3161(i), which was not changed by the 1979 amendments provides, If trial did not commence within the time limitation specified in section 3161 because the defendant had entered a plea of guilty or nolo contendere subsequently withdrawn to any or all charges in an indictment or information, the defendant shall be deemed indicted with respect to all charges therein contained within the meaning of section 3161, on the day the order permitting withdrawal of the plea becomes final. The relevant portion of § 3161, 18 U.S.C. § 3161(c), provided, prior to the 1979 amendments, as follows: The arraignment of a defendant charged in an information or indictment with the commission of an offense shall be held within ten days from the filing date (and making public) of the information or indictment, or from the date a defendant has been ordered held to answer and has appeared before a judicial officer of the court in which such charge is pending whichever date last occurs. Thereafter, where a plea of not guilty is entered, the trial of the defendant shall commence within sixty days from arraignment on the information or indictment at such place, within the district, as fixed by the appropriate judicial officer. The 1979 amendments eliminated the bifurcated time limit of ten and sixty days, imposing instead a single, seventy-day requirement that runs from the later of the filing or appearance date to the trial date. See 18 U.S.C.A. § 3161(c)(1) (Supp.1980). . Under the pre-amendment version of the Act, the sanctions provisions of § 3162 were to become effective and apply to cases instituted on or after July 1, 1979. 18 U.S.C. § 3163(c) (1976). The August 2, 1979 amendments moved the effective date of the sanctions back to July 1, 1980. See 18 U.S.C.A. § 3163(c) (Supp.1980). This left a month between July 1 and August 2, 1979 when the sanctions may have been in force. Assuming they were in force, it is doubtful that they apply to Carreon’s case because it does not appear that the case was commenced within the critical month. See id.; see also 18 U.S.C. § 3163(c) (1976). Carreon has not argued that, assuming the inapplicability of § 3162, the United States District Court for the Northern District of Illinois’ Plan for the Prompt Disposition of Criminal Cases that was in effect prior to July 1, 1979 would require dismissal here; indeed, neither of the parties have dealt at all with the district court’s interim plan. It would appear, however, that that document would control this case insofar as sanctions are involved. See e.g., United States v. Walters, 591 F.2d 1195, 1201 (5th Cir. 1979). Under the Northern District’s current plan, which became effective on July 1, 1979, there is no requirement that a case be dismissed in circumstances that would not require dismissal under 18 U.S.C. § 3162. United States District Court for the Northern District of Illinois, Plan for the Prompt Disposition of Criminal Cases § 9(c). In light of this, and of the failure of the parties to brief the issue, we see no need to conduct an independent inquiry into whether sanctions provided by the formerly applicable Northern District Plan might affect the result we reach in the case at bar. We note also that the pre-amendment versions of § 3161(e) and § 3162(a) do not indicate that § 3162 sanctions were available for violations of § 3161(e). The amendments to § 3161(e) state that § 3162 sanctions do apply to that section, see 18 U.S.C.A. § 3161(e) (Supp.1980), although no corresponding amendment to § 3162(a)(2) was made. Given all this, it is doubtful that the Act provides any sanctions that are applicable to this case. We will nevertheless assume the applicability of § 3162 for purposes of our decision. . As the government points out, the difficulty with applying § 3161(e) to the case at bar is that that subsection deals with defendants who are “tried again,” see note 2 supra, whereas Carreon was first convicted on his guilty plea, and was therefore never “tried” a first time. Applying § 3161(i) & (c) to the facts at bar is equally difficult, however; as the trial court noted, it is unclear what date should be considered the “filing date” that triggers the running of the ten-day period under § 3161(c), see note 4 supra. The filing date could be argued to be June 15, 1979, when Chief Judge Parsons ordered that the government be permitted to reopen the criminal case; May 30, 1979, when Judge Bua vacated Carreon’s prior conviction; December 5, 1978, when our mandate reached the district court; or even July 28, 1978, when the mandate in Carreon I should have issued. Any of the critical dates prior to and including May 30, 1979 might be thought, under § 3161(i), see note 4 supra, “the day the order permitting withdrawal of the plea [became] final.” . The district court found that “the date the action occasioning the retrial [became] final” under § 3161(e) was May 30, 1979, when Judge Bua enforced this Court’s mandate and vacated the prior conviction and sentence. The court further found that Carreon’s motion to dismiss the indictment on July 23, 1979 tolled the running of § 3161(e)’s sixty-day time limit. Cf. 18 U.S.C. § 3161(h)(1)(E) & (G) (1976) (delay due to hearings on pretrial motions and proceedings concerning defendant taken under advisement are excludable time). Accordingly, the court found that the sixty-day limit was not transgressed. Carreon challenges this reasoning, contending that May 30, 1979 was not the date the action occasioning retrial became final; Carreon does not indicate, however, what earlier date he thinks should have been chosen as the applicable date. As we state in text, infra, we do not reach the issue of whether § 3161(e) was violated. . The district court noted that § 3161(i) may have been violated because, whatever relevant date is considered to be the filing date for § 3161(c) purposes, Carreon was not arraigned within ten days of the filing date. Carreon was, however, scheduled for arraignment on June 26, 1979, eleven days after the case was reopened on June 15. Carreon’s unavailability, which is excludable time, 18 U.S.C. § 3161(h)(3)(A) (1976), caused the arraignment to be moved back to July 9, 1979. As the trial court noted, arraignment would have been scheduled at least a day earlier had the court suspected that the § 3161(c) time limit began to run on June 15. . Carreon argues that the record does not disclose whether the government’s failure to move to expedite the case was due to intentional procrastination or merely to negligence. The record provides no basis for a conclusion that the government may have intentionally delayed the proceedings, however, and the trial court so found, noting that, “No suggestion has been made that the Government’s inaction was due to anything more than negligence.” Carreon presented no witnesses at trial, and there is no indication that he could have been tactically disadvantaged in any way by the delay. The government, on the other hand, was faced with the prospect of calling witnesses to testify in 1979 concerning events that took place in 1974. It is unlikely that the government attempted to delay the trial while the prosecution witnesses’ memories continued to fade. No further investigation of the case by the government was required or undertaken, and Carreon was at liberty during the entire period of delay. Moreover, the government manifested its good faith during the course of the proceedings by prompting Carreon’s counsel to move for vacation of the conviction and sentence at the hearing held by Judge Bua on May 30, 1979. It is Carreon’s burden to demonstrate a denial of his speedy trial rights, 18 U.S.C. § 3162(a)(2) (1976), and he has failed to present any evidence that the delay was due to anything other than clerical oversight on the part of the courts and negligence on the part of both parties. . Carreon has argued that, because Judge Kirkland had removed Carreon’s case from his calendar on September 20, 1978, and because the case was not, therefore, pending before any district judge when the district court received our mandate in Carreon J, Carreon was precluded from moving in the district court to expedite the proceedings. We doubt that this is the case; Carreon could have filed a motion either in this Court or in Judge Kirkland’s court to determine the status of his case. We would view Carreon’s allegation that he was precluded from expediting the case more seriously if he had tried to do so and failed. . Nor does the record disclose any impairment of Carreon’s defense. Carreon called no witnesses at trial and apparently desired to call none. Informant Maria Hernandez, who was a key witness as to Carreon’s entrapment defense, was available, but Carreon chose not to call her to testify. The government’s witnesses at trial experienced only slight lapses of memory, none of which were in any was prejudicial to Carreon. We can find no evidence of prejudice on this record. . Although this issue was not raised, we have examined Carreon’s testimony to determine if a due process issue plainly is present on the record. Were the facts as Carreon testified, a colorable claim under the due process clause might be present. But cf. Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). Carreon’s version of the events was disputed by the government on most significant points, however, and, as with the entrapment issue discussed in text, infra, the trial court was clearly entitled to discredit Carreon’s story. Under these circumstances, even if we were to interpret Carreon’s entrapment argument as presenting also a due process issue, that issue would have to be resolved in favor of the government. . It would serve no useful purpose to set out some or all of the numerous instances of conflict between the agents’ testimony and Carreon’s prior testimony. It suffices to say that Carreon testified to a series of events in which he often protested that he did not wish to go through with the sales, and that the agents testified to a series of events in which Carreon demonstrated willingness and readiness to deal in heroin. . Carreon has argued on appeal that predisposition must be proved by evidence of the defendant’s conduct prior to commission of the crime in question; alternatively, Carreon has urged that conduct prior to the criminal act is more probative of predisposition than subsequent conduct, and that there was insufficient prior conduct evidence in this case. As to the former contention, Carreon cites no authority for such a rule, and we know of none. While it is true that predisposition turns on a defendant’s mental state prior to commission of the crime, that mental state may be proved by relevant and admissible evidence concerning the defendant’s actions either before or after commission of the crime. See United States v. Townsend, 555 F.2d 152, 157 n. 8 (7th Cir.), cert. denied, 434 U.S. 897 (1977). As to Carreon’s alternative contention, we do not disagree with the general proposition that conduct prior to commission of the crime may often provide stronger evidence of predisposition than conduct subsequent to the crime. We do disagree, however, with Carreon’s contention that the absence of evidence of predisposition in the form of evidence of Carreon’s conduct prior to the first substantive offense charged renders the government’s case insufficient to establish predisposition beyond a reasonable doubt. Having read Carreon’s Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 21? Answer with a number. Answer:

songer_respond1_3_3

F

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "cabinet level department". Your task is to determine which specific federal government agency best describes this litigant. Marie Tipton FAIDLEY, Plaintiff-Appellant, v. Patricia Roberts HARRIS, Secretary of Health, Education and Welfare, Defendant-Appellee. No. 80-1296. United States Court of Appeals, Tenth Circuit. Argued and Submitted May 15, 1981. Decided Aug. 5, 1981. William E. Benjamin, Adams County Legal Services, Commerce City, Colo., for plaintiff-appellant. Beverly R. Buck, Asst. U. S. Atty., D. Colorado, Denver, Colo. (Joseph Dolan, U. S. Atty., and Roland J. Brumbaugh, Asst. U. S. Atty., Denver, Colo., on brief), for defendant-appellee. Before DOYLE and McKAY, Circuit Judges, and O’CONNOR, District Judge. Of the United States District Court for the District of Kansas, sitting by designation. McKAY, Circuit Judge. When the Secretary of Health, Education, and Welfare (now Health and Human Services) determines the eligibility for benefits under the Supplemental Security Income (SSI) Program of an individual married to a person not eligible for SSI benefits, 42 U.S.C. § 1382c(f)(l) requires the Secretary to deem that individual’s income and resources to include any income and resources of the ineligible spouse, “except to the extent determined by the Secretary to be inequitable under the circumstances.” Prior to February 1978, appellant was an unmarried person who had been receiving approximately $178 per month in SSI benefits as a disabled person. In February 1978, she reported to the Social Security Administration, which administers the SSI program under the direction of the Secretary, that she had married an ineligible person whose sole income was approximately $295 per month from retirement benefits under Title II of the Social Security Act. Because her spouse’s includable income was $5.80 above the amount allowed by the Secretary’s regulations, appellant was terminated from all benefits in June 1978. After exhausting her administrative remedies, appellant brought an action for judicial review of the Secretary’s decision in the district court. The court affirmed the Secretary’s termination of appellant’s benefits. Appellant argues that the Secretary has breached her statutory duty to determine whether, “under [appellant’s] circumstances,” deeming appellant’s income to include so much of her ineligible husband’s income as disqualifies her from SSI benefits is “inequitable.” We find, however, that appellant has not shown that the Secretary has violated any statutory duty. Section 1382c(f)(l) does impose on the Secretary a duty to determine under what circumstances deeming ineligible spouse income to be eligible spouse income is inequitable. Accordingly, the Secretary has promulgated regulations providing for numerous exclusions from the generally applicable deeming requirement of § 1382c(f)(l), such as exclusions of amounts used (1) to support ineligible children living in the same household, (2) to fulfill an approved plan for achieving self-support, or (3) to comply with the terms of court-ordered support. 20 C.F.R. § 416.-1185. Appellant concedes in her brief that in determining whether appellant was entitled to receive SSI benefits after her marriage, the Secretary included in her calculation an exclusion for unearned income of $20.00. Appellant’s Brief at 5-6. Appellant’s argument is that the Secretary must be required to consider the particular equities of appellant’s circumstances and to determine whether those equities entitle appellant to some further exclusion from the deeming provision beyond the generalized exclusions of § 416.1185. We hold, however, that the Secretary acted within her discretion in choosing not to engage in case-by-case adjudications of inequitable circumstances and not to include among the regulatory exclusions each and every equitable particular of persons in precisely appellant’s position. We have previously held that the language “except to the extent determined by the Secretary to be inequitable under the circumstances” does not require the Secretary to engage in case-by-case determinations. Hammond v. Secretary of Health, Education and Welfare, 646 F.2d 455 (10th Cir. 1981) (construing this clause in § 1382c(f)(2), in which the language is identical to that in the equities clause of § 1382c(f)(l)). As we indicated in Hammond, we also follow the First Circuit’s ruling that in defining the equitable exceptions, the Secretary need not expressly rule on every conceivable or rational category or circumstance, but may rely upon generalized rules that fall within the scope of his discretion to effectuate lawful congressional purposes. See Kollett v. Harris, 619 F.2d 134 (1st Cir. 1980). In this case, the Secretary has set forth detailed regulations which are rationally related to the purposes and concerns of Congress in enacting § 1382c(f)(l), and which, as Congress intended, avoid those difficulties of individual determinations that outweigh the marginal increments in the precise effectuation of congressional concerns which they might be expected to produce. See generally Weinberger v. Salfi, 422 U.S. 749, 785, 95 S.Ct. 2457, 2476, 45 L.Ed.2d 522 (1975). The Secretary’s decision not to make an additional exception for those whose circumstances are like appellant’s, therefore, is not an abuse of the Secretary’s broad discretion. Even though appellant’s circumstances are very appealing to the equitable conscience, we could find that the Secretary has abused her discretion under these circumstances only by requiring her to make case-by-case adjudications in every § 1382c(f)(l) case or to define the exclusionary categories narrowly enough to amount to essentially the same thing. We have already declined in the Hammond case to impose such requirements. AFFIRMED. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "cabinet level department". Which specific federal government agency best describes this litigant? A. Department of Agriculture B. Department of Commerce C. Department of Defense (includes War Department and Navy Department) D. Department of Education E. Department of Energy F. Department of Health, Education and Welfare G. Department of Health & Human Services H. Department of Housing and Urban Development I. Department of Interior J. Department of Justice (does not include FBI or parole boards; does include US Attorneys) K. Department of Labor (except OSHA) L. Post Office Department M. Department of State N. Department of Transportation, National Transportation Safety Board O. Department of the Treasury (except IRS) P. Department of Veterans Affairs Answer:

songer_casetyp2_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. There are two main issues in this case. The first issue is economic activity and regulation - bankruptcy, antitrust, securities - other bankruptcy. Your task is to determine the second issue in the case. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". MOSS et al. v. SHERBURNE et al. (Circuit Court of Appeals, First Circuit. March 3, 1926. On Petition for Rehearing April 6, 1926.) No. 1855. 1. Exceptions, bill of <S=4I (1)— Bill of exception filed within extension of time granted therefor held timely (District Court rule 19). Bill of exceptions, filed within extension of time granted therefor when motion for new trial was overruled, held, under District Court rule 19, timely filed. 2. Sales <@=>89 — Whether buyer, after seller’s attempted cancellation of contract, waived rights thereunder by making new contract for part of same goods, held for jury. Whether buyer of sugar, after seller’s attempted cancellation of contract by making new contract for part of same sugar, waived or relinquished rights under first contract, held, under conflicting evidence as to whether he was told that he was purchasing same sugar, question for jury. 3. Appeal and error <@=>1050(1) — Error, if any, * in admitting evidence of market value at place other than place of delivery, in action for breach of contract to sell sugar, held not prejudicial. Where jury, in calculating damages for breach of contract to sell sugar f. o. b. Buenos Aires, did not consider evidence of market value in New York, but clearly considered price fixed in a second contract c. i. f. New York, in determining market value in Buenos Aires, held, error, if any, in admitting proof of” market value in New York, was not prejudicial.. 4. Sales <@=>418(2) — Measure of damages for seller’s breach of contract is difference between contract price and market value at time of breach and place of delivery. Measure of damages for breach, of contract by seller is difference between contract price and market value of goods at time of breach and place of delivery, or, if there is no market value at such place, then at nearest available market. 5. Sales <@=>416(2) — In action for breach of contract to sell sugar, evidence of contract price under second contract between same parties for same sugar held admissible as evidence of market, value. In action for breach of contract to sell sugar f. o. b. Buenos Aires, evidence of contract price of same sugar under a second contract c. i. f. New York between same parties held properly admitted as evidence of market value of sugar described in first contract. 6. Appeal and error <@=l 151(1). Clerical error in computing damages for breach of contract, if possible, may be corrected by remittitur, without new trial. On Petition for Rehearing. 7. Appeal and error <@=>835(2). Defense, first asserted on petition for rehearing on second appeal of case, held not available. In. Error to tlie District Court of the United States for the District of Massachusetts; James M. Morton, Judge. Action by John H. Sherburne and others, trustees, against Jacinto Moss and others. Judgment for plaintiffs, and defendants bring error. Affirmed, on condition remittitur be. filed; otherwise, .reversed, and new trial granted. See, also, 295 E. 769. Gaston, Snow, Saltonstall & Hunt, of Boston, Mass. (Dunbar E. Carpenter and Thomas Hunt, both of Boston, -Mass., of counsel), for plaintiffs in error. Howard Stockton, Jr., and John H. Sherburne, both of Boston, Mass. (Sherburne, Powers & Needham and Warren, Garfield, Whiteside & Lamson, all of Boston, Mass., on the brief), for defendants in error. Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges. JOHNSON, Circuit Judge. This is a writ of error to the United States District Court for the District of Massachusetts to reverse a judgment entered in an action of contract brought by the receivers in bankruptcy of E. R. Sherburne Company, a Massachusetts corporation, to whose rights the present defendants in error have succeeded against Moss & Co., plaintiffs in error, co-partners, with a-usual place of business at Buenos Aires in the Argentine Republic, to recover damages for breach of a contract to deliver to the Sherburne Company 23,000 tons of sugar; Eor convenience the plaintiffs in error will be referred to as “Moss” .and the defendants in error as “Sherburne.” A written contract was entered into by Sherburne with Moss on April 14, 1920, for the purchase of 23,000 tons of sugar at $332 per ton f. o. b. Buenos Aires. This contract was as follows: “Minford, Lueder & Co., 106 Wall Street, New York. “Contract No. 2033. April 14, 1920. “Messrs. Moss & Co. Buenos Aires, Argentine — Gentlemen: We beg to confirm the purchase on this date from your good selves through your New York representatives, Messrs. Aboab Hermanos of Buenos Aires and New York, as sellers, for account of the E. R. Sherburne Company, Boston, as buyers, of about twenty-three thousand (23,000) long tons (of 2,240 pounds each) pile, pure, white granulated sugar, polarizing 99° plus and equal in quality to United States standard granulated sugar. “At a price of three hundred thirty-two dollars ($332) per long ton of 2,240 pounds, free on board, Buenos Aires. “Sugar to be shipped in vessels to be provided by buyers, and sellers to have sugars ready for delivery at steamer’s call at Buenos Aires during April and May, 1920, and June, 1920. “Sugars to be invoiced on net shipping weights. “Payment: Buyers are to open by cable a confirmed, irrevocable credit in favor of Messrs. Moss & Company, Buenos Aires, to be availed of by sight against delivery of complete set of shipping documents, including certificate of analysis and Argentine export license, not including prepaid freight. “Buyers are to receive a guaranty of shipment at the point of embarkation and of performance of this contract by the seller, which guaranty is to be acceptable to buyer’s bank and against satisfactory evidence of analysis as to the quality of the sugar by the American Chamber of Commerce of Buenos Aires and export license of the Argentine government. “Marine insurance from shore to shore, including craft risk, loading and discharging to be for buyer’s account. “Sellers to notify buyers by cable immediately the vessels designated to take the sugar arrive at loading port for purposes of insurance. “Yours very truly, “Minford, Lueder & Co., Buyers. “Sellers: J. Moss & Cie, “By Aboab Herms. “J. J. Bela. “Accepted: E. R. Sherburne Co. “E. R. Sherburne, Brokers.” This case came on for trial in the District Court before a jury, which made special findings in favor of the plaintiffs in answer to questions submitted by the court, and also, on March 10, 1922, by its direction, returned the following alternative verdict: “The jury find for the plaintiffs and assess damages in the sum of one million three hundred sixty-one thousand seven hundred six and 14/ioo dollars. “But if, as a matter of law, the plaintiffs are not entitled to a verdict, then the jury find for the defendants and consent that this verdict may be entered on order of the United States District Court for the District of Massachusetts, or of the United States Circuit Court of Appeals for the First Circuit or of the Supreme Court of the United States, with same effect as if returned by them.” On March 11, 1922, Moss filed a motion for a new trial, and also to set aside the verdict for the plaintiffs, and to enter one for the defendants. The judge of the District Court, on August 22, 1922, set aside the verdict for the plaintiffs and entered a verdict for the defendants, upon the ground that the plaintiffs had failed to establish either authority of Aboab Hermanos to act as the agent of the defendants or the ratification of the contract by them. Upon a writ of error by plaintiffs this court held that the jury was warranted in finding that the contract was either authorized or ratified, and an order was entered vacating the judgment of the District Court, setting aside the verdict for the defendants, and remanding the ease to the District Court for further proceedings not inconsistent with the opinion rendered. See Sherburne v. Moss, 295 F. 769. After receipt of the mandate of this court the District Court, on July 22, 1924, ordered the verdict for Moss to be set aside, and judgment entered for Sherburne on the verdict of the jury. The case has now been brought here by Moss upon a writ of error. We are met at the outset by a motion of Sherburne to strike the bill of exceptions from the record, on the ground that it was not filed within the time allowed by law or the .rules of the District Court. When, on July 22, 1924, judgment was entered for Sherburne on the verdict of the jury, the motion of Moss for a new trial was then pending. By order of the District Court the time for filing a bill of exceptions by Moss was extended to November 1,1924, and this bill of exceptions was filed October 27, 1924. The motion for a new trial which had been filed by Moss was not disposed of until judgment upon the verdict was entered for Sherburne; and as, under rule 19 of the District Court, which provides that a bill of exceptions must be filed within 20 days after the verdict or the denial -of a motion for a new trial, “unless the court or judge shall otherwise order,” and the time for filing the same had- been properly extended to November 1, 1924, the bill of exceptions in this ease was seasonably filed. Slip Scarf Co. v. William Filene’s Sons’ Co. (C. C. A.) 289 F. 641. When the case was formerly before this court upon Sherburne’s exceptions, we held that the only questions presented were whether there was any evidence from which the jury might reasonably find that Moss either authorized or ratified the contract of April 14th, and only the evidence pertaining to the questions of authorization and ratification was before us. The following positions are now taken by Moss as grounds for reversal: First. That, by making a contract on April 26, 1920, for the purchase of the same sugar as was the subject of the contract of April 14, 1920, Sherburne released the defendants from liability under the contract of April 14, 1920, and that the trial court erred in refusing to rule as requested by the defendants that, as a matter of law, such was the case. Second. That the trial court, over the objections and exceptions of the defendants, permitted improper evidence to he introduced, from which the jury were allowed to compute the damages, and failed to rule as the defendants requested, and improperly charged the jury as to damages. The contract of April 14, 1920, was canceled on or about April 17, 1920, by a cable from Aboab of Buenos Aires to Aboab in New York, on the ground that credit had not arrived on April 16th. On April 26, 1920, another contract was made between the same parties for the purchase of 20,500 tons of what the parties have stipulated was a part of the sugar included in the former contract, at the price of $410 per long ton of 2,240 pounds, e. i. f. New York, and with the provisions that the export duty, if any, was to be for buyer’s account, and that, if the export license was not granted before the 10th of May following, the contract should be null and void. No export license was obtained, and' no sugar was shipped under this contract. At the close of the evidence Moss made the following requests for rulings: “A subsequent contract covering the same subject-matter and made by the same parties as an earlier agreement, but containing terms inconsistent with the former contract, so that the two cannot stand together, rescinds, supersedes, and is substituted for the earlier contract, and becomes the only agreement of the parties on the subject. “If and when the parties to the contract of April 14, 1920, entered into a new contract (that of April 26, 1920), covering the the same subject-matter, the new contract necessarily superseded, -abrogated, and took the place of the first as a matter of law, and became the measure of the obligations of both parties.” The court declined to give these instructions, but gave the following: “On the 26th another arrangement was made, or a contract even, between Moss & Co. and the Sherburne Company, with reference to 20,500 tons. The defendant says that the contract related to the remainder of the same sugar that had formed the subjeet-matter of the 23,000-ton contract of two weeks previous, and that, when the parties made that contract — the same parties — it was understood that all rights under the contract of April 14th were waived and abandoned by the plaintiff or by the Sherburne Company. The plaintiffs and the Sherburne Company say that was not so at all; that nothing was said about their giving up their rights under the April 14th contract; that their attitude was they were insisting upon those rights, and made this purchase of sugar as a purely independent transaction. Well, you are to decide which the understanding of the agreement was. To put it exactly: Are you satisfied by a fair preponderance of the testimony, at the time when Sherburne & Co. and Moss & Co. entered into the contract of April 26th, it was understood and agreed between those parties that the Sherburne Company relinquished and abandoned and waived any and all rights which it had under the contract of April 14th? Are you satisfied that is so? If you are, you will answer that question ‘Yes.’ If you are not satisfied, you will answer it ‘No.’ ” The jury, by a special finding, answered the question in the negative. If it had been shown hy uneontradicted testimony that Sherburne knew at the time of the second contract that its subjeet-matter was the same lot of sugar as that covered by the first, and the circumstances were such that no other conclusion could be drawn than that a cancellation or waiver of rights under the first contract was intended, the requested instruction would have been proper. But the testimony on the part of Moss and Sherburne as to whether the latter was told that it was the same lot of sugar was conflicting, and, as there was nothing to distinguish the lot of pile sugar embraced in the second contract from any other lot, it was for the jury to say whether Sherburne had waived any of his company’s rights under the first contract. The jury have passed upon this by their special finding under the instructions that were given, and which, although in some respects inadequate, placed the issue of waiver squarely before them. We cannot hold as a matter of law that these instructions, under the conflicting testimony which was given, were not right, or that there was error in refusing to give the requested instructions. Over the objection of Moss testimony was introduced as to the market value in New York of white granulated sugar during the months of April and May, 1920. It is evident, however, that Moss was not prejudiced by this, because the jury, in arriving at their verdict, did not consider it. The well-understood rule for the assessment of damages for breach of a contract for the sale of goods, in both federal and state courts, is that, if the contract is broken by the seller, the buyer may recover as damages the difference between the contract price and the market value of the goods at the time of the breach and at the place of delivery, or, if there is no market value at such place, then at the nearest available market. In this case, under objection of the defendant, to which exception has been taken, the jury were allowed to take into consideration as evidence of the market value of Argentine pile sugar at Buenos Aires at the time of the breach of the contract the price of the same fixed in the second contract, which was $410 per long ton of 2,240 pounds or 18.30 cents per pound e. i. f. New York. The price of sugar per pound under the first contract was 14.82 cents per pound f. o. b. Buenos Aires. To this amount was added the cost of freight, handling, and the import duty into the United States, making in all the sum of 17.43 cents per pound for this sugar unloaded in New York. By adding to 18.30 cents, the cost per pound under the second contract e. i. f. New York, the import duty of 1.36 cents per pound and the cost of handling, .25 cents per pound, the price of 19.91 cents per pound was obtained as the cost of this sugar in New York. The cost of insurance, which, according to the testimony, was 3 cents per 100 pounds, was not added to the contract price in either ease. The amount thus obtained for the cost of sugar in New York under the first contract, deducted from the price under the second contract, left a difference of 2.48 cents per pound, which it is evident was the basis upon which damages were calculated by the jury. It was not, however, according to the undisputed evidence, the difference between the prices under the two contracts. The import duty may be discarded in the consideration of prices under them, as in each it was to be paid by the buyer. If to the price under the first contract, 14.82 cents f. o. b. Buenos'Aires, freight, 1 cent per pound, and insurance, 3/ioo cents per pound, are added, the price, New York, would be 15.85 cents per pound, and this, deducted from 18.30 cents per pound, the price under the second contract, which includes freight' and insurance, but not handling, would leave a difference of 2.45 cents per pound. The same result would be arrived at by deducting from 18.30 cents per pound, the price e. i. f. New York under the second contract, freight and insurance, making the cost f. o. b. Buenos Aires 17.27 cents per pound, or 2.45 cents per pound more than the price under the first contract. As 23,000 long tons are 51,520,000 pounds, this error would reduce the verdict by $15,436. There was no error in admitting the price in the second contract as evidence of the market value of the sugar described under the first contract at Buenos Aires on the date of the breach of the contract, but there was clearly a clerical error in the computation of damages. To avoid the expense of a new trial, this may be corrected by a remittitur. Hansen v. Boyd, 16 S. Ct. 571,161 U. S. 397, 411, 40 L. Ed. 746; Van Boskerck v. Torbert, 184 F. 419, 422, 107 C. C. A. 383, Ann. Cas. 1916E, 171; Straus et al. v. Victor Talking Machine Co. et al. (C. C. A.) 297 F. 791, 807. Ordered, if the defendants in error, within 15 days after this opinion is handed down, file a remittitur of $15,436, with interest for 400 days, the time for which interest was allowed by the jury, in the office of the clerk of the District Court, and a certified copy in the office of the clerk of this court, the judgment, less the amount so remitted, will be affirmed, with costs in this court to the plaintiffs in error. If this is not done, the verdict will be vacated, judgment reversed, and a new trial granted, with costs to the plaintiffs in error. On Petition for Rehearing. The plaintiffs in error have petitioned for a rehearing since our opinion was handed down in this case. In addition to the defenses relied upon at the trial of this action, and which were argued before us, the petitioner now contends that the contract of April 14,1920, was a conditional one; that under it Moss did not guarantee that an export license could be obtained from the Argentine government; and that the contract, if one were made, was conditioned upon his being able to obtain this. The case has been before this court twice, and neither time was this position taken by Moss. The only defenses relied upon the second time the ease was argued- before us were: First. That by making the contract of April 26, 1920, for the purchase of the same sugar as was the subject of the contract of April 14, 1920, Sherburne released the defendants from liability under the contract.of April'14, 1920, and that the trial court erred in refusing to rule as requested by the defendants that such was the ease. Second. That the trial court, over the objections and exceptions of the defendants, permitted improper evidence to be introduced, from which the jury were allowed to compute the damages, and failed to rule as the defendants requested, and improperly charged the jury as to damages. ’In our opinion we discussed these defenses, and find nothing in the petition which causes us to reach a different conclusion from that which we then reached. The petition is denied. Question: What is the second general issue in the case, other than economic activity and regulation - bankruptcy, antitrust, securities - other bankruptcy? 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_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. BIG Y SUPERMARKETS, INC., Plaintiff, Appellant, v. Frank W. McCULLOCH et al., Defendants, Appellees. No. 6895. United States Court of Appeals First Circuit. June 12, 1967. Jay S. Siegel, Hartford, Conn., for appellant. Michael N. Sohn, Washington, D. C., Attorney, with whom Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, and Gary Green, Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., Attorney, were on brief, for appellees. Before ALDRICH, Chief Judge, Mc~ ENTEE and COFFIN, Circuit Judges. PER CURIAM. The judgment of the district court is affirmed on the opinion below. See also Greensboro Hosiery Mills, Inc. v. Johnston, 4 Cir., 1967, 377 F.2d 28 (5/12/67). 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_respondent

033

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. AMERICAN AIRLINES, INC., v. NORTH AMERICAN AIRLINES, INC., et al. No. 55. Argued January 30, 1958. Decided February 3, 1958. Howard C. Westwood argued the cause and filed a brief for petitioner. O.D. Ozment argued the cause for the Civil Aeronautics Board, respondent. With him on the brief were Solicitor General Rankin, Assistant Attorney General Hansen, Daniel M. Friedman, Franklin M. Stone and Robert L. Toomey. No appearance fpr North American Airlines, Inc., respondent. Per Curiam. The judgment is reversed insofar as it set aside the Board’s order. American Airlines, Inc., v. North American Airlines, Inc., 351 U. S. 79. Mr. Justice Douglas dissents. 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_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. John VON UTTER, Jr., Petitioner, Appellee, v. Donald P. TULLOCH, Respondent, Appellant. No. 7471. United States Court of Appeals, First Circuit. Heard March 2, 1970. Decided May 14, 1970. Lawrence P. Cohen, Asst. Atty. Gen,, with whom Robert H. Quinn, Atty. Gen., John Wall, Asst. Atty. Gen., Chief, Criminal Div., Edmund Dinis, Dist; Atty., and Peter B. Gay, Asst. Dist. Atty., were on brief, for appellant. Mitchell Benjoya, Boston, Mass., with whom Kevin M. Keating and Crane, Inker & Oteri, Boston, Mass., were on brief, for appellee. Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges. McENTEE, Circuit Judge. Petitioner Von Utter was convicted in Massachusetts Superior Court for possession of narcotics in violation of the narcotics drug laws. The narcotics were seized in a search of his car pursuant to a search warrant issued to a Province-town police officer. Petitioner’s motion to suppress the evidence on the ground that the application for the warrant did not allege facts constituting probable cause was denied and his conviction was subsequently upheld by the Supreme Judicial Court. Commonwealth v. Von Utter, 1968 Mass.Adv.Sh. 559, 246 N.E.2d 806. Thereafter, Von Utter filed the instant petition for a writ of habeas corpus. In the district court, the Commonwealth, in addition to arguing the validity of the search warrant, attempted for the first time to support the seizure on the ground that it was a search incident to a lawful arrest. Although it did not ask for a decision on the merits, it did seek a remand of the case to the state court for an evidentiary hearing. The Commonwealth appeals from the order of the district court discharging the petitioner from custody. I The search warrant was accompanied by an affidavit and a memorandum setting forth the basis for the affiant’s belief that a search of the petitioner’s car would reveal quantities of LSD and marijuana. The memorandum, to the extent relevant, appears in the margin. In Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the Court elaborated on the test to be applied in judging the validity of search warrants where the information set out in the affidavit is based in part on hearsay. The Court began by reaffirming the two-pronged test announced in Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964), that “the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant * * * was ‘credible’ or his information ‘reliable’.” The Court went on to hold, however, that where the affidavit falls short of this standard, the magistrate can go beyond the informer’s tip and consider whether it and any other corroboratory information in the affidavit are sufficiently detailed “so that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s reputation.” Spinelli, supra, 393 U.S. at 416, 89 S.Ct. at 589. The Court cautioned that Aguilar’s standards must nonetheless inform the magistrate’s decision. Thus, in order to find probable cause, the magistrate must be satisfied that the information disclosed by the informant, coupled with any other information contained in the affidavit, is at least as trustworthy as the informer’s tip would need to be to stand alone under Aguilar. Following the format prescribed in Spinelli, we begin by assessing the weight to be attributed to the informer’s tip apart from the rest of the affidavit. It is apparent that the tip is deficient when measured by Aguilar’s standards. On the issue of the informer's reliability the affiant did not represent that he had had any prior contact with the informer or that the latter had provided the authorities with accurate information in the past. Rather, he attested that the informant was an admitted user, had a user’s knowledge of narcotics, and was known by the affiant personally to associate with convicted users. This description could fit any addict picked up by the police for a narcotics violation. Narcotics informants do not enjoy a reputation for veracity. Jaben v. United States, 381 U.S. 214, 224, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965); Jones v. United States, 105 U.S.App.D.C. 626, 266 F.2d 924, 928 (D.C. Cir. 1959). Lacking corroboration, information from so untested a source is unacceptable. See Wong Sun v. United States, 371 U.S. 471, 480, 83 S.Ct. 407, 9 L.Ed. 2d 441 (1963); United States v. Elgisser, 334 F.2d 103, 110 (2d Cir.), cert. denied, Gladstein v. United States, 379 U.S. 879, 85 S.Ct. 148, 13 L.Ed.2d 86 (1964); United States v. Brennan, 251 F.Supp. 99, 103-104 (N.D.Ohio 1966). Nor does the tip satisfy Aguilar’s other test: there is no indication as to how the informant came by this particular information. The fact that the informant is known to associate with convicted users is insufficient to establish how he knew that one John Von Utter would have narcotics in his possession at a certain time and place. Cf. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). To paraphrase Spinelli, “We are not told how the * * * source received his information — it is not alleged that the informant personally observed [Von Utter] at work or that he had ever [bought narcotics from] him. Moreover, if the informant came by the information indirectly, he did not explain why his sources were reliable.” See Saville v. O’Brien, 420 F.2d 347 (1st Cir. 1969), cert, denied 398 U.S.. 938, 90 S.Ct. 1840, 26 L.Ed.2d 270. We must, therefore, deal with the question of whether the facts set out in the informant’s tip augmented by information supplied by the police could lead a magistrate reasonably to believe that the information was reliable, was not derived from a casual rumor, or was not based merely on Von Utter’s general reputation. Spinelli, supra, 393 U.S. at 416, 89 S.Ct. 584. The detailed facts supplied by the informer are that Von Utter would arrive in Provincetown between March 8-10, driving a white VW 2 door sedan with Connecticut registration JJVU, and that the car would contain marijuana and LSD. These facts bear a superficial resemblance to those in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L. Ed.2d 327 (1959), in which the Court upheld a search incident to arrest on information supplied by an informant that Draper had gone to Chicago the previous day and that he would return by train with three ounces of heroin on one of two specified mornings. In addition, however, he described in meticulous detail the clothes Draper would be wearing, his habitual tendency to walk fast and the fact that he would be carrying a tan bag. As stated by the Court in Spinelli, supra, 393 U.S. at 417, 89 S.Ct. at 589, “a magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way.” We are of the opinion that the detail set forth in the instant informer’s tip is insufficient to permit a magistrate to infer that the informant spoke from personal observation or other particular knowledge of the criminal activity. There are obvious qualitative and quantitative differences between this information and that furnished in Draper. Most telling is the fact that although the informant reported that Von Utter would be in Province-town between March 8-10, the application for the warrant was not made until March 14. We think the instant case bears a stronger resemblance to Spinelli itself, where the informer supplied information that the defendant was using two telephones, described by number, and that these phones were being used to conduct illegal gambling operations. The Court held that “this meagre report could easily have been obtained from an offhand remark heard at a neighborhood bar.” Nor is the deficiency remedied by any other information contained in the affidavit. The sum total of that intelligence is that a “reliable” informant had given Detective Silva the names of persons attending parties on stated dates which conformed with “the same type of information” received by the affiant’s informant ; that Von Utter was known by the Connecticut State Police to consort with convicted narcotic users; and that Von Utter's “reputation” and the description of his car had been confirmed by the state police. The information supplied by Detective Silva’s informant is too vague to be of any value, and the mere assertion that an individual is “known” to be a criminal or to associate with criminals has been held inadequate to supply additional weight to otherwise insufficient allegations. Spinelli, supra, at 419, 89 S.Ct. 584. Notably, the affiant does not even disclose whether or not the car had arrived as predicted. The only conclusion that can be drawn is that this document falls short of the constitutional standard. II In view of the foregoing, the Commonwealth’s attempt to support the seizure as a search incident to a lawful arrest does not require extended discussion. According to the Commonwealth the police officers approached Von Utter as he was coming out of a drug store and told him they had a warrant to search his car. He said there would be no need; he would do it himself. Thereupon he reached into the glove compartment, seized some contraband from it and fled on foot. The police gave chase, apprehended him and placed him under arrest. Thereafter they searched the car and found a quantity of narcotics. On the record this is not a case where an arrest can be upheld on an independent showing of probable cause, even though the warrant turns out to be invalid. See, e.g., United States v. White, 342 F.2d 379, 381 (4th Cir.), cert. denied, 382 U.S. 871, 86 S.Ct. 148, 15 L. Ed.2d 109 (1965); Williams v. United States, 273 F.2d 781, 790 (9th Cir.), cert. denied, 362 U.S. 951, 80 S.Ct. 862, 4 L.Ed.2d 868 (1960). Here the evidence in support of the Commonwealth’s alternative contention, the action of the defendant, was initially tainted by the invalid search warrant. That defect was not remedied by what occurred afterwards. Cf. Wong Sun v. United States, supra. Affirmed. . “1. Information received from a confidential informant who is an admitted user and is known by me personally to associate with convicted narcotic users, and the informant admittedly associates with convicted users, who have past convictions for narcotic violations, and who has a user’s knowledge of narcotics. 2. Information received by me from Detective Robert Silva, who has information from a reliable informant as to dates of parties and names of persons in attendance to conform with the same type of information received from my confidential informant. 3. And information received from State Police Connecticut Narcotics Agents, Trooper Hall and Trooper Reynolds that John Joseph Von Utter is known to associate with convicted narcotic users. 4. Information from my confidential informant that John Joseph Von Utter will be operating a white VW 2 door sedan, Connecticut registration JJVU in Provincetown sometime between March 8-10, 1968 and will be containing a quantity of Marijuana, a Narcotic Drug and a quantity of Hallucinogenic Drug known as LSD (lysergic acid diethylamide) . 5. All of the information received by me from my confidential informant has been confirmed by Narcotic Agents of the Massachusetts State Police and Connecticut State Police regarding the reputation of John Joseph Von Utter and the cars, owner and description, color, registration number.” . In Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960), the Court, in sustaining an affidavit based on an informant’s tip, said: “Thus we may assume that Didone had the day before been told, by one who claimed to have bought narcotics there, that petitioner was selling narcotics in the apartment. Had that been all, it might not have been enough; but Didone swore to a basis for accepting the informant’s story. The informant had previously given accurate information. His story was corroborated by other sources of information. And petitioner was known by the police to be a user of narcotics. Corroboration through other sources of information reduced the chances of a reckless or prevaricating tale; that petitioner was a known user of narcotics made the charge against him much less subject to scepticism than would be such a charge against one without such a history.” . Compare the extent of the detail in the informer’s report in United States v. Repetti, 364 F.2d 54, 56 (2d Cir. 1966) : “Appellant was arrested after an informant, who had proved . reliable on twenty-five prior occasions, told an agent of the Federal Bureau of Narcotics that a man named Paul, white, five feet, four inches tall, weighing one hundred ten pounds, thin with a prominent nose, driving a customized black Mercury, bearing New York registration number 9T 4041, would be delivering an ounce of heroin at 135th Street and Fifth Avenue at five o’clock in the afternoon of August 2, 1963. Federal narcotics agents were posted at the place referred to by the informant. At five o’clock appellant drove up in an automobile fitting the informant’s description.” 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_decisiontype

B

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion. MARTIN, SECRETARY OF STATE OF TEXAS, et al. v. BUSH et al. No. 675. Decided March 2, 1964. Waggoner Carr, Attorney General of Texas, Albert P. Jones and Hawthorne Phillips, First Assistant Attorneys General, Mary K. Wall, Assistant Attorney General, Will D. Davis and Frank C. Erwin, Jr. for appellants. William B. Cassin and Thad T. Hutcheson for appellees. Pee Curiam. The motion to affirm is granted and the judgment is affirmed on the authority of Wesberry v. Sanders, ante, p. 1, without prejudice to the right of the appellants to apply by April 1, 1964, to the District Court for further equitable relief in light of the present circumstances including the imminence of the forthcoming election and “the operation of the election machinery of Texas” noted by the District Court in its opinion. The stay heretofore granted by Mr. Justice Black is continued in effect pending timely application for the foregoing relief and final disposition thereof by the District Court. Mr. Justice Clark joins this disposition, but upon the grounds stated in his separate opinion in Wesberry v. Sanders, ante, p. 18. Mr. Justice Harlan and Mr. Justice Stewart would reverse the judgment below for the reasons stated in their dissenting opinions in Wesberry v. Sanders, ante, pp. 20, 50. 224 F. Supp. 499, 513. Question: What type of decision did the court make? A. opinion of the court (orally argued) B. per curiam (no oral argument) C. decrees D. equally divided vote E. per curiam (orally argued) F. judgment of the Court (orally argued) G. seriatim Answer:

songer_geniss

F

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". NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 810, STEEL, METALS, ALLOYS & HARDWARE FABRICATORS & WAREHOUSEMEN, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Respondent, and Sid Harvey, Inc. and Sid Harvey Brooklyn Corp., Intervenors. Nos. 574, 575, Dockets 71-1951, 71-2062. United States Court of Appeals, Second Circuit. Argued March 24, 1972. Decided May 11, 1972. Jack H. Weiner, Washington, D. C. (Peter G. Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Nancy M. Sherman, Washington, D. C., on the brief), for petitioner. Thomas Canafax, Jr., Washington, D. C. (Shimmel, Hill & Bishop, Washington, D. C., and Henry Brickman, New York City, on the brief), for respondent. John T. Redmond, New York City (James H. Tully, Jr., Wood, Redmond & Tully, New York City, on the brief), for intervenors. Before HAYS, MANSFIELD and MULLIGAN, Circuit Judges. HAYS, Circuit Judge: The National Labor Relations Board filed this application for enforcement of its order directing respondent Local 810 to cease and desist from conducting a secondary boycott in violation of Section 8(b) (4) (i) and (ii) (B) of the National Labor Relations. Act, 29 U.S.C. § 158(b) (4) (i) and (ii) (B) (1970). The charging parties, Sid Harvey, Inc. and Sid Harvey Brooklyn Corp., intervened, urging that the application be granted. The Union cross-petitioned to set aside the Board’s order. We deny enforcement of the Board’s order and grant respondent’s cross-petition to set it aside. I. The Facts The Trial Examiner’s findings of fact were adopted by the Board and are supported by substantial evidence. These findings establish the following: A. The Initial Dispute An employee of Sid Harvey Supply, Inc. was discharged on February 20, 1970, and the Union went on strike after the company refused to reinstate him. The Union began picketing Supply that day, and on March 10 commenced picketing Sid Harvey, Inc. In May and June, members of the Union picketed and distributed handbills in front of stores operated by Sid Harvey Brooklyn Corp., Sid Harvey Nassau, Inc., and Sid Harvey Suffolk, Inc. The picket signs and leaflets, and the verbal exhortations of the pickets, requested the public not to buy Sid Harvey products. The pickets were successful in persuading some of the potential customers of one store operated by Nassau not to patronize that store, and also prevailed on carriers not to make deliveries to Inc. and Brooklyn. On June 11 the Union discontinued the picketing of Inc., Brooklyn, Nassau, and Suffolk after the United States District Court for the Eastern District of New York temporarily enjoined the Union from picketing the four corporations in violation of § 8(b) (4) (i) and (ii) (B). B. Relationships Among the Sid Harvey Companies 1. Structure and Operations Supply, the company which the Union struck, and the four companies the Union picketed before the issuance of the temporary injunction, are a part of a complex of interrelated corporations operating on a nationwide basis. The Sid Harvey corporations are engaged in the reconditioning, distribution, and sale of air conditioning and heating equipment to trade users. While the Sid Harvey corporations are not totally interdependent, they constitute what is essentially a vertically integrated operation, or to use the popular term for their relationship to each other, they are engaged in a straight-line operation. The keystone of the Sid Harvey organization is Inc., located in Valley Stream, Long Island. Inc., and Sid Harvey Midwest, Inc., located in Illinois, are engaged in the business of rebuilding and reconditioning air conditioning and heating equipment and parts for such equipment. Inc. obtains the used equipment that it rebuilds from the sales companies within the Sid Harvey group. The equipment rebuilt by Inc. is warehoused and then distributed by Supply to the various Sid Harvey sales companies. Supply does not distribute only Inc. goods, but all of Inc.’s goods are distributed by Supply. Supply distributes only to sales companies within the Sid Harvey group. Although the record is not entirely clear, it appears that there are approximately 20 sales companies in the Sid Harvey group, many of which, like Nassau, Brooklyn, and Suffolk, have corporate names containing the words “Sid Harvey.” These sales companies receive from Inc. via Supply all the rebuilt equipment they sell. The greater part of the new equipment sold by the sales companies is obtained indirectly from the manufacturers through Supply, with the remaining portion obtained directly from manufacturers. Thus, of Nassau’s sales, 40% represents sales of Inc.’s rebuilt equipment, and 60% is of new equipment; 60% of the new equipment sold is obtained through Supply. The corresponding figures for Brooklyn are 20%, 80%, and 85-90%, and for Suffolk are 33%, 67%, and 70%. 2. Control Stephen Harvey owns 100% of the voting stock of Inc., and is chairman of the board of directors, president, and treasurer. Supply is owned by fourteen Sid Harvey sales companies located in the Northeast. Stephen Harvey has voting control of nine of these sales companies, including Brooklyn and Nassau. Collectively those nine own 73% of the stock of Supply. Stephen Harvey is chairman of the board and an officer of each of these sales companies, and is chairman of the board and treasurer of Supply. Although Stephen Harvey has a commanding position in the interlocking corporate structure of the Sid Harvey group, the Trial Examiner found that he “has no actual day-to-day duties in any of these corporations except Inc.” 3. Corporate Policy and Functional Relationships Much of the hearing and a large part of the opinion of the Trial Examiner were devoted to an examination of policies, practices, and working conditions within the various Sid Harvey corporations. In view of the basic questions raised by a suit of this nature, a good deal of what the Trial Examiner concerned himself with was of marginal relevance and dubious materiality. The Trial Examiner found that some of Inc.’s marketing activities are conducted in the building where Supply has its offices, although the areas in which the two corporations are located “are separated by partitions and lockable doors (which are open during working hours), and the employees of each company have separate entrances and separate restrooms.” The two pay rent directly to the landlord, a partnership in which Stephen Harvey “has an interest,” as he does in all the partnerships from which companies in the Sid Harvey group rent land and facilities. The two corporations located in the one building utilize a common switchboard, and Inc. pays Supply a service fee for “some minor services” such as janitorial work. All the companies in the Sid Harvey group have the same hospital, medical, group life, and automobile liability policies. Occasionally an employee of one of the companies will take a job with another Sid Harvey company. One accounting firm served all the Sid Harvey corporations and it “prepared an office manual of standard operating procedures.” However the companies were not required to use the manual. The Trial Examiner compared the working conditions at Supply and Inc. and found: “Although [the Union] showed a number of working conditions in common among the employees of Inc. and Supply, [including “the same system of rating jobs, the same work hours and two 10-minute rest periods, the same number of holidays, Christmas bonuses based upon length of service, the same profit-sharing program”] there were also many working conditions that were different between the two groups .... The two groups had different rules for qualification of overtime, different sick pay and disability benefits, and other benefits. Supply has no pension plan; Inc. does. Inc. has a cash attendance award. Supply does not. Inc. has a savings plan for employees; Supply does not. There are differences in the rules on ‘tardiness,’ smoking, making telephone calls, working on Election Day, to mention a few.” More important for the question presented by this case, the Trial Examiner and the Board found that once a year “the presidents and some other top executives” of the Sid Harvey group of companies meet to discuss problems common to the companies. The Board found that at the May, 1970 meeting the strike at Supply was discussed, but “there was no proof that overall policies resulted from these meetings, particularly no overall labor policy or personnel policy.” In addition the Board found that Stephen Harvey had personally fired two presidents of two Sid Harvey companies, and that he actively oversaw and controlled the financial aspects of the Sid Harvey companies. Inc. publishes a monthly news letter, “Renews,” which the Trial Examiner termed a “house organ.” This house organ contains news about people in the various Sid Harvey companies as well as corporate news. Its content reveals that the personnel of the companies considered themselves to be engaged in interlocking business activities in an interrelated corporate structure. II. The Decision of the Board The Board, adopting the Trial Examiner’s decision, stated that the question of whether the Union had violated § 8(b) (4) (i) and (ii) (B) by picketing Brooklyn, Suffolk, Nassau, and Inc. turned on whether the related companies were so closely allied as not to be “other employer [s]” within the meaning of that section. The Board said: “On the ‘ally’ issue the precise question is whether the corporations were under the actual control of Stephen Harvey, as distinguished from his potential control.” The Board found “[u]pon all. the above facts and considerations and the entire record in the case considered as a whole . . . that despite the cooperation and mutual assistance among the various corporations directly involved herein, there is not that appreciable degree of integration of management and day-to-day operations between Supply, the primary employer, and the others, as to make them allies and deprive Inc., Brooklyn, Nassau, and Suffolk of the protection of Section 8(b) (4) of the Act.” (Emphasis added.) In so holding, the Board relied heavily on the conclusion, that, despite Stephen Harvey’s dominant position in the corporate structures of Inc., Supply, and the various Sid Harvey sales companies, he did not actually control the daily operations of all these companies. In addition, in considering the differences in the working conditions and benefits of Supply, Inc., and the sales companies, the Board assumed that if the management and operations of the Sid Harvey group were integrated on a day to day basis, all working conditions and benefits — such as smoking rules and disability benefits — would be the same, regardless of the function or size of the individual company. III. Section 8(b) (4) and the Neutral Secondary Employer The question presented for decision by the Board was whether the four secondary employers picketed by the Union were in fact the same employer within the meaning of § 8(b) (4) (i) and (ii) (B), which provides: “(b) It shall be an unfair labor practice for a labor organization or its agents— ****** (4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in any industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is— (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees . Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing . . . . ” The question presented in this case is whether the Board applied the correct legal test and whether it could properly conclude, on the basis of the evidence in the record that the four employers picketed by the Union were “other employer [s]” within the meaning of the Act. Section 8(b) (4), as amended, was enacted to prevent the widening of a labor dispute to entangle employers who had no concern with the original dispute. To this end Congress prohibited unions from engaging in secondary boycotts, that is “pressure tactically directed toward a neutral employer in a labor dispute not his own.” National Woodwork Mfrs. Ass’n v. N. L. R. B., 386 U.S. 612, 623, 87 S.Ct. 1250, 1257, 18 L.Ed.2d 357 (1967) (footnote omitted). The broad policy objective of this section is “the protection of neutrals against secondary pressure . . . .” Id. at 627, 87 S.Ct. at 1259 (emphasis added) “Congressional concern over the involvement of third parties in labor disputes not their own prompted § 8(b) (4) (B). This concern was focused on the ‘secondary boycott,’ which was conceived of as pressure brought to bear, not ‘upon the employer who alone is a party [to a dispute], but upon some third party who has no concern in it’ ” (footnotes omitted). N. L. R. B. v. Local 825, Int’l Union of Operating Engineers, 400 U.S. 297, 302-303, 91 S.Ct. 402, 406, 27 L.Ed.2d 398 (1971). The basic question in this case is whether in fact Inc., Nassau, Brooklyn, and Suffolk were neutral third parties in the dispute between respondent Union and Supply. N. L. R. B. v. Local 810, Steel Fabricators, 299 F.2d 636, 637 (2d Cir. 1962); N. L. R. B. v. Milk Drivers Local 584, 341 F.2d 29, 32-33 (2d Cir.), cert. denied, 382 U.S. 816, 86 S.Ct. 39, 15 L.Ed.2d 64 (1965). In determining whether an employer is in fact a neutral in a labor dispute, the courts have considered such factors as the extent to which a corporation is de facto under the control of another corporation, the extent of common ownership of the two employers, the integration of the business operations of the employers, and the dependence of one employer on the other employer for a substantial portion of its business. See, e. g., Carpet Layers Local 419 v. N. L. R. B., 429 F.2d 747, 752 (D.C. Cir. 1970); N. L. R. B. v. General Teamsters Local 126, 435 F.2d 288, 291 (7th Cir. 1970); Truck Drivers Local 728 v. Empire State Express, Inc., 293 F.2d 414, 423 (5th Cir.), cert. denied, 368 U.S. 931, 82 S.Ct. 365, 7 L.Ed.2d 194 (1961); N. L. R. B. v. Somerset Classics, Inc., 193 F.2d 613, 615 (2d Cir.), cert. denied, 344 U.S. 816, 73 S.Ct. 10, 97 L.Ed. 635 (1952). As the court said in Vulcan Materials Co. v. United Steelworkers of America, 430 F.2d 446, 451, 453 (5th Cir. 1970), cert. denied, 401 U.S. 963, 91 S.Ct. 974, 28 L.Ed.2d 247 (1971): “In the final analysis, however, the question of neutrality cannot be answered by the application of a set of verbal formulae. Rather, the issue can be resolved only by considering on a case-by-case basis the factual relationship which the secondary employer bears to the primary employer up against the intent of the Congress as expressed in the Act to protect employers who are ‘wholly unconcerned’ and not involved in the labor dispute between the primary employer and the union. * * * * * * In determining whether the relationship of a secondary employer and a primary employer is such as to destroy neutrality, the court must look to the essence of the relationship, and not to its incidental trappings.” See also Local 24, Int’l Bhd. of Teamsters v. N. L. R. B., 266 F.2d 675, 680 (D.C. Cir. 1959). The Supreme Court has cautioned against the mechanical application of tests which obscures the “central theme” — neutrality—of this section. Nat’l Woodwork Mfrs. Ass’n v. N. L. R. B., supra, at 625, 87 S.Ct. 1250. See also Local 761, Intern Union of Electrical, etc., Workers. v. N. L. R. B., 366 U.S. 667, 677, 81 S.Ct. 1285, 6 L.Ed.2d 592 (1961). Cf. N. L. R. B. v. Denver Building & Construction Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284 (1951). Neutrality, for purposes of the Act, is not a technical concept. To determine whether an employer is neutral involves a common sense evaluation of the relationship between the two employers who are being picketed. In mechanically applying a “day-to-day” test in this case, the Board engaged in a technical exercise in the intricacies of corporate structure rather than a realistic, common sense evaluation of neutrality. The Sid Harvey organization is essentially an integrated complex which manufactures, distributes, and sells a limited number of products. Ownership and control of the five corporations is centralized or overlapping. The daily contact among the corporations is extensive, and the operation and success of each is interrelated with and heavily dependent upon the other members of the group performing their assigned tasks. Only in the most strained and technical sense could the picketed employers be characterized as neutral. The petition for enforcement is denied, and the cross petition for an order vacating the order of the Board is granted. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:

sc_authoritydecision

B

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. CARROLL et al. v. LANZA, DOING BUSINESS AS LAKE CHARLES ELECTRIC CO. No. 375. Argued March 31, 1955. Decided June 6, 1955. Shields M. Goodwin argued the cause and filed a brief for petitioners. Alston Jennings argued the cause for respondent. With him on the brief was Edward L. Wright. Me. Justice Douglas delivered the opinion of the Court. Carroll, the petitioner, was an employee of Hogan, an intervenor, who in turn was a subcontractor doing work for the respondent Lanza, the general contractor. Carroll and Hogan were residents of Missouri; and Carroll’s employment contract with Hogan was made in Missouri. The work, however, was done in Arkansas; and it was there that the injury occurred. Carroll, not aware that he had remedies under the Arkansas law, received 34 weekly payments for the injury under the Missouri Compensation Act. The Missouri Act is applicable to injuries received inside or outside the State where the employment contract, as here, is made in the State. Mo. Rev. Stat., 1949, § 287.110. The Missouri Act also provides that every employer and employee shall be “conclusively presumed to have elected to accept” its provisions unless “prior to the accident” he shall have filed with the compensation commission a written notice that he “elects” to reject the compensation provision. Id., § 287.060. No such notice, however, was filed in this case. Moreover, the Missouri Act provides that the rights and remedies granted by it “shall exclude all other rights and remedies ... at common law or otherwise,” on account of the injury or death. Id., § 287.120. . Arkansas also has provisions for workmen’s compensation. Ark. Stat., 1947, § 81-1301 et seq. It provides the exclusive remedy of the employee against the employer (id., § 81-1304) but not against a third party. Id., § 81-1340. And the court below, on review of Arkansas authorities, concluded that a general contractor, such as Lanza, the respondent, was a third party within the meaning of the Arkansas Act. And see Baldwin Co. v. Maner, - Ark. -, 273 S. W. 2d 28. While Carroll was receiving weekly payments under the Missouri Act, he decided to sue Lanza for common-law damages in the Arkansas courts. Lanza had the case removed to the Federal District Court where judgment was rendered for Carroll. 116 F. Supp. 491. The Court of Appeals, while agreeing with the District Court that the judgment was sustainable as a matter of -Arkansas law, reversed on the ground that the Full Faith and Credit Clause of the Constitution (Art. IV, § 1) barred recovery. 216 F. 2d 808. The case is here by petition for certiorari which we granted (348 U. S. 870) because of doubts as to the correctness of the decision raised by Pacific Employers Insurance Co. v. Commission, 306 U. S. 493. The Court of Appeals thought Magnolia Petroleum Co. v. Hunt, 320 U. S. 430, to be controlling. There the employee having received a final award for compensation in the forum of the injury returned to his home State and sued to recover under its Compensation Act. We held that the latter suit was precluded by the Full Faith and Credit Clause. But here there was no final award under the Missouri Act. Under that Act the statutory payments apparently start automatically on receipt of notice of the injury. Mo. Rev. Stat., 1949, §§ 287.380, 287.400. While provision is made for an adjudication of disputes between an employee and his employer (id., §§ 287.400, 287.450), no adjudication was sought or obtained here. Nor do we have a case where an employee, knowing of two remedies which purport to be mutually exclusive, chooses one as against the other and therefore is precluded a second choice by the law of the forum. Rather we have the naked question whether the Full Faith and Credit Clause makes Missouri’s statute a bar to Arkansas’ common-law remedy. A statute is a “public act” within the meaning of the Full Faith and Credit Clause. See Bradford Electric Co. v. Clapper, 286 U. S. 145, 154-155, and cases cited; Alaska Packers Assn. v. Commission, 294 U. S. 532. It was indeed held in the Clapper case that a Vermont Compensation Act, which purported to give an exclusive remedy, barred a common-law action on the same claim in the New Hampshire courts by a Vermont employee against a Vermont employer, even though the injury occurred in New Hampshire. The Clapper case allowed a State to fix one exclusive remedy for personal injuries involving its residents, and required the other States to refuse to enforce any inconsistent remedy. Thus, as respects persons residing or businesses located in a State, a remedy was provided employees that was “both expeditious and independent of proof of fault,” and a liability was imposed on employers that was “limited and determinate.” 286 U. S., at 159. Pacific Employers Insurance Co. v. Commission, 306 U. S. 493, departed, however, from the Clapper decision. There a resident of Massachusetts regularly employed in Massachusetts by a Massachusetts corporation was injured while doing temporary duty in California. The Massachusetts Compensation Act purported to give an exclusive remedy, even for injuries incurred beyond its borders. But California also had a Compensation Act which undertook to fix liability on employers, irrespective of any contract, rule, or regulation, a provision which the California courts strictly enforced. The Court, therefore, held that the exclusive nature of the Massachusetts Act was “obnoxious” to the policy of California. The Court proceeded on the premise, repeated over and again in the cases, that the Full Faith and Credit Clause does not require a State to substitute for its own statute, applicable to persons and events within it, the statute of another State reflecting a conflicting and opposed policy. Id., at 502. The Pacific Employers Insurance Co. case allowed the Compensation Act of the place of the injury to override the Compensation Act of the home State. Here it is a common-law action that is asserted against the exclusiveness of the remedy of the home State; and that is seized on as marking a difference. That is not in our judgment a material difference. Whatever deprives the remedy of the home State of its exclusive character qualifies or contravenes the policy of that State and denies it full faith and credit, if full faith and credit is due. But the Pacific Employers Insurance Co. case teaches that in these personal injury cases the State where the injury occurs need not be a vassal to the home State and allow only that remedy which the home State has marked as the exclusive one. The State of the forum also has interests to serve and to protect. Here Arkansas has opened its courts to negligence suits against prime contractors, refusing to make relief by way of workmen’s compensation the exclusive remedy. Baldwin Co. v. Maner, supra. Her interests are large and considerable and are to be weighed not only in the light of the facts of this case but by the kind of situation presented. For we write not only for this case and this day alone, but for this type of case. The State where the tort occurs certainly has a concern in the problems following in the wake of the injury. The problems of medical care and of possible dependents are among these, as Pacific Employers Insurance Co. v. Commission, supra, emphasizes. Id., at 501. A State that legislates concerning them is exercising traditional powers of sovereignty. Cf. Watson v. Employers Liability Corp., 348 U. S. 66, 73. Arkansas therefore has a legitimate interest in opening her courts to suits of this nature, even though in this case Carroll’s injury may have cast no burden on her or on her institutions. This is not a case like Hughes v. Fetter, 341 U. S. 609, where the State of the forum seeks to exclude from its courts actions arising under a foreign statute. In that case, we held that Wisconsin could not refuse to entertain a wrongful death action under an Illinois statute for an injury occurring in Illinois, since we found no sufficient policy considerations to warrant such refusal. And see Broderick v. Rosner, 294 U. S. 629. The present case is a much weaker one for application of the Full Faith and Credit Clause. Arkansas, the State of the forum, is not adopting any policy of hostility to the public Acts of Missouri. It is choosing to apply its own rule of law to give affirmative relief for an action arising within its borders. Missouri can make her Compensation Act exclusive, if she chooses, and enforce it as she pleases within her borders. Once that policy is extended into other States, different considerations come into play. Arkansas can adopt Missouri’s policy if she likes. Or, as the Pacific Employers Insurance Co. case teaches, she may supplement it or displace it with another, insofar as remedies for acts occurring within her boundaries are concerned. Were it otherwise, the State where the injury occurred would be powerless to provide any remedies or safeguards to nonresident employees working within its borders. We do not think the Full Faith and Credit Clause demands that subserviency from the State of the injury. Reversed. The Missouri Supreme Court has construed the Missouri Compensation Act as providing the exclusive remedy, even when, as here, the employee of the subcontractor sues the general contractor for common-law damages. Bunner v. Patti, 343 Mo. 274, 283, 121 S. W. 2d 153, 156-157. The touchstone seems to be the existence of a Missouri employment contract, such as exists in the present case, wherever the injury may have occurred. We can find no suggestion in the Missouri cases that the Missouri Compensation Act is not the exclusive remedy against the prime contractor when his contract with the subcontractor is made outside Missouri. No such suggestion is made by any of the parties to this litigation. Hogan and his Indemnity Company, intervenors, were granted a lien on the judgment in favor of Carroll for the amounts paid to Carroll as compensation. Article IV, § 1 of the Constitution provides: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” 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_two_issues

