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ricdomolm

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lawma-instructions_gemma2_8k

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songer_source

A

What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals. UNITED STATES of America, Plaintiff-Appellee, v. Uless Grant MANSON et al., Defendants-Appellants. No. 73-1055. United States Court of Appeals, Seventh Circuit. Argued June 13, 1973. Decided April 9, 1974. Robert G. Mann, Indianapolis, Ind., for defendants-appellants. Stanley B. Miller, U. S. Atty., William F. Thompson, Asst. U. S. Atty., Indianapolis, Ind., for plaintiff-appellee. Before FAIRCHILD, Circuit Judge, SPRECHER, Circuit Judge, and GRANT, Senior District Judge. Senior District Judge Robert A. Grant of the Northern District of Indiana is sitting by designation. GRANT, Senior District Judge. The appellants and several other defendants were indicted as joint participants in an Indianapolis gambling operation. Count I charged that the appellants and seven other defendants engaged in a conspiracy to conduct an illegal gambling business in violation of 18 U.S.C. § 371. Count II charged that the appellants and six of the other defendants engaged in the same illegal gambling business in violation of 18 U.S.C. § 1955. Prior to trial the indictment was dismissed as to the one defendant who was charged only Count I, and as to another defendant who was charged in both Counts I and II, thus leaving seven named defendants in each Count. Appellants Blakey and Manson were tried and found guilty on both counts. In their appeal the appellants challenge: (1) whether the income tax return of an employee of the gambling business. should have been admitted in evidence; (2) the constitutionality of 18 U.S.C. § 1955; (3) whether this was an illegal gambling business “conducted by five or .more persons” within the meaning of 18 U.S.C. § 1955; and (4) whether the two counts properly charged two separate offenses. I Appellants assert that the trial court violated their Fifth Amendment privilege against self-incrimination when it received into evidence the 1971 Federal Income Tax Return of Irvin Kelly who was alleged to be an employee in the illegal gambling business in question. The return had been obtained from Mr. Kelly by subpoena and was introduced into evidence through the testimony of the accountant who had prepared the return from a W-2 Form and information which had been supplied by appellant Manson It is evident that the appellants had no standing to object to the introduction of Mr. Kelly’s tax return for the reason that the privilege against self-incrimination is personal and cannot be exercised by anyone other than the person to whom the material in question belongs. Howard v. United States, 397 F.2d 72, 74 (9th Cir. 1968), and Silbert v. United States, 289 F.Supp. 318, 320-321, 325 (D.Md.1968). Nor does the fact that Appellant Manson supplied the information contained on the return to their accountant, in order to comply with tax requirements in the operation of a business, give appellants any standing to object to the introduction of the return. The privilege against self-incrimination is not available to those who turn material over to a retained accountant for the purpose of disclosure in the preparation of tax returns. Couch v. United States, 409 U.S. 322, 337, 93 S. Ct. 611, 34 L.Ed.2d 548 (1973) (Justice Brennan concurring). II Appellants argue that 18 U.S.C. § 1955 is unconstitutional for the reason that it prohibits gambling businesses, such as the one which they were allegedly involved in, which do not affect interstate commerce. Admittedly, there was no evidence introduced at trial which would indicate that the appellants’ gambling activities had any effect whatsoever on interstate commerce. However, accepting the government’s interpretation of the facts, the gambling business which the appellants were involved in was large enough to come within the prohibition of 18 U.S.C. § 1955. That statute provides, in pertinent part, as follows: “§ 1955. Prohibition of illegal gambling businesses “(a) Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined not more than $20,000 or imprisoned not more than five years, or both. “(b) As used in this section— “(1) ‘illegal gambling business’ means a gambling business which— “(i) is a violation of the law of a State or political subdivision in which it is conducted; “(ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and “(iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.” 84 Stat. 922, 937. This statute was based on a broad finding by Congress that the gambling enterprises described in the statute have sufficient impact on the interstate economy to warrant prohibition by federal criminal legislation. See 84 Stat. 936. This circuit has held that such finding is sufficient to constitutionally support the statute even when it is applied to individual members of the class whose own activities may not have a demonstrable impact on interstate commerce. United States v. Hunter, 478 F.2d 1019, 1021 (7th Cir. 1973), cert, denied, 414 U.S. 857, 94 S.Ct. 162, 38 L.Ed.2d 107. This position has been previously adopted in each circuit which had been presented with the issue. United States v. Harris, 460 F.2d 1041, 1043-1048 (5th Cir. 1972), cert, denied, 409 U.S. 877, 93 S.Ct. 128, 34 L.Ed.2d 130; United States v. Palmer, 465 F.2d 697 (6th Cir. 1972), cert, denied, 409 U.S. 874, 93 S.Ct. 119, 34 L.Ed.2d 126; United States v. Becker, 461 F.2d 230, 233-234 (2nd Cir. 1972); United States v. Riehl, 460 F.2d 454, 458 (3rd Cir. 1972); Schneider v. United States, 459 F.2d 540 (8th Cir. 1972). Ill The appellants have also contended that the evidence failed to establish that there were five or more persons who conducted, financed, managed, supervised, directed or owned all or part of the business in question as required to constitute a violation of 18 U.S.C. § 1955. The parties agree that from the evidence, only the appellants themselves could have been said to have financed, managed, supervised, directed or owned all or part of the business. There were at least three other persons, however, who acted as ticket sellers or runners in the business. Appellants argue that these other persons could not be counted as part of the “five or more persons who conduct, finance, manage, supervise, direct, or own all or part” of the illegal gambling business as required by 18 U. S.C. § 1955. However, this court has re- ' cently held that such “street level employees” as ticket sellers and runners are to be counted as persons who “conduct” the illegal gambling business as provided in the statute. Hunter, supra, 478 F.2d at 1021. Accordingly, we conclude that the evidence did establish the existence of the required number of persons to constitute a violation of 18 U.S. C. § 1955. IV Finally, the appellants contend that convictions on both Counts cannot stand because they do not charge separate offenses. Clearly, two offenses can only be separately prosecuted and punished if each requires proof of an element which the other does not. In this action, Count I charged that the appellants and other defendants conspired to engage in an illegal gambling business, in violation of 18 U.S.C. § 371. Count II charged that the appellants and other defendants engaged in an illegal gambling business, in violation of 18 U.S.C. § 1955. Seven defendants were tried and convicted on each count. Some circuits have found that where more than five persons were charged with both conspiracy to violate 18 U.S.C. § 1955 and a substantive violation of § 1955, the offenses were separate and both offenses could be prosecuted. However, in a case where there were thirteen persons charged with both conspiracy to violate § 1955 and substantive violation of the statute, this circuit has recently rejected that argument and pointed out: . an argument which merely emphasizes the number of the persons charged in the indictment does not identify an element of each offense which adequately differentiates the other. . . . But even though five or more persons are named in the indictment, a charge of conspiracy to violate § 1955 may not be maintained if it comprehends nothing more than the agreement which those persons necessarily performd by the commission of the substantive offense itself. Hunter, supra, 478 F.2d at 1026. As in Hunter, we find here “no ingredient in the conspiracy [charged in Count I] which is not present in the completed crime [charged in Count II]”. The judgments of conviction against appellants in Count I are reversed. In all other respects the judgments against appellants are affirmed. . The return contained statements that Mr. Kelly’s principal business activity was “Commission sales”, the name of the business was “Uless Manson 35 886P” and the business address was 437 W. North St., Indianapolis, Ind.” . United States v. Becker, supra, 461 F.2d at 234. Question: What forum heard this case immediately before the case came to the court of appeals? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Court of Customs & Patent Appeals H. Court of Claims I. Court of Military Appeals J. Tax Court or Tax Board K. Administrative law judge L. U.S. Supreme Court (remand) M. Special DC court (not the US District Court for DC) N. Earlier appeals court panel O. Other P. Not ascertained Answer:

songer_appnatpr

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Phyllis K. SHEPHERD and Douglas T. Shepherd, Plaintiffs-Appellees, v. John P. PUZANKAS, Defendant-Appellant. No. 16336. United States Court of Appeals Sixth Circuit. Feb. 1, 1966. R. Hunter Cagle, Knoxville, Tenn. (Arthur D. Byrne, Thearon Chandler, Knoxville, Tenn., on the brief; Poore, Cox, Baker & MeAuley, Knoxville, Tenn., of counsel), for appellant. Creed A. Daniel, Rutledge, Tenn. (W. I. Daniel, Rutledge, Tenn., on the brief; Daniel & Daniel, Rutledge, Tenn., of counsel), for appellees. Before EDWARDS, Circuit Judge, CECIL, Senior Circuit Judge, and KENT, District Judge. CECIL, Senior Circuit Judge. This appeal arises out of an automobile accident which occurred on U. S. Highway 11W, in the state of Tennessee, on April 28, 1963. The plaintiff-appellee, Phyllis K. Shepherd, was driving her automobile west on the highway at the time and place of the accident. John P. Puzankas, defendant-appellant, traveling east on the highway, lost control of his automobile and collided with the Shepherd automobile in its lane of traffic. Phyllis Shepherd and her husband, Douglas T. Shepherd, were residents of Texas. John P. Puzankas, hereinafter called the defendant, was a resident of New York. The Shepherds brought an action against the defendant in the United States District Court for the Eastern District of Tennessee, Northern Division. Jurisdiction was based on diversity of citizenship. (Section 1332(a), Title 28, U.S.C.) The case was tried to a jury and resulted in a verdict of $25,-000 for Phyllis Shepherd, and a verdict of $2000 for her husband. The defendant appealed. It is alleged in the complaint that “The defendant operated his aforesaid described motor vehicle at a high, reckless, dangerous and negligent rate of speed and without the exercise of due care or caution or to circumspection and without keeping a proper lookout ahead, without having said motor vehicle under proper or adequate control, and said defendant did in the reckless, negligent and wanton manner aforede-scribed, operate said motor vehicle in such manner as to lose control of same after passing another vehicle proceeding in the same direction, cross the center line of said highway and to strike the automobile operated by the plaintiff, Phyllis K. Shepherd, headon in her right and proper lane of travel, striking the same with great force and violence.” It is further alleged that the defendant operated his motor vehicle “in open, willful and flagrant violation of certain statutes of the State of Tennessee.” There was evidence in the record that the highway was wet and slick and that the defendant was traveling at a high rate of speed, that he passed three ears and that he cut back in his lane of traffic just ahead of a car immediately ahead of the Shepherd automobile. It was at this point that he lost control of his car and crossed into the lane of the oncoming Shepherd vehicle. The trial judge instructed the jury, “(I)f you find that this defendant was guilty of willful, wanton, gross negligence you have the right to assess what is known in the law as punitive damages.” He then correctly explained gross negligence and punitive damages. Objection is made on behalf of the defendant that the court erred in instructing the jury that it had the right to assess punitive damages. In support of this objection, it is claimed that the proof did not sustain such a charge and that the plaintiffs did not contend in their complaint, the pretrial order or upon the trial that the defendant was guilty of gross negligence or that they were entitled to punitive damages. The language of the complaint is broad enough to cover a charge of gross negligence and there is ample evidence in the record to support such a charge. There is nothing in the pretrial order which would prohibit an instruction on gross negligence and punitive damages. Under the law of Tennessee where gross negligence is pleaded and there is evidence to support it, the question of punitive damages is properly submitted to the jury. In American Lead Pencil Co. v. Davis, 108 Tenn. 251, 254, at page 255, 66 S.W. 1129, at page 1130, the court said: “Gross negligence, then, is undoubtedly one ground for the allowance of punitive or exemplary damages ; * * * ” See also Memphis Street Railway v. Shaw, 110 Tenn. 467, 478, 75 S.W. 713; Choctaw, Oklahoma and Gulf Railroad Co. v. Hill, 110 Tenn. 396, 406, 75 S.W. 963; Lazenby v. Universal Underwriters Ins. Co., 214 Tenn. 639, 646, 383 S.W.2d 1; Caccamisi v. Thurmond, 39 Tenn.App. 245, 270, 282 S.W.2d 633. In Caccamisi v. Thurmond, heretofore cited, at p. 272, 282 S.W.2d at p. 646, the court quoted from Baker v. Bates, 4 Tenn.Civ.App. 175, as follows: “It is not necessary that these damages (punitive damages) be claimed eo nomine. It is sufficient, if the facts alleged justify their recovery.” Assuming that the trial judge was in error in instructing the jury on punitive damages, it was a harmless error and did not affect the substantial rights of the defendant. Rule 61 Federal Rules of Civil Procedure. American Lead Pencil Co. v. Davis, supra, 108 Tenn. at 257, 66 S.W. 1129; Butler v. Barrett & Jordan, C.C., 130 F. 944, 949; Philadelphia & W. C. Traction Co. v. Kordiyak, 171 F. 315, 318, C.A. 3; Sucher Packing Co. v. Manufacturers Casualty Ins. Co., 245 F.2d 513, 522, C.A. 6, cert. den. 355 U.S. 956, 78 S.Ct. 541, 2 L.Ed.2d 531; Gillis v. Keystone Mut. Casualty Co., 172 F.2d 826, 830, 11 A.L. R.2d 455, C.A. 6, cert. den. 338 U.S. 822, 70 S.Ct. 67, 94 L.Ed. 499; E. I. Dupont De Nemours & Co. v. Wright, 146 F.2d 765, 768, C.A. 6, cert. den. 324 U.S. 873, 65 S.Ct. 1017, 89 L.Ed. 1426; DeAddio v. Darling & Co., D.C., 112 F.Supp. 166, 167, affirmed 204 F.2d 272, C.A. 6. In returning the verdict, the foreman of the jury specifically stated that the jury did not allow anything by way of punitive damages. We agree with the trial judge that since the jury disallowed punitive damages the issue has become moot. Another assignment of error is that the amount of damages awarded to Phyllis Shepherd by the jury is excessive and that the trial judge abused his discretion in not granting a new trial. The trial judge heard the evidence and he had an opportunity to observe the plaintiff Phyllis Shepherd on the witness stand. In denying the motion for new trial he enumerated her injuries which were supported by the record and were such as to justify the verdict of the jury. In Montgomery Ward & Co. v. Morris, 273 F.2d 452, 453, C.A. 6, we said: “The power of this Court to review and set aside an order of the District Court overruling a motion for a new trial based on alleged excessive damages, is very limited. (Citations omitted) It is not sufficient that the verdict is considerably larger than we think it should have been. In the absence of a showing of passion and prejudice on the part of the jury, the trial court’s action in overruling a motion for a new trial where a factual question is involved, will not be reviewed by this Court unless it involves an abuse of discretion.” See also Morton Butler Timber Co. v. United States, 91 F.2d 884, 891, C.A. 6; Spero-Nelson v. Brown, 175 F.2d 86, 89, C.A. 6; Werthan Bag Corp. v. Agnew, 202 F.2d 119, 122-123, C.A. 6; Cross v. Thompson, 298 F.2d 186, 187, C.A. 6; Fairmount Glass Works v. Fork Coal Co., 287 U.S. 474, 481-483, 53 S.Ct. 252, 77 L.Ed. 439; United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 247, 60 S.Ct. 811, 84 L.Ed. 1129; Tennant v. Peoria & Pekin Union Railway Co., 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520. We find no abuse of discretion here on the part of the trial judge, in denying the motion for a new trial on the ground of excessive damages. The judgment of the District Court is affirmed., . Section 59-816, Tenn.Code Ann., Passing vehicles proceeding in opposite directions. Section 59-823, Tenn.Code Ann., Driving on roadways laned for traffic. Section 59-858, Tenn.Code Ann., (a) Any person who drives any vehicle in. willful or wanton disregard for the safety of persons or property is guilty of reckless driving. (b) Penalty provisions. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:

songer_sentence

E

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". Henry C. HICKS, Appellant, v. CITY OF LOS ANGELES, a Corporation; Board of Civil Service Commissioners, etc., et al., Appellees. No. 15161. United States Court of Appeals Ninth Circuit. Jan. 28, 1957. Rehearing Denied March 6, 1957. Cryer & Jones, George E. Cryer, Los Angeles, Cal., for appellant. Roger Arnebergh, City Atty., George Williams Adams and Moses A. Berman, Deputy City Attys., Los Angeles, Cal., for appellees. Before POPE, CHAMBERS and BARNES, Circuit Judges. CHAMBERS, Circuit Judge. Henry C. Hicks, plaintiff-appellant, is a building operating engineer who in 1951 was discharged from his position with the City of Los Angeles. He held his position under the city’s classified civil service which had the usual safeguards against arbitrary dismissals. On the night of October 12-13, 1951, plaintiff was on duty as an engineer at the Lincoln Heights jail in Los Angeles. “Boiler trouble” developed. (We do not here reach the question of whether there was a little trouble or much trouble or whose fault it was.) The Los Angeles Board of Public Works, under whose jurisdiction Hicks and the boiler came, on November 30, 1951, discharged him for “Unsatisfactory performance of duties” on the aforementioned night of October 12-13. Hicks administratively denied the charges, all of which concerned the boiler. The Los Angeles Civil Service Commission accorded Hicks a hearing before a hearing examiner on January 22, 1952, and February 7, 1952. The hearing examiner made a report which was acted upon on April 15, 1952, by the Civil Service Commission. The commission upheld the discharge. There is some variance between the hearing examiner’s report to the commission and its final-conclusion as to what he found. This variance does not appear to be particularly great, but Hicks says it was done fraudulently and was a “frame-up.” Hicks appears in April, 1952, to have accepted the findings and order of discharge. But in April, 1954, he says he discovered the “fraud.” He then took steps (administratively) designed to secure his reinstatement. Failing before the Civil Service Commission, he filed on June 17, 1954, an action in equity in the Superior Court of California (Los Angeles County) by which he asserted the proceedings for his discharge were null and void as based on gross extrinsic fraud. The complaint was dismissed and an appeal followed. This appeal was decided against him on May 24, 1955. Hicks v. City of Los Angeles, 133 Cal.App.2d 214, 283 P.2d 1046. Then on January 23, 1956, Hicks filed this action in the United States District Court for the Southern District of California, naming the City of Los Angeles, the Board of Civil Service Commissioners and its members, and the Board of Public Works and its members as defendants. It was designated a “Bill in Equity to Annul a Final Order of the Civil Service Commission * * * on the ground *, * * of Extrinsic Fraud and [because the order] deprives complainant of his * * * right * * * without due process of law.” The only new thing or item we find in the complaint in United States district court that was not contained in the case in the state court, Hicks v. City of Los Angeles, supra, is the following allegation concerning his “mistreatment” by the California courts: “That when this complainant learned that no court of the State of California would accord him a hearing upon his above-mentioned case pending in the courts of said state, charging that the, order of defendant Civil Service Commission removing him from his position, was based upon gross extrinsic fraud; that said refusal of said California Courts to consider said case was based upon delay and alleged ‘laches’ in commencing his said action, and that said courts and each of them, from the lowest to the highest, had refused even to consider even the provision of Section 338, sub. 4, of the Code of Civil Procedure of California, providing that an action for relief on the ground of fraud must be deemed to have arisen on the date of the discovery by the aggrieved party of the facts constituting such fraud, and giving to such party three years, after such discovery in which to commence an action, complainant was plunged into the depths of despair, and suffered a recurrence of the mental collapse which had engulfed him when defendant Civil Service Commission removed him from his position without evidence of wrong doing, upon the charge of ‘unsatisfactory performance of duty’; that while in such state of collapse complainant disappeared from his place of abode and his counsel and friends were unable to find or communicate with him for weeks thereafter, that when finally he had recovered sufficiently to return and counsel were able to contact him and to explain to him that his cause was not finally lost; that the Federal Constitution and the Federal Courts still stood between him and the taking of his property without Due Process of Law, and that the Statute of Limitations still accorded to him the right ‘to commence’ an action for the protection of his Constitutional Rights, this complainant regained much of his mental poise and promptly authorized his counsel to prepare and file this action.” The defendants pleaded “no jurisdiction” and “no cause of action.” The district judge dismissed the case on the ground of no jurisdiction. At the outset it would appear that the limits of 28 U.S.C.A. § 1331 are applicable. If so, the whole complaint teeters on whether the sum of $3,000 in damages is alleged. We have concluded that it barely, though poorly, does so allege. There are a number of older cases holding that the federal courts do not have any jurisdiction to look into the discharge of the employees of a state or its subdivisions. See e. g. Ex Parte Sawyer, 124 U.S. 200, 8 S.Ct. 482, 31 L.Ed. 402; Taylor v. Beckham, 178 U.S. 548, 20 S.Ct. 890, 44 L.Ed. 1187. And, of course, there will be some cases where sovereign immunity is involved. But this case seems to be the first case since Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939, where a discharged state employee has asserted that he held a protected status which he was deprived of by fraud in the state administrative process. We think under Bell v. Hood, supra, we must hold that the allegations were good enough to assert jurisdiction. See Lowe v. Manhattan Beach City School District, 9 Cir., 222 F.2d 258, and Agnew v. City of Compton, 9 Cir., 239 F.2d 226. Also, 8 Stanford Law Review 123. A judgment rendered merely erroneously by the district court in favor of Hicks ought to be valid against collateral attack. The employee is entitled to protection against arbitrary power or action. Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216; Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692. By that we mean due process. But the federal courts are not the sole repository of the 14th Amendment. The courts of 48 states, not the smallest of which is California, operate under it. The charges against the California courts’ determination of Hicks’ complaint are no more than that the California courts ruled in error. Here, while we hold bare jurisdiction did exist, there is the gravest doubt whether plaintiff stated a federal cause of action. And he has attempted to secure not a choice of jurisdiction but the exercise of successive jurisdiction. See American Automobile Ins. Co. v. Benedetto, 3 Cir., 58 F.2d 918, certiorari denied 287 U.S. 621, 53 S.Ct. 20, 77 L.Ed. 539. It might even be said that he seeks to “appeal” a decision on the indistinguishable claim pursued clear through California courts. The defendants in their motion to dismiss and memorandum combined therewith do not assert res judicata by name, but certainly in setting forth haec verba the decision of the California District Court of Appeal as an appendix to their motion to dismiss they assert the elements of res judicata. As a matter of fact, the attempt here to retry this case in the federal system amounts to legal frivolity, albeit that there is deadly earnestness on the part of Hicks and his counsel. The case is remanded with instructions to vacate the order of dismissal of the action on the ground of lack of jurisdiction and to grant a summary judgment in defendant’s favor on the ground of res judicata. 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_genresp1

C

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. FOX et al. v. COMMISSIONER OF INTERNAL REVENUE. No. 6417. United iStates Court of Appeals Fourth Circuit. Argued June 20, 1952. Decided July 31, 1952. George Craven, Philadelphia, Pa., for petitioners. Maryhelen Wigle, Sp. Asst, to Atty. Gen. (Ellis N. Slack, Acting Asst. Atty. Gen. and L. W. Post, Sp. Asst, to Atty. Gen., on the brief), for respondent. Before PARKER, Chief Judge, SO-PER, Circuit Judge, and PAUL, District Judge. PAUL, District Judge. The petitioners in this case, Walter S. Fox and Eleanor C. Fox, seek review of a decision of the Tax Court of the United States which determined deficiencies in income taxes against them for the years 1944, 1945 and 1946 in the following amounts: Walter S. Fox Eleanor C. Fox 1944 $1,381.86 $1,521.61 1945 4,555.80 4,584.79 1946 3,683.49 3,573.42 $9,621.15 $9,679.82 The petitioners filed separate Federal income tax returns for the years in question and the deficiencies were separately adjudicated, but since the matters in controversy are the same in both cases they have been consolidated for hearing in this court. The petitioners, who are husband and wife, are the joint owners and operators of a farm of 700 acres in Loudon County, Virginia, on which they have been engaged in the business of raising cattle and sheep, together with feed for this livestock. The farm was operated and income tax returns were made on a cash basis and the livestock was not inventoried. The primary business of the farm was the raising of Aberdeen Angus cattle and the controversy here involves the proceeds from the sale of such cattle. Petitioners began their cattle breeding business in 1939 with the purpose of building up a herd of pure-bred Aberdeen Angus of a distinctive type, and with the expectation, so they state, that a substantial capital gain would be realized from the eventual sale of such a herd. Beginning in 1939 with 10 heifers and a bull which they had purchased the petitioners gradually built up their herd until in the years 1942 through 1946 they owned the following numbers of what they term “mature cattle”, these constituting the producing herd and made up of bulls that had been used as herd sires and cows that had produced calves. Year Cows Bulls 1942 57 2 1943 46 2 1944 34 2 1945 52 2 1946 80 4 There is no evidence to show how many of the animals in this producing group had been purchased by petitioners or how many had been raised by them. While the Aberdeen Angus is a beef animal the petitioners were primarily engaged in raising cattle for sale to other breeders and not for slaughter purposes. The course of their operations appears to have been similar to those of other persons engaged in the same sort of activities. In the breeding of cattle all calves produced are not of uniform quality and petitioners followed the practice of registering only those animals which, in their opinion, gave promise of being high-grade breeding stock. Those animals considered of inferior quality and without value for breeding purposes were not registered and were sold off for slaughter purposes, either as calves or steers. The proceeds of the sale of these culls or unregistered animals are not in dispute here. Calves which were considered as showing the qualifications for potential breeding stock were registered with the Aberdeen Angus Association — usually before they were six months old — and were held for such varying periods of time as were determined by the opportunity for an advantageous sale. At the end of the years 1942 through 1946 the petitioners owned the following numbers of registered cattle. Year Total No. of Animals 1942 142 1943 144 1944 146 1945 167 1946 203 The above figures included not only the producing herd, but also younger animals of varying ages, some of which were not yet of breeding age and others of which had been bred but had not yet produced calves. The petitioners appear to have conducted their operations in accordance with the regulations of the American Aberdeen Angus Association under which it was permissible to 'breed heifers at 15 months of age and bulls at 13 months. And, except for those sold at an earlier age, most of the animals raised by petitioners were bred within a comparatively short time after reaching these respective ages. The period of gestation in cows is approximately nine months and it is not until the lapse of this further time that it can be definitely determined that the animals will reproduce. However, because a calf could not be registered unless born from a cow which was at least twenty-four months old, the petitioners so planned it that none of the females in their possession dropped a calf before reaching the age of twenty-four months. During the year 1944 the petitioners sold 43 head of their registered stock; in 1945 they sold 39 head; and in 1946 they sold 36 head. When sold these animals varied in age from five or six months to three years or more. The bulk of them were between the ages of 10 and 24 months. The differing ages at which the animals were sold was due to the differing preferences or desires of purchasers. Some persons were willing to buy calves to be raised for future breeding purposes. Others who desired to breed the animals immediately purchased animals which had attained breeding age and which had either been bred or were ready to breed. Still others purchased older animals which, having actually produced calves, were considered proven breeders. It is the proceeds from the sale of the 118 head of registered stock sold in the years 1944, 1945 and 1946 which is in issue. The question is whether the gain realized on the sale of these cattle is taxable as a capital gain, as petitioners contend; or as. ordinary income, as the Tax Court held. The pertinent statute is Sect: 117 of the Internal Revenue Code, 26 U.S.C.A. § 117, dealing with “capital gains and losses”. Sect. 117(a) (1) in defining “capital assets” excludes therefrom property held by the taxpayers primarily for sale in the ordinary course of his trade or business. Sect. 117(j) provides for the taxing as long-term capital gains of the net gains on sales of “property used in the trade or business” and in defining the term “property used in the trade or business” specifically provides that, among other things, it does not include property of a kind which would properly be includible in the inventory of the taxpayer if on hand at the end of the taxable year, or property held primarily for sale in the ordinary course of the taxpayer’s trade or business. In 1951, Act of Oct. 20, 1951, Sect. 117(j) (1) was amended to indicate more clearly the inclusion of certain kinds of property within the definition of “property used in the trade or business”. Among other things the amendment provided that “Such term also includes livestock, regardless of age, held by the taxpayer for draft, breeding, or dairy purposes, and held by him for 12 months or more from the date of acquisition.” This amendment was made applicable to taxable years beginning after December 31, 1941, except that the extension of the holding period from 6 to 12 months vi as applicable only to years beginning after December 31, 1950. It is the contention of petitioners that whenever, and as soon as, any animal raised by them was registered it thereby became a part of their breeding herd and that any sum realized thereafter from its sale was to be taxed as a capital gain. This argument is apparently based on the theory that some of the animals raised might ultimately be found worthy of retention as sires or dams in petitioners permanent herd and, therefore, all of them were to be treated as part of a herd held for breeding purposes. The Tax Court denied this contention, with the comment that the most that could be said was that the animals when registered became potential members of a breeding herd. It pointed out that the mere act of registration did not establish an animal as a member of the breeding herd, for the reason that registration was equally necessary in order to make a sale to purchasers seeking registered stock for their own herds. The court further noted that the fact that some of the animals reached breeding age and were bred while still in the taxpayers’ possession did not establish them as members of the breeding herd; that the custom of petitioners in selling heifers with calf and bulls as guaranteed breeders necessitated that they be bred by petitioners before sale. The conclusion of the Tax Court is embodied in the following excerpts from its opinion: “We are left with the problem of determining which of the animals were eventually included in the breeding herd. The problem is rendered difficult by petitioners’ failure to submit a detailed history of the animals on the basis of which we could make an accurate determination. The only criterion relied on by the petitioners is the fact of registration.” “After a careful consideration of the entire record, we have concluded that the heifers raised, registered, and sold by petitioners before they dropped a calf should not be regarded as a part of the breeding herd, and those animals that dropped a calf while still owned by petitioners should be regarded as a part of that herd. Since we are unable to determine from the evidence the exact number of calves in each category, an approximation is necessary.” “Inasmuch as the earliest age at which any of the heifers dropped a calf was 24 months and the latest was approximately 27 or 28 months, we adopt as average 26 months and for purposes of disposition of this case treat all females raised, registered, and sold by petitioners when 26 months old or over as having been a part of the breeding herd. The gain on their sale is taxable at capital gains rates. * * * The remainder were not part of the breeding herd but were instead held primarily for sale to customers. The gain on their sale is taxable as ordinary income.” * * * * * * “It also appears that until a bull reached an age of from 32 to 37 months, it could not-be satisfactorily determined that it possessed the necessary breeding qualities for such a herd as petitioners were raising. From the record made before us, we have determined that of the registered bulls raised and sold by petitioners, only those 34 months or older should be classified as part of the breeding herd and those under that age should be classified as property held by petitioners primarily for sale to customers.” We are of opinion that these conclusions of the Tax Court should not be disturbed. The opinion of that court was handed down prior- to the enactment of the 1951 amendment to Sect. 117(j) (1) heretofore referred to but it does not appear that the amendment affects in any way either the reasoning or the conclusions reached by the court. The taxpayers do not agree with this and now urge that the amendment of 1951 renders the holding of the tax court untenable and makes clear that the gains here in issue are taxable gains. In this argument the petitioners stress the fact that the amendment refers to livestock, regardless of age; and from this they argue that a breeding herd may be made up of animals none of which have as yet been bred or which may even be too young for breeding. This argument ignores the real point of the matter. The important thing is not the age of the animals but the purpose for which they are held. The weakness of petitioners’ contention is disclosed by their own testimony, as well as by certain obvious facts. In the normal course of events the calves born in any herd may be expected to be evenly divided as between males and females. If these petitioners had held all of their calves to become part of their breeding herd then by the laws of arithmetical progression the herd would soon have increased beyond the capacity of the farm and every cow would have had her individual bull. The testimony is, as a matter of fact, that four was the greatest number of herd bulls that petitioners ever had at one time, and these to serve 80 cows. As Mr. Fox, one of the petitioners, testified: “Obviously we cannot keep all those animals which are male. It is just in the hope that we will get a successor bull that we will keep them all. We have to sell the excess.” Again Mr. Fox testified that on the average not more than one out of every one hundred bull calves raised by petitioners possessed breeding qualities sufficiently high as to meet the standards of petitioners’ herd, and that in ten years they had raised only about 15 bulls of that quality. However, he gives no testimony as to how many of even this limited number were ever retained as herd sires, or, indeed, whether any of them were. The evidence does show, however, that during the three years for which taxes are in question the petitioners sold 44 male animals to other breeders. Further testimony on behalf of petitioners was to the effect that after a bull had been bred and a calf produced as a result thereof, the calf must be 10 or 12 months old before it can be determined by observing the qualities of the calf, whether the sire possesses proper breeding qualities. As stated by Mr. Fox: “It takes a minimum of three years to know whether or not you have a good breeding bull”. It was further testified that not until they had reached the age of at least 24 months were females allowed to give birth to calves. Yet the evidence shows that of the 44 male animals sold by petitioners in the years 1944, 1945 and 1946 only one of them was as old as three years and all but two of them were less than two years old. The proportion of young animals among the heifers sold was somewhat less, but even there it appears that 75 per cent of the females were less than 24 months of age when sold. In other words, all but one of the bulls and three-fourths of the heifers were sold before they reached the age where it could be determined whether they were satisfactory breeding stock. This fact strongly denies the present contention of the petitioners that all the animals were held for breeding purposes and that any sales were merely incidental to the main business of building up the breeding herd. It is true, of course, that a person may maintain a herd of cattle which represents “property used in the trade or business”. It may be a dairy herd used in the business of producing milk or it may be a herd used in the business of producing calves. And when any members of these producing groups are sold there is a sale of a capital asset, and any animals replacing those sold and becoming part of the producing group become “property used in the trade or business”. See Albright v. U. S., 8 Cir., 173 F.2d 339. But the milk and the calves are not property used in trade or business; they are the produce of such property. And the fact that the taxpayer may hold the calves for varying or indefinite periods does not make them “property used in the trade or business” unless they are actually held for inclusion in the producing herd. This case turns on the facts and the facts are not complicated. The petitioners are engaged in raising high-grade Aberdeen Angus cattle and maintain a producing unit, the produce of which in the shape of offspring, both male and female, they customarily sell to other persons. Like all other persons engaged in a similar business petitioners are, no doubt, alert to maintain and to improve the high quality of their producing unit; and to this end it may be that at times they select from among the calves raised some animals which they consider of such high quality as to justify their being placed in the producing unit. But, as the Tax Court pointed out, the petitioners offer no evidence to show the number of such chosen animals or, indeed, that there were any such. In any event it is clear that the number of such animals was limited. Not only were the bulk of the animals raised by petitioners sold, but the practice of selling most of them before their breeding qualities were even tested shows that they were raised for the purpose of being sold, and not for inclusion in the producing herd. The Tax Court allowed the taxpayers to treat as a part of the breeding herd all animals held by the taxpayers until the age when their ability to produce calves was proven; even though the animals might have been sold the very next day and although petitioners had never intended to include them in their producing herd. In so doing we think that the court gave these petitioners even more than was required by the facts shown. We have examined the case of Albright v. United States, 8 Cir., 173 F.2d 339, 341, which petitioners cite to sustain their contentions, but we find nothing in the opinion that is helpful-to petitioners. The opinion in this case recites these facts. “In his dairy operations the taxpayer maintains a herd of 36 dairy cattle, of which an average of 18 to 20 head are producers of milk which the taxpayer sells to local creameries. Calves which are not needed for the maintenance of the dairy herd at the desired number are sold on the market. Dairy cows which by reason of age, injury, or disease are unfit for maintenance in the dairy herd, or which because of decreased milk production are economically less desirable than available young stock, are sold and replaced by young stock raised by the farmer.” The court held that when cows which had been used in the dairy herd but were no longer fit for such use were sold and replaced by other stock, the sale was of property used in the trade or business and the proceeds of the sale were taxable as capital gains. It is to be noted that in the Albright case the taxpayer did not claim as a capital asset any animals except those which had actually been part of his1 producing herd. This is a far different situation than that in the instant case, where there was no showing that any of the animals sold were part of the producing unit and where most of them were sold at an age before they could possibly have become so. The decisions of the Tax Court are Affirmed. Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:

songer_interven

B

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case. The BELL TELEPHONE COMPANY OF PENNSYLVANIA, et al., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, MCI Telecommunications Corporation, American Telephone and Telegraph Company, Telesphere Network, Inc., U.S. Telephone, Inc., Intervenors. No. 84-1259. United States Court of Appeals, District of Columbia Circuit. Argued April 17, 1985. Decided May 14, 1985. Linda L. Oliver, Counsel, F.C.C., Washington, D.C., with whom Jack D. Smith, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, John E. Ingle and Carl D. Lawson, Counsel, F.C.C., Washington, D.C., were on brief, for respondents. William J. Byrnes, Washington, D.C., with whom Michael H. Bader, Kenneth A. Cox, Thomas R. Gibbon and Theodore D. Kramer, Washington, D.C., were on brief, for intervenor MCI Telecommunications Corp. Judith A. Maynes, New York City, Robert B. Stecher and Daniel Stark, Washington, D.C., were on brief, for intervenor American Tel. and Tel. Co. Leo I. George, Washington, D.C., entered an appearance, for intervenors Telesphere Network, Inc. and U.S. Telephone, Inc. William R. Weissman, Washington, D.C., with whom Charles A. Zielinski, A. Richard Metzger, Karen S. Byrne and Robert A. Levetown, .Washington, D.C., were on brief, for petitioner. Before MIKYA, GINSBURG and BORK, Circuit Judges. Opinion PER CURIAM. PER CURIAM. This petition for review concerns the fifth and final year of the interim agreement governing rates charged to “other common carriers” (OCCs) for exchange network facilities for interstate access (EN-FIA agreement). For background on EN-FIA and prior proceedings in this court regarding the agreement, see MCI Telecommunications Corp. v. FCC, 712 F.2d 517 (D.C.Cir.1983). The ENFIA agreement provided that American Telephone and Telegraph Company (AT & T), on behalf of the Bell System Operating Companies (BSOCs), would file annually with the Federal Communications Commission (Commission or FCC) a tariff containing the rates for the following billing year, subject to 15 days’ advance notice before the tariff became effective. For the fourth year of the ENFIA agreement scheduled to begin on May 2,1982, the FCC suspended the tariff filed by AT & T, imposed an interim billing and collection rate, and stated that the interim rate would be subject to adjustment in either direction after Commission determination of the rate properly set under the ENFIA contract. On September 29, 1982, the Commission prescribed the methodology for calculating rates under ENFIA, and ordered the OCCs to remit to the BSOCs the difference between the lower interim rate and the prescribed rate. Exchange Network Facilities for Interstate Access (ENFIA), 91 F.C.C.2d 1079, 1093-94 (1982). Using the prescribed methodology AT & T filed a new tariff which was in effect for the balance of the fourth year. Several parties petitioned the Commission for reconsideration of the September 29 order; AT & T requested expedition of the Commission’s reconsideration. The fifth year ENFIA rates were scheduled to begin April 16,1983. On March 28, 1983, while the petitions for reconsideration of the FCC’s September 29, 1982, order remained pending, AT & T filed fifth year rates based on the methodology prescribed by the September 29, 1982, order. AT & T stated in the March 28 tariff filing that the submission was made subject to later recalculation based on the Commission’s eventual — then still awaited — decision in the reconsideration proceeding. The Common Carrier Bureau permitted the fifth year rates to go into effect as scheduled. Exchange Network Facilities for Interstate Access (ENFIA), CC Docket No. 78-371 (Apr. 15, 1983). On April 5, 1983, the Commission at last issued its Reconsideration Order, and in it altered the prescribed methodology for calculation of the ENFIA rates. The revised methodology increased the fourth year rates, and the Commission approved as lawful retroactive application of the readjusted fourth year charges. Exchange Network Facilities for Interstate Access, 93 F.C.C.2d 739, 763 (1983), aff'd mem. sub nom. GTE Sprint Communications Corp. v. FCC, 733 F.2d 966 (1984). AT & T filed tariff revisions to its fourth year rates, applicable retroactively to the beginning of the fourth year, and the tariff became effective the day after it was filed. On April 28, 1983, AT & T filed amended fifth year rates based on the methodology the Commission established as correct on April 5 in the Reconsideration Order. The tariff provided that the charges would be retroactive to the beginning of the fifth year, April 16, 1983. The Common Carrier Bureau observed that the proposed rate increase appeared to conform to the EN-FIA methodology approved in the Reconsideration Order. Nevertheless, the Bureau rejected the tariff as unlawful. According to the Bureau, the retroactive (then by less than one month) increase was prohibited by section 203(c) of the Communications Act, 47 U.S.C. § 203(c) (1982) (“[N]o carrier shall ... charge ... different compensation ... than the charges specified in the schedule then in effect.”). Exchange Network Facilities for Interstate Access (ENFIA), CC Docket No. 78-371 (May 16, 1983). The Commission affirmed the Bureau’s ruling. Exchange Network Facilities for Interstate Access (ENFIA), CC Docket No. 78-371 (Apr. 18, 1984). The BSOCs petition this court to review the Commission’s rejection of a retroactive increase in fifth year rates. We reverse. It is not controverted that the calculations AT & T made following the April 5, 1983, Reconsideration Order are accurate and in full conformity with the methodology ultimately prescribed by the Commission. The Bureau’s rejection of the April 28, 1983, AT & T tariff filing thus rested solely on the perception that the tariff’s retroactive component (dating the increase back to April 16 rather than forward from May 13) would violate section 203(c). However, the Commission itself had explained crisply, in its April 5 Reconsideration Order discussion of retroactive adjustment of fourth year rates, why such an adjustment is compatible with section 203(c): Because our investigation was aimed at finding the proper rate under the agreement, we see little difference between this case and City of Piqua v. FERC, 610 F.2d 950 (D.C.Cir.1979), where the enforcement of an agreed upon prior effective date for rate increases was not considered retroactive ratemaking. Furthermore, under circumstances where it is the terms of an agreement that are at issue and both sides have participated in the proceeding and have been given notice as to the actual effective date of the rate, and where any of the parties may be responsible for error, fairness dictates that a retroactive adjustment be applicable to either side. Exchange Network Facilities for Interstate Access, 93 F.C.C.2d at 763 (1983); see also Hall v. FERC, 691 F.2d 1184, 1191-92 (5th Cir.1982), cert. denied, — U.S. -, 104 S.Ct. 88, 78 L.Ed.2d 96 (1983). We find this reasoning correct and fully applicable to the fifth year retroactive rate adjustment at issue here. The Commission attempts to distinguish the fourth year retroactive rate change from the fifth year tariff by noting that the fourth year adjustment was made initially to a Commission-imposed interim rate while the April 28, 1983, filing proposed a retroactive alteration in a previously filed tariff. This distinction is not altogether accurate and, in any event, has scant relevance to the policy or purposes of section 203(c) or the ENFIA agreement. Indeed, as petitioners point out, the FCC’s distinction would operate in a senseless manner. It would allow re-troactivity only to those who file conspicuously inappropriate rates: if the filed rates are sufficiently questionable to warrant suspension, the carrier can eventually obtain the full, fair rate retroactively; if the filing is sufficiently close to stand pending investigation, no retroactive adjustments will be made in the carrier’s favor. In sum, had the Commission corrected its September 29,1982, order in February 1983 rather than in April, AT & T would have been positioned to file a conforming tariff on March 28, 1983, the fifth year ENFIA rates would have fallen smoothly into place on April 16, and the interim agreement would have run its course without generating this parting federal court case. The Commission appropriately adjusted for the flaws in its September 29,1982, order when it ruled on retroactively effective fourth year rates. It should have followed suit in ruling on fifth year rates. Its failure to do so was capricious. Because (1) the tariff filed by AT & T on April 28, 1983, does not violate section 203(c), sensibly read; and (2) the Commission does not question the filing in any other respect, we discern no nonarbitrary reason to reject the tariff. For the reasons stated, we set aside as unlawful the order to which the petition is addressed and remand this matter to the Commission with directions to accord full retroactivity to the fifth year tariff revisions as presented in AT & T’s April 28, 1983, tariff filing. It is so ordered. . AT & T subsequently filed the same rates under protest with a prospective effective date. Those rates became effective on June 10, 1983. Thus, the sole matter at issue is whether the higher fifth year rates should have been applicable between April 16 and June 10, 1983. . We note, particularly, that the April 5, 1983, Reconsideration Order’s fourth year retroactive increase did in fact alter a tariff — the tariff that was prescribed by the September 29, 1982, order and applied to the balance of the fourth year. Question: Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case? A. no intervenor in case B. intervenor = appellant C. intervenor = respondent D. yes, both appellant & respondent E. not applicable Answer:

songer_fedlaw

D

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. BELL’S ESTATE v. COMMISSIONER OF INTERNAL REVENUE. BELL v. COMMISSIONER OF INTERNAL REVENUE. Nos. 12484, 12485. Circuit Court of Appeals, Eighth Circuit. Aug. 4, 1943. Albert L. Hopkins, of Chicago, 111. (Anderson A. Owen, Harry D. Orr, Jr., and Samuel H. Horne, all of Chicago, 111., on the brief), for petitioners. L. W. Post, Sp. Asst, to the Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Sp. Asst, to the Atty. Gen., on the brief), for respondent. Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges. SANBORN, Circuit Judge. The question for decision is whether, under the Revenue Act of 1936, the consideration received by the life beneficiary of a trust for the transfer of the life interest to the remainderman was ordinary income or was capital. The facts are agreed to and are as stated in the opinion of the Board of Tax Appeals (now the Tax Court of the United States), 46 B.T.A. 484. It is unnecessary to restate them in detail. Frederic Somers Bell (now deceased) and Frances Laird Bell, husband and wife, of Winona, Minnesota, on April 28, 1932, each created a trust. The corpus of each trust consisted of 550 shares of the common stock of the Thorncroft Company. The trustees of the Frederic S. Bell trust were Laird Bell, George R. Little, and Willard L. Hillyer. The trustees of the Frances L. Bell trust were Laird Bell, George R. Little, and Frederic S. Bell. Laird Bell is the son of the grantors of the trusts. The trust agreement executed by Frederic S. Bell provided: “The Trustees shall pay to Frances Laird Bell, wife of the Grantor, during her lifetime, the entire net income of the Trust Estate. Upon her death, the Trustees shall pay, deliver, and convey the Trust Estate to Laird Bell, son of the Grantor.” The trust agreement executed by Frances L. Bell provided: “The Trustees shall pay to Frederic Somers Bell, husband of the Grantor, during his lifetime, the entire net income of the Trust Estate. Upon his death, the Trustees shall pay, deliver, and convey the Trust Estate to Laird Bell, son of the Grantor.” The shares of stock constituting the corpus of each trust were transferred to the trustees. On February 1, 1936, Frederic S. Bell assigned to Laird Bell “all his [Frederic S. Bell’s] right, title and interest in, to and under the trust property held by George R. Little, Frederic Somers Bell and Laird Bell, as Trustees under trust agreement between Frances L. Bell and said Trustees, dated April 28, 1932, in consideration of the receipt of $104,349.26 [cash and securities], paid as hereinafter stated, the receipt whereof is hereby acknowledged.” On the same day, Frances L. Bell assigned to Laird Bell “all her right, title and interest, in, to and under the trust property held by Laird Bell, George R. Little and Willard L. Hillyer, as Trustees under trust agreement between Frederic S. Bell and said Trustees, dated April 28, 1932, in consideration of the receipt of $93,060.87 [cash and securities] (being 16.57144% of the agreed value of the trust property), paid as hereinafter stated, the receipt whereof is hereby acknowledged.” The consideration delivered by Laird Bell to each of the life beneficiaries represented the value, at the time of the assignments, of their respective life interests, apparently computed upon the basis of a 4% yield on the agreed value of the trust corpus for the life expectancy of each of the life beneficiaries. Laird Bell, having then acquired absolute title to the corpus of each of the trusts, received the trust assets, and the trusts were terminated. In his income tax return for each subsequent year, Laird Bell included the income from the former trust assets. Frederic S. Bell and Frances L. Bell, in the belief that the consideration which they had received from Laird Bell for the life interests conveyed to him represented the proceeds of a sale of capital assets, made their respective income tax returns for the year 1936 upon that basis, the return of each of them showing a small capital gain resulting from the sale. The Commissioner of Internal Revenue ruled that the entire consideration received by the life beneficiaries was income under § 22(a) of the Revenue Act of 1936, 49 Stat. 1648. The Board of Tax Appeals affirmed the Commissioner, and the decision of the Board is now before this Court for review. The Commissioner contends that the consideration received by the life beneficiaries for their respective life interests was in reality an advance payment of future income of the trusts during their life expectancies, and was taxable as ordinary income, even if the son, who acquired the interests, is required to include in his returns all income received by him from the former trust assets. This contention is based mainly upon the opinion of the Supreme Court in Hort v. Commissioner, 313 U.S. 28, 61 S.Ct. 757, 85 L.Ed. 1168, in which it was held that the amount received by a lessor from a lessee as consideration for the cancellation of a lease was, in effect, a substitute for the future rents reserved in the lease, and was therefore income and not a return of capital. However, there was no transfer of any interest in the lease or of any property involved in that case. The court said (page 32 of 313 U.S., page 759 of 61 S.Ct, 85 L.Ed. 1168): “* * * The cancellation of the lease involved nothing more than relinquishment of the right to future rental payments in return for a present substitute payment and possession of the leased premises.” If the parents of Laird Bell, instead of creating these trusts in 1932, had transferred the stock in the Thorncroft Company to him in consideration of his agreement to pay to each of them annually a certain sum for life, and if, in 1936, he had purchased from them releases of his obligations to make further annual payments, the consideration received by them in 1936 would unquestionably have been income, under the ruling in the Hort case. But that is not the situation here. If the case of Blair v. Commissioner, 300 U.S. S, 57 S.Ct. 330, 81 L.Ed. 465, is still the law, the decision of the Board will, in our opinion, have to be reversed. Blair was the life beneficiary of a testamentary trust. He assigned to his children portions of the net trust income which he was entitled to receive. The Commissioner ruled that, notwithstanding the assignments, the entire income of the trust continued to be taxable to Blair. The question presented to the Board of Tax Appeals, on petition to review, was “whether the petitioner, by the assignments in question, assigned future income or a present interest in property.” Blair v. Commissioner, 31 B.T.A. 1192, 1204. The Board ruled that he had assigned a present interest in property, and was not liable for taxes on income accruing to the assignees under the assignments. The Board said (at page 1205 of 31 B.T. A.): “ * * * The instant proceedings, in so far as this phase of our question is concerned, are quite similar to Marshall Field [v. Commissioner], supra [15 B.T.A. 718], followed by the Board in Edward T. Blair [v. Commissioner], supra, [18 B.T.A. 69], and affirmed by the United States Circuit Court of Appeals for the Second Circuit in. Commissioner v. Field, supra, [42 F.2d 820]. The following cases, involving circumstances more or less similar, also sustain our conclusion herein in this respect. Eugene Siegel, Executor [v. Commissioner], 20 B.T.A. 563; petition to review dismissed by the United States Circuit Court of Appeals for the Sixth Circuit on October 6, 1931; Copland v. Commissioner, [7 Cir.], 41 F.2d 501; Rosenwald v. Commissioner, [7 Cir.], 33 F.2d 423; certiorari denied, 280 U.S. 599, [50 S.Ct. 69, 74 L.Ed. 644]; Shellabarger v. Commissioner, [7 Cir.], 38 F.2d 566; Nelson v. Ferguson, [3 Cir.], 56 F.2d 121; certiorari denied, 286 U.S. 565, [52 S.Ct. 646, 76 L. Ed. 1297]; and Hall v. Burnet, [60 App.D. C. 332], 54 F.2d 443, [83 A.L.R. 86]; certiorari denied, 285 U.S. 552, [52 S.Ct. 408, 76 L.Ed. 942].” The Circuit Court of Appeals for the Seventh Circuit, upon review, reversed the Board’s decision. Commissioner v. Blair, 83 F.2d 655. That court, after an analysis of the relevant authorities, stated its conclusion as follows (at page 662 of 83 F.2d) : “The question is not one of the validity of the assignments but for the purpose of determining income tax liability it is one involving the date when the income became transferable. This question turns upon whether the assignor had such an interest in the corpus of the trust as to permit of its transfer or whether the assignor’s interest was separate from the property and limited to the income which accrued from year to year. “The latter seems to be the situation. The testator made an income provision for his son. It was in the trustees’ hands beyond the reach of the son’s creditors. The son could not create obligations enforceable against it. Upon the son’s death the said income ceased. It passed to either his children or to the heirs of the testator or in part to the widow of the son, depending upon survivorship, etc. The income passed to them not by act of the son, but by the testamentary trust provision of the testator. The son’s interest was therefore not in any way attached to the corpus of the estate that produced the income. The income was not even subject to his disposition until he received it. The attempted assignment to his children was in legal effect merely a direction to the trustees to pay to his children, out of the income due to him, various specified amounts each year. It does not militate against the conclusion that the income was his, and was due to him. While he could authorize the trustees to deliver to another what was due to him, it was not deliverable until it was his to dispose of.” The Supreme Court, on certiorari, in a unanimous opinion (Blair v. Commissioner, 300 U.S. 5, 57 S.Ct. 330, 81 L.Ed. 465), reversed the decision of the Circuit Court of Appeals, and affirmed that of the Board. The Supreme Court said (at pages 13, 14, of 300 U.S., at pages 333, 334, of 57 S.Ct., 81 L.Ed. 465) : “The will creating the trust entitled the petitioner during his life to the net income of the property held in trust. He thus became the owner of an equitable interest in the corpus of the property. Brown v. Fletcher, 235 U.S. 589, 598, 599,35 S.Ct. 154, 157, 59 L.Ed. 374; Irwin v. Gavit, 268 U.S. 161, 167, 168, 45 S.Ct. 475, 476, 69 L.Ed. 897; Senior v. Braden, 295 U. S. 422, 432, 433, 55 S.Ct. 800, 79 L.Ed. 1520, 100 A.L.R. 794; Merchants’ Loan & Trust Co. v. Patterson, 308 111. 519, 530, 139 N.E. 912. By virtue of that interest he was entitled to enforce the trust, to have a breach of trust enjoined and to obtain redress in case of breach. The interest was present property alienable like any other, in the absence of a valid restraint upon alienation. Commissioner v. Field, 2 Cir., 42 F.2d 820, 822; Shanley v. Bowers, 2 Cir., 81 F.2d 13, 15. The beneficiary may thus transfer a part of his interest as well as the whole. See Restatement of the Law of Trusts, §§ 130, 132 et seq. The assignment of the beneficial interest is not the assignment of a chose in action but of the ‘right, title, and estate in and to property.’ Brown v. Fletcher, supra; Senior v. Braden, supra. See Bogert, Trusts and Trustees, vol. 1, § 183, pp. 516, 517; 17 Columbia Law Review, 269, 273, 289, 290. “We conclude that the assignments were valid, that the assignees thereby became the owners of the specified beneficial interests in the income, and that as to these interests they and not the petitioner were taxable for the tax years in question.” There can be no question that in Blair v. Commissioner, supra, the Supreme Court ruled that assignments of life interests such as those here involved are transfers of interests in the trust assets, and are not merely assignments of income. The Commissioner, however, in seeking for a distinction between that case and these cases, says in his brief: “It is true that in Blair v. Commissioner, supra, it was held that the assignment of the right to receive trust income during the life of the assignor carried with it such a property interest in the fund that the transferee and not the transferor was taxable upon future income. But there the assignments were by way of gift and there was no question such as here presented with respect to the taxability of the consideration. As pointed out by the Board of Tax Appeals and as hereinabove indicated, that question is answerable by reference to the Hort case, Hort v. Commissioner, 313 U.S. 28, 61 S.Ct. 757, 85 L. Ed. 1168, where the Court expressly held that simply because the lease was ‘property’ the amount received for its cancellation was not a return of capital. Similarly, simply because the life interests here may have been property within the scope of the Blair case, it does not follow that the amounts received by the transferors did not constitute ordinary income to them. It is submitted that those amounts were ordinary income in the same sense as prepaid rentals, interest or salaries are ordinary income.” The Supreme Court, in the cases of Helvering v. Horst, 311 U.S. 112, 118, 119, 61 S.Ct. 144, 85 L.Ed. 75, 131 A.L.R. 655, and Harrison v. Schaffner, 312 U.S. 579, 582, 61 S.Ct. 759, 85 L.Ed. 1055, has referred to its decision in Blair v. Commissioner, supra. In Helvering v. Horst, the question was whether a gift, during the donor’s taxable year, of interest coupons which were detached from bonds and delivered to the donee shortly before their maturity and which were later in the year paid to the donee, was income taxable to the donor. In speaking of Blair v. Commissioner, supra, the court said in the Horst case (at pp. 118, 119 of 311 U.S., at page 148 of 61 S.Ct, 85 L.Ed. 75, 131 A.L.R. 655): “ * * * In the circumstances of that case the right to income from the trust property was thought to be so identified with the equitable ownership of the property from which alone the beneficiary derived his right to receive the income and his power to command disposition of it that a gift of the income by the beneficiary became effective only as a gift of his ownership of the property producing it. Since the gift was deemed to be a gift of the property the income from it was held to be the income of the owner of the property, who was the donee, not the donor, a refinement which was unnecessary if respondent’s contention here is right, but one clearly inapplicable to gifts of interest or wages.” A majority of the court ruled that the donor had assigned income and not an interest in income-producing property. Three Justices (including Chief Justice Hughes, the author of the opinion in Blair v. Commissioner, supra) dissented, stating that “The general principles approved in Blair v. Commissioner, 300 U.S. 5, 57 S.Ct. 330, 81 L.Ed. 465, are applicable and controlling” (at p. 122 of 311 U.S. at page 149 of 61 S.Ct, 85 L.Ed. 75, 131 A.L.R. 655). The same Justices also dissented, for the same reasons, in Helvering v. Eubank, 311 U.S. 122, 61 S.Ct. 149, 85 L.Ed. 81, which held that, notwithstanding an assignment by a general agent of a life insurance company of his right to future renewal commissions, the commissions remained his income for purposes of taxation. The Circuit Court of Appeals of the Second Circuit had held in the Eubank case (Eubank v. Commissioner, 110 F.2d 737) that the assignment of the right to the future renewal commissions by the assignor was an assignment of a property right and not of income, relying in part upon Blair v. Commissioner, supra. In Harrison v. Schaffner, 312 U.S. 579 61 S.Ct. 759, 85 L.Ed. 1055, a