A

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. UNITED STATES of America, Appellee, v. Luis Alphonso HENRIQUEZ, Jose Colon Ortiz, Segundo Zacarias Ortiz, Juan Andres Julio-Cardales, Joaquim G. Mejia, Olivio Omelis-Gundis, Felipe Molina Marrujo, Francisco Javier Gomez, and Rodrigo Roman-Ortiz, Appellants. Nos. 458, 459, 466, 531, 588, 461, 460, 485, 462, Dockets 83-1186 to 83-1193, and 83-1241. United States Court of Appeals, Second Circuit. Argued Dec. 12, 1983. Decided March 20, 1984. Carol B. Schachner, Asst. U.S. Atty., New York City (Raymond J. Dearie, U.S. Atty., E.D.N.Y., Gregory J. Wallance, Asst. U.S. Atty., Brooklyn, N.Y., on brief), for appellee. Phylis Skloot Bamberger, New York City (Robin Charlow, Legal Aid Society, Federal Defender Services Unit, New York City, on brief), for appellant Gomez. Lawrence Farkash, New York City, for appellant Omelis-Gundis. Austin V. Campriello, New York City (Polstein, Ferrara & Campriello, New York City, on brief), for appellant Roman-Ortiz. Gary Schoer, Forest Hills, N.Y., for appellant Marrujo. Stuart R. Shaw, New York City, for appellant Henriquez. Frank J. Livoti, Mineóla, N.Y., for appellant Colon Ortiz. Kenneth Ramseur, New York City, for appellant Segundo Ortiz. George S. Popielarski, Brooklyn, N.Y., for appellant Julio-Cardales. Millard King Roper, Bellerose, N.Y., for appellant Mejia. Before FEINBERG, Chief Judge, and OAKES and PIERCE, Circuit Judges. OAKES, Circuit Judge: This appeal, coming to us on conditional pleas of guilty preserving several questions, raises three issues. The first of these is said to go to “subject matter jurisdiction,” the second relates to the constitutionality of the underlying jurisdictional statute, and the third is based on the government’s failure to preserve certain tapes. The appellants, all foreign nationals, pleaded guilty to possession with intent to distribute marijuana “on board a vessel subject to the jurisdiction of the United States on the high seas,” in violation of 21 U.S.C. § 955a(a) (Supp. V 1981) and 18 U.S.C. § 2 (1976) (aiding and abetting). The United States District Court for the Eastern District of New York, Jacob Mish-ler, Judge, accepted the defendants’ guilty pleas on the condition that the issues of subject matter jurisdiction and the failure to preserve the tapes would be preserved. We remand for further findings in respect to the status of the vessel involved, the “Juan XXIII.” FACTS On January 5, 1983, at about 3:00 p.m., a single-stack motor vessel was sighted by a U.S. Coast Guard aircraft in international waters approximately 73 miles off Long Island. The vessel was headed for Mon-tauk. Fifty minutes later the vessel had altered its course 180 °, and by 5:00 p.m. personnel aboard the aircraft observed an individual jettisoning bale-like objects, some 123 of which were counted by the aircraft. The aircraft subsequently dropped a marker buoy at the spot the bales were jettisoned. A Coast Guard cutter was dispatched and three aircraft successively maintained surveillance of the vessel until the cutter arrived in the vicinity at 2:30 a.m. on January 6. The cutter came within sight of the vessel at approximately 7:00 a.m. No identifying markings on the vessel were visible from as close as 300 yards. After several unsuccessful attempts to establish contact by radio or bullhorn, the Coast Guard finally elicited a radio response that the vessel was the Juan XXIII of Honduran nationality, and permission was given to board. Circling the vessel prior to boarding, the boarding party saw two small boards or plaques on the railing just above the pilot house reading “Juan XXIII, Honduras.” The boarding party was given the vessel’s Honduran registry papers, dated September, 1979, later found by the district court to be counterfeit. Search of the engine room and cargo for a “main beam number” revealed traces of what appeared to be marijuana, the smell of which pervaded the air despite the hold having been washed down with diesel fuel. A field test on the substance indicated the presence of THC, the active ingredient of marijuana. The boarding party returned to the cutter. According to the testimony of Lt. Voiles, who had headed the boarding party, the Coast Guard received word that night, January 6, that the Honduran government refuted the claim to Honduran registry. The following day the Juan XXIII was again boarded. Wooden pallets which had been on the floor of the cargo hold the day before were no longer there. The appellants were taken into custody and the Juan XXIII secured. Meanwhile many of the bales which had been jettisoned had been recovered. Eventually, custody of the crew, contraband, and other evidence was transferred to the Drug Enforcement Administration and prosecution on a two count indictment charging conspiracy to violate 21 U.S.C. § 955a(a) and possession of marijuana with intent to distribute commenced. Motions to dismiss for lack of subject matter jurisdiction were filed on the basis that the United States did not have jurisdiction over Colombian nationals aboard a non-American vessel in international waters. It was also argued that there was insufficient proof that the vessel was “stateless” so as to be subject to the jurisdiction of the United States within section 955a(a), and that the indictment should be dismissed. Next it was argued that the Government’s evidence of the air and sea surveillance should have been suppressed because the Coast Guard, in what the United States Attorney called an act of “bureaucratic negligence,” destroyed certain tapes which the Magistrate had in effect ordered preserved. Certain other motions now waived were filed. All defense motions were denied, with the judge making findings in connection with the “statelessness” issue that will be discussed below. DISCUSSION Subject Matter Jurisdiction A. Nexus Requirement. Appellants argue that Congress cannot assert American jurisdiction to prosecute criminally foreigners on non-American vessels anywhere on the high seas in the complete absence of any nexus between the defendants and the United States, even though Congress clearly intended, as it provided in 21 U.S.C. § 955a(h) (Supp. V 1981), “to reach acts of possession, manufacture, or distribution committed outside the territorial jurisdiction of the United States.” The district court found, however, that there was a nexus between the defendants and the United States. The court concluded that the defendants possessed marijuana with intent to distribute it in the United States from the fact that the vessel was initially sighted beaded towards Montauk Point and then, upon sighting the well-marked Coast Guard aircraft,- turned around and took flight in the opposite direction. We do not quarrel with that finding which the court found was “established ... beyond any reasonable doubt.” But the law of this circuit, as recently formulated in United States v. Pinto-Mejia, 720 F.2d 248, 260-61 (2d .Cir.1983), is that “stateless vessels on the high seas are, by virtue of their statelessness, subject to the jurisdiction of the United States ... even absent proof that the vessel’s operators intended to distribute their cargo in the United States____” Thus on either basis — that there was a nexus or that a nexus is unnecessary — the ruling of the district court that there was jurisdiction must be sustained. B. “Statelessness.” The question remains whether the Juan XXIII was “stateless,” for only stateless vessels or vessels “assimilated to” stateless vessels come under United States jurisdiction pursuant to section 955a(a) and (b). The Government argues that this question was not reserved since it does not fall under the rubric “subject matter jurisdiction,” but rather goes to the merits. See Fogel v. Chestnutt, 668 F.2d 100, 105-07 (2d Cir. 1981) (Friendly, J.) (elaborating upon judicial confusion between “jurisdiction” and whether the complaint states a cause of action), cert. denied, 459 U.S. 828, 103 5. Ct. 65, 74 L.Ed.2d 66 (1982). But whether or not one agrees with the Government that the Pinto-Mejia panel fell into the trap against which Judge Friendly warned in Fogel, appellants here were entitled to rely on that case’s holding that statelessness was an element of subject matter jurisdiction. 720 F.2d at 256-61. We have no doubt that the issue of “statelessness” was preserved for review here under the slippery label of “jurisdiction.” At all times below both counsel and court treated the question of statelessness as part of the issue of subject matter jurisdiction, the court referring to it at one point as “some variation” of the jurisdiction issue and, later, “a jurisdiction issue.” Moreover, it is more than a bit inconsistent for the Government to argue as it does that Pinto-Mejia was correct in finding that the stateless nature of the vessel is the basis for subject matter jurisdiction under international law, but wrong to treat the question of the vessel’s status as one going to subject matter jurisdiction. In any event, like the panel in Pinto-Mejia, we will treat the issue as preserved for review as the parties and district court intended it to be. On the hearing below the Government’s evidence adduced to show statelessness was as follows. First, there was the direct evidence of the observations of the vessel. Unlike most vessels, this vessel was not flying a flag and lacked a main beam number. The sole reference to Honduras on the vessel was on the two small plaques, “Juan XXIII, Honduras,” on the railing above the bridge. Second, there was the hearsay testimony of Lieutenant Voiles, the head of the boarding party, that a message was received on the evening of January 6,1983 in response to a request by the Coast Guard cutter that Honduras refuted the Juan XXIII claim of registry. The testimony did not indicate who arrived at that conclusion, how it was arrived at, or through what channels the information passed. Cf. United States v. Yakobov, 712 F.2d 20, 23-24 (2d Cir.1983) (proof of lack of registration not satisfied by hearsay statements inadmissible under Fed.R.Evid. 803(10)). Third, the Government produced a Honduran Certificate of Non-Registry, dated February 11, 1983, issued under the seal of the Commandant General of the Honduran Navy, duly authenticated and stating that a search had been conducted of the Records on the Registration of the vessel “M/V Juan XXIII” pursuant to the request from the Government of the United States of America. The results of the said search have been negative, as I was unable to locate any records such as are regularly kept by the Government of Honduras. Therefore, the Government of Honduras concludes that the “M/V Juan XXIII” is not a Honduran registration vessel. ' To counter the Government’s evidence, the appellants produced Ralph Addonizio, a private investigator who had been advised by the Honduran Consul General that the Juan XXIII’s Honduran registration appeared to be authentic, but that he, the Consul General, would only testify at the request of the United States Government. The Consul General said he would cable Honduras as to the authenticity of the 1979 papers. Addonizio so testified and, when on his cross-examination the government introduced its Certificate of Non-Registry (and a translation thereof), the court directed the witness to take the Certificate and translation to the Consul General and to report back. He did so and reported as a court witness that the Consul General said that the Certificate seemed genuine, that his cable inquiring as to the 1979 papers had not been answered, and that some 500 ships had had their Honduran registrations cancelled in 1983. The Honduran Consul ultimately did not testify, nor was any answer to his cable of inquiry or report of it adduced. On the foregoing the district court found that the vessel was stateless and that its 1979 registration certificate “was a counterfeit certificate and it simulated or assimilated the certification of registry in Honduras.” At oral argument on this appeal much discussion ensued as to what the Government’s burden of proving statelessness was, the argument touching upon standards ranging from some evidence to a mere preponderance of the evidence and to beyond a reasonable doubt. Without getting into this question, which subsumes or may subsume questions as to whether statelessness is a matter going to subject matter jurisdiction or is an element of the crime (as to which see supra note 6 and accompanying text), as well as questions pertaining to the Government’s burden of proof on a conditional plea of guilty, remand for the district court to consider these issues in the first instance. We note that there was vigorous briefing and argument on appeal on the question whether the proof here was sufficient to establish that on January 6-7, 1983, when the vessel was searched and seized and appellants arrested, it lacked a valid Honduran certificate. For all that appears the 1979 papers could have been genuine and the registry cancelled between January 6-7 and February 11, the date of the Certificate of Non-Registry; under such a scenario all papers were genuine. There may well be insufficient evidence to support a finding of counterfeiting. Far preferable would be a certificate of non-registry which satisfies the requirements of Fed.R.Evid. 803(10) that speaks to the date of search and seizure, or a similarly valid showing of prior cancellation of the 1979 papers or non-registration in the first instance. See United States v. Fitzpatrick, 581 F.2d 1221, 1223 (5th Cir. 1978) (allegation that bank robbed was insured by FDIC; proof must relate to day of robbery). On this basis, appellants would have us reverse the district court outright and dismiss the indictment, going so far as to suggest that the double jeopardy clause of the Fifth Amendment is involved. We view the suggestion as unavailing since this was, after all, a conditional guilty pléa, cf. Forman v. United States, 361 U.S. 416, 425-26, 80 S.Ct. 481, 486-87, 4 L.Ed.2d 412 (1960) (no double jeopardy on retrial after conviction reversed and remanded). Accordingly, exercising our power to determine cases under 28 U.S.C. § 2106 (1976), see Forman v. United States, 361 U.S. at 425, 80 S.Ct. at 486, as the court did implicitly in Pinto-Mejia, 720 F.2d at 258, we remand so that the district court may determine the appropriate standard of proof and make further findings, with the Government to have the opportunity to adduce evidence sufficient to satisfy whatever burden it may have. Coast Guard Tapes Lieutenant Commander D’Alessandro, as liaison between the Coast Guard District Legal Office and the United States Attorney’s Office in this case, was responsible for supervising the gathering of evidence. Coast Guard Operations Center (OPCEN) in New York is responsible for keeping track of cases involving Coast Guard operational units away from base. It maintains twenty-four hour continuously running tape recordings of all ship to ground communications, as well as search and rescue chronological logs (“chronologs”) and message traffic of ships within its jurisdiction. The twenty-four hour tapes record all telephone conversations with field units. Simultaneously with the recordings Coast Guard personnel make entries in the chronolog reflecting the substance of the conversations. The tapes are stored at OPCEN for thirty days and then routinely reused for budgetary reasons. Sometime at or near the time of this case OPCEN formulated a policy which required any office requesting that the original tapes be retained beyond thirty days either to provide replacement tapes or sufficient funds to buy them, a policy which Lieutenant Commander D’Alessandro learned of only in late January, 1983. Defense attorneys requested the production of all tape recorded material relating to this case, and this request was embodied in a magistrate’s order. Subsequently, D’Alessandro prepared a memorandum requesting the participating units to preserve “all tapes, logs, records, etc.,” and the memorandum was sent to New York OPCEN, Boston OPCEN, the Boston Communications Center which monitors all Coast Guard aircraft operations in the North Atlantic and routinely relays messages to New York OP-CEN, various other air stations and the vessels which were or might be involved. In response to the written request for preservation of all evidence, New York OPCEN advised the District Legal Office of its new policy. Evidently, however, the reply was directed to D’Alessandro’s superior, Commander Matthews, and no adequate response was made, so that the tapes in question were routinely reused after thirty days. Re-use of course means erasure. Appellants unsurprisingly complain that this erasure either deprived them of their rights to due process and a fair trial or that the court should at least have precluded the Government from using at trial testimony pertaining to the surveillance and seizure of the Juan XXIII. The Government, on the other hand, claims that the appellants were in no way prejudiced because the information was contained in the chronologs and message traffic files summarizing what had been taped at OPCEN and Boston Communication Center and, moreover, personnel from the cutter had made their own cassette recordings of the actual boarding, and these were played for all the defendants and their attorneys in advance of the suppression hearing. This court was somewhat surprised to learn that the District Legal Office responsible for law enforcement cases for the Coast Guard was not familiar with our decisions in United States v. Bufalino, 576 F.2d 446 (2d Cir.) (destruction of tapes), cert. denied, 439 U.S. 928, 99 S.Ct. 314, 58 L.Ed.2d 321 (1978), or United States v. Paoli, 603 F.2d 1029, 1036-37 (2d Cir.) (destruction of notes), cert. denied, 444 U.S. 926, 100 S.Ct. 264, 62 L.Ed.2d 182 (1979). A Coast Guard legal officer testified that he did learn of United States v. Grammatikos, 633 F.2d 1013 (2d Cir.1980), but only after he told the prosecuting attorney that the tapes in this case had been destroyed. The majority opinion in Grammatikos said that “[t]he government has long been on notice of its duty to preserve discoverable evidence and has been repeatedly warned of the jeopardy in which it places its prosecutions when it disregards this obligation.” Id. at 1019. Bufalino had also warned that we will look with an exceedingly jaundiced eye upon future efforts to justify non-production of a Rule 16 or Jencks Act “statement” by reference to “department policy” or “established practice” or anything of the like____ Where, as here, destruction is deliberate, sanctions will normally follow, irrespective of the perpetrator’s motivation, unless the Government can bear the heavy burden of demonstrating that no prejudice resulted to the defendant. 576 F.2d at 449. This warning was explicitly reiterated in Paoli, 603 F.2d at 1036. This matter has given us considerable difficulty. The trial judge found no intent to destroy evidence and “absolutely no prejudice to the defendants” since the logs “clearly support the oral testimony giv-en____” He also found that there is no question but that “quantities of marijuana were aboard the vessel____” We ultimately resolve the issue as did Grammatikos and the First Circuit case of United States v. Arra, 630 F.2d 836, 849 (1st Cir.1980), also involving the Coast Guard, this time in favor of the Government. We do so, however, with full recognition of Judge Frank’s admonition in United States v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2d Cir. 1946) (dissenting opinion), that affirmance in these circumstances makes the “deprecatory words we use in our opinions on such occasions ... purely ceremonial.” So that we will not again be in the position in which the Coast Guard has cast us in this case, in the exercise of our supervisory powers, we direct the United States Attorney to advise the United States Coast Guard and each and every agency referred to at page li of the Government’s brief that in the future deliberate, negligent or other destruction of tapes, whether for budgetary reasons or otherwise, will not be tolerated by this court. We direct further that the United States Attorney report back to this court within 90 days advising us of the warnings given and the replies received. Judgment reversed and remanded in accordance with the opinion. . We have repeatedly suggested that caution be used when accepting guilty pleas subject to a variety of conditions because they tend to undercut finality in the criminal process and create unneeded appellate litigation. E.g., United States v. Burns, 684 F.2d 1066, 1071 (2d Cir. 1982), cert. denied, 459 U.S. 1174, 103 S.Ct. 823, 74 L.Ed.2d 1019 (1983); United States v. Thibadeau, 671 F.2d 75, 79-80 (2d Cir. 1982). This case well illustrates the basis for our concern. . 21 U.S.C. § 955a(a) provides: It is unlawful for any person on board a vessel of the United States or on board a vessel subject to the jurisdiction of the United States on the high seas, to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance. . 21 U.S.C. § 955b(d) provides: "Vessel subject to the jurisdiction of the United States" includes a vessel without nationality or a vessel assimilated to a vessel without nationality, in accordance with paragraph (2) of article 6 of the Convention on the High Seas, 1958. . While a commentator, Note, High Seas Narcotics Smuggling and Section 955a of Title 21: Overextension of the Protective Principle of International Jurisdiction, 50 Ford.L.Rev. 688 (1982), suggests that absent a territorial nexus marijuana trafficking does not fall within any of the principles of international law justifying the assertion of extraterritorial jurisdiction, two other circuit courts of appeal have agreed with the statement of Pinto-Mejia. United States v. Marino-Garcia, 679 F.2d 1373 (11th Cir.1982), cert. denied sub nom. Pauth-Arzuza v. United States, 459 U.S. 1114, 103 S.Ct. 748, 74 L.Ed.2d 967 (1983); United States v. Howard-Arias, (>19 F.2d 363 (4th Cir.), cert. denied, 459 U.S. 874, 103 S.Ct. 165, 74 L.Ed.2d 136 (1982). In any event, United States courts are obliged to enforce congressional enactments and not international law when the two conflict unless the law would violate the due process clause of the Fifth Amendment. Leasco Data Processing Equipment Corp. v. Maxwell, 468 F.2d 1326, 1334 (2d Cir. 1972). . It is also argued that 21 U.S.C. § 955a(a) as applied violates the notice requirement of the due process clause of the Fifth Amendment. See Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957); United States v. Man-cuso, 420 F.2d 556 (2d Cir.1970); United States v. Sansone, 385 F.2d 247 (7th Cir.1967) (customs agents had duty to inform defendant of registration requirement). The argument is based not only on the claim that the statute is "unprecedented in international law" and the proposition that marijuana trafficking itself is not universally condemned, but also on the alleged vagueness of the definition of "vessel without nationality" in 21 U.S.C. § 955b(d), supra note 3. On this point, however, we agree with the Eleventh Circuit in United States v. Marino-Garcia, 679 F.2d at 1383-84, that the term “vessel without nationality” clearly encompasses vessels not operating under the authority of any sovereign nation. . As Judge Friendly pointed out in Fogel v. Chestnutt, 668 F.2d at 107, even the highest. Court has fallen into the same word trap. E.g., Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 149-50, 100 S.Ct. 960, 967-68, 63 L.Ed.2d 267 (1980). See generally United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 39, 73 S.Ct. 67, 70, 97 L.Ed. 54 (1952) (Frankfurter, J., dissenting) (“I do not use the term 'jurisdiction' because it is a verbal coat of too many colors.”). . While this evidence might well establish probable cause to search and seize the vessel, the lawfulness of the search and seizure is a matter in no way in issue. It surely is not admissible evidence as to the fact of statelessness. . Appellants’ counsel was not allowed to offer into evidence testimony which allegedly would have shown that a military junta was in power in Honduras at the time that the Juan XXIII’s documents were purportedly prepared. If established to be a fact, this might also help explain why a later Honduran government might have no record of the registration. . The briefs did not address this issue except in generalities. On remand perhaps the parties will give the district court the benefit of counsel’s research on these points. . That is, New York OPCEN, Boston OPCEN, Boston Communications Center, Air Station Cape Cod, Air Station Brooklyn, Group Shinne-cock, Long Island, and Air Station Elizabeth City. Question: Are there two issues in the case? A. no B. yes 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 MOORE, ADMINISTRATRIX, v. CHESAPEAKE & OHIO RAILWAY CO. No. 318. Argued January 4, 1951. Reargued January 10, 1951. Decided February 26, 1951. Geo. E. Allen argued the cause and filed a brief for petitioner. Meade T. Spicer, Jr. and Strother Hynes argued the cause on the original argument and Mr. Hynes on the reargument for respondent. With them on the brief was Walter Leake. Mr. Justice Minton delivered the opinion of the Court. This action, brought under the Federal Employers’ Liability Act in the United States District Court for the Eastern District of Virginia on behalf of a surviving widow and children, charged negligence against respondent railroad in the death of petitioner’s decedent, who was acting in the course of his employment as a brakeman for respondent at the time of his death. The case was tried before a jury. At the conclusion of all the evidence, respondent moved for a directed verdict on the ground, among others, that respondent was not shown to have been negligent. The District Court reserved decision, pursuant to Rule 50 of the Federal Rules of Civil Procedure, and submitted the case to the jury, which returned a verdict for petitioner. Respondent then renewed its contention by motion for judgment notwithstanding the verdict, which was sustained, and the action was dismissed on the merits. The Court of Appeals for the Fourth Circuit affirmed, 184 F. 2d 176, and we granted certiorari to determine whether the province of the jury had been invaded by the action of the District Court. 340 U. S. 874. On September 25, 1948, petitioner’s decedent was employed by respondent as a brakeman in respondent’s switching yards at Richmond, Virginia. The day was fair. At about 3:50 p. m., the crew with which decedent was working undertook its first car movement of the day. An engine and tender were headed into Track 12 and the front end of the engine was coupled onto 33 loaded freight cars which were to be moved out initially upon the straight track referred to as the ladder track. The switch at the junction of Track 12 and the ladder track was properly aligned for the train to pass onto the ladder track. Who aligned the switch does not appear. Decedent gave the signal for the, engine to back out of Track 12 with the cars. It moved out in a westerly direction, with the rear of the tender as the front of the moving train. Decedent was standing on a footboard at the rear of the tender, his back to the tender; the outer edge of the footboard was about ten inches in from the outer edge of the tender and about a foot above the rail. The engineer was in his seat on the same side of the train as the footboard on which decedent was standing. The engineer was turned in the seat and leaning out the side cab window, looking in the direction in which the train was moving. Decedent’s duty as he rode on the foot-board was to give signals to the engineer, who testified that he could at all times see the edge of the arm and shoulder of decedent. To be thus seen and in a position to give signals, decedent had to extend outward beyond the edge of the tender, supporting himself partly by a handrail, otherwise the tender, the top of which was eight feet seven inches above the footboard, would have obstructed the engineer’s view of him altogether. The engineer testified that as the train approached Switch 12 at about five miles an hour, having moved ten or twelve car lengths, he saw decedent slump as if his knees had given way, then right himself, then tumble forward in a somersault toward the outside of the track. The engineer testified that he then made an emergency stop in an unsuccessful effort to avoid injuring decedent. The train ran the length of the tender and engine and about a car length and a half before it stopped at a point about an engine or car length past the switch on the ladder track. Decedent died immediately of the injuries received. To recover under the Act, it was incumbent upon petitioner to prove negligence of respondent which caused the fatal accident. Tennant v. Peoria & P. U. R. Co., 321 U. S. 29, 32. The negligence she alleged was that respondent’s engineer made a sudden and unexpected stop without warning, “thereby causing decedent to be thrown from a position of safety on the rear of the tender” into the path of the train. It is undisputed that only one stop of the train was made and that a sudden stop without warning. The engineer was the only witness to the accident and was called to testify by petitioner. He testified that he saw decedent fall from the tender and that he made an emergency stop in an attempt to avoid injuring him. He testified that he received no signal to stop and had no reason to stop until he saw decedent fall. When his attention was directed to the point, the engineer never wavered in his testimony that decedent was continuously in his view and in a position to give signals up to the time he was seen to fall and the emergency stop was made. Petitioner attempts to avoid the effect of this by pointing to statements of the engineer which allegedly contradict his testimony that decedent was continuously in his view. Petitioner relies on testimony and measurements of an expert witness, and upon the fact that the jury was permitted to view the engine and tender, to support the alleged contradiction. As a consequence, it is asserted, the jury was entitled to disbelieve the engineer’s version of the accident and to accept petitioner’s. True, it is the jury’s function to credit or discredit all or part of the testimony. But disbelief of the engineer’s testimony would not supply a want of proof. Bunt v. Sierra Butte Gold Mng. Co., 138 U. S. 483, 485. Nor would the possibility alone that the jury might disbelieve the engineer’s version make the case submissible to it. The burden was upon petitioner to prove that decedent fell after the train stopped without warning, which was the act of negligence she charged. Her evidence showed he fell before the train stopped. The only evidence which petitioner can glean from this record to support her charge is the engineer’s testimony that there was no one around the switch as the train approached it, and that he did not know whether “they” intended to take all of the 33 cars out of the switch at one time, or to stop and cut off some of them. From this it is said a jury might reasonably infer that the engineer decided to make and did make an emergency stop which threw decedent from the tender. However, the engineer’s testimony, appearing at the very same page of the transcript as the statement relied on, was that he worked by signals; that he had received no signal to stop or do anything; that in the event he did not receive a signal he would “[k]eep pulling the cars on back” until he received a signal, until he “cleared the switch” — “[p]robably beyond.” We do not think that the isolated portion of the engineer’s testimony relied on by petitioner permits an inference of negligence when placed in its setting of uncontradicted and unequivocal testimony totally at variance with such an inference. Hence, all the evidence shows is that decedent fell before the train stopped. If one does not believe the engineer’s testimony that he stopped after — indeed, because of — the fall, then there is no evidence as to when decedent fell. There would still be a failure of proof. To sustain petitioner, one would have to infer from no evidence at all that the train'stopped where and when it did for no purpose at all, contrary to all good railroading practice, prior to the time decedent fell, and then infer that decedent fell because the train stopped. This would be speculation run riot. Speculation cannot supply the place of proof. Galloway v. United States, 319 U. S. 372, 395. Since there was no evidence of negligence, the court properly sustained the motion for judgment notwithstanding the verdict. The judgment is Affirmed. Mr. Justice Frankfurter would dismiss this writ as improvidently granted, for reasons set forth by him in Carter v. Atlanta & St. Andrews Bay R. Co., 338 U. S. 430, 437. See Affolder v. N. Y., C. & St. L. R. Co., 339 U. S. 96, 101. Mr. Justice Reed took no part in the consideration or decision of this case. 35 Stat. 65, as amended, 45 U. S. C. §§ 51 et seq. “Q. Were you going to take all of those thirty-eight [sic] cars out at one time through that switch ? “A. I don't know about that. I work by signals. I don’t know whether they intended to put them all out and switch them or to stop and cut part of them off.” R. 30. Supra, n. 2; “Q. Had you received any signal at that time to stop or to do anything — cut off any of the cars ? “A. No, sir, I had not. “Q. What were you going to do in the event you didn’t receive any further signals either from the conductor or from Mr. Moore or from anybody else? “A. Keep pulling the cars on back until I received a signal. “Q. And until you cleared the switch, until you cleared No. 12 switch? “A. Yes, sir. “Q. You keep- “A. Probably beyond. “Q. You keep on going? “A. Yes.” R. 30. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspecifiable Answer:

songer_casetyp1_2-3-1

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. Your task is to determine the specific issue in the case within the broad category of "civil rights - civil rights claims by prisoners and those accused of crimes". Charles McCORKLE, Plaintiff-Appellant, v. W.E. JOHNSON, Warden, Joseph Kolb, Chaplain, Freddie V. Smith, Commissioner, Defendants-Appellees. No. 88-7478 Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit. Aug. 24, 1989. P. David Bjurberg, David Christy, and Beth Jackson Hughes, Asst. Attys. Gen., Montgomery, Ala., for defendants-appel-lees. Before VANCE, JOHNSON and CLARK, Circuit Judges. PER CURIAM: The judgment of the district court is AFFIRMED on the basis of the memorandum opinion entered by the district court on July 13, 1988. (Attached hereto as Appendix.) APPENDIX In The United States District Court For The Southern District of Alabama Southern Division Charles McCorkle, Plaintiff, vs. W.E. Johnson, et al., Defendants. Civ. A. No. 84-0918-C MEMORANDUM OPINION This action was referred to the Magistrate for submission of recommendations pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate submitted recommendations, and timely objections to those recommendations were filed by the plaintiff. In accordance with 28 U.S.C. § 636(b)(1)(C), the court has made a de novo determination of those portions of the Magistrate’s recommendations to which objections were made. Charles McCorkle, a state prisoner confined in the Holman facility, filed this complaint pursuant to 42 U.S.C. § 1983 seeking redress for the deprivation of his First Amendment right to freely exercise his chosen religion. The defendants are prison officials who allegedly impinged on the plaintiff’s practice of the Satanic “religion” by denying plaintiff’s request for access to certain Satanic books and articles, including The Satanic Bible, The Satanic Book of Rituals, and a Satanic medallion. Their defense is three-fold: (1) Satanism is not a religion entitled to First Amendment protection; (2) assuming it is a religion, the plaintiff is not a sincere believer in Satanism; and (3) access to the requested books and medallion would pose a threat to the security of the prison. The Magistrate held that all three defenses were valid and recommended that judgment be entered in favor of the defendants. The threshold questions of whether Satanism is a religion and, if it is, whether plaintiff is a sincere believer need not be decided since it is clear that, even if these questions are answered affirmatively, the challenged prison policy does not violate the Free Exercise Clause of the First Amendment as it is applied to the States through the Fourteenth Amendment. When it is alleged that a prison policy impinges on an inmate’s constitutional rights, the policy is valid “if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). Giving the deference that is due to the officials charged with prison administration, see Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 97 S.Ct. 2532, 2539, 53 L.Ed.2d 629 (1977), the court finds that the policy at issue in the present case successfully withstands this scrutiny; it is not an exaggerated response to the situation. There are several factors which are relevant in determining the reasonableness of this policy. First, there must be a “valid, rational connection” between the prison restriction and the legitimate governmental interest put forward to justify it. Turner, 107 S.Ct. at 2262 (quoting Block v. Rutherford, 468 U.S. 576, 104 S.Ct. 3227, 3232, 82 L.Ed.2d 438 (1984)). The restriction at issue here clearly meets this standard. The prohibition on Satanic materials such as those requested by the plaintiff is justified by the defendants’ concern for institutional security and order. It is an informed and measured response to the violence inherent in Satan worship, and to the potential disorder that it might cause within the prison. Testimony at the evidentiary hearing turned gruesome when the plaintiff recounted two of the rituals espoused by The Satanic Book of Rituals. The fertility ritual includes the sacrifice of a female virgin, preferably a Christian. Also explained in this book, according to the plaintiff, is the initiation ritual. Wrist-slashing, blood-drinking, and the consumption of human flesh — usually fingers — are some of the gory highlights of this ceremony. The plaintiff quipped that hopefully the person whose flesh is eaten is alive at the end of the ritual. Candles, a common item in many religious ceremonies, are also used in the Satanic rituals. However, the candles preferred by the plaintiff and other Satanists are not made of wax or paraffin; instead, they are made from the fat of unbaptized infants. An inmate witness subpoenaed by the plaintiff testified that he has observed the plaintiff performing certain Satanic rituals within Holman Prison on several occasions. According to this testimony, the plaintiff, as part of these rituals, drew his own blood by slicing his wrist or using a needle, and burned paper. Mr. McCorkle has also asked other inmates for their blood. Approximately three years ago, one inmate got highly irritated when the plaintiff requested that he donate a vial of blood for use in the worship of Satan. The teachings of The Satanic Bible, which the plaintiff claims to wholeheartedly believe, and desires to study, also present a significant threat to security and order within the prison. W.E. Johnson, Warden of Holman Prison, testified that upon review of The Satanic Bible, he concluded that persons following its teachings would murder, rape or rob at will without regard for the moral or legal consequences. Moreover, Warden Johnson thought that the plaintiff’s safety would be threatened if other inmates became aware of the contents of The Satanic Bible. Accordingly, he denied plaintiff’s requests. Testimony from proclaimed Satanists, and an independent review of the book, confirms Warden Johnson’s conclusions about the beliefs of Satanists. A “master counselor” of a Satanic sect testified that the premise underlying all of the teachings in The Satanic Bible is that life should be lived according to individual desires without regard for conscience or consequences. Certain portions of the book are somewhat harsher. For instance, in the chapter entitled “The Book of Satan,” author Anton Szandor LaVey states that right and wrong have been inverted too long. He challenges readers to rebel against the laws of man and God. Furthermore, LaVey declares that hatred of ones enemies is of utmost importance; revenge should be a top priority. Clearly, practices such as those described above, and the beliefs that encourage them, cannot be tolerated in a prison environment since they pose security threats and are directly contrary to the goals of the institution. Allowing the plaintiff access to the requested books and medallion would only encourage such behavior. Thus, it cannot be said that the policy in question is arbitrary; rather, it is logically connected to the governmental interests asserted. A second factor relevant in determining the reasonableness of a prison restriction is that alternative means of exercising the asserted right remain open. Turner, 107 S.Ct. at 2262. The inquiry here is whether, under the restrictions imposed, the plaintiff is deprived of all means of practicing his “religion.” See O’Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 2406, 96 L.Ed.2d 282 (1987). Testimony at trial revealed that the plaintiff and other members of the various Satanic sects in Holman Prison are practicing Satanists despite the deprivation of the books and medallion requested by the plaintiff. Moreover, plaintiff indicated that he wears a duplicate medallion and has memorized portions of both The Satanic Bible and The Satanic Book of Rituals. Clearly, the restrictions about which plaintiff complains have not foreclosed all avenues of his worship of Satan. A third consideration in the reasonableness inquiry is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally. Turner, 107 S.Ct. at 2262. Warden Johnson justifiably believes that books and memorabilia that teach hatred for one’s fellow man and disrespect for laws and legal order, and that encourage and explain the practice of violent acts such as flesh-eating and blood-letting, pose substantial threats to prison security and order, and are contrary to the rehabilitative goals of the institution. Consequently, the plaintiff’s asserted right to freely worship Satan can be exercised only at significant costs to guards, other prisoners, and society in general. Where such a trade-off is necessary, the choice made by prison officials should not be lightly set aside by the court since such judgments are peculiarly within their province. See Turner, 107 S.Ct. at 2263, (citing Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 2806, 41 L.Ed.2d 495 (1974)). Finally, the presence of workable alternatives is evidence of the unreasonableness of the restrictions imposed. Turner, 107 S.Ct. at 2262. Plaintiff, however, has not offered any alternatives that would fully accomodate his asserted rights at a de min-imis cost to the valid penological interests that gave rise to the imposed restrictions. The restrictions challenged by the plaintiff are reasonably related to valid penological interests. Accordingly, the court refuses to substitute its judgment on difficult matters of prison administration for the determinations of those charged with the formidable task of running a prison. See O’Lone, 107 S.Ct. at 2407. The court will by separate document enter final judgment dismissing the plaintiff’s complaint on the merits. DONE this 13 day of July, 1988. Emmett R. Cox UNITED STATES CIRCUIT JUDGE SITTING BY DESIGNATION Question: What is the specific issue in the case within the general category of "civil rights - civil rights claims by prisoners and those accused of crimes"? A. suit for damages for false arrest or false confinement B. cruel and unusual punishment C. due process rights in prison D. denial of other rights of prisoners - 42 USC 1983 suits E. denial or revocation of parole - due process grounds F. other denial or revocation of parole G. other prisoner petitions H. excessive force used in arrest I. other civil rights violations alleged by criminal defendants Answer:

songer_appbus

0

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Plaintiff-Appellee, v. Patrick Henry EARLEY, Defendant-Appellant. No. 72-1803. United States Court of Appeals, Tenth Circuit. July 20, 1973. Stephen K. Lester, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., on the brief), for plaintiff-appellee. Peter H. Ney, Englewood, Colo., for defendant-appellant. Before PHILLIPS, HILL and SETH, Circuit Judges. ORIE L PHILLIPS, Circuit Judge. On October 15, 1971, a 12-count indictment was returned in the United States District Court for the District of Kansas against Patrick Henry Earley and Wayne E. Porter. Count I charged that Earley and Porter, together with 10 other persons who were named as coconspirators, but not named as defendants, were charged with conspiracy to commit offenses against the United States. Count I further charged that the object, purpose and intent of the conspiracy was to “travel in and cause the travel and use of the facilities of interstate commerce with intent to: “(a) Distribute the proceeds of an unlawful activity, to wit: arson, in violation of the laws of the State of Kansas, in which state such acts of arson were committed; “(b) Commit crimes of violence to further the aforesaid unlawful activity; and “(c) Otherwise promote, manage, establish, carry on, and to facilitate the promotion, management, establishment, and carrying on the unlawful activity of arson.” We think it will be helpful if we set out the provisions of 18 U.S.C.A. § 1952, as follows: “§ 1952. Interstate and foreign travel or transportation in aid of racketeering enterprises “(a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, * * * with intent to— “(1) distribute the proceeds of any unlawful activity; or “(2) commit any crime of violence to further any unlawful activity ; or “(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both. “(b) As used in this section ‘unlawful activity’ means * * * (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States.” Count III charged that Earley on or about August 11, 1968, traveled “in interstate commerce from Wichita, Kansas, to Oklahoma City, Oklahoma, with intent to distribute the proceeds of an unlawful activity, to wit: arson, in violation of the laws of the State of Kansas, wherein the arson was committed, and to carry on and facilitate the carrying on of the unlawful activity of arson, and did thereafter distribute the proceeds of the unlawful activity of arson, and did thereafter at Wichita, Kansas, continue to carry on the unlawful activity of arson, in violation of 18 U.S.C. 1952.” Count IV charged that Earley on or about November 17, 1968, made a firearm, “to wit: a destructive device as defined by 26 U.S.C. 5845(f), without having first filed with the Secretary of the Treasury or his delegate to make and register the destructive device on the form prescribed by the Secretary or his delegate, as required by 26 U.S.C. 5822(a), in violation of 26 U.S.C. 5861(f).” Count V charged Earley with possession on or about November 17, 1968, of “a destructive device as defined by 26 U.S.C. 5845(f), which was not registered to him in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. 5861(d).” Count VII charged that Earley on or about June 30, 1969, “did transport in interstate commerce from Duncan, Oklahoma, to Wichita, Kansas, a firearm, to wit: a destructive device as defined by 26 U.S.C. 5845(f), which had not been registered to him in the National Firearms Registration and Transfer Record as required by Chapter 53 of the Internal Revenue Code of 1954, as amended, in violation of 26 U.S.C. 5861(j).” Count VIII charged that Earley on or about July 1, 1969, possessed “a firearm, to wit: a destructive device as defined by 26 U.S.C. 5845(f), which was not registered to him in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. 5861(d).” Count IX charged that Earley traveled in interstate commerce “from Oklahoma City, Oklahoma, to Wichita, Kansas, with intent to carry on and facilitate the carrying on of an unlawful activity, to wit: arson, in violation of the laws of the State of Kansas, wherein the arson was committed, and did thereafter at Wichita, Kansas, carry on the unlawful activity of arson by bombing Ra-zook’s Thriftway Market, in violation of 18 U.S.C. 1952.” Count X charged that Earley traveled “in interstate commerce from Wichita, Kansas, to Oklahoma City, Oklahoma, with intent to distribute the proceeds of an unlawful activity, to wit: arson, in violation of the laws of the State of Kansas, wherein the arson was committed, and to facilitate the carrying on of the unlawful activity of arson, and did thereafter at Oklahoma City, Oklahoma, distribute the proceeds of the unlawful activity of arson, in violation of 18 U.S.C. 1952.” Earley was convicted on Counts I, III, IV, V, VII, VIII, IX, and X, and found not guilty on Counts II, VI, and XI. Therefore, we have not set out what Counts II, VI, and XI charged. Count XII of the indictment charged that Wayne E. Porter traveled "“in interstate commerce from Wichita, Kansas, to Perry, Oklahoma, with intent to distribute the proceeds of an unlawful activity, to wit: arson, in violation of the laws of the State of Kansas, wherein the arson was committed, and to carry on and facilitate the carrying on of the unlawful activity of arson, and did thereafter distribute the proceeds of the unlawful activity of arson, in violation of 18 U.S.C. 1952.” The case came on for trial on May 1, 1972. Earley appeared in person and by his counsel, Archibald Hill. Porter appeared in person and by his counsel, William C. Farmer and Everett C. Fet-tis. Mr. Hill informed the court that his home and his automobile had been burglarized early that morning, and that the papers he had prepared for use during the trial had been taken. He moved for a further continuance, which was denied. The original transcript of the record of the trial consists of 10 volumes, which were filed in lieu of an appendix. If, instead of filing all of the original record, an appendix had been filed, much immaterial matter could have been omitted, and it would have greatly reduced the work of the court. On the fifth day of the trial, out of the sight and hearing of the jury, Porter pleaded guilty to Count I, the conspiracy count, and Count XI was dismissed as to him and Count XII was dismissed. After such pleas and dismissals, the jury were returned to the box and the court advised them that Mr. Porter had entered a plea of guilty; that he had conflicting engagements for Monday, May 8, 1972, and that the trial would be recessed until Tuesday, May 9,1972. The court very carefully gave the jury the precautionary instruction usually given when there is a recess of a trial. On Tuesday, May 9, 1972, the trial was resumed, and immediately after the jury had entered the box, the trial judge gave them this further precautionary instruction : “The jury will recall that immediately preceding the recessing of the trial last Friday afternoon the Court at that time advised you that the Defendant Wayne Porter had entered a plea of guilty to count one of the indictment, that is, the conspiracy count, before the Court and that the Court had accepted it. “I further specifically instruct you at this time that this jury may not in any way, in the smallest degree, consider the plea of the defendant Porter as creating any inference or aspect of guilt of the defendant Patrick Henry Earley as to the conspiracy charge set forth in count one of the indictment to which the defendant Porter has entered his plea of guilty, or as to the guilt of the defendant Patrick Henry Earley on any other count of the indictment with which he is charged in this case. “The jury is reminded that the indictment charged numerous individuals, specifically ten persons, with being joint conspirators, and the admission of the Defendant Porter, as one of the alleged co-conspirators, cannot be considered in determining the guilt or innocence of the defendant Patrick Earley on any and all counts. You must consider only evidence produced in this courtroom from the witnesses in determining the guilt or innocence of the defendant Earley on each count upon which he is charged.” The trial judge reiterated the above-quoted instruction in his general charge to the jury. The evidence clearly warranted the jury in finding beyond a reasonable doubt the following facts: Porter was the owner of several grocery stores situated in Wichita, Kansas. Three of such stores, respectively, known as University IGA Store, Grove IGA, and 21st Street IGA, were located in the northeast section of Wichita. Porter hired Earley, then a resident of Oklahoma, to set on fire or cause to be set on fire during the period extending from July 1968 through July 1969, and during a time of racial unrest in Wichita, the University IGA Store and two stores owned by Porter’s competitors. Earley, in turn, hired other persons to set on fire or assist him in setting on fire such three stores. Such three stores were, in fact, set on fire by persons so hired by Earley, or were set on fire by Earley with the assistance of such other persons. Thus, three acts of arson were committed by Earley, as that offense is defined by the laws of Kansas. Also, there was ample evidence to justify the jury in finding beyond a reasonable doubt that Earley committed the offenses charged in Counts I, III, IV, V, VII, VIII, IX, and X of the indictment. Earley does not challenge the sufficiency of the evidence adduced to warrant the jury in so finding, but bases his appeal on other alleged errors. Hence, we deem it unnecessary to set out the evidence at length. Counsel for Earley contends that the trial court erred in overruling his oral motion for a continuance, made when the case was called for trial on May 1, 1972, on his stated ground that his automobile was broken into the preceding night and his briefcase, containing “all his notes, minutes, files, and questions of law and questions to be raised” at the trial, was stolen. The indictment was returned on October 15, 1971. The arraignments were set for November 15, 1971. The history of the case from that day on reflects one postponement after another, made at the request of Archibald Hill, counsel for Earley, up to and including his motion for a continuance, made on May 1, 1972, on the eve of the trial. At Hill’s request, the arraignments were postponed from November 15, 1971, to December 6, 1971. On the latter date, Earley was arraigned and entered pleas of not guilty as to Counts I to XI, inclusive, and the trial court stated that the case would be set for trial at some date in January 1972. Also, on that date, Hill was given 10 days by the court within which to file motions. On December 16, 1971, Hill filed a motion to extend the time for the filing of such motions until December 21, 1971, because of the fact he was engaged in a session of the Oklahoma Legislature, of which he was a member. On January 10, 1972, an order was made denying the last-mentioned motion. At that time, Hill had not filed any of such motions. Thereafter, argument on such motions was continued by the court until January 17, 1972, because Earley was in jail in Oklahoma on state charges. On January 17, 1972, Hill did not appear, and hearing on such motions was continued by the court until April 4,1972. The trial of the case was set for April 18, 1972, but on that date the court was informed that Hill was ill and in a hospital, and the court continued the trial until May 1,1972. So far as the record discloses, Hill filed no motions, except for postponements, until May 1, 1972, when he filed a motion for a severance, and on November 12, 1971, when he filed a motion to suppress physical evidence and to suppress evidence of a confession. The granting of a motion for a continuance rests in the discretion of the trial court, and the denial thereof by such court will not be set aside on appeal in the absence of a clear showing of an abuse of discretion. The records of the trial show that Hill conducted a vigorous and competent defense of Earley, and there is nothing to indicate that he suffered any handicap by his claimed loss of his “notes, minutes, files, and questions of law and questions to be raised” at the trial. We conclude that the court did not abuse its discretion in overruling such motion for a continuance. Earley contends that the trial court erred in denying his motion for a severance. In passing on such a motion the trial court has a wide discretion, and the burden is on the movant to show that he suffered sufficient prejudice from the denial of his motion to warrant the appellate court in finding that the trial court clearly abused its discretion. As a basis for his claim that there was an abuse of discretion, Earley asserts that had there been a severance he would have avoided the prejudice which resulted to him: (1) When the trial court advised the jury on the fifth day of the trial that Porter had pleaded guilty to the conspiracy count, and (2) When evidence was adduced at the trial of other criminal acts on the part of Earley. Since Earley asserts (1) and (2) as separate grounds of error, and since all three claims of error are related, we will proceed to consider all of them at this point. First, as to the statement by the court to the jury that Porter had pleaded guilty to the conspiracy count. On the fifth day of the trial, after the jury had retired to the jury room, out of the sight and hearing of the jury Porter entered such plea, and Count XI, which charged Earley and Porter jointly with an offense, was dismissed as to Porter, and Count XII, which charged an offense only by Porter, was also dismissed. Before recessing the trial, which had begun on May 1, 1972, on Friday, May 5, 1972, the court advised the jury that Porter had pleaded guilty to the conspiracy count. He then gave the usual precautionary instruction to be observed by the jury during the recess of the trial, and advised them that he had made prior commitments for Monday and that the trial would be recessed until Tuesday morning, May 9, 1973. The trial, as to Earley, continued from May 9 to May 15, 1972. It has long been the law in this circuit and in other circuits that the trial court may inform the jury that a codefendant has entered a plea of guilty, provided the jury is clearly instructed that such a plea cannot be considered as evidence of the guilt of the remaining defendant or defendants. The instruction given by the court on May 9, 1972, and reiterated in his general charge, fully advised the jury that such plea could not be taken or considered in any way as evidence against Earley, and that they should determine his guilt or innocence on each count by which he was charged with an offense solely on the evidence adduced on the witness stand. The reasons for advising the jury that a codefendant has pleaded guilty, and for the instruction given, are obvious. Porter did not further appear during the several days the trial continued as to Earley. Were not the jury advised and instructed, they might well conclude that Porter had pleaded guilty, and give an erroneous effect to that fact in passing on the guilt or innocence of Earley. In fact, the procedure followed and the instruction given might well have redounded to Earley’s benefit, instead of his prejudice. We hold that Earley was not prejudiced by the procedure followed with respect to Porter’s plea. We turn now to Earley’s claim that evidence of other crimes committed by him was erroneously admitted, and conclude that such claim is not well founded. In a number of instances, where a witness testified with respect to other crimes committed by Earley, the testimony was brought out by Earley’s counsel, Hill, on cross-examination of the Government’s witness, Virginia McCool. She would have been called as a witness by the Government against Earley, even though there had been a severance. In other instances, testimony was part of the whole story, only part of which was brought out by Hill in his cross-examination. One matter with respect to which counsel for Earley complains occurred in the absence of the jury and could not have done him any harm. Another was a repetition brought out by counsel for Porter of matters theretofore brought out by Hill, counsel for Earley, in his cross-examination of the witness. Moreover, the court instructed the jury to disregard any evidence adduced which tended to show that Earley had been guilty of other crimes than those charged against him in the indictment. In Count IV, Earley was charged with making a destructive device, without first having filed a written application to make and" register such a device. In Count V, Earley was charged with the possession of the unregistered device he had made. The evidence established that Earley made and possessed the device on November 17, 1968, as charged in the indictment. In 1968, Congress amended the National Firearms Act and provided that it should be cited as the “National Firearms Act Amendments of 1968.” Such amendments became effective on November 1, 1968. The Congressional intent of the National Firearms Act Amendments was to correct the constitutional deficiencies of the former Act, which the Supreme Court held to be unenforceable in Haynes v. United States, 390 U. S. 85, because it required registration almost exclusively by those in illegal possession of a weapon and made this information available for prosecution purposes. The 1968 amendments avoided the problem by extending the registration to all possessors of the weapons, legitimate or otherwise, and “by providing that registration information may not be used directly or indirectly to prosecute a natural person for an offense prior to or concurrent with his registration.” Since the acts charged in Counts IV and V occurred after November 1, 1968, a prosecution for such offenses was legal. Accordingly, the judgment and sentences of the court on the counts on which Earley was found guilty are hereby affirmed. . United States v. Fairchild, 10 Cir., 435 F.2d 972, 973; United States v. Harris, 10 Cir., 441 F.2d 1333, 1335-1336; Johnson v. United States, 8 Cir., 291 F.2d 150, 153, cert. denied 368 U.S. 880, 82 S.Ct. 130, 7 L.Ed.2d 80; United States v. Hartenfeld, 7 Cir., 113 F.2d 359, 362, cert. denied 311 U.S. 647, 61 S.Ct. 30, 85 L.Ed. 413; United States v. Eagleston, 10 Cir., 417 F.2d 11, 14. . Carpenter v. United States, 10 Cir., 463 F.2d 397, 399; United States v. Mallory, 10 Cir., 460 F.2d 243, 248; United States v. Jorgenson, 10 Cir., 451 F.2d 516, 523, cert. denied 405 U.S. 922, 92 S.Ct. 959, 30 L.Ed.2d 793; United States v. Harris, 10 Cir., 441 F.2d 1333, 1336; United States v. Rogers, 10 Cir., 419 F.2d 1315, 1317. . Wood v. United States, 8 Cir., 279 F.2d 359, 363; United States v. Aronson, 2 Cir., 319 F.2d 48, 52; Fahning v. United States, 5 Cir., 299 F.2d 579, 580; United States v. Soares, 10 Cir., 456 F.2d 431, 433; Jiron v. United States, 10 Cir., 306 F.2d 946, 947; Hines v. United States, 10 Cir., 131 F.2d 971, 974. Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:

songer_direct1

A

What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. Elmer EASLEY, Appellant, v. UNITED STATES of America, Appellee. No. 7672. United States Court of Appeals Tenth Circuit. June 8, 1964. Peter C. Dietze, Denver, Colo., for appellant. Milton C. Branch, Asst. U. S. Atty. (Lawrence M. Henry, U. S. Atty., was with him on the brief), for appellee. Before MURRAH, Chief Judge, and PICKETT and LEWIS, Circuit Judges. PER CURIAM. Defendant was found guilty of having transported a stolen vehicle in interstate commerce in violation of 18 U.S.C. § 2312. He appeals, asserting that his written confession was improperly admitted into evidence under the totality of the circumstances and in view of the rule of Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. We find no merit to the contentions. On August 27, 1963, defendant was arrested by an officer of the Colorado State Highway Patrol for operating an improperly equipped automobile upon the highways of that state and for driving without a valid operator’s license. He was immediately taken before a justice of the peace, was adjudged guilty, and sentenced to a 12-day jail term. While in state custody defendant was interrogated by a special agent of the F.B.I. and on August 31 signed a written confession to the commission of the federal offense. On Saturday, September 7, he was placed under federal arrest and appeared before the United States Commissioner on , , n Monday, September 9. When defendant’s confession was offered in evidence at the trial, objection to its voluntariness was timely made and the trial court properly proceeded to make preliminary inquiry of the circumstances surrounding the execution of the instrument. McHenry v. United States, 10 Cir., 308 F.2d 700. Both the testimony of the special agent and that of the defendant indicated that the interrogation of defendant was conducted with commendable fairness, without taint of threat or promise, and that defendant was fully advised of his rights, including the right to be silent and to consult counsel. There is no indication of unbecoming conduct upon the part of state officers, no offensive “cooperation” between state and federal officers, no exploitation of a physical or mental weakness in defendant’s condition, and nothing in the totality of circumstances that would dictate that the confession was made otherwise than as an expression of free will. Compare Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed. 2d 1037. Defendant’s appearance before the United States Commissioner was made promptly after he was subject to federal restraint and the prohibition of Mallory against the use of confessions obtained during an unnecessary delay between arrest and arraignment is not here applicable. And although defendant s confession was made before he consulted counsel he was denied no right in such regard by either state or federal authority. Compare Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448. The judgment is affirmed. . Defendant specifically requested that the issue not be submitted as a factual issue to the jury. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:

songer_appfed

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 "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Appellant, v. Robert P. ANDERSON et al., Appellees. No. 8134. United States Court of Appeals Tenth Circuit. Sept. 30, 1966. See also 34 F.R.D. 518. Kathryn H. Baldwin, Atty., Dept, of Justice (John W. Douglas, Asst. Atty. Gen., Lawrence M. Henry, U. S., Atty., Alan S. Rosenthal, Atty., Dept, of Justice, with her on the brief), for appellant. Benjamin E. Sweet, Denver, Colo. (Ralph E. Crandell, Denver, Colo., with him on brief), for appellees. Before MURRAH, Chief Judge, and PICKETT and HICKEY, Circuit Judges. HICKEY, Circuit Judge. The First National Bank of Englewood, Colorado (Bank) loaned $250,000.-00 to U. S. Durox Corporation of Colorado (Corporation). In order to induce the Bank to make the loan to the Corporation, the appellees, directors of the Corporation, executed an unconditional guarantee to the Bank, its successors or assigns. After default on the obligation, the Bank assigned the note together with all collateral including the unconditional guarantees to the Small Business Administration (SBA), who had joined with the Bank in a participating loan. The directors, who guaranteed the loan, were ousted. A new board was elected and application for reorganization made under Chapter X of the Bankruptcy Act. The ousted directors and the assignee, SBA, objected to the reorganization. Nevertheless, an amended plan which ordered liquidation of the assets was approved by the Bankruptcy Court. SBA, a secured creditor under the plan, bid $250,000.00 for the property under an order of the court to sell the property for cash. After the sale had been approved, SBA applied to the court to permit it to pay $8,000.00 in cash and set off its secured obligation of $242,000.00 as full payment of the property purchased. The Bankruptcy Court refused to allow this method of payment, because it did not provide the necessary cash to pay the cost of administration of the reorganization attempt. The court agreed to permit SBA to set off a portion of the amount secured if it would pay $124,500.-00 in cash to the trustees. This amount was the estimated total of the priority claims in the Chapter X proceeding which included the costs of administration. SBA complied and received title to the property free and clear of all liens or claims against the debtor corporation. The SBA then filed this action against the guarantors, who had induced the loan by their guaranty, claiming $113,668.87 on the guaranteed portion of the loan plus accruing interest as the deficiency. The accountings contained in the record are confusing and do not afford an accurate accounting. The. trial court adjudged the liability to be the amount of principal balance plus interest as of February 6, 1959 (the date of the petition in bankruptcy); the costs and expenses of preservation, including insurance on the property (and interest on the amount of premium), repair of the property and local property taxes; and expenses directly connected with the auction sale including auctioneers. From the sum of these amounts is to be deducted the amount of $250,000.00 to determine the deficiency for which guarantors are now liable. Nowhere in the record can such an accounting be found. The SBA appeals from this judgment complaining that the cost of administering the Chapter X proceedings is a charge which should be made against the guarantors and should be included in the liability adjudged by the trial court. It is uncontroverted that: (1) SBA succeeded as assignee of the secured beneficiaries; (2) that SBA succeeded 'as secured creditor of the mortgage and the note; (3) that SBA became the creditor of the corporation for the balance due on the note; (4) that the guaranties are unconditional agreeing to pay the balance due on the note to the bank or its assignee without requiring the bank or its assignee to pursue or exhaust their rights or remedies against the debtor. The guaranties also provide that when the principal, interest and all other sums payable in accordance with the terms of the note of the debtor are due, payment will be made. The note provides, “the term indebtedness * * * shall mean the indebtedness evidenced by this note, including principal, interest, and expenses, whether contingent, now due or hereafter to become due and whether heretofore or contemporaneously herewith or hereafter contracted. The indebtedness shall immediately become due and payable, without notice or demand, upon * * * the filing of a petition * * * under the provisions of the Bankruptcy Act of 1898 * * The question then is the effect of the participation of SBA in the bankruptcy proceedings, wherein it purchased the property and agreed to pay administrative costs to the trustee, upon the guarantors’ obligation. Taking a broad and more comprehensive view of the entire proceedings, it becomes patent that these bankruptcy transactions can have little effect on the guaranties. Section 34 of the Bankruptcy Act provides that guarantors are not released from liability by a discharge of the bankrupt. Therefore, the reorganization proceedings and the sale to SBA do not have the effect of releasing guarantors from their obligations. The section, however, does not authorize the secured beneficiaries to incur additional expenses by engaging in proceedings other than for collection from the guarantors. The trial court properly found, “On the basis of data now before the Court it is not possible to determine exactly the amount of the guarantors’ liability on a deficiency. The guarantors’ liability consists of: (1) The amount of principal balance as of February 6, 1959, plus interest thereon; (2) the costs and expenses directly attributable to preservation of the collateral, including insurance of the property (and interest on the amount of the premium), repair of the property, and local property taxes; * * * » “The law is settled that a guaranty is a collateral agreement to pay a debt or perform a duty for another in case of default which may be enforced separately from the primary obligation. It is not necessary to proceed against the primary debtor. An unconditional guaranty is one whereby the guarantor agrees to pay or perform a contract upon default of the principal without limitation. It is an absolute undertaking to pay a debt at maturity or perform an agreement if the principal does not pay or perform, (citations omitted). A definition of conditional and unconditional contracts of guaranty and the liability of guarantors under them is well stated by this court in Pavlantos v. Garoufalis, [10 Cir.] 89 F.2d 203, 206, where it is said: * * * ‘An absolute guaranty is an unconditional undertaking on the part of the guarantor that the person primarily obligated will make payment or will perform, and such a guarantor is liable immediately upon default of the principal without notice. * * *’” “As pointed out in Woodstock Bank v. Downer, 27 Yt. 539, supra, it was not necessary to bring an action against the maker of the bonds to charge defendants on their guaranty, nor do we think it was necessary to appear in the bankruptcy proceedings. Plaintiff could have proceeded against defendants without an action against the cement company, and without appearing in the bankruptcy proceedings.” As indicated, supra, the SBA had a clear cause of action against the guarantors immediately after the default occurred and at the time the bankruptcy proceedings were filed. SBA’s participation in the Chapter X proceeding was unnecessary to protect their interest, therefore, the guarantors would not be liable for unnecessary costs incurred in the administration of the attempted reorganization. “As a general rule, a guarantor, even under a conditional guaranty, is not liable for the costs of a suit which was instituted unnecessarily * * * ” Therefore, the trial court’s finding that the guarantors were responsible for the obligations represented by the note at the time the petition in bankruptcy was filed is sustained by the law and the evidence, and they cannot be charged with the unnecessary expense of the administration of the Chapter X bankruptcy. Affirmed. . 11 U.S.C. § 34 (1953). . 6A Collier, Bankruptcy, § 11.18 at 694 (1965). . United States v. Anderson, 226 F.Supp. 932, 940 (1964). . Joe Heaston Tractor & Imp. Co. v. Securities Accept. Corp., 243 F.2d 196, 199 (10 Cir., 1957); Duke v. Reconstruction Finance Corp., 209 F.2d 204 (4 Cir., 1954). . Walker v. McNeal, 134 Okl. 111, 272 P. 443, 447 (1928). . Supra, note 4 and contents of note instrument. . 38 C.J.S. Guaranty § 58 at 1215 (1943). 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_casetyp1_1-3-2