life beneficiary of a trust had assigned to her children specified amounts in dollars from her trust income for the year following the assignment. The trustees paid these amounts to the assignees. The Supreme Court, in its opinion holding that the amounts, for tax purposes, remained the income of the assignor, said with respect to Blair v. Commissioner, supra (at p. 582 of 312 U.S., at page 761 of 61 S.Ct., 85 L. Ed. 1055): “ * * * It is true, as respondent argues, that where the beneficiary of a trust had assigned a share of the income to another for life without retaining any form of control over the interest assigned, this Court construed the assignment as a transfer in praesenti to the donee, of a life interest in the corpus of the trust property and held in consequence that the income thereafter paid to the donee was taxable to him and not the donor. Blair v. Commissioner, supra. But we think it quite another matter to say that the beneficiary of a trust who makes a single gift of a sum of money payable out of the income of the trust does not realize income when the gift is effectuated by payment, or that he escapes the tax by attempting to clothe the transaction in the guise of a transfer of trust property rather than the transfer of income where that is its obvious purpose and effect.” The Supreme Court has not, expressly or by implication, overruled or modified its decision in Blair v. Commissioner, supra. The assignments in Helvering v. Horst, supra, Helvering v. Eubank, supra, and Harrison v. Schaffner, supra, are distinguishable from the assignments involved in Blair v. Commissioner, supra, and from the assignments involved in the instant cases. The Supreme Court has made the distinction, and it is not for this Court to unmake it. We have already pointed out that Blair v. Commissioner does not conflict with Hort v. Commissioner, 313 U.S. 28, 61 S.Ct. 757, 85 L.Ed. 1168, which involved the extinguishment of a contractual right to future rentals, and not an assignment of an interest in property. See Shuster v. Helvering, 2 Cir., 121 F.2d 643, 645. Our conclusion is that in 1936 Frederic S. Bell and Frances L. Bell did not sell to Laird Bell income or naked rights to receive income, but sold to him life interests in trust property, and that the considerations received by them were not ordinary income, taxable as such, but were the proceeds of sales of capital assets. Since the Board was of the opinion that the consideration received by each of the life beneficiaries was ordinary income, it expressed no opinion as to the proper basis for determining the amount of capital gain, if any. The parties are not in accord upon that question, and we are asked to decide it. We think the question should first be determined by the Tax Court. See Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 85 L.Ed. 1037. The decision of the Board is reversed, and the cases are remanded for further proceedings not inconsistent herewith. Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges. Revenue Act of 1936, 49 Stat. 1648, 26 U.S.O.A. Int.Rev.Acts, page 873. “Sec. 117. Capital Gains and Losses “(b) Definition of capital assets. For the purposes of this title, ‘capital assets’ means property held by the taxpayer (whether or not connected with his trade or business) * * Revenue Act of 1986, 49 Stat. 1648, 26 U.S.C.A. Int.Rev.Aets, page 825. “Sec. 22. Gross Income “(a) General Definition. ‘Gross income’ includes gains, profits, and income derived from salaries, wages, or compensation for personal service, of whatever kind and in whatever form paid, or from professions, vocations, trades, businesses, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income from any source whatever. • * »” In Pearce v. Commissioner, 315 U.S. 543, at page 554, 62 S.Ct. 754, at page 760, 86 L.Ed. 1016, the Supreme Court said, referring to Helvering v. Horst, Helvering v. Eubank, and Harrison v. Schaffner: “ * * * Those cases dealt with situations where the taxpayer had made assignments of income from property. He was held taxable on the income assigned by reason of the princi-' pie ‘that the power to dispose of income is the equivalent of ownership of it and that the exercise of the power to procure its payment to another, whether to pay a debt or to make a gift, is within the reach’ of the federal income tax law. Harrison v. Schaffner, supra, 312 U.S. at page 580, 61 S.Ct. at page 760, 85 L.Ed. 1055. But in those cases the donor or grantor had ‘parted with no substantial interest in property other than the specified payments of income.’ Id. 312 U.S. at page 583, 61 S. Ct. at page 762, 85 L.Ed. 1055. Here he has parted with the corpus. And ‘the tax is upon income as to which, in the general application of the revenue acts, the tax liability attaches to ownership.’ Blair v. Commissioner, 300 U.S. 5, 12, 57 S.Ct. 330, 333, 81 L.Ed. 465.” See, also, Helvering v. Stuart, 317 U.S. 154, 168, 63 S.Ct. 140, 87 L.Ed. —. Question: Did the interpretation of federal statute by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_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. UNITED STATES of America v. Nelson G. GROSS, Appellant. No. 79-2010. United States Court of Appeals, Third Circuit. Argued Jan. 8, 1980. Decided Feb. 7, 1980. F. Lee Bailey (argued), Kenneth J. Fish-man, Boston, Mass., for appellant. Robert J. Del Tufo, U. S. Atty., Newark, N. J., for appellee; Maryanne T. Desmond (argued), Chief, Appeals Division, Asst. U. S. Atty., Newark, N. J., on brief. , Before SEITZ, Chief Judge, ADAMS and WEIS, Circuit Judges. OPINION OF THE COURT PER CURIAM: Nelson Gross appeals for the second time the district court’s denial of a writ of coram nobis. In the first appeal, we vacated the order of the trial court and remanded for a full evidentiary hearing on Gross’s allegations of misconduct on the part of government marshals in their dealings with a sequestered jury. After an extensive hearing the district judge found that a deputy marshal had acted improperly, but that his behavior was neither of such character nor of such magnitude as to justify issuance of the writ. We now affirm. The purported evidence of improprieties was discovered more than two years after the affirmance of Gross’s conviction and after his sentence had been served and his parole supervision terminated. Consequently, relief under Fed.R.Crim.P. 33 or under habeas corpus, 28 U.S.C. § 2255, was not available. The bases for the petition for writ of coram nobis were statements in an affidavit of Leon Stacey, a former Deputy United States Marshal. Stacey alleged that, while assigned to guard the sequestered jurors, he developed during the first week of the trial a romantic involvement with one of the female jurors which continued until shortly after the trial ended. He further alleged that in the course of his “romancing” he sought to influence her verdict by telling her that the defendant would, if convicted, receive no more than a fine. Two other marshals were claimed to have competed for the affections of another juror and to have attempted similar influence. At the first hearing on the petition, the district court heard testimony in camera from Stacey, from the current marshal, and from the stenographer employed in preparing the affidavit. The court determined that the manner in which the affidavit was prepared raised doubts as to its credibility, that Stacey’s motives were suspect, and “that all allegations of misconduct during the pendency of the trial [were] false.” On the first appeal we concluded that a more extensive hearing was necessary because the district court should not have assumed that once it had “discredited] Stacey’s allegations regarding frequent instances of prolonged romantic encounters between himself and a female juror, similar ‘trysts’ between Marshal Service officers and another female juror, and instances in which he attempted to influence directly the juror’s deliberations on Gross’s guilt or innocence, there was no necessity for further judicial inquiry into this case.” We held that “inasmuch as there was other evidence offered here suggesting romantic involvement between sequestered jurors and the officers of the court assigned to supervise their sequestration, a full evidentiary hearing on the issue of juror prejudice was in order.” United States v. Gross, No. 78-1360, slip op. at 5 (3d Cir. Nov. 6, 1978), order reported at 558 F.2d 824. At the hearing held pursuant to our remand, testimony was adduced from sixteen witnesses, including five jurors, two deputy marshals, the chief deputy marshal, the former marshal, a deputy clerk who had been a matron assigned to the jury, two FBI agents who had participated in an investigation of the Marshal’s office, and four other witnesses. Each relevant witness denied that he or she had heard or observed any discussions relating to the Gross trial between any deputy marshal and any juror. After hearing much contradictory testimony the trial judge concluded that Stacey’s story was substantiálly fabricated, although there was at least this kernel of truth: The forelady of the Gross jury testified that Stacey had annoyed certain female members of the jury. A matron assigned to the jury testified that Stacey mentioned his romantic interest in a certain juror. The forelady believed the matter had been reported to the Trial Judge and that Stacey had been removed on account of his behavior. The matron testified that she reported Stacey to the United States Marshal. In fact nothing was reported to the Trial Judge, however, several witnesses confirmed that Stacey had been reported to the Marshal. The Marshal denied knowing about it, while several Deputy Marshals testified that they heard him verbally order Stacey off the Gross jury. Because the trial judge is completely competent to sift through testimony and make credibility determinations, and because his findings are not clearly erroneous, we decline the petitioner’s invitation to make our own findings of fact. The legal question we must therefore decide is whether the behavior found to have occurred requires the conclusion that Gross should have been granted the writ of coram nobis. To focus this legal issue more clearly, it is whether the annoyance of some jurors by a deputy marshal and his expression of romantic interest in a specific juror is a sufficient taint on the proceedings to require coram nobis relief. The interest in finality of judgments dictates that the standard for a successful collateral attack on a conviction be more stringent than the standard applicable on a direct appeal. Behavior that might clearly require a mistrial if brought to the district court’s attention at trial, or a retrial if on direct appeal, might not be sufficient to require coram nobis relief. Coram nobis is a remedy infrequently used, and the case law on it is accordingly sparse. The Supreme Court has held that, as an extraordinary remedy, coram nobis should be considered only in circumstances “compelling such action to achieve justice.” United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 252, 98 L.Ed. 248 (1954). Issuance of the writ has been said to be limited to “those cases where the errors were of the most fundamental character, that is, such as rendered the proceeding itself irregular and invalid.” United States v. Mayer, 235 U.S. 55, 69, 35 S.Ct. 16, 19-20, 59 L.Ed. 129 (1914) (dictum). Moreover, “[a]ny proceeding which is challenged by the writ is presumed to be correct and the burden rests on its assailant to show otherwise.” United States v. Cariola, 323 F.2d 180, 184 (3d Cir. 1963). Quoting from an opinion dealing with a direct appeal of a conviction, Gross argues that he has met his burden of demonstrating irregularity during the course of the trial, so that the burden shifted to the government to prove that the irregularity was harmless: In a criminal case any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant. Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954). Assuming that the Remmer shift in presumptions applies to these proceedings, we hold that the district court correctly emphasized that the presumption shifts only if the improper contact between the deputy marshal and a juror involved “the matter pending before the jury. ” That matter, we held in United States v. Boscia, 573 F.2d 827, 831 (3d Cir.), (interpreting Remmer), cert. denied, 436 U.S. 911, 98 S.Ct. 2248, 56 L.Ed.2d 411 (1978), “is the guilt or innocence of the defendant[].” The trial judge specifically disbelieved the testimony that Stacey had communicated with a juror regarding the substance of the trial itself. The conduct found to have occurred — however improper and reprehensible — was simply “annoyance” of some female jurors and the expression of a romantic interest in one. Because this finding is not clearly erroneous, we affirm the district court’s conclusion that Gross did not carry his burden of proving that he was unjustly convicted in an “irregular and invalid” proceeding. The judgment of the district court will accordingly be affirmed. . United States v. Gross, No. 78-1360 (3d Cir. Nov. 6, 1978) (unpublished per curiam), order reported at 588 F.2d 824. . See United States v. Gross, 375 F.Supp. 971 (D.N.J.1974), aff’d, 511 F.2d 910 (3d Cir.), cert. denied, 423 U.S. 924, 96 S.Ct. 266, 46 L.Ed.2d 249 (1975). In the previous appeal this court affirmed the district court’s holding that it did not have jurisdiction over Gross’s Rule 33 motion based on newly discovered evidence, because it was not made within two years of the date of final judgment. See United States v. Gross, 446 F.Supp. 948, 952-53 (D.N.J.1978), aff’d on this issue, No. 78-1360 (3d Cir. Nov. 6, 1978). Final judgment has been defined as the date when the appellate court issues its mandate affirming the conviction. United States v. White, 557 F.2d 1249, 1250-51 (8th Cir.), cert. denied, 434 U.S. 870, 98 S.Ct. 214, 54 L.Ed.2d 149 (1977); United States v. Granza, 427 F.2d 184, 185 n. 3 (5th Cir. 1970); Casias v. United States, 337 F.2d 354, 356 (10th Cir. 1964); Smith v. United States, 109 U.S.App.D.C. 28, 31, 283 F.2d 607, 610 (D.C. Cir. 1960), cert. denied, 364 U.S. 938, 81 S.Ct. 387, 5 L.Ed.2d 369 (1961). . Gross was convicted of conspiracy to defraud the United States, aiding and assisting the filing of a false tax return, obstruction of justice, and subordination of perjury. See id. His sentence, as later reduced, was to imprisonment for a year and a day. After serving five months of the sentence, he was released on parole, supervision of which ended June 1, 1977. Because he was no longer “in custody” when the present motion was filed, no jurisdiction for habeas corpus existed. . The judge ascertained that Gross had paid all expenses of Stacey’s trip from California to New Jersey to prepare the affidavit during the course of a two-day meeting. Stacey had admitted that the wording of the affidavit “was primarily the creation of [Gross],” and that several key statements as well as the name of the juror with whom Stacey allegedly became friendly were supplied by Gross. United States v. Gross, 446 F.Supp. 948, 954 (D.N.J.), vacated and remanded, 588 F.2d 824 (3d Cir. 1978). . Stacey had been the subject of a magazine story and was to be the protagonist of a book. The alleged improprieties were said to be disclosed at the urging of the author and for the purpose of gaining financial benefit from public attention. Furthermore, there were suggestions of personal animosity between Stacey and other members of the Marshal’s service. Id. at 954-55. . Id. at 958. 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_appel1_7_2

D

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). Linda (Sinklear) LESSMAN, Plaintiff-Appellant, v. Bill McCORMICK, Fred Howard, Ed Ritchie, Ed White, John Finden, James Foster, John Hopkins, Elmer Beck, Dr. John Davis, Jr., Robert Drumm, Ralph Glenn, Joan Guy, B. M. Kane, William Kobach, J. R. Kreiger, Kenneth Payne, Jr., Robert Petro, Darrell Roach, Richard Roach, G. W. Snyder, Jr., Russ Reynolds, and Topeka Bank & Trust Company, Defendants-Appellees. Nos. 77-1951 and 77-2045. United States Court of Appeals, Tenth Circuit. Argued and Submitted Nov. 14, 1978. Decided Jan. 26, 1979. Fred W. Phelps, Jr. of Fred W. Phelps, Chartered, Topeka, Kan., for plaintiff-appellant. Leonard M. Robinson, Topeka, Kan., for defendant-appellee Bill McCormick. Wilburn Dillon, Jr., Topeka, Kan. (Tom L. Green, Topeka, Kan., with him on brief), for defendants-appellees Fred Howard, Ed Ritchie and Ed White. L. M. Cornish, Jr., Topeka, Kan. (Henry J. Schulteis, Topeka, Kan., with him on brief), of Glenn, Cornish & Leuenberger, Chartered, Topeka, Kan., for defendants-appellees John Finden, James Foster, John Hopkins, Elmer Beck, Dr. John Davis, Jr., Robert Drumm, Ralph Glenn, Joan Guy, B. M. Kane, William Kobach, J. R. Kreiger, Kenneth Payne, Jr., Robert Petro, Darrell Roach, Richard Roach, G. W. Snyder, Jr., Russ Reynolds, and Topeka Bank & Trust Co. Before McWILLIAMS, DOYLE and LOGAN, Circuit Judges. LOGAN, Circuit Judge. These appeals arise out of a Civil Rights Act complaint filed by Linda (Sinklear) Lessman against the Topeka Bank & Trust Company and individual defendant appellees who include the Mayor of the City of Topeka, a Topeka policeman Ed White and his supervisors, including the Chief of Police, Russ Reynolds, an employee of the bank, and all of the members of the board of directors of Topeka Bank & Trust Company. Jurisdiction is asserted under 42 U.S.C. §§ 1983, 1985(2), (3), 1986 and 28 U.S.C. § 1343(3). The trial court dismissed the complaint upon motion of the defendants. Ms. Lessman has appealed. One question on appeal is whether the complaint states a cause of action under 42 U.S.C. § 1983, specifically whether the actions recited, if true, show a deprivation of a right protected by the Constitution and the laws of the United States within the meaning of that section. Also at issue is whether the complaint is sufficient to state a cause of action under 42 U.S.C. §§ 1985(2) or (3) or 1986, specifically whether she has brought herself within a protected class. The complaint alleged a conspiracy among all defendants to deny plaintiff equal protection of the law and to injure her property and person. It asserted that the defendants arranged to have White, a city police officer, arrest plaintiff upon a warrant and complaint alleging that she had failed to pay an overtime parking ticket. It was further alleged that White arrested and imprisoned the plaintiff, took her to the police station, where she paid the fine for overtime parking (which she admitted she owed); that having paid the fine plaintiff’s imprisonment was continued by informing her that she must see the defendant Reynolds, the bank employee; that White ordered plaintiff to wait in a room until Reynolds appeared, who told plaintiff that when she failed to respond to his letters to her as a debtor of the bank he had prevailed upon the city’s police power to arrest and imprison her. The reasons for the conspiracy were stated to be to instill in plaintiff a fear of the awesome powers of “those who effect arrests and imprisonments” by subjecting her to humiliation, embarrassment and the like, and to instill in her a fear of those who have the power to cause others to effect arrests and imprisonment. The reason for the wish to instill such fear was declared to be to force the plaintiff to give the bank a preferred position in relation to plaintiff’s other creditors who did not have access to such compelling means of exacting payments. No specific facts were alleged with respect to any defendants other than White and Reynolds, except that they “arranged to have the defendant, White, arrest plaintiff,” and that they conspired to deprive plaintiff of her rights. Ruling upon motions by the defendants to dismiss, the trial court declared that there was a bare conclusory allegation of conspiracy, with no specification, insufficient to withstand a motion to dismiss as to the Section 1985 claim. It said that any cause under the portion of § 1985(2) following the semicolon, and § 1985(3) requires a colorable claim of class-based discriminatory animus which is not pleaded here, “nor does it appear they can fairly be so pleaded given the facts which underlie this suit.” Since a cause under § 1986 depends upon statement of valid cause of action under § 1985, that claim also was ruled out. With respect to the § 1983 claim it found the conclusory statements insufficient to state a cause against any other than defendants White and Reynolds. As to them, there was sufficient state action or action under color of state law, but characterizing the claim as essentially one for false arrest or imprisonment the judge thought the incidents alleged were not of sufficient importance to support federal jurisdiction. Therefore, the complaint was dismissed as to all defendants. Upon review we must bear in mind first that this was not a ruling upon a motion for summary judgment, but one where a complaint was dismissed for failure to state cause of action. The allegations of the complaint must be taken at face value and construed most favorably to the pleader. A motion to dismiss must not be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Thus we must carefully analyze the complaint against the backdrop of each of the sections under which jurisdiction was invoked, to see if it can pass the required tests under the liberal construction rules we are bound to apply. I We consider first the allegations of claims under 42 U.S.C. §§ 1985(2), 1985(3) and 1986. Appellant’s brief concedes that only the portion of § 1985(2) following the semicolon is invoked here. With respect to this and § 1985(3) she acknowledges that there must be class-based discriminatory animus. She alleges it is present because she is a member of a class consisting of all debtors, and that the discrimination was to give one creditor an unfair and unjust advantage over her as a debtor. Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971), discussing § 1985(3), stated: The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by law to all. (Footnotes omitted.) The Supreme Court expressly declined to decide whether a conspiracy motivated other than by racial bias would be actionable under that section. 403 U.S. at 102 n.9, 91 S.Ct. 1790. This circuit has held the same kind of class-based discriminatory animus is required under that portion of § 1985(2) following the semicolon. Smith v. Yellow Freight System, Inc., 536 F.2d 1320 (10th Cir. 1976). We have also ruled that where there is no valid claim under § 1985 none can exist under § 1986. Taylor v. Nichols, 558 F.2d 561, 568 (10th Cir. 1977). The circuit court cases which have recognized under § 1985, classes which are not racially based, have stayed close to the areas protected by the First Amendment. E. g., Means v. Wilson, 522 F.2d 833 (8th Cir. 1975) (Indians with a particular political view); Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir. 1973) (members of Jewish faith); Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973) (supporters of a political candidate); Richardson v. Miller, 446 F.2d 1247 (3d Cir. 1971) (employees with a certain political view). Debtors have not been recognized as a protected class as yet. Bankrupts have been expressly held not to be such a class in an en banc decision of the Fifth Circuit. McLellan v. Mississippi Power & Light Co., 545 F.2d 919 (1977). Surely if we should recognize debtors as a protected class it would be the largest in America. We do not have to make that decision, however, because the plaintiff is not complaining about a conspiracy against all debtors, only those debtors who owe the Topeka Bank & Trust Company, who have defaulted on their loans, have not responded to ordinary means of pressure, and have committed some violation of law which gives the alleged coconspirator police officers an excuse to arrest them. That surely does not describe a discriminatory animus against all debtors, against a type or class of debtors, or anyone other than this particular individual. The instant case is not essentially different from Ward v. St. Anthony Hosp., 476 F.2d 671 (10th Cir. 1973) where we held a physician denied staff privileges at a hospital had not shown himself the object of a class-based invidiously discriminatory animus. The complaint must allege facts showing a conspiracy against plaintiff “because of” her membership in a class, and that the criteria defining the class “were invidious.” Harrison v. Brooks, 519 F.2d 1358, 1360 (1st Cir. 1975). The complaint was properly dismissed as to the 42 U.S.C. §§ 1985(2), (3) and 1986 claims. II We turn to the sufficiency of the allegations of the complaint to state a claim under 42 U.S.C. § 1983. Two elements are necessary for recovery under that section. First, the plaintiff must prove that the defendant has deprived him of a right secured by the “Constitution and laws” of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.” This second element requires that the plaintiff show the defendant acted “under color of law.” Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970) . The allegations are sufficient, at least as to policeman White and the bank employee Reynolds, to find action under color of state law. The thrust of § 1983 is to protect against the misuse of power by officials such as the police here. Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Private individuals and entities are subject to liability under the section. See Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In fact the trial court found there was action under color of state law. The dispute, however, is over whether defendant was deprived of a right secured by the Constitution and laws of the United States within the meaning of § 1983. While plaintiff claims the defendants intended to injure her in her property and in her person, and to force her to prefer the bank over her other creditors, there is no allegation that she was unlawfully deprived of her money or property. She paid a fine on the parking ticket for which she was arrested; but admits it was owed. There is no statement in the complaint that she did in fact prefer the bank over her other creditors because of this action. The complaint does allege that she was arrested and taken to the police station, and after paying her fine she was not released until she talked to the bank officer. Thus her complaint states a claim for false arrest and false imprisonment under color of state law. We are required to consider whether that claim is within the protection of § 1983. Certainly the concept of “liberty” guaranteed by the Fourteenth Amendment denotes freedom from bodily restraint. Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). Perhaps, however, not all unlawful deprivations of liberty were intended to be protected under § 1983. In Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), involving defamation, whereby local police publicly identified the plaintiff as a shoplifter, it was held this cause was not within the scope of § 1983. The court noted that the Civil Rights Act was not intended to create a body of general federal tort law, and “the procedural guarantees of the Due Process Clause cannot be the source for such law.” 424 U.S. at 701, 96 S.Ct. at 1160. Nevertheless, in numerous instances the courts have held that false arrest and false imprisonment give rise to claims under § 1983. In most of these cases there were aggravated circumstances such as assaults, harassment or unlawful searches. In Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), for example, there was an unlawful arrest, harassment, illegal search and holding of the plaintiff for about 10 hours. There have been a number of cases in the Tenth Circuit. Stringer v. Dilger, 313 F.2d 536 (10th Cir. 1963) involved an illegal arrest, excessive force, seizure of property, denial of bail and a compelled guilty plea. In Marland v. Heyse, 315 F.2d 312 (10th Cir. 1963), plaintiff was arrested on three separate occasions, held at the police headquarters for five hours on the first, two hours on the second and overnight the third time. The court held that a jury question was presented as to whether the conduct of the police officers “on the different occasions” was so arbitrary, unreasonable and without probable cause as to subject plaintiff to a deprivation of rights under the Constitution. In Martin v. Duffie, 463 F.2d 464 (10th Cir. 1972), a complaint was held to state a cause of action against police officers where there was arrest without a warrant and the police department did not show probable cause. But in that case while being questioned, plaintiff was struck on the head with such severity that he suffered a brain injury which required immediate surgery. Also the arresting officers had made three separate visits to plaintiff’s home to search (apparently with plaintiff’s consent), none of which were productive. There are, however, cases which apparently involved no violence, unlawful searches or repeated harassment. We found a cause was stated under § 1983 when state officials were alleged to have abused their extradition power by turning over the plaintiff to another state without affording him the hearing required by state statutes. Sanders v. Conine, 506 F.2d 530 (10th Cir. 1974). Also while a defendant’s verdict was upheld, the court in Van Camp v. Gray, 440 F.2d 777 (10th Cir. 1971), appears to assume allegations of an unlawful arrest, without violence or complicating facts, stated a case for the jury. Other circuits also have cases recognizing § 1983 jurisdiction where there was little more than an unlawful arrest. See Duriso v. K-Mart No. 4195, 559 F.2d 1274 (5th Cir. 1977); Beightol v. Kunowski, 486 F.2d 293 (3d Cir. 1973); Giordano v. Lee, 434 F.2d 1227 (8th Cir. 1970); Joseph v. Rowlen, 402 F.2d 367 (7th Cir. 1968) (two hours detention); Nesmith v. Alford, 318 F.2d 110 (5th Cir. 1963) (four or five hours detention); cf. Cohen v. Norris, 300 F.2d 24, 30-31 (9th Cir. 1962). We refused to find a cause of action under § 1983 in a case where a student being ticketed for a traffic violation attempted to drive his car away and refused to sign a ticket. He was taken into custody, handcuffed, transported ten miles to a Justice of the Peace, not allowed to make bond on an American Automobile Association bond card, and kept in a cell for a period in excess of one hour. The court stated that “in the final analysis this incident falls short, not only because the officers acted in accordance with local law requiring that a violator be arrested when he fails to sign the ticket, but also because the case is insubstantial.” Wells v. Ward, 470 F.2d 1185, 1189 (10th Cir. 1972). Atkins v. Lanning, 556 F.2d 485 (10th Cir. 1977) involved a case of mistaken identity. Plaintiff was arrested and kept either in jail or a state mental hospital for 33 days before it was established that police had in fact arrested the wrong person. The key question in the case was whether the investigators of a prosecutor were entitled to the prosecutor’s immunity. The court held that they were under the circumstances of the case. But in dictum it was stated that a plaintiff must also demonstrate a violation of federal constitutional rights; that while the slightest interference with personal liberty would constitute false imprisonment under state law, it does not follow that all such invasions “however trivial or frivolous” are sufficient to invoke a remedy under the Civil Rights Act. We do not read that dictum to mean that false imprisonment for 33 days would be an insubstantial, trivial or frivolous deprivation of personal liberty. The court below treated the arrest as legal, since there was a valid outstanding warrant against the plaintiff on the overtime parking violation. It viewed the deprivation of liberty as being only for a brief period, i. e., that time after the plaintiff had paid her fine and until the bank officer interrogated her. The court also noted that a state court action had been commenced involving substantially' the same allegations. It thought these factors indicated an insubstantial case. We do not take the same view. The complaint does not state how much time elapsed between the payment of the fine and the arrival of the bank officer. If it had been a long period perhaps plaintiff would have so alleged in her complaint. But that does not necessarily follow. Further, we do not consider the fact the arrest was made upon a valid warrant necessarily means that the time of the false imprisonment begins only after the fine was paid. The complaint alleged that the purpose of the arrest was in aid of the bank’s debt collection process. It would be relevant to know whether the Topeka police, routinely or even occasionally, go to a person’s home to make an arrest upon a violation for overtime parking. If this is never done unless there is a large accumulation of tickets, then although the warrant would be valid, it could still be an abuse of power. In Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), white and black clergymen were arrested and detained for a few hours for attempting to use a segregated rest room at a Mississippi bus station. The court held that the arresting officers would not be liable under § 1983 if they acted in good faith to arrest under a statute they thought was valid. But it said the officers did not defend on that basis, and the petitioners were entitled to show the officers were not acting in such good faith belief in making the arrest. It remanded for a new trial on the § 1983 claim. We read this case as support for the proposition that an arrest which might be lawful on its face can be an abuse of power, condemned by the Civil Rights Act, if done for an improper purpose. We must take the allegations of the complaint in the instant case as true when reviewing the grant of a motion to dismiss. This is not a case where a policeman acted with excessive zeal in a legitimate arrest situation, as in Wells v. Ward, supra, or where there was an honest mistake of identity, as in Atkins v. Lanning, supra. It is a case of an arrest, not to collect on the overtime parking ticket, but to give improper aid to the bank. This may be close to the line of being an insubstantial deprivation of liberty, but without the development of facts we cannot say that it is, at least as to White and Reynolds. All that is alleged against the defendants other than White and Reynolds is that they conspired together and caused the arrest and detention. No specific facts are set out connecting them to the arrest. Even so we think there is sufficient here to pass the applicable liberal construction test. Specific facts are stated with respect to the officer forcing plaintiff to stay at police headquarters until the bank employee arrived. It is reasonable to inquire whether other bank officers or directors knew of and approved this means of intimidation. It is also a reasonable inquiry whether Reynolds contacted only Officer White or whether he may have called someone else in the police hierarchy who relayed the request to the arresting officer. In many cases of conspiracy essential information can only be produced through discovery, and the parties should not be thrown out of court before being given an opportunity through that process to ascertain whether the linkage they think may exist actually does. Considering a somewhat analogous complaint under the Railway Labor Act the Supreme Court said: The respondents also argue that the complaint failed to set forth, specific facts to support its general allegations of discrimination and that its dismissal is therefore proper. The decisive answer to this is that the Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is “a short and plain statement of the claim” that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests. The illustrative forms appended to the Rules plainly demonstrate this. Such simplified “notice pleading” is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues. Following the simple guide of Rule 8(f) that “all pleadings shall be so construed as to do substantial justice,” we have no doubt that petitioners’ complaint adequately set forth a claim and gave the respondents fair notice of its basis. The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits. Cf. Maty v. Grasselli Chemical Co., 303 U.S. 197, 58 S.Ct. 507, 82 L.Ed. 745. (Footnotes omitted.) Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). The Supreme Court has indicated the same position should be taken as to § 1983 complaints. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). It seems unlikely to us that any connection can be shown to keep the mayor in this action. The brief indicates the may- or was added because he was the supervisor of the police. The same may be said as to other defendants. The doctrine of respondeat superior does not apply to these cases. Personal participation will have to be demonstrated to keep them in the case. It may well be that at some stage a motion for summary judgment may be appropriate to let some defendants out. But we hold the complaint is sufficient to withstand a motion to dismiss as to the § 1983 claims. Thus we affirm the grant of the motion to dismiss the complaint as to the counts involving §§ 1985(2), (3), and 1986 as to all defendants, but not with respect to the § 1983 claims. Each party is to bear its own costs of this appeal. The case is remanded for proceedings consistent with this opinion. 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_frivol