Q

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". Leroy WILLIAMS, # 004336, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee. No. 82-5440. United States Court of Appeals, Eleventh Circuit. Aug. 22, 1983. Mark A. Pizzo, Asst. Fed. Public Defender, Tampa, Fla., for petitioner-appellant. Frank Lester Adams, III, Asst. Atty. Gen., Tampa, Fla., for respondent-appellee. Before HILL, KRAVITCH and HENDERSON, Circuit Judges. PER CURIAM: Leroy Williams appeals from denial of federal habeas corpus relief. 28 U.S.C. § 2254. Finding no deprivation of constitutional rights, we affirm. Appellant was charged with escape from a Florida correctional institution, tried and convicted in the state courts of Florida. The conviction was reversed and the matter remanded for a new trial due to violation of appellant’s right to assistance of counsel. Williams v. State, 337 So.2d 846 (Fla. 2nd DCA 1976). Prior to retrial appellant filed a motion for psychiatric examination. A court-appointed psychiatrist, applying the M’Naughten test of insanity, which is applicable in Florida, concluded appellant was sane at the time of the crime. Appellant thereafter filed a notice of intent to rely upon an insanity defense and a statement of particulars providing the basis for the defense of insanity. At request of appellant’s counsel, a pretrial hearing was held to determine whether the defendant would be allowed to raise the insanity defense at trial. The state trial court heard arguments, applied the M’Naughten test of whether or not the defendant knew right from wrong at the time of the crime, and concluded that there was no substantial evidence tending to show appellant was insane at the time of the crime. Cf. Griffin v. State, 96 So.2d 424, 425 (Fla. 3rd DCA 1957). The court therefore refused to appoint additional psychiatrists to examine appellant, ordered that the insanity defense be struck, but specifically ruled that no limitation would be placed on defendant’s right to produce evidence of absence of the requisite criminal intent. Appellant then entered a plea of nolo contendere, reserving the right to appeal on the issue of the insanity defense. The judgment of guilt was affirmed without -written opinion. Williams v. State, 358 So.2d 1198 (Fla. DCA 1978). Appellant next filed a petition for federal habeas corpus relief. Based on the report and recommendation of the federal magistrate, the district court denied the petition. Appellant does not contend that Florida’s use of the M'Naughten definition of insanity is unconstitutional; nor does he challenge the presumption of sanity nor the burden of proof on the issue that is applied in Florida. Rather he alleges that denial of the right to present the insanity defense violated his right to a fair trial by jury, guaranteed by the Sixth and Fourteenth Amendments, even though his attorney conceded at the pretrial hearing that he was not insane under the M’Naughten standard. Record, Exhibit B, Tab 6, page 8. Federal habeas relief does not lie unless the petitioner is in custody in violation of the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254. The issue before us is whether the Constitution requires that a defendant be allowed to present an affirmative defense and instructions relating thereto to the jury even though the state court has ruled that there is no substantial evidence to support that defense and, indeed, defense counsel has conceded the defendant’s inability to meet the determinative legal standard. We answer the question in the negative. Appellant’s contention is analogous to arguments raised in the context of asserting the affirmative defense of entrapment. This court has held that the defendant has the initial burden of producing substantial evidence to support the claim of entrapment before the defense properly is presented' to the jury. United States v. Reyes, 645 F.2d 285, 286-87 (5th Cir.1981); Sears v. United States, 343 F.2d 139, 143 (5th Cir.1965). The sufficiency of the evidence proffered to raise the defense of entrapment is a question of law for the court in the first instance; only if this threshold showing is made does a question of fact for the jury arise. United States v. Reyes, 645 F.2d at 287. No deprivation of the constitutional right to a fair trial or a trial by jury is raised by such a procedure. United States v. Humphrey, 670 F.2d 153,155 (11th Cir.1982), cert. denied, 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982); United States v. Reyes, supra; United States v. Hill, 626 F.2d 1301, 1303-04 (5th Cir.1980); United States v. Wolffs, 594 F.2d 77, 80 (5th Cir.1979). Cf. United States v. DeLoach, 504 F.2d 185 (D.C.Cir.1974) (on direct appeal, if evidence is sufficient to support inferences underlying defendant’s non-affirmative defense, counsel must be allowed to make arguments to the jury); Strauss v. United States, 376 F.2d 416, 419 (5th Cir. 1967) (on direct appeal of federal conviction defendant is entitled to offer and have the jury instructed as to any theory of defense “for which there is any foundation in the evidence”). Similarly here, under the law of Florida insanity is an affirmative defense. See Parkin v. State, 238 So.2d 817, 821-22 (Fla.1970). As with the entrapment defense, the burden of producing sufficient evidence to establish a jury question may constitutionally be placed on the defendant so long as the threshold level of proof is not of such a magnitude to deprive the defendant of due process protections. Although the state court may or may not have erred as a matter of state law in concluding that there was not sufficient evidence for the insanity defense to be presented to a jury, see Griffin v. State, supra, where appellant conceded that he could not satisfy the M’Naughten test, the federal constitutional threshold certainly was not crossed. The judgment of the district court is AFFIRMED. . Indeed other jurisdictions have explicitly ruled that use of the M’Naughten standard does not violate due process protections. See, e.g., United States ex rel. Phelan v. Brierley, 453 F.2d 73 (3d Cir.1971), judgment vacated on other grounds, 408 U.S. 939, 92 S.Ct. 2875, 33 L.Ed.2d 762 (1972); Ramer v. United States, 390 F.2d 564, 576 (9th Cir.1968), cert. denied, 393 U.S. 870, 89 S.Ct. 156, 21 L.Ed.2d 138 (1968). See also Leland v. Oregon, 343 U.S. 790, 800-01, 72 S.Ct. 1002, 1008-09, 96 L.Ed. 1302 (1952). . This is a legal conclusion to which a presumption of correctness would not necessarily attach. Cf. Sumner v. Mata, 449 U.S. 539, 549, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981). Appellant has not shown by a preponderance of evidence however that the opposite legal conclusion should be reached by the federal habeas court. . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this circuit adopted as precedent the decisions of the former Fifth Circuit decided prior to October 1, 1981. . Appellant in effect argues that regardless of the defendant’s ability to meet the appropriate legal standard he has a constitutional right to submit the affirmative defense of insanity to the jury in the hope that the jury will arrive at a favorable, but concededly erroneous, result. The Sixth and Fourteenth Amendments do not extend so far. 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_appel1_7_2

B

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). John C. LOAN, Appellant, v. SOUTHERN RAILWAY COMPANY, Appellee. No. 9804. United States Court of Appeals Fourth Circuit. Argued April 8, 1965. Decided April 20, 1965. F. Byron Parker, Richmond, Va., for appellant. H. Merrill Pasco, Richmond, Va. (Robert P. Buford, Jr., and Robert F. Brooks and Hunton, Williams, Gay, Powell & Gibson, Richmond, Va., on brief), for appellee. Before SOBELOFF and J. SPENCER BELL, Circuit Judges, and STANLEY, District Judge. PER CURIAM: John C. Loan, a railroad fireman, brought an action against his employer, Southern Railway Co., under the Federal Employers’ Liability Act. He alleged in his complaint that the defendant negligently caused him to slip and fall by leaving metal rods on a step leading to the cab of an engine in which he was working. The case was heard by a jury and a verdict was rendered for the defendant. The charge to the jury was adequate and there was sufficient evidence offered to support its verdict. The testimony of Loan’s ex-wife, even if privileged, was merely cumulative. Independent witnesses abundantly established the facts testified to by the wife. The error of receiving her testimony, if it was error, was not in our opinion sufficient in the entire context of the trial to warrant reversal. Affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". 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_weightev

D

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Cathy A. WILLIAMS, Appellee, v. FORD MOTOR CREDIT COMPANY, Appellant, v. S & S RECOVERY, INC. Cathy A. WILLIAMS, Ford Motor Credit Company, Appellant, v. S & S RECOVERY, INC., Appellee. Nos. 79-1911, 79-1947. United States Court of Appeals, Eighth Circuit. Submitted June 12, 1980. Decided Aug. 12, 1980. W. R. Nixon, Jr., Little Rock, Ark., for appellant, Ford Motor Credit. Fines F. Batchelor, Jr., Van Burén, Ark., argued, for appellee, Cathy Williams. Bradley D. Jesson, Hardin, Jesson & Dawson, Fort Smith, Ark., on brief, for S & 5 Recovery. Before LAY, Chief Judge, STEPHENSON, Circuit Judge, and HANSON, Senior District Judge. William C. Hanson, Senior District Judge, Northern and Southern Districts of Iowa, sitting by designation. LAY, Chief Judge. Cathy A. Williams filed suit in state court against Ford Motor Credit Company (FMCC) alleging that it wrongfully repossessed an automobile in her possession which had been financed through FMCC. FMCC removed the case to federal court, answered and filed a third-party complaint against S & S Recovery, Inc. (S & S). The third-party complaint alleged that the seizure of Williams’ vehicle was made solely by S & S and that the manner and method used in the repossession was controlled by S 6 S. A trial was conducted and at the conclusion of all the evidence, S & S’s motion for directed verdict was granted. Plaintiff’s case against FMCC was allowed to go to the jury; a verdict of $5,000 was returned in favor of plaintiff. Thereafter, FMCC made a motion for judgment notwithstanding the verdict. In response, plaintiff suggested that the court deny defendant’s motion or, if the court decided that the verdict should not be allowed to stand, that an order be entered for a voluntary nonsuit without prejudice to refile in state court. The court ordered a voluntary nonsuit without prejudice to refile and ordered nunc pro tunc that a verdict be directed in favor of S & S and against FMCC. FMCC appeals from the district court’s orders dismissing plaintiff’s complaint without prejudice and directing a verdict in favor of S & S. Where no responsive pleading is filed, Fed.R.Civ.P. 41(a)(1) makes clear that a party may dismiss his action without order of the court. However, Fed.R.Civ.P. 41(a)(2) reads in part: By Order of Court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper. It has long been acknowledged that the rule gives the district court equitable discretion to dismiss an action upon plaintiff’s request. Holmgren v. Massey-Ferguson, Inc., 516 F.2d 856 (8th Cir. 1975); United States v. Gunc, 435 F.2d 465 (8th Cir. 1970); Johnston v. Cartwright, 355 F.2d 32 (8th Cir. 1966). As stated in International Shoe Co. v. Cool, 154 F.2d 778 (8th Cir. 1946): At most, the discretion vested in the court is a judicial and not an arbitrary one and does not warrant a disregard of well settled principles of procedure. Id. at 780. Here the action had been pending for over eighteen months. Discovery had been conducted on both sides, extensive pretrial preparation and proceedings had been undertaken and a two and one-half day jury trial had been held. A jury deliberated and rendered the verdict. Briefing had been completed on the motion for judgment notwithstanding the verdict. The only possible basis for the dismissal without prejudice appears to be that plaintiff feared the trial court might grant the motion. Plaintiff’s motion fails to disclose the reason for seeking the dismissal without prejudice. Plaintiff did not indicate that new evidence might be shown. Even if there were such evidence, there is no indication that plaintiff could not have presented it during trial. This case is in a somewhat different posture than the International Shoe Co. case but the same reasoning applies here. There the defendant had moved for a directed verdict and the plaintiff then moved for a dismissal without prejudice. Here plaintiff has the verdict, but was obviously apprehensive of the court’s ruling on the judgment notwithstanding the verdict. In International Shoe Co. this court reasoned: There seems to have been ample opportunity to prepare the case for trial and four and a half days had been consumed in taking testimony at the time plaintiff rested his case. Defendant’s motion for a directed verdict had been fully presented on its merits and submitted to the court, and the court had announced its intention to sustain the motion and direct a verdict for defendant. As the result of the proceeding the court had reached a decision on the merits and all that remained to be done was the accepting of a verdict and the entry of judgment thereon. To all intents and purposes the defendant had secured a decision that plaintiff’s action was without merit and this decision had been announced. The discontinuance of the case in such circumstances involved more for the defendant than the mere annoyance and expense of a second litigation upon the same subject matter. It deprived it of the benefit of a decision in its favor. Id. at 780. We find the defendant has sustained substantial prejudice by the dismissal. It will be subjected to more litigation expense and might be prejudiced on its third-party claim. If the trial court errs in granting judgment notwithstanding the verdict, plaintiff may still appeal to this court. Under the circumstances we feel the court abused its discretion in granting the motion to dismiss without prejudice at such a late time in the proceedings. Ferguson v. Eakle, 492 F.2d 26 (3rd Cir. 1974); Noonan v. Cunara Steamship Co., 375 F.2d 69 (2d Cir. 1967); International Shoe Co. v. Cool, 154 F.2d 778 (8th Cir. 1946); see Holmgren v. Massey-Ferguson, Inc., 516 F.2d 856 (8th Cir. 1975); United States v. Gunc, 435 F.2d 465 (8th Cir. 1970); Johnston v. Cartwright, 355 F.2d 32 (8th Cir. 1966). Cf. Western Union Telegraph Co. v. Dismang, 106 F.2d 362 (10th Cir. 1939). See generally 9 Wright & Miller, Federal Practice & Procedure §§ 2364, 2376 (1971); 5 Moore’s Federal Practice ¶¶ 41.05[1], 41.05[3] (2d ed. 1979). As we indicated earlier, defendant impleaded S & S for indemnification. The trial court granted a directed verdict in favor of S & S at the close of the evidence. There is no need to review at this time the merits of the indemnity claim brought by defendant. Fed.R.Civ.P. 14 permits impleader of one who is or may be liable to the defendant. Federal impleader is designed to decide contingent liability as well as primary liability and the third-party claim can accelerate determination of the liability, if any, between the third-party plaintiff and the third-party defendant. As a prerequisite to that contingency, a court may grant a conditional judgment against the third-party defendant that does not become enforceable until the third-party plaintiff is otherwise determined to be entitled to judgment or payment of the judgment. See Travelers Insurance Co. v. Busy Electric Co., 294 F.2d 139, 145 (5th Cir. 1961); Wright & Miller Federal Practice & Procedure § 1451 (1971). In the present case the trial court ruled in favor of the third-party defendant before entering judgment on the original complaint. Under the circumstances, because the issue of S & S’s liability over to FMCC may be rendered moot by the ultimate disposition of FMCC’s motion for judgment against Williams notwithstanding the verdict, we decline to rule at this time on FMCC’s appeal from the judgment in favor of S & S. Instead, we dismiss FMCC’s appeal from that judgment without prejudice, and hold that the ruling of the trial court in favor of S & S should be appealed (if necessary) after judgment on the merits has been entered in the main suit. The order of the district court dismissing plaintiff’s action without prejudice is vacated; the case is remanded and the court is directed to rule on defendant’s motion for judgment notwithstanding the verdict; the appeal by defendant on its third-party complaint is ordered dismissed without prejudice. In the event the court overrules defendant’s motion for judgment notwithstanding the verdict, defendant may move within ten days for reconsideration of the court’s ruling on its third-party complaint; upon such ruling the court should simultaneously enter judgment on the verdict and on the third-party complaint for convenience of appeal. It is further ordered that each party shall pay its own costs on this appeal. . Of course, the court may sever the third-party claim for separate trial and reserve ruling on it until trial on the main cause is complete. If the third-party claim is not severed the judgment on the main case is not final for purposes of review until the third-party claim is ruled upon or unless the district court files a Fed.R. Civ.P. 54(b) order. See 6 Moore’s Federal Practice ¶ 54.36 (2d ed. 1976). Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_constit

B

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant. UNITED STATES of America, Plaintiff-Appellee, v. Donald Louis MONROE, Defendant-Appellant. No. 88-3017. United States Court of Appeals, Eleventh Circuit. March 2, 1989. Thomas S. Keith, Asst. Federal Public Defender, Pensacola, Fla., for defendant-appellant. Randall J. Hensel, Asst. U.S. Atty., Pensacola, Fla., for plaintiff-appellee. Before RONEY, Chief Judge, HATCHETT, Circuit Judge, and HENDERSON, Senior Circuit Judge. HATCHETT, Circuit Judge. In this appeal, we reject the appellant's contentions that the district court erred by admitting hearsay statements, finding the evidence sufficient to convict, and ordering the forfeiture of real property. We affirm. FACTS On July 14,1987, the Air Products Chemical Plant in Pace, Florida, received an order placed by Bill Luke for a fifty-five gallon drum of methylamine, a key ingredient in the manufacture of methamphetamine, from Bill’s Supply, Route 1, Seminole, Alabama. On July 17, 1987, Donald Louis Monroe and a person who identified himself as Earl Godwin arrived at the plant in a van to pick up the order. Monroe and Godwin were required to fill out a visitor’s pass. Monroe signed his name as “D. Martin” and indicated that he represented Bill’s Supply. Godwin drove the van to the loading dock where an Escambia County Sheriffs Department deputy, posing as an employee of Air Products, assisted Monroe and Godwin in loading the fifty-five gallon drum of methylamine into the van. Monroe signed the bill of lading “D. Martin” which reflected the order of the fifty-five gallon drum of methylamine by Bill Luke of Bill’s Supply, Route 1, Seminole, Alabama. Law enforcement officers on the ground as well as in a helicopter observed the van travel to Monroe’s residence on Bankhead Drive in Pensacola, Florida, where Monroe and Godwin unloaded the drum and placed it in a Quonset hut on Monroe’s property. The total property located at 5225 Bank-head Drive encompasses approximately ten to eleven acres and is situated on a sandy drive where the Quonset hut, a mobile home, storage sheds, and a house are located. Also on the property is a large clay pit area containing abandoned cars, equipment, and other containers. Monroe also kept equipment for his machinery and demolition business on the property. Based on the July 17, 1987 surveillance and other information, law enforcement officers sought and obtained a search warrant for Monroe’s residence and the surrounding property at 5225 Bankhead Drive. On July 18, 1987, officers of the Drug Enforcement Administration (DEA) and the Escambia County Sheriff’s Department executed the search warrant and seized numerous items. The chemical apparatus, including flasks, condensers, and tubing were found in the Quonset hut laboratory set up. In a metal storage shed behind Monroe’s house, the officers found a Western Union money transfer application dated February 17, 1987, sent from Donald Moore, 5225 Bank-head Drive, Pensacola, Florida, and made payable to William Luke. Officers found two keys in the kitchen of Monroe’s house which fit the padlock securing the Quonset hut. Once inside the Quonset hut, officers discovered, among other things, a make-shift laboratory set up, that is, two three-neck round bottom flasks, two cold water condensers with tubing, a drying tube, a hot plate, fans for ventilation, and a tank of nitrogen with tubing attached. A DEA chemist described this as a “reflux set up.” Officers found various chemicals, including the fifty-five gallon drum of methylamine obtained from Air Products the day before, now with a valve attached to gain access to its contents, and a canister of monomethylamine in the Quonset hut. Officers also found several empty shipping boxes in the Quonset hut. One box had an address label indicating it had been shipped by the D.F. Goldsmith Chemical and Metal Corporation to William Luke Decorating Company, 2103 West Gardenia Circle, North Fort Myers, Florida, with writing on the box indicating it contained mercuric chloride at the time of shipping. Another empty box had an address label from Chemical Dynamics Corporation, South Plainfield, New Jersey, addressed to Bill’s Pools, Inc., 2103 West Gardenia Circle, North Fort Myers, Florida. Officers found Monroe’s fingerprints on the fifty-five gallon drum of methylamine, the two flasks in the laboratory set up, a box of acetaldehyde found in the house, and the box in which the forty triangular packets of a brown powdery substance were found. PROCEDURAL HISTORY On September 17, 1987, the grand jury charged Monroe in a superseding indictment with conspiring to manufacture methamphetamine, in violation of 21 U.S.C. § 846 (Count I); attempting to manufacture methamphetamine in violation of 21 U.S.C. § 846 (Count II); possessing cocaine in violation of 21 U.S.C. § 844 (Count III); and using or intending to use certain real property in a manner to commit or to facilitate the commission of the alleged violations, in violation of 21 U.S.C. § 853(a) (Count IV). In Count IV, the government sought the forfeiture of Monroe’s real property. During Monroe’s jury trial, he raised hearsay objections to testimony of witnesses Steven Jernigan and Mary DeMoss. The court overruled the objections. At the conclusion of the government’s case, Monroe moved for a judgment of acquittal on all counts. The district court denied this motion. Monroe’s defense consisted of the testimony of the government’s expert chemist who had testified during the government’s case. The government did not present any rebuttal evidence. The jury returned a verdict finding Monroe guilty as charged in Counts I and II, not guilty on Count III, and the property specified in Count IV subject to forfeiture. On December 30, 1987, the district court sentenced Monroe to ten years imprisonment under the provisions of 18 U.S.C. § 4205(b)(2) to run concurrently on Counts I and II. The district court also entered an order forfeiting the real property to the government. Monroe objected to the order of forfeiture on the grounds that the forfeiture, in addition to his sentence of imprisonment, would constitute cruel and unusual punishment in violation of the eighth amendment to the United States Constitution. The district court rejected this contention. CONTENTIONS Monroe contends that the district court erred in admitting testimony from Steven Jernigan and Mary DeMoss that Bill Luke had made statements to them or in their presence which implicated Monroe and Luke in a plan to make methamphetamine. Monroe argues that Jernigan and DeMoss were not coconspirators, and that Luke was not trying to further any conspiratorial aims in making these statements; thus, the district court erred in ruling that Luke’s statements qualified for admission under the coconspirator exception to the hearsay rule. The government counters that the district court did not err in admitting this testimony. The government argues that the district court correctly ruled that Luke’s statements qualified for admission under the coconspirator exception to the hearsay rule. The government asserts that Luke’s statements to Jernigan, who was not a coconspirator at the time, were “in furtherance of the conspiracy” because Jer-nigan did join the conspiracy later. The government argues that the testimony of Mary DeMoss regarding the statements she overheard Luke make with respect to Monroe’s involvement in the conspiracy were likewise in furtherance of the conspiracy because they were meant to allay De-Moss’s suspicions. Monroe also contends that the district court erred in admitting testimony by Steven Jernigan regarding Cindy Luke’s statements which implicated Monroe and Bill Luke in a plan to make methamphetamine. Monroe argues that Cindy Luke’s statements were neither admissible under the coconspirator exception nor the “against penal interest” exception to the hearsay rule. The government argues that the trial court correctly allowed the testimony of Steven Jernigan regarding these statements because the coconspirator exception to the hearsay rule allows statements which further a conspiracy. The government contends that the effect of these statements on Jernigan, in conjunction with Bill Luke’s subsequent revelations followed shortly thereafter by Jernigan’s involvement in the conspiracy, effectively furthered the conspiracy. Next, Monroe contends that sufficient evidence did not exist to sustain his convictions on Counts I and II and the finding of forfeiture in Count IV. Monroe argues that the government’s evidence, while showing suspicious circumstances, is too speculative to constitute proof beyond a reasonable doubt. The government counters that sufficient evidence existed to sustain Monroe’s convictions on Count I and II and the jury finding that the property described in Count IV was subject to forfeiture. Monroe contends that an order of criminal forfeiture is a form of punishment subject to scrutiny under the eighth amendment’s proscription against cruel and unusual punishment. Monroe argues that the forfeiture of his property on which his home stands, in addition to his sentence of imprisonment, violates the eighth amendment because the total sentence is disproportionate to the offenses for which he has been convicted. The government counters that the forfeiture of Monroe’s real property did not constitute cruel and unusual punishment because the trial court correctly considered all the factors surrounding the case and Monroe’s involvement therein, and correctly concluded that forfeiture of his property was not so disproportionate to his crimes as to constitute cruel and unusual punishment in violation of the eighth amendment. ISSUES Monroe raises the following issues on appeal: (1) whether the district court erred in admitting Steven Jernigan and Mary De-moss’s testimony about the Bill Luke statements; (2) whether the district court erred in allowing Steven Jernigan’s testimony regarding Cindy Luke’s statements; (3) whether sufficient evidence existed to sustain the convictions on Counts I and II and to support the finding in Count IV that his real property was subject to forfeiture; and (4) whether the forfeiture of the real property, in addition to the ten-year sentence of imprisonment, constitutes cruel and unusual punishment in violation of the eighth amendment to the United States Constitution. DISCUSSION I. The Bill Luke Statements Monroe contends that the trial court erred in admitting the Steven Jernigan and Mary DeMoss’s testimony regarding certain statements Bill Luke made to them. The government counters that the trial court did not err in admitting this testimony, because the statements were made “in furtherance of the conspiracy.” Fed.R.Evid. 801(d)(2)(E) states: (d) Statements which are not hearsay. A statement is not a hearsay if— (2) Admission by party-opponent. The statement is offered against a party and is (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. Monroe contends that the record does not support a finding that these statements were made “in furtherance” of any conspiracy between Luke and Monroe; thus, they do not come within the coeonspirator exception to the hearsay rule. Monroe argues that Jernigan’s testimony did not indicate that Luke attempted to get Jernigan to join the conspiracy or to act in any way to further it. Although Jernigan did subsequently assist Luke in ordering chemicals, Monroe contends that no evidence exists to indicate that Luke attempted to enlist Jer-nigan’s aid at the time he initially told him about the plan to make methamphetamine. Monroe contends that no factual basis exists for finding that what DeMoss overheard Luke say about him was a statement in furtherance of a conspiracy. Monroe notes that DeMoss was not asked to join a conspiracy or act in any way to further a conspiracy. Further, Monroe argues that the testimony of Jernigan and DeMoss did not indicate that Luke’s statements about Monroe were meant to allay any suspicions or fears that they may have had so as to further the objectives of the conspiracy. Monroe contends that the statements at issue were only casual admissions of culpability to people Luke had individually decided to trust. The government concedes that neither Jernigan nor DeMoss were members of the conspiracy at the time Bill Luke made the statements. The government contends, however, that statements made by a cocon-spirator to a non-member of the conspiracy are admissible by meeting the “in furtherance of a conspiracy” standard when found to advance the objectives of the conspiracy. The government argues that Jernigan’s conversation with Bill Luke did lead to his becoming an active participant in the conspiracy between Luke and Monroe. Whether a statement is “in furtherance of the conspiracy” is determined on the particular facts of each case. That determination is a finding of fact which may be overturned only if clearly erroneous. United States v. Posner, 764 F.2d 1535, 1537 (11th Cir.1985). The in furtherance of the conspiracy standard must not be applied too strictly, “lest we defeat the purpose of the exception.” United States v. James, 510 F.2d 546, 549 (5th Cir.), cert. denied sub nom., Vasquez v. United States, 423 U.S. 855, 96 S.Ct. 105, 46 L.Ed.2d 81 (1975); see also United States v. Ayarza-Garcia, 819 F.2d 1043, 1050 (11th Cir.), cert. denied, — U.S.-, 108 S.Ct. 465, 98 L.Ed.2d 404 (1987). On review, we apply a liberal standard in determining whether a statement is made in furtherance of a conspiracy. United States v. Santiago, 837 F.2d 1545, 1549 (11th Cir.1988). Statements made by one conspirator to a fellow conspirator identifying yet another conspirator for the purpose of affecting future dealings between the parties are held to be in furtherance of a conspiracy. United States v. Caraza, 843 F.2d 432, 436 (11th Cir.1988); United States v. Patton, 594 F.2d 444, 447 (5th Cir.1979). Also, when a conspirator provides information to his coconspirators necessary to keep them abreast of the conspiracy’s current status, such statements are properly admitted as coconspirator declarations. United States v. Pool, 660 F.2d 547, 562 (5th Cir. Unit B 1981). Conversations made by conspirators to prospective coconspirators for membership purposes are also considered acts in furtherance of the conspiracy. United States v. Shoffner, 826 F.2d 619, 628 (7th Cir.), cert. denied sub nom. Strange v. United States, — U.S. -, 108 S.Ct. 356, 98 L.Ed.2d 381 (1987). Statements can be made in furtherance of a conspiracy if meant to allay suspicions or fears of others. Posner at 1538. Based on this authority and a close examination of the contested testimony, we find that the district court did not err in admitting the testimony of Steven Jernigan and Mary DeMoss regarding the Bill Luke statements. These statements are admissible under the coconspirator exception to the hearsay rule because the statements were made in furtherance of the conspiracy. II. The Cindy Luke Statements Monroe contends that the trial court erred in allowing the testimony of Steven Jernigan regarding Cindy Luke’s statements. The government counters that the trial court correctly allowed this testimony. Prior to trial, Cindy Luke died. Monroe contends that Jernigan’s testimony about Cindy’s statements was inadmissible under both the coconspirator and “against penal interest” exceptions to the hearsay rule. Monroe argues that these statements are not admissible under the coconspirator exception because they were not made in furtherance of the conspiracy. Monroe asserts that these statements are also inadmissible under the “against penal interest” exception of Fed.R.Evid. 804(b)(3) which provides: (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interests, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. See United States v. Alvarez, 584 F.2d 694, 699-702 (5th Cir.1978); and United States v. Harrell, 788 F.2d 1524, 1526-27 (11th Cir.1986). Monroe contends that this exception is inapplicable because Cindy did not implicate herself in the plan to make methamphetamine. She only implicated her husband, Bill Luke. The government concedes that Jerni-gan’s testimony regarding Cindy Luke’s statements did not qualify as statements against her penal interests. The government, however, argues that a reasonable inference can be drawn that Cindy Luke’s comments to her brother were more than informative. Considered in light of her brother’s subsequent conduct, the government argues that Cindy’s statements may be construed as being in furtherance of the conspiracy because she expressed her knowledge of and her tacit approval of her husband’s activities in which her brother subsequently actively assisted. The government contends that Cindy Luke’s knowledge and apparent approval of Bill Luke’s and Don Monroe’s activities could be seen as statements made in furtherance of the conspiracy. Whether a statement is in furtherance of the conspiracy must be determined on the particular facts of each case, with that determination overturned only if clearly erroneous. Posner at 1537. See Section I. We hold that the district court did not err in admitting the testimony of Steve Jerni-gan regarding Cindy Luke’s statements because the statements may be construed to have induced Jernigan to join the conspiracy. III. Sufficiency of the Evidence Monroe contends that the evidence at trial was insufficient to sustain his convictions on Counts I and II and the finding in Count IV that his property is subject to forfeiture. In addition to the evidence found at Monroe’s residence, and the testimony of Jernigan and DeMoss, a handwriting expert testified that Monroe had written “Merck index” reference numbers on the front page of the written formula for making methamphetamine. Monroe also wrote the words on the back of the last page; however, the handwriting expert concluded that Monroe had not written the actual formula. Additionally, the expert concluded that Monroe had written the list of chemical supplies with corresponding reference numbers and prices consistent with VWR Scientific Company invoices and packing receipts found in his master bedroom. A DEA chemist assisted the agents in the search of the Quonset hut and the examination of the chemical apparatus set up inside. The chemist performed an analysis of the liquid substances collected from the flasks and jars found in the Quonset hut and determined that none were methamphetamine or any other controlled substance. The chemist also performed an analysis of the brown powdery substance contained in the forty triangular shaped packets and determined that those likewise did not contain methamphetamine or any controlled substance. The brown powdery substance did contain, however, among other things, inositol, which is a common cutting agent for drugs. The chemist testified that the substance in the packets, the powdery substance on the grinder found in the residence, and the liquids in the flasks in the Quonset hut all contained the identical non-controlled substance N,N dibenzyl me-thylamine. The chemist also testified that the written formula found in the house was a formula for making methamphetamine, but that an essential ingredient utilized in the formula, P2P, was not found on Monroe’s property. The chemist opined that considering the laboratory set up as he found it in the Quonset hut, the chemicals found on the property, and his analysis of the various liquids and solids, Monroe could not have been trying to make methamphetamine by the written formula found inside his residence. The various numbers written on the front page of the formula, identified as being Monroe’s handwriting, corresponded to certain reference numbers in the “Merck index.” The reference numbers written by Monroe on the formula included those for the following chemicals: methylamine, methanol, mercuric chloride, ethyl ether, sodium hydroxide, and methamphetamine. The chemist opined that Monroe could have been trying to make methamphetamine by what is known as the “Chewbak-ka Darth” method. This method requires mixing various chemicals in two separate reactions and then combining the end products of these two reactions to make methamphetamine. Monroe had all the essential ingredients for making methamphetamine by this method except for magnesium metal turnings. Without the magnesium metal turnings, the first reaction could not take place and consequently, the final reaction to methamphetamine could not take place. Pieces of aluminum foil found in one of the flasks could not be used as a substitute for magnesium metal turnings because of their different properties. The chemist further testified that the substance found in the flasks and in the forty packets —N,N dibenzyl methylamine, or N benzyl methylamine — could have been produced by bubbling methylamine into a liquid containing Alpha-chlorotoluene. On cross-examination, the chemist acknowledged that Monroe could have been making something other than methamphetamine. In determining challenges to the sufficiency of evidence in a criminal case, we must determine whether the evidence, when viewed in the light most favorable to the government, and accepting reasonable inferences an,d credibility choices by the fact-finder, would enable the trier of fact to find the defendant guilty beyond a reasonable doubt. United States v. Sanchez, 722 F.2d 1501, 1505 (11th Cir.), cert. denied sub nom. Gonzalez v. United States, 467 U.S. 1208, 104 S.Ct. 2396, 81 L.Ed.2d 353 (1984). To support a conviction for a conspiracy, the government must prove that two or more persons agreed to commit a crime, that the defendant knew of the agreement, and that he or she voluntarily became a part of the conspiracy. United States v. Alvarez, 837 F.2d 1024, 1027 (11th Cir.), cert. denied, — U.S.-, 108 S.Ct. 2003, 100 L.Ed.2d 234 and cert. denied sub nom. Masquera-Herrera v. United States, — U.S.-, 108 S.Ct. 2004, 100 L.Ed.2d 235 (1988). Monroe concedes that the government’s evidence, i.e., the items seized at his property, the laboratory set up, the interactions with the Lukes, and the testimony of the DEA chemist suggests that he conspired to and attempted to manufacture methamphetamine. Monroe, however, contends that suspicious circumstances do not equal proof beyond a reasonable doubt. Monroe emphasizes that no methamphetamine was found on his property and that he did not have all the essential ingredients to make it. Although he possessed a formula for making methamphetamine, Monroe argues that he could not have been using the formula to try to make methamphetamine because he lacked several essential ingredients. Monroe contends that although the DEA chemist explained how he may have been trying to make methamphetamine by another method, no formula for this method existed and that the high unlikelihood of success without a formula, the lack of an essential ingredient, and the inconsistency between this method and how the substance in the flasks and packets could have been made, defeats the government’s theory. Monroe argues that considering all the admissible evidence in the light most favorable to the government, no reasonable jury could find guilt beyond a reasonable doubt on Counts I and II, and that the finding of forfeiture on Count IV must necessarily fall. The test for determining whether a defendant may be convicted of an attempt was established in United States v. Mandujano, 499 F.2d 370 (5th Cir.1974), cert. denied, 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975). First, the defendant must have been acting with the kind of culpability otherwise required for the commission of the crime which he is charged with attempting.... Second, the defendant must have engaged in conduct which constitutes a substantial step toward commission of the crime. A substantial step must be conduct strongly corroborative of the firmness of the defendant’s criminal intent. Mandujano at 376. The government contends that all the evidence found on defendant’s property, even excluding the testimony of Jernigan and DeMoss, is sufficient to establish Monroe’s intent to conspire with others to manufacture methamphetamine and that his acts were not consistent with a legitimate explanation of his conduct. Coupling the evidence with the statements by Jernigan and DeMoss, the government argues that Monroe’s intent to conspire and attempt to manufacture methamphetamine is clearly established. See United States v. Cusak, 827 F.2d 696, 698 (11th Cir.1987). We hold that the evidence, when viewed in the light most favorable to the government, enabled the trier of fact to find Monroe guilty beyond a reasonable doubt. Sufficient evidence existed to convict Monroe on Counts I and II as charged. IV. Forfeiture Monroe contends that the forfeiture of his property in addition to his ten-year sentence of imprisonment constitutes cruel and unusual punishment in violation of the eighth amendment to the United States Constitution. Monroe cites two Ninth Circuit cases to argue that an order of criminal forfeiture is a form of punishment which must be scrutinized under the eighth amendment. See United States v. Littlefield, 821 F.2d 1365 (9th Cir.1987) (remand to district court to determine whether entire parcel of land, or only portion used for drug cultivation should be subject to forfeiture under 21 U.S.C. § 853) and United States v. Busher, 817 F.2d 1409 (9th Cir.1987) (remand to district court to determine whether forfeiture of entire interest in several properties under 18 U.S.C. § 1963 was so grossly disproportionate to the offense committed as to violate the eighth amendment). In Busher, the Ninth Circuit held that an order of forfeiture must be examined under the test enunciated in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (the eighth amendment prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed): In considering the harm caused by defendant’s conduct, it is certainly appropriate to take into account its magnitude: the dollar volume of the loss caused, whether physical harm to persons was inflicted, threatened or risked, or whether the crime has severe collateral consequences, e.g., drug addiction_ The eighth amendment prohibits only those forfeitures that, in light of all relevant circumstances, are grossly disproportionate to the offense committed. Busher at 1415 (emphasis added) (citations and footnotes omitted). In Littlefield, the Ninth Circuit stated: Before entering an order of forfeiture under section 853, the district court must therefore determine, consistent with Busher, that forfeiture of the entire property on which drugs were cultivated together with other punishments imposed is not so disproportionate to the offense committed as to violate the Constitution. In making that determination, the court is not limited to the factors specifically mentioned in Busher, but may take into account other relevant considerations, including the value of the illegal drugs cultivated on the property, and the nexus between the portion of the property actually used to grow the marijuana plants and the rest of the land. Littlefield at 1368 (citations omitted). Citing both Busker and Littlefield, Monroe contends that the forfeiture of his entire property in addition to his ten-year sentence of imprisonment violates the eighth amendment. Monroe’s property consisted of his home and ten to eleven acres of land. The market value of the property was estimated to be $25,000 to $30,000. Monroe argues that we should consider the fact that no methamphetamine was actually produced on his property, and that this property is his only significant asset. The government contends that the forfeiture of Monroe’s real property did not constitute cruel and unusual punishment in violation of the eighth amendment. The district court rejected Monroe’s argument that forfeiture of the entire property was grossly disproportionate and noted that the maximum penalties for the offenses involved in Counts I and II were each imprisonment for up to 20 years and a $1 million fine, and that 10 year concurrent sentences and the forfeiture of property worth up to $30,000 were not grossly disproportionate punishments. Although the Ninth Circuit has recognized criminal forfeiture as a form of punishment subject to the eighth amendment’s prohibition against cruel and unusual punishment, we decline to address this issue of first impression in this circuit (whether the eighth amendment applies to forfeitures). We decline because the sentence of 10 years concurrent on Counts I and II and the forfeiture of property worth up to $30,-000 would not be disproportionate to Monroe’s crimes and would not implicate a constitutional violation nor require the application of the three-pronged Solem criteria. Consequently, we await a better factual setting in which to determine the eighth amendment issue. CONCLUSION We hold that the district court did not err in admitting the testimony of Steven Jerni-gan and Mary DeMoss regarding Bill Luke’s statements under the coconspirator exception to the hearsay rule, nor in admitting the testimony of Steven Jernigan regarding Cindy Luke’s statements. We hold that sufficient evidence existed to convict Monroe on Counts I and II. Finally, we affirm the forfeiture because no eighth amendment violation would exist under any existing analysis or any standard we would create. AFFIRMED . Items seized from Monroe’s house included: (1) a bottle of inositol, which is a common "cutting agent” for methamphetamine and other drugs; (2) a black grinder with powder residue on it; (3) eight full boxes containing the chemical acetaldehyde; (4) a sandwich bag box containing one clear plastic sandwich bag which contained forty small triangular packets of a brown powder substance; (5) a Kodak laboratory research and products catalog and a VWR Scientific Catalog, both reference books for selling chemicals and laboratory equipment; (6) the "Merck Index,” a dictionary encyclopedia of chemical compounds containing a list of almost all known chemicals and their physical properties; (7) an address book and a rolodex, each containing, among other things, the name Bill Luke with a telephone number of (813) 543-5148; (8) a county occupational license issued by Escambia County to West Florida Demolition, Donald Moore, 5225 Bankhead Drive, Pensacola, Florida; (9) numerous packing lists and invoices from VWR Scientific Company and Eastman Kodak Company reflecting the shipment of various chemicals and laboratory equipment to Monroe’s address under the names of Don Martin, Don Moore, or Don Morton; (10) an Air Products sticker attached to a material safety data sheet for methylamine, the sticker reflecting a weight of seven pounds, with the methylamine safety data sheet inscribed with the handwritten notation of "Bill’s Supply, Residential Division, Route 1, Box 129, Seminole, Alabama”; (11) a cashier’s check customer receipt payable to the order of Air Products from Bill’s Supply in the amount of $130.41, dated July 6, 1987; (12) a photostatic copy of a formula for making methamphetamine with some numbers written in ink on the front page and writing on the back of the last page; (13) the top flap of a cardboard box with an address label showing that it was from Air Products, the Escambia plant, addressed to "Sharpshooter’s Gun Sales, 2103 East Gardenia Circle, North Fort Myers, Florida, Attention Cynthia Luke,” reading the contents to be methylamine aqueous solution, flammable liquid; and (14) a legal size sheet of paper with numerous handwritten entries by Monroe for chemical apparatus including the description, reference number, and price corresponding to the same information on VWR Scientific Company invoices and packing receipts found in Monroe's master bedroom. . At trial, Jernigan testified: THE COURT: Now, I’m getting confused because he’s already testified that Luke said something directly to him about Donald Monroe. Did Luke say anything to you directly about Donald Monroe getting involved? [JERNIGAN]: Yes, he did tell me that him and Bill were in — Bill and Don was going to get together and use his place to make these drugs. [COUNSEL]: What was it, Did he make statements to you directly or did he not? A. He made several statements to me directly but I can’t recall all the statements. Q. Well, I understand you may not recall word for word but I need to know what, in general, he said to you— A. In general, he said that him and Don was trying to get together and make crystal meth. They was going to try to get these drugs. He was going to ship the drugs up to him, get him the drugs any way he could to make the drug with. Q. Now, when he was saying this to you, was he trying to enlist your help in any way? Was he telling you, ‘This is what we're doing; this is what I want you to do’? A. No. He just told me what they were doing. Q. He was just telling you what he was doing with Mr. Monroe? A. Right. Correct. Q. For your information? A. Yes. Correct. Q. All right. I asked you — The last question, I think, before we went to the Bench was when if ever it came up about any conversations you had with Bill Luke about Donald Monroe being involved in this thing, making methamphetamine? A. Uh-huh (affirmative). Q. Can you tell me if that ever occurred? A. Well, they — he had told me before that he was worried about — he didn’t want to make the stuff there itself because he didn’t want to make it around the kids and this and that and he was scared. So he knew that Don Monroe had a big place up here, a lot of land that was kind of secluded off to itself. So he said he was going to try to get Don involved in it and help him out and have Don make it up here for him. Q. Okay. Now, did you ever assist your brother-in-law, Bill Luke, in trying to get these chemicals to make this methamphetamine? A. Yes, I did. DeMoss testified: Q. Were you ever at the house and answered the phone when it was Don Monroe and Bill agreed to talk to him? A. Yes, sir. Q. Did you ever overhear any conversation they had? A. I heard bits and pieces. Q. Could you tell what they were talking about from what you heard? A. Drugs. Q. What type? A. Chemicals. . At trial, Jernigan, Cindy’s brother, testified: Q. Did you ever have any conversation with your sister regarding the manufacture of methamphetamine? A. Yes. She approached me one day and said Bill had come up with a formula from somewhere for the making of crystal meth. Q. Who was going to be making it? A. Him and Don Monroe was supposed to get together. Don Monroe was supposed to make it at his place. Q. Slow down. I’m referring first to the statement Cindy gave — when Cindy told you about it. A. She said Bill was going to be making it. Q. Where at? A. They didn’t say where at. Q. They didn’t know? THE COURT: She just said they were — She wasn’t helping? THE WITNESS: No. Q. Did Cindy tell you Bill had found a formula? A. Yes, and was going to be making crystal meth, the methamphetamine. Q. Did she say thing about profit or money? A. No. . We have limited Solem v. Helm to the extremely narrow Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant? A. Issue not discussed B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant D. The resolution of the issue had mixed results for the appellant and respondent 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, Plaintiff-Appellee, v. Ronald Thomas BOHLE, Defendant-Appellant. No. 18604. United States Court of Appeals, Seventh Circuit. June 2, 1971. Cummings, Circuit Judge, concurred with opinion. Enoch, Senior Circuit Judge, dissented with opinion. James H. Pankow, Joseph T. Helling, Philip C. Potts, South Bend, Ind., for defendant-appellant. William C. Lee, U. S. Atty., Fort Wayne, Ind., Richard L. Kieser, Asst. U. S. Atty., South Bend, Ind., for plaintiff-appellee. Before ENOCH, Senior Circuit Judge, CUMMINGS and PELL, Circuit Judges. PELL, Circuit Judge. On January 9, 1969, the destined course of Eastern Airlines Flight No. 831 originating at Miami, Florida was diverted from the Bahamas to Cuba by a procedure variously known as hijacking or skyjacking and sometimes more grandiloquently referred to as air piracy. Ronald Thomas Bohle was indicted for the act pursuant to 49 U.S.C. §§ 1472 (i) and 1473(a) in the Northern District of Indiana where he stood trial before a jury, resulting in his conviction and sentencing of twenty-five years confinement. We fail to find in the record any serious, or even token, disputation that Bohle did not board the plane in Miami and after the plane was aloft and over open water that he did not with the actual use of a switchblade knife and the threatened use of concealed nitroglycerin and a gun persuade a stewardess to take appropriate steps to divert the course of the plane to Cuba. While the possibility of an insanity defense was alluded to at a hearing on a motion for bond reduction in December 1969, it was not until the second day of the trial on April 24, 1970, after the Government had concluded its ease-in-ehief, that counsel indicated to the court that insanity was an issue in the case. Most of the contentions raised on this appeal concern alleged errors occurring during the course of the seven day trial and insofar as pertinent thereto, evi-dentiary aspects of this case will be set forth in connection with the specific contentions of Bohle for reversal. There are, however, two threshold contentions of error. VENUE CONTENTION Bohle’s first contention is that venue was improper in the district court for the Northern District of Indiana, under the provisions of 49 U.S.C. § 1473(a). That section, insofar as here relevant, provides that where, as here, the offense takes place outside any district, “the trial shall be in the district where the offender * * * is arrested or is first brought. If such offender * * * [is] not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender * * A complaint charging Bohle with aircraft piracy was filed with the United States Commissioner in the Northern District of Indiana on June 27, 1969. Bohle was transported to the United States border by Canadian officials on November 2, 1969, entering the United States in the Northern District of New York. He was there arrested pursuant to a warrant issued by the United States Commissioner in Indiana. Following his removal to the Northern District of Indiana, an indictment was returned in that district on December 15, 1969. Bohle asserts that venue was lacking in the Northern District of Indiana because he was arrested in the Northern District of New York before the indictment was returned in Indiana. The Government argues in part that the purpose of the venue provision is satisfied by the filing of the complaint in Indiana before Bohle was “arrested or brought into any district. * * * ” By this filing, it is contended, the first step was taken leading to the return of an indictment and the prosecution was thus begun in the Northern District of Indiana before Bohle’s return to this country. We need not reach the merits of this phase of the Government’s position since even if defendant is correct in asserting that venue was otherwise improper, he has waived any objection he might have had. Venue was challenged for the first time in a motion for acquittal filed at the close of the Government’s case. While such a motion is the proper vehicle for asserting objections to venue in some cases, United States v. Jones, 174 F.2d 746 (7th Cir. 1949); 1 Wright, Federal Practice and Procedure: Criminal § 306, p. 600, this is not one of those cases. A challenge to venue in a motion for acquittal is timely only where there is a proper allegation of venue which is not sustained by the evidence. 1 Wright, Federal Practice and Procedure: Criminal § 306, p. 600 and cases cited at n. 9 therein. In such a case the defendant has no notice of a defect of venue until the Government rests without proving what it has alleged. Until he has such notice, there can be no waiver. United States v. Gross, 276 F.2d 816, 819 (2d Cir. 1960), cert. den. 363 U.S. 831, 80 S.Ct. 1602, 4 L.Ed.2d 1525. However, where the fact of improper venue is apparent on the face of the indictment, it has been uniformly held that the objection is waived if not presented before the close of the Government’s case and perhaps if not presented before commencement of trial. 1 Wright, Federal Practice and Procedure: Criminal § 306, pp. 305-06 and cases cited at nn. 7 & 8 therein. Bohle attempts to take this case out of this latter rule by arguing that the indictment alleged that his last place of residence was in Michigan City, Indiana, within the Northern District. He maintains that the indictment thus charged proper venue and the defect appeared only when the Government’s proof failed to sustain venue in the Northern District of Indiana. This argument distorts the idea of an allegation of proper venue. An indictment alleges proper venue when it alleges facts which, if proven, would sustain venue. Here the indictment alleged facts which, even if proven, would not sustain venue. The defendant was on notice that even if the Government proved all it alleged, proper venue would not be shown. Here the indictment alleged that Bohle’s last place of residence was within the Northern District of Indiana and the Government proved that allegation at trial. However, such allegation and proof were insufficient to establish venue in the Northern District of Indiana unless the Government further alleged and proved that the indictment was returned prior to Bohle’s return to the United States. That crucial allegation was absent from the indictment and thus the allegation of venue was patently improper. Bohle was chargeable with knowledge of this possible defect in venue which was apparent on the face of the indictment prior to trial. Any objection which he might have raised to it was waived by his failure to assert it until the close of the Government’s case. Specifically, Bohle filed a motion to dismiss on December 23, 1969, prior to his arraignment two months later. In this motion the indictment was challenged on a number of grounds but nothing was even intimated about a venue question although all of the facts pertaining thereto had to have been known at that time. Rule 12(b) (2) of the Federal Rules of Criminal Procedure requires that any such motion “shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof * * However, the court for cause shown may grant relief from the waiver. No effort to show cause was made and indeed it appears that Bohle’s interest was best served by a trial in the Northern District of Indiana. No doubt if the point had been raised on the motion to dismiss and there had been a ruling favorable to Bohle, his counsel might very well on the facts of this particular case had urgent reasons for then waiving. Neither Bohle nor the alleged offense had any connection with the Northern District of New York. That was merely the fortuitous place of his return to this country. Bohle had lived in Indiana all of his life. He left Indiana only 24 hours before the commission of the alleged offense. All of his lay witnesses and two of his medical witnesses lived in Indiana in close proximity to the court where he was tried. So far as we can determine, none of his witnesses resided closer to the court in New York than to the court in Indiana. We further note that Bohle first appeared before the commissioner in New York state on the morning of November 2, 1969, at which time he was advised of the charges against him and of his right to counsel including the appointment thereof. Pursuant to his request for counsel, an attorney was appointed who represented him at this preliminary stage. On November 3, 1969, after conferring with the attorney, Bohle appeared before the commissioner and executed a waiver of removal hearing form. Inadvertently, and apparently through a scrivener’s error, the commissioner papers were made out for removal to the Southern District of Florida where no charge or complaint was pending against Bohle. The only complaint and warrant issued for him were from the Northern District of Indiana. That this was a scrivener’s error is evident from the order subsequently issued on November 10, 1969 by the United States District Court for the Northern District of New York commanding the marshal of that district to remove Bohle to the Northern District of Indiana, “upon the waiver of a hearing and consent to removal to said District by the said Ronald Thomas Bohle. * * * ” As stated in Chandler v. United States, 171 F.2d 921, 933 (1st Cir. 1948), cert. den. 336 U.S. 918, 69 S.Ct. 640, 93 L.Ed. 1081 (1949), “It would indeed be unfortunate if we were compelled to hold, on such a highly technical ground, that this elaborate trial has gone for naught.” We find the venue contention of Bohle, asserting improper venue rather than lack of venue, to be without merit. CONSTITUTIONALITY OF STATUTE A section of the statute pursuant to which Bohle was indicted defines the offense involved as “any seizure or exercise of control, by force or violence or threat of force or violence and with wrongful intent, of an aircraft in flight in air commerce.” 49 U.S.C. § 1472(i) (2). Bohle’s second threshold contention is a challenge to the constitutionality of this section. Essentially the argument is that Congress must have intended something more than general criminal intent when it required the seizure of an aircraft to be “with wrongful intent” to constitute a crime since general intent is required even if not mentioned. Therefore, Congress, it is asserted, must have intended to require some specific intent as an element of the crime but the word “wrongful” is too vague to describe any specific intent and therefore the statute is unconstitutionally vague. From the cases cited by defendant, it would seem that he believes Congress may have intended to require the specific intent to deprive permanently the owner of his property as is often required in robbery statutes, whether or not specifically set forth. We are not persuaded by defendant’s pedantic reasoning that Congress intended to make the hijacking of an aircraft a crime only if the hijacker intended to deprive permanently the owner of it. We agree with the Government and the district court that the wrongful intent referred to in the statute is no more than the general criminal intent present when one seizes or exercises control of an aircraft without having any legal right to do so. Bohle’s remaining contentions concern alleged errors occurring during the trial. One of these, being claimed error in the giving and refusal to give certain instructions dealing with the intent required and with possible lesser included offenses not requiring some specific intent, necessarily falls with the rejection of Bohle’s theory that the statute under which he was indicted requires more than a general criminal intent. The thrust of the remaining contentions is that allegedly erroneous rulings by the district court severely prejudiced the insanity defense. LIMITATION ON ADMISSION OF EVIDENCE One ruling related to defendant’s Exhibit A consisting of medical records covering Bohle’s hospitalization and treatment while in the Navy. The district court admitted these records but advised the jury that they were not admitted to prove the truth of the matters stated but merely because they formed part of the basis for expert opinion on Bohle’s mental condition in 1969. The Government points out that among the documents in Exhibit A are certain statements by Bohle’s mother to a social worker relating to Bohle’s childhood. It defends the ruling of the trial court by asserting, “This sort of material is compounded, unreliable, damaging hearsay of the most obvious sort. That such hearsay is not permitted is so basic to the rules of evidence as to require no citation of authority.” We cannot agree that the matter is so simple. Section 1732(a), Title 28, United States Code, provides: “In any court of the United States and in any court established by Act of Congress, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of such act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter. “All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility. “The term ‘business,’ as used in this section, includes business, profession, occupation, and calling of every kind.” This statute was intended to permit the admission of business records which carry “a circumstantial guarantee of trustworthiness. The test is one of reliability.” United States v. Hickey, 360 F.2d 127, 143 (7th Cir. 1966), cert. den. 385 U.S. 928, 87 S.Ct. 284, 17 L.Ed. 2d 210. It clearly applies in criminal as well as civil proceedings. Hickey, supra; United States v. Ware, 247 F.2d 698, 699-700 (7th Cir. 1957); and Wheeler v. United States, 93 U.S.App. D.C. 159, 211 F.2d 19, 23 (1953), cert. den. 347 U.S. 1019, 74 S.Ct. 876, 98 L. Ed. 1140 (1954). See also Fed.R.Crim. P., Rule 26, 18 U.S.C. Hospitals are included in the statutory phrase “any business.” Wheeler, supra; and England v. United States, 174 F.2d 466, 468-469 (5th Cir. 1949). See also Brucker v. Order of United Commercial Travelers, 217 F.2d 876, 881 (7th Cir. 1954). Thus it is clear that at least some medical records prepared by hospital staffs are admissible in criminal cases. In addressing ourselves to the admissibility of the particular records before us, we deem it important to note that Exhibit A contains three general types of material. It contains material in the nature of a case history consisting largely of statements made by Bohle and third parties, principally his mother, and recorded by members of the hospital staffs. It also contains records concerning the treatment given Bohle and concerning observations made of him which require no special skill and as to which there is little likelihood of disagreement among trained observors. Finally, Exhibit A contains diagnoses, and similar judgment opinions, of Bohle’s condition prepared by those who attended him while he was hospitalized. We do not propose to lay down rigid rules concerning any of these types of material, for in every case “the test is one of reliability,” Hickey, supra, 360 F.2d at 143. In each instance, the trial judge must be left some discretion to decide whether, in the words of the Uniform Rules of Evidence, “the sources of information from which [the records were] made and the method and circumstances of their preparation were such as to indicate their trustworthiness.” National Conference of Commissioners on Uniform State Laws, Uniform Rules of Evidence, Rule 63 (13). See Judicial Conference of the United States, Proposed Rules of Evidence for the United States Courts and Magistrates, Rule 803 (6) and Advisory Committee’s Note, 51 F.R.D. 315, 420 and 426-429 (1971). (Hereafter Proposed Rules for United States Courts). However, some generalizations seem possible and appropriate. The case history “multiple hearsay” type of material in Exhibit A consists almost exclusively of statements by Bohle and his mother concerning events in his life prior to being hospitalized. Some courts would apparently admit such subjective statements of a patient’s history without any express requirement of an independent exception to the hearsay rule apart from the business record statute. Glawe v. Rulon, 284 F.2d 495. 498 (8th Cir. 1960), and Gaussen v. United Fruit Co., 412 F.2d 72, 73-74 (2d Cir. 1969); Tucker v. Loew's Theatre & Realty Corp., 149 F.2d 677, 680 (2d Cir. 1945); but cf. contra Felice v. Long Island R.R. Co., 426 F.2d 192, 196-197 (2d Cir. 1970). See Lyles v. United States, 103 U.S.App.D.C. 22, 254 F.2d 725, 740-741 (1957) (dissenting opinion), cert. den. 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958); and New York Life Ins. Co. v. Taylor, 79 U.S.App.D.C. 66, 147 F.2d 297, 309-310 (1945). See also Pekelis v. Transcontinental & Western Air, Inc., 187 F.2d 122, 131 (2d Cir. 1951), cert. den. 341 U.S. 951, 71 S.Ct. 1020, 95 L.Ed. 1374. See generally McCormick on Evidence § 266, p. 564. The purpose for which these courts would admit such evidence is not clear. We find it necessary to distinguish two separate situations. First, where such statements of case history are relevant merely because made, we think they are clearly admissible under Section 1732(a) if they meet its conditions. See McCormick on Evidence, § 290, p. 611; and 3 Jones on Evidence, § 548, pp. 1066-67 (5th Ed. 1958). Thus, in the instant case, the trial court correctly admitted these multiple hearsay statements in Exhibit A since they formed part of the basis of the expert opinions concerning Bohle's mental condition and were thus relevant whether or not true. It is undisputed that they were taken in the regular course of the hospitals’ business and that the hospitals regularly took and promptly recorded such statements. However, the question remains whether the district court was correct in refusing to admit such multiple hearsay for the truth of the matters stated. We think it was. The reason is aptly stated in the following passage: “These acts were intended to make admissible records which, because made pursuant to a regular business duty, are presumed to be reliable. The mere fact that recordation of third party statements is routine, taken apart from the source of the information recorded, imports no guaranty of the truth of the statements themselves. There is no reason for supposing an intention to make admissible hearsay of this sort. So to construe these statutes would make of them almost limitless dragnets for the introduction of randon, irresponsible testimony beyond the reach of the usual tests for accuracy.” Note, Business Entry Statutes, 48 Col.L.Rev. 920, 927 (1948). See also 3 Jones on Evidence § 548, p. 1067 (5th Ed. 1958). We emphasize that the test is one of reliability. While the recording, in the ordinary course of a hospital’s business, of statements by patients and third parties is persuasive of the fact, when relevant, that such statements were made, it does little by itself to add credence to the contents of the statement. Because “the supplier of the information does not act in the regular course, an essential link is broken; the assurance of accuracy does not extend to the information itself, and the fact that it may be recorded with scrupulous accuracy is of no avail.” Proposed Rules for United States Courts, Advisory Committee’s Note, supra, 51 F.R.D. at 427. See also eases cited therein. In such a case, the record is not admissible for the truth of the matters stated, “not because it contains hearsay, but because it was not made in the regular course of business.” Standard Oil Co. of California v. Moore, 251 F.2d 188, 214 (9th Cir. 1957), cert. den. 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148 (1958). See Simms v. United States, 101 U.S.App.D.C. 304, 248 F.2d 626, 630 (1957), cert. den. sub nom. Duncan v. United States, 355 U.S. 875, 78 S.Ct. 127, 2 L.Ed.2d 79. See generally McCormick on Evidence, § 290, p. 611 and cases cited therein. Of course, where some independent exception to the hearsay rule is available to lend credibility to the second level hearsay and thus justify its admission, a different case is presented. See Proposed Rules for United States Courts, supra, Rule 805, 51 F.R.D. at 445; 2 Jones on Evidence § 316, p. 593 (5th Ed. 1958); McCormick on Evidence § 290, p. 611; and National Conference of Commissioners on Uniform State Laws, Uniform Rules of Evidence, Rule 66. Here, however, no such exception beyond that provided by Section 1732(a) is claimed. Accordingly, the trial court properly admitted the case history portions of Exhibit A under the limiting instruction that they were not to be taken for the truth of the matters stated. Turning to the second general type of material contained in Exhibit A, there seems to be no disagreement, even by courts which take a narrow view of the scope of Section 1732(a), that “regularly recorded facts as to the patient’s condition or treatment on which the observations of competent physicians would not differ are of the same character as records of sales or payrolls [and are, therefore, admissible for the truth of the matter stated under Section 1732 (a)].” New York Life Ins. Co. v. Taylor, supra, 147 F.2d at 303; Wheeler v. United States, supra, 211 F.2d at 23; and England v. United States, supra, 174 F.2d at 468-469. This court has previously reached a similar conclusion, Brucker v. Order of United Commercial Travelers, supra, 217 F.2d at 881. This agreement also extends to the results of routine tests. Wheeler, supra, 211 F.2d at 23, and authorities cited therein; Taylor, supra, 147 F.2d at 303-304, and cases cited therein. This court has reached the same result as to analysis of drugs by a government chemist. United States v. Ware, supra, 247 F.2d at 699-700. See generally 4 Orfield, Criminal Procedure under the Federal Rules § 26.808, p. 425; 3 Jones on Evidence § 548, p. 1066 (5th Ed. 1958); McCormick on Evidence § 290, pp. 609-10; and 6 Wigmore on Evidence § 1707, p. 36 (3rd Ed. 1940). There are significant amounts of such routine information in Exhibit A, some of which could have been helpful to Bohle’s defense of insanity had the jury been allowed to consider it as true. Thus, there are statements that Bohle was originally admitted to a government mental hospital after an attempted suicide and assignment to a cell in the brig “especially for mental cases,” and that he was thereafter transferred directly to another government mental hospital. The exhibit also contains particularized statements concerning Bohle’s appearance, conduct and reactions. Many of these might also have aided Bohle’s defense if taken as true. For example, the exhibit contained records of Bohle’s “disheveled, depressed” appearance and of the fact that “it was apparent that his judgment and insight was impaired.” Under the instruction of the trial court, the jury could not accept these statements as evidence that Bohle had, in fact, given such appearances. Further, Exhibit A contained statements concerning the treatment given Bohle. Certainly the fact that Bohle was given treatment for a mental condition in the past might have helped his defense had the jury been permitted to accept Exhibit A as evidence that he was in fact given such treatment. Thus, we conclude that the district court erred in instructing the jury that, even as to such routine matters, Exhibit A was not to be taken for the truth of the matters stated. It may be argued that the limitation on admission of Exhibit A was harmless error since the entire exhibit was before the jury which could very well have taken all of the matters therein as not only being accurate recordations, but accurate as to the content thereof. However, we cannot assume that the jury would have thus disregarded the court’s instruction. We are not unmindful of an apparent dilemma because in a converse situation where prejudicial evidence has gone before the jury and is then stricken and the jury admonished to disregard the same, courts sometime take the position that the admonition could not have been effective to have removed the prejudicial effect of the improper evidence. We cannot here, however, ignore the potential disadvantaged situation in which Bohle found himself of being unable to assert the validity of the matter so recorded. While the judge’s admonitory limitation did not deny the truthfulness of the matters, nevertheless, since the district court did expressly state that they were not admitted for their truth, the jury had open to it the possible conclusion that the doctor’s testimony based in part upon the recorded data was suspect in having an infirm basis and such opinions were no better than the basis upon which they were founded. In any event, we need not, because we find other errors, determine finally the prejudicial effect of the erroneous exclusions standing alone. The final type of material found in Exhibit A consists of diagnoses of Bohle’s mental condition by members of the hospital staffs. The admissibility of such statements under § 1732(a) has provoked much controversy. The controversy seems not to extend to diagnostic statements based on objective data and presenting no more than average difficulty of interpretation. Even courts which steadfastly oppose the admission of more complex diagnoses concede the admissibility of a diagnosis considered more routine and less conjectural. See, e. g., Taylor, supra, 147 F.2d at 303-304. See generally McCormick on Evidence § 290, p. 612, n. 33 and authorities cited therein. See also Brueker, supra, 217 F.2d at 881. However, where, as here, diagnoses of mental conditions are involved, there is a strong split of opinion both among and within courts. The opposing positions have been concisely summarized by Chief Judge Murrah in Otney v. United States, 340 F.2d 696, 699-700 (10th Cir. 1965). He finds that courts which exclude hospital records of psychiatrist’s opinions “draw a ‘distinction between the reasonable reliability of recorded facts on the one hand, and controversial technical opinions on the other’ and they regard the ‘difference between a “fact” (such as an act, transaction, occurrence or event) and an “opinion” ’, as fundamental in the law of evidence.” Id. Those courts which would admit such records view the diagnosis as “a recorded occurrence or event made in the course of the business of operating a hospital * * * [and] can see no basis for drawing a distinction between diagnoses of mental illness and diagnoses of physical illness or, for that matter, between ‘facts’ and ‘opinion’.” Id. To this summary, we would add that courts wtiich would exclude records of mental diagnoses stress that because such diagnoses are based so much on judgment and opinion and are so subject to disagreement among trained experts, they must be “subjected to the safeguard of cross-examination of the physician who makes [them].” Taylor, supra, 147 F.2d at 304. Those who would admit such records reply that the circumstantial guarantee of the accuracy of such diagnostic records is greater than average “for the records are made and relied upon in affairs of life and death.” Lyles v. United States, supra, 254 F.2d at 738-739 (dissenting opinion), citing 6 Wigmore on Evidence § 1707, p. 36 (3rd Ed. 1940); and Thomas v. Hogan, 308 F.2d 355, 361 (4th Cir. 1962), and cases cited therein. Further, it is reasoned, compelling the attendance at trial of all the medical personnel responsible for the diagnostic record “is too serious a price to pay for the doubtful advantage of cross-examining a doctor who [due to the volume of such routine cases] has little or no independent recollection of the subject he has reduced to writing.” Lyles, supra, 254 F.2d at 738 (dissenting opinion). In addition, advocates of the admission of these records suggest that all records are subject to error which cross-examination might expose, but that Section 1732(a) nevertheless makes them admissible in reliance upon the circumstantial guarantees of trustworthiness arising from their origin, id. at 738-739, and in reliance upon the ability of juries to allow the proper weight to medical opinion of all types, id. at 740. Finally, it is argued that where the circumstantial evidence of trustworthiness is shown to be lacking either by the records themselves or by other evidence indicating that the opinion lacks factual basis or expert qualification, then the records would be barred by the limitations of Section 1732(a) itself and the doctrine of Palmer v. Hoffman, 318 U.S. 109, 111-115, 63 S.Ct. 477, 87 L.Ed. 645 (1943). Thomas, supra, 308 F.2d at 361; Lyles, supra, 254 F.2d at 740. See Otney, supra, 340 F.2d at 700. The positions taken in this controversy by various state and federal courts are ably summarized, with detailed citations, by Chief Judge Sobeloff in Thomas v. Hogan, supra, 308 F.2d at 359-360. See also 23 Modern Federal Practice Digest, Federal Civil Procedure, § 1192, for recent cases. The Advisory Committee’s Notes to the Proposed Rules for United States Courts, supra, 51 F.R.D. at 427-428, indicate a nearly even split in federal courts and note that the trend in state courts favors admissibility. The Proposed Rules, Rule 803(6), would admit diagnostic records. Id. at 420 and 428. Apart from cases already cited sustaining the admission of routine observations and tests. Ware, supra, 247 F.2d 698, and Brucker, supra, 217 F.2d 876, this court has not been squarely presented the problem of diagnostic records. In a case involving a war risk insurance claim, we noted that the record contained evidence that the plaintiff had been admitted to a hospital and his mental condition diagnosed as psychoneurosis, hysteria. Becker v. United States, 145 F.2d 171, 173 (7th Cir. 1944). However, there was apparently no challenge to the admission of this evidence. Also, it may be questioned whether the evidence was admitted for the truth of the matters stated. See Taylor, supra, 147 F.2d at 305 n. 11. We think it clear that Becker was not intended to, and did not, resolve the question of the admissibility of records of mental diagnoses. Thus, we must approach it as an issue of first impression in this court. It may well be that the coexistence of an increasingly complex society and overburdened courts may in the future necessitate the elimination of some of the evidentiary rules which we have heretofore deemed to be safe-guards for verity. We do not believe that we have arrived at that point, however, with regard to the third type of material under consideration. We concede that the records are made and relied upon in affairs of life and death but the proposed method of introduction would eliminate any direct attack upon the weaknesses or the omissions of the opinions involved. Admittedly too, medical personnel is becoming more reluctant to spend time in the court room. Resort may be more and more to out of court depositions but nevertheless the opponent is able thereby to have the opportunity of confrontation as to a particular opinion. As a matter of fact, those who in a particular case would desire to gain the admission of the evidence may in some instances suffer by so doing. Thus, some other doctor for the opposition may on the witness stand refer to the opinion and point out that there is no indication therein that a particular aspect had been given consideration. Such aspect may well have been considered by the recording doctor but not deemed to be of such sufficient significance to record. By his not testifying, however, to spell out and defend his position, it is substantially weakened. Particularly in the matter before us, we are dealing with a field of science in which there are many variables and one in which opinions must perforce be based upon many subjective factors requiring judgment evaluation. Here particularly the party to be confronted by such an opinion should have the full opportunity of cross-examination. We must also keep in mind that cross-examination deals not only with the basis and content of an opinion but with the professional Question: What is the nature of the counsel for the appellant? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:

songer_usc1sect

841

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 21. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". UNITED STATES of America, Plaintiff-Appellee, v. Frank C. McLISTER, Defendant-Appellant. No. 78-3077. United States Court of Appeals, Ninth Circuit. Nov. 21, 1979. Richard B. Mazer, San Francisco, Cal., for defendant-appellant. Floy E. Dawson, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee. Before HUFSTEDLER and GOODWIN, Circuit Judges, and JAMESON, District Judge. The Honorable William J. Jameson, Senior United States District Judge for the District of Montana, sitting by designation. JAMESON, District Judge: A jury found Frank C. McLister guilty of distributing cocaine in violation of 21 U.S.C. § 841(a)(1) and acquitted him of conspiring to distribute cocaine in violation of 21 U.S.C. § 846. Factual Background McLister and three codefendants, John Irwin, Sharon Baker, and Thane Rucker were arrested after participating in a transaction in which a pound of cocaine was sold to an undercover government agent. McLister does not deny his participation or his knowledge that the sale involved cocaine. Rather, he contends that he lacked the requisite criminal intent. The events leading to the arrests began in Denver, Colorado, where Irwin was arrested by the Denver Police Department in December, 1977, for possession of cocaine. In exchange for a dismissal of the criminal charge against him, Irwin agreed to become an informant for the Police Department. In February, 1978, Irwin met Darrell Wisdom, a Drug Enforcement Administration (DEA) agent, who was posing as a large scale drug dealer. Wisdom was aware of Irwin’s status, but Irwin did not know that Wisdom was a DEA agent. In subsequent negotiations, Wisdom began to suspect that Irwin was “double dealing”, i. e., acting as an informant and continuing to deal in the illegal distribution of drugs. On March 6 Irwin told Wisdom that he had set up a transaction in San Francisco for the purchase of a pound or two of cocaine. Irwin and his girl friend, Sharon Baker, flew to San Francisco later that day, and Wisdom followed on March 7. After making final arrangements for the purchase of the cocaine, Wisdom met Irwin and Baker in the lobby of the Hilton Hotel. Shortly thereafter McLister and Rucker arrived in McLister’s camper. After Wisdom entered the camper, Irwin and McLister produced the cocaine and gave it to Wisdom. Shortly thereafter, Wisdom and other agents arrested the four defendants. At the trial Irwin testified that he had participated in the cocaine sale solely in furtherance of his plea agreement with the Denver Police and that he had intended to turn the participants over to the authorities. He claimed that McLister supplied the cocaine. On the other hand, McLister testified that prior to the transaction Irwin told him that he and Baker were acting as undercover agents for the Denver Police and that he reluctantly agreed to assist them in arranging for the arrest of a narcotics trafficker (Wisdom). McLister testified further that the cocaine he handed to Wisdom in the trailer belonged to either Irwin or Baker, who had placed it in the camper the night before with his permission. Contentions on Appeal Appellant contends that the district court erred in (1) restricting appellant’s cross-examination of his codefendant Irwin and Denver Police Detective Meyer; (2) permitting the prosecutor to cross-examine appellant concerning a misdemeanor conviction for possession of marijuana; and (3) instructing the jury that it would consider evidence that appellant had used cocaine; and (4) that the acquittal of appellant on the conspiracy charge was inconsistent with its verdict of guilty on the substantive charge. Inconsistent Verdicts We find no merit in appellant’s last contention that his acquittal on the conspiracy count precluded his conviction on the substantive count of distribution of cocaine. See, e. g., United States v. Livengood, 427 F.2d 420, 423 (9 Cir. 1970), where the jury acquitted the defendants on conspiracy charges to commit mail fraud, but convicted them on substantive counts of overt acts included in the conspiracy count. This court rejected the contention that a reversal was required and followed the general rule “that consistency between the several counts of an indictment or information is not necessary where a defendant is convicted upon one or some of the counts but acquitted on another or others and that the conviction will be sustained even though rationally incompatible with the acquittal.” Id. at 423 (citing Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932)). We conclude, however, that the combination of other alleged errors requires a reversal, even though each by itself might constitute harmless error. Cross-examination of Irwin and Meyer The alleged errors in the cross-examination of codefendant Irwin and Gregory Meyer, a Denver Police Department detective, resulted in large part from the conflicting contentions of the defendants, i. e., Irwin and Baker claiming that McLister owned the cocaine, and McLister claiming that it was owned by Irwin or Baker, and that he was simply assisting them in arranging for the sale to a narcotics trafficker, assuming that Irwin and Baker were under-cover agents. (a) Cross-examination of Meyer Meyer, called as a witness by codefendant Baker, testified during direct examination that in February, 1978, he did not believe Irwin was double dealing in his negotiations with agent Wisdom, despite DEA conclusions to the contrary. On cross-examination Meyer was asked by counsel for McLis-ter if he then believed Irwin had been double dealing. The court sustained the Government’s objection that Meyer’s opinion was irrelevant. In an offer of proof McLister claimed that Meyer would have testified that at the time of trial he believed Irwin had been double dealing, contrary to his previous opinion: Appellant argues that this testimony should have been permitted because it related to a subject raised on direct examination and supports his defense. It is probably true, as the Government argues, that Meyer’s answer might have “caused prejudicial harm to Irwin”. We cannot agree, however, that it could not have benefited McLister. Meyer’s testimony on direct examination might well have left the impression that at the time of trial, Meyer continued to believe that Irwin was not double dealing and his participation in the transaction was solely to assist the Denver police. This would affect McLister’s defense, which in part required the jury to believe that Irwin was acting on his own and was the owner of the cocaine. To prevent a possible half truth, detrimental to appellant, it was proper and relevant for him to cross-examine detective Meyer on his current opinion on whether Irwin had been double dealing. See United States v. Brady, 561 F.2d 1319, 1320 (9 Cir. 1977). The question was directed specifically to testimony developed by Irwin and the trial court on direct examination. See United States v. Alvarez-Lopez, 559 F.2d 1155, 1158 (9 Cir. 1977). (b) Cross-examination of Irwin On April 4,1978, Wisdom, without Irwin’s knowledge, taped a telephone conversation in which Irwin admitted that he had been double dealing in San Francisco. Following a pretrial hearing the district court granted Irwin’s motion to suppress this conversation, under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). At trial the court refused to allow appellant to question Irwin concerning the April 4 conversation on the ground that the post-arrest conversation was irrelevant. Appellant argues that the conversation would have (1) shown Irwin’s bias, prejudice and interest in naming the appellant as the source of the cocaine, (2) impeached Irwin’s credibility, and (3) supported appellant’s defense. Irwin testified that he acted solely to further his plea agreement with the Denver police, and that McLister had furnished the cocaine. It was necessary to appellant’s defense that the jury find that Irwin had been double dealing and also that appellant had assumed that Irwin was acting as an undercover agent. Appellant had a right to impeach Irwin’s credibility. The evidence was relevant and might have been helpful to appellant’s defense. The fact that Irwin was not called as a witness by the Government is immaterial. See United States v. Dixon, 547 F.2d 1079, 1084 (9 Cir. 1976). The Government argues that any error in refusing to permit appellant to examine Irwin was, in any event, harmless error. It is true that in finding Irwin guilty of both conspiracy and distribution, the jury must have believed that he was double dealing. It is difficult, however, to determine what effect, if any, this testimony would have had upon appellant’s defense. If this were the only error, we might well conclude that it was harmless in view of other evidence of McLister’s guilt. As noted supra, however, we conclude that combined with other errors, reversal is required. Prior Marijuana Conviction The district court, over objection, permitted the Government to cross-examine McLister with regard to a misdemeanor conviction nine years earlier involving possession of one cigarette. As the Government notes in its brief, the evidence was offered as a “misdemeanor conviction involving moral turpitude” under Rule 609(a), Federal Rules of Evidence. The court, however, did not accept the evidence under that theory and later instructed the jury that the conviction could be considered “only in the light of the characterization of . [appellant’s] life style as one that might normally have been expected to exclude the use of such substances”. (a) Admissibility under Rule 609(a) Rule 609(a), Federal Rules of Evidence provides: For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment. The marijuana conviction was not punishable by “imprisonment in excess of one year” and did not involve “dishonesty or false statement”. It therefore could not be used to impeach credibility. See, e. g., United States v. Ortega, 561 F.2d 803 (9 Cir. 1977); United States v. Thompson, 559 F.2d 552 (9 Cir. 1977). (b) Admissibility under Rule 404 Rule 404 relating to “character evidence” provides in 404(a) that: Evidence of a person’s character . is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except [when] . offered by an accused, or by the prosecutor to rebut the same . A defendant may offer testimony “that the general estimate of his character is so favorable that the jury may infer that he would not be likely to commit the offense charged”. Michelson v. United States, 335 U.S. 469, 476, 69 S.Ct. 213, 219, 93 L.Ed. 168 (1948). Such testimony is limited to opinions with respect to the defendant’s general reputation in the community. When the defendant offers testimony tending to prove his good reputation, the Government may introduce contradictory evidence. Id. 476, 69 S.Ct. 213 et seq. Appellant’s counsel in his opening statement told the jury that McLister was engaged in the antique business, had purchased property in Colorado and intended to go into the hydroponics business, and came from “what may be called a relatively privileged background”, with no need to get into any illegal business. McLister testified regarding his property interests and his intention of going into the hydroponics business. The Government argues that it had the right under Rule 404(b) to impeach McLister’s credibility and to show “his knowledge of illicit drugs”. We cannot find that either counsel’s opening statement or McLister’s own testimony placed his general character in issue under Rule 404(a) or under the rules set forth in Michelson v. United States, supra. See United States v. Tomaiolo, 249 F.2d 683, 689 (2 Cir. 1957). Nor did appellant request any jury instruction indicating that he intended to place his character in issue. The trial judge specifically instructed the jury that the marijuana conviction was to be used “only in the light of the characterization of . [appellant’s] life style . ”. There is no suggestion that the court intended that the evidence could be considered for any of the purposes, including knowledge, set forth in Rule 404(b). Assuming, arguendo, that the appellant’s character was placed in issue or that Rule 404(b) is applicable, any relevance the marijuana conviction might have is outweighed by its prejudicial effect. Rule 403 and Rule 609, Fed.R. of Evid., require balancing of the probative value of the evidence against its prejudicial effect. A misdemeanor marijuana conviction nine years before the indictment has little probative value to impeach credibility or to prove any of the purposes listed in Rule 404(b), but its prejudicial effect could be significant. The Government argues that any error in admitting the evidence was harmless beyond a reasonable doubt — that evidence of a minor marijuana conviction nine years ago could not be deemed unfairly prejudicial. If this were the only error, we might agree, but again we must consider the potential effect of the series of errors in the Government’s proof. Instruction on Cocaine Use Irwin testified that the night before the San Francisco arrests, he, Baker, McLister, Rucker and four others were at appellant’s home. Someone produced cocaine for “socializing”, which he ingested to satisfy himself that it was cocaine and not a substitute. He denied knowing who brought the cocaine out. Appellant denied having used it. The court instructed the jury that “there was some testimony that he [appellant] had used cocaine at his home in the presence of the persons who were said to be there.” Appellant objected, claiming that no evidence in the record indicated that he had used the cocaine. The court then rein-structed the jury as follows: THE COURT: I think I said to you that there was evidence that McLister might have ingested some cocaine at his house on the evening of the purported party. You will recall what the evidence was on that point. I have. It’s been suggested that there was no specific evidence dealing with Mr. McLister and it may well be that the evidence was solely that some other person or persons had done it and there was no evidence with respect to Mr. McLister. So I withdraw that. If you do think that the state of the evidence was such as to indicate that McLis-ter did ingest any cocaine on that evening, then consider that only for the limited purpose that I indicated to you. But I do not state unequivocally that that is what the evidence said, but it might be that it is possible for you to make that, draw that conclusion from the evidence. Appellant contends that the jury could not permissibly infer from the evidence in the record that he had used cocaine on the night prior to his arrest. He argues that the trial judge’s instruction that the jury might draw this conclusion inserted a false issue in the case, and was, therefore error. It is of course well established that an instruction should not be given if it lacks evidentiary support or is based upon mere suspicion or speculation. See, e. g., United States v. Thomas, 453 F.2d 141, 143 (9 Cir. 1971), cert. denied 405 U.S. 1069, 92 S.Ct. 1516, 31 L.Ed.2d 801 (1978); United States v. Waskow, 519 F.2d 1345, 1347 (8 Cir. 1975). Here Irwin testified that someone produced a small amount of cocaine for “socializing” at McLister’s home and that he had a conversation with McLister about the cocaine before it was passed around. There is no evidence, however, that McLis-ter used the cocaine. The Government argues that even though the record “does not specifically reflect that McLister used any of this cocaine”, it is reasonable to infer that he used and furnished it; that the erroneous instruction was corrected; and that in any event, it was harmless error in the context of this case. While a close question is presented, we conclude that the instruction was improper in view of the absence of any evidence that McLister used the cocaine. If this were the only error, we would hold it harmless. As noted supra, however, we are forced to the conclusion that the combined errors were prejudicial and require a reversal. See United States v. Ortega, supra. Reversed and remanded for new trial. . The defendants were charged and tried jointly. Irwin and Baker were convicted of both conspiracy to distribute and distributing cocaine. Irwin’s conviction is on appeal. Baker is a fugitive. Rucker was acquitted on both charges. . Prior to trial McLister had moved to sever his trial from that of Irwin and Baker on the ground that their testimony was indispensible to his defense. The motion was denied. In light of the proof offered at the trial, the motion could properly have been granted. . Having found possible prejudice, we need not consider whether the restriction of appellant’s right to cross-examination was of constitutional dimensions. See United States v. Brady, supra, 561 F.2d at 1320. . Rule 404(b) provides: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” . The Government’s reliance upon United States v. Batts, 573 F.2d 599 (9 Cir.), cert. denied, 439 U.S. 859, 99 S.Ct. 178, 58 L.Ed.2d 168 (1978), is misplaced. Batts is distinguishable on two grounds: (1) Batts, charged with distribution of hashish, claimed lack of knowledge of cocaine, the uses of a coke spoon, and the existence of hashish in his vehicle. Evidence that he had recently participated in a cocaine sale was held admissible under Rule 404(b), to show “knowledge”. Here McLister admitted “knowledge” of the cocaine. (2) In holding that the relevant factor was the type of activity undertaken rather than the identity of the drug, we held in Batts that the “connecting factor” was that both the prior act and the current offense involved an intent to distribute an illegal drug. Here the conviction for possession of one marijuana cigarette nine years before trial bears little similarity to the current charge of distributing cocaine. . Rule 403 provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” While Rule 404(b) is an “inclu-sionary rule”, it is subject to the balancing test of Rule 403. The trial judge must perform this balancing. E. g., United States v. Sangrey, 586 F.2d 1312, 1314 (9 Cir. 1978). Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 21? Answer with a number. Answer:

songer_erron

B

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court's use of the clearly erroneous standard support the government?" That is, a somewhat narrower standard than substantial evidence, or ignoring usual agency standards. 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". NATIONAL LABOR RELATIONS BOARD, Petitioner, v. S. PRAWER & COMPANY, Respondent. No. 78-1030. United States Court of Appeals, First Circuit. Argued June 5, 1978. Decided Sept. 27, 1978. Jesse I. Etelson, Atty., N.L.R.B, Washington, D. C., with whom John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and John H. Ferguson, Atty., Washington, D. C., were on brief, for petitioner. Harold N. Mack, Boston, Mass., with whom Philip J. Moss, and Morgan, Brown, Kearns & Joy, Boston, Mass., were on brief, for respondent. Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges. BOWNES, Circuit Judge. The National Labor Relations Board (“Board” or “NLRB”) seeks enforcement of its order that S. Prawer & Co. (“Company”) cease and desist from certain unfair labor practices found by the Board, that it bargain with the Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO (“Union”) upon request, and that it post appropriate notices. The Company alleges that the Board’s finding of section 8(a)(5) and (1), 29 U.S.C. § 158(a)(5) and (1), violation does not find substantial evidence in the record as a whole and that the Board erred in not accepting into evidence certain statements by one of the employees and in failing to hold an evidentiary hearing. On October 5, 1977, the Union requested the Company to recognize and bargain with it. The Company refused. The Union had been certified as the bargaining representative pursuant to an election held on March 19, 1976. The Company had filed timely exceptions to the election alleging that the election was invalid (1) because of a rumor circulated to twelve of fourteen employees the morning of the election to the effect that the plant was moving to a location twenty-five or thirty miles away; (2) because the Union had allegedly misrepresented to employees that a former employee had been terminated for union activities; and (3) that the Union had circulated, nine days prior to the election, a news letter purportedly misrepresenting a claim that it had negotiated a $.60 per hour raise and improvements in vacation and sick pay on behalf of members employed by Ryder Truck Rental of Portland. Following an investigation, the Regional Director found against the Company on all three exceptions. The Company took exceptions to the Director’s report, which the Board rejected in September, 1977, when it adopted the findings of the Regional Director and certified the election. The Company refused to bargain with the Union, persisting in its claim that the election results should be overturned. Subsequent unfair labor practice charges were filed, charging the Company with refusal to bargain. The Board found against the Company on the unfair labor practice charges and now seeks enforcement of its orders by this court. While many cases may be decided without detailed separate analysis of the issues to be reviewed, there is a two-tiered process involved: we review the fact findings of the Board in its petition for enforcement of its orders on the unfair labor practices complaint pursuant to the standard articulated in the statute, 29 U.S.C. § 160(e), and enunciated in Universal Camera Corp. v. N.L.R.B., 340 U.S. 474,487-488, 71 S.Ct. 456, 95 L.Ed. 456 (1951), as to whether the Board order finds substantial evidence in the record as a whole. Since Board rulings on the certification challenge are not reviewable directly, A.F.L. v. N.L.R.B., 308 U.S. 401, 406, 60 S.Ct. 300, 84 L.Ed. 347 (1940), but only to the extent that the unfair labor practices complaint rests upon them, Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 154, 61 S.Ct. 908, 85 L.Ed. 1251 (1941), our standard of review on that question is restricted to an analysis of whether the Board abused its discretion in certifying the election. N.L.R.B. v. O. S. Walker Co., Inc., 469 F.2d 813, 817 (1st Cir. 1972). We also determine whether the Company’s assertion that it was denied due process has merit. Pittsburgh Plate Glass Co. v. N.L.R.B., supra, 313 U.S. at 154-155, 61 S.Ct. 908. The Regional Director investigated the claim that a plant relocation rumor had so charged the atmosphere immediately preceding the election that the employees were thwarted in the attempted exercise of their free choice in selecting vel non a bargaining representative. N.L.R.B. v. A. G. Pollard Co., 393 F.2d 239,241 (1st Cir. 1968). Eleven or twelve of fourteen voting employees attended a meeting the morning of the election. One of the employees stated that he had heard that the Company was going to relocate to a location twenty-five or thirty miles away. Another employee, the brother-in-law of the Company’s warehouse manager, said that he knew this to be so. Several employees then commented that they would be unable to remain with the Company should the move take place. The Regional Director ruled that this rumor was not sufficient to set aside the election. He responded to the Company’s assertion that such a rumor would have the effect of causing employees to vote for the Union in hopes that the Union would be able to negotiate favorable severance pay or moving expense provisions by noting that as reasonable an inference could be drawn that employees would not vote for the Union in the hopes of encouraging the Company to remain at its present location. No offer of proof was tendered by the Company to show that, in fact, any employee had changed his vote because of the rumor. The effect of such a rumor is ambiguous at best. In the absence of an offer of proof, the investigator was entitled to draw any reasonable inference from the evidence. N.L.R.B. v. O. S. Walker Co., Inc., supra, 469 F.2d at 819. The Board concluded, and we affirm, that the Regional Director's inference was not unreasonable. The burden rests with the party urging that an election be set aside. That burden, as we have noted elsewhere, is a heavy one, Solon Mfg. Co. v. N.L.R.B., 544 F.2d 1108, 1111 (1st Cir. 1976), which the Company here has failed to shoulder. The Regional Director determined that the Company’s second allegation concerning the termination of a former employee involved no misrepresentation on the part of the Union. The former employee had resigned more than one month prior to the election and other employees quickly learned of the fact. There was some feeling that he had resigned under pressure by the Company. However, there was no evidence that the Union had claimed that he had been terminated for union activities. Rather, the evidence indicated the Union stated that, if he had been terminated for union activity, the Union would do something on his behalf. Two days before the election, the Union filed an unfair labor practice in relation to the resignation. Thereafter, the charge was dismissed by the Regional Director for insufficient evidence. The Board affirmed the Regional Director’s finding that there was no evidence to suggest that the Union had misrepresented the resignation and further stated that, even had the Union misrepresented the situation, this was an instance where the employees would have no reason to believe that the Union’s information was any more accurate than their own and that the employees could accordingly assess any such union representation. See N.L.R.B. v. International Equipment Co., Sub., Damon Corp., 454 F.2d 686, 688 (1st Cir. 1972). We find no error here. The third claim involved a purported misrepresentation by the Union of contract improvements it had negotiated with another company, Ryder Truck Rental of Portland. The investigation revealed that the Union, in response to alleged Company statements that the employees would lose benefits if the Union came in, claimed certain benefits won in another contract with Ryder. There was no material misrepresentation found by the Board in the open letter which the Union circulated nine days before the election. The Union claimed improved pay, holiday and sick pay benefits. The Board, in ruling that the claim of increased sick pay was not untrue, found that, though there was no separate increase for sick pay, since sick pay was tied to the wage rate, it increased as a function of the increased pay. Furthermore, the Board noted that this was not an eleventh hour pronouncement, timed so as to deprive the Company of opportunity for adequate response. Compare Cross Baking Co. v. N.L.R.B., 453 F.2d 1346, 1350 (1st Cir. 1971). The letter was circulated nine days prior to the election and contained a statement urging the employees to contact the Ryder employees to verify the information. In fact, some employees had obtained a copy of the Ryder contract before the election and thus had the opportunity to appraise the Union’s claims themselves. Compare N.L.R.B. v. Trancoa Chemical Corp., 303 F.2d 456, 460 (1st Cir. 1962). The Company itself had seen the open letter two days prior to the election and could have rebutted any portion it wanted. Cross Baking Co., supra, 453 F.2d at 1349. The record supports the Board’s findings. In resolving not to bargain with the Union following certification by the Board, the Company’s position has been that the election should be set aside. In addition to the substantive complaints discussed above, the Company asserts that the Board erred as a matter of law in not including as part of the record certain material and in dispensing with an oral hearing. Turning first to the assertion that the Board erred in not requiring an evidentiary hearing, we note, as we have in the past, that broad discretion reposes in the Board on this question. Solon Mfg. Co., supra, 544 F.2d at 1110. A hearing is required only where substantial and material factual issues exist. 29 C.F.R. § 102.69(d); Baumritter Corp. v. N.L.R.B., 386 F.2d 117, 120 (1st Cir. 1967). To raise a substantial and material factual issue, it was incumbent on the Company to come forward with specific evidence to challenge the Regional Director’s finding that the plant relocation rumor did not affect employees’ votes. The offer of proof necessary to require a hearing must be based on more than a mere difference of opinion with the Regional Director’s inferences and conclusions. It must point to specific evidence which will be presented to controvert those findings, N.L.R.B. v. Target Stores, Inc., 547 F.2d 421,425 (8th Cir. 1977), and which prima facie would warrant setting aside the election. N.L.R.B. v. O. S. Walker Co., Inc., supra, 469 F.2d at 818. The Company’s argument that an issue of credibility was raised by employee David Thomas’ claim that he felt that some employees had changed their vote because of the plant relocation rumor is not the kind of specific evidence needed to carry the Company’s burden. The Regional Director’s investigation revealed no employee who had changed his vote as a result of the rumor. Employee Thomas’ statement that he “felt” that the rumor affected the vote, while disclaiming any effect on his own vote, does not rise above the level of speculation and conjecture. The Company came forth with no sufficient reason for requiring a hearing and the Board did not abuse its discretion in refusing to grant one. The Company also forwards as error the Board’s refusal to consider as part of the formal record certain unsigned and signed statements of employee David Thomas, to the effect that he felt that the rumor affected the election. The Company attempted to submit Thomas’ statement— both the signed and unsigned versions — on three separate occasions, all after the time for filing exceptions and supporting briefs to the Regional Director’s report had expired. The Board rejebted the material as untimely. We need not reach the question, urged by the Company, of whether an unsigned statement, given by Thomas to a Board agent during the investigation, is properly considered “documentary evidence” as that term is used in 29 C.F.R. § 102.69(g). It is clear that the statement, originally given orally to the Regional Director’s representative, in the presence of the Company attorney, was part of the evidence on which he based his decision. The fact that the Regional Director did not interpret it in the manner desired by the Company and failed to mention it imports no reviewable issue. He is not required to comment on every bit of evidence gathered during an investigation. Given the ambiguous nature of Thomas’ statement and its minimal probative value, we see no error by the absence of any reference to it. The other issues raised before the Board and not repeated here include no grounds for reversing the Board’s findings. The orders are enforced. Costs awarded petitioner. . The Company maintained that an employee, David Thomas, had said that the rumor had affected the election. And yet, when interviewed by a Board agent, Thomas stated that he had not changed his vote because of it. Furthermore, the Regional Director found that no employee interviewed during the investigation indicated that his vote was in any way affected by hearing the rumor. Thomas’ claim that he felt that other employees had changed their vote is not the type of convincing proof sufficient to overturn the Regional Director’s findings. . Since the proceedings in the instant case, the Board has articulated a standard for upsetting elections which tightens the requirements and limits the ability of a disappointed party to urge that an election be set aside. Shopping Kart Food Market, Inc., 228 NLRB No. 190, 94 LRRM 1705 (1977). Since the Company here is unable to prevail even on the basis of the preexisting more liberal standard, see Hollywood Ceramics Co., 140 NLRB 221 (1962), we need not consider the effect of the new standard. . The regulation, in pertinent part, reads as follows: The notice of hearing, motions, rulings, orders, stenographic report of the hearing, stipulations, exceptions, documentary evidence, shall constitute the record in the case. Materials other than those set out above shall not be a part of the record; except that in a proceeding in which no hearing is held, a party filing exceptions to a regional director’s report on objections or challenges, a request for review of a regional director’s decision on objections or challenges, or any opposition thereto, may append to its submission to the Board copies of documents it has timely submitted to the regional director and which were not included in the report or decision. Question: Did the court's use of the clearly erroneous standard support the government? That is, a somewhat narrower standard than substantial evidence, or ignoring usual agency standards. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

sc_casedisposition

D

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. HEFFRON, SECRETARY AND MANAGER OF THE MINNESOTA STATE AGRICULTURAL SOCIETY BOARD OF MANAGERS, et al. v. INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS, INC., et al. No. 80-795. Argued April 20, 1981 Decided June 22, 1981 White, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Powell, and Rehnquist, JJ., joined. Brennan, J., filed an opinion concurring in part and dissenting in part, in which Marshall and Stevens, JJ., joined, post, p. 656. Blackmun, J., filed an opinion concurring in part and dissenting in part, post, p. 663. Kent G. Harbison, Special Assistant Attorney General of Minnesota, argued the cause for petitioners. With him on the briefs were Warren Spannaus, Attorney General, and William P. Marshall, Special Assistant Attorney General. Laurence H. Tribe argued the cause for respondents. With him on the brief were Barry A. Fisher and David Grosz Briefs of amici curiae urging reversal were filed by Robert Abrams, Attorney General, Shirley Adelson Siegel, Solicitor General, and Thomas J. Maroney and George M. Levy, Assistant Attorneys General, for the State of New York; by William J. Brown, Attorney General, and Gary Elson Brown, Special Assistant Attorney General, for the State of Ohio; and by John H. Larson and DeWitt W. Clinton for the County of Los Angeles. Briefs of amici curiae urging aflirmanee were filed by J. Albert Woll, Marsha Berzon, and Laurence Gold for the American Federation of Labor and Congress of Industrial Organizations; and by Bruce J. Ennis, Jr., and Charles S. Sims for the American Civil Liberties Union et al. Briefs of amici curiae were filed by John Jordan for the Gujarat Cultural Association, Inc., et al.; and by Fletcher N. Baldwin, Jr., for the India Cultural Society of New Jersey et al. Justice White delivered the opinion of the Court. The question presented for review is whether a State, consistent with the First and Fourteenth Amendments, may require a religious organization desiring to distribute and sell religious literature and to solicit donations at a state fair to conduct those activities only at an assigned location within the fairgrounds' even though application of the rule limits the religious practices of the organization. I Each year, the Minnesota Agricultural Society (Society), a public corporation organized under the laws of Minnesota, see Minn. Stat. § 37.01 (1980), operates a State Fair on a 125-acre state-owned tract located in St. Paul, Minn. The Fair is conducted for the purpose of “exhibiting . . . the agricultural, stock-breeding, horticultural, mining, mechanical, industrial, and other products and resources of the state, including proper exhibits and expositions of the arts, human skills, and sciences.” Ibid. The Fair is a major public event and attracts visitors from all over Minnesota as well as from other parts of the country. During the past five years, the average total attendance for the 12-day Fair has been 1,320,000 persons. The average daily attendance on weekdays has been 115,000 persons and on Saturdays and Sundays 160,000. The Society is authorized to make all “bylaws, ordinances, and rules, not inconsistent with law, which it may deem necessary or proper for the government of the fair grounds . . . .” Minn Stat. § 37.16 (1980). Under this authority, the Society promulgated Minnesota State Fair Rule 6.05 which provides in relevant part that “[s]ale or distribution of any merchandise, including printed or written material except under license issued [by] the Society and/or from a duly-licensed location shall be a misdemeanor.” As Rule 6.05 is construed and applied by the Society, “all persons, groups or firms which desire to sell, exhibit or distribute materials during the annual State Fair must do so only from fixed locations on the fairgrounds.” Although the Rule does not prevent organizational representatives from walking about the fairgrounds and communicating the organization’s views with fair patrons in face-to-face discussions, it does require that any exhibitor conduct its sales, distribution, and fund solicitation operations from a booth rented from the Society. Space in the fairgrounds is rented to all comers in a nondiscriminatory fashion on a first-come, first-served basis with the rental charge based on the size and location of the booth. The Rule applies alike to nonprofit, charitable, and commercial enterprises. One day prior to the opening of the 1977 Minnesota State Fair, respondents International Society for Krishna Consciousness, Inc. (ISKCON), an international religious society espousing the views of the Krishna religion, and Joseph Beca, head of the Minneapolis ISKCON temple, filed suit against numerous state officials seeking a declaration that Rule 6.05, both on its face and as applied, violated respondents’ rights under the First Amendment, and seeking injunctive relief prohibiting enforcement of the Rule against ISKCON and its members. Specifically, ISKCON asserted that the Rule would suppress the practice of Sankirtan, one of its religious rituals, which enjoins its members to go into public places to distribute or sell religious literature and to solicit donations for the support of the Krishna religion. The trial court entered temporary orders to govern the conduct of the parties during the 1977 Fair. When that event concluded and after a hearing, the trial court granted the state officials’ motion for summary judgment, upholding the constitutionality of Rule 6.05. Relying on the reasoning in International Society for Krishna Consciousness, Inc. v. Evans, 440 F. Supp. 414 (SD Ohio 1977), the court found that the State’s interest “in providing all fair goers and concessionaries with adequate and equal access to each other and in providing a minimum of congestion on the fairgrounds” was sufficient to sustain Rule 6.05’s limitations as applied to respondents. The court, however, provided that respondents were free to “ [r] oam throughout those areas of the fairgrounds generally open to the public for the purpose of discussing with others their religious beliefs.” On appeal, the Minnesota Supreme Court reversed, holding that Rule 6.05, as applied to respondents, unconstitutionally restricted the Krishnas’ religious practice of Sankirtan. 299 N. W. 2d 79 (1980). The court rejected the Society’s proffered justifications for the Rule as inadequate to warrant the restriction. Furthermore, the application of Rule 6.05 to ISKCON was not essential to the furtherance of the State’s interests in that those interests could be served by means less restrictive of respondents’ First Amendment rights. We granted the state officials’ petition for writ of certiorari in light of the important constitutional issues presented and the conflicting results reached in similar cases in various lower courts. 449 U. S. 1109. II The State does not dispute that the oral and written dissemination of the Krishnas’ religious views and doctrines is protected by the First Amendment. See Schneider v. State, 308 U. S. 147, 160, 162-164 (1939); Lovell v. City of Griffin, 303 U. S. 444, 452 (1938). Nor does it claim that this protection is lost because the written- materials sought to be distributed are sold rather than given away or because contributions or gifts are solicited in the course of propagating the faith. Our cases indicate as much. Murdock v. Pennsylvania, 319 U. S. 105, 111 (1943); Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 632 (1980). See Cantwell v. Connecticut, 310 U. S. 296 (1940). It is also common ground, however, that the First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired. Adderley v. Florida, 385 U. S. 39, 47-48 (1966); Poulos v. New Hampshire, 345 U. S. 395, 405 (1953); see Cox v. Louisiana, 379 U. S. 536, 554 (1965). As the Minnesota Supreme Court recognized, the activities of ISKCON, like those of others protected by the First Amendment, are subject to reasonable time, place, and manner restrictions. Grayned v. City of Rockford, 408 U. S. 104 (1972); Adderley v. Florida, supra; Kovacs v. Cooper, 336 U. S. 77 (1949); Cox v. New Hampshire, 312 U. S. 569 (1941). “We have often approved restrictions of that kind provided that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in doing so they leave open ample alternative channels for communication of the information.” Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748, 771 (1976); see also Consolidated Edison Co. v. Public Service Comm’n, 447 U. S. 530, 535 (1980). The issue here, as it was below, is whether Rule 6.05 is a permissible restriction on the place and manner of communicating the views of the Krishna religion, more specifically, whether the Society may require the members of ISKCON who desire to practice San-kirtan at the State Fair to confine their distribution, sales, and solicitation activities to a fixed location. A major criterion for a valid time, place, and manner restriction is that the restriction “may not be based upon either the content or subject matter of speech.” Consolidated Edison Co. v. Public Service Comm’n, supra, at 536. Rule 6.05 qualifies in this respect, since, as the Supreme Court of Minnesota observed, the Rule applies evenhandedly to all who wish to distribute and sell written materials or to solicit funds. No person or organization, whether commercial or charitable, is permitted to engage in such activities except from a booth rented for those purposes. Nor does Rule 6.05 suffer from the more covert forms of discrimination that may result when arbitrary discretion is vested in some governmental authority. The method of allocating space is a straightforward first-come, first-served system. The Rule is not open to the kind of arbitrary application that this Court has condemned as inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view. See Shuttlesworth v. Birmingham, 394 U. S. 147, 150-153 (1969); Cox v. Louisiana, supra, at 555-558; Staub v. City of Baxley, 355 U. S. 313, 321-325 (1958); Largent v. Texas, 318 U. S. 418 (1943) ; Cantwell v. Connecticut, supra, at 304; Schneider v. State, 308 U. S., at 164; Hague v. CIO, 307 U. S. 496, 516 (1939). A valid time, place, and manner regulation must also “serve a significant governmental interest.” Virginia Pharmacy Board v. Virginia Citizens Consumer Council, supra, at 771. See Grayned v. City of Rockford, supra, at 108. Here, the principal justification asserted by the State in support of Rule 6.05 is the need to maintain the orderly movement of the crowd given the large number of exhibitors and persons attending the Fair. The fairgrounds comprise a relatively small area of 125 acres, the bulk of which is covered by permanent buildings, temporary structures, parking lots, and connecting thoroughfares. There were some 1,400 exhibitors and concessionaries renting space for the 1977 and 1978 Fairs, chiefly in permanent and temporary buildings. The Fair is designed to exhibit to the public an enormous variety of goods, services, entertainment, and other matters of interest. This is accomplished by confining individual exhibitors to fixed locations, with the public moving to and among the booths or other attractions, using streets and open spaces provided for that purpose. Because the Fair attracts large crowds, see supra, at 643, it is apparent that the State’s interest in the orderly movement and control of such an assembly of persons is a substantial consideration. As a general matter, it is clear that a State’s interest in protecting the “safety and convenience” of persons using a public forum is a valid governmental objective. See Grayned v. City of Rockford, 408 U. S., at 115; Cox v. New Hampshire, 312 U. S., at 574. Furthermore, consideration of a forum’s special attributes is relevant to the constitutionality of a regulation since the significance of the governmental interest must be assessed in light of the characteristic nature and function of the particular forum involved. See, e. g., Grayned v. City of Rockford, supra, at 116-117; Lehman v. City of Shaker Heights, 418 U. S. 298, 302-303 (1974). This observation bears particular import in the present case since respondents make a number of analogies between the fairgrounds and city streets, which have “immemorially been held in trust for the use of the public and . . . have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. CIO, supra, at 515. See Kunz v. New York, 340 U. S. 290, 293 (1951). But it is clear that there are significant differences between a street and the fairgrounds. A street is continually open, often uncongested, and constitutes not only a necessary conduit in the daily affairs of a locality’s citizens, but also a place where people may enjoy the open air or the company of friends and neighbors in a relaxed environment. The Minnesota Fair, as described above, is a temporary event attracting great numbers of visitors who come to the event for a short period to see and experience the host of exhibits and attractions at the Fair. The flow of the crowd and demands of safety are more pressing in the context of the Fair. As such, any comparisons to public streets are necessarily inexact. The Minnesota Supreme Court recognized that the State’s interest in the orderly movement of a large crowd and in avoiding congestion was substantial and that Rule 6.05 furthered that interest significantly. Nevertheless, the Minnesota Supreme Court declared that the case did not turn on the “importance of the state’s undeniable interest in preventing the widespread disorder that would surely exist if no regulation such as Rule 6.05 were in effect” but upon the significance of the State’s interest in avoiding whatever disorder would likely result from granting members of ISKCON an exemption from the Rule. 299 N. W. 2d, at 83. Approaching the case in this way, the court concluded that although some disruption would occur from such an exemption, it was not of sufficient concern to warrant confining the Krishnas to a booth. The court also concluded that, in any event, the Rule was not essential to the furtherance of the State’s interest in crowd control, which could adequately be served by less intrusive means. As we see it, the Minnesota Supreme Court took too narrow a view of the State’s interest in avoiding congestion and maintaining the orderly movement of fair patrons on the fairgrounds. The justification for the Rule should not be measured by the disorder that would result from granting an exemption solely to ISKCON. That organization and its ritual of Sankirtan have no special claim to First Amendment protection as compared''to that of other religions who also distribute literature and solicit funds. None of our cases suggest that the inclusion of peripatetic solicitation as part of a church ritual entitles church' members to solicitation rights in a public forum superior to those of members of other religious groups that raise money but do not purport to ritualize the process. Nor for present purposes do religious organizations enjoy rights to communicate, distribute, and solicit on the fairgrounds superior to those of other organizations having social, political, or other ideological messages to proselytize. These nonreligious organizations seeking support for their activities are entitled to rights equal to those of religious groups to enter a public forum and spread their views, whether by soliciting funds or by distributing literature. If Rule 6.05 is an invalid restriction on the activities of ISKCON, it is no more valid with respect to the other social, political, or charitable organizations that have rented booths at the Fair and confined their distribution, sale, and fund solicitation to those locations. Nor would it be valid with respect to other organizations that did not rent booths, either because they were unavailable due to a lack of space or because they chose to avoid the expense involved, but that would in all probability appear in the fairgrounds to distribute, sell, and solicit if they could freely do so. The question would also inevitably arise as to what extent the First Amendment also gives commercial\organizations a right to move among the crowd to distribute information about or to sell their wares as respondents claim they may do. ISKCON desires to proselytize at the fair because it believes it can successfully communicate and raise funds. In its view, this can be done only by intercepting fair patrons as they move about, and if success is achieved, stopping them momentarily or for longer periods as money is given or exchanged for literature. This consequence would be multiplied many times over if Rule 6.05 could not be applied to confine such transactions by ISKCON and others to fixed locations. Indeed, the court below agreed that without Rule 6.05 there would be widespread disorder at the fairgrounds. The court also recognized that some disorder would inevitably result from exempting the Krishnas from the Rule. Obviously, there would be a much larger threat to the State’s interest in crowd control if all other religious, nonreligious, and noncommercial organizations could likewise move freely about the fairgrounds distributing and selling literature and soliciting funds at will. Given these considerations, we hold that the State’s interest in confining distribution, selling, and fund solicitation activities to fixed locations is sufficient to satisfy the requirement that a place or manner restriction must serve a substantial state interest. By focusing on the incidental effect of providing an exemption from Rule 6.05 to ISKCON, the Minnesota Supreme Court did not take into account the fact that any such exemption cannót be meaningfully limited to ISKCON, and as applied to similarly situated groups would prevent the State from furthering its important concern with managing the flow of the crowd. In our view, the Society may apply its Rule and confine the type of transactions at issue to designated locations without violating the First Amendment. For similar reasons, we cannot agree with the Minnesota Supreme Court that Rule 6.05 is an unnecessary regulation because the State could avoid the threat to its interest posed by ISKCON by less restrictive means, such as penalizing disorder or disruption, limiting the number of solicitors, or putting more narrowly drawn restrictions on the location and movement of ISKCON’s representatives. As we have indicated, the inquiry must involve not only ISKCON, but also all other organizations that would be entitled to distribute, sell, or solicit if the booth rule may not be enforced with respect to ISKCON. Looked at in this way, it is quite improbable that the alternative means suggested by the Minnesota Supreme Court would deal adequately with the problems posed by the much larger number of distributors and solicitors that would be present on the fairgrounds if the judgment below were affirmed. For Rule 6.05 to be valid as a place and manner restriction, it must also be sufficiently clear that alternative forums for the expression of respondents’ protected speech exist despite the effects of the Rule. Rule 6.05 is not vulnerable on this ground. First, the Rule does not prevent ISKCON from practicing Sankirtan anywhere outside the fairgrounds. More importantly, the Rule has not been shown to deny access within the forum in question. Here, the Rule does not exclude ISKCON from the fairgrounds, nor does it deny that organization the right to conduct any desired activity at some point within the forum. Its members may mingle with the crowd and orally propagate their views. The organization may also arrange for a booth and distribute and sell literature and solicit funds from that location on the fairgrounds itself. The Minnesota State Fair is a limited public forum in that it exists to provide a means for a great number of exhibitors temporarily to present their products or views, be they commercial, religious, or political, to a large number of people in an efficient fashion. Considering the limited functions of the Fair and the combined area within which it operates, we are unwilling to say that Rule 6.05 does not provide ISKCON and other organizations with an adequate means to sell and solicit on the fairgrounds. The First Amendment protects the right of every citizen to “reach the minds of willing listeners and to do so there must be opportunity to win their attention.” Kovacs v. Cooper, 336 U. S. 77, 87 (1949). Rule 6.05 does not unnecessarily limit that right within the fairgrounds. The judgment of the Supreme Court of Minnesota is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. So ordered. The facts are taken primarily from the parties’ stipulation of facts filed with the Minnesota District Court on July 31, 1978, and reprinted in the joint appendix. App. A-30 through A-36. Stipulation of Fact #16. Fair officials did not “intend to restrict [respondents] from peaceably-walking about the fairgrounds and discussing their political, religious or other views with Fair patrons.” Affidavit of Michael Heffron, App. A-28. See also Tr. of Oral Arg. 5-7. The trial court expressly permitted such oral proselytizing, see infra, at 646, and that part of the order was not challenged or appealed. Over 1,400 exhibitors and concessionaires rented booth space during the 1977 and 1978 Fairs, with several hundred potential exhibitors denied rental space solely because of the limited amount of area available. The propriety of the fee is not an issue in the present case. Cf. Cox v. New Hampshire, 312 U. S. 569, 576-577 (1941). The following represent some of the charitable, religious, and other noncommercial organizations that rented booth space at the 1978 Minnesota State Fair: Abortion Rights Council of Minnesota, American Association of Retired Persons, American Heart Association, American Party of Minnesota, Christian Business Men’s Association, Church of Christ, D. F. L. State Central Committee, Faith Broadcasting Network, Inc., Independent Republicans of Minnesota, Minnesota Foster Parents Association, Twin Cities Baptist Messianic Witness, World Home Bible League, Christian Educational Service, Lutheran Colportage Service, Minnesota Citizens Concerned for Life, Save Our Unwanted Life, Inc., and United States-China Peoples Friendship Association. In performing Sankirtan, ISKCON members “often greet members of the public by giving them flowers or small American flags . . . .” Stipulation of Fact #11. For the purpose of this lawsuit, respondents did not assert any right to seek contributions in return for these “greeting gifts,” nor did they seek to dance, chant, or engage in any other activities besides the distribution and sale of literature and the solicitation of donations. Ibid. The trial court temporarily restrained the officials from “arresting, participating in the arrest of, excluding from the Fairgrounds, or preventing activities of [respondents], such as, espousing their religious beliefs, proselytizing others to those beliefs, distributing religious literature or soliciting donations for religious purposes in any portion of the Minnesota Fair Grounds generally open to the public during the 1977 Minnesota State Fair.” The court enjoined respondents from “selling or inducing others to purchase, religious literature, items or artifacts, except at a space rented for that purpose on the grounds of the Minnesota Agricultural Society in compliance with the applicable regulations of said Society.” Respondents took part in the 1977 Fair pursuant to the terms of the court order. The State submitted various affidavits stating that respondents violated the terms of the order by misrepresenting their cause in seeking solicitations, and by making similar fraudulent statements. These charges are disputed by respondents. Given the great number of exhibitors at the State Fair, the trial court was of the view that “[s]ome form of time, place and manner restriction is clearly required if the free speech rights of each of these exhibitors are to be protected.” Accordingly, the court ordered that respondents be prohibited from distributing materials such as books, flowers, flags, incense, or artifacts and from engaging in sales or solicitation for monetary donations throughout the fairgrounds except from a booth rented from the Society. Compare International Society for Krishna Consciousness, Inc. v. Barber, 506 F. Supp. 147 (NDNY 1980), rev’d, 650 F. 2d 430 (CA2 1981) (invalidating “booth” rule); Edwards v. Maryland State Fair and Agricultural Society, Inc., 628 F. 2d 282 (CA4 1980) (same); International Society for Krishna Consciousness, Inc. v. Bowen, 600 F. 2d 667 (CA7) (same), cert. denied, 444 U. S. 963 (1979); International Society for Krishna Consciousness, Inc. v. Colorado State Fair and Industrial Exposition Comm’n, 199 Colo. 265, 610 P. 2d 486 (1980) (same), with Hynes v. Metropolitan Government of Nashville, 478 F. Supp. 9 (MD Tenn. 1979) (upholding “booth” rule); International Society for Krishna Consciousness, Inc. v. Evans, 440 F. Supp. 414 (SD Ohio 1977) (same). Related issues have been raised concerning religious groups’ access to other types of public facilities. See International Society for Krishna Consciousness of Atlanta v. Eaves, 601 F. 2d 809 (CA5 1979) (airports); International Society for Krishna Consciousness, Inc. v. Rochford, 585 F. 2d 263 (CA7 1978) (same); International Society for Krishna Consciousness, Inc. v. McAvey, 450 F. Supp. 1265 (SDNY 1978) (World Trade Center); International Society for Krishna Consciousness, Inc. v. Hays, 438 F. Supp. 1077 (SD Fla. 1977) (highway rest stops); United States v. Boesewetter, 463 F. Supp. 370 (DC 1978) (performing arts center). In Cox v. New Hampshire, a religious group challenged a local ordinance forbidding street parades without a license. The Court held the requirement constitutional as a reasonable time, place, and manner regulation: “Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection.” 312 U. S., at 574. Kovacs v. Cooper upheld as applied to a sound truck a content-neutral and nondiscriminatory local ordinance against the emission of loud and raucous noises on the public streets. In Adderley v. Florida, no constitutional violation was discerned in applying a local trespass ordinance to persons demonstrating on the grounds of a city jail. We rejected the argument “that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please” and held that the “State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.” 385 U. S., at 47-48. Grayned v. City of Rockford sustained as a reasonable time, place, and manner regulation a local ordinance forbidding disturbing noises in the vicinity of a building in which a school is in session. See Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748, 771 (1976); Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 93-94 (1977); Police Department of Chicago v. Mosley, 408 U. S. 92 (1972); Papish v. University of Missouri Curators, 410 U. S. 667, 670 (1973). Respondents do argue that because the Rule requires ISKCON to await expressions of interest from fair patrons before it may distribute, sell, or solicit funds, the regulation is not content-neutral in that it prefers listener-initiated exchanges to those originating with the speaker. The argument is interesting but has little force. This aspect of the Rule is inherent in the determination to confine exhibitors to fixed locations, it applies to all exhibitors alike, and it does not invalidate the Rule as a reasonable time, place, and manner regulation. Petitioners assert two other state interests in support of the Rule. First, petitioners claim that the Rule forwards the State’s valid interest in protecting its citizens from fraudulent solicitations) deceptive or false speech, and undue annoyance. See Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 (1980); Cantwell v. Connecticut, 310 U. S. 296, 306-307 (1940). Petitioners also forward the State’s interest in protecting the fairgoers from being harassed or otherwise bothered, on the grounds that they are a captive audience. In light of our holding that the Rule is justified solely in terms of the State’s interest in managing the flow of the crowd, we do not reach whether these other two purposes are constitutionally sufficient to support the imposition of the Rule. The court stated that the facts suggested “a situation in which the state’s interest in maintaining order is substantial. We have no doubt that Rule 6.05’s requirement that all vendors, exhibitors, and concessionaires perform their functions at fixed locations furthers that interest significantly.” 299 N. W. 2d, at 83. Respondents do not defend the limited approach of the Minnesota Supreme Court. They concede that whatever exemption they were entitled to under the First Amendment would apply to other organizations seeking similar rights to take part in certain protected activities in the public areas of the fairgrounds. See Brief for Respondents 8; Tr. of Oral Arg. 25-26. Given this understanding of the nature of the Fair, we reject respondents’ claim that Rule 6.05 effects a total ban on protected First Amendment activities in the open areas of the fairgrounds. In effect, respondents seek to separate, for constitutional purposes, the open areas of the- fairgrounds from that part of the fairgrounds where the booths are located. For the reasons stated in text, we believe respondents’ characterization of the Rule is plainly incorrect. The booths are not secreted away in some nonaccessible location, but are located within the area of the fairgrounds where visitors are expected, and indeed encouraged, to pass. Since respondents are permitted to solicit funds and distribute and sell literature from within the fairgrounds, albeit from a fixed location, it is inaccurate to say that Rule 6.05 constitutes a ban on such protected activity in the relevant public forum. Accordingly, the only question is the Rule’s validity as a time, place, and manner restriction. 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_genresp2