D

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court conclude that either the original case was frivolous or raised only trivial issues and therefore was not suitable for actions on the merits?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". UNITED STATES of America, Plaintiff-Appellee, v. Edwin Thomas BARRETT, Defendant-Appellant. No. 81-1622. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 7, 1982. Decided April 11, 1983. As Amended on Denial of Rehearing June 7, 1983. Stephen R. Sady, Portland, Or., for defendant-appellant. William W. Youngman, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee. Before CHOY, TANG and BOOCHEVER, Circuit Judges. CHOY, Circuit Judge: Edwin Barrett appeals from his conviction, after trial by jury, for robbing a federally insured savings and loan association, in violation of 18 U.S.C. § 2113(a). He contends that the trial court erred in (1) denying his motion for a continuance that was needed to enable his counsel to prepare for cross-examination and rebuttal of the Government’s photographic expert; (2) refusing to substitute an alternate juror for, or allow defense counsel to question, a juror who claimed to have been sleeping during the trial; and (3) admitting certain testimony of Government witnesses that should have been excluded. Because we find error in the trial court’s handling of the “sleeping”-juror question, we remand for a hearing on this issue. I. Facts On June 5, 1981, at about 3:25 p.m., a lone robber entered the Uptown Branch of Western Savings and Loan in Portland, Oregon. The robber approached Lydia Bass, a teller, showed her a gun, and demanded money. Bass gave the robber approximately $410 and two clips of bait bills — one containing a dye pack and the other activating the bank surveillance cameras. On June 9, 1981, a Federal Bureau of Investigation agent and a Portland police officer went to Barrett’s residence and confronted Barrett with a surveillance photograph taken during the June 5th robbery. Barrett accompanied the officers to the Portland office of the FBI where he was questioned by Special Agent Stanley Rénning, released, then arrested two and a half hours later. At trial, the major issue was one of identification. The Government introduced four 8- by 10-inch surveillance photographs of the robber and two smaller photographs of Barrett as he appeared before he shaved his beard and mustache. All the witnesses who testified at trial were for the Government. Bass, the teller, testified that she had previously selected Barrett’s photograph as that of the robber in a pretrial photographic spread, although she had not been certain of the identification. She also identified a gun and clothing seized from Barrett as resembling those used by the robber, and made a positive in-court identification of Barrett. Barbara Lemon, Barrett’s live-in girl friend, testified that the person in the surveillance photograph was Barrett. She also testified that the clothes seized by the FBI were worn by Barrett on June 5th, the day of the robbery; that the gun seized by the FBI was a starting pistol that belonged to her; that Barrett left home at 7:00 a.m. on the day of the robbery, claiming that.he was going to work for Hoffman Construction Company, and did not return until 4:00 p.m.; that when he returned at 4:00 p.m., Barrett gave her $230 in cash to pay a telephone bill; that later that same day he shaved off his beard and mustache; and that he took her to dinner that night and paid the bill, something he usually did not have money to do. Special Agent Stanley Renning of the FBI testified regarding statements Barrett had made while being questioned on June 9th about the robbery. Agent Renning testified that Barrett said that he spent the major portion of the afternoon at home preparing for a fishing trip on the day of the robbery, and that he shaved off his beard and mustache on June 4th, the day before the robbery. Finally, Peter Smerick, an FBI photographic expert, testified that he compared the clothing of Barrett seized by the FBI with that worn by the robber in the bank surveillance photograph by use of a microscope and high-intensity light. Smerick testified to detailed similarities between Barrett’s clothing seized by the FBI and that worn by the robber in the surveillance photograph, including the color and placement of buttons on the sweater, the stripes and placement of buttons on the shirt, and the stains found on the cap. II. Discussion A. Denial of Barrett’s Motions for Con- . tinuance Barrett contends that in view of the Government’s last-minute production of a photographic expert witness, the trial court should have granted a continuance to enable his counsel to prepare for cross-examination and rebuttal of that expert. The Government first notified Barrett of its intention to call a photographic expert as a witness on July 28, 1981, eight days before trial. Barrett had earlier moved for a continuance because of his counsel’s involvement in other trials. On July 31,' 1981, Barrett supplemented this motion by submitting an affidavit by his counsel stating that a continuance was necessary in order for Barrett to prepare for the expert and possibly obtain a defense expert. On August 3, 1981, two days before trial, the Government provided Barrett with the results of the expert’s report. Although the record indicates that Barrett made a diligent effort to secure an expert to assist him before trial, he was unsuccessful. Barrett made numerous motions for continuance before and during trial which were all denied. Barrett relies principally on the Second Circuit decision of United States v. Kelly, 420 F.2d 26 (2d Cir.1969), to support his argument that the trial court’s failure to grant a continuance constitutes reversible error. The defendants in Kelly were two police officers who were charged with retaining and selling cocaine that they had seized in an earlier raid. At trial, the Government introduced the results of neutron-activation tests which tended to show that the cocaine sold by the defendant police officers came from the same batch seized in the earlier raid. The Government, in violation of a discovery order, had not informed the defendants of the tests, and the defendants first learned of the test results when they were introduced at trial. The defendants’ motion for a continuance to carry out its own version of the tests was denied and the defendants were subsequently convicted. In reversing the defendants’ convictions, the Second Circuit held that “fairness requires that adequate notice be given the defense to check the findings and conclusions of the government’s experts.” Id at 29.' The court ordered a new trial to give the defendants a fair opportunity to run their own neutron-activation tests. Id We conclude that the rule announced in Kelly applies to the present case. Thus, the question becomes whether Barrett was given adequate time to obtain an expert to assist him in attacking the findings of the Government’s photographic expert. Under the circumstances of this case, we find that Barrett was not given adequate time to obtain an expert to assist him in attacking the Government’s expert. Barrett was first notified of the Government’s intent to call a photographic expert eight days before trial. He received the results of the expert’s tests only two days before trial. The record indicates that Barrett probably could have obtained an expert to assist him had he been given more time. The denial of a continuance is within the trial court’s discretion and should not be disturbed on appeal absent clear abuse. United States v. Hoyos, 573 F.2d 1111, 1114 (9th Cir.1978). In failing to grant the requested continuance to allow Barrett adequate time to obtain the assistance of an expert, the trial court clearly abused its discretion. Cf. United States v. Durant, 545 F.2d 823, 827-28 (2d Cir.1976) (failure to grant indigent defendant’s request for fingerprint expert violates Criminal Justice Act); Barnard v. Henderson, 514 F.2d 744, 746 (5th Cir.1975) (defendant has right to have own ballistics expert examine evidence). Our finding of error does not end our inquiry. We must also determine whether the error amounts to one requiring reversal of Barrett’s conviction. In this context, it is important to note that our finding of error is based on our determination that Barrett should have been given additional time to secure a defense expert for the limited purpose of assisting him in attacking the credibility of the Government’s expert through cross-examination and rebuttal. It is not based on a determination that Barrett was entitled to additional time to secure a defense expert witness to provide affirmative proof of his innocence by showing that his seized clothes and the clothes worn by the robber in the surveillance photograph were different. Barrett received general discovery in the case three weeks before trial; it was only notification of the Government’s intention to call a photographic expert and the results of the expert’s tests that were received late. If Barrett had desired a photographic expert to provide affirmative proof of his innocence, he had ample time to secure one. The prejudice resulting to Barrett from the denial of the continuance is thus limited to his difficulty in attacking the credibility of the Government’s witness without the aid of an expert. This prejudice could have been eliminated by excluding the testimony of the Government’s expert witness. Therefore, the denial of the continuance would be harmless error if the improper admission of the testimony of the Government’s expert under the facts of this case would be deemed harmless. An error is considered harmless and shall be disregarded on review if it does not affect substantial rights of the defendant. Fed.R.Crim.P. 52(a). This circuit has for-formulated a test requiring the determination of whether the prejudice resulting from the error was more probably than not harmless. United States v. Castillo, 615 F.2d 878, 883 (9th Cir.1980). The Government introduced the testimony of the photographic expert for the purpose of identifying Barrett as the robber. We find that the other Government evidence introduced at trial identifying Barrett as the robber is so overwhelming that the improper admission of the expert’s testimony would be deemed harmless error. United States v. Burke, 506 F.2d 1165, 1170 (9th Cir.1974) (erroneous admission of photographic expert’s testimony harmless in view of other overwhelming evidence), cert. denied, 421 U.S. 915, 95 S.Ct. 1576, 43 L.Ed.2d 781 (1975); United States v. Brown, 501 F.2d 146, 150 (9th Cir.1974) (same), rev’d in part on other grounds sub nom. United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975); United States v. Trejo, 501 F.2d 138, 143 (9th Cir. 1974) (same). The Government’s considerable identification evidence included (1) four clear 8- by 10-inch bank surveillance photographs of the robber for the jury to examine and compare with two smaller photographs of Barrett taken before he had shaved his beard and mustache, Barrett’s clothes seized by the FBI, and Barrett’s physical appearance at trial; (2) a positive in-court identification by Bass, the teller, who had previously given a fairly accurate description of the robber to the police and who also identified the clothing seized from Barrett as resembling that worn by the robber; and (3) the testimony of Lemon, Barrett’s live-in girl friend, who identified Barrett as the person in the surveillance photo. Since the improper admission of the Government expert’s testimony would be deemed harmless, it follows that the district court’s failure to grant the continuance is harmless error. We hold that no substantial rights of Barrett were affected by the error. B. Sleeping Juror After the court had instructed the jury but before the jury began its deliberations, a juror apparently asked to be removed from the panel because he had been sleeping during the trial. The judge advised both counsel of the juror’s request, stating; Counsel, Mr. Detweiler, Juror No. 4, has been sleeping during this trial. And he’s indicated to the clerk that he would prefer to be excused in favor of the alternate juror, Mr. West. The judge went on to state: I don’t have the authority to do that [order the substitution]. If you wish to do it by stipulation, I shall, or will leave it alone, depending on the view of counsel. Barrett requested the substitution, but the Government refused to so stipulate. In the absence of the Government’s stipulation, the judge refused to order the substitution. After the jury returned a verdict of guilty, Barrett filed a motion to permit the defense to interview the juror. The trial judge denied the motion, stating: On the matter of the juror, there was no juror asleep during this trial. I watch the jurors constantly. Of course, I can’t tell whether somebody might have felt drowsy, nor could I tell if somebody has a personal problem of some kind which might divert their mind from the case. Other circuits have allowed a trial judge, in response to a defendant’s allegation that a juror had been sleeping, to take judicial notice of the fact that the juror had not been sleeping without requiring the judge to .make any inquiry into the allegation. United States v. Curry, 471 F.2d 419, 421-22 (5th Cir.), cert. denied, 411 U.S. 967, 93 S.Ct. 2150, 36 L.Ed.2d 688 (1973); United States v. Carter, 433 F.2d 874, 876 (10th Cir.1970). We do not believe, however, that under the particular circumstances of this case, the trial judge could properly take judicial notice of the fact that “there was no juror asleep during this trial” without making further inquiry into the matter. Unlike the above cited cases where the allegation of a sleeping juror was raised by the defendant, the court in this case was apparently informed by the juror himself that he had been sleeping during the tri^l. In view of the juror’s own statement, we have no basis for accepting the trial judge’s bare assertion that no juror had been asleep during trial. The trial judge has considerable discretion in determining whether to hold an investigative hearing on allegations of jury misconduct and in defining its nature and extent. United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir.), cert. denied, 434 U.S. 818, 98 S.Ct. 58, 54 L.Ed.2d 74 (1977). We nevertheless hold that in failing to conduct a hearing or make any investigation into the “sleeping”-juror question, the trial judge abused his considerable discretion in this area. The case is remanded with instructions that the trial judge conduct a hearing to determine whether the juror in fact was sleeping during trial and, if so, whether the juror’s being asleep prejudiced Barrett to the extent that he did not receive a fair trial. United States v. Hendrix, 549 F.2d at 1229. The trial judge shall conduct the hearing and shall submit his findings and conclusions along with a copy of the hearing transcript to this court. We retain jurisdiction pending receipt of the trial judge’s findings and conclusions and a copy of the hearing transcript. C. Admission of Testimony Finally, Barrett claims that the trial court erred in admitting the testimony of several Government witnesses. Specifically, he challenges the admission of (1) the in-court identification of the teller, Bass; (2) the testimony of his girl friend, Lemon, identifying him as the person in the bank surveillance photograph; and (3) certain statements he made to FBI Special Agent Renning. 1. Bass’ In-Court Identification Approximately two weeks after the robbery, the teller, Bass, was asked to identify the robber from among a pretrial photographic spread prepared by the FBI. The photographic spread consisted of nine photographs of white males of similar age and possessing similar facial characteristics. Bass selected Barrett’s photograph as strongly resembling the robber, although she was not certain of the identification. The day before the trial, Bass was again shown the photographic spread along with the surveillance photographs and two smaller photographs of Barrett before he had shaved his beard and mustache. At trial, she made a positive in-court identification of Barrett. Convictions based on in-court identification following a pretrial identification by photograph will be set aside where the photographic-identification procedure was so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). Barrett’s principal contention is that the pretrial photographic spread was so impermissibly suggestive that it tainted Bass’ subsequent in-court identification. Specifically, Barrett asserts that (1) he was the only person in the photographic display wearing dark glasses (the robber had been described as wearing dark glasses); (2) his photograph was one of five in which height lines typical of a booking facility appeared in the background; (3) all the men in the photographic spread were clean-shaven, implicitly indicating that the robber had shaved; and (4) he was the largest person in the photographic spread. We have examined the photographic spread and agree with both the trial judge’s observation that it was “an extraordinarily fair throwdown,” and his finding that the spread was not impermissibly suggestive. See United States v. Collins, 559 F.2d 561, 563 (9th Cir.), cert. denied, 434 U.S. 907, 98 S.Ct. 309, 54 L.Ed.2d 195 (1977). All the men in the photographic display are remarkably similar in appearance. The only noticeable difference is that Barrett is the only one wearing photosensitive glasses and thus his glasses have a darker tint than those worn by the others. But even this difference is barely noticeable and does not serve to single out Barrett from the others. Moreover, even if there were some suggestiveness in the photographic-spread identification, we find that Bass’ in-court identification was sufficiently reliable to justify its admission. The reliability of an in-court identification is the linchpin in determining its admissibility. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); United States v. Field, 625 F.2d 862, 866 (9th Cir.1980). The Supreme Court has identified five factors among the totality of the surrounding circumstances that we must consider in assessing the reliability of the identification testimony. They are: 1. [t]he opportunity of the witness to view the criminal at the time of the crime, 2. the witness’ degree of attention, 3. the accuracy of the witness’ prior description of the criminal, 4. the level of certainty demonstrated by the witness at the [pretrial] confrontation, and 5. the length of time between the crime and the [pretrial] confrontation. Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972); United States v. Field, 625 F.2d at 866. These five indicia of reliability must be balanced by the reviewing court against the corrupting effect of the suggestive pretrial identification procedure to determine whether the in-court identification should have been admitted. Manson v. Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253; United States v. Field, 625 F.2d at 866. Applying the five-factor analysis to the facts of the present case, we find that Bass had a good opportunity to view the robber at the time of the crime. She was the victim of the robbery and testified that she had taken a long look at the robber during the robbery. Being the target of the robbery, her degree of attention was undoubtedly high. Her actions in giving the robber two clips of bait bills, one containing a dye pack and the other activating the surveillance camera, demonstrates her alertness at the time of the robbery. Bass’ prior description of the robber was detailed and fairly accurate. She correctly described the robber as a white male, about 55 to 60, about six feet tall, stout with a baker’s belly, wearing a red baseball cap,' green sweater, jeans, and horn-rimmed glasses. Only her description of the robber’s shirt was incorrect. Although her level of certainty in identifying Barrett at the pretrial photographic spread was not high, she did select Barrett from among nine similar photographs. Finally, the length of time between the robbery and Bass’ pretrial photographic-spread identification was only two weeks. Weighing these five strong indicia of reliability against the minimal suggestiveness of the pretrial photographic spread, we are convinced that Bass’ in-court identification was sufficiently reliable to justify its admission. 2. Lemon’s Lay-Opinion Identification As part of her testimony at trial, Lemon, Barrett’s girl friend, identified Barrett as the person in the bank surveillance photograph. Barrett argues that the admission of this testimony violated Fed.R.Evid. 701(b) which limits lay-opinion testimony to that which is “helpful to ... the determination of a fact in issue.” Barrett contends that any need for Lemon’s lay-opinion identification was totally obviated by the fact that the jury had before it two photographs of Barrett with a beard and mustache as well as Barrett himself to compare against the surveillance photographs. He therefore claims that Lemon’s lay-opinion identification was not helpful to the determination of the identification issue. We disagree. Barrett, like the robber in the surveillance photograph, had a full beard and mustache around the time of the robbery. Since that time, his appearance had substantially changed as he was clean-shaven during the trial. We find that in view of Lemon’s intimate acquaintance with Barrett when he had a beard and mustache, and the subsequent change in his appearance, Lemon’s lay-opinion identification of Barrett was helpful to the determination of the identification issue as required by Rule 701. See United States v. Borrelli, 621 F.2d 1092, 1095 (10th Cir.) (lay-opinion identification admissible under Rule 701 where defendant’s appearance had significantly changed since time of robbery), cert. denied, 449 U.S. 956, 101 S.Ct. 365, 66 L.Ed.2d 222 (1980). We will not disturb the trial court’s discretion to admit lay-opinion testimony under Rule 701 absent clear abuse. United States v. Butcher, 557 F.2d 666, 670 (9th Cir.1977). We find no abuse of discretion in the trial court’s admission of Lemon’s lay-opinion identification under Rule 701. Barrett also argues that the admission of Lemon’s testimony violated Fed.R. Evid. 403 because its probative value was substantially outweighed by the danger of unfair prejudice. We again apply the abuse-of-discretion standard of review, United States v. Hobson, 519 F.2d 765, 771 (9th Cir.), cert. denied, 423 U.S. 931, 96 S.Ct. 283, 46 L.Ed.2d 261 (1975), and find Barrett’s unfair-prejudice claim to be without merit. 3. Admission of Statements Made by Barrett At trial, FBI Special Agent Renning testified to statements Barrett had made while being questioned about the robbery. Renning testified that Barrett said that he spent the major portion of the afternoon of June 5th, the date of the robbery, preparing for a fishing trip and that he shaved off his beard and mustache on June 4th, the day before the robbery. Barrett contends that these statements should have been suppressed because they were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We disagree. The trial court held a pretrial suppression hearing to determine the admissibility of the challenged statements. The trial'court heard conflicting testimony from FBI agents Stewart and Renning on the one hand and Barrett on the other. While acknowledging the difference in testimony, the court found that Barrett had his Miranda rights read to him in full. The court further found that Barrett was not in custody nor under arrest when he made the statements. Findings of fact made at a suppression hearing will not be disturbed on appeal unless clearly erroneous. United States v. Botero, 589 F.2d 430, 433 (9th Cir.1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2162, 60 L.Ed.2d 1045 (1979). In making its findings, the trial court credited the testimony of FBI agents Stewart and Renning over that of Barrett. This credited testimony provides support for the trial court’s findings. We therefore hold that the factual finding of the trial court that Barrett was read his Miranda rights is not clearly erroneous and is entitled to our acceptance on appeal. See United States v. Coletta, 682 F.2d 820, 825 (9th Cir.1982), cert. denied, - U.S. , 103 S.Ct. 1187, 75 L.Ed.2d 433 (1983); United States v. Dufur, 648 F.2d 512, 514 (9th Cir.1980), cert. denied, 450 U.S. 925, 101 S.Ct. 1378, 67 L.Ed.2d 355 (1981). Applying the facts found by the district court, we conclude that Barrett’s Miranda rights were not violated and that his statements were properly admitted. We do not reach the question of whether Barrett was not in custody at the time he made the statements, and thus was not entitled to any Miranda protection, Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977). Even assuming he was in custody and entitled to Miranda protection, he was advised of his rights under Miranda and waived them. III. Conclusion We find that the trial court’s denial of the continuance was error but, under the circumstances of this cáse, the error was harmless. We also find that the trial court did not err in admitting the testimony of government witnesses challenged by Barrett on appeal. However, because we believe that the trial judge abused its discretion in failing adequately to investigate the “sleeping”-juror question, we remand the case for a hearing on this matter. We retain jurisdiction of this case pending receipt of the trial judge’s findings and conclusions, along with a copy of the hearing transcript, on the “sleeping”-juror question. . Lemon, who was living with Barrett at the time of the robbery, turned over both the clothes and gun to the FBI after being approached by them. . See supra note 1. . Candice Philbrick, payroll clerk for Hoffman Construction Company, later testified that Barrett was not employed by the company on the date of the robbery. . Smerick’s examination actually involved a three-way comparison between Barrett’s clothes, the surveillance photograph, and photographs taken of an FBI agent modeling Barrett’s clothes in a posture similar to that held by the robber in the surveillance photograph. . It is significant to note that Barrett’s requests for a continuance did not allege a need to secure a photographic expert to establish his innocence. His requests were based on the need to secure an expert to assist him in preparing for cross-examination and rebuttal of the Government’s expert. Barrett first expressed his desire for a photographic expert only after the Government had notified him of its intent to call one. . Although the court’s error in denying the continuance impeded defense counsel’s ability to prepare for trial, it cannot be said that the error implicated the constitutional right to cross-examination. Sixth amendment rights may be violated by less than a complete denial of cross-examination, but this case does not involve a sufficient diminution of the right to come within the constitutional protection. The scope of cross-examination was not directly curtailed; defense counsel had a full opportunity to question the government’s expert witness. Counsel received the government’s report before trial. See United States v. Jordan, 466 F.2d 99 (4th Cir. 1972), cert. denied, 409 U.S. 1129, 93 S.Ct. 947, 35 L.Ed.2d 262 (1973), United States v. Hernandez, 608 F.2d 741 (9th Cir. 1979). Because no constitutional rights were violated in this case, we apply the nonconstitutional harmless error standard of review. . It is important to note that the Government did not emphasize the photographic expert’s testimony during closing argument and instead invited the jurors, with their own eyes, to compare the surveillance photographs with the clothes that were seized from Barrett by the FBI. . We have examined the actual surveillance photographs and found them surprisingly well-focused and clear in detail. The general features of the robber’s face and body as well as the details of his clothes, such as the placement of buttons on his sweater and shirt, are discernible. . After the robbery, Bass described the robber to the police as a white male, 55-60, about six feet tall, stout with a baker’s belly, wearing a red baseball cap, a green sweater, jeans, and a red shirt. Only the description of the shirt, which was plaid, was mistaken. . The record does not show exactly what was said by the juror. . Although we do not question the good faith of the trial judge, we also place some significance on the fact that the trial judge did not assert his knowledge that no juror had been asleep when the question was first raised, but only asserted this knowledge after the jury had returned a verdict of guilty. . The record demonstrates that the trial judge believed that he had no authority to substitute an alternate for the alleged sleeping juror absent a stipulation by both parties. Because of this belief, the judge may have concluded that once the Government refused to stipulate to the substitution, any hearing or other investigation into the “sleeping”-juror question would have been meaningless. We note that if the trial judge’s decision not to conduct a hearing or investigation was based on his belief that he had no independent authority to substitute an alternate juror for a sleeping juror, the decision was based on an erroneous premise. Under Rule 24(c) of the Federal Rules of Criminal Procedure, a trial judge has the independent authority to order such a substitution. United States v. Smith, 550 F.2d 277, 285-86 (5th Cir.), cert. denied, 434 U.S. 841, 98 S.Ct. 138, 54 L.Ed.2d 105 (1977); United States v. Cameron, 464 F.2d 333, 334-35 (3d Cir.1972). . We have previously stated that even if the allegations of juror misconduct are found to be true, the inquiry does not end there because not every incident of juror misconduct requires a new trial. United States v. Hendrix, 549 F.2d 1225, 1229 (9th Cir.), cert. denied, 434 U.S. 818, 98 S.Ct. 58, 54 L.Ed.2d 74 (1977). The court must determine whether the resulting prejudice amounted to a deprivation of the fifth amendment due-process or sixth amendment impartial-jury guarantees. Id. Therefore, even if the juror in the present case is found to have been asleep during portions of the trial, a new trial may not be required if he did not miss essential portions of the trial and was able fairly to consider the case. . Barrett also challenges the admission of the testimony of the Government’s photographic expert, Smerick, regarding the detailed similarities between Barrett’s seized clothing and that worn by the robber in the surveillance photograph. In discussing the denial of Barrett’s motion for continuance, we have already stated that even assuming that Smerick’s testimony was inadmissible, the admission of his testimony would be harmless error. We thus need not spend an extended period of time discussing the admissibility of Smerick’s testimony. We find that if viewed independent of the denial of the continuance, the trial court’s admission of Smerick’s testimony was entirely proper. Barrett argues that the trial court’s admission of Smerick’s testimony violated Fed.R. Evid. 702 which provides that an expert may not testify unless his or her specialized knowledge will “assist the trier of fact to understand the evidence or determine a fact in issue.” Barrett asserts that Smerick’s testimony added nothing to the jury’s own ability to compare the seized clothing with the clothing in the surveillance photographs. Ke therefore contends that the trial court erred in finding that Smerick’s testimony would assist the trier of fact within the meaning of Rule 702. We disagree. The trial court’s discretion to admit expert testimony under Rule 702 may not be disturbed on appeal absent clear abuse. United States v. Brown, 501 F.2d 146, 149 (9th Cir.1974), rev’d in part on other grounds sub nom. United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975). Smerick testified to similarities between the tonal condition, style and placement of buttons, stripes, and stains found on Question: Did the court conclude that either the original case was frivolous or raised only trivial issues and therefore was not suitable for actions on the merits? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_trialpro

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 court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Bobby R. GIPSON, Petitioner, v. VETERANS ADMINISTRATION and the United States, Respondents. No. 81-1933. United States Court of Appeals, District of Columbia Circuit. Argued April 27, 1982. Decided July 13, 1982. Harry Toussaint Alexander, Washington, D. C., for petitioner. Wayne P. Williams, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., Washington, D. C., at the time the brief was filed, Royce C. Lam-berth, Kenneth M. Raisler and Michael J. Ryan, Asst. U. S. Attys., Washington, D. C., were on the brief, for respondents. Before EDWARDS and BORK, Circuit Judges, and DUDLEY B. BONSAL, United States Senior District Judge for the Southern District of New York. Sitting by designation pursuant to 28 U.S.C. § 294(d) (Supp. IV 1980). HARRY T. EDWARDS, Circuit Judge: In this case, we are called upon to review a decision of the Merit Systems Protection Board (“MSPB”) upholding the termination of the petitioner, Bobby R. Gipson, from his position in the Veterans Administration. For the reasons set forth below, we conclude that the MSPB proceedings were not proeedurally infirm, that the decision of the MSPB sustaining the charges against Gip-son was supported by substantial evidence, and that the MSPB correctly held that Gip-son’s discharge was not an excessive punishment or the product of improper motives. We therefore affirm the MSPB decision. I. BACKGROUND A. Factual Background Most of the facts relevant to this case are uncontroverted. The petitioner, Bobby R. Gipson, was the Rehabilitation Medicine Service Coordinator at the Veterans Administration Medical Center in Washington, D.C. from October 1975 until his termination in April 1979. In this position, Gipson served as the administrative assistant to the Chief of the Rehabilitation Medicine Service (“RMS”), Dr. Herman L. Kamenetz. According to Gipson’s Position Description, his “primary responsibility [was] the supervising and coordinating of all administrative activities of the Rehabilitation Medicine Service, [and] assisting the Chief of RMS in accomplishing overall management of this service.... ” A.R. 143. Included among these responsibilities were jobs dealing with the development and implementation of policies and procedures for RMS and the coordination of patient treatment schedules with the various Section Chiefs in RMS. Thus, Gipson had considerable responsibility for and authority over the operation of the Service, which provided physical and occupational therapy for patients coming from various units within the hospital. Gipson’s job responsibilities, however, did not include duties as a therapist or as a physician. (He lacked the necessary accred-itations for either position.) For a few months in 1978, Gipson had occasionally acted as a therapist in two of the hospital’s wards; however, after officials in the Office of the Chief of Staff learned of Gip-son’s activities in September 1978, he was specifically directed to cease any therapeutic duties. Tr. II 78. Hospital rules governing RMS required that patients be referred to the Service by a physician, and in normal circumstances a written referral had to precede any therapy. A.R. 132. Hospital rules further required that the consultation sheets, by which referrals to RMS were made, could be requested and answered “only by residents, staff physicians, consultants or at-tendings.” A.R. 116. In addition, the consultation sheets could be signed only by the responsible physician. Id. The Employee Health Physician at the Medical Center could refer hospital employees to RMS by a similar procedure. A.R. 138. In late 1978, Gipson was approached by Lorenzo Leak, a hospital employee suffering from osteoarthritis. Leak desired to use the RMS therapeutic swimming pool after working hours. Gipson gave Leak permission to use the pool and — so that Leak could have access to the pool after RMS closed — Gipson gave Leak keys to the Service. Another hospital employee, Joseph Lloyd, also approached Gipson about using the RMS pool in November 1978. Because Lloyd was partially disabled by cerebral palsy, Gipson gave Lloyd permission to use the pool only after arranging with Clyde Burnett, another employee, to swim with Lloyd. (Several years earlier, Burnett had held a Red Cross water safety certificate.) As he had with Leak, Gipson gave Burnett and Lloyd a set of keys to RMS so that they could use the swimming pool after hours. At 8:10 p.m. on January 30,1979, hospital police officers found Leonard Leak in the RMS swimming pool. Mr. Leak, who was neither an employee nor a patient at the hospital, explained that he was waiting for his brother Lorenzo to meet him. The police confiscated his keys and filed a report. The next day, hospital administrators learned that Lorenzo Leak had obtained the keys from Gipson and that Gipson had also issued keys to Burnett and Lloyd. On January 31, 1979, Dr. Kamenetz and Clyde Corsaro, the Assistant Medical Center Director, interviewed Gipson. The petitioner admitted that he had given the cited employees permission to use the pool after hours and had issued them keys to RMS for that purpose. He asserted to his superiors, however, that he had consultation sheets approving the use of the RMS pool by Lorenzo Leak and Joseph Lloyd. After this interview, Gipson prepared consultation sheets for Lorenzo Leak and Joseph Lloyd, backdated them to December 1 and 7, 1978, and then took them to Margaret Durham, a nurse to Dr. Kenmore. Nurse Durham signed Dr. Kenmore’s name on the backdated consultation sheets. Gipson then presented these backdated consultation forms to the Assistant Medical Center Director as proof of Dr. Kenmore’s approval for Leak’s and Lloyd’s use of the RMS pool. On March 7,1979, Dr. Kamenetz proposed Gipson’s discharge from employment on the basis of five charges: (1) issuing keys to RMS to Lorenzo Leak without authority; (2) granting Lorenzo Leak permission to use the RMS pool for therapeutic purposes without professional supervision and without a physician’s orders; (3) granting Joseph Lloyd permission to use the RMS pool for therapeutic purposes without professional supervision and without a physician’s orders; (4) issuing keys to RMS to Clyde Burnett and Joseph Lloyd without authority; and (5) falsifying the consultation sheets of Lorenzo Leak and Joseph Lloyd. A. R. 36-37. By letter dated March 26, 1979, the Medical Center Director advised Gipson that the charges were upheld and that his employment would be terminated effective April 13, 1979. A.R. 35. B. MSPB Proceedings Gipson appealed his removal to the Merit Systems Protection Board. After Gipson’s counsel requested several continuances, the MSPB Presiding Official, Elizabeth B. Bo-gle, refused to postpone the proceedings further and decided Gipson’s appeal based on the parties’ written submissions. Presiding Official Bogle sustained each of the five charges against Gipson and his resulting removal. Gipson v. Veterans Administration, 1 M.S.P.B. 422 (1979). The MSPB vacated this decision, ruling that good cause existed for rescheduling the hearing and that the case therefore should not have been decided without an evidentiary hearing. Gipson v. Veterans Administration, 1 M.S.P.B. 420 (1980); see 5 U.S.C. § 7701(a) (Supp. IV 1980). Subsequently, on June 18 and 19, 1980, Presiding Official Bogle conducted an evidentiary hearing. At the outset of the hearing, the Presiding Official denied Gipson’s motion that she recuse herself on grounds of bias. Based upon the parties’ written submissions and upon two days of testimony, the Presiding Official again found that the charges against Gipson were supported by a preponderance of the evidence and that his removal was warranted. In addition, the Presiding Official rejected Gipson’s claims that his discharge was the result of discrimination or in retaliation for “whistle-blowing.” Gipson v. Veterans Administration, Docket No. DC075209249 (M.S.P.B. Sept. 10, 1980); A.R. 235-39. The MSPB reviewed the Presiding Official’s decision and affirmed on all grounds. Gipson v. Veterans Administration, Docket No. DC075209249 (M.S.P.B. July 17,1981); A.R. 259-64. Gipson has here petitioned for review of the MSPB Opinion and Order. This court has jurisdiction over this appeal pursuant to 5 U.S.C. § 7703 (Supp. IV 1980). II. ANALYSIS The standards for judicial review of MSPB decisions are familiar ones. Under the Civil Service Reform Act, we are required to “review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be — (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.. . . ” 5 U.S.C. § 7703(c) (Supp. IV 1980). Gipson raises four distinct challenges to the MSPB decision. He argues that the bias of the Presiding Official denied him a fair hearing, that the MSPB decision sustaining the charges against him was not supported by substantial evidence, that the penalty of removal was clearly excessive, and that the actions of officials at the Veterans Administration were the product of improper motives. As indicated below, none of these challenges is supported by the record in this case. A. Bias of the Presiding Official The petitioner renews before this court his argument that Presiding Official Bogle was biased and that he was therefore deprived of his right to a fair hearing. The MSPB did not err in rejecting this argument. First, the contention that Presiding Official Bogle should have been disqualified from conducting the evidentiary hearing and deciding Gipson’s appeal because the MSPB had vacated her previous ruling against Gipson is plainly without basis. Agency officials are not disqualified from conducting a second proceeding involving a party merely because they have ruled against that party previously. NLRB v. Donnelly Garment Co., 330 U.S. 219, 236-37, 67 S.Ct. 756, 765, 91 L.Ed. 854 (1947). Second, petitioner’s contention that the Presiding Official was somehow biased in her conduct of the hearing is wholly unsupported. Our review of the hearing transcript reveals that Presiding Official Bogle showed remarkable restraint in the face of rude and arrogant behavior by petitioner’s counsel, Mr. Alexander. The record is replete with insolent outbursts, contemptuous remarks and hubristic responses addressed to both witnesses and the Presiding Official by attorney Alexander. This conduct of counsel far exceeded the bounds of legitimate advocacy and was generally well short of the decorum expected of a member of the bar. In this context, counsel’s claim of bias on behalf of Gipson is patently specious. B. The Charges Against Gipson 1. Unauthorized Issuance of Keys Although petitioner frames his attack on the MSPB decision sustaining the charges against him as a challenge to the substantiality of the evidence, he nevertheless concedes the essential facts of the first and fourth charges. He admits that he gave keys to RMS to Lorenzo Leak, Joseph Lloyd and Clyde Burnett so that they might use the RMS swimming pool after hours. Petitioner claims, however, that he had been delegated carte blanche authority to issue keys to RMS and that no hospital regulations prohibited him from doing so. In support of the former claim, Gipson cites a May 20, 1976 memorandum written by Dr. Kamenetz, the Chief of RMS. The memorandum states: “The responsibility for controlling keys and the authority to originate all key requests is hereby delegated to B.R. Gipson, Administrative Assistant, RMS.” A.R. 12. The MSPB correctly rejected these arguments. The MSPB could properly interpret the May 20, 1976 memorandum as giving Gipson less than unbridled discretion over the issuance of keys to RMS. Notably, the memorandum explicitly granted Gipson the “responsibility for controlling keys” as well as the authority to issue them. In addition, the record contains substantial evidence of security problems in and around RMS and indicates that RMS was re-keyed several times during Gipson’s tenure at the hospital because persons outside RMS had obtained keys to the Service. A.R. 13; Tr. II 33. In these circumstances, it was plainly not irrational for the MSPB to conclude, as the Veterans Administration had charged, that Gipson’s issuance of keys to persons outside the Service for their unsupervised, personal use of the RMS pool was an imprudent exercise of Gipson’s responsibility and discretion. Gipson could therefore be subject to discipline, even though his actions may have violated no specific hospital regulation. 2. Unauthorized Use of the RMS Pool Gipson also concedes the essential facts of the second and third charges. He admits that he gave permission to Leak and Lloyd to use the RMS swimming pool for therapeutic purposes, that Leak and Lloyd had not been referred to RMS by a physician, and that their use of the pool was not supervised by a therapist. Gipson gave the employees permission to use the swimming pool even though he was aware that one physician on the hospital staff had refused to approve their use of the pool. Tr. II 73 (testimony of Gipson). In addition, Gipson gave these employees permission to use the pool only a few months after he had been directed by the Office of the Chief of Staff to cease any therapeutic duties, for which he was unlicensed. Tr. II 78 (testimony of Gipson). In defense of his actions, Gipson argued before the MSPB that no hospital regulations prohibited the therapeutic use of the pool by Lloyd and Leak, that he was motivated by humanitarian purposes, and that other employees made use of the pool for recreational purposes. Based on the record before it, the MSPB correctly rejected Gipson’s arguments and sustained the charges of the Veterans Administration. First, while there was no specific hospital regulation concerning use of the RMS pool for therapeutic purposes, it is clear that hospital regulations did require a physician’s referral for therapy in the RMS in general. A.R. 132. Furthermore, other hospital rules required that the consultation sheets, by which referrals to RMS were made, could be signed only by physicians. A.R. 116, 138. Second, humanitarian motives provided no excuse for permitting unsupervised therapy without a physician’s approval. Finally, the MSPB could properly reject the occasional, unapproved recreational use of the pool as a viable justification for Gipson’s actions. 3. Falsification of Medical Records The facts are somewhat less clear with regard to the fifth charge against petitioner. Gipson testified that he took consultation sheets for Leak and Lloyd to Nurse Durham in December 1978 and that Nurse Durham signed Dr. Kenmore’s name to the forms. Because Leak and Lloyd would be using the RMS pool after hours, Gipson testified that he saw no reason to route the forms through the normal RMS office procedures. These original consultation sheets for Leak and Lloyd allegedly were subsequently lost in Gipson’s office. According to Gipson, after he was confronted, on January 31,1979, by Dr. Kamenetz and Assistant Director Corsaro about Leak’s and Lloyd’s use of the pool, he took new, backdated consultation sheets to Nurse Durham. He allegedly explained to her that the forms were backdated, and she signed Dr. Kenmore’s name to them. Gipson then presented these replacement forms as proof of a physician’s approval for Leak’s and Lloyd’s use of the RMS pool. Tr. II 28-30, 70-74. In contrast, Assistant Medical Center Director Corsaro testified that, on the morning of January 31, 1979, Gipson claimed to have a physician’s approval for Lloyd’s and Leak’s use of the RMS pool. After Gipson produced the consultation sheets later in the day, Corsaro interviewed Nurse Durham, who admitted signing the forms that day. The dates on both forms, however, were from December 1978. Tr. I 227-30. In addition, Corsaro’s unverified notes of his interview with Nurse Durham indicate that the nurse did not realize that the consultation sheets were backdated, and “she claimed she probably would not have signed the two consult sheets” had she realized that they were backdated. A.R. 43. These versions of the events conflict in two significant respects. First, Gipson testified that he had obtained consultation sheets for Lloyd and Leak in December and that the forms signed by Nurse Durham on January 31 were only replacements for the misplaced originals. Corsaro’s testimony and notes make no mention of original consultation sheets or of Nurse Durham signing them in December. Second, Gipson testified that he informed Nurse Durham that the consultation sheets he presented to her in January were backdated. Corsaro’s notes of his interview with Nurse Durham indicate that she denied knowledge of the dates on the forms. This court, were it required to do so, would face substantial difficulties in attempting to resolve these disparate stories. Much of Corsaro’s hearsay testimony is in direct conflict with Gipson’s sworn testimony. While admissible in the administrative proceeding, Johnson v. United States, 628 F.2d 187, 190 (D.C.Cir.1980), this hearsay might not constitute “substantial evidence te overcome the sworn testimony of a claimant,” McKee v. United States, 500 F.2d 525, 528 (Ct.Cl.1974). Additionally, the Presiding Official made no specific credibility findings regarding this testimony that would allow either the MSPB or this court to resolve the differences in the stories. We need not pause long over these problems, however, because the charge of falsifying medical records was properly sustained on the basis of Gipson’s own version of the relevant events. Under Gipson’s version of the events, he asserted to Dr. Kamenetz and Assistant Director Corsaro that he had a physician’s approval for the therapeutic use of the RMS pool by employees Leak and Lloyd. When he was unable to locate these forms, he produced new, backdated consultation sheets, had Nurse Durham sign Dr. Kenmore’s name to them, and then presented them as the original consultation sheets. He did not explain to his superiors that these were replacements or that Nurse Durham had signed them. In fact, it appears from the record before us that Gipson never claimed to have had original consultation sheets for Lloyd and Leak until he testified to that effect in June 1980. The MSPB could properly find that the backdating of replacement medical records and the attempt to pass off these replacements as original documents constituted falsification of medical records. Cf. 18 U.S.C. §§ 2071(b), 2073 (1976) (employee falsification of government records). The consultation sheets that Gipson produced were knowingly false, with respect to both the date and the physician’s signature, and Gipson used them in a willful attempt to deceive Dr. Kamenetz and Assistant Director Corsaro in order to protect himself. This demonstrated a disturbing lack of concern for medical records and a surprising lack of candor from a high-level hospital administrator. C. Appropriateness of Gipson’s Removal Gipson further argues that, even if the charges against him are sustained, the penalty of removal was unreasonable and inappropriate. A reviewing court’s function in considering the appropriate sanction for employee misconduct, however, is limited. [Courts] will defer to the judgment of the agency as to the appropriate penalty for employee misconduct, unless its severity appears totally unwarranted in the light of such factors as the range of permissible punishment specified by statute or regulation, the disciplined party’s job level and nature, his record of past performance, the connection between his job and the improper conduct charges, and the strength of the proof that the conduct occurred. Brewer v. United States Postal Service, 647 F.2d 1093, 1098 (Ct.Cl.1981), cert. denied, - U.S. -, 102 S.Ct. 1005, 71 L.Ed.2d 296 (1982). We will not substitute our view of the appropriate sanction or displace the agency’s judgment unless the sanction imposed is so clearly excessive as to constitute an abuse of the agency’s discretion. See Gueory v. Hampton, 510 F.2d 1222, 1225 (D.C.Cir.1974); Meehan v. Macy, 392 F.2d 822, 830 (D.C.Cir.1968), aff’d on rehearing, 425 F.2d 472 (D.C.Cir.1969) (en banc). We note first that Gipson’s removal was within the range of penalties specified in the relevant agency regulations. See Veterans Administration Personnel Policy Manual, MP-5, Part I, Ch. 752, App. C (Aug. 2, 1971), reprinted in A.R. 109-13. The “Table of Examples of Offenses and Penalties” describes the appropriate penalties for Gipson’s offenses as ranging from reprimand to removal. In addition, the Manual notes that “[w]hen an employee has committed a combination or series of offenses, a greater penalty than is listed for a single offense is appropriate.” A.R. 109. Nor can we say that Gipson’s removal was so clearly excessive as to constitute an abuse of discretion by the Veterans Administration. Gipson held an administrative position of considerable importance and responsibility. Among his duties were the promulgation and implementation of rules and regulations governing RMS. The Veterans Administration had a right to expect that the individual holding this position would abide by the hospital regulations, especially those for which he was primarily responsible. Cf. Brewer v. United States Postal Service, 647 F.2d 1093, 1098 (Ct.Cl.1981) (Postal Service had right to expect a higher standard of conduct from Superintendent of Postal Operations), cert. denied, - U.S. -, 102 S.Ct. 1005, 71 L.Ed.2d 296 (1982). In addition, the falsification of government records is a serious offense in any context. See, e.g., id. (false entries on employee time cards); Rotolo v. MSPB, 636 F.2d 6 (1st Cir. 1980) (understatement of taxable income by IRS clerical employee); Rodriguez v. Seamans, 463 F.2d 837 (D.C.Cir.) (false answers to allegedly unconstitutional questions on employment forms), cert. dismissed, 409 U.S. 1094, 93 S.Ct. 704, 34 L.Ed.2d 678 (1972). The knowing falsification of medical records in a hospital is certainly no less serious. The Veterans Administration could reasonably be concerned about the possible effect of falsified medical forms on patient care. The agency could also conclude that Gipson’s falsification would have “a significant effect on his reputation for honesty and integrity and thereby a significant effect upon the efficiency of the” Service. Yacovone v. Bolger, 645 F.2d 1028, 1032 (D.C.Cir.), cert. denied, 454 U.S. 844, 102 S.Ct. 159, 70 L.Ed.2d 130 (1981); see 5 U.S.C. § 7513(a) (Supp. IV 1980). We therefore decline to set aside the judgment of the Veterans Administration, which the MSPB approved, that Gipson should be removed from his position based on the charges against him. D.' Retaliatory Motives for the Agency Action Finally, Gipson claims that the action of the Veterans Administration was improperly motivated. He asserts that the charges and his subsequent removal were in retaliation for his efforts to assist Black hospital employees receive promotions and pay increases and for his disclosure of information and records to an Inspector General who was investigating property losses at the hospital. If either of these claims of prohibited personnel practices, 5 U.S.C. § 2302(b)(1), (8) (Supp. IV 1980), were proven, the MSPB could not lawfully sustain Gipson’s removal, id. § 7701(c)(2)(B). The Presiding Official “assign[ed] little credibility” to Gipson’s assertion of a retaliatory motivation for his removal. She found his demeanor while testifying on this subject unconvincing, and Gipson presented no independent evidence in support of his allegations. The Presiding Official also noted that Gipson failed to establish a causal connection between his efforts on behalf of Black employees or his cooperation with the Inspector General and his removal. Gipson v. Veterans Administration, Docket No. DC075209249, slip op. at 2-3, 4 (M.S.P.B. Sept. 10, 1980); A.R. 236-37, 238. We therefore find that the Presiding Official’s decision, which was subsequently affirmed by the MSPB, was fully justified by the record. III. CONCLUSION For the foregoing reasons, we decline to set aside the decision of the Merit Systems Protection Board. We conclude that the Presiding Official was not biased against Gipson, that the decision of the MSPB sustaining the charges of the Veterans Administration was supported by substantial evidence, that the penalty of removal was not inappropriate, and that the MSPB properly rejected Gipson’s claim that the charges against him were in retaliation for protected activities. We therefore deny the petition for review and affirm the decision of the MSPB. So ordered. . “A.R.” refers to the volume of documents in the certified administrative record compiled during the petitioner’s appeal to the Merit Systems Protection Board. . “Tr. I” and “Tr. II” refer to the transcripts of the evidentiary hearing conducted by the MSPB Presiding Official on June 18, 1980 and June 19, 1980, respectively. . These Medical Center regulations were consistent with the requirements of the Joint Commission on Accreditation of Hospitals (“JCAH”). The JCAH required, inter alia, that rehabilitation services be prescribed by a physician; that a current, written plan be maintained for each patient receiving rehabilitative services; and that physical therapy be administered by a qualified physical therapist. Joint Committee on Accreditation of Hospitals, Accreditation Manual for Hospitals 155, 156, 158 (1979), reprinted in A.R. 125, 126, 128. The Accreditation Manual for Hospitals also limited the therapeutic responsibilities of administrative personnel: When administrative direction is not the responsibility of a physician, it shall be provided by another qualified individual who is responsible to the chief executive officer [of the rehabilitative program/service]. The assignment of a nonphysician as administrative head of the program/service does not imply that nonphysicians have been given authority to perform medical procedures without medical supervision, to assume professional responsibilities of physicians, or to practice of [sic] medicine. Id. at 154, A.R. 124. . The RMS swimming pool was termed “therapeutic” because it was heated to approximately ninety degrees Fahrenheit. As far as the record reveals, this is the principal difference between it and an ordinary swimming pool. . Petitioner did not claim to have consultation sheets for Clyde Burnett or Leonard Leak. . Dr. Kenmore was a staff physician at the Medical Center. . Beyond these facts, some dispute exists about the consultation sheets. Gipson claims that they were replacements for forms on which Nurse Durham previously had signed Dr. Kenmore’s name in December 1978. Tr. II 28-30. Assistant Director Corsaro’s notes of his interview with Nurse Durham, on the other hand, make no mention of her signing consultation sheets for Leak and Lloyd in December: according to the interview notes, Nurse Durham only admitted signing Dr. Kenmore’s name for Gipson on January 31, 1979. A.R. 43. Corsa-ro’s notes also indicate that Dr. Kenmore “disclaimed any knowledge” of signing consultation sheets for Lloyd or Leak. A.R. 46. Neither Dr. Kenmore nor Nurse Durham testified in the MSPB proceedings. See Part II-B-3 infra. . The MSPB also ruled that the Presiding Official had failed to address the allegation of discrimination that Gipson raised in his appeal. . Gipson was able to point to a few occasions on which the RMS pool was used for recreational purposes by some hospital employees. With the exception of the use of the pool by the hospital’s police force for physical fitness purposes, these recreational uses apparently lacked official approval. Some evidence was introduced that this unauthorized use was quashed after its discovery by hospital officials. In any event, the MSPB could properly conclude that this unapproved recreational use did not constitute a practice which, even if firmly established, would justify Gipson giving Lloyd and Leak permission to use the RMS pool for unsupervised, unauthorized therapy. . Corsaro’s notes of his January 31 interview of Nurse Durham are entitled to even less weight than that afforded to hearsay testimony. The notes not only represent what was asserted by another person, but are also unverified by the author. While the notes were admissible in the MSPB proceedings, they were entitled to little probative value to the extent that they were in conflict with direct testimony presented before the Presiding Official. See generally Hoska v. United States Dep't of Army, 677 F.2d 131, 138-39 (D.C.Cir.1982). . Indeed, this is what we understand the MSPB to have done in deciding the