A

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. Kurt J. LINDNER, Edith Lindner; St. Joseph Hospital of Kirkwood; Admiral Insurance Agency; Lindner Fund, Inc.; Petty & Company; Landmark Central Bank & Trust Company, Appellants, v. DURHAM HOSIERY MILLS, INC.; George A. Cralle; H.E. Schoenhut, Jr.; W.K. Bigelow; H.E. Rodenhizer; W.C. Spann and John P. Barnett, individually, Appellees. No. 84-1593. United States Court of Appeals, Fourth Circuit. Argued Jan. 10, 1985. Decided May 6, 1985. William Woodward Webb, Raleigh, N.C. (Broughton, Wilkins & Webb, P.A., Raleigh, N.C., Kevin P. Roddy, Smith, Tag-gart, Gibson & Albro, Charlottesville, Va., on brief), for appellants. G. Eugene Boyce, Raleigh, N.C. (Susan K. Burkhart, Boyce, Mitchell, Burns & Smith, P.A., Raleigh, N.C., on brief), and L. Bruce McDaniel, Raleigh, N.C. (DeBank, McDaniel, Heidgard & Holbrook, Raleigh, N.C., on brief), for appellees. Before RUSSELL and CHAPMAN, Circuit Judges and HAYNSWORTH, Senior Circuit Judge. CHAPMAN, Circuit Judge: This appeal arises out of the merger and reorganization of Durham Hosiery Mills, Inc. (Durham Hosiery), a North Carolina corporation, into DHM, Inc., a Virginia corporation, on January 15, 1981. The plaintiffs brought this diversity action alleging that the defendants had deprived them of the fair market value of their stock by virtue of a reverse stock split accomplished as a part of the merger. The plaintiffs appeal from the decision of the district court dismissing their claim for relief under the North Carolina Unfair Trade Practices Act, N.C.Gen.Stat. § 75-1.1 (1981), and denying their motion for a new trial on their claim for breach of fiduciary duty. We affirm. I The plaintiffs are former minority shareholders who owned Class B nonvoting stock in Durham Hosiery. All of the plaintiffs are citizens and residents of the State of Missouri. Defendant Durham Hosiery was a hosiery manufacturer incorporated in North Carolina with plants located, at one time, in both North Carolina and Virginia. Defendants Bigelow, Rodenhizer, and Spann were directors of Durham Hosiery. In August 1980 a New York stockbroker contacted the president of Durham Hosiery, defendant George Cralle, and offered him a large block of stock. The broker was asking $7 a share for the Class B stock and $12 a share for the Class A stock. Cralle contacted John P. Barnett, an acquaintance who had negotiated the sale of the Danville plant to Durham Hosiery, and offered him the opportunity to acquire this block of stock. After many discussions, Barnett authorized Cralle, who had personally dealt with the New York stockbroker, to negotiate the purchase of the Durham Hosiery stock. On November 7, 1980, Barnett purchased through Cralle 25,705 shares of Class B and 2,483 shares of Class A stock from the New York stockbroker. Because the number of outstanding Durham Hosiery shares was 71,101, this transaction represented a purchase by Barnett of 40 percent of the company’s stock. The majority of the company’s shares was owned by Cralle and Harry S. Schoenhut, the vice president of Durham Hosiery. Cralle and Schoenhut had been employees of Durham Hosiery for 28 years and 13 years, respectively. Before these transactions occurred, the Board of Directors of Durham Hosiery had discussed and concluded that the company would provide retirement benefits for Cralle and Schoenhut. When Barnett began acquiring stock in Durham Hosiery and reorganization discussions began, Cralle requested that Barnett honor the company’s obligation to fund the retirement plans that he and Schoenhut had anticipated. Barnett agreed that after the merger Schoenhut would receive deferred compensation of $500,000 for consulting services to the corporation. Cralle received similar assurances, and also an option to sell to Barnett his shares of Durham Hosiery. By the time of the merger, Barnett had accumulated a majority of the Durham Hosiery stock. After Cralle and Barnett discussed their intentions for the reorganization of Durham Hosiery, Barnett arranged a meeting with attorney Frederick R. Russell. Russell advised Barnett and Cralle to reduce substantially the number of Durham Hosiery shareholders to enable the company to raise one million dollars of working capital through personal guarantees. Russell also recommended that Durham Hosiery eliminate nonvoting stock. Finally, they agreed to a plan by which those shareholders interested in remaining in the corporation had to accumulate 4,500 shares in the old corporation to acquire one share in the new corporation. The new corporation would have only 16 shares of stock. Holders of fewer than 4,500 Durham Hosiery shares were either to purchase sufficient shares to bring the total to 4,500, or to sell their shares at a price determined by bids received by the corporation from holders seeking more shares. Durham Hosiery mailed to its shareholders a Proxy Statement and other documents, prepared by Russell, containing descriptions of the proposed merger and reorganization. According to the Proxy Statement, shareholders objecting to the merger could dissent and seek appraisal of and payment for their shares in the corporation by complying with the “Virginia Stock Corporation Act (or the similar provi sion of North Carolina law).” Cralle read the documents and signed the Proxy Statement. On December 22, 1980, the Board of Directors of Durham Hosiery voted unanimously in favor of the plan for reorganization and merger. At a special meeting on January 12, 1981, the Durham Hosiery shareholders approved the merger by an affirmative vote of 80 percent or more of each class of outstanding stock. The plaintiffs dissented from the proposed merger and reorganization, executing their proxies on December 27, 1980. The Articles of Merger of Durham Hosiery Mills and DHM, Inc. were filed with the Secretary of State of North Carolina on January 15, 1981, and the merger was effected. On January 19, 1981, Durham Hosiery sent a letter to the plaintiffs and other Durham Hosiery shareholders explaining that the merger had been overwhelmingly approved and that the merger was effective. The letter, signed by Cralle, also instructed the shareholders to execute an enclosed form for disposing of fractional interests in the stock and requested return of the stock certificates in accordance with the plan for payment. The plaintiffs did not respond to this letter. On February 23, 1981, Durham Hosiery sent another letter to the plaintiffs instructing them to submit their stock certificates in order to receive $7 per share of stock. The plaintiffs again failed to submit their stock certificate for payment. In April 1981 the plaintiffs filed an action in the Wake County Superior Court of North Carolina seeking a determination of the fair value of Durham Hosiery stock. This state appraisal action was pending on December 23, 1981, when the plaintiffs filed the present action for damages in the district court. That action is still pending in the North Carolina state court. In this action the plaintiffs alleged causes of action for (1) violations of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1982), and Security Exchange Commission (SEC) Rule 10b-5, 17 C.F.R. 240.10b-5 (1984); (2) constructive fraud; (3) breaches of fiduciary duty; (4) violations of the North Carolina Securities Act, N.C.Gen.Stat. § 78A-56(b) (1981); (5) unfair or deceptive acts or practices in violation of N.C.Gen.Stat. § 75-1.1 (1981); and (6) violations of the North Carolina Dissenters’ Rights Statute, N.C.Gen.Stat. §§ 55-108, 113 (1981). In two separate memoranda opinions the district court dismissed all of the plaintiffs’ claims except their claim for breach of fiduciary duty. On January 12, 1984, the plaintiffs amended their complaint to allege a cause of action under the civil damages provision of the Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. §§ 1961—68 (1982). After twelve days of testimony the jury found that the defendants had not committed a breach of fiduciary duty and that they had not violated the provisions of the RICO Act. The district court denied the plaintiffs’ motion for a new trial and entered judgment in accordance with the jury’s verdict. This appeal followed. II The first issue presented is whether N.C.Gen.Stat. § 75-1.1 applies to securities transactions. The plaintiffs argue that the defendants’ conduct constituted an unfair or deceptive act or practice in violation of § 75-1.1. The district court dismissed this claim and held that “the instant merger transaction does not fall within the scope of N.C.Gen.Stat. Sec. 75-1.1.” It stated that § 75-1.1 “is directed toward misrepresentation and shady practices sometimes associated with the marketing of goods and services, and that the deterrent of such practices for the protection of the general public is the reason that ... [§] 75-16 entitled the person injured by such acts to treble damages.” The district court reasoned that § 75-1.1 has no application to a securities fraud case involving a corporate merger because such an application is inconsistent with the purpose behind the enactment of § 75-1.1. Because the North Carolina Unfair Trade Practices Act does not refer to securities transactions and the North Carolina courts have not addressed this issue, we must ascertain what the North Carolina Supreme Court would decide if confronted with this question. Our inquiry is guided by the purpose behind § 75-1.1, the North Carolina cases limiting the scope of § 75-1.1, other state cases construing similar statutes, and the scope of § 5 of the Federal Trade Commission (FTC) Act, 15 U.S.C. § 45(a)(1) (1982). Section 75-l.l(a) declares that “[ujnfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are ... unlawful.” There are only two express exclusions contained in the statute. Subsection (b) excludes professional services rendered by a member of a learned profession. Subsection (c) excludes the advertising media when the owner, agent or employee who published the material did not have knowledge of the false, misleading or deceptive character of the advertisement and did not have a direct financial interest in the sale or distribution of the advertised product or service. This Court previously has observed that the “prohibitory scope of the North Carolina [Unfair Trade Practices Act] ... is potentially quite broad.” ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42, 48 n. 10 (4th Cir.1983), aff'd on rehearing, 742 F.2d 170 (4th Cir.1984) (citing Atlantic Purchasers, Inc. v. Aircraft Sales, Inc., 705 F.2d 712, 716-17 (4th Cir.1983)). Nevertheless, the scope of § 75-1.1 is not unlimited. The apparent purpose behind the enactment of § 75-1.1 was the protection of the consuming public. In Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397 (1981), the North Carolina Supreme Court stated: In an area of law such as this, we would be remiss if we failed to consider also the overall purpose for which this statute was enacted. The commentators agree that state statutes such as ours were enacted to supplement federal legislation, so that local business interests could not proceed with impunity, secure in the knowledge that the dimensions of their transgression would not merit federal action. Id. at 549, 276 S.E.2d at 403. The North Carolina Supreme Court also stated that “[i]n enacting [§ 75-1] and [§ 75-1.1], our Legislature intended to establish an effective private cause of action for aggrieved consumers in this State” because “common law remedies had proved often ineffective.” Id. at 543, 276 S.E. at 400. Moreover, the commentators agree that the North Carolina Unfair Trade Practices Act grew out of antitrust laws in an effort to protect the consuming public from anticompetitive business practices. See Morgan, The Peo-pie’s Advocate in the Marketplace — The Role of the North Carolina Attorney General in the Field of Consumer Protection, 6 Wake Forest L.Rev. 1, 12 (1969). The North Carolina Supreme Court’s discussion of the purpose behind § 75-1.1, although not dispositive of this case, gives some guidance on the potential scope of that section. Two North Carolina eases have limited the potential scope of § 75-1.1. In Bache Halsey Stuart, Inc. v. Hunsucker, 38 N.C.App. 414, 248 S.E.2d 567 (1978), cert. denied, 296 N.C. 583, 254 S.E.2d 32 (1979), the North Carolina Court of Appeals held that commodities transactions are not within the ambit of § 75-1.1. The court held that the “pervasive” federal scheme for regulating commodities transactions militated against finding a state cause of action under § 75-1.1. The court also recognized that a finding that one party’s conduct violated § 75-1.1 would expose it to a host of legislatively created sanctions in addition to those sought in the suit. Based on these concerns, the court held that “Congress has clearly expressed its intent to exercise exclusive jurisdiction over the activity of the commodity exchanges and has provided elaborate administrative procedures for the redress of grievances” pursuant to the Commodity Exchange Act, 7 U.S.C. § 1 et seq. (1976). 38 N.C.App. at 418, 248 S.E.2d at 570. Similarly, in Buie v. Daniel International Corp., 56 N.C.App. 445, 289 S.E.2d 118 (1982), cert. denied, 305 N.C. 759, 292 S.E.2d 574 (1982), the North Carolina Court of Appeals held that employer-employee relationships did not fall within the intended scope of § 75-1.1. The court reasoned that “[ejmployment practices fall within the purview of other statutes adopted for that express purpose.” 56 N.C.App. at 448, 289 S.E.2d at 120. Although neither Hunsucker nor Buie are directly dispositive of this case, both cases stand for the proposition that the presence of other federal or state statutory schemes may limit the scope of § 75-1.1. We find it significant that no state court has held that its Unfair Trade Practices Act applies to securities transactions. In fact, courts in three states, Rhode Island, South Carolina, and Washington, have held that their state Unfair Trade Practices Act has no application to securities transactions. State v. Piedmont Funding Corp., 119 R.I. 695, 382 A.2d 819 (1978); State ex rel. McLeod v. Rhoades, 275 S.C. 104, 267 S.E.2d 539 (1980); Kittilson v. Ford, 23 Wash.App. 402, 595 P.2d 944 (1979), aff'd, 93 Wash. 223, 608 P.2d 264 (1980). In each case the state court held that its Unfair Trade Practices Act did not apply to securities transactions because of a particular statutory provision exempting “actions or transactions permitted under laws administered by any regulatory body” of the state or the United States. Although the presence of that statutory exemption makes Piedmont Funding, Rhodes and Kittilson distinguishable from this case, those cases, together with the absence of any other state court decision holding securities transactions subject to the state’s Unfair Trade Practices Act, provide some indication of the general scope of such acts. We also find it significant that § 75-1.1 is reproduced verbatim from § 5 of the FTC Act, 15 U.S.C. § 45(a)(1) (1982), and that the courts interpreting and applying § 75-1.1 have deemed it appropriate “to look to the federal decisions interpreting the FTC Act for guidance in construing the meaning of G.S. § 75-1.1.” Johnson v. Phoenix Mutual Life Insurance Co., 300 N.C. 247, 262, 266 S.E.2d 610, 620 (1980) (citing Hardy v. Toler, 288 N.C. 303, 218 S.E.2d 342 (1975)). See also ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42, 48 (4th Cir.1983), aff'd on rehearing, 742 F.2d 170 (4th Cir.1984). Thus, the fact that no federal court decision has applied § 5(a)(1) of the FTC Act to securities transactions is additional evidence of the scope of § 75-1.-I. Moreover, at least one district court has relied upon the scope of § 5(a)(1) of the FTC Act in holding that securities transactions were not subject to a Massachusetts statute which prohibits “unfair or deceptive acts or practices in the conduct of any trade or commerce.” Conkling v. Moseley, Hallgarten, Estabrook & Weeden, Inc., 575 F.Supp. 760, 761 (D.Mass.1983) (interpreting Mass.Gen.Laws Ann. ch. 93A § 2(a) (1972)). Accord, Sweeney v. Keystone Provident Life Insurance Co., 578 F.Supp. 31, 35 (D.Mass.1983). The plaintiffs argue that § 75-1.1 applies to securities transactions because North Carolina courts have applied that section in a variety of commercial settings. See, e.g., Johnson v. Phoenix Mutual Life Insurance Co., 300 N.C. 247, 266 S.E.2d 610 (1980) (transaction between a mortgage broker and a borrower for the exclusive right to place permanent mortgage financing); Kent v. Humphries, 50 N.C.App. 580, 275 S.E.2d 176 (1981), aff'd and modified, 303 N.C. 675, 281 S.E.2d 43 (1981) (rental of commercial property); Ellis v. Smith-Broadhurst, Inc., 48 N.C.App. 180, 268 S.E.2d 271 (1980) (unfair methods of competition in the insurance business). See also United Roasters, Inc. v. Colgate-Palmolive Co., 485 F.Supp. 1041 (E.D.N.C. 1979), aff'd on other grounds, 649 F.2d 985 (4th Cir.1981), cert. denied, 454 U.S. 1054, 102 S.Ct. 599, 70 L.Ed.2d 590 (1981) (bulk sale of business’ assets); ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42 (4th Cir. 1983), aff'd on rehearing, 742 F.2d 170 (4th Cir.1984) (antitrust action brought by tire dealer against tire manufacturer). While it is true that North Carolina and federal courts have applied § 75-1.1 in a variety of commercial settings, that fact does not mean that § 75-1.1 applies to all commercial transactions or to securities transactions. Nor does it mean that the purposes behind the enactment of § 75-1.1 may no longer serve as some indication of its scope. In most of the cases cited above, the defendants anti-competitive conduct necessarily injured the consuming public. We think that the North Carolina Supreme Court would hold, if presented with this issue, that securities transactions are beyond the scope of § 75-1.1. Our decision is consistent with § 75-1.1’s purpose to protect the consuming public, the North Carolina eases holding that other federal or state statutes may limit the scope of § 75-1.1, the absence of any other state court decision holding that securities transactions are subject to a similar Unfair Trade Practices Act, and the absence of any federal court decision holding that securities transactions are subject to § 5(a)(1) of the FTC Act. We do not believe that the North Carolina legislature would have intended § 75-1.1, with its treble damages provision, to apply to securities transactions which were already subject to pervasive and intricate regulation under the North Carolina Securities Act, N.C.Gen.Stat. § 78A-1 et seq. (1981), as well as the Securities Act of 1933, 15 U.S.C. § 77a et seq. (1982), and the Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq. (1982). Furthermore, to hold that § 75-1.1 applies to securities transactions could subject those involved with securities transactions to overlapping supervision and enforcement by both the North Carolina Attorney General, who is charged with enforcing § 75-1.1, and the North Carolina Secretary of State, who is charged with enforcing the North Carolina Securities Act. For all of these reasons, we hold that whatever the scope of § 75-1.1, securities transactions are beyond the reach of the North Carolina Unfair Trade Practices Act. III The second issue presented is whether the district court abused its discretion in denying the plaintiffs’ motion for a new trial on their claim for breach of fiduciary duty. It is well settled that “the granting or refusing of a new trial is a matter resting in the sound discretion of the trial judge, and that his action thereon is not reviewable upon appeal, save in the most exceptional circumstances.” Aetna Casualty & Surety Co. v. Yeatts, 122 F.2d 350, 354 (4th Cir.1941); City of Richmond v. Atlantic Co., 273 F.2d 902, 916-17 (4th Cir.1960). In this case the district court instructed the jury that defendants Cralle, Schoenhut, Bigelow, Rodenhizer and Spann owed a fiduciary duty to the plaintiffs as minority shareholders of Durham Hosiery “as a matter of law.” N.C.Gen.Stat. § 55-35 (1982). The district court likewise instructed the jury that if it found that defendant Barnett was a majority shareholder of Durham Hosiery at the time the Proxy Statement was issued, a fiduciary relationship also existed between Barnett and the plaintiffs as a matter of law. The plaintiffs do not challenge the district court’s charge to the jury but argue that the verdict is against the manifest weight of the evidence. Based upon our review of the record, we are unable to conclude that the district court abused its discretion in denying the plaintiffs’ motion for a new trial. Accordingly, the judgment of the district court is AFFIRMED. . This action is but one of several in the federal courts arising out of the merger and reorganization of Durham Hosiery Mills, Inc. In White v. Durham Hosiery Mills, Inc., 753 F.2d 1072 (4th Cir.1985), another panel of this Court affirmed a jury verdict awarding a former minority shareholder compensatory damages of $25,900 and punitive damages of $50,000 on his action for misrepresentation under Rule 10b-5, 17 C.F.R. § 240.10b-5 (1983). Two actions brought by five other shareholders are presently pending in the United States District Court for the Middle District of North Carolina. See Umstead v. Durham Hosiery Mills, Inc., 578 F.Supp. 342 (M.D.N.C.1984); Teer v. Durham Hosiery Mills, Inc., 592 F.Supp. 1269 (1984). . On January 9, 1981, plaintiff Lindner filed a complaint in the district court for the Western District of Virginia for the purpose of obtaining an injunction to postpone the shareholder meeting scheduled for January 12. On the morning of January 12, however, the district court concluded that Lindner had failed to show any irreparable injury from the holding of the meeting and the merger due to the availability of his appraisal remedy under state law. . But see Hickey v. Howard, 598 F.Supp. 1105 (D.Mass.1984) (holding that Massachusetts statute proscribing unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce, and providing for treble damages, is applicable to securities transactions); Mitchelson v. Aviation Simulation Technology, Inc., 582 F.Supp. 1 (D.Mass. 1983) (same). However, two other judges in the United States District Court for the District of Massachusetts have held that this Massachusetts statute does not apply to securities transactions. See Moseley and Sweeney, infra. . This fact makes the instant case clearly distinguishable from ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42 (4th Cir.1983), and Bostic Oil Corp. v. Michelin Tire Corp., 702 F.2d 1207 (4th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 242, 78 L.Ed.2d 232 (1983). In those cases this court held that proof of conduct violative of § 1 of the Sherman Act is proof sufficient to establish a violation of the North Carolina and South Carolina Unfair Trade Practices Acts. But a key to those decisions was this court’s observation that "it is an accepted tenet of basic antitrust law that § 5 of the [FTC] Act sweeps within its prohibitory scope conduct also condemned by § 1 of the Sherman Act." ITCO, 722 F.2d at 48 (citing FTC v. Cement Institute, 333 U.S. 683, 68 S.Ct. 793, 92 L.Ed. 1010 (1948); FTC v. Beech-Nut Packing Co., 257 U.S. 441, 42 S.Ct. 150, 66 L.Ed. 307 (1922)). . See footnote 3, supra. . See footnote 4, supra. 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_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. James B. LATTA, Appellant, v. Hilbert S. SABIN, Appellee. No. 17664. United States Court of Appeals District of Columbia Circuit. Argued Jan. 8, 1964. Decided Feb. 20, 1964. Mr. Earl H. Davis, Washington, D. C., with whom Mr. Donald S. Caruthers, Washington, D. C., was on the brief, for appellant. Mr. J. Joseph Barse, Washington, D. C., with whom Messrs. H. Mason Welch and J. Harry Welch, Washington, D. C., were on the brief, for appellee. Mr. James A. Welch, Washington, D. C., also entered an appearance for appellee. Before Danaher, Bastían and McGowan, Circuit Judges. DANAHER, Circuit Judge. The District Judge directed a verdict in favor of the appellee on the issue of negligence in a malpractice action. The appellant did not sustain his burden of proving that the surgeon had failed to exercise that degree of care and skill required by the standard of practice which the appellee was bound to afford to the appellant as his patient. The appellant’s claims as to breach of warranty and unauthorized operation were submitted to the jury pursuant to adequate instructions, adapted to the issues. The jury returned a verdict in favor of the appellant awarding damages equal to the amount of the surgeon’s charge for his services. The award is now attacked, as grossly inadequate. The jury might have decided that except for a comparatively minor phase of the surgery, the special damages claimed by appellant were actually attributable to a later operation by other surgeons. The jury might also have concluded that no credence could be placed in the appellant’s claim that the doctor had warranted a particular result. In any event, no special interrogatories had been submitted to the jury, and its general verdict is not without support in the record. The trial judge denied the appellant’s motion for a new trial. Our review of the record does not disclose such abuse of discretion as to require reversal. We have examined other contentions of the appellant in respect of certain rulings on evidence as to which we find no error. The judgment of the District Court is Affirmed. . Rodgers v. Lawson, 83 U.S.App.D.C. 281, 170 F.2d 157 (1948); and see Brown v. Keaveny, 117 U.S.App.D.C. -, 326 F.2d 660 (rehearing en banc denied). . Hulett v. Brinson, 97 U.S.App.D.C. 139, 140, 229 F.2d 22, 23, cert. denied, 350 U.S. 1014, 76 S.Ct. 659, 100 L.Ed. 874 (1956) ; cf. Muldrow v. Daly, 117 U.S.App.D.C. -, -F.2d- (1964) ; Association of Western Railways v. Riss & Company, 112 U.S.App.D.C. 49, 52, 299 F.2d 133, 136, cert. denied, 370 U.S. 916, 82 S.Ct. 1555, 8 L.Ed.2d 498 (1962). Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:

songer_r_state

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Houston McELROY, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee. No. 71-2997. Summary Calendar. United States Court of Appeals, Fifth Circuit. Feb. 2, 1972. Rehearing Denied April 4, 1972. Before JOHN R. BROWN, Chief Judge, and INGRAHAM, and RONEY, Circuit Judges. Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I. PER CURIAM: Affirmed. See Local Rule 21. . In his habeas petition filed below, the appellant contended that he was convicted on the basis of insufficient evidence, and that his privately-retained counsel rendered ineffective representation. . See N.L.R.B. v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966. Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number. Answer:

songer_weightev

D

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Irma Jean PEREZ, Plaintiff-Appellant, v. Wayne A. SIMMONS; James Nalls; Thomas Miller; Mark Meske; and City of Santa Barbara, Defendants-Appellees. No. 86-6663. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 7, 1988. Decided Oct. 26, 1988. Amended Aug. 31, 1989. John M. Sink, Santa Barbara, Cal., for plaintiff-appellant. David K. Hughes, Asst. City Atty., and Kristofer Kallman, Santa Barbara, Cal., for defendants-appellees. Before HUG, ALARCON and KOZINSKI, Circuit Judges. HUG, Circuit Judge: An opinion in this case was filed on October 26, 1988, Perez v. Simmons, 859 F.2d 1411 (9th Cir.1988). Appellees petitioned for a writ of certiorari to the United States Supreme Court. In response to the petition, the Court vacated the judgment and remanded to our court for further consideration in light of City of Canton v. Harris, — U.S. —, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Simmons v. Perez, — U.S. —, 109 S.Ct. 1736, 104 L.Ed.2d 174 (1989). On further consideration, in light of that case, we file this amended opinion. Plaintiff Irma Perez brought this section 1983 action against the City of Santa Barbara and certain police officers alleging that the officers violated her constitutional rights by entering her house unlawfully in search of her brother. The district judge granted a directed verdict in favor of the City, and a jury found in favor of the remaining defendants. In this appeal, Perez alleges error in the jury instructions and error in granting the directed verdict. We have jurisdiction under 28 U.S.C. § 1291 (1982). We reverse. I. FACTS On March 8, 1983, Irma Perez was living in a three-bedroom apartment at 13 South Soledad Street, in Santa Barbara, California. She had lived there over three years with her children. Irma Perez had a brother named Albert who, Irma testified, never lived in her apartment. Albert was on probation and also had warrants outstanding for his arrest. Officers Nalls, Simmons, and Miller of the Santa Barbara Police Department narcotics detail were aware of the arrest warrants. Between October and December of 1982, the officers went three or four times to the residence of Albert’s other sister, Debbie, to contact Albert. Debbie lived across town from Irma on Bath Street. This was the residence address that Albert had given to the police when he was arrested on August 21, 1982, and this was the address used by the probation department. When the officers spoke with Debbie on those occasions, they informed her of the warrants for Albert’s arrest. She informed them that Albert was not residing there any longer and she did not know where he was living. In the early afternoon of March 8, 1983, the three officers were driving in an unmarked vehicle on Carpintería Street and approached the intersection of South Sole-dad Street. They spotted Albert Perez walking toward them on Soledad Street, in the same block where Irma Perez lived in the apartment complex. When Albert saw them, he immediately turned and headed in the direction of the apartment. Detective Miller got out of the car while the others drove to a parking place. The three then walked through the apartment complex but saw no trace of Albert. Sergeant Nalls then recalled that he had participated in an arrest of Albert Perez in July of 1980 on Soledad Street in front of the same complex. He further recalled that, at that time, a relative of Albert’s named Irma Perez was living in the complex, but he could not remember which apartment she lived in. Additionally, Detective Miller remembered that in early 1982, he had talked to Albert in this area. At that time, Albert said he was residing at the complex (according to Detective Miller’s testimony). Not knowing which apartment Irma Perez lived in, the three officers radioed the police dispatcher, asking for the address that was marked on Albert Perez’s 1980 arrest report. Because the dispatcher was unable to assist, the officers drove to a nearby telephone and called the Santa Barbara Sheriffs narcotics detail to obtain the address. Detective Simmons was told that the address was apartment number 3 at 13 Soledad Street. While driving back to the apartment complex, a detective’s message came over the radio. Sergeant Nalls testified that he interpreted the detective to have said that Albert lived in Apt. 3. When the officers asked the dispatcher to cross-index the address, the dispatcher informed them that Irma Perez lived at apartment 3. The officers planned to search the apartment and radioed for assistance from a uniformed officer. As they were waiting for the backup car, Detective Miller observed a Mr. William Roberts exit the complex. Detectives Miller and Simmons knew Roberts, since they previously had arrested him. Detective Miller approached Roberts and asked which apartment Albert Perez lived in. According to Detective Miller’s testimony, Roberts responded that Albert lived in Apt. 3, and when asked if that was Irma’s apartment, Roberts responded that it was. Detective Miller also testified that he asked Roberts if he had seen Albert recently, and Roberts replied that he had not. Roberts’ testimony conflicted with Miller’s; Roberts testified that he told the officers Albert did not live there, but that he had seen Albert walking down the street five or ten minutes earlier. When the uniformed police officer — Officer Meske — arrived, all four officers went to Apt. 3 intending to apprehend Albert, though they had no arrest warrants with them. Detective Simmons’ testimony at trial indicated that the officers believed Albert was staying at Irma’s apartment. Sergeant Nalls testified that he did not check with any city agency to determine whether the apartment was listed to anyone in addition to Irma Perez. Indeed, the defendants do not now claim that any such check was made. Sergeant Nalls testified at trial that the idea of obtaining a search warrant to search Irma Perez’s apartment “just didn’t occur to [him].” Sergeant Nalls went to the rear of the apartment, and the other three officers went to the front door, knocked, and stated that they were police officers looking for Albert Perez, that they believed he was in the apartment, and that they had a warrant for his arrest. They then requested consent to search. Detective Miller testified that Irma Perez opened the door and stated that Albert was not there, did not live there, and had never lived there. She demanded to see the arrest warrant. When the officers failed to produce it, she refused to consent to a search and began closing the door. At that point, Detectives Simmons and Miller shoved open the door and all of the officers entered. The three plainclothes officers went upstairs and Officer Meske stayed downstairs. Irma Perez testified that after some conversation between her and Officer Meske, Officer Meske grabbed her from behind, threw her into a wooden rocking chair, and pinned her down with one knee on her leg and both of his hands on both of her wrists. She further testified that after approximately 30 seconds he let her up. The officers did not find Albert Perez in the apartment. When the officers were on their way out of the apartment, Irma went to the telephone in the kitchen and dialed 911. She told the dispatcher that she wanted to “speak to somebody about policemen harassing me.... ” The dispatcher told her to call the non-emergency number for the police. When she was about to make a second call, one of the officers cut off the call by depressing the receiver. Perez testified that she threw the telephone to the floor in anger. She was then spun around, thrown against the wall, handcuffed and told she was under arrest for harboring a fugitive. Perez testified that she was led out the door in front of gathering neighbors to the police car, and was thrown into the vehicle with such force that her right shoulder slammed against the door frame, causing her pain. Irma was first taken to the Santa Barbara police station, and then to jail. She was released after posting $250 bail. The district attorney declined to prosecute her. Perez brought this action under 42 U.S.C. § 1983 against the City of Santa Barbara and the four officers who entered her house. She claimed that the officers violated her civil rights by: (1) unlawfully searching her apartment without her consent or a search warrant; (2) falsely arresting her for harboring a fugitive; (3) using excessive force against her prior to and during the arrest; and (4) depriving her of her rights to free speech by preventing her from making the second phone call to the police and by arresting her in retaliation for insulting comments she directed at them. Her first cause of action was against the four police officers, and her second cause of action was against the City on a theory of municipal liability. The case was tried before a jury. Upon conclusion of Perez’s case-in-chief, the court granted the City’s motion for a directed verdict and dismissed the second cause of action. The first cause of action was sent to the jury. The jury was provided a special verdict form which segregated issues of qualified immunity from issues of whether Perez’s constitutional rights were violated. The jury unanimously found that the police officers did not violate any of Perez’s constitutional rights; thus, they failed to reach any issues of qualified immunity. On appeal, Perez challenges several of the jury instructions. Because we find reversible error in the instructions pertaining to the entry and search of her home, we need not address whether the other instructions were proper. We also conclude that the directed verdict in favor of the City was granted in error. II. JURY INSTRUCTIONS We must determine “whether, viewing the jury instructions as a whole, the trial judge gave adequate instructions on each element of the case to ensure that the jury fully understood the issues.” Los Angeles Memorial Coliseum Comm. v. Nat’l Football League, 726 F.2d 1381, 1398 (9th Cir.), cert. denied, 469 U.S. 990, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984). The trial court has broad discretion in formulating instructions and will be reversed only upon a showing of an abuse of discretion. United States v. Wellington, 754 F.2d 1457, 1463 (9th Cir.), cert. denied, 474 U.S. 1032, 106 S.Ct. 593, 88 L.Ed.2d 573 (1985). The trial judge gave the following instructions to the jury on the issue of whether the officers violated Perez’s constitutional rights by forcibly entering into and searching her residence: Under the Fourth Amendment, an arrest warrant is alone sufficient to authorize the entry into a person’s home to effect an arrest. If you find that the police officers had reasonable cause to believe that the plaintiff’s apartment was inhabited by Albert Perez at the time of the entry and the search, and they had reason to believe that Albert Perez was within the apartment, then the entry and search were constitutionally valid. In determining whether a search is reasonable under the Fourth Amendment, an inhabited residence is a place of occupancy, and is not restricted to a person’s permanent home. (Emphasis added.) The difficulty we have with the instruction lies in the definition of an inhabited residence as merely a place of occupancy. This leaves the jury with the understanding that any sort of temporary occupancy by one person of the home of another can subject that other person to a search of his or her home without a search warrant. We begin our analysis by noting the “ ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable,” and that “[ajbsent exigent circumstances, [the] threshold [of a home] may not reasonably be crossed without a warrant.” Payton v. New York, 445 U.S. 573, 586, 590, 100 S.Ct. 1371, 1380, 1382, 63 L.Ed.2d 639 (1980). In Payton, the Court held that “an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Id. at 603, 100 S.Ct. at 1388 (emphasis added). However, in Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), the Court made it equally clear that, absent exigent circumstances, an arrest warrant does not justify entry into a third person’s home to search for the subject of the arrest warrant. A search warrant is needed to protect the rights of the homeowner. Id. at 206, 101 S.Ct. at 1644. In formulating this rule, the Court examined the purposes to be served by the two kinds of warrants. The Court noted, “[W]hile an arrest warrant and a search warrant both serve to subject the probable-cause determination of the police to judicial review, the interests protected by the two warrants differ.” Id. at 212-13, 101 S.Ct. at 1647-48. The Court noted that an arrest warrant “primarily served to protect an individual from an unreasonable seizure,” while a search warrant “safeguards an individual’s interest in the privacy of his home and possessions against the unjustified intrusion of the police.” Id. at 213, 101 S.Ct. at 1648. In Steagald, the officers relied upon an arrest warrant to enter the home of a third person in which the subject of the arrest warrant was thought to be. Id. at 212, 213, 101 S.Ct. at 1647, 1648. The Court explained that while the arrest warrant protected the interests of the suspect, “it did absolutely nothing to protect [the homeowner’s] privacy interest in being free from an unreasonable invasion and search of his home.” Id. at 213, 101 S.Ct. at 1648. In this ease, we are faced with a situation which falls between Steagald and Payton. The officers had an arrest warrant for Albert Perez. They could have legally entered his home to seize him. Yet they used it to enter the home of his sister, Irma, on the apparent belief that Albert had been staying there. If Albert had been an actual co-resident in the apartment, the search would have been legal because the arrest warrant authorizes entry into the suspect’s own home, even if that home is shared by others. See United States v. Ramirez, 770 F.2d 1458, 1460 (9th Cir.1985). However, if Albert did not actually reside in the apartment, the search was illegal under Steagald. The question presented to us by this case is what constitutes a person’s “home” within the meaning of Payton and Steag-ald. Here there was some evidence that Albert occasionally spent the night at Irma’s home. We must decide whether this temporary occupancy sufficed to make the apartment Albert’s home as well so as to allow entry based on simply a warrant for Albert’s arrest. The instructions to the jury stated that for purposes of determining Irma’s Fourth Amendment rights, the search was legal if the police officers had reasonable cause to believe that Irma’s apartment was “inhabited” by Albert at the time of the search. The court further instructed, “[a]n inhabited residence is a place of occupancy, and is not restricted to a person’s permanent home.” The court thus conveyed a clear impression to the jury that a search warrant was not needed if Albert was temporarily staying at Irma’s apartment. We find error in that instruction. Irma’s Fourth Amendment rights revolve around her expectation of privacy in her own home. It is unlikely this expectation was lowered substantially when she allowed her brother to stay with her temporarily. She could not have considered Albert a co-resident simply because he occupied her apartment for a short while. The Fourth Amendment’s protection against unreasonable searches in a person’s home is not diminished by the mere presence of a guest in the home. Payton allows entry into the suspect’s actual home to execute an arrest warrant for the suspect. See Payton, 445 U.S. at 603, 100 S.Ct. at 1388. (“[A]n arrest warrant ... carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” (Emphasis added)). The Court made it very clear in Steagald that the Fourth Amendment does not allow entry into a third person’s home without a search warrant. We would im-permissibly diminish the protection offered by Steagald were we to hold that, for purposes of the homeowner’s Fourth Amendment rights, the dwelling is the “home” of whoever happens to be staying there. The defendants assert that “for Fourth Amendment purposes, staying somewhere for a short period of time may be temporarily equivalent to a home.” Though this assertion might be true for some Fourth Amendment purposes, it has no force in the case at hand. The privacy interest protected by the Fourth Amendment is personal to the individual asserting it. See Steagald, 451 U.S. at 219, 101 S.Ct. at 1651. The cases cited by the defendants involve the constitutional rights of accused persons who temporarily stay in a place. See, e.g., United States v. Grandstaff, 813 F.2d 1353 (9th Cir.), cert. denied, 484 U.S. 837, 108 S.Ct. 119, 98 L.Ed.2d 78 (1987); Eng Fung Jem v. United States, 281 F.2d 803 (9th Cir.1960); Fequer v. United States, 302 F.2d 214, 249 (8th Cir.), cert. denied, 371 U.S. 872, 83 S.Ct. 123, 9 L.Ed.2d 110 (1962); United States v. Bulman, 667 F.2d 1374, 1382-84 (11th Cir.), cert. denied, 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982). The issue in those cases is whether suspects have a reasonable expectation of privacy in a place of temporary occupancy. For these purposes, a hotel room has been held to be the equivalent of a home. See Eng Fung Jem, 281 F.2d at 804-05; Fequer, 302 F.2d at 249; Bulman, 667 F.2d at 1384. Those cases have little to do with this one, where an actual resident of the home asserts Fourth Amendment rights. As the Supreme Court stated in Steagald, “The issue here ... is not whether the subject of an arrest warrant can object to the absence of a search warrant [for] .. another person’s home, but rather whether the residents of that home can complain of the search.” Steagald, 451 U.S. at 219, 101 S.Ct. at 1651. The privacy interests underlying Albert’s and Irma’s rights are markedly different. It may be true that if Albert’s Fourth Amendment rights were at issue, Irma Perez’s apartment might be considered his “residence,” even though it was a very temporary place of occupancy. But it simply does not follow that, when analyzing Irma’s constitutional rights, Albert must be considered a co-resident just because he spent the night there on occasion. On the contrary, when assessing whether the search violated Irma’s rights, Albert must be considered a guest in her home if he stayed there only on a temporary basis. A close reading of Steagald suggests that the circumstances in this case are similar to those in Steagald. In Steagald, the police received an anonymous phone call from an informant who stated that the subject of an arrest warrant — Ricky Lyons — might be reached at a certain phone number. The phone number was listed to a person other than Lyons. See Steagald, sub nom United States v. Gaultney, 606 F.2d 540, 543 (5th Cir.1979) (discussion of facts). During the next four days the police had several other conversations with the informant in which the informant told them that Lyons was at the same location. See id. The facts imply that Lyons stayed at the residence for at least a few days, and the Supreme Court noted that the police officers believed Lyons was a guest at the house. Steagald, 451 U.S. at 213, 101 S.Ct. at 1648. The Supreme Court, however, did not view the house as Lyons’ residence. Similarly, we do not view Irma Perez’s apartment as Albert’s residence even though he may have occasionally spent a night there. We hold that the trial judge erred in instructing the jury that, for the purposes of determining Irma Perez’s Fourth Amendment rights, her residence could be considered Albert’s home even if he did not permanently reside there. Unless a jury finds that Albert was an actual co-resident of the apartment, and that the police had reasonable grounds for believing Albert was in the apartment at the time, see Payton, 445 U.S. at 603, 100 S.Ct. at 1388, the search was in violation of Irma Perez’s constitutional rights. The Fourth Amendment right to be secure against warrant-less searches within the home is too vital to justify entry without a search warrant to execute an arrest warrant upon a guest in the home, absent exigent circumstances. See Steagald, 451 U.S. at 221, 101 S.Ct. at 1652. III. DIRECTED VERDICT In her second cause of action, Perez seeks to hold the City liable for her claimed constitutional injury because she attributes the illegal search of her apartment to inadequate training received by the City’s officers. The district court granted a directed verdict in favor of the City, which we review de novo. West Am. Corp. v. Vaughan-Bassett Furniture Co., 765 F.2d 932, 934 (9th Cir.1985). The evidence must be viewed in the light most favorable to Perez, and all inferences must be drawn in her favor. Blanton v. Mobil Oil Corp., 721 F.2d 1207, 1219 (9th Cir.1983), cert. denied, 471 U.S. 1007, 105 S.Ct. 1874, 85 L.Ed.2d 166 (1985). A directed verdict is appropriate when the evidence permits only one reasonable conclusion as to the verdict. Peterson v. Kennedy, 771 F.2d 1244, 1256 (9th Cir.1985), cert. denied, 475 U.S. 1122, 106 S.Ct. 1642, 90 L.Ed.2d 187 (1986). The law of the circuit at the time of trial was that a city could be held liable under section 1983 for the constitutional violations of its police officers if the violation resulted from a municipal policy or custom. We held that a practice of gross negligence in training or supervision is a policy giving rise to municipal liability under section 1983. Bergquist v. County of Cochise, 806 F.2d 1364, 1370 (9th Cir.1986). This could result in municipal liability if the plaintiff established a direct causal link between the gross negligence in training and the constitutional deprivation. Id. at 1369-70. Applying these standards, we held that the trial court erred in granting the directed verdict because the evidence could have permitted a finding of municipal liability. Since the trial and our judgment on appeal, the Supreme Court has articulated the circumstances in which a municipality can be held liable for inadequate police training, specifying a standard of deliberate indifference. City of Canton v. Harris, — U.S. —, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). The Supreme Court vacated our earlier judgment on appeal in this case and remanded for our consideration in light of City of Canton. Simmons v. Perez, — U.S. —, 109 S.Ct. 1736, 104 L.Ed.2d 174 (1989). The Court articulated its newly announced standard as follows: [T]he inadequacy of policy training may serve as a basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact. But it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. City of Canton, 109 S.Ct. at 1204-05 (footnote 10 omitted). In footnote 10 of the opinion, which is referenced to this quotation, the Court cited two examples of situations in which a jury could reasonably find that a failure to train or inadequate training could amount to deliberate indifference. In City of Canton, the Court noted that the standard of proof the district court had imposed was one consistent with Sixth Circuit precedent but lesser than the standard announced by the Court. The Court stated Whether respondent should have an opportunity to prove her case under the “deliberate indifference” rule we have adopted is a matter for the Court of Appeals to deal with on remand. Id. at 1207. Justice Brennan, in his concurring opinion, stated, “The Court’s opinion, which I join, makes clear that the Court of Appeals is free to remand this case for a new trial.” Id. The situation is similar in this case and we deem the appropriate action is to remand this claim against the City for retrial under the newly announced standards. Whether a directed verdict for the City would be appropriate in light of evidence produced at retrial would then be appropriate for the district judge to determine in the first instance. IV. CONCLUSION We reverse the district court’s judgment and remand for proceedings consistent with this opinion. REVERSED and REMANDED. . The conversation was recorded on a dispatcher tape; however, the tape is muffled and does not clearly reveal the detective’s precise words. . The defendants argue that Perez has waived her right to challenge the instructions, contending that she failed to object to the instructions with sufficient specificity. See Fed.R.Civ.P. 51. We find that her objections were adequately specific to meet the requirements of Rule 51. . Albert Perez testified in depositions that, prior to the incident, he typically spent the night at Irma’s apartment two or three times a month for the purpose of babysitting her children. 6 RT 53. Irma Perez testified that, when Albert babysat her children overnight, he slept on a sofa, located downstairs in the living room. 2 RT 108, 65. . The defendants do not claim that there were any exigent circumstances in this case. Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_usc1

18

What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. UNITED STATES of America, Plaintiff-Appellee, v. Truman TALK, Defendant-Appellant. No. 133-69. United States Court of Appeals Tenth Circuit. Nov. 20, 1969. Martin E. Threet, Albuquerque, N. M., for defendant-appellant. Victor R. Ortega, U. S. Atty. (Ruth C. Streeter, former U. S. Atty., and John A. Babington, Asst. U. S. Atty., on the brief), for plaintiff-appellee. Before MURRAH, Chief Judge, LEWIS, Circuit Judge, and THEIS, District Judge. THEIS, District Judge. Appellant in this case was charged with the crime of rape on an Indian Reservation, in violation of 18 U.S.C.A. § 1153. In the first trial the jury was unable to reach a verdict. At a second trial he was tried again, convicted, and sentenced to twenty years in prison, with provisions for parole as set forth in 18 U.S.C.A. § 4208(a) (2). The facts are simple. On the night of July 12, 1968, within the boundaries of the Navajo Indian Reservation, Gloria Mae Begay, a thirteen-year old Indian girl, was seized by the appellant and dragged to a secluded spot at the rear of a drive-in movie theater. With his fists and by beating her with a chain, the appellant physically abused the girl. Thereafter, he, along with five other young Indians, commenced to rape the girl. During the course of the attack a police car drove by, causing the appellant and those with him to run. The girl went to the police car and made her complaint. On this appeal, appellant brings to this Court only two questions concerning error by the trial court: one bearing on the prosecution’s cross-examination of the appellant about a previous assault on, and the validity of his claimed marriage to, one Alice Johnson; and the other concerning the trial court’s refusal to disclose the contents of the pre-sentence report to the appellant prior to sentencing. As to appellant’s first contention, at the trial and after the appellant had testified on direct examination that he was married to Alice Johnson and enjoyed a satisfactory sexual life, the following occurred on cross-examination: “Q. (Mr. Watkins [Assistant U. S. Attorney] continuing.) Truman, you said you were married to Alice Johnson, is that correct? A. That’s correct. Q. When were you married to Alice Johnson? A. I got married to Alice Johnson— well, I didn’t took our blood tests, March 15, we got married May 15. Q. Isn’t it true, Truman, that in June of 1968 that you and Alice Johnson were engaged tobe married but that you got mad at her and threw her out of a moving car and broke her shoulder ? MR. THREET: [Appellant’s attorney] Your Honor— Q. (Mr. Watkins continuing.) She never married you? MR. THREET: — this is getting into matters— MR. WATKINS: Your Honor, he says he’s married. I want to find out if he really is. THE COURT: You might ask him about being married, but all of this other will be stricken and the jury advised not to consider it.” (Emphasis added.) On the basis of the italicized question above, appellant’s counsel moved for a mistrial at the close of the evidence and moved for a new trial after the guilty verdict was received. Both motions were denied by the trial court. Appellant now contends those rulings were error. We do not agree. In order to place the question of the United States Attorney in proper perspective, it is necessary to examine the Government’s case and certain events that transpired during the course of the trial, appearing in the record before us. On direct examination the appellant Talk, who had taken the stand in his own defense, told the jury that he was married to Alice Johnson, and that his sex life had been satisfactory. The transcript further shows in the colloquy of counsel before the trial court, that the United States Attorney had stated that Miss Johnson was unavailable as a witness because she gave birth to a child on the second day of the trial, and that the prosecutor had in his hand at the time the objectionable question was asked, an investigatory statement given by Miss Johnson denying that she ever married Talk, and telling how her injury, when pushed from Talk’s car in June, 1968, ended their relationship a month before commission of the crime on which the instant prosecution was based. It is fundamental that the trial court has broad discretionary powers in permitting or limiting cross-examination. See Jennings v. United States, 364 F.2d 513 (10 Cir. 1966), cert. den. 385 U.S. 1030, 87 S.Ct. 760, 17 L.Ed.2d 677. Further, the exercise of that discretion will be overruled only upon abuse thereof which is clearly shown. See McManaman v. United States, 327 F.2d 21 (10 Cir. 1964), cert. den. Jenkins v. United States, 377 U.S. 945, 84 S.Ct. 1351, 12 L.Ed.2d 307 (1964). As has been seen, in the instant setting the subject of the appellant’s marriage and satisfactory sexual life had been raised during direct examination when he took the witness stand in his own defense. The general rule regarding cross-examination of a defendant is that it should be limited to matters embraced within the direct examination. See Lewis v. United States, 373 F.2d 576 (9 Cir. 1967), cert. den. 389 U.S. 880, 88 S.Ct. 116, 19 L.Ed.2d 173. Since the defendant raised the issue of being happily married during his direct testimony, it appears clear to us that the United States was justified in questioning him regarding that marriage on cross-examination. Appellant claims also that the question prejudiced him in that it mentioned a previous offense under New Mexico law, i. e., aggravated battery. See Section 40A-3-5, N.M.S.A., 1953 Comp. Of course, an accused cannot be convicted upon evidence that he committed another offense, and ordinarily evidence tending to show the commission of a crime wholly separate from, independent of, and without any relation to the one laid in the indictment or information in the case on trial is not admissible. See O’Dell v. United States, 251 F.2d 704 (10 Cir. 1958); Morgan v. United States, 355 F.2d 43, 45 (10 Cir. 1966); . and King v. United States, 402 F.2d 289 (10 Cir. 1968). However, this rule is not absolute. Evidence which goes toward proving a material fact in the case is admissible even if it incidentally shows that the accused committed another offense at a different time and place. If such evidence is material to any issue in the case, it should be admitted. See Fitts v. United States, 284 F.2d 108 (10 Cir. 1960); and Cram v. United States, 316 F.2d 542 (10 Cir. 1963). Keeping this in mind, and remembering that the appellant had come forth with testimony about a satisfactory marriage, it is apparent to us that the United States did not go beyond the proper scope of cross-examination when it asked the question which is the subject of this appeal. Further, we do not find that the United States prejudiced the appellant by asking the question. Since the appellant had put in issue the fact of his satisfactory marriage, the government was entitled to. rebut it, and could do so even if its evidence contained reference to another unrelated offense. Thus, we cannot perceive that the material in the question substantially affected the rights of the appellant, especially when it is remembered that the trial judge sustained the appellant’s objection to the question and instructed the jury to disregard it. Appellant’s second point, wherein he contends that the sentencing court abused its discretion when it refused to allow the appellant to see the presentence report or to advise him of the contents thereof, requires little attention. It suffices to point to our previous holdings, which clearly show the question to be without merit. In the circumstances of the present case, we do not believe it was an abuse of discretion by the trial court to refuse appellant access to the pre-sentence report or the information contained therein. See Hoover v. United States, 268 F.2d 787 (10 Cir. 1959); Roddy v. United States, 296 F.2d 9 (10 Cir. 1961); Thompson v. United States, 381 F.2d 664 (10 Cir. 1967); and Cook v. Willingham, 400 F.2d 885 (10 Cir. 1968). 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_respond2_1_3

F

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second 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. COLORADO PUMP & SUPPLY COMPANY, a Colorado corporation, Plaintiff-Appellant, v. FEBCO, INCORPORATED, a corporation, et al., Defendants-Appellees. No. 72-1204. United States Court of Appeals, Tenth Circuit. Argued and Submitted Sept. 19, 1972. Decided Jan. 5, 1973. Rehearing Denied Feb. 7, 1973. James C. Bull, Denver, Colo. (Creamer & Creamer and Quiat & Quiat, Denver, Colo., on the brief), for plaintiff-appellant. M. Dee Biesterfeld, Denver, Colo. (E. L. Fraser, Los Angeles, Cal., and Doyle & Biersterfeld, Denver, Colo., on the brief), for defendants-appellees. Before LEWIS, Chief Judge, and MURRAH and BREITENSTEIN, Circuit Judges. BREITENSTEIN, Circuit Judge. In this private antitrust suit the issues are whether actions of defendants-appellees Febeo, Incorporated, and Thompson Pipe & Steel Company violate the federal antitrust laws. The district court held for the defendants and dismissed the action. We affirm. Febeo manufacturers lawn and turf equipment. Thompson and plaintiff-appellant Colorado Pump & Supply Company are competing wholesale distributors of such equipment in the Colorado area. An important item is the control device for sprinkling systems. Until January 16, 1967, Thompson, Colorado Pump, and other distributors purchased from Febeo and received a 50% discount. Colorado Pump had a franchise agreement with Rainbird, a competitor of Febeo, and limited its Febeo purchases to controllers. The trial court found that other controllers on the market were competitive with, and satisfactory substitutes for, the Febeo controllers. On the mentioned date Thompson and Febeo made a written agreement whereby Thompson became the exclusive Feb-eo distributor in a geographically defined area. Thompson received a 50/10% discount on package quantities and 50% on broken package quantities. Other contract provisions will be discussed later. After the agreement, Feb-eo refused to sell directly to Colorado Pump which could, and did, purchase Febeo products from Thompson at a 35% discount on parts and 40% discount on complete line equipment. These were the same discounts given all other distributors and jobbers by Thompson. With the 35% discount Colorado Pump could not make a profit on sales of controllers and discontinued handling the Febeo controller with a resulting loss in business. The complaint alleged that Colorado Pump lost $150,000 in profits; that the actions of Febeo and Thompson violated §§ 1, 2, and 14 of Title 15 U.S.C.; and that Colorado Pump is entitled to treble damages. Trial to the court was had on the issue of liability, with damages reserved for later consideration. The court miade findings of fact and concluded that Febeo and Thompson had not violated the federal antitrust laws. The contract between Febeo and Thompson authorizes Thompson “to sell within the following territory [here follows a description including Colorado and some adjacent area].” Title to the purchased products passes to Thompson at Febco’s shipping point. Colorado Pump says that these contract provisions are a per se Sherman Act violation because a manufacturer has imposed vertical restrictions as to territory on a product, title to which has passed from the manufacturer to the distributor. Prime reliance is placed on United States v. Arnold, Schwinn & Co., 388 U. S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249, which Colorado Pump says establishes the rule that if the producer passes dominion and title to the distributor, territorial restrictions imposed by the producer are per se violative of the antitrust laws. In Schwinn, the Court commented that the producer had been “firm and resolute” in its insistence upon the limitations and that firmness “was grounded upon the communicated danger of termination.” 388 U.S. at 372, 87 S.Ct. at 1862. We agree with the Second Circuit that the holding in Schwinn was predicated on the “firm and resolute” insistence on compliance. Janel Sales Corp. v. Lanvin Parfums, Inc., 2 Cir., 396 F.2d 398, 406, cert. denied 393 U.S. 938, 89 S.Ct. 303, 21 L.Ed. 2d 275. Our case is different from Schwinn. We have no explicit contract restriction. Nothing in the contract forbids, or even touches on, sales by Thompson outside of the territory. The trial court found, and we agree, that the contract “contained no resale restrictions with regard to whom Thompson could sell or at what price.” Further, no “firm and resolute” action of Febeo insisted upon observance of any territorial restriction. The Manager of the Irrigation Division of Thompson testified that although Thompson had not made sales outside of the allocated territory, it was not prohibited from doing so. The Manager of Febeo testified that “there was no authorization or no restriction to my knowledge” on Thompson sales outside of the territory. Our situation is a far cry from that considered in Schwinn. The contract provision with which we are concerned is no more than a description of a primary marketing territory and as such is not a per se violation. Plastic Packaging Materials, Inc. v. Dow Chemical Co., E.D.Pa., 327 F.Supp. 213, 225; see also Janel Sales Corp. v. Lanvin Parfums, Inc., 2 Cir., 396 F.2d 398, 406, cert. denied 393 U.S. 398, 89 S.Ct. 303, 21 L.Ed.2d 275. Contrary to Colorado Pump’s assertion, Interphoto Corp. v. Minolta Corp., S.D.N.Y., 295 F.Supp. 711, aff’d 2 Cir., 417 F.2d 621, did not hold that a per se violation could be found on the basis of a mere contractual provision. In that case, the court found that Minolta had persistently advised its distributor against unwanted incursions into restricted areas. 295 F.Supp. at 720. The record before us is devoid of any suggestion that Febeo had even admonished Thompson to confine its sales to the described territory. In our opinion the attacked contract provision is not a per se Sherman Act violation. When coupled with the other evidence in the record, it shows no violation. A manufacturer may select the customers to whom he will sell so long as his conduct has no monopolistic or market control purpose. New Home Appliance Center v. Thompson, 10 Cir., 250 F.2d 881, 884. Here we have no price fixing and no evidence of market control. The trial court found that the marketing of lawn and turf equipment “is highly competitive on a national and regional basis.” We have nothing more than a vertical confinement of sales to a selected customer of a product which is competitively available from others. This is not enough to establish a Sherman Act violation. Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 9 Cir., 416 F.2d 71, 76, cert. denied 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755, and cases there cited. Under the contract, Thompson was obligated to “maintain adequate inventories of products and parts which will enable Distributor to offer for sale a complete line of said products and service them after installation.” Colorado Pump argues that this is an impermissible tying arrangement in that the requirement that the complete line be stocked is tied to the right to acquire the desirable Febeo controller. A tying arrangement is an agreement by a party to sell a product but only on the condition that the buyer also purchases a different (or tied) product or at least agrees that he will not purchase that product from any other supplier. Northern Pac. R. Co. v. United States, 356 U.S. 1, 5-6, 78 S.Ct. 514, 2 L.Ed.2d 545. A tying arrangement is a per se Sherman Act violation if (1) the seller has sufficient economic power with respect to the tying product to appreciably restrain free competition in the market for the tied product, and (2) a “not insubstantial” amount of commerce is foreclosed to competitors. Fortner Enterprises, Inc. v. United States Steel Corp., 394 U.S. 495, 499-500, 89 S.Ct. 1252, 22 L.Ed.2d 495, quoting Northern Pac. R. Co. v. United States, 356 U.S. 1, 5-6, 78 S.Ct. 514, 2 L.Ed.2d 545. The claim of adverse economic impact rests upon the desirability of the Febeo controller. Although there was evidence that Colorado Pump considered the Feb-eo controller to be superior, there was none that Thompson, the supposed victim of the tying arrangement, was of the same opinion. Competent evidence of the availability and suitability of alternative products was relevant. Elder-Beerman Stores Corp. v. Federated Department Stores, Inc., 6 Cir., 459 F.2d 138, 144. The trial court found on conflicting evidence that: “Other controllers on the market were competitive with and satisfactory substitutes for the Febeo controllers.” This negates any inference of sufficient economic power to restrain free competition. It should be noted in passing that here we have no conditioning of the right to purchase controllers on the purchase of worthless products, no evidence of the imposition of burdensome terms by Febeo, no restriction on the right of Thompson to distribute products in competition with those of Febeo, no evidence that the prices of the balance of the Febeo line were inflated, and no evidence that Feb-eo used any coercion on Thompson. The other requirement for a per se violation by a tying agreement is the foreclosure of a substantial amount of commerce to competitors. It is conceivable that the need to maintain adequate inventories might affect commerce by providing impetus to sell products of the manufacturer rather than those of another. Be that as it may, there is no evidence of the cost of maintaining the necessary inventory or of its effect on Thompson sales. The trial court held that in the competitive industry Thompson is free to sell products of Febco’s competitors. The mere existence of the requirement that the full line be stocked, without additional information about its competitive impact, does not suffice to establish an unreasonable restraint of trade.'' Cf. Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 325-329, 81 S.Ct. 623, 5 L.Ed.2d 580. We are convinced that the record shows no impermissible tying arrangement. Colorado Pump argues that a Sherman Act violation, monopolization of the Colorado market, was accomplished through the use of a price discrimination scheme prohibited by the Robinson-Patman Act, 15 U.S.C. § 13. Perhaps it is enough to say that we find nothing in' the record to sustain the claim of monopolization. We also find no Robinson-Patman violation. That Act prohibits price discrimination “between different purchasers” and does not prevent persons selling goods in commerce “from selecting their own customers in bona fide transactions and not in restraint of trade.” After its agreement with Thompson, Febeo stopped selling to Colorado Pump. The record shows only a refusal to deal, not price discrimination. Colorado Pump had to buy Febeo products from Thompson at a greater price than Thompson had to pay but at the same price charged to other purchasers from Thompson. Cherokee Laboratories, Inc. v. Rotary Drilling Services, Inc., 5 Cir., 383 F.2d 97, cert. denied 390 U.S. 904, 88 S.Ct. 816, 19 L.Ed.2d 870, is not in point. The court there recognized the holding in Schwinn that vertical refusals to deal are immunized so long as there are competitive products readily available to others, 388 U.S. at 376, 87 S.Ct. 1856, and held that a jury question was presented on the issue of whether competitive products were available, 383 F.2d at 105. In the instant case, the trier of the fact found that competitive products were available. Colorado Pump argues that the Febco-Thompson contract contains an impermissible customer restriction. The contract says that “in no event shall Distributor’s retail sales exceed one-third (⅓) of Distributor’s annual sales volume.” As we read the record, this argument was not part of the legal theory upon which the case was tried. Cf. Stephens Industries, Inc. v. Haskins & Sells, 10 Cir., 438 F.2d 357, 361. If it was, no evidence was adduced as to the total sales, the sales to distributors, the sales to retailers, or of any efforts by Febeo to enforce the provision. Nothing shows that the restriction was unreasonable or that any purchaser, wholesale or retail, did or could suffer in the highly competitive industry with adequate substitutes readily available. We find nothing in Schwinn or any other authority holding that the attacked provision is a per se Sherman Act violation. Finally, Colorado Pump attacks the findings of the trial court on the ground of inadequacy. In our opinion the findings are adequate, sustained by substantial evidence, and not clearly erroneous. Affirmed. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:

songer_typeiss

B

What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. Clifford O. BOREN, Appellant, v. R. A. RIDDELL, District Director of Internal Revenue, Appellee. No. 15203. United States Court of Appeals Ninth Circuit. Feb. 19, 1957. John A. Brant and Torrance & Wan-sley, San Diego, Cal., for appellant. Charles K. Rice, Asst. Atty. Gen., Laughlin E. Waters, U. S. Atty., Los Angeles, Cal., Helen A. Buckley, Washington, D. C., Edward R. McHale, Robert H. Wyshak and Bruce I. Hochman, Asst. U. S. Attys., Los Angeles, Cal., for appel-lee. Before STEPHENS, CHAMBERS and BARNES, Circuit Judges. BARNES, Circuit Judge. Appellant sought an injunction in the District Court restraining and enjoining appellee from making any seizure, collection or distraint of any property belonging to appellant under the authority of an assessment for income taxes, interest and penalties made by the Commissioner of Internal Revenue against appellant, for the calendar year 1951. This income tax return appellant had duly filed. Appellee moved to dismiss, filing a supporting affidavit. The District Court treated the motion as one for summary judgment, heard the matter, and ordered dismissal. This is an appeal from that order of dismissal. A taxpayer’s right to enjoin the collection of taxes is limited by statute under the Internal Revenue Code of 1954, effective August 17, 1954. In that Code, § 7421 provides: “(a) Tax. — Except as provided in sections 6212(a) and (c), and 6213 (a), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” § 6212(a) provides that after the Secretary or his delegate determines there is a deficiency, he “is authorized to send notice of such deficiency to the taxpayer by registered mail.” § 6213 provides that within ninety days after the notice authorized in § 6212 is mailed, the taxpayer may file a petition with the Tax Court for a redetermination of the proposed deficiency. In such an event, § 6212(c) (1) provides that the Secretary or his delegate shall have no right to determine any additional deficiency of the taxpayer for the same taxable year. Under the Internal Revenue Code of 1939, similar restrictions on the taxpayer’s right of injunction existed. Section 272, as amended, provided: “If in the ease of any taxpayer, the Commissioner determines that there is a deficiency in respect of the tax imposed by this chapter, the Commissioner is authorized to send notice of such deficiency to the taxpayer by registered mail * * This Section then gives the taxpayer the right, within ninety days, to petition for a redetermination of the deficiency, and no assessment, distraint or proceeding in court for collection shall be made, begun, or prosecuted “until such notice has been mailed to the taxpayer, nor until the expiration of such ninety day period,” nor if such a petition is filed, “until the decision of the Board has become final,” and if attempted, “[it] may be enjoined.” The facts are undisputed. On March 11, 1955, the Commissioner sent a notice of deficiency by registered mail to the taxpayer at the wrong address. This notice is conceded by both parties to be ineffective for any purpose. On April 14, 1955, the Commissioner mailed a notice of deficiency by ordinary mail to the taxpayer at his correct address. It was received by taxpayer the following day. The appellant filed no petition for re-determination of the deficiency with the Tax Court at any time. On July 22 1955 (more than ninety days after the notice had been received) when no action was taken by the taxpayer, appellee gave written notice and demand for payment, and issued a warrant of distraint. The sole question presented is whether the notice of deficiency so received by the taxpayer is a valid statutory notice. If so, appellant has no defense to the threatened levy and distraint. If not, appellee has no authority to levy and distrain, and should be enjoined from doing so until after notice has been given by registered mail, the expiration of the ninety day period, and the failure of taxpayer to petition. The earlier cases, particularly those heard by the Tax Court, applied the statutory construction rule, expressio unius est exclusio alterius, and held that “notice by registered letter” meant notice in that way, and in no other way; that notice by ordinary mail, or manual delivery, was insufficient. “Any other method of notice does not comply with the statute and is invalid. The method directed by the statute is mandatory.” Day v. Commissioner, 12 B.T.A. 161; Hamilton v. Commissioner, 13 T.Ct. 747, 749; Wilson v. Commissioner, 16 B.T.A. 1280, 1290; Heinemann Chemical Co. v. Heiner, 3 Cir., 1937, 92 F.2d 344; citing Botany Worsted Mills v. United States, 278 U.S. 282, 49 S.Ct. 129, 73 L.Ed. 379, where there appears this language, interpreting the 1924 Act: “When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.” 278 U.S. 282, 49 S.Ct. 129, 132. But, argues the Government, the statute now has been revised; it does not now so “limit”; it merely “authorizes” one method of giving notice. It points out that the 1924 Act provided that notice “shall be sent by registered mail,” the 1926 Act, § 274(a), 26 U.S.C.A.Int. Rev.Acts, p. 203 was revised to provide that the Government was “authorized” to so send the notice; that this word “is a permissive word at most; ” that the real objective is actual notice. If notice by registered mail was deemed indispensable, runs the Government’s argument, it would have been simple for the Congress to have so provided; i. e., “notice must be served by registered mail.” We believe that this Court should attempt to give effect to the manifest intent of Congress, when it changed the requirement “shall use registered mail,” to the permissive “may use registered mail.” We presume the purpose of using registered mail is first, to provide the safest economical. method of insuring that in the greater majority of cases, notice is actually received by the taxpayer from his Government; second, to create some commonly accepted factual basis to permit, in good conscience, the initiation of the ninety day period against the taxpayer, without requiring the Government to face the almost impossible task of proving actual notice to the taxpayer. But the heart of the taxpayer’s right is to have actual notice, which enables him to petition his Government if he so desires. This he had here, under the notice he admittedly received by ordinary mail. We believe a broader interpretation of the language is followed in the more recent court cases. See Commissioner of Internal Revenue v. Stewart, 6 Cir., 186 F.2d 239, 241, 24 A.L.R.2d 793: “The taxpayer contends that since the statute requires the notice of the deficiency assessment to be sent ‘to the taxpayer by registered mail,’ the action of the Commissioner in sending it to the taxpayer’s auditor and attorney, instead of to the taxpayer himself, was not a compliance with the provisions of the statute, and was therefore an invalid notice. The Tax Court ruled that since the statute limited the way in which the notice could be sent it negatived any other mode of action; that the Commissioner was required to send the notice of deficiency to the taxpayer in strict accord with the statutory requirements; and since he did not do so, the petition must be dismissed for lack of jurisdiction. “We are of the opinion that such a strict literal construction of the statute is not authorized in the present case. It is clear that the purpose of the deficiency notice is to give the taxpayer notice that the Commissioner means to assess a deficiency tax against him and to give him an opportunity to have such ruling reviewed by the Tax Court before it becomes effective. Commissioner [of Internal Revenue] v. New York Trust Co., 2 Cir., 54 F.2d 463, 465; Commissioner [of Internal Revenue] v. Forest Glen Creamery Co., 7 Cir., 98 F.2d 968, 971; Olsen v. Helvering, 2 Cir., 88 F.2d 650, 651. In addition to giving the taxpayer notice of the proposed deficiency assessment, the mailing of the deficiency notice limits the period of time thereafter to ninety days in which the taxpayer can have the question reviewed by the Tax Court. If the taxpayer receives notice of the proposed assessment, and during the ninety-day period thereafter files his petition for review with the Tax Court, the purposes of the Act have been accomplished. Although some courts have said that strict compliance with the statutory notice provisions is necessary in order to validate the assessment and to give the Tax Court jurisdiction to review it, we do not think that such a view is the correct one. In Commissioner [of Internal Revenue] v. Forest Glen Creamery Co., supra, the Court said, 98 F.2d at page 971: 'x‘ * there is no indication in the statute of an intention to require the notice to be on the basis of jurisdiction of the Board in a technical sense.’ As pointed out by Commissioner [of Internal Revenue] v. New York Trust Co., supra, 54 F.2d at page 465, it is the taxpayer who invokes the jurisdiction of the Board by filing his petition to review. This Court has previously ruled that a failure to strictly comply with the statutory notice provisions does not necessarily deprive the Tax Court of its jurisdiction to act in the matter. Warner Collieries Co. v. United States, 6 Cir., 63 F.2d 34; Commissioner [of Internal Revenue] v. Nichols & Cox Lumber Co., 6 Cir., 65 F.2d 1009. See also Burnet v. San Joaquin Fruit & Investment Co., 9 Cir., 52 F.2d 123, 128. Under Section 272(d) Internal Revenue Code, the required mailing of the deficiency notice can be waived by the taxpayer without invalidating the validity of the assessment. In the following cases it was held that defects or irregularities in giving the required statutory notice were waived by the taxpayer’s action in proceeding with a petition for review in the Tax Court, which thereupon acquired jurisdiction to determine the matter: Haag v. Commissioner, 7 Cir., 59 F.2d 516, 518; Commissioner [of Internal Revenue] v. New York Trust Co., supra, 54 F.2d at page 466. “In the present case, the taxpayer received the full measure of protection guaranteed to him by Section 272(a) of the Code.” We do not go as far as the majority did in Dolezilek v. C. I. R., 1954, 94 U.S. App.D.C., 97, 212 F.2d 458, in here holding that actual notice, plus a ninety-day period thereafter within which the taxpayer may act, satisfies the statute, and that a literal compliance is unnecessary. There the majority opinion held that the mailing of an undelivered registered letter starts the ninety-day period running, where the taxpayer had actual notice within the ninety-day period by manual delivery and “adequate time remaining within such period for preparing and filing * * * ” his protest. The dissent of Judge Miller points out that he believes the legislative intent was that “the notice must actually reach the taxpayer * * * before limitation begins to run from the date of mailing,” and in conclusion he states: “My opinion is that Congress intended to permit an application to the Tax Court within ninety days after the mailing of a final or ninety-day deficiency letter which was actually delivered to the taxpayer by the post office; and, in the absence of notice by registered letter, within ninety days after the taxpayer’s actual receipt of notice delivered to him by some other method. Section 272 does not, as the majority say, provide for manual delivery. But such delivery is not forbidden, and the use of registered mail is not mude exclusive. The essential thing is that the taxpayer have notice, and not that he have it in any particular way.” (Emphasis added.) We agree with this reasoning. Here' the essential purpose of the statute was accomplished. The rights of the taxpayer were protected. He received ae-tual notice in sufficient time to petition the: Tax Court to stay the levy and dis-traint, had he desired so to do. He chose not to do so, and he cannot now complain of an alleged technical deficiency which deprived him of no rights. Our conclusion herein as to the sufficiency of the notice is based upon the circumstances of this case and our reasoning is not meant as authority for holding that actual notice is sufficient in all cases where another specific kind of notice is prescribed. Affirmed. . 28 U.S.C.A. § 1340. . Rule 12(b), Federal Rules of Civil Procedure, 28 U.S.C.A. . 28 U.S.C.A. § 1291. . 26 U.S.C.A. § 7421. . 26 U.S.C.A. § 6212. . 26 U.S.C.A. § 6213. . 26 U.S.C.A. (I.R.C.1939), § 272. . Internal Revenue Act of 1924, § 274(a), 26 U.S.C.A.Int.Rev.Acts, p. 56. 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_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. John S. PORTER, Plaintiff, Appellant, v. Harold NUTTER, et al., Defendants, Appellees. No. 89-1834. United States Court of Appeals, First Circuit. Heard Aug. 1, 1990. Decided Sept. 11, 1990. Lee C. Nyquist, with whom Devine and Nyquist and Merrick C. Weinstein, were on brief for plaintiff, appellant. Andrew D. Dunn, with whom Devine, Millimet, & Branch and Cynthia A. Satter, were on brief for defendants, appellees. Before CAMPBELL and SELYA, Circuit Judges, and BOWNES, Senior Circuit Judge. SELYA, Circuit Judge. Invoking diversity jurisdiction, 28 U.S.C. § 1332, plaintiff-appellant John S. Porter, a Floridian, sued several local citizens, including appellee Ronald Griffin, in the United States District Court for the District of New Hampshire. The district court, acting on a Rule 12(b)(6) motion, dismissed Porter’s complaint against Griffin for failure to state a cognizable claim. Following entry of judgment under Fed.R. Civ.P. 54(b), Porter appeals. I “In reviewing a Rule 12(b)(6) dismissal, we take the well-pleaded facts as they appear in the complaint, indulging every reasonable inference in plaintiff’s favor.” Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 51 (1st Cir.1990). Utilizing this approach, Porter’s amended complaint, read in its most flattering mien, reveals the following: 1. Griffin, Porter, and Raycraft worked for a common employer, Rockingham Venture, Inc. (RVI), which owned and operated a racetrack in Salem, New Hampshire. Griffin was a supervisor whose duties included reviewing safety precautions and directing work crews. Porter and Raycraft were subordinates who did plumbing repairs and general labor. 2. On July 20, 1987, the three men were toiling near the ladies’ rest room at the racetrack. Performance of the job required Porter to work in a trench. He was not furnished with any headgear or other protective equipment. 3. Several times, Porter asked Griffin to remove a propane tank hovering near the trench’s edge. Griffin had both the authority and the wherewithal to relocate the tank, but neglected to do so. Eventually, misfortune struck. Raycraft, said by plaintiff to be a “known user and abuser of alcohol,” attempted to leap across the fissure, causing the omnipresent tank to fall into the trench. The tank struck Porter, seriously injuring him. The district court, reading these facts liberally in plaintiffs favor, nonetheless believed Griffin to be immune from suit. We agree. II State substantive law controls in this diversity case. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938); Moores v. Greenberg, 834 F.2d 1105, 1107 (1st Cir.1987). We begin our exposition by remarking that, under New Hampshire law, tort liability between coemployees is something of a gray area. The state supreme court in recent years has wrestled with the problem and determined that an employee may not sue a fellow employee for negligently-inflicted injuries sustained in the course of the employment if the putative defendant was simply carrying out the employer’s nondelegable duty to maintain a safe workplace. See Rounds v. Standex International, 131 N.H. 71, 76-77, 550 A.2d 98, 101-02 (1988); see also Taylor v. Nutting, — N.H. -, -, 578 A.2d 347, 348 (1990) (summarizing holding in Rounds). To rule otherwise, the court reasoned, “would vitiate the purpose of the workers’ compensation law.” Rounds, 550 A.2d at 102. Thus, an employee can be liable in negligence to a coemployee only for the breach of some duty “distinct from the employer’s duty to maintain a safe workplace.” Id. The New Hampshire Supreme Court amplified the purport of Rounds in Tyler v. Fuller, — N.H.-, 569 A.2d 764 (1990). There, the court rejected a proposed distinction premised on “active” versus “passive” negligence, 569 A.2d at 767, and observed that, for one employee to owe a separate and distinct duty to another, “something extra” was required: “It must be ‘an affirmative act which increase[s] the risk of injury’ and is beyond the scope of the employer’s nondelegable duty to provide a safe workplace.” Id. 569 A.2d at 769 (quoting Kruse v. Schieve, 61 Wis.2d 421, 213 N.W.2d 64 (1973)). The court’s use of the conjunctive is noteworthy; to be actionable, the actor’s conduct must not only increase the risk to plaintiff but must also exceed, and arise independent of, the responsibilities that the actor, standing in the employer’s shoes, was required all along to fulfill. The theory and burden of this line of cases is apparent. In New Hampshire, as elsewhere, an employer has a nondelegable duty to provide employees with a safe place to work. See, e.g., Moore v. Company, 89 N.H. 332, 335, 197 A. 707, 710 (1938). The sweep of the duty is broad: “The working conditions must be as safe as the nature of the place of employment reasonably permits_” Wasley v. Kosmatka, 50 Wis.2d 738, 744, 184 N.W.2d 821, 824-25 (1971). Although the duty is itself nondelegable, it is routinely implemented through agents, supervisory employees entrusted by the employer with carrying out the employer’s common-law duty. When a supervisor’s alleged negligence comprises conduct in derogation of this duty, an injured coemployee cannot sue the supervisor; after all, “[t]he duty of proper supervision is a duty owed by a ... supervisory employee to the employer, not to a fellow employee,” and breach of it is, therefore, not actionable by the latter (the injured party being remanded, in effect, to his rights under the workers’ compensation statutes). Tyler, 569 A.2d at 768 (quoting Kruse, 213 N.W.2d at 67). It is only when the supervisor’s conduct transcends the scope of the employer’s duty that negligence will ground a suit by an injured fellow employee. Hence, a right of action inures when the act or omission occurs “in the [supervisor’s] separate and distinct capacity as coemployee[ ].” Id. 569 A.2d at 769. Ill We think that these authorities are dispositive of the instant appeal. Griffin was the overseer at the job site and, as the amended complaint unambiguously alleges, was in charge of safety precautions. In carrying out that responsibility, he was carrying out RVI’s nondelegable duty to its work force. Requiring Porter to perform his chores in the presence of a known, curable hazard presumably violated RVI’s duty to furnish Porter a safe place to work. Leaving the dangerous condition in place, particularly after attention had been called to it, presumably violated Griffin’s duty to RVI. Yet, nothing in the amended complaint’s factual scenario suggests that Griffin was guilty of any act or omission apart from, or beyond the scope of, RVI’s duty to ensure that “[t]he working conditions [would] be as safe as the nature of the place of employment [here, the trench] reasonably permitted].” Wasley, 184 N.W.2d at 824-25. In short, the claimed negligence occurred while appellee was “merely executing the employer’s duty.” Tyler, 569 A.2d at 766. “Something extra” was lacking. Appellant focuses obsessively on a single excerpt from the Tyler opinion: An important factor to consider is the nature of the alleged negligence. If there is some direct involvement which creates a personal duty of care, liability may be asserted notwithstanding Rounds if such an independent duty is breached by a supervisory employee acting in the capacity of a co-worker/co-employee. 569 A.2d at 769. From this passage, he divines that cases like this one turn not on the scope of the employer’s duty, but on the degree of the supervisor’s involvement. But, this conclusion stands logic on its ear. Read in context, the analysis which Tyler directs starts not with the relationship between fellow employees, but with the relationship between the negligent actor and the employer; not with the supervisor’s conduct, but with the scope of the employer’s duty. If the negligence occurs in connection with the “supervisory duties which the defendant performs for the employer,” then the defendant “has breached a duty owed to the employer and not to the employee.” Id. It is only when the defendant “steps out of his or her role as a supervisor” that a personal duty of care to the injured employee arises. Id. And unless such a duty can be shown, the degree of the actor’s involvement is immaterial. See id. (requiring, conjunctively, that conduct sued upon be both risk-increasing and beyond the scope of the employer’s nondel-egable duty to furnish a safe place to work). Here, the facts alleged in no sense show that Griffin acted (or more precisely put, failed to act) beyond his supervisory capacity. Despite his direct involvement in the mishap, Griffin was standing in the shoes of the employer, plain and simple, when he neglected to remedy the on-site hazard and thereby contributed to the happening of the accident. He was obliged to relocate the tank by virtue of the employer’s duty, which had devolved upon him as RVI’s agent; that Porter also requested the tank’s removal was beside the point. Because Rounds and its progeny do not allow an injured employee to maintain an otherwise-precluded tort suit by the simple expedient of calling a failure to provide safe working conditions by some other appellation, Porter cannot sue Griffin on these facts. IV We need go no further. In diversity jurisdiction, “[o]ur function is not to formulate a tenet which we, as free agents, might think wise, but to ascertain, as best we can, the rule that the state’s highest tribunal would likely follow.” Kathios v. General Motors Corp., 862 F.2d 944, 949 (1st Cir.1988). If we are unwilling to stretch state precedents to reach new frontiers, a litigant like Porter, who deliberately “chose to reject a state-court forum in favor of a federal forum ... is in a perilously poor position to grumble” about our stodginess. Kassel v. Gannett Co., 875 F.2d 935, 950 (1st Cir.1989). See also Croteau v. Olin Corp., 884 F.2d 45, 46 (1st Cir.1989); Cantwell v. University of Massachusetts, 551 F.2d 879, 880 (1st Cir.1977); cf. Freeman v. Package Machinery Co., 865 F.2d 1331, 1349 (1st Cir.1988) (party removing ease from state court “hard put to complain if the federal court follows state practice in regard to state-law claims”). We may, perhaps, be unadventurous in our interpretation of New Hampshire law, but a plaintiff who seeks out a federal venue in a diversity action should anticipate no more. Affirmed. . Plaintiff’s case against one such person, James Raycraft, remains pending in the district court. . In the case of a supervisory employee, "something extra," as that phrase was intended by the Tyler court, must mean something apart from, beyond, or transcending “the category of supervisory duties which the [supervisor] performs for the employer” in order to make the workplace reasonably safe. Tyler, 569 A.2d at 769; see also Kruse, 213 N.W.2d at 67-68. . Indeed, if "direct involvement” itself can create an independent duty duplicative of the employer’s duty, as appellant asseverates, then the exception would harbor the potential to swallow virtually the entire rule. We do not think Rounds and Tyler can so easily be skirted, especially since appellant's view of the primacy of direct involvement comes perilously close to reintroducing the dichotomy between "active” and “passive" negligence specifically rejected by the court in Tyler, 569 A.2d at 767. . We have considered certification of this case to the New Hampshire Supreme Court, but believe it unnecessary, for reasons stated elsewhere, to embark on such a course. See Kassel, 875 F.2d at 950 n. 14; Fischer v. Bar Harbor Banking & Trust Co., 857 F.2d 4, 8 (1st Cir.1988), cert. denied, — U.S.-, 109 S.Ct. 1135, 103 L.Ed.2d 2196 (1989); see also Bi-Rite Enterprises, Inc. v. Bruce Miner Co., 757 F.2d 440, 443 n. 3 (1st Cir.1985) ("it is inappropriate for a federal court to use [certification] when the course state courts would take is reasonably clear”). At any rate, we are particularly hesitant to certify state-law questions where, as here, both parties, upon direct inquiry at oral argument, expressed a contrary preference. Cf. Fischer, 857 F.2d at 8 (case for certification "considerably weaken[ed]” when district court was not asked to certify question). 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_initiate

A

What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. UNITED STATES of America, Appellant, v. PENNSYLVANIA ENVIRONMENTAL HEARING BOARD, Robert Broughton, Paul E. Waters, and Ray A. Alberigi, Prothonotary of Lackawanna County, Appellees. No. 77-2041. United States Court of Appeals, Third Circuit. Argued March 30, 1978. Decided Aug. 14, 1978. James Hunter, III, Circuit Judge, dissented and filed opinion. James W. Moorman, Acting Asst. Atty. Gen., Washington, D. C., S. John Cottone, U. S. Atty., James W. Walker, Asst. U. S. Atty., Scranton, Pa., Raymond N. Zagone, Carl Strass, Attys., Dept, of Justice, Washington, D. C., for appellant. Dennis Jay Harnish, Karin W. Carter, Asst. Attys. Gen., Harrisburg, Pa., for ap-pellees. Before HUNTER, WEIS and GARTH, Circuit Judges. OPINION OF THE COURT GARTH, Circuit Judge. This appeal requires us to determine whether a private company operating under federal contract is a federal “department, agency or instrumentality” for the purposes of section 313 of the Federal Water Pollution Control Act Amendments of 1972 (Act). That provision requires inter alia that a federal “department, agency or instrumentality” comply with State and local pollution control requirements “to the same extent that any person is subject to such requirements.” The district court determined that Chamberlain Manufacturing Corporation (Chamberlain), the company whose operations and whose relationship to the Government is involved here, is a private independent contractor and not a federal agency for purposes of section 313. That holding resulted in the district court granting the summary judgment motion brought by the Pennsylvania Environmental Hearing Board (Board). 431 F.Supp. 747 (M.D.Pa.). We affirm. I The United States owns the premises, installations and equipment at the Scranton Army Ammunition Plant (Plant) in Scranton, Pennsylvania. The primary function of the Plant is the production of metal parts for ammunition shells used solely by the United States. Chamberlain, an Iowa corporation having a certificate of authority to do business in Pennsylvania, operates the Plant under a facilities contract with the United States. That contract designates Chamberlain as “an independent contractor and not an agency of the Government,” and provides that the personnel employed “in carrying out the work hereunder . shall constitute employees of the Contractor [Chamberlain] and not of the Government.” From July, 1970 through October, 1972, the operation of the plant by Chamberlain resulted in the discharge of 1.5 million gallons per day of untreated wastes from the Plant into Roaring Brook, a tributary of the Lackawanna River. “As a result of the industrial waste discharge, no fish could have lived within a half mile of the plant, and the lower life forms were also depressed.” During this period, “Chamberlain knew that its operation of the plant and the attendant discharge of industrial wastes from the plant caused substantial pollution of Roaring Brook.” Chamberlain however was not unresponsive: commencing in 1966 and at least through October, 1972, Chamberlain engaged in a series of pollution abatement measures which, by October, 1972, resulted in abatement of the Plant’s industrial waste discharge. The parties stipulated that in order to receive reimbursement from the United States for its pollution control programs, Chamberlain required the approval of the Department of the Army prior to their implementation. The facilities contract between the Government and Chamberlain nonetheless specified that Chamberlain was to comply with all governmental laws and regulations, and was to “procure all necessary permits and licenses,” including those of state and local authorities. Additionally the facilities contract contains a specific section dealing with Chamberlain’s responsibility to comply with state pollution control laws, and provides among other things that “[i]n the event any Governmental agency, local, state or federal, shall assess fines, institute suit, or otherwise disrupt, curtail, or order cessation of production, the Government shall hold harmless and indemnify the contractor for costs and damages incurred.” In 1972, the Pennsylvania Department of Environmental Resources (Department) filed a complaint for civil penalties for water pollution with the Board against Chamberlain and other defendants. The complaint alleged violations of the Pennsylvania Clean Streams Law, and sought money damages pursuant to the 1970 Amendments to that act. None of the defendants filed an answer. On October 19, 1972, the Board entered a default judgment against Chamberlain and the commanding officer of the facility. (App. 17, 35). At a subsequent penalty hearing, an Assistant United States Attorney made a limited appearance on behalf of all defendants. He argued that under the doctrine of sovereign immunity the Board lacked jurisdiction to “ ‘impose fines or penalties upon federal employees or federally operated facilities .. ’ ” The Board denied the Government’s objection to the Board’s assertion of jurisdiction. This jurisdictional objection constituted the full extent of the Government’s participation in Board proceedings. The Board went on to assess a $1,667,000 fine against Chamberlain. Following the Board’s decision, the United States filed a complaint in the federal district court, seeking an injunction to prevent the Department's enforcement and collection of the fine levied against Chamberlain. The parties stipulated to the relevant facts, and the case was heard upon a motion for summary judgment brought by the Board. Aware of the dismissals and stipulations affecting the other defendants, the district court considered the United States’ claim of immunity solely as it related to Chamberlain. The court did not confine itself to the ratio decidendi found in the Board’s decision, as it was not sitting as a court reviewing Board determinations. Rather, the district court focused on the facilities contracts pursuant to which Chamberlain contracted to operate the Scranton Army Ammunition Plant. As noted “the two contracts . . . denominate Chamberlain ‘an independent contractor and not an agency of the Government’ and employ language fully consistent with that characterization.” 431 F.Supp. at 754. The question before the district court thus became whether Chamberlain, which con-cededly operated the plant and indeed was named as an “independent contractor” in all relevant documents to which it was a party and which were pertinent to its function as Plant operator, was nonetheless a United States “department, agency, or instrumentality” within the meaning and terms of section 313. If so, then upholding the Government’s sovereign immunity contention would result both in the district court being the exclusive forum for any action instituted against Chamberlain and in the disallowance of any fine. See n. 20 infra. If not, i. e., if Chamberlain was not a federal entity under section 313, then Chamberlain, like any other private company, was subject to the jurisdiction of, and sanctions imposed by, the Board. The district court, after an examination of policy considerations and relevant authorities, particularly Powell v. United States Cartridge Company, concluded that as a matter of federal law Chamberlain was not shielded from state environmental proceedings merely because it was operating under a contract made with the federal government. The district court reasoned: To include Chamberlain, an independent contractor, within [the] definition [of “department, agency, or instrumentality”] would not only strain the literal language, but would, by extending a partial shield to the vast number of companies which do business under contract with the Government, flout the environmental concerns which gave impetus to the Air and Water Acts. Those statutes, rather than erecting new obstacles to enforcement, exposed to suit in a specific forum the otherwise immune activities of strictly governmental agencies. 431 F.Supp. at 755. The district court therefore refused to enjoin the Board’s order prescribing a penalty against Chamberlain. Id. II We agree with the district court that Chamberlain is not a federal “department, agency, or instrumentality” under section 313 of the Act. We find it critical that Chamberlain’s contract with the federal government specifies that it is “an independent contractor and not an agency of the Government,” and that its employees are not government employees. By contrast, the pollution control requirements prescribed in section 313 apply to a federal “department, agency or instrumentality.” This statutory terminology seems logically to exclude an independent contractor. If there is an ambiguity in the terms of the statute, however, that ambiguity disappears when reference is made to the explicit contractual language of the parties which carefully denotes Chamberlain to be an independent contractor and “not an agency of the Government.” Admittedly, contract provisions do not necessarily govern a party’s legal status vis-a-vis third parties (here the Board). Yet here the language of the contracting parties is unmistakably clear, and in our opinion was specifically intended to establish the status of the one in relation to the other. In the context of this case, in which the Government would have Chamberlain cloak itself with the mantle of a federal “department, agency or instrumentality” and thereby gain governmental immunity with respect to third parties, the relevant contract terms assume an enhanced significance. Indeed, in a highly analogous context the Supreme Court found nearly-identical contract language to be “persuasive” and virtually determinative of the issue before it. In Powell v. United States Cartridge Co., 339 U.S. 497, 505-06, 70 S.Ct. 755, 94 L.Ed. 1017 (1950), a private company under contract with the United States claimed that it was a Government agent, and that its employees were Government employees, thereby exempting the employees from the minimum wage and maximum hour provisions of the Fair Labor Standards Act as amended, 29 U.S.C. §§ 201 et seq. In Powell, as here, the private company was a munitions manufacturer which operated a plant owned by the United States. There as here, the company’s work was directed toward producing ammunition solely for the Government, a process whereby the end product as well as the raw materials were owned by the Government. There as here, the relevant contract between the Government and the company designated the company as an independent contractor and not a Government agent. There, as here, the contractor claimed to be shielded from a statute which affected and sought to regulate aspects of health and welfare. Finally, the very issue raised in Powell (whether the contractor’s employees were those of the contractor or of the Government) has, in this case, been unequivocally determined by the actions of the contracting parties when they agreed that all employees were those of Chamberlain and not of the Government. The Supreme Court in Powell reasoned: The contract .in the Powell case contained the following additional clause: “Article III-A-Status of Contractor. “It is expressly understood and agreed by the Contractor and the Government that in the performance of the work provided for in this contract, the Contractor is an independent contractor and in no wise an agent of the Government.” (Emphasis supplied.) Such provisions are persuasive that the petitioners [employees] should be recognized here as employees of the respective respondents [private companies], and the respondents as independent contractors. The respondents argue, however, that the context of the times, other provisions of the contracts and the practice under the contracts deprive these statements of their ordinary meaning. We find, on the contrary, that each of these sources supplies additional evidence that these provisions correctly state the true relationship between the petitioners and respondents. For example, we find in these contracts a reflection of the fundamental policy of the Government to refrain, as much as possible, from doing its own manufacturing and to use, as much as possible (in the production of munitions), the experience in mass production and the genius for organization that had made American industry outstanding in the world. The essence of this policy called for private, rather than public, operation of war production plants. ... It would have been simple for the Government to have ordered all of this production to be done under governmental operation as well as under governmental ownership. To do so, however, might have weakened our system of free enterprise. We relied upon that system as the foundation of the general industrial supremacy upon which ultimate victory might depend. In this light, the Government deliberately sought to insure private operation of its new munitions plants. In these great projects built for and owned by the Government, it was almost inevitable that the new equipment and materials would be supplied largely by the Government and that the products would be owned and used by the Government. It was essential that the Government supervise closely the expenditures made and the specifications and standards established by it. These incidents of the program did not, however, prevent the placing of managerial responsibility upon independent contractors. The relationship of employee and employer between the worker and the contractor appears not only in the express terminology that has been quoted. It appears in the substantial obligation of the respondent-contractors to train their working forces, make job assignments, fix salaries, meet payrolls, comply with state workmen’s compensation laws and Social Security requirements and “to do all things necessary or convenient in and about the operating and closing down of the Plant, . . . ” 339 U.S. at 505-07, 70 S.Ct. at 760-61 (footnotes omitted) (emphasis in original). Here as in Powell, the Government has deliberately opted for the “genius” of private enterprise in the operation of its Scranton Army Ammunition Plant. In so choosing, the Government enjoys the benefits that are derived from private operation, but by the same measure, it must also suffer any reciprocal burdens. One of those burdens is the responsibility of Chamberlain’s compliance with state pollution regulations. In sum we find no significant distinction between this case and Powell. Hence we are persuaded that Powell’s reasoning applies with equal force to the Pennsylvania Board’s attempts to regulate discharges of pollutants resulting from Chamberlain’s operations. Cf. United States v. Boyd, 378 U.S. 39, 44-48, 84 S.Ct. 1518,12 L.Ed.2d 713 (1964) (the use of Government-owned property by a federal contractor for profitable activities is a taxable activity, even if the tax is finally borne by the United States); United States v. City of Detroit, 355 U.S. 466, 469, 78 S.Ct. 474, 476, 2 L.Ed.2d 424 (1958) (“it is well settled that the Government’s constitutional immunity does not shield private parties with whom it does business from state taxes imposed on them merely because part or all of the financial burden of the tax eventually falls on the Government”); Penn Dairies, Inc. v. Pennsylvania Milk Control Commission, 318 U.S. 261, 269, 63 S.Ct. 617, 620, 87 L.Ed. 748 (1943) (independent federal contractor may be regulated, taxed and subject to license revocation by state even though such tax and regulation increases burden on federal government: “those who contract to furnish supplies or render services to the government are not [federal] agencies and do not perform governmental functions”); Alabama v. King & Boozer, 314 U.S. 1, 8-12, 62 S.Ct. 43, 86 L.Ed. 3 (1941) (state may levy sales tax on purchase of goods by contractor who buys them for use in performing “cost-plus” contract for the Government, even though title to materials vests in the United States upon inspection and acceptance, and even though Government reimburses contractor for tax paid). See also United States v. Georgia Public Service Commission, 371 U.S. 285, 83 S.Ct. 397, 9 L.Ed.2d 317 (1963); Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 59 S.Ct. 516, 517, 83 L.Ed. 784 (1939) (“the government does not become the conduit of immunity in suits against its agents or instrumentalities merely because they do its work”). Inasmuch as Congress has inclined toward restricting immunity from pollution control even for acknowledged federal agencies, we see no reason to broaden immunity as it relates to the private sector. The recent amendments to section 313 subject any “department, agency or instrumentality of the executive, legislative, and judicial branches” to “all” state and local regulations “notwithstanding any immunity” (albeit permitting removal of proceedings to the federal courts and limiting the payment of certain penalties). This amendment confirms our understanding that under the Act even “Federal facilities [must] meet all control requirements as if they were private citizens” in order “to provide national lead-orship in the control of water pollution.” If we were to thwart this national policy as well as evident congressional intent by acceding to the Government’s argument that independent contractors partake of an immunity as great as that of the Government itself, we would be denying the entire course of environmental pollution control, a fundamental concern of Congress and society. See also E. I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 138, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977); American Iron & Steel Institute v. EPA, 526 F.2d 1027 (3d Cir. 1975), modified, 560 F.2d 589 (3d Cir. 1977), cert. denied, 435 U.S. 914, 98 S.Ct. 1467, 55 L.Ed.2d 505 (1978). The order of the district court will be affirmed. . At the time relevant to the events which underlie this appeal, § 313 of the Act reads as follows: Federal facilities pollution control Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants shall comply with Federal, State, interstate, and local requirements respecting control and abatement of pollution to the same extent that any person is subject to such requirements, including the payment of reasonable service charges. The President may exempt any effluent source of any department, agency, or instrumentality in the executive branch from compliance with any such a requirement if he determines it to be in the paramount interest of the United States to do so; except that no exemption may be granted from the requirements of section 1316 or 1317 of this title. No such exemptions shall be granted due to lack of appropriation unless the President shall have specifically requested such appropriation as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation. Any exemption shall be for a period not in excess of one year, but additional exemptions may be granted for periods of not to exceed one year upon the President’s making a new determination. The President shall report each January to the Congress all exemptions from the requirements of this section granted during the preceding calendar year, together with his reason for granting such exemption. Pub.L.No.92-500, § 2, 86 Stat.,875 (1972) (prior to 1977 Amendments) (codified at 33 U.S.C.A. § 1323 (Supp.1977)) (current version at 33 U:S. C.A. § 1323 (Feb. 1978 Supp.), quoted in n.24 infra). See n.20 infra. . The parties to the district court proceeding agreed upon virtually all the facts relevant to that proceeding. Their stipulation took the form of 65 findings of fact and is reproduced in haec verba in the district court opinion. 431 F.Supp. at 749-53. . The parties stipulated and the district court thereupon found that “Chamberlain operates the Scranton Army Ammunition Plant under a facilities contract with the United States of America” (emphasis added). Id. at 749, Finding No. 4. . Contract No. DA-36-034-AMC-0163A, Exhibit “A”, fl 1 (covering June 13, 1963 through June 30, 1971) (District Court Docket # 79); accord, 431 F.Supp. at 754. . Contract No. DA-36-034-AMC-0163A, pt. I, U 3 (covering June 13, 1963 through June 30, 1971) (District Court Docket # 79). . 431 F.Supp. at 750, Finding No. 21. . Id., Finding No. 22. . Id., at 751, Finding No. 43. . Contract No. DA-36-034-AMC-0163A, art. VI, 1) 1 (covering June 13, 1963 through June 30, 1971) (District Court Docket # 79) provides that: The Contractor shall procure all necessary permits and licenses; obey and abide by all applicable laws, regulations and ordinances and other rules of the United States of Amer-ica, of the state, territory, or subdivision thereof wherein the work is done, or of any other duly constituted public authority. . Contract No. DAAA09-71-C-0257, at 47, art. IV-D, H 3 (effective July 1, 1971) (District Court Docket # 80) (emphasis added). . The original defendants in the State Board action were three: Robert E. Froehlke, the Secretary of the Army; Lt. Col. Daniel E. Duggan, the Commanding Officer of the facility; and Chamberlain. The complaint against the Secretary was dismissed by the Board for want of personal jurisdiction. App. 38. The complaint against Lt. Col. Duggan, while upheld by the Board, was withdrawn in the district court by stipulation of the parties. App. 39. Thus, Chamberlain is the sole party against whom the Board’s fine was levied. . Pa.Stat.Ann. tit. 35, §§ 691.1 et seq. (Purdon 1977). . 431 F.Supp. at 752, Finding No. 57. . The Board addressed the sovereign immunity issue as follows: Whether the action is so barred depends upon whether the individual Defendants can be said to have been violating the Clean Streams Law and the regulations promulgated thereunder in the course of their duties as federal officials and contractors, or whether in doing so they were acting outside the scope of their duties as federal officials. If the Defendant [sic] were acting entirely outside the scope of their authority, then the suit cannot be viewed as one against the United States. Board Op. at 6-7, reproduced at App. 22-23. The Board concluded that the defendants’ conduct was beyond the scope of their authority as agents of the United States, and to that extent jurisdiction to assess civil penalties was not barred by sovereign immunity (App. 28). . The United States also sought review of the Board’s decision through the prescribed channels: an appeal to the Pennsylvania Commonwealth Court. As represented to us at the oral argument of this case, that appeal to the Commonwealth Court was quashed as untimely filed. Thus no state proceeding is presently pending, and we are therefore not confronted with the question as to whether these federal civil proceedings should be dismissed under the comity doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny. For a general discussion of the applicability of Younger to civil proceedings, see Note, Younger Grows Older: Equitable Abstention in Civil Proceedings, 50 N.Y.U.L.Rev. 870 (1975). Nor are we here faced with a question of abstention under Railroad Comm’n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). See generally Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine, 122 U.Pa.L.Rev. 1071 (1974). Neither have the parties on appeal raised or argued the question of whether the now-final determination of the Pennsylvania Environmental Hearing Board precludes further inquiry into the matters raised on this appeal under principles of res judicata. See United States v. Utah Construction & Mining Co., 384 U.S. 394, 421-22, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966); Seatrain Lines, Inc. v. Pennsylvania R. Co., 207 F.2d 255 (3d Cir. 1953) (giving res judicata effect to a decision of the Interstate Commerce Commission). We therefore do not treat with this question. For discussions of the applicability of the doctrine of res judicata to administrative decisions, see Painters Dist. Council No. 38 v. Edgewood Contracting Co., 416 F.2d 1081 (5th Cir. 1969); 2 K. Davis, Administrative Law Treatise ch. 18 (1958 & Supp.1970) (the applicability of res judicata to administrative judgments may depend upon many factors, including inter alia the agency’s expertise in deciding the particular issue, the legislative intent concerning the allocation of decision-making, and the fullness and fairness of the agency litigation). . See n. 2 supra. . See n. 11 supra. . Contract DA-36-034 — AMC-0163A (District Court Docket # 79) covered the period from June 13, 1963 through June 30, 1971. Contract DAAA09-71-C-0257 (District Court Docket # 80) covers July 1, 1971 through at least the date of the district court decision. 431 F.Supp. at 749, Finding Nos. 5 & 6. . 339 U.S. 497, 70 S.Ct. 755, 94 L.Ed. 1017 (1950). In Powell the Supreme Court ruled that employees of an independent contractor who manufactured munitions for the federal government were not federal employees; nor was the contractor a federal agency. Hence the Court held that the employees were not excluded from coverage under the minimum wage and maximum hour provisions of the Fair Labor Standards Act. The district court recognized, as do we, that Powell presents a situation highly analogous to the instant case. See pp. 1278-1280 infra. The district court found further support for its position in Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 59 S.Ct. 516, 83 L.Ed. 784 (1939), and in two court of appeals cases which declined to extend immunity from tort liability to private munitions manufacturers who were “intimate[ly] connect[ed]” with the Federal Government. 431 F.Supp. at 754, citing Foster v. Day & Zimmermann, Inc., 502 F.2d 867 (8th Cir. 1974) and Whitaker v. Har-vell-Kilgore Corp., 418 F.2d 1010 (5th Cir. 1969). . It is unclear to us precisely what advantages would accrue to a federal “department, agency or instrumentality” under the unamended version of § 313, quoted in n. 1 supra. The statute provides that a federal entity must comply with pollution control and abatement “requirements” “to the same extent that any person is subject to such requirements.” This language would seem to erase any distinction between the treatment of federal and nonfederal entities. See S.Rep.No.414, 92d Cong., 1st Sess. 67, reprinted in [1972] U.S.Code Cong. & Admin. News, pp. 3668, 3733-34, quoted in n. 26 infra. Yet in two cases of now questionable vitality, the Supreme Court has rejected this interpretation, and ruled that any waiver of sovereign immunity must be clearly stated and strictly construed. See n. 22 infra. Presumably therefore, under the unamended statute and under traditional notions of sovereign immunity, a federal agent is (at the least) immune from an environmental enforcement proceeding unless brought in federal court, and could not be fined in any forum. See 431 F.Supp. at 754-55. Under the amended § 313, quoted in n. 24 infra, the status of such a federal entity is clear. It must conform to all “substantive or procedural” pollution requirements; it may be sued in any forum but retains a right of removal to federal court; and its immunity from fines is recognized. . See p. 1274 & nn. 4-5 supra. . Two recent Supreme Court decisions are also marginally relevant insofar as they rule that a waiver of sovereign immunity, and the resultant amenability of a federal agency to state regulation, will not be found absent “a clear expression or implication to that effect.” Hancock v. Train, 426 U.S. 167, 179, 96 S.Ct. 2006, 2012, 48 L.Ed.2d 555 (1976), superseded by statute, Pub.L.No.95-96, tit. I, § 116, 91 Stat. 711 (1977) codified as amended at 42 U.S.C.A. § 7418 (Nov. 1977 Supp.)), quoting United States v. Wittek, 337 U.S. 346, 359, 69 S.Ct. 1108, 93 L.Ed. 1406 (1949); accord, EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976), superseded by statute, Pub. L.No.95-217, § 60, 91 Stat. 1597 (1977) (codified as amended at 33 U.S.C.A. § 1323(a) (Feb. 1978 Supp.)). Yet whatever their vitality, Hancock and EPA do not treat with the issue of whether or when a private company becomes converted into a federal agency by virtue of contracting with the Government. Hancock and State Water Resources Control Bd. held only that federal agencies need not procure state air and water pollution control permits. Even those holdings, as indicated, have now been effectively overruled by statute. . See n.l supra & n.24 infra. . Section 313 as amended reads in relevant part: Federal facilities pollution control (a) Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants and each officer, agent, or employee thereof in the performance of his official duties, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity including the payment of reasonable services charges. The preceding sentence shall apply (A) to any requirement whether substantive or procedural (including any recordkeeping or reporting requirement, any requirement respecting permits and any other requirement, whatsoever), (B) to the exercise of any Federal, State, or local administrative authority, and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner. This subsection shall apply notwithstanding any immunity of such agencies, officers, agents, or employees under any law or rule of law. Nothing in this section shall be construed to prevent any department, agency, or instrumentality of the Federal Government, or any officer, agent, or employee thereof in the performance of his official duties, from removing to the appropriate Federal district court any proceeding to which the department, agency, or instrumentality or officer, agent, or employee thereof is subject pursuant to this section, and any such proceeding may be removed in accordance with section 1441 et seq. of Title 28. No officer, agent, or employee of the United States shall be personally liable for any civil penalty arising from the performance of his official duties, for which he is not otherwise liable, and the United States shall be liable only for those civil penalties arising under Federal law or imposed by a State or local court to enforce an order or the process of such court. The President may exempt any effluent source of any department, agency, or instrumentality in the executive branch from compliance with any such a requirement if he determines it to be in the paramount interest of the United States to do so; except that no exemption may be granted from the requirements of section 1316 or 1317 of this title. No such exemptions shall be granted due to lack of appropriation unless the President shall have specifically requested such appropriation as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation. Any exemptions shall be for a period not in excess of one year, but additional exemptions may be granted for periods of not to exceed one year upon the President’s making a new determination. The President shall report each January to the Congress all exemptions from the requirements of this section granted during the preceding calendar year, together with his reason for granting such exemption. In addition to any such exemption of a particular effluent source, the President may, if he determines it to be in the paramount interest of the United States to do so, issue regulations exempting from compliance with the requirements of this section any weaponry, equipment, aircraft, vessels, vehicles, or other classes or categories of property, and access to such property, which are owned or operated by the Armed Forces of the United States (including the Coast Guard) or by the National Guard of any State, and which are uniquely military in nature. The President shall reconsider the need for such regulations at three-year intervals. Pub.L.No.95-217, § 60, 91 Stat. 1597 (1977) (codified as amended at 33 U.S.C.A. § 1323(a) (Feb. 1978 Supp.)), superseding EPA v. California ex rel. Status Water Resources Control Board, 426 U.S. 200, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). Cf. Clean Water Act of 1977, Pub. L.No.95-217, 91 Stat. 1566 (codified in scattered sections of 33 U.S.C.A. ch. 26 (Feb. 1978 Supp.)); 46 U.S.L.W. 2324 (Dec. 20, 1977) (regional office of the EPA has recently issued environmental enforcement letters to seventeen major federal facilities said to be violating environmental standards, thereby instituting “the first formal action under a recently announced agency policy of enforcing the federal Clean Air and Water Pollution Control Acts against federal facilities”). . S.Rep.No.414, 92d Cong., 1 Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:

songer_respond1_8_2

A

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous". Your task is to determine which of the following categories best describes the litigant. Tom MALOUFF, Plaintiff in Error, v. UNITED STATES, Defendant in Error. Circuit Court of Appeals, Eighth Circuit January 25, 1929. No. 8129. T. J. Malouff, for plaintiff in error. George Stephan, U. S. Atty., and Charles E. Works, Asst. U. S. Atty., both of Denver, Colo. PER CURIAM. Writ of error dismissed, without costs to either party in this court, for failure to file brief, as provided in stipulation of parties. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous". Which of the following categories best describes the litigant? A. fiduciary, executor, or trustee B. other C. nature of the litigant not ascertained Answer:

songer_state

22

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". In re ROLLAND STORES CORPORATION. BERMAN v. HALE. No. 2853. Circuit Court of Appeals, First Circuit. Feb. 16, 1934. Harry T. Talty, of Boston, Mass. (Archibald Palmer, of New York City, on the brief), for appellant. Clifford H. Byrnes, of Boston, Mass., for appellee. Before WILSON and MORTON, Circuit Judges, and PETERS, District Judge. WILSON, Circuit Judge. The appellant was the treasurer of the Rolland Stores Corporation, which was duly adjudged a bankrupt in the District Court of Massachusetts. As such treasurer, he was ordered by the District Court on the report of a referee to turn over to the tras-tee certain merchandise as property of the bankrupt, which it was found he had wrongfully withheld from the trustee, or the value thereof, amounting to $12,949.29.. Prom this order the appellant filed a petition for appeal which, was allowed in the District Court, and also a petition to this court for leave to appeal under section 24b of the Bankruptcy Act (11 USCA § 47 (b). It is conceded that the bankrupt is only entitled to proceed under section 24b. Both parties being ready to proceed to a hearing on the merits in case his petition for leave to appeal was allowed, the case was fully heard at the January session of this court. The petition for leave to appeal is allowed and the case will be disposed of on the merits. The trustee filed a petition in the District Court alleging that Prank E. Berman, at various times prior to December 3, 1931, wrongfully received property of the bankrupt which he was withholding without col- or of title or adverse claim, and refused to surrender to the trustee in bankruptcy, to wit: (1) Approximately $5,000 recorded on. the hooks of the company as loans receivable, which consisted in fact of money misappropriated by Berman. (2) Trade fixtures of the value of $250. (3) Merchandise or the proceeds from the sale thereof of approximately $35,000. (4) Money received from the sale of merchandise, but not deposited to the credit of the corporation amounting to $4,454.84. (5) Certain checks, records, and books of the corporation. (6) The record books of the corporation. The petition was referred to a referee and, after protracted hearings, the referee found and ordered that Frank E. Berman, as treasurer of the bankrupt corporation, either turn over to the trustee merchandise or the value thereof, to wit, $12,949.29) and certain canceled cheeks,' books, and records of the bankrupt, which are more particularly described in the referee’s order. The order of the referee was affirmed by the District Court. The appellant filed numerous assignments of error, but all were directed to the contention that the evidence before the referee did not warrant a finding that the appellant had in his possession any merchandise belonging to the bankrupt and was wrongfully withholding it, or -that he had any of the books, records, or cheeks described in- the trustee’s petition and in the order of the referee; and,- further, that the order was not sufficiently definite to compel a compliance therewith. From examination of the referee’s report and of the stenographic copy of the evidence before the referee, which by stipulation was filed in this court, but not made a part of the printed record, we think the referee was warranted in his findings. While the trustee claimed, according to an inventory taken in July, 1931, that there was a much larger shortage than the referee found, the referee finally adopted as a basis for his findings the inventory taken by the appellant himself on November 9,1931, about three weeks prior to the filing of the petition in bankruptcy. This inventory showed merchandise on hand of $23,208.25. The books of the corporation showed purchases between November 9, 1931; and December 3, 1931, to the amount of $5,990, or a total amount of merchandise to be accounted for of $29,198.25. Upon the testimony before the referee, he found that the total sales during the period from November 9 to December 3, 1931, were $9,132.21, and that the value of the merchandise on hand December 3, 1931, at cost prices was $7,116.75, or a total of merchandise accounted for of $16,248.96, which showed, as the referee found, an unexplained shortage of merchandise of $12,-949.29. There was more or less conflicting evidence before the referee and, according to the testimony of an expert accountant, much irregularity appeared in the books of account. It appeared that the recorded receipts of money according to the books exceeded , the, actual bank deposits by an amount of $4,454.84, which was the basis of the fourth charge in the trustee’s petition. There was testimony tending to show that this sum had been, in part at least, disbursed in payment of certain creditors. The referee, however, found that the evidence was not sufficient to show that the sum of $4,454.84 was diverted by Berman from the business. The expert accountant who examined the books after bankruptcy found that the books did not balance, and in order to make up a trial balance he was obliged to make a charge on the debit side of the cash account of $4,042.95. It is not clear from the testimony whether these two sums of approximately $4,000 had any connection with each other, or whether each was the result of irregularities in keeping the books of account. It is contended, however, that the necessary additional cash entry, in order to balance the accounts, would indicate that there had been sales of merchandise in addition to the amount found by the referee, and that the total sales should be $13,175.16 instead of the sum of $9,132.21, on which the referee based his order. The expert accountant testified that the two discrepancies might be accounted for as the result (1) of additional sales of merchandise; or (2) cash receipts from sales of merchandise prior to November 9, 1931. The referee, however, found that since it required an entry of $4,042.95 in order to balance the books of the corporation, it tended to show a further “unexplained shortage in merchandise” of about $4,000 rather than additional sales, but it was not clear from the testimony that this merchandise was taken and concealed by Berman. This finding evidently accounts for his general finding upon which the order was based that there was an unexplained shortage of $12,949.29. We think the referee from all the evidence was warranted in finding that there was an unexplained shortage of merchandise for whieh the appellant was accountable, totaling $12,949.29, and that the checks, records, and books of account described in his order were wrongfully withheld from the trustee by the appellant; and that the .evidence before him was sufficient to warrant a so-called “turn-over order.” Oriel v. Russell, 278 U. S. 358, 49 S. Ct. 173, 73 L. Ed. 419. It is further urged by the appellant that the. order is not sufficiently definite to enable him to comply therewith, but we think the following cases clearly support it: Kirsner v. Taliaferro (C. C. A.) 202 F. 51; Hirsch v. Schilling (C. C. A.) 28 F.(2d) 171; In re Cohan (C. C. A.) 41 F.(2d) 632; Prela v. Hubshman, 278 U. S. 358, 49 S. Ct. 173, 73 L. Ed. 419; Epstein v. Steinfeld (C. C. A.) 210 F. 236; Sheinman v. Chalmers (C. C. A.) 33 F.(2d) 902; and it clearly can be sustained under the ease of Cooper v. Dasher, 290 U. S. 106, 54 S. Ct. 6, 78 L. Ed. -, decided by the Supreme Court on November 6, 1933. The order of the District Court is affirmed with costs. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:

sc_caseorigin

057

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. RICCI v. VILLAGE OF ARLINGTON HEIGHTS No. 97-501. Argued April 21, 1998 Decided May 4, 1998 Kenneth N. Flaxman argued the cause and filed briefs for petitioner. David A. Strauss argued the cause for respondent. With him on the brief was Jeffrey Edward Kehl. Patricia A. Millett argued the cause for the United States as amicus curiae urging affirmance. With her on the brief were Solicitor General Waxman, Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreében, and William C. Brown. Briefs of amid, curiae urging reversal were filed for the American Civil Liberties Union et al. by Susan N. Herman, Steven B. Shapiro, Harvey Grossman, and Stephen J. Sehulhofer; for Americans for Effective Law Enforcement, Inc., by Wayne W. Schmidt, James P. Manak, and Bernard J. Farber; and for the Institute for Justice by William H. Mellor, Clint Bolick, and Scott G. Bullock. Bichard Buda and James I. Crowley filed a brief for the National League of Cities et al. as amici curiae urging affirmance. William J. Mertens and Barbara Bergman filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae. Per Curiam. The writ of certiorari is dismissed as improvidently granted. 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_r_fed

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Gene R. AUSTIN, Appellant, v. UNITED STATES of America, Appellee. No. 12325. United States Court of Appeals Sixth Circuit. June 10, 1955 Irving Harris, Cincinnati, Ohio, for appellant. John H. Reddy, Chattanooga, Tenn. and James M. Meek, Knoxville, Tenn., for appellee. Before MARTIN, MILLER and STEWART, Circuit Judges. PER CURIAM. On this appeal from an order of the district court denying appellant’s motion to vacate sentence, his court-appointed attorney, both in oral argument and in brief, has ably presented the contention that appellant was erroneously deprived of his rights in being permitted to defend himself without the assistance of counsel, even though he himself had requested such privilege; that defendant was erroneously convicted of violation of the Dyer Act, 18 U.S.C.A. §§ 10-2311-2313, where the only evidence of transportation consisted of proof of the sale of the stolen vehicle; that defendant should have been permitted to be present in person when his motion to set aside the judgment of conviction and sentence as to him was heard by the district court; and that conviction for the transporting in interstate commerce of a stolen automobile and the sale of the automobile knowing it to have been stolen do not permit the imposition of consecutive sentences of five years each. None of these propositions, though well argued, is in our opinion sound. See York v. United States, 6 Cir., 299 F. 778; United States v. Spradley, D.C., 65 F. Supp. 136, opinion by District Judge Swinford, affirmed 6 Cir., 162 F.2d 203; Crawford v. United States, 6 Cir., 214 F.2d 313; to the effect that the fact that both charges relate to and grow out of one. transaction does not make a single offense where two are defined by statute. It is well established that it is unnecessary that a defendant be present at the hearing of his motion to set aside a judgment of conviction and sentence, where no issue of fact is presented for consideration. United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232. Here, we are confronted with the issue of our right to review a jury verdict determining a fact issue; and it is thoroughly established that a motion to vacate sentence is not to be employed as a substitute for appeal. Goss v. United States, 6 Cir., 179 F.2d 706. The judgment of the district court is affirmed;- and it is so ordered. 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_caseorigin

081

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. NEVADA et al. v. HICKS et al. No. 99-1994. Argued March 21, 2001 Decided June 25, 2001 Scaua, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Sou-ter, J., filed a concurring opinion, in which Kennedy and Thomas, JJ., joined, post, p. 375. Ginsburg, J., filed a concurring opinion, post, p. 386. O’Connor, J., filed an opinion concurring in part and concurring in the judgment, in which Stevens and Breyer, JJ., joined, post, p. 387. Stevens, J., filed an opinion concurring in the judgment, in which Breyer, J., joined, post, p. 401. C. Wayne Howie, Senior Deputy Attorney General of Nevada, argued the cause for petitioners. With him on the briefs were Frankie Sue Del Papa, Attorney General, Paul G. Taggart, Deputy Attorney General, and Jeffrey S. Sutton. S. James Anaya argued the cause for respondents and filed a brief for respondent Hicks. Kim Jerome Gottschalk and Melody McCoy filed a brief for respondents Tribal Court in and for the Fallon Paiute-Shoshone Tribes et al. Barbara McDowell argued the cause for the United States as amicus curiae urging affirmance. With her on the brief were former Solicitor General Waxman, Assistant Attorney General Schiffer, Deputy Solicitor General Kneedler, David C. Shilton, and. William, B. Lazarus. A brief of amici curias urging reversal was filed for the State of Montana et al. by Joseph P. Mazurek, Attorney General of Montana, Clay R. Smith, Solicitor. and Harley R. Harris, Assistant Attorney General, joined by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Janet Napolitana of Arizona, Richard Blumenthal of Connecticut, Robert A Butterworth of Florida, Carla J. Stovall of Kansas, Jennifer M. Granholm of Michigan, Mike Moore of Mississippi, Heidi Heitkamp of North Dakota, W. A Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Sheldon Whitehouse of Rhode Island, Charles M. Con-don of South Carolina, Mark Barnett of South Dakota, John Cornyn of Texas, Jan Graham of Utah, James E. Doyle of Wisconsin, and Gay Wood-house of Wyoming. Briefs of amici curiae urging affirmance were filed for the Coalition for Local Sovereignty by Kenneth B. Clark; for the Confederated Tribes of the Colville Reservation et al. by William R. Perry; for the Pyramid Lake Paiute Tribe of Nevada et al. by John Fredericks III; and for the Thlopthlocco Tribal Town et al. by D. Michael McBride III and Steven K. Balman. Justice Scalia delivered the opinion of the Court. This case presents the question whether a tribal court may assert jurisdiction over civil claims against state officials who entered tribal land to execute a search warrant against a tribe member suspected of having violated state law outside the reservation. I Respondent Hicks is one of about 900 members of the Fallon Paiute-Shoshone Tribes of western Nevada. He resides on the Tribes’ reservation of approximately 8,000 acres, established by federal statute in 1908, ch. 53, 35 Stat. 85. In 1990 Hicks came under suspicion of having killed, off the reservation, a California bighorn sheep, a gross misdemeanor under Nevada law, see Nev. Rev. Stat. §501.376 (1999). A state game warden obtained from state court a search warrant “SUBJECT TO OBTAINING APPROVAL FROM THE FALLON TRIBAL COURT IN AND FOR THE FALLON PAIUTE-SHOSHONE TRIBES.” According to the issuing judge, this tribal-court authorization was necessary because “[tjhis Court has no jurisdiction on the Fallon Paiute-Shoshone Indian Reservation.” App. G to Pet. for Cert. 1. A search warrant was obtained from the tribal court, and the warden, accompanied by a tribal police officer, searched respondent’s yard, uncovering only the head of a Rocky Mountain bighorn, a different (and unprotected) species of sheep. Approximately one year later, a tribal police officer reported to the warden that he had observed two mounted bighorn sheep heads in respondent’s home. The warden again obtained a search warrant from state court; though this warrant did not explicitly require permission from the Tribes, see App. F to Pet. for Cert. 2, a tribal-court warrant was nonetheless secured, and respondent’s home was again (unsuccessfully) searched by three wardens and additional tribal officers. Respondent, claiming that his sheep heads had been damaged, and that the second search exceeded the bounds of the warrant, brought suit against the Tribal Judge, the tribal officers, the state wardens in their individual and official capacities, and the State of Nevada in the Tribal Court in and for the Fallon Paiute-Shoshone Tribes. (His claims against all defendants except the state wardens and the State of Nevada were dismissed by directed verdict and are not at issue here.) Respondent’s causes of action included trespass to land and chattels, abuse of process, and violation of civil rights — specifically, denial of equal protection, denial of due process, and unreasonable search and seizure, each remediable under Rev. Stat. § 1979, 42 U. S. C. § 1983. See App. 8-21, 25-29. Respondent later voluntarily dismissed his case against the State and against the state officials in their official capacities, leaving only his suit against those officials in their individual capacities. See id., at 32-35. The Tribal Court held that it had jurisdiction over the claims, a holding affirmed by the Tribal Appeals Court. The state officials and Nevada then filed an action in Federal District Court seeking a declaratory judgment that the Tribal Court lacked jurisdiction. The District Court granted summary judgment to respondent on the issue of jurisdiction, and also held that the state officials would have to exhaust any claims of qualified immunity in the tribal court. The Ninth Circuit affirmed, concluding that the fact that respondent’s home is located on tribe-owned land within the reservation is sufficient to support tribal jurisdiction over civil claims against nonmembers arising from their activities on that land. 196 F. 3d 1020 (1999). We granted certiorari, 531 U. S. 923 (2000). II In this case, which involves claims brought under both tribal and federal law, it is necessary to determine, as to the former, whether the Tribal Court in and for the Fallon Paiute-Shoshone Tribes has jurisdiction to adjudicate the alleged tortious conduct of state wardens executing a search warrant for evidence of an off-reservation crime; and, as to the latter, whether the Tribal Court has jurisdiction over claims brought under 42 U. S. C. § 1983. We address the former question first. A The principle of Indian law central to this aspect of the case is our holding in Stmte v. A-l Contractors, 520 U. S. 438, 453 (1997): “As to nonmembers ... a tribe’s adjudicative jurisdiction does not exceed its legislative jurisdiction ... That formulation leaves open the question whether a tribe’s adjudicative jurisdiction over nonmember defendants equals its legislative jurisdiction. We will not have to answer that open question if we determine that the Tribes in any event lack legislative jurisdiction in this case. We first inquire, therefore, whether the Fallon Paiute-Shoshone Tribes— either as an exercise of their inherent sovereignty, or under grant of federal authority — can regulate state wardens executing a search warrant for evidence of an off-reservation crime. Indian tribes’ regulatory authority over nonmembers is governed by the principles set forth in Montana v. United States, 450 U. S. 544 (1981), which we have called the “path-marking case” on the subject, Strate, supra, at 445. In deciding whether the Crow Tribe could regulate hunting and fishing by nonmembers on land held in fee simple by nonmembers, Montana observed that, under our decision in Oliphant v. Suquamisk Tribe, 435 U. S. 191 (1978), tribes lack criminal jurisdiction over nonmembers. Although, it continued, “Oliphant only determined inherent tribal authority in criminal matters, the principles on which it relied support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” 450 U. S., at 565 (footnote omitted). Where nonmembers are concerned, the “exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so, cannot survive without express congressional delegation.” Id., at 564 (emphasis added). . Both Montana and Strate rejected tribal authority to regulate nonmembers’ activities on land over which the tribe could not “assert a landowner’s right to occupy and exclude,” Strate, supra, at 456; Montana, supra, at 557, 564. Respondents and the United States argue that since Hicks’s home and yard are on tribe-owned land within the reservation, the Tribe may make its exercise of regulatory authority over nonmembers a condition of nonmembers’ entry. Not necessarily. While it is certainly true that the non-Indian ownership status of the land was central to the analysis in both Montana and Strate, the reason that was so was not that Indian ownership suspends the “general proposition” derived from Oliphant that “the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe” except to the extent “necessary to protect tribal self-government or to control internal relations.” 450 U. S., at 564-565. Oliphant itself drew no distinctions based on the status of land. And Montana, after announcing the general rule of no jurisdiction over nonmembers, cautioned that “[t]o be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands,” 450 U. S., at 565 — clearly implying that the general rule of Montana applies to both Indian and non-Indian land. The ownership status of land, in other words, is only one factor to consider in determining whether regulation of the activities of nonmembers is “necessary to protect tribal self-government or to control internal relations.” It may sometimes be a dispositive factor. Hitherto, the absence of tribal ownership has been virtually conclusive of the absence of tribal civil jurisdiction; with one minor exception, we have never upheld under Montana the extension of tribal civil authority over nonmembers on non-Indian land. Compare, e. g., Merrion v. Jicarilla Apache Tribe, 455 U. S. 130, 137, 142 (1982) (tribe has taxing authority over tribal lands leased by nonmembers), with Atkinson Trading Co. v. Shirley, 532 U. S. 645, 659 (2001) (tribe has no taxing authority over nonmembers’ activities on land held by nonmembers in fee); but see Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408, 443-444, 458-459 (1989) (opinions of Stevens, J., and Blackmun, J.) (tribe can impose zoning regulation on that 3.1% of land within reservation area closed to public entry that was not owned by the tribe). But the existence of tribal ownership is not alone enough to support regulatory jurisdiction over nonmembers. We proceed to consider, successively, the following questions: whether regulatory jurisdiction over state officers in the present context is “necessary to protect tribal self-government or to control internal relations,” and, if not, whether such regulatory jurisdiction has been congressionally conferred. B In Strate, we explained that what is necessary to protect tribal self-government and control internal relations can be understood by looking at the examples of tribal power to which Montana referred: tribes have authority “[to punish tribal offenders,] to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members,” 520.U. S., at 459 (brackets in original), quoting Montana, supra, at 564. These examples show, we said, that Indians have “ ‘the right... to make their own laws and be ruled by them,’ ” 520 U. S., at 459, quoting Williams v. Lee, 358 U. S. 217, 220 (1959). See also Fisher v. District Court of Sixteenth Judicial Dist. of Mont., 424 U. S. 382, 386 (1976) (per curiam) (“In litigation between Indians and non-Indians arising out of conduct on an Indian reservation, resolution of conflicts between the jurisdiction of state and tribal courts has depended, absent a governing Act of Congress, on whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them” (internal quotation marks and citation omitted)). Tribal assertion of regulatory authority over nonmembers must be connected to that right of the Indians to make their own laws and be governed by them. See Merrion, supra, at 137, 142 (“The power to tax is an essential attribute of Indian sovereignty because it is a necessary instrument of self-government,” at least as to “tribal lands” on which the tribe “has . . . authority over a nonmember”). Our cases make clear that the Indians’ right to make their own laws and be governed by them does not exclude all state regulatory authority on the reservation. State sovereignty does not end at a reservation’s border. Though tribes are often referred to as “sovereign” entities, it was “long ago” that “the Court departed from Chief Justice Marshall’s view that ‘the laws of [a State] can have no force’ within reservation boundaries. Worcester v. Georgia, 6 Pet. 515, 561 (1832),” White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 141 (1980). “Ordinarily,” it is now clear, “an Indian reservation is considered part of the territory of the State.” U. S. Dept, of Interior, Federal Indian Law 510, and n. 1 (1958), citing Utah & Northern R. Co. v. Fisher, 116 U. S. 28 (1885); see also Organized Village of Kake v. Egan, 369 U. S. 60, 72 (1962). That is not to say that States may exert the same degree of regulatory authority within a reservation as they do without. To the contrary, the principle that Indians have the right to make their own laws and be governed by them requires “an accommodation between the interests of the Tribes and the Federal Government, on the one hand, and those of the State, on the other.” Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134,156 (1980); see also id., at 181 (opinion of Rehnquist, J.). “When on-reservation conduct involving only Indians is at issue, state law is generally inapplicable, for the State’s regulatory interest is likely to be minimal and the federal interest in encouraging tribal self-government is at its strongest.” Bracker, supra, at 144. When, however, state interests outside the reservation are implicated, States may regulate the activities even of tribe members on tribal land, as exemplified by our decision in Confederated Tribes. In that case, Indians were selling cigarettes on their reservation to nonmembers from off reservation, without collecting the state cigarette tax. We held that the State could require the Tribes to collect the tax from nonmembers, and could “impose at least ‘minimal’ burdens on the Indian retailer to aid in enforcing and collecting the tax,” 447 U. S., at 151. It is also well established in our precedent that States have criminal jurisdiction over reservation Indians for crimes committed (as was the alleged poaching in this case) off the reservation. See Mescalero Apache Tribe v. Jones, 411 U. S. 145, 148-149 (1973). While it is not entirely clear from our precedent whether the last mentioned authority entails the corollary right to enter a reservation (including Indian-fee lands) for enforcement purposes, several of our opinions point in that direction. In Confederated Tribes, we explicitly reserved the question whether state officials could seize cigarettes held for sale to nonmembers in order to recover the taxes due. See 447 U. S., at 162. In Utah & Northern R. Co., however, we observed that “[i]t has . . . been held that process of [state] courts may run into an Indian reservation of this kind, where the subject-matter or controversy is otherwise within their cognizance,” 116 U. S., at 31. Shortly thereafter, we considered, in United States v. Kagama, 118 U. S. 375 (1886), whether Congress could enact a law giving federal courts jurisdiction over various common-law, violent crimes committed by Indians on a reservation within a State. We expressed skepticism that the Indian Commerce Clause could justify this assertion of authority in derogation of state jurisdiction, but ultimately accepted the argument that the law “does not interfere with the process of the State courts within the reservation, nor with the operation of State laws upon white people found there. Its effect is confined to the acts of an Indian of some tribe, of a criminal character, committed within the limits of the reservation. “It seems to us that this is within the competency of Congress.” Id., at 383. The Court’s references to “process” in Utah & Northern R. Co. and Kagama, and the Court’s concern in Kagama over possible federal encroachment on state prerogatives, suggest state authority to issue search warrants in cases such as the one before us. (“Process” is defined as “any means used by a court to acquire or exercise its jurisdiction over a person or over specific property,” Black’s Law Dictionary 1084 (5th ed. 1979), and is equated in criminal cases with a warrant, id., at 1085.) It is noteworthy that Kagama recognized the right of state laws to “operat[e] . . . upon [non-Indians] found” within a reservation, but did not similarly limit to non-Indians or the property of non-Indians the scope of the process of state courts. This makes perfect sense, since, as we explained in the context of federal enclaves, the reservation of state authority to serve process is necessary to “prevent [such areas] from becoming an asylum for fugitives from justice.” Fort Leavenworth R. Co. v. Lowe, 114 U. S. 525, 533 (1885). We conclude today, in accordance with these prior statements, that tribal authority to regulate state officers in executing process related to the violation, off reservation, of state laws is not essential to tribal self-government or internal relations — to “the right to make laws and be ruled by them.” The State’s interest in execution of process is considerable, and even when it relates to Indian-fee lands it no more impairs the tribe’s self-government than federal enforcement of federal law impairs state government. Respondents argue that, even conceding the State’s general interest in enforcing its off-reservation poaching law on the reservation, Nevada’s interest in this, suit is minimal, because it is a suit against state officials in their individual capacities. We think, however, that the distinction between individual and official capacity suits is irrelevant. To paraphrase our opinion in Tennessee v. Davis, 100 U. S. 257, 263 (1880), which upheld a federal statute permitting federal officers to remove to federal court state criminal proceedings brought against them for their official actions, a State “can act only through its officers and agents,” and if a tribe can “affix penalties to acts done under the immediate direction of the [state] government, and in obedience to its laws,” “the operations of the [state] government may at any time be arrested at the will of the [tribe].” Cf. Anderson v. Creighton, 488 U. S. 635, 638 (1987) (“[Permitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties”). C The States’ inherent jurisdiction on reservations can of course be stripped by Congress, see Draper v. United States, 164 U. S. 240, 242-243 (1896). But with regard to the jurisdiction at issue here that has not occurred. The Government’s assertion that “[a]s a general matter, although state officials have jurisdiction to investigate and prosecute crimes on a reservation that exclusively involve non-Indians, . . . they do not have jurisdiction with respect to crimes involving Indian perpetrators or Indian victims,” Brief for United States as Amicus Curiae 12-13, n. 7, is misleading. The statutes upon which it relies, see id., at 18-19, show that the last half of the statement, like the first, is limited to “crimes on a reservation.” Sections 1152 and 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_initiate

F

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. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RALPH PRINTING AND LITHOGRAPHING COMPANY, Respondent. No. 18570. United States Court of Appeals Eighth Circuit. July 6, 1967. Nancy M. Sherman, Atty., N.L.R.B., for petitioner and Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel and Anthony J. Oba-dal, Atty. for N.L.R.B., were on the brief. John E. Tate of Nelson, Harding, Ack-lie, Leonard & Tate, Omaha, Neb., for respondent and filed brief. Before MATTHES, BLACKMUN and MEHAFFY, Circuit Judges. MATTHES, Circuit Judge. This case is before the Court upon the petition of the National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act, as amended, 29 U.S.C. §§ 151-168 (1959), for enforcement of its order issued June 6, 1966 against Respondent Ralph Printing and Lithographing Company. The Board’s decision and order are reported at 158 N.L.R.B. No. 128. No jurisdictional issue is presented. We modify the order as hereinafter set out and grant enforcement of it as so modified. Respondent, a Nebraska corporation, is engaged in the business of commercial printing and lithographing in Omaha, Nebraska. During September, 1964 the Lithographers and Photoengravers International Union, AFL-CIO, Local 38 L, began a union organizational drive among Respondent’s employees. On the evening of September 18, 1964 the Union representative, Melford L. Galbraith, held a meeting with the employees and distributed authorization cards to them. Galbraith explained that in signing the authorization cards the employees were authorizing the Union to act as their collective bargaining representative, that the cards would enable him to demand recognition, and that if recognition were granted the Union would proceed to negotiate with Respondent. Nineteen authorization cards were signed by the employees on September 18th. During the next ten days Galbraith obtained a total of 24 authorization cards in a unit later found to comprise a total of 26 employees. Armed with his authorization cards Galbraith conferred with Roy and John Ralph, Respondent’s President and Vice-President, and requested recognition for the Union. He asserted that his Union held signed authorization cards from a substantial majority of Respondent’s employees, numbering over 90%. Roy Ralph refused the request for recognition and expressed a desire to proceed only through a Board election. Galbraith offered to submit the authorization cards to a mutually acceptable third party to determine the Union’s majority status, but Ralph declined the offer and reaffirmed his intention to await the outcome of a Board election. Galbraith informed the Ralphs that his Union represented all of Respondent’s production and maintenance employees, including pressmen. Mr. John Ralph denied the purport of this conversation and stated that Galbraith did not specify the composition of the unit he was seeking to represent, and thus left him in doubt as to whether office-clericals, supervisors and certain other employees were included in the unit sought to be represented. On the same day, after the conference, Galbraith' filed a petition with the National Labor Relations Board requesting a representation election among Respondent’s employees. On October 29th, a pre-election hearing was held and on November 20th, the Regional Director ordered an election to be conducted on January 7, 1965. Subsequently on December 24, 1964 Respondent’s employees, whose normal quitting time was 4:00 P.M., worked through their half-hour lunch period and were released at 1:00 P.M. in the afternoon without loss of pay. Similarly on December 31, 1964 the employees were released at 3:00 P.M., one hour early. Several employees disclosed that Respondent had no set policy on the amount of time off granted on a day preceding a holiday, but that such time off fluctuated with the amount of work orders that had to be filled. The past practice of Respondent, however, as revealed by the testimony of employees Ray Angus and Virgil DeMars, was usually to grant approximately an hour off before Christmas, and little or no time off prior to New Years. On January 4, 1965, three days before the scheduled election, Supervisor Donald Higgins approached Ray Angus, a lino-type operator employed by Respondent for ten years, at his work station and inquired whether Angus intended to attend the union meeting that night. Upon being advised that Angus would attend, Higgins purportedly asked Angus so advise him as to who was present at the meeting. Angus further testified that Higgins requested him to ask certain questions at the meeting relating to the Union’s contract with another printing company. Angus further asserted that on January 6th Higgins thanked him for asking several questions at the meeting. Higgins categorically denied having any such conversation with Angus. The following morning, the Secretary-Treasurer of the Company, Sylvia Fitch Middleton, showed Angus a pink scratch pad on which were written the names of twelve employees who had attended the union meeting the previous evening. Angus testified that Miss Fitch asked him to verify the correctness of the list, and he replied that it was correct. Miss Fitch also inquired of Angus whether an employee, John Dormer, or any of the “new help” attended the union meeting. Subsequently, Angus told three of his fellow employees that the Company had a list of those who had attended the meeting. Miss Fitch repudiated the existence of any such list and denied questioning any employee with reference to his or his coworker’s union activities. On January 7th the Board conducted an election among Respondent’s eligible maintenance and production employees. The Union lost by a narrow margin of 13 to 12. Angus’ undisputed testimony, corroborated in substance by Virgil De-Mars, was to the effect that immediately following the balloting, Vice-President John Ralph happily announced the results of the election, and thanked those employees who had confidence in voting for the Company. Ralph asserted there would be no changes within thirty days and that it would take that long before there would be any improvements. On January 12th, the Union filed timely objections to conduct affecting results of the election. During the pendency of these objections Respondent’s employees received a notice on February 12th that they would receive a ten cent per hour increase in pay effective February 19th. On the above facts the Board found that Respondent violated Section 8(a) (1) of the Act by coercively interrogating employee Angus about his union activities, by requesting him to report on the union activities of his fellow employees, and by creating the impression of surveillance among the employees. The Board also found that Respondent violated Section 8(a) (1) by granting its employees benefits prior to the election and by promising and granting them benefits immediately thereafter, during the period in which objections to the election could be filed. The Board further concluded that Respondent violated Section 8(a) (5) and (1) by refusing to bargain with the Union on or after October 5th, at which time the Union represented a majority of its employees. The Board ordered Respondent to cease and desist from the unfair labor practices found, and, upon request, to recognize and bargain collectively with the Union. SECTION 8(a) (1) — INTERROGATION AND IMPRESSION OF SURVEILLANCE. Contrary to Petitioner’s intimation, the record in this case does not disclose a background of open hostility to the Union by the Respondent. These alleged Section 8(a) (1) violations are based almost exclusively on the testimony of a single employee, Ray Angus, whose testimony was controverted throughout by several of Respondent’s witnesses. We are mindful, however, that questions of credibility are primarily a matter for Board determinations and not for this Court. N. L. R. B. v. Comfort, Inc., 365 F.2d 867, 871 (8th Cir. 1966); N. L. R. B. v. Morrison Cafeteria Co. of Little Rock, Inc., 311 F.2d 534, 538 (8th Cir. 1963). Accepting Angus’ version of the situation, on a single occasion one of Respondent’s supervisors, Donald M. Higgins, inquired of Angus’ union activities, and asked him to report to the Company on the union activities of his co-workers. An employer’s interrogation of its employees, however, is not unlawful per se, unless conducted with such anti union animus as to be coercive in nature. Higgins’ interrogation of Angus, not in itself threatening or coercive, would not violate Section 8(a) (1) unless it were conducted against a background of employer hostility and discrimination towards unionization, such as would induce in its employees a fear of reprisal for lawfully pursuing their union activities. Banner Biscuit Company v. N. L. R. B., 356 F.2d 765, 769-70 (8th Cir. 1966) ; N. L. R. B. v. Ritchie Manufacturing Company, 354 F.2d 90, 99 (8th Cir. 1965). Cf. N. L. R. B. v. Morris Novelty Co., Inc., 378 F.2d 1000 (8th Cir. June 19, 1967). The circumstances surrounding Higgins’ interrogation negative any inference of coercion. The questioning of Angus was not part of any employer plan of systematic intimidation of its employees, but at best was isolated and casual in nature. The questioning, moreover, was totally devoid of any coercive statements, which are usually characteristic of an unlawful interrogation. This isolated form of interrogation, we believe, was insufficient to violate the rights of Respondent’s employees under Section 8(a) (1). In summary, we believe that the Board’s finding of a coercive interrogation is not supported by substantial evidence in the record. We are not prepared, however, to accord similar protection for the more aggravated demeanor of Miss Fitch. Her conduct, we feel, inhibited the employees’ pursuit of their union activities. Miss Fitch attempted to verify on the Company’s behalf the names of those employees who had attended a previous union meeting. The evidence relating to this charge fully supports the finding that Angus and the three other employees to whom he disclosed the existence of the list of Union adherents were left with the clear impression that Respondent was keeping its employees’ union activities under surveillance. An impression of surveillance might well instill in the employee a fear of reprisal from the employer. Such conduct is violative of Section 8(a) (1) as it could inhibit the right of employees to pursue their union activities untrammeled by the fear of possible employer economic coercion or other forms of retaliation. See, e. g., N. L. R. B. v. Community Motor Bus Company, 335 F.2d 120, 122 (4th Cir. 1964); Hendrix Manufacturing Company v. N. L. R. B., 321 F.2d 100, 104-105 (5th Cir. 1963); N. L. R. B. v. United Wire and Supply Corporation, 312 F.2d 11, 13 (1st Cir. 1962); N. L. R. B. v. Des Moines Foods, Inc., 296 F.2d 285, 287 (8th Cir. 1961); N. L. R. B. v. Hoffman-Taff, Inc., 276 F.2d 193, 198 (8th Cir. 1960). SECTION 8(a) (1) — PRE-ELECTION AND POST-ELECTION BENEFITS. The Board found that Respondent’s conferral of economic benefits during the election period in the form of increased holiday time on December 24, 1964 and December 31, 1964 violated Section 8(a) (1) of the Act. There is no doubt that the granting or announcement of economic benefits during a union organizational campaign or during the pendency of a representation election constitutes unlawful interference with the employees’ protected right to organize. National Labor Relations Board v. Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964). We are convinced, however, that the benefits conferred by Respondent here fall far short of the economic benefits condemned in Exchange Parts Co., supra. In the latter case, one of the economic benefits found to be a violation of the Act was an extra “floating holiday,” which would be taken on the employees’ respective birthdays. In questioning the propriety of such benefits, the Court stated: “We think the Court of Appeals was mistaken in concluding that the conferral of employee benefits while a representation election is pending, for the purpose of inducing employees to vote against the union, does not ‘interfere with’ the protected right to organize. “ * * * We have no doubt that it [Section 8(a) (1)] prohibits not only intrusive threats and promises but also conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect.” 375 U.S. at 409, 84 S.Ct. at 459. The record here, however, does not permit the inference that Respondent intentionally deviated from an established practice as to pre-holiday time off for the purpose of inducing its employees to vote against the Union. On the contrary the testimony of several employees and management representatives unequivocally established that Respondent had no established policy as to the allotment of pre-holiday time off but that such time off was proportionate to its workload. It was customary to release the employees approximately an hour ahead of time. In view of Respondent’s flexible policy, we do not consider the additional two and one-half hours on December 24th and the oiie hour on December 31st materially significant. Rather, we think, it falls within the “de minimis” rule and does not violate Section 8(a) (1). Respondent’s post-election benefits, however, stand on a somewhat different footing. Immediately following the favorable results of the election, before the Union had an opportunity to file its objections to the election, Respondent, through its Vice-President, John Ralph, suggested to its employees that there would be “improvements” after thirty days. In the interim, on January 18th, the Union filed its unfair labor practice charges with the Board to upset the election. Despite the pendency of these objections, however, Respondent initiated its improvements in the form •of a ten cent per hour wage increase. In light of Respondent’s pre-election conduct, the likelihood that the Union would file objections to the conduct of the election cannot be considered remote. The impact of Respondent’s well timed wage increase is clear, for it would tend to seriously impinge on the employees’ choice of a bargaining representative in the event the Board •ordered a second election. The announcement of the wage increase and the increase itself were clearly tantamount to an expression of approval by the Company of the Union’s defeat. The timeliness of Respondent’s announced benefits as well as their unconditional nature warranted the inference that further benefits would be forthcoming if there were a continued rejection of unionization. We cannot ignore the effect on the employees’ freedom of choice which such post-election benefits may have, particularly where a second election is ordered. For these reasons we feel that such benefits plainly violate Section 8 (a) (1). Cedartown Yarn Mills, Inc., 84 N.L.R.B. 1, 8, enforced per curiam, Cedartown Yarn Mills, Inc. v. N. L. R. B. 180 F.2d 579 (5th Cir. 1950); The Hills Brothers Company, 67 N.L.R.B. 1249, 1255, enforced per curiam, N. L. R. B. v. Hills Bros. Co., 161 F.2d 179 (5th Cir. 1947); Northwest Engineering Company, 148 N.L.R.B. 1136, 1144-45 (1964). See also Amalgamated Clothing Workers v. N. L. R. B., 345 F.2d 264, 266 (2d Cir. 1965) (half a day off without loss of pay to celebrate defeat of union). SECTION 8(a) (5) — REFUSAL TO BARGAIN. The Board found that Respondent violated Section 8(a) (5) of the Act by refusing to recognize and bargain with the Union as the authorized collective bargaining representative of a majority of its employees. The Respondent, despite the uncontradicted evidence that the Union represented an overwhelming majority of its employees, persistently demanded that the representation question be determined through the process of a Board conducted election. Respondent, however, has no such vested right to an election. Where a labor organization has been designated by a majority of the eligible employees as their representative in an appropriate bargaining unit, the employer must recognize and bargain with such an organization, irrespective of whether or not it has been certified by the Board as the result of an election. United Mine Workers of America v. Arkansas Oak Flooring Co., 351 U.S. 62, 72, 76 S.Ct. 559, 100 L.Ed. 941 (1956); Colson Corporation v. N. L. R. B., 347 F.2d 128, 135 (8th Cir. 1965), cert. denied, 382 U.S. 904, 86 S.Ct. 240, 15 L.Ed.2d 157 (1965); N. L. R. B. v. Philamon Laboratories, Inc., 298 F.2d 176, 179 (2d Cir. 1962), cert. denied, 370 U.S. 919, 82 S.Ct. 1555, 8 L.Ed.2d 498 (1962). If, however, there had been substantial evidence to show that Respondent doubted in good faith that the Union represented a majority of its employees in the appropriate unit, it could justifiably refuse to recognize and bargain with the Union, until the latter’s claim had been established through the procedure of a Board election. N. L. R. B. v. Comfort, Inc., supra. Respondent predicates its good faith doubt of the Union’s majority status on the fact that it was unaware of the composition of the bargaining unit. Respondent’s Vice-President, John Ralph, did express some misgivings as to whether Clyde Nelson and Donald Higgins, supervisory employees of Respondent, were excluded or included in the unit the Union sought to represent. Ralph also stated that Galbraith did not express to him whether he intended to include clerical employees, truck drivers, and shipping employees within the unit. The fact remains, however, that even apart from these disputed employees, the Union still represented a substantial majority of Respondent’s employees at all times. Counsel for Respondent in the trial stipulated that the Union represented a majority of Respondent’s employees at the time of the request for recognition, though he would not specify the extent of the majority. At no time, moreover, did either of the Ralphs verbally express any doubt as to the Union’s majority status. They refused to submit the authorization cards to a mutually acceptable third party to verify the Union’s claims. Their failure to give the Union any opportunity to substantiate its claims of representation is inconsistent with the assertion of good faith. In view of the Union’s substantial majority and Respondent’s subsequent conduct, the Board was justified in concluding that Respondent withheld recognition, not as the result of a good faith doubt, but in order to undermine support for the Union and dissipate the very majority which it contended was-in doubt. THE REMEDY In the final analysis, however, Respondent contends that, even assuming that the Board’s findings and conclusions are supported by substantial evidence, the Board nevertheless exceeded its powers in issuing a bargaining order, rather than directing a second election. Petitioner, on the other hand, asserts that a second election is not an appropriate remedy, in that experience has demonstrated that a majority of rerun elections favor the party who has interfered with the original election. In view of our holding that Respondent has failed to recognize and bargain with the Union in good faith at a time when it represented a majority of Respondent’s employees, we find no alternative but to enforce the Board’s-remedy for the 8(a) (5) violation. A ruling, suggested by Respondent, that would condition the Board’s - bargaining order on the outcome of a second election, would be inconsistent with our determination of a 8(a) (5) violation. In summary, we hold: (1) the Board’s findings that Respondent violated Section 8(a) (1) by interrogation, and by granting pre-election benefits are not supported by substantial evidence; (2) the Board’s findings that Respondent violated Section 8(a) (1) by creating the impression of surveillance and by granting post-election benefits are supported by substantial evidence; (3) the Board’s finding that Respondent violated Section 8(a) (5) by refusing to bargain is supported by substantial evidence. The Board’s findings and order are accordingly modified, and as modified, enforcement is granted. . Local 38 L was later redesignated as Local 203 as a result of a merger with Local 43 P of the same Union. . On November 20, 1964 the Board’s Regional Director found the appropriate collective bargaining unit to consist of all of Respondent’s production and maintenance employees, a total of 26 employees. . In N. L. R. B. v. Ambox, Incorporated, 357 F.2d 138, 141 (5th Cir. 1966), the Company’s grant of benefits while objections to the election were pending was not considered to violate Section 8(a) (1). The Court made it clear, however, that the increases were to be granted retroactively as soon as the election objections were cleared up, and the promise of benefits was not made dependent on the outcome of the election proceeding. . The evidence disclosed that if the disputed truck drivers, janitors, receiving or shipping clerks had been excluded, the appropriate unit would then have numbered twenty-three instead of twenty-six employees. Question: What 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_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". Albert HARTWICK, Elizabeth Hartwick, Plaintiffs-Appellants. v. UNITED STATES STEEL CORPORATION, Defendant-Appellee. No. 72-1280. United States Court of Appeals, Sixth Circuit. Argued Oct. 12, 1972. Decided Jan. 18, 1973. James A. Tuck, Goodman, Eden, Mil-lender, Goodman & Bedrosian, Detroit, Mich., for plaintiffs-appellants; William H. Goodman, Detroit, Mich., on brief. Gilbert E. Gove, Miller, Canfield, Paddock & Stone, Detroit, Mich., for defendant-appellee; John A. Marxer, Detroit, Mich., on brief. Before CELEBREZZE and MILLER, Circuit Judges, and HOGAN , District Judge. The Honorable Timothy S. Hogan, United States District Judge for the Southern District of Ohio, sitting by designation. WILLIAM E. MILLER, Circuit Judge. This is a negligence action against United States Steel Corporation arising from the injury of Albert Hartwick, the appellant, while he was foreman for the C-Way Construction Company. The United States Army Corps of Engineers had contracted with C-Way, appellant’s employer, for the construction of a lock on the Crooked River near Alanson, Michigan. The appellant was in charge of the steel pile driving crews. In order to construct the lock it was necessary first to divert the river and to fill the river bed with gravel. Two cells, each 15 feet wide and 80 feet long, were then to be contructed on the sides of the old river bed. The cell walls were to consist of a continuous web of sheet piling to be driven some 27 feet into the ground by a pile driver. The sheet piling was manufactured by the 'appellee, United States Steel Corporation. The sheets of piling are “Z” shaped, about 18 inches wide and varying in length from 27 to 28 feet. On each edge of the piling and extending the entire length of one edge there is a ball or a socket allowing the sheets of piling to be attached to one another. To assemble the piling around the cell, it is necessary to lift a sheet some 30 feet into the air and align the ball of that sheet with the corresponding socket of the adjacent sheet. After the ball and socket are initially aligned, the sheet piling is lowered into place and driven into the ground. Correctly manufactured, the sheets will form a straight line when installed. The sheets of piling manufactured by the ap-pellee, however, would not align properly. When the pilings were threaded together the sheets would be from 4 to 6 inches out of alignment. It was un-eontradicted at trial that appellee was aware of this defect in the piling when it was manufactured. In order to correct the defect the appellant’s employer used a system of chains and chain binders to pull the piling back into alignment, so that it could be correctly driven into the ground. During the pile driving process, tension is placed on the chains and binders as they hold the pile in alignment. At the time of the accident the appellant was releasing the tension on a chain and chain binder attached to a pile that had been driven into the ground. When the binder was first attached to the chain holding the pile, a small wire had been placed around the handle of the binder to prevent it from being inadvertently knocked open. To release the tension on the chain and binder, the appellant removed the wire from the binder’s handle. The handle snapped open, striking the appellant on the shin and causing the injury. After completion of the appellant’s proof, the appellee moved for a directed verdict. This motion was granted by the district court. In its ruling on the motion the district court found that the appellee’s manufacture of the pilings was not the proximate cause of the appellant’s injury. The jurisdiction of the court was based upon diversity of citizenship. Directed verdicts are not favored in Michigan. Blazo v. Neveau, 382 Mich. 415,170 N.W.2d 62 (1969); See Serratoni v. Chesapeake & Ohio Ry., 333 F.2d 621 (6th Cir. 1964). The standard to be applied for directed verdicts is succinctly stated in Blazo: On a motion for directed verdict it is the duty of the trial judge to review all the evidence, giving to the opposing party the benefit of all conflicts and inferences, and decide if there is any evidence from which the jury could reasonably find a verdict contrary to the moving party. 382 Mich. at 424, 170 N.W.2d at 66. If reasonable minds can differ, the question should be submitted to the jury. Davis v. Thornton, 384 Mich. 138, 180 N.W.2d 11 (1970). The district court found that the injury was not a natural event flowing from the appellee’s “negligent construction of the pilings . . . . ” In so ruling the court thus assumed that the appellee was negligent in its manufacture of the pilings and there is substantial evidence in the record to support this conclusion. The Michigan Supreme Court has made clear that the question of proximate cause, in case of doubt, is for the jury. As the court stated in Davis v. Thornton, supra at 145, 180 N. W.2d at 15. But determination of negligence alone does not end the inquiry. Once a jury or judge has found that the defendant was negligent and that the plaintiff suffered injuries, it must be determined, whether the plaintiff’s injuries were caused by the defendant’s wrongful conduct and, then, if the defendant did cause the injuries, judge whether the plaintiff's injuries were too insignificantly related to or too remotely effected by the defendant’s negligence. Of all the elements necessary to support recovery in a tort action, causation is the most susceptible to summary determination for it usually amounts to a logical connection of cause to effect. However, any doubts about the connections between the causes and the effects, should be resolved by the jury. In Parks v. Starks, 342 Mich. 443, 448, 70 N.W.2d 805, 807 (1955), the court quoted with approval from 38 Am.Jur. Negligence, § 55 at 705 (1941): The proximate cause of an injury is not necessarily the immediate cause; not necessarily the cause nearest in time, distance, or space. Assuming that there is a direct, natural, and continuous sequence between an act and an injury, . . . the act can be accepted as the proximate cause of the injury without reference to its separation from the injury in point of time or distance. This holding was reaffirmed by the court in McKine v. Sydor, 387 Mich. 82, 88, 194 N.W.2d 841, 844 (1972). Since- we must assume that the appellee’s manufacture was negligent, under the applicable Michigan precedents the element of the foreseeability of the harm is removed. As noted in Davis v. Thornton, supra, 384 Mich. at 146, 180 N.W.2d at 15: The jury must then bridge the gap between the plaintiff’s injuries and the defendant’s negligence. This is the determination of cause and the remoteness of the effect. Once negligence is determined, foreseeability of harm should no longer be considered. Causation is a process of logical determination, while the significance of the connections — remoteness—is a policy determination. There is no doubt from the record before us that the appellee’s negligent construction was at least one of the causes of the appellant’s injury. Plainly the accident and injury would not have occurred absent such negligence. Thus we are left with the question of remoteness. As the Michigan Supreme Court has demonstrated, such an issue, as that of negligence itself, should ordinarily be determined by the jury: The determination of remoteness, however, should seldom, if ever, be summarily determined. Both the determination of remoteness and of negligence should almost always be left to the jury. Davis v. Thornton, supra, 384 Mich. at 147-148, 180 N.W.2d at 16. Under these principles declared by the highest court of Michigan, we feel that there is sufficient connection between the appellee’s negligent construction or manufacture of the pilings and the appellant’s injury that reasonable minds could differ on the issue of causation and hence that the issue of proximate cause should have been left to the jury. Although the district court made reference to the possibility of contributory negligence, he made no specific ruling on this issue and we therefore express no opinion with respect to it. The judgment of the district court is reversed and the action is remanded for further proceedings not inconsistent with this opinion. . This opinion specifically refers to the appellants, Albert Hartwick and Elizabeth Hartwick, only in the singular since any possible recovery by Elizabeth Hartwick is dependent upon her husband’s negligence action. The complaint alleges that she has been damaged by “Loss of society, companionship, love, affection and services of her husband . . . .” . We need not determine here whether the rule governing the direction of verdicts is “substantive” or “procedural” within the meaning of the Erie rationale. This is true because the federal and Michigan rules appear to be substantially identical. For the Federal rule see 5A Moore, Federal Practice If 50.02(1) (2d ed. 1971). For the Michigan rule see the cases cited in this opinion, particularly Davis v. Thornton, 384 Mich. 138, 180 N.W.2d 11 (1970). Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:

sc_decisiondirection

B

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. McCOMB, WAGE AND HOUR ADMINISTRATOR, v. JACKSONVILLE PAPER CO. et al. No. 110. Argued December 14-15, 1948. Decided February 14, 1949. Bessie Margolin argued the cause for petitioner. With her on the brief were Solicitor General Perlman, Robert L. Stern and William S. Tyson. Louis Kurz argued the cause and filed a brief for respondents. Mr. Justice Douglas delivered the opinion of the Court. This is a civil contempt proceeding arising out of Walling v. Jacksonville Paper Co., 317 U. S. 564, which we decided January 18, 1943. The District Court had held that none of respondents’ employees in specified classes were covered by the Fair Labor Standards Act. 52 Stat. 1060, 29 U. S. C. § 201. We sustained a judgment of the United States Court of Appeals which reversed the District Court, modifying it slightly to include a larger class of employees than the United States Court of Appeals had held to be covered. On remand the District Court, without a further hearing, entered a decree enjoining respondents from violating the Act in any of the following particulars: (1) by paying the designated classes of employees less than 300 an hour from the date of the judgment to October 24, 1945, or less than 400 an hour thereafter, except as permitted by orders of the Administrator under § 8 or § 14 of the Act; (2) by employing such employees for a workweek longer than 40 hours unless they receive compensation for employment in excess of 40 hours in the workweek at a rate not less than one and one-half times the regular rate at which they are employed; and (3) by failing to keep and preserve records as prescribed by the Administrator, particularly records of the hours worked each workday and each workweek by each of the employees and of the total wages paid to each for each workweek. Respondent took no appeal from this order. This was in 1943. In 1946 the Administrator instituted this contempt proceeding alleging that respondents had not complied with the minimum wage, overtime, and record-keeping provisions of the judgment in many specified respects. He prayed that respondents be required to termínate their continuing violations and in order to purge themselves of their contempts to make payment of the amounts of unpaid wages due the affected employees. The District Court found violations of the provisions of the decree. It found that (1) respondents had set up a completely false and fictitious method of computing compensation without regard to the hours actually worked which were unlawful under the Act; (2) respondents had adopted a plan which gave the employees a wage increase in the guise of a bonus and yet excluded that increase from the regular rate of pay for the purpose of computing overtime; (3) respondents had classified some employees as executive or administrative employees in plain violation of the regulations of the Administrator adopted under § 13 (a) (1) of the Act; and (4) one of the respondents had employed pieceworkers in excess of the maximum workweek without paying them overtime compensation. The District Court held that a civil contempt required a “wilful” violation of a decree; and that there was in this case no showing of any “wilful” violation of any “specific” provision of the former decree “prohibiting the doing of any specific thing.” The District Court further held that it had no power on the application of the Administrator to enforce compliance with its former decree by ordering the payment of unpaid statutory wages. It accordingly considered the application of the Administrator as an amended complaint seeking a broadening of the previous decree and entered such an injunction. 69 F. Supp. 599. All parties appealed. The United States Court of Appeals affirmed the judgment. It ruled that respondents had violated the provisions of the decree couched in terms of the Act in the respects found by the District Court. It also held that the District Court was warranted in concluding that there was no “wilful contempt” since neither the law nor the injunction specifically referred to or condemned the practices which were found to violate the Act. 167 F. 2d 448. The case is here on a petition for a writ of certiorari which we granted because of the importance of the problem in the administration of the Act. First. The absence of wilfulness does not relieve from civil contempt. Civil as distinguished from criminal contempt is a sanction to enforce compliance with an order of the court or to compensate for losses or damages sustained by reason of noncompliance. See United States v. United Mine Workers, 330 U. S. 258, 303-304; Penfield Co. v. Securities & Exchange Commission, 330 U. S. 585, 590; Maggio v. Zeitz, 333 U. S. 56, 68. Since the purpose is remedial, it matters not with what intent the defendant did the prohibited act. The decree was not fashioned so as to grant or withhold its benefits dependent on the state of mind of respondents. It laid on them a duty to obey specified provisions of the statute. An act does not cease to be a violation of a law and of a decree merely because it may have been done innocently. The force and vitality of judicial decrees derive from more robust sanctions. And the grant or withholding of remedial relief is not wholly discretionary with the judge, as Mr. Justice Brandeis wrote for a unanimous Court in Union Tool Co. v. Wilson, 259 U. S. 107, 111-112. The private or public rights that the decree sought to protect are an important measure of the remedy. Second. As we have noted, the decree directed respondents to obey the provisions of the Act dealing with minimum wages, overtime, and the keeping of records. There was no appeal from it. By its terms it enjoined any practices which were violations of those statutory provisions. Decrees of that generality are often necessary to prevent further violations where a proclivity for unlawful conduct has been shown. See May Stores Co. v. Labor Board, 326 U. S. 376, 390, 391; United States v. Crescent Amusement Co., 323 U. S. 173, 186. Respondents’ record of continuing and persistent violations of the Act would indicate that that kind of a decree was wholly warranted in this case. Yet if there were extenuating circumstances or if the decree was too burdensome in operation, there was a method of relief apart from an appeal. Respondents could have petitioned the District Court for a modification, clarification or construction of the order. See Regal Knitwear Co. v. Labor Board, 324 U. S. 9, 15. But respondents did not take that course either. They undertook to make their own determination of what the decree meant. They knew they acted at their peril. For they were alerted by the decree against any violation of specified provisions of the Act. It does not lie in their mouths to say that they have an immunity from civil contempt because the plan or scheme which they adopted was not specifically enjoined. Such a rule would give tremendous impetus to the program of experimentation with disobedience of the law which we condemned in Maggio v. Zeitz, supra, at 69. The instant case is an excellent illustration of how it could operate to prevent accountability for persistent contumacy. Civil contempt is avoided today by showing that the specific plan adopted by respondents was not enjoined. Hence a new decree is entered enjoining that particular plan. Thereafter the defendants work out a plan that was not specifically enjoined. Immunity is once more obtained because the new plan was not specifically enjoined. And so a whole series of wrongs is perpetrated and a decree of enforcement goes for naught. That result not only proclaims the necessity of decrees that are not so narrow as to invite easy evasion; it also emphasizes the danger in the attitude expressed by the courts below that the remedial benefits of a decree will be withheld where the precise arrangement worked out to discharge the duty to pay which both the statute and the decree imposed was not specifically enjoined. We need not impeach the findings of the lower courts that respondents had no purpose to evade the decree, in order to hold that their violations of it warrant the imposition of sanctions. They took a calculated risk when under the threat of contempt they adopted measures designed to avoid the legal consequences of the Act. Respondents are not unwitting victims of the law. Having been caught in its toils, they were endeavoring to extricate themselves. They knew full well the risk of crossing the forbidden line. Accordingly where as here the aim is remedial and not punitive, there can be no complaint that the burden of any uncertainty in the decree is on respondents’ shoulders. Third. We have no doubts concerning the power of the District Court to order respondents, in order to purge themselves of contempt, to pay the damages caused by their violations of the decree. We can lay to one side the question whether the Administrator, when suing to restrain violations of the Act, is entitled to a decree of restitution for unpaid wages. Cf. Porter v. Warner Holding Co., 328 U. S. 395. We are dealing here with the power of a court to grant the relief that is necessary to effect compliance with its decree. The measure of the court’s power in civil contempt proceedings is determined by the requirements of full remedial relief. They may. entail the doing of a variety of acts, such as the production of books. Penfield Co. v. Securities & Exchange Commission, supra. They may also require the payment of money as in the alimony cases. See Gompers v. Bucks S. & R. Co., 221 U. S. 418, 442; Oriel v. Russell, 278 U. S. 358, 36A-365. The decree that was violated in the present case relates to the payment of wages and overtime pay required by § § 6 and 7 of the Act. It does not, however, compute the weekly and monthly amount that is due each employee under the correct construction of the Act. Nor does it contain the names of the payees. But it provides the formula by which the amounts can be simply computed. If it had gone one step further and made the computation, listing the amounts due each employee, the case would then be on all fours with the alimony cases. Yet the circumstance that changing payrolls and fluctuating rates of pay make that impractical in this type of case does not mark a material difference. The direction of the court was that respondents make payments of wages to their employees pursuant to a prescribed formula. If the court is powerless tó require the prescribed payments to be made, it has lost the most effective sanction for its decree and a premium has been placed on violations. The fact that another suit might be brought to collect the payments is, of course, immaterial. For the court need not sit supinely by waiting for some litigant to take the initiative. Vindication of its authority through enforcement of its decree does not depend on such whimsical or fortuitous circumstances. The fact that the Administrator is the complainant and that the back wages go to the employees is not material. It is the power of the court with which we are dealing — the power of the court to enforce compliance with the injunction which the Act authorizes, which the court has issued, and which respondents have long disobeyed. Reversed. Mr. Justice Rutledge concurs in the result. Mr. Justice Frankfurter, with whom Mr. Justice Jackson concurs, dissenting. Obedience must of course be secured for the command of a court. To secure such obedience is the function of a proceeding for contempt. But courts should be explicit and precise in their commands and should only then be strict in exacting compliance. To be both strict and indefinite is a kind of judicial tyranny. In such a case as this, only after an administrative order has been formulated and a court has adjudicated that the order is within the administrator’s statutory authority does the command of a court come into existence, disobedience of which may be punished as contempt. For violation of the Fair Labor Standards Act as such, one may be made to suffer civil penalties or imprisonment, but the latter only after conviction by a jury. For violation of the command of an injunction issued under the Act, however, he may not only be exposed to more severe civil penalties than the Act by its own terms imposes, but made to suffer imprisonment without benefit of jury trial. It is for such reasons that this Court has indicated again and again that a statute cannot properly be made the basis of contempt proceedings merely by incorporating a reference to its broad terms into a court order. See, e. g., Swift & Co. v. United States, 196 U. S. 375, 396; New York, N. H. & H. R. Co. v. Interstate Commerce Comm’n, 200 U. S. 361, 404; Labor Board v. Express Publishing Company, 312 U. S. 426, 435. These considerations become increasingly important as there is increasing use of injunctions for the enforcement of administrative orders and statutory duties. These are general principles but their application governed the decisions of the District Court and of the Court of Appeals; they should control the decision here. The two lower courts found that while the practices now complained of by the Administrator of the Wage and Hour Division of the Department of Labor constituted violations of the Fair Labor Standards Act, they were not on any fair consideration covered by the injunction, contempt of which is now charged. The injunction underlying this proceeding takes eight pages of a printed record and particularizes in great detail the violations which were enjoined. It also contains omnibus clauses prohibiting violations of the Fair Labor Standards Act. On full consideration, the District Court treated the application for an adjudication of civil contempt “as an amended complaint seeking a broadening of the injunctive orders heretofore entered in this case, and will enter an amended judgment enjoining defendants from violating the provisions of the Fair Labor Standards Act as adjudicated in this Memorandum Opinion.” 69 F. Supp. 599, 608. The Court of Appeals agreed with this view of the District Court (with a minor modification not here relevant). 167 F. 2d 448. In short, both courts found no contempt. They did so because there was lacking that clearness of command in the court’s order which warranted a finding of its disobedience, if due regard were paid to the proper construction of the injunction as the starting point of the contempt proceedings. At the least, such was a warrantable interpretation of the circumstances of this case, and we are disentitled to set our interpretation against theirs. In reversing the conclusion of the two lower courts that there was no contempt because there was no disobedience of the injunction, the Court is rendering a decision of far-reaching import to the law of injunctions. Today’s ruling happens to concern an injunction against an employer. Tomorrow it may be an injunction against employees, as it was yesterday and too often in the past. One of the grievances which led to the Norris-LaGuardia Act was the generality of the terms of labor injunctions. Ambiguity lurks in generality and may thus become an instrument of severity. Behind the vague inclusiveness of an injunction like the one before us is the hazard of retrospective interpretation as the basis of punishment through contempt proceedings. The two lower courts, in finding that generally to enjoin obedience to a law is too vague a foundation for proceedings in contempt, were avoiding the very evil with which labor injunctions were justly charged. And of course it is not to be assumed that the allowable vagueness of an injunction varies with the use to which the injunction is put. This Court ought not to encourage injunctions couched in such indefinite terms by setting aside the findings of the courts below that the injunction did not forbid with explicitness sufficient to justify a finding of contempt. I would affirm the judgment of the Court of Appeals. It also found violations of the record-keeping provisions of the decree, some of which it held to be trivial and others of which had been discontinued. See 2 High on Injunctions (4th ed., 1905) §§ 1416 et seq. Section 16 (b) authorizes suits by employees to recover wages and overtime unlawfully withheld. It is the Administrator who is directed and authorized by § 11 (a) of the Act to bring actions to restrain violations of the Act of the character involved here. Cf. Inland Steel Co. v. United States, 306 U. S. 153, 157; United States v. Morgan, 307 U. S. 183, 193-194; Commission v. Brashear Lines, 312 U. S. 621, 628-630. See §17. Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspecifiable Answer:

songer_genapel2

I

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant. James Edward WINGO, Jr., Appellant, v. UNITED STATES of America, Appellee. No. 13187. United States Court of Appeals Sixth Circuit. May 31, 1957. James Rutherford, Nashville, Tenn., for appellant. Fred Elledge, Jr., and James R. Tuck, Nashville, Tenn., for appellee. Before SIMONS, Chief Judge, and ALLEN and MILLER, Circuit Judges. PER CURIAM. Appellant, in this proceeding under Section 2255, Title 28 U.S.Code, seeks to vacate judgment imposed in the U. S. District Court on the ground of prejudicial newspaper publicity during the overnight recess of the jury, during which the jurors separated and went to their respective homes. Briggs v. United States, 6 Cir., 221 F.2d 636, 638. Following a hearing in which appellant introduced the newspaper articles complained of but no other evidence on the issue, the District Judge dismissed the proceeding. The question presented could have and should have been raised by motion for mistrial in the trial of the case in the District Court. No appeal was taken from the judgment on the verdict. Compare Briggs v. United States, supra; Krogmann v. United States, 6 Cir., 225 F.2d 220, 228. The provisions of Section 2255, Title 28 U.S.Code, cannot be used as a substitute for appeal. Sunal v. Large, 332 U.S. 174, 178-179, 67 S.Ct. 1588, 91 L.Ed. 1982; Ford v. United States, 6 Cir., 234 F.2d 835, 836. The appellant is in custody under a state sentence, not the sentence in the federal court, which he is attacking in this proceeding. If the sentence under attack should be held invalid, it would not result in appellant’s release from confinement. The present proceeding is premature and will not lie. Duggins v. United States, 6 Cir., 240 F.2d 479. 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_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". CENTRAL PAPER CO. v. COMMISSIONER OF INTERNAL REVENUE. No. 11508. United States Court of Appeals Sixth Circuit. Decided Nov. 13, 1952. Melva M. Graney, Washington, D. C. (Ellis N. Slack, A. F. Prescott, Virginia H. Adams, Washington, D. C., on the brief), for respondent. Wilbur A. Giffen, Chicago, 111., of counsel, KixMiller, Baar & Morris, Chicago, 111., on the brief, for petitioner. Before SIMONS, Chief Judge, and Mc-ALLISTER and MILLER, Circuit Judges. MILLER, Circuit Judge. The Tax Court dismissed Petitioner’s application for a redetermination of its excess profits tax liability on the ground that it lacked jurisdiction in the matter, from which ruling the Petitioner has appealed. The Petitioner, Central Paper Company, Inc., a Michigan 'Corporation, filed claims for refund, relating to' the application of § 722 of the Internal Revenue Code, 26 U.S. C.A. § 722, with respect to excess profits taxes for the fiscal years ending June 30, 1943, 1944 and 1945. The Commissioner, by letter of September 6, 1950, rejected the applications. The letter also advised the taxpayer — “Within ninety days * * * from the date of the mailing of this letter, you may file a petition with The Tax Court of the United States, at its principal address, Washington 4, D. C., for a redetermination of your excess profits tax liability under the Internal Revenue Code.” This was in accordance with the provisions of § 732(a) Internal Revenue Code, 26 U.S.C.A. § 732(a). The taxpayer prepared such a petition which was mailed at Chicago, Illinois, properly stamped and legibly addressed to “The Tax Court of the United States, Washington 4, D. C.” The wrapper on the package which contained the petition shows a Chicago postmark of 3:30 p. m. on December 1, 1950. The docket of the Tax Court carries the following entry: “1950, December 7. Petition received and filed.” The petition itself was rubber stamped “Filed December 7, 1950.” December 7, 1950, was 92 days after the date of the mailing by the Commissioner of the registered notice of disallowance of the claims on September 6, 1950. The Commissioner moved that the proceeding be dismissed for lack of jurisdiction, due to the failure of the petitioner to file its petition with the Tax Court within the 90 days provided by the statute. The Tax Court sustained the motion, without opinion. In connection with the Tax Court’s consideration of the motion to dismiss, it was stipulated between the parties that the Court should consider as being in evidence the cover of the package which .contained the petition; that there was attached to the notice of disallowance in the above matter a slip of instructions which stated that “appeals should be addressed to'The Tax Court of the United States, Washington 4, D. C.”; that the Court should consider as evidence the statement of the postmaster at Chicago, Illinois, that a record is made of pouches of mail that miss connection with intended trains and also unusual conditions that would interrupt normal operation of trains enroute to destination would be recorded, that there was no record of any such irregularity in the handling of mail at the Chicago postoffice on December 1, 1950, or any interruptions in transportation service that would account for a first-class piece of mail addressed to The Tax Court of the United States, Washington 4, D. C., not reaching the addressee according to schedule, and that a first-class piece of mail addressed to The Tax Court of the United States, Washington 4, D. C., showing postmark in Chicago on December 1, 1950, 3:30 p. m. would in the normal course have arrived at Washington, D. C., at 4:30 p. m. on December 2, 1950; that the Court should consider as evidence the statement of the postmaster at Washington, D. C., that The Tax Court of the United States rents lock box No. 70 at the Benjamin Franklin Station, which is about five inches square, that because of the volume of mail received by The Tax Court their mail is not placed in this box but is. piled on a ledge in no special receptacle until called for by a messenger from The Tax Court, that The Tax Court is not the only box holder at said station for whom mail is retained! in no special receptacle until called for, that on December 2, 1950, there were no unusual conditions or circumstances existing in Washington, D. C. Post Office which would cause delay in the normal handling of mail arriving at Washington on that date, and that a piece of first-class mail addressed to The Tax Court of the United States; Washington, D. C., and arriving in the Washington Post Office at approximately 4:30 p. m. on December 2, 1950 would in normal course have been received by the Box Section of the Benjamin Franklin Station on the same day. In support of The Tax Court’s ruling, the Commissioner contends that the time limitation for filing the petition is statutory and jurisdictional, and that failure on the part of the taxpayer to file such a petition with the Tax Court within the 90-day period provided is a bar to its consideration. Such is the well established rule, which is not challenged by the taxpayer. Di Prospero v. Commissioner, 9 Cir., 176 F.2d 76; Stebbins’ Estate v. Helvering, 74 App.D.C. 21, 121 F.2d 892; Poynor v. Commissioner, 5 Cir., 81 F.2d 521. We also agree with the Commissioner’s contention that a failure to file the petition within the specified 90-day period, caused by matters over which the taxpayer has no control, such as delay in the mail service enroute from the taxpayer to the Tax Court, Di Prospero v. Commissioner, supra, failure of airplane mail service to function because of adverse weather conditions, Stebbins’ Estate v. Helvering, supra, or because of other equitable considerations, Edward Barron Estate Co. v. Commissioner, 9 Cir., 93 F.2d 751, 753, does not prevent the rule from being applicable. The taxpayer does not contend otherwise. But these rules do not prevent the Court from determining as a matter of law, for the purpose of computing the ninety-day period provided, the date on which the notice of disallowance was mailed, Eppler v. Commissioner, 7 Cir., 188 F.2d 95, or the date on which the petition was “filed,” McCord v. Commissioner, 74 App.D.C. 369; 123 F.2d 164; Edward Barron Estate Co. v. Commissioner, supra; Arkansas Motor Coaches v. Commissioner, 8 Cir., 198 F.2d 189, concurring opinion of Judge Johnsen at page 194. The present case does not involve any extension of the ninety-day period, but does involve merely a determination of the date on which the petition was “filed” with The Tax Court. Petitioner contends it was so filed on December 2, 1950, which was within the ninety-day period. The Commissioner contends it was filed on December 7, 1950, which was after the expiration of the ninety-day period. When mail matter is properly addressed and deposited in the United States mails, with postage duly prepaid thereon, there is a rebuttable presumption of fact that it was received by the addressee in the ordinary course of mail. Dunlop v. United States, 165 U.S. 486, 495, 17 S.Ct. 375, 41 L.Ed. 799; Crude Oil Corp. v. Commissioner, 10 Cir., 161 F.2d 809; Boemer v. United States, 2 Cir., 117 F.2d 387, 389-390; Stern Bros. & Co. v. Burnet, 8 Cir., 51 F.2d 1042, 1045; Haag v. Commissioner, 7 Cir., 59 F.2d 516, 517. This presumption is applicable to the present case, and is strengthened by the testimony of the Postmasters at Chicago and Washington to the effect that there was no interruption to normal mail service between those points on December 1st and 2nd, 1950, and that in the normal course of mail the letter would have arrived at Washington about 4:30 p. m. on December 2, 1950. The presumption is not rebutted by the fact that the letter might possibly have been lost or misplaced by postal employees before delivery to the mail box of The Tax Court, in the absence of any evidence as to when it was placed on the ledge beside the mail box, or when it came into the possession of the messenger from The Tax Court. Hand & Johnson Tug Line v. Canada S. S. Lines, 6 Cir., 281 F. 779. Accordingly, in the present case we accept as a fact that the petition mailed by the taxpayer to The Tax Court was delivered in due course of mail to the ledge beside the lock box of The Tax Court on December 2, 1950. We are of the opinion that such a delivery by the Post Office constituted delivery to The Tax Court, although not a physical delivery to the Clerk’s Office of The Tax Court. It had made delivery at the place directed by the addressee. At that time the Post Office had no further duty to perform in connection with its obligation to deliver. There is no twilight zone between delivery by the Post Office to the addressee, and receipt, either actual or constructive,, by the addressee. The Commissioner contends that Rule 5 of the Rules of Practice of The Tax Court, 26 U.S.C.A. § 1111 requires that any document to be filed with the Court, must be filed in the office of the .Clerk of the Court during business hours. By Rule 1, business hours are from 8:45 a. m. to 5:15 p. m. The taxpayer addressed the petition to The Tax Court, using the address given to it by the Commissioner in the letter of disallowance. It was delivered to The Tax Court on December 2, 1950. It was delivered to The Tax Court’s lock box instead of to the Clerk’s office by direction of The Tax Court. Assuming for the purposes, of this case, without so holding, that Rule 5 was not waived by the action of The Tax Court in requiring its mail to be delivered to a lock box instead o!f at tfie Clerk’s Office, McCord v. Commissioner, supra, we are of the opinion that the processing and handling of the petition by Tax Court employees thereafter was no concern of the taxpayer. Failure or unreasonable delay on the part of Tax Court employees to transfer it from the lock box to the ‘Clerk’s Office, or to stamp it as filed after receipt in the Clerk’s Office, is not chargeable to the taxpayer. McCord v. Commissioner, supra; concurring opinion of Judge Johnsen in Arkansas Motor Coaches v. Commissioner, supra, 198 F.2d at page 194; Palcar Real Estate Co. v. Commissioner, 8 Cir, 131 F.2d 210, 213; Milton v. United States, 5 Cir, 105 F.2d 253, 255; Campbell v. Mason, 269 Ky. 128, 133, 106 S.W.2d 100. Treating Rule 5 as applicable, the petition was nevertheless legally filed in the Clerk’s Office at the latest on the next business day after December 2, 1950. The judgment of The Tax Court is reversed and the case remanded for hearing." 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_respond2_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 second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". CUSHING et al. v. MARYLAND CAS. CO. et al. No. 13887. United States Court of Appeals Fifth Circuit. July 31, 1952. Rehearing Denied Oct. 9, 1952. See 198 F.2d 1021. James J. Morrison, Arthur A. de la Hous-saye, Raymond H. Kierr, Gerard A. Rault, New Orleans, La., for appellants. Eberhard P. Deutsch, Brunswick G. Deutsch, New Orleans, La., for appellees. Before HOLMES, STRUM, and RIVES, Circuit Judges- STRUM, Circuit Judge. This appeal is from a summary judgment dismissing, as to the insurers involved, five consolidated actions at law brought to recover damages for the death of five seamen who drowned when the tug boat “Jane Smith” collided with a ¡bridge, capsized and sank in navigable waters within the admiralty jurisdiction in Louisiana. Federal jurisdiction is asserted both under Sec. 33 of the Merchant Marine (Jones) Act of 1920, 46 U.S.C.A. § 688, and upon diversity of citizenship. The suits are against Texas & Pacific Railway Company, owner of the bridge, and Maryland Casualty Company and Home Insurance Company, who are the liability insurance underwriters of the owner and charterer of the tug, insuring against loss of life by, or personal injury to, the crew of said vessel. The complaints allege that the deaths were due to the negligence of the bridge owner, and of the owner and •charterer of the tug. Plaintiffs assert the right to directly sue the insurers under Louisiana’s “direct action” statute, Title 22, Sec. 655, La.Rev.Stat. 1950, LSA-R.S. 22:655, which provides in part: “The injured person or his or her heirs, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy, * * * and said action may be brought against the insurer alone or against both the insured and the insurer, jointly * * The policies involved were issued and delivered in Louisiana. The dominant question is whether or not the statute applies to policies which protect the owner and charterer of a vessel against liability for personal injuries or accidental death suffered by the crew of a vessel in navigable waters. The district judge answered the question negatively. He was of the view that Sec. 655, supra, which relates to “liability” insurance, is confined to the ordinary type of liability insurance as defined in Title 22, Sec. 6(4), La.Rev. Stat.1950, LSA-R.S. 22:6(4), and does not extend to “Marine protection and indemnity insurance,” as defined in subd. (13) (e) of that title, which is the type of policy here sued upon. He was further of the view that to give effect to the direct action statute as to these policies would be an invasion of the field of exclusive federal jurisdiction over admiralty and maritime matters which would not only impair the characteristic features of general maritime law, but would contravene the essential purpose of limitation of liability proceedings in admiralty, under 46 U.S.C.A. § 183, which have ¡been instituted by this owner and charterer, and in which these plaintiffs have filed claims. As one of the policies also provides hull insurance, the district judge was further of the view that to the extent of plaintiffs’ recovery in the limitation proceedings, the owner would be compelled to surrender insurance money to the claimants therein, contrary to the rule established in Norwich & N.Y. Transp. Co. v. Wright, 13 Wall. 104, 80 U.S. 104, 20 L.Ed. 585, and in City of Norwich, 118 U.S. 468, 6 S.Ct. 1150, 30 L.Ed. 134, that an owner’s liability is confined to the value of the vessel after the damage, not before, and that insurance money belongs to- the owner, not to the claimants. It appears to us that in enacting Sec. 655, supra, the Louisiana legislature used the term “liability insurance,” in its broad generic sense, meaning that form of insurance by which an insured is indemnified against liability on account of bodily injuries sustained by others. The statute is not limited to the one type of liability insurance defined in Sec. 6(4), Title 22, supra, but extends as well to marine liability insurance of the type here involved. The statute is remedial. It should be liberally construed to accomplish its obvious purpose, which is to- afford an injured person a direct action against a compensated insurer who has assumed ultimate liability. There is no- indication in Sec. 655 that the Louisiana legislature intended to deny the right of direct action to persons covered by marine policies, while extending it to all others. On the contrary, it appears to us that it was intended, so far as the state legislative powers are effective, to extend the right to all persons covered by what is broadly known as “liability insurance,” including policies of the type here in question. While the policies sued on cover marine activities, fundamentally they are ordinary contracts of indemnity insurance. Title 28 U.S.C.A. § 1333, a part of the original Judiciary Act of 1789, provides that United States district courts shall have original jurisdiction, exclusive of the courts of the states, of any civil case of admiralty or maritime jurisdiction, “saving to suitors in all cases all other remedies to which they are otherwise entitled.” Applying this clause in upholding the validity of the New York Arbitration statute as applied to a dispute under a charter party made and to be performed in that state, the United States Supreme Court said; “The ‘right of a common-law remedy,’ so saved to suitors, does not * * * include attempted changes 'by the states in the substantive admiralty law, but it does include all means other than proceedings in admiralty which may be employed to enforce the right or to redress the injury involved. * * * A state may not provide a remedy in rem for any cause of action within the admiralty jurisdiction. * * * But otherwise, the state, having concurrent jurisdiction, is free to adopt such remedies, and to attach to them such incidents, as it sees fit. * * * In no case has this court held void a state statute which neither modified the substantive maritime law, nor dealt with the remedies enforceable in admiralty.” Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 123, 44 S.Ct. 274, 277, 68 L.Ed. 582, 586. These principles are determinative here. While Sec. 655, supra, confers upon an injured party a substantive right which becomes vested at the moment of the injury, it is not a right essentially maritime in character, nor one peculiar to admiralty or maritime jurisdiction, but is one which applies alike to all contracts of public liability insurance, regardless of whether the injury occurs ashore or afloat. There is nothing in it which undertakes to change the substantive admiralty law, nor does it undertake to deal with a remedy in courts of admiralty. The statute provides only an additional and cumulative remedy at law in the enforcement of obligations of indemnity voluntarily and lawfully .assumed ¡by the insurer. Thus the statute does not conflict with any feature of substantive admiralty law, nor with any remedy peculiar to admiralty jurisdiction. These suits are at law, not in admiralty. Appellees, the insurers, further contend that the Jones Act, 46 U.S.C.A. § 688, creates a right of action against an injured seaman’s employer, but not against the employer’s liability underwriter, and that the State of Louisiana can not add to the rights created by the Jones Act. It is unnecessary, however, to determine that question. Even if there were no jurisdiction, nor any right of action, under the Jones Act, which we do not decide, diversity of citizenship exists between all plaintiffs and the defendant insurers, and more than $3,000.00 is involved in each suit. These circumstances support federal jurisdiction. The complaints contain averments which sufficiently assert liability upon general principles of negligence, and also for accidental death within tlie coverage of the policies sued upon, so that a cause of action is stated. Appellees’ contentions over-mflate a relatively simple proposition with apparent, but unreal, technical problems. Stripped of illusory technicalities, the Louisiana statute merely creates in favor of one who has been wrongfully injured, an additional and cumulative remedy at law against an insurer who has agreed to indemnify the tort-feasor against liability, by subrogating the injured person to all the rights of the insured within the terms and limits of the policy. Other existing remedies are not in the least impaired or affected. New Amsterdam Cas. Co. v. Soileau, 5 Cir., 167 F.2d 767, 6 A.L.R.2d 128. Such contracts of insurance are for the benefit of the public, as well as of the insured employer. Davies v. Consolidated Underwriters, 199 La. 459, 6 So.2d 351; West v. Monroe Bakery, Inc., 217 La. 189, .46 So.2d 122. The statute is simply a regulation by the state of insurance companies doing business within its boundaries, for which there is ample sanction in federal law. 15 U.S. C.A. §§ 1011, 1012, the McCarran Act. The limitation of liability statutes, 46 U.S. C.A. § 183 et seq., relate, not to “the business of insurance” as mentioned in the McCarran Act, but to the liability of shipowners. The object of that proceeding is to limit the liability of the owner, not to preclude injured persons from pursuing any remedy open to them against others. To permit such an action will not defeat the purpose of the federal limitation of liability statute, nor will it interfere with the harmony or uniformity of admiralty law in its international or interstate relations. That the remedy may not exist in states other than Louisiana is not a tenable objection. The same was true in Red Cross Line v. Atlantic Fruit Co., supra, involving the New York Arbitration statute. The Louisiana statute is wholly a regulation of the liability of insurers doing business in Louisiana upon obligations voluntarily assumed by them there. We see no reason why it should not be applied to liability policies such as those here sued upon, even though the injuries were suffered upon navigable waters. Federal jurisdiction exists, and the complaints state a cause of action. Reversed and remanded. . The district judge said [99 F.Supp. 683]: “If these plaintiffs should be paid any part of their claims in the limitation proceedings, then the shipowner under his contracts of insurance has a right to bo reimbursed by his underwriters. If the underwriters’ exposure on the policies is exhausted in paying the claims in this case, then the shipowner’s right against his insurers will avail him nothing. “The effect therefore of allowing these plaintiffs to proceed directly against the shipowner’s insurers -would be to force the owner to turn his insurance into the limitation proceeding as part of ‘the interest of such owner in such vessel’. This the owner is not required to do. City of Norwich, 118 U.S. 468, 6 S.Ct. 1150, 30 L.Ed. 134.” . Gager v. Teche Transf. Co., La.App., 143 So. 62; Hudson v. Georgia Cas. Co., D.C., 57 F.2d 757. . See also Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210, and Great Lakes D. & D. Co. v. Kierejewski, 261 U.S. 479, 43 S.Ct. 418, 67 L.Ed. 756, holding that although admiralty affords no relief for wrongful death under general maritime lawr, an action in personam, may be maintained in admiralty under a state “wrongful death” statute to recover for a death upon navigable waters as a result of a maritime tort. (Statutory remedies for personal injures or death suffered by a seaman, or for wrongful death on the high seas, are now provided by 46 U.S.C.A. §§ 688, 761). Also, see Jarka Corp. v. Hellenic Lines, 2 Cir., 182 F.2d 916, 919, holding general New York law applicable to a stevedoring contract, which is a maritime contract. What was said as to “uniformity” in Southern Pac. Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, has. been sharply limited by Standard Dredging Corp. v. Murphy, 319 U.S. 306, 63 S.Ct. 1087, 87 L.Ed. 1416. . Fisher v. Home Indemnity Co., 5 Cir., 198 F.2d 218; New Amsterdam Cas. Co. v. Soileau, 5 Cir., 167 F.2d 767, 6 A.L.R. 2d 128; Belanger v. Great American Indemn. Co., D.C.La., 89 F.Supp. 736; West v. Monroe Bakery, Inc., 217 La. 189, 46 So.2d 122. . “Congress declares that the continued regulation * * * by the several States of the business of insurance is in tb© public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation * * * of such business by the several states.” 15 U.S.C.A. § 1011. “No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance * * * unless such Act specifically relates to the business of insurance”. 15 U. S.C.A. § 1012(b). Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:

songer_usc1sect

876

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". James Emerson MORRIS, Appellant, v. UNITED STATES of America, Appellee. No. 7120. United States Court of Appeals Fourth Circuit. Argued Jan. 4, 1956. Decided Jan. 11, 1956. No appearance for appellant. Robert L. Gavin, Asst. U. S. Atty., Greensboro, N. C. (Edwin M. Stanley, U. S. Atty., Greensboro, N. C., on brief), for appellee. Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges. PER CURIAM. This is an appeal in a criminal case in which appellant was indicted for sending threatening letters through the mail in violation of 18 U.S.C. § 876. He pleaded guilty to one of the counts of the two count indictment and not guilty to the other count, but was convicted on that count after a trial at which he was represented by competent counsel appointed by the court. He noted an appeal from the sentence and judgment of the court but has filed no brief as required by our rules. The United States Attorney has made a motion to dismiss or affirm. We have examined the record and find no ground for any contention that the appellant was not properly tried and sentenced or that he was not guilty of the crimes charged against him. The judgment appealed from will accordingly be affirmed. Affirmed. Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18? Answer with a number. Answer:

songer_casetyp1_9-3

I

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "miscellaneous". STOLTZ v. UNITED STATES. No. 8790. Circuit Court oí Appeals, Ninth Circuit. Oct. 24. 1938. D. W. Doyle, of Conrad, Mont., for appellant. John B. Tansil, U. S. Atty., and Roy F. Allen, Asst. U. S. Atty., both of Butte, Mont., and Norman MacDonald, Thomas E. Harris, and Oscar A. Provost, Attys., Department of Justice, all of Washington, D. C., for the United States. Before GARRECHT, HANEY, and HEALY, Circuit Judges. HANEY, Circuit Judge. The court below granted appellee restitution of certain premises allotted to Indian wards and judgment for triple damages in the sum of $1496.25 with interest and costs. Appellant was defendant below. The parties refer to the cause as an action for unlawful detainer. The allegations of the pleading filed by appellee, designated as a “Complaint”, however, seem to call for injunctive relief and apparently the cause was intended as a suit in.equity. Since the parties treat the cause as one at law, we assume for the purposes of our decision, that the equitable claims were insufficient or withdrawn. The complaint alleged that the Indian allottees and wards of appellee leased, by writing and with the consent, authority and approval of appellee, certain real property on an Indian Reservation to appellant for the term from April 1, 1932 to and including March 31, 1936; and that on November 21, 1935, the wards, with the consent, authority and approval of appellee, leased a portion of the premises to one Idso for the term from April 1, 1936, to April 1, 1941. Idso paid the rental for the first year, in the sum of $493.75.. It was further alleged that on May 22, 1936, Idso attempted to enter upon the premises with his tractor and plow and that appellant damaged the same by driving them into a ravine and since has kept Idso from entering the premises by threats of force. Appellee prayed for restitution of the premises and for damages for rents and profits, alleged to be $958.10 per annum. Appellant, by answer alleged that by virtue of his lease, he had a preference right to a five-year lease beginning on April 1, 1936, “by meeting the highest bid made therefor”; , that he did meet the highest bid, paid the first year’s rental, aftd thereby leased the property for the period claimed by Idso; and that he remained in possession of the property until August 1, 1936. By stipulation the cause was tried to the court. The evidence disclosed that in the fall of 1936, the superintendent of the reservation gave notice for bids on the premises in question, which notice contained the following: “ * * * Leases will be let to the highest bidder, provided the bid meets with the approval of the office and the Indians consent to the terms of the bid, unless the present lessee wishes to meet the high bid * * * ” On October 10, 1935, the superintendent sent a letter to appellant enclosing a form of lease to be signed. Appellant signed the lease and sent it with the first year’s rental to the superintendent. When advised of a higher bid, appellant met the higher bid. The money was held in a special account, but since the wards did not execute the lease, the money, at appellant’s request was applied on other leases obtained by appellant. The lease sent by appellant was not ' approved by an officer in charge of the reservation. Appellant retained physical occupancy of the land until. August 1, 1936, but thereafter one of his mess wagons was on the land and was still there at the time of the trial, at which time appellant testified, “I still claim that I am holding possession of that land right today.” There was no request for special findings made by appellant. The court below made a general finding for appellee, and held “that the measure- of damages here is the rental value of the land in question which, according to the undisputed proof, is $493.75 plus a lease fee of $5.00.” The damages thus found were trebled pursuant to Rev.Codes of Mont. § 9901, and judgment was entered for restitution of the premises and for the sum of $1496.25. Appellant seeks review of the judgment. Appellee contends that there is nothing to review, because no question is raised as to admissibility of evidence, and because there was no request for special findings, and of course, no exceptions. Under the new Rules of Civil Procedure the questions presented would require answer, notwithstanding a failure to except or request special findings. Rules 46, 52 (a), 28 U.S.C.A. following section 723c. We think that there is sufficient justification for treating the failure to except and to request special findings as “technical errors, defects, or exceptions which do not affect the substantial rights of the parties” within 28 U.S.C.A. § 391, and to decide the cause on the merits. Appellant contends that he acquired a lease on the premises for the five-year term beginning April 1, 1936, because under the terms of the notice there was a lease when appellant met the high bid. We believe the contention is untenable because the leases were subject to the Act of March 3, 1921, 25 U.S.C.A. §’393, which provides that the allottee may lease the lands “subject only to the approval of the superintendent or other officer in charge of the reservation where the land is located”. There being no such approval, we think there was no lease acquired as contended by appellant. It is further contended that the action could not be maintained by the United States, but only by Idso. Rev. Codes of Mont. § 9889 provides in part: “A tenant * * * is guilty of unlawful detainer: When he continues in possession * * * of the property, or any part thereof, after the expiration of the term for which it is let to him, without the permission of the landlord, or the successor in estate of his landlord, if any there be.” Based on this statute appellant’s argument is that "one holding over land that has been leased to a third person could not be guilty of unlawful detainer as against the landlord but only as against the successor of the landlord” and since appellant was not guilty of unlawful detainer as against the landlord, the latter has no cause of action. We see nothing in the statute which restricts the effect of an unlawful detainer to the new tenant. The statute merely points out that there is an unlawful detainer when there is lacking the permission specified. We need not here undertake to declare which party must give the permission in order to avoid the statute, because here there was permission from neither the landlord nor the new tenant. In this connection, appellant also contends that since Idso was entitled to the possession of the property, he is the real party in interest. It is generally held, however, that one who has never been in possession of the land may not maintain the action (26 C.J. 816, § 43), hut that it must be maintained by the landlord. 26 C. J. 834, § 74. On principle the rule is supported by reason because, as here, at the expiration of appellant’s lease, the right of possession reverted to the landlord, who had conveyed the right to Idso, but who could not obtain the required actual possession in order to give it to Idso. Rev.Codes of Mont. § 8687 provides in part: “The detriment caused by the wrongful occupation of real property * * * is deemed to be the value of the use of the property for the time of such occupation * * Section 9901 provides in part: “ * * * the court * * * shall also assess the damages occasioned to the plaintiff by any * * * unlawful detainer * * * and find the amount of any rent * * * and the judgment shall be rendered against the defendant * * * for three times the amount of the damages thus assessed, and of the rent found due.” It is argued by appellant, that since Idso had paid the rent for the first year, the landlord could not be damaged, and there being no rent due, a money judgment was unauthorized. However, we think it cannot be said that the first year’s rent was paid, because Idso, not obtaining possession, is entitled to recover the rent he paid. 1 Tiffany on Real Property (2d Ed.) § 50. Therefore, by § 9901 judgment was authorized "for three times the amount of the damages” which are by § 8687 “the value of the use of the property for the time of” the occupation by appellant. The latter statute has been construed to mean that “the value of the use of the property” may be measured by the rental value. Leyson v. Davenport, 38 Mont. 62, 98 P. 641. Finally, it is contended that the judgment should have been for only three times the amount which is equal to five-twelfths of $493.75, because appellant was not in possession of the property except for five months after the lease expired. We think appellant conceded, by the testimony above quoted, that he was in possession for a year. Affirmed. HEALY, Circuit Judge, concurs in the result. Question: What is the specific issue in the case within the general category of "miscellaneous"? A. miscellaneous interstate conflict B. other federalism issue (only code as issue if opinion explicitly discusses federalism as an important issue - or if opinion explicity discusses conflict of state power vs federal power) C. attorneys (disbarment; etc) D. selective service or draft issues (which do not include 1st amendment challenges) E. challenge to authority of magistrates, special masters, etc. F. challenge to authority of bankruptcy judge or referees in bankruptcy G. Indian law - criminal verdict challenged due to interpretation of tribal statutes or other indian law H. Indian law - commercial disputes based on interpretation of Indian treaties or law (includes disputes over mineral rights) I. Indian law - Indian claims acts and disputes over real property (includes Alaska Native Claims Act) J. Indian law - federal regulation of Indian land and affairs K. Indian law - state/local authority over Indian land and affairs L. Indian law - tribal regulation of economic activities (includes tribal taxation) M. other Indian law N. international law O. immigration (except civil rights claims of immigrants and aliens) P. other Q. 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. RICH’S OF PLYMOUTH, INC., Respondent. No. 77-1497. United States Court of Appeals, First Circuit. Argued April 4, 1978. Decided June 6, 1978. Lee Ann Huntington, Atty., Washington, D. C., with whom John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Elliott Moore, Deputy Associate General Counsel, and William R. Stewart, Atty., Washington, D. C., were on brief, for petitioner. Duane R. Batista, Boston, Mass., with whom David E. Watson and Nutter, McClennen & Fish, Boston, Mass., were on brief, for respondent. Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges. COFFIN, Chief Judge. The National Labor Relations Board (the Board) seeks enforcement of a cease and desist order issued after its finding that respondent violated section 8(a)(1) of the National Labor Relations Act (the Act) (1) by soliciting employee grievances and promising and granting benefits with intent to discourage support for a union campaign and (2) by creating an impression of surveillance among the employees. Also at issue is whether respondent shall be required to reinstate with back pay a union supporter who walked off her job in a fit of pique on a busy night. We first address those portions of the Board’s order which we enforce. Promise and Grant of Benefits Respondent is a chain of nine retail stores. In April, 1976, Local 222 of the Retail Clerks International Association, AFL-CIO embarked on a campaign to organize the employees of respondent’s Plymouth, Massachusetts store. A flyer distributed among the employees announced that an initial organizational meeting would be held on April 26. The same day of the union’s first meeting, Gerald Costello, personnel and operations manager for the chain, convened the entire workforce, scheduling separate meetings for the day and night shift employees. Addressing the day employees first, Costel- ■ lo discussed the union campaign and the effect of signing authorization cards. He then asked if the employees had any problems. Two subjects were raised: health insurance and the establishment of a grievance committee. Costello agreed to investigate both proposals. He explained that if implemented, a health insurance plan would cover all stores in the Rich’s chain, not just the Plymouth branch, and would be jointly financed by management and the employees. On May 10 Costello met with a group of 15 or 20 night shift employees. This group’s reaction to the two suggestions made by the day personnel was favorable. Costello told them that a grievance committee procedure would be established and that management would pursue the proposal for health insurance. A short time later a grievance committee ballot box was installed in the Plymouth store. Two days later it was removed. After the May 10 meeting, no further mention was made of the health insurance proposal. Store supervisors were directed to answer any inquiries about the progress of the employees’ suggestions by stating that the company “had been advised not to go into this at this point.” Early in May respondent instituted a pay increase of 5 cents per hour for all employees in the chain. On May 14, the union filed a petition with the Board to represent the Plymouth store workforce. An election was conducted on July 22 in which the union lost by a margin of 41 votes to 22, with 7 ballots challenged. Subsequently the union filed unfair labor practice charges and sought to have the election overturned. We sustain the Board’s conclusion that respondent violated section 8(a)(1) of the Act by soliciting employee grievances and promising benefits during the pendency of this union campaign. One indication that the grievance sessions conducted in this case could be found to have been calculated to infringe upon the employee freedom of choice with respect to unionization, NLRB v. Exchange Parts, 375 U.S. 405, 409, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964), is their timing. Ordinarily, the more imminent a representational election, the greater the presumption that management’s expression of concern for employee welfare has an impermissible motive, see NLRB v. Styletek, Division of Pandel-Bradford, Inc., 520 F.2d 275, 277 (1st Cir. 1975). Here an election had not yet been requested at the time the employees were convened and additional benefits were discussed, a fact seemingly in respondent’s favor, see id. However, it appears to be no mere coincidence that Costello called for the meetings, inquired of the day employees’ grievances, and promptly responded to their suggestions the very day the union had chosen for its first organizational meeting. We think it reasonable to conclude that the grievance sessions were timed to nip the union effort in the bud. The manner of convening the workforce adds support to the Board’s finding. Neither grievance session was a regularly scheduled event, see NLRB v. South Shore Hospital, 571 F.2d 677, 681 (1st Cir. 1978). The meetings were not called by the employees, but were initiated by management, and concededly in response to the union presence at the store, see NLRB v. Gotham Industries, 406 F.2d 1306, 1311 (1st Cir. 1969). Costello asked for the employees’ proposed improvements promptly after having acknowledged that the union was attempting to organize. When contrasted to respondent’s characteristic method of dealing with employee complaints on an individual, informal basis, convocation of the entire workforce conveyed the impression that with a union campaign in progress, employee suggestions would be taken more seriously. Some evidence, although it was specifically discredited by the administrative law judge, indicates that the proposal for a health insurance plan may at least have been considered by management prior to the union’s appearance at the Plymouth store, see NLRB v. Arrow Elastic Corp., 573 F.2d 702, 706 (1st Cir. 1978). Even if that were the case, it would not mitigate the effects of respondent’s conduct. No specific details of such a plan were communicated to the employees prior to April 26, nor did management ever unconditionally commit itself to providing health insurance, id.; NLRB v. Exchange Parts, supra, 375 U.S. at 409, 84 S.Ct. 457. In any event, there is no basis for believing that the second improvement discussed with the employees at the same time, establishment of a grievance committee, had been predetermined, see NLRB v. Arrow Elastic Corp., supra. That idea originated with the day employees at the April 26 meeting. No business justification was even offered for management’s sudden interest in it, see NLRB v. Otis Hospital, 545 F.2d 252 (1st Cir. 1976). Respondent seeks support in the fact that whatever promises may have been made at the meetings were never put into effect. In what appears to have been a belated effort to avoid a probable unfair labor practice charge, respondent removed the grievance committee ballot box before an election could be held, made no further mention of the proposal for health insurance, and gave an explanation for its action which was carefully phrased to avoid reference to the union. As we have noted in previous decisions, we are not insensitive to attempts by an employer to mitigate impermissible conduct, see Sta-Hi Division, Sun Chemical Corp. v. NLRB, 560 F.2d 470, 474 (1st Cir. 1977). Once the promises had been made, however, the requisite laboratory conditions for a representational election had been destroyed, and even good faith efforts to blunt their impact could not make it otherwise, id. Similarly, we agree with the Board that the implementation of a 5 cent per hour pay increase violated section 8(a)(1). Although it is not invariably an unfair labor practice to increase compensation while a union campaign is underway, such conduct makes out a prima facie case of intentional interference with employee organizational rights, see NLRB v. Styletek, supra, 520 F.2d at 280. The burden then shifts to the employer to justify both the fact and the timing of the increase, id. Respondent argues that it carried that burden by introducing evidence that the decision to increase wages was made in January, 1976, before the union made its presence known, and was implemented pursuant to a consistently applied policy of granting raises in the spring and fall of each year, see D’Youville Manor v. NLRB, 526 F.2d 3, 5 (1st Cir. 1975). However, the administrative law judge and the Board discredited testimony by respondent’s president that by January, 1976, management had resolved to increase wages. We have no basis for disturbing that finding, based as it was on an assessment of credibility, see NLRB v. Garland Corp., 396 F.2d 707, 709 (1st Cir. 1968). Similarly, the Board was unpersuaded, and we think with good reason, by the argument that the timing of the raise was in line with pre-existing company policy. Between 1972 and 1974 wages were in-creased every six months, in April and October. That pattern was interrupted in 1974 and subsequent increases, mandated by changes in federal minimum wage requirements, were instituted in May, 1974, January, 1975, and January, 1976. The next voluntary pay increase was not until May, 1976. No evidence indicates that the employees had any expectation that they would receive the 5 cent raise, much less that it would be in that month. Since respondent had only once given a raise in May, and that had been two years prior to the period in question, we, like the Board, are unconvinced that respondent had a history of showing its munificence in May. Respondent’s conceded awareness of the union presence at the time it put the increase into effect undermines its argument all the more, see NLRB v. Arrow Elastic Corp., supra, at 704; NLRB v. Gotham Industries, supra, 406 F.2d at 1310. On these facts it appears that even if it might have been decided in advance, the wage increase was “sprung on the employees in a manner calculated to influence the employees’ choice”, NLRB v. Styletek, supra, 520 F.2d at 280. Impression of Surveillance We are somewhat more troubled by the Board’s finding that respondent violated section 8(a)(1) by creating an impression of surveillance among its employees. Late in a working day toward the end of April, 1976, a store employee approached Aida Pereira, a union supporter, to ask for her telephone number. According to Pereira, she did not have any paper, and so wrote the number on the back of a blank union authorization card. Steven Rice, then the store manager, called Pereira aside and said, “Aida I know that you are responsible for this.” The administrative law judge concluded that although Rice’s statement was “less than explicit”, in view of the other unfair labor practices respondent had committed and the fact that a union authorization card was involved in the incident, an impression of surveillance had been created. Part of our difficulty with this conclusion stems from the fact that this episode was short-lived and appeared to be the only one that occurred during the entire union campaign, see Stone & Webster Engineering Corp. v. NLRB, 536 F.2d 461, 468 (1st Cir. 1976); NLRB v. Garland Corp., supra, 396 F.2d at 709. Rice’s comment was at best vague, and contained no reference to the union, or threat of reprisals, see NLRB v. Sandy’s Stores, 398 F.2d 268 (1st Cir. 1968); NLRB v. Prince Macaroni Mfg. Co., 329 F.2d 803 (1st Cir. 1964). Even if Rice had mentioned the union, Pereira was known to management as a union supporter, see Hedstrom Co. v. NLRB, 558 F.2d 1137, 1144 (3d Cir. 1977). The Act does not prevent an employer from acknowledging an employee’s union activity, without more, see NLRB v. Mueller Brass Co., 509 F.2d 704, 709 (5th Cir. 1975). Nevertheless, “[bjecause this finding is largely grounded on the fact finder’s judgment concerning the credibility of the witness and on unrefuted testimony, we conclude that it was supported by substantial evidence and should not be disturbed”, see Stone & Webster v. NLRB, supra, 536 F.2d at 468. Refusal to Rehire It is at the point of reviewing the finding that a section 8(a)(3) violation occurred that we part company with the Board. Jean Schembri, the employee in question, was one of two employees who worked at a jewelry concession in the Plymouth store. Evidence indicated that on several occasions she had expressed interest in the union to respondent’s supervisory personnel. On July 9,1976 Schembri reported for her evening shift. Customarily a busy night, that Friday promised to be especially so, since an ear piercing clinic was to take place. Schembri approached the concession manager Mary Fontaine and the supervisor Dottie McDonald to inquire about holiday pay she had claimed, after advice from the union, but not received and to renew a complaint about a reduction in the number of hours she had been scheduled to work. When Fontaine informed her she was expected to work at an ear piercing clinic to be held the following day, Schembri protested that she had not been notified of this. Fontaine pointed out that the schedule had been posted two days earlier. Displaying some anger, McDonald suggested that she and Fontaine leave. Schembri asked to speak to McDonald and returned to her station, apparently expecting McDonald to follow. When she discovered that McDonald had left the concession without talking to her, Schembri stormed over to the service desk, announced to assistant store manager Croteau that she was quitting, and told him to find a replacement for her. After giving a substitute employee brought over from the service desk some instruction on preparation for the ear piercing clinic, Schembri left. Soon after she returned home, Schembri informed Fontaine by telephone that she had quit. Several hours later she again called Fontaine, apologized, and asked for her job back. Fontaine responded that although Schembri had been a good employee, the matter was up to management. She agreed to relay Schembri’s desire to be rehired to McDonald, but noted that the latter was upset with Schembri because of her comments about the union. Several telephone calls with various supervisory personnel and the concession owner followed, but Schembri was not reinstated. Two days later a replacement was hired. Both parties treat this case precisely the same as one in which there has been an allegation of an unlawful discharge and seem to have assumed that the employer had an obligation to come forward with an explanation for its failure to reinstate Schembri. That premise does not strike us as so obvious. Schembri was not discharged, impermissibly or otherwise, see, e. g. Stone & Webster v. NLRB, supra, 536 F.2d 461. Nor was it ever argued that, by walking off her job, she joined in concerted activity protected by the Act, see NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967); Bob’s Casing Crews, Inc. v. NLRB, 429 F.2d 261, after remand, 458 F.2d 1301 (5th Cir. 1972); Colson Corp. v. NLRB, 347 F.2d 128 (8th Cir. 1965). Rather, she unilaterally and precipitously quit her job for a reason unconnected to her union sympathies, see LTV Electrosystems, Inc. v. NLRB, 408 F.2d 1122, 1127 (4th Cir. 1969); NLRB v. J. W. Mays, Inc., 356 F.2d 693, 695 (2d Cir. 1966). Under such circumstances Schembri’s rights seem to us to approximate more closely those of a job applicant than those of a discharged employee. Just as union membership or sympathy has not been regarded as an insurance policy for job placement, it cannot assure that an employee who quits and then changes her mind will be reinstated, see NLRB v. Plymouth Cordage Co., 381 F.2d 710, 711 n. 2 (5th Cir. 1967). An employer who refuses to reinstate an employee who voluntarily terminated is arguably in a stronger position to defend its action than one who has discharged the employee. By the same token a correspondingly heavier burden might rest on the Board to prove a section 8(a)(3) violation, see Champion Papers, Inc. v. NLRB, 393 F.2d 388, 394-95 (6th Cir. 1967). Nevertheless, we do not rest our decision on any such difference in defenses and burdens. Even assuming that in both circumstances the employee has the same right to reinstatement judged against the same standard, we conclude that the Board erred in finding that respondent’s refusal to rehire Schembri violated section 8(a)(3). It was conceded here that management was aware of Schembri’s interest in the union movement at the time it was confronted with her request for reinstatement, compare Stone & Webster v. NLRB, supra, 536 F.2d at 464, with NLRB v. Joseph Antell, Inc., 358 F.2d 880, 882 (1st Cir. 1966). There is also evidence that management demonstrated some hostility toward the union effort. However, management alleged, and offered supporting evidence, that it had refused to rehire Schembri not on that basis, but because she had left them in the lurch at an especially bad time. Respondent having offered a legitimate business justification for its conduct, the burden shifted to the Board to establish by substantial evidence “an affirmative and persuasive reason why the employer rejected the good cause and chose a bad one”, NLRB v. Billen Shoe Co., 397 F.2d 801, 803 (1st Cir. 1968). In our repeated efforts to impress this standard upon the Board we have variously redefined it to mean that the decision would not have been made “but for” the employee’s union activity, Coletti’s Furniture, Inc. v. NLRB, 550 F.2d 1292, 1293 (1st Cir. 1977), that union animus was the “dominant” reason, NLRB v. Lowell Sun Publishing Co., 320 F.2d 835, 842 (1st Cir. 1963), or the “controlling” motive, NLRB v. Fibers Int’l Corp., 439 F.2d 1311, 1315 (1st Cir. 1971). By whatever phraseology, we have attempted to make it clear that “the mere existence of anti-union animus is not enough” to make out a section 8(a)(3) violation, NLRB v. Billen Shoe, supra, 397 F.2d at 803. Here the administrative law judge, upheld by the Board, acknowledged that respondent had asserted a business reason for its conduct, but dismissed it as “improbable” and concluded that “but for” the union activity, Schembri would have been rehired. While the magic words may have been invoked, that is not enough, see Coletti’s Furniture, supra, 550 F.2d at 1293. Our standard must also be reasonably applied to the facts at issue, id. We are unable to convince ourselves that this was done. This case is unlike Champion Papers Inc. v. NLRB, supra, 393 F.2d at 394, for example, where the asserted reason for the employer’s action, “dissatisfaction” and “attitude”, appeared unsubstantiated or inconsequential. Here respondent’s refusal to rehire Schembri had a sound basis in business judgment. The only employee at the jewelry counter, Schembri had walked out in a fit of temper at the outset of one of respondent’s busiest retail nights, requiring the supervisors to draft an untrained last minute substitute from one of the other departments. An employer’s unwillingness to rehire an employee who demonstrated such irresponsibility and lack of consideration is quite understandable. Moreover, respondent presented evidence to the administrative law judge that it had acted in accordance with a pre-existing policy of refusing to reinstate employees who quit without notice or a valid excuse. The Board summarily dismissed the proffered reason as “improbable”, see NLRB v. Fibers Int'l Corp., supra, 439 F.2d at 1315, and assorted that respondent’s rein- statement policy was the exact opposite of what respondent asserted it to be, i. e., that in the past respondent had always rehired employees who terminated voluntarily, and had failed to do so only in this case. The Board’s assertion is belied by the record. Of the two examples the Board relied upon to reach its conclusion, one concerns a rehired employee who had given notice prior to resigning. The other relates to a young boy who was discharged for stealing. He was indeed rehired, but only after his parents managed to persuade respondent that the boy had learned his lesson. In all instances of voluntary termination without notice or explanation cited in the record, the employees in question were not reinstated and it was noted in their personnel files that they were ineligible for rehire. See NLRB v. Murray Ohio Mfg. Co., 326 F.2d 509, 514 (6th Cir. 1963). In sum, Schembri genuinely quit without notice on her own volition at a pressing time over a matter wholly unrelated to any concerted activity or bargaining. The employer’s professed reason for refusing to rehire her not only is readily understandable as a matter of common sense but was in conformity with a written policy which was, contrary to the Board’s analysis, faithfully followed. While the employer knew that Schembri was a union supporter, there is nothing to indicate that she was other than rank-and-file. All that is left is that management representatives had demonstrated some hostility toward union efforts in conversations with Schembri and had committed some illegal actions in other contexts. On this record we find this to be insufficient evidence of dominant antiunion motive to overcome the legitimate business justification for respondent’s conduct, see Stone & Webster v. NLRB, supra, 526 F.2d at 465; NLRB v. Puerto Rico Telephone Co., 357 F.2d 919, 920 (1st Cir. 1966); NLRB v. Bird Machine Co., 161 F.2d 589, 591 (1st Cir. 1947). In Coletti’s Furniture, Inc. v. NLRB, supra, 550 F.2d at 1293, we noted that after such repeated and unambiguous interpretation “there can be little reason for us to rescue the Board hereafter if it does not both articulate and apply our rule”. Our rescue mission stops here. So much of the Board’s order as directs that Schembri be reinstated with back pay is set aside. That portion of the order as concerns the violation of section 8(a)(1) is enforced. So ordered. . It is unclear from the administrative law judge’s report whether the wage increase was implemented before or after the union filed its petition with the Board. The precise date is unimportant, for it is conceded that at the time the increase went into effect respondent was aware of the union activity in its Plymouth store, see NLRB v. Gotham Industries, Inc., 406 F.2d 1306, 1310 (1st Cir. 1969). . The administrative law judge found that the benefits discussed at the meetings were never actually conferred, There is no claim on appeal that respondent committed a separate unfair labor practice by withholding promised benefits, see NLRB v. Otis Hospital, 545 F.2d 252 (1st Cir. 1976). . Whether well timed raises create a rebuttable presumption of a violation, as the Board found, or a prima facie case of misconduct, is immaterial to the disposition of this case. In either event the company was called upon to present substantial evidence in opposition to the charge, see NLRB v. Styletek, Division of Pandel-Bradford, Inc., 520 F.2d 275, 280 (1st Cir. 1975). It failed to do so. . This can be inferred from the fact that by Pereira’s own testimony, at some point after management’s meetings with the day and night shift employees, but before this incident, personnel manager Costello asked for her reaction to the proposal for implementing health insurance. Pereira responded that she “wanted union representation”. . Although independently owned, the concession was operated under the supervision of Rich’s employees. . Schembri recounted to the administrative law judge a series of conversations with the concession manager which, if believed, would have indicated some anti-union animus on the part of the supervisory personnel. Favorably im- , pressed by the manager’s demeanor, and unconvinced by Schembri’s testimony, which he termed “hostile and robot-like”, the administrative law judge disbelieved Schembri’s version of these discussions, except where corroborated by the manager. . The briefs cite pretext dismissal cases. . Inclusion of the phrase “but for” constitutes . the only reference in the administrative law judge’s memorandum to any standard. No decision of this court was cited, see NLRB v. Fibers Int’l Corp., 439 F.2d 1311, 1312 (1st Cir. 1971), and there was no elaboration on the “but for” language. . That Schembri had been considered a competent employee and it may arguably have been in respondent’s interest to bend policy in order to rehire her does not refute the legitimacy of respondent’s refusal to do so. The business justification was within respondent’s realm to make, see Champion Papers, Inc. v. NLRB, 393 F.2d 388, 394 (6th Cir. 1967). It is neither the Board’s function, nor indeed ours, to second-guess business decisions. "The Act was not intended to guarantee that business decisions be sound, only that they not be the product of antiunion motivation”, Stone & Webster Engineering Corp. v. NLRB, 536 F.2d 461, 467 (1st Cir. 1976) (emphasis in original). 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_origin

A

What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. UNITED STATES ex rel. TENNESSEE VALLEY AUTHORITY v. POWELSON et al. No. 4679. Circuit Court of Appeals, Fourth Circuit. Oct. 8, 1943. William C. Fitts, Jr., Gen. Counsel, Tennessee Valley Authority, of Knoxville, Tenn. (Charles J. McCarthy, Asst. Gen., Counsel, Tennessee Valley Authority, and Robert H. Marquis, both of Knoxville, Tenn., on the brief), for appellant and cross-appellee. G. Lyle Jones and George H. Wright, both of Asheville, N. C., for appellee and cross-appellant. Before PARKER, SOPER, and DOBIE, Circuit Judges. PARKER, Circuit Judge. The decision of this Court, rendered on-March 10, 1941, was to the effect that the award of damages by the District Court for property condemned by the United States should be modified by eliminating certain items from the award of damages and that, as so modified, the judgment appealed from should be affirmed. United States v. Powelson, 4 Cir., 118 F.2d 79. This decision was reversed by the Supreme Court because that Court was of the view that in arriving at the award of damages certain elements had been included in the valuation of the property which should not have been considered. United States v. Powelson, U.S., 63 S.Ct. 1047, 1057, 87 L.Ed. 1390. We have given careful consideration to what should be the future procedure in the case, and are of opinion that it should be remanded to the District Court for further proceedings in accordance with the principles laid down by the Supreme Court, and with leave to the parties to produce additional testimony, if they so desire. In reversing the decision of this Court, the Supreme Court held that the respondent’s privilege to use the power of eminent domain might not be considered in determining whether there was a reasonable probability of the lands in question being combined with other tracts into a power project in the reasonably near future, and that respondent had not established the basis for proof of the “water power value” which was asserted, except upon the assumption that it possessed the power of eminent domain. The limited nature of the decision was shown by the opening sentence of the next to the last paragraph of the opinion wherein the Court said: “We hold only that profits, attributable to the enterprise which respondent hoped to-launch, are inadmissible as evidence of the value of the lands which were taken.” The Court went on to say: “Respondent is, of course, entitled to the market value of the property fairly determined. And that value should be found in accordance with the established rules (United States v. Miller, supra [317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. -]) — uninfluenced, so far as. practicable, by the circumstance that he whose lands are condemned has the power of eminent domain.” The Miller case [317 U.S. 369, 63 S.Ct. 280, 87 L.Ed.-] cited in the excerpt from the opinion goes fully into the principles, to be applied in determining valuation and states that “the market value of the property is to be fixed with due consideration of all its available uses”, citing Boom Co. v. Patterson, 98 U.S. 403, 407, 408, 25 L.Ed. 206. The rule is thus, stated in the case last cited: “In determining the value of land appropriated for public purposes, the same considerations are to be regarded as in a sale of property between private parties. The inquiry in such cases must be what is the property worth in the market, viewed not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted; that is to say, what is it worth from its availability for valuable uses. Property is not to be deemed worthless because the owner allows it to go to waste, or to be regarded as valueless because he is unable to put it to any use. Others may be able to use it, and make it subserve the necessities or conveniences of life. Its capability of being made thus available gives it a market value which can be readily estimated. “So many and varied are the circumstances to be taken into account in determining the value of property condemned for public purposes, that it is perhaps impossible to formulate a rule to govern its appraisement in all cases. Exceptional circumstances will modify the most carefully guarded rule; but, as a general thing, we should say that the compensation to the owner is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future.” Nothing said by the Supreme Court changes in any way the rule as to damages laid down in Olson v. United States, 292 U.S. 246, 256, 54 S.Ct. 704, 708, 78 L.Ed. 1236, from which we quoted in our opinion as follows: “The highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future is to be considered, not necessarily as the measure of value, but to the full extent that the prospect of demand for such use affects the market value while the property is privately held. Mississippi & R. River Boom Co. v. Patterson, 98 U.S. 403, 408, 25 L.Ed. 206; Clark’s Ferry Bridge Co. v. Public Service Comm., 291 U.S. 227, 54 S.Ct. 427, 78 L.Ed. 767; 2 Lewis, Eminent Domain (3d Ed.) § 707, p. 1233; 1 Nichols, Eminent Domain (2d Ed.) § 220, p. 671. The fact that the most profitable use of a parcel can be made only in combination with other lands does not necessarily exclude that use from consideration if the possibility of combination is reasonably sufficient to affect market value. Nor does the fact that it may be or is being acquired by eminent domain negative consideration of availability for use in the public service. [City of] New York v. Sage, 239 U.S. 57, 61, 36 S.Ct. 25, 60 L.Ed. 143. It is common knowledge that public service corporations and others having that power frequently are actual or potential competitors not only for tracts held in single ownership but also for rights of way, locations, sites, and other areas requiring the union of numerous parcels held by different owners. And, to the extent that probable demand by prospective purchasers or condemnors affects market value, it is to be taken into account. [Mississippi & R. River] Boom Co. v. Patterson, ubi supra.” The difficulty presented by the record in this case is that the evidence of value produced by the owner was based almost entirely on profits of the enterprise which he hoped to launch, whereas the evidence on the other side consisted almost entirely of the opinions of those who valued the land merely as wild mountain land without reference to any value it might have because of its availability as a power site. Opinions of persons knowing nothing of the value of land for water power purposes are not a fair criterion of its value, where there is evidence that it is available for such purposes. Persons in the immediate neighborhood may not be in position to testify as to such value, but there may be others who are qualified to testify. Certainly one who has embarked upon the enterprise of a great water power development, has purchased and brought together thousands of acres of land for the purpose and spent hundreds of thousands of dollars in the enterprise, is entitled to have his holdings valued on some other basis than that of numerous small separated tracts of wild mountain land, if it be found, irrespective of the possession of the power of eminent domain by the landowner, that “there is a reasonable probability of the lands in question being combined with other tracts into a power project in the reasonably near future”. Market value is nothing but a hypothetical concept based upon what, in the opinion of those who know, a willing buyer would have to pay a willing seller of property in order to purchase it. The question here is, not what wild mountain land was selling for in the community, but what would the portion of land owned by Powelson and available for this water power development have been reasonably worth on the market when sold by one who was willing but not compelled to sell and bought by one who was willing but not compelled to buy. In arriving at this valuation, it is proper that those who make it take into consideration the fact that a large body of land has been brought together under one ownership and any special value that it may have acquired because of this fact. If the parties desire to adduce additional evidence on this question in the light of the Supreme Court’s decision, they should be allowed to do so. If they do not so desire, the valuation should at all events be made in the first instance by the court below, because of the opportunity which the judges and commissioners of that court have had to view the land and hear the witnesses as to valuation testify. The judgment below will accordingly be reversed and the case will be remanded to the District Court for further proceedings not inconsistent herewith. Reversed and remanded. 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_circuit

I

What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. Ruben BENN, Plaintiff-Appellant, v. Frank A. EYMAN, Warden, Defendant-Appellee. No. 25546. United States Court of Appeals, Ninth Circuit. Jan. 19, 1971. McCafferty & Loftus, Phoenix, Ariz., for plaintiff-appellant. Gary K. Nelson, Ariz. Atty. Gen., Carl Wagg, Asst. Atty. Gen., Phoenix, Ariz., for defendant-appellee. Before CHAMBERS, BARNES and TRASK, Circuit Judges. PER CURIAM: Petitioner, a state prisoner, appeals from the order of the district court denying his petition for writ of habeas corpus. We affirm the order of the district court. Petitioner was charged with three felonies, one count of attempted rape and two counts of burglary. On the scheduled day of trial on the attempted rape charge, which was to be tried first, the attorney prosecuting that charge was ill. The trial was continued, and one of the burglary counts was set to be tried the next day. The next day, petitioner’s appointed counsel moved for a continuance because he did not have a copy of the transcript of the preliminary hearing for the burglary count to be tried that day. The state trial court denied the motion because defense counsel had, on the previous day, stated that he had the transcript for the burglary charge. Petitioner then withdrew his plea of not guilty to the burglary count on trial and entered a plea of guilty. The charge of attempted rape and the other burglary count were dismissed. Petitioner’s principal contention on appeal is that Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) requires that his writ be granted. Boykin, where there was no allegation that the guilty plea was involuntary, held that it was constitutional error for a state trial judge to accept the guilty plea “without an affirmative showing that it was intelligent and voluntary.” 395 U.S. at 242, 89 S.Ct. at 1711. Petitioner argues that his conviction must be reversed because the state trial judge made no interrogation to determine whether his guilty plea was voluntary and intelligent before accepting the plea; and also because there was no showing that he changed his plea knowingly, voluntarily and intelligently. Boykin was decided in 1969. Petitioner’s guilty plea was entered in 1964. This court has held that Boykin is not retroactive. Moss v. Craven, 427 F.2d 139 (9th Cir. 1970). Other circuits are in accord. Meller v. Missouri, 431 F.2d 120 (8th Cir., 1970); United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3d Cir. 1969). Therefore, the absence of interrogation of petitioner at the time his plea was entered does not alone require reversal. The district court at the conclusion of the evidentiary hearing held that petitioner’s plea was voluntary. The district court found that the guilty plea was the result of plea bargaining. This court has held that a guilty plea is not involuntary merely because it results' from plea bargaining. Jones v. United States, 423 F.2d 252 (9th Cir. 1970); United States v. Thomas, 415 F.2d 1216 (9th Cir. 1969); Gilmore v. California, 364 F.2d 916 (9th Cir. 1966); Cortez v. United States, 337 F.2d 699 (9th Cir. 1964). Petitioner contends that his guilty plea was not the result of plea bargaining. He argues that there was nothing in the record to indicate that a deal was entered into or, if there was a deal, that petitioner was aware of it and agreed to it. The finding of the district court is supported by the record. Defense counsel testified that there was a deal to drop the other two charges if petitioner would plead guilty to burglary. He also testified that he informed petitioner of the deal and suggested, with full knowledge of the facts, that petitioner accept it. Petitioner testified that defense counsel informed him of the deal and advised him to take it. Petitioner knew that if he pleaded not guilty he would have a trial. The lawyer who represented petitioner at the time of the plea bargaining and the guilty plea was also the lawyer who represented petitioner at the preliminary hearing on that same charge and was personally present at the preliminary hearing so that petitioner and his lawyer were both aware of what took place, even in the absence of a reporter’s transcript. Affirmed. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:

sc_issuearea

A

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. Shawn Patrick LYNCH v. ARIZONA. No. 15-8366. Supreme Court of the United States May 31, 2016. PER CURIAM. Under Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), and its progeny, "where a capital defendant's future dangerousness is at issue, and the only sentencing alternative to death available to the jury is life imprisonment without possibility of parole," the Due Process Clause "entitles the defendant 'to inform the jury of [his] parole ineligibility, either by a jury instruction or in arguments by counsel.' " Shafer v. South Carolina, 532 U.S. 36, 39, 121 S.Ct. 1263, 149 L.Ed.2d 178 (2001) (quoting Ramdass v. Angelone, 530 U.S. 156, 165, 120 S.Ct. 2113, 147 L.Ed.2d 125 (2000) (plurality opinion)). In the decision below, the Arizona Supreme Court found that the State had put petitioner Shawn Patrick Lynch's future dangerousness at issue during his capital sentencing proceeding and acknowledged that Lynch's only alternative sentence to death was life imprisonment without parole. 238 Ariz. 84, 103, 357 P.3d 119, 138 (2015). But the court nonetheless concluded that Lynch had no right to inform the jury of his parole ineligibility. Ibid. The judgment is reversed. A jury convicted Lynch of first-degree murder, kidnapping, armed robbery, and burglary for the 2001 killing of James Panzarella. The State sought the death penalty. Before Lynch's penalty phase trial began, Arizona moved to prevent his counsel from informing the jury that the only alternative sentence to death was life without the possibility of parole. App. K to Pet. for Cert. The court granted the motion. Lynch's first penalty phase jury failed to reach a unanimous verdict. A second jury was convened and sentenced Lynch to death. On appeal, the Arizona Supreme Court vacated the sentence because the jury instructions improperly described Arizona law. The court did not address Lynch's alternative argument that the trial court had violated Simmons . On remand, a third penalty phase jury sentenced Lynch to death. The Arizona Supreme Court affirmed, this time considering and rejecting Lynch's Simmons claim. The court agreed that, during the third penalty phase, "[t]he State suggested ... that Lynch could be dangerous." 238 Ariz., at 103, 357 P.3d, at 138. The court also recognized that Lynch was parole ineligible: Under Arizona law, "parole is available only to individuals who committed a felony before January 1, 1994," and Lynch committed his crimes in 2001. Ibid. (citing Ariz.Rev.Stat. Ann. § 41-1604.09(I) ). Nevertheless, while "[a]n instruction that parole is not currently available would be correct," the court held that "the failure to give the Simmons instruction was not error." 238 Ariz., at 103, 357 P.3d, at 138. That conclusion conflicts with this Court's precedents. In Simmons, as here, a capital defendant was ineligible for parole under state law. 512 U.S., at 156, 114 S.Ct. 2187 (plurality opinion). During the penalty phase, the State argued that the jurors should consider the defendant's future dangerousness when determining the proper punishment. Id., at 157, 114 S.Ct. 2187. But the trial court refused to permit defense counsel to tell the jury that the only alternative sentence to death was life without parole. Id., at 157, 160, 114 S.Ct. 2187. The Court reversed, reasoning that due process entitled the defendant to rebut the prosecution's argument that he posed a future danger by informing his sentencing jury that he is parole ineligible. Id., at 161-162, 114 S.Ct. 2187 ; id., at 178, 114 S.Ct. 2187 (O'CONNOR, J., concurring in judgment). The Court's opinions reiterated that holding in Ramdass, Shafer, and Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002). The Arizona Supreme Court thought Arizona's sentencing law sufficiently different from the others this Court had considered that Simmons did not apply. It relied on the fact that, under state law, Lynch could have received a life sentence that would have made him eligible for "release" after 25 years. 238 Ariz., at 103-104, 357 P.3d, at 138-139 ; § 13-751(A). But under state law, the only kind of release for which Lynch would have been eligible-as the State does not contest-is executive clemency. See Pet. for Cert. 22; 238 Ariz., at 103-104, 357 P.3d, at 138-139. And Simmons expressly rejected the argument that the possibility of clemency diminishes a capital defendant's right to inform a jury of his parole ineligibility. There, South Carolina had argued that the defendant need not be allowed to present this information to the jury "because future exigencies," including "commutation [and] clemency," could one day "allow [him] to be released into society." 512 U.S., at 166, 114 S.Ct. 2187 (plurality opinion). The Court disagreed: "To the extent that the State opposes even a simple parole-ineligibility instruction because of hypothetical future developments, the argument has little force." Ibid. ; id., at 177, 114 S.Ct. 2187 (opinion of O'CONNOR, J.) (explaining that the defendant had a right "to bring his parole ineligibility to the jury's attention" and that the State could respond with "truthful information regarding the availability of commutation, pardon, and the like"). The State responds that Simmons " 'applies only to instances where, as a legal matter, there is no possibility of parole.' " Brief in Opposition 11 (quoting Ramdass, 530 U.S., at 169, 120 S.Ct. 2113 (plurality opinion)). Notwithstanding the fact that Arizona law currently prevents all felons who committed their offenses after 1993 from obtaining parole, 238 Ariz., at 103, 357 P.3d, at 138, Arizona reasons that "nothing prevents the legislature from creating a parole system in the future for which [Lynch] would have been eligible had the court sentenced him to life with the possibility of release after 25 years." Brief in Opposition 12. This Court's precedents also foreclose that argument. Simmons said that the potential for future "legislative reform" could not justify refusing a parole-ineligibility instruction. 512 U.S., at 166, 114 S.Ct. 2187 (plurality opinion). If it were otherwise, a State could always argue that its legislature might pass a law rendering the defendant parole eligible. Accordingly, as this Court later explained, "the dispositive fact in Simmons was that the defendant conclusively established his parole ineligibility under state law at the time of his trial." Ramdass, supra, at 171, 120 S.Ct. 2113 (plurality opinion). In this case, the Arizona Supreme Court confirmed that parole was unavailable to Lynch under its law. Simmons and its progeny establish Lynch's right to inform his jury of that fact. The petition for writ of certiorari and the motion for leave to proceed in forma pauperis are granted. The judgment of the Arizona Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Justice THOMAS, with whom Justice ALITO joins, dissenting. Petitioner Shawn Patrick Lynch and his co-conspirator, Michael Sehwani, met their victim, James Panzarella, at a Scottsdale bar on March 24, 2001. The three went back to Panzarella's house early the next morning. Around 5 a.m., Sehwani called an escort service. The escort and her bodyguard arrived soon after. Sehwani paid her $300 with two checks from Panzarella's checkbook after spending an hour with her in the bedroom. Lynch and Sehwani then left the house with Panzarella's credit and debit cards and embarked on a spending spree. The afternoon of March 25, someone found Panzarella's body bound to a metal chair in his kitchen. His throat was slit. Blood surrounded him on the tile floor. The house was in disarray. Police discovered a hunting knife in the bedroom. A knife was also missing from the kitchen's knifeblock. And there were some receipts from Lynch and Sehwani's spending spree. Police found Lynch and Sehwani at a motel two days after the killing. They had spent the days with Panzarella's credit and debit cards buying cigarettes, matches, gas, clothing, and Everlast shoes, renting movies at one of the motels where they spent an afternoon, and making cash withdrawals. When police found the pair, Sehwani wore the Everlast shoes, and Lynch's shoes were stained with Panzarella's blood. A sweater, also stained with his blood, was in the back seat of their truck, as were Panzarella's car keys. A jury convicted Lynch of first-degree murder, kidnaping, armed robbery, and burglary, and ultimately sentenced him to death. But today, the Court decides that sentence is no good because the state trial court prohibited the parties from telling the jury that Arizona had abolished parole. Ante, at 1818 - 1819; see Ariz.Rev.Stat. Ann. § 41-1604.09(I) (1999). The Court holds that this limitation on Lynch's sentencing proceeding violated Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). Under Simmons, "[w]here the State puts the defendant's future dangerousness in issue, and the only available alternative sentence to death is life imprisonment without possibility of parole, due process entitles the defendant to inform the capital sentencing jury-by either argument or instruction-that he is parole ineligible." Id., at 178, 114 S.Ct. 2187 (O'CONNOR, J., concurring in judgment). Today's summary reversal perpetuates the Court's error in Simmons . See Kelly v. South Carolina, 534 U.S. 246, 262, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002) (THOMAS, J., dissenting); Shafer v. South Carolina, 532 U.S. 36, 58, 121 S.Ct. 1263, 149 L.Ed.2d 178 (2001) (THOMAS, J., dissenting). As in Simmons, it is the "sheer depravity of [the defendant's] crimes, rather than any specific fear for the future, which induced the ... jury to conclude that the death penalty was justice." 512 U.S., at 181, 114 S.Ct. 2187 (SCALIA, J., dissenting). In Simmons, for example, the defendant beat and raped three elderly women-one of them his own grandmother-before brutally killing a fourth. See ibid. The notion that a jury's decision to impose a death sentence "would have been altered by information on the current state of the law concerning parole (which could of course be amended) is ... farfetched," to say the least. Id., at 184, 114 S.Ct. 2187. Worse, today's decision imposes a magic-words requirement. Unlike Simmons, in which there was "no instruction at all" about the meaning of life imprisonment except that the term should be construed according to its " '[plain] and ordinary meaning,' " id., at 160, 166, 114 S.Ct. 2187 (plurality opinion), here there was an instruction about the nature of the alternative life sentences that the trial court could impose: "If your verdict is that the Defendant should be sentenced to death, he will be sentenced to death. If your verdict is that the Defendant should be sentenced to life, he will not be sentenced to death, and the court will sentence him to either life without the possibility of release until at least 25 calendar years in prison are served, or 'natural life,' which means the Defendant would never be released from prison." App. S to Pet. for Cert. 18. That instruction parallels the Arizona statute governing Lynch's sentencing proceedings. That statute prescribed that defendants not sentenced to death could receive either a life sentence with the possibility of early release or a "natural life" sentence: "If the court does not sentence the defendant to natural life, the defendant shall not be released on any basis until the completion of the service of twenty-five calendar years," but a defendant sentenced to "natural life" will "not be released on any basis for the remainder of the defendant's natural life." Ariz.Rev.Stat. Ann. § 13-703(A) (2001). Even though the trial court's instruction was a correct recitation of Arizona law, the Court holds that Simmons requires more. The Court laments that (at least for now) Arizona's only form of early release in Arizona is executive clemency. Ante, at 1819. So the Court demands that the Arizona instruction specify that "the possibility of release" does not (at least for now) include parole. Due process, the Court holds, requires the court to tell the jury that if a defendant sentenced to life with the possibility of early release in 25 years were to seek early release today, he would be ineligible for parole under Arizona law. Ante, at 1819 - 1820. Nonsense. The Due Process Clause does not compel such "micromanage[ment of] state sentencing proceedings." Shafer, supra, at 58, 121 S.Ct. 1263 (THOMAS, J., dissenting). Today's decision-issued without full briefing and argument and based on Simmons, a fractured decision of this Court that did not produce a majority opinion-is a remarkably aggressive use of our power to review the States' highest courts. The trial court accurately told the jury that Lynch could receive a life sentence with or without the possibility of early release, and that should suffice. I respectfully dissent. Sehwani ultimately pleaded guilty to first-degree murder and theft and received a sentence of natural life without the possibility of early release plus one year. See 225 Ariz. 27, 33, n. 4, 234 P.3d 595, 601, n. 4 (2010). 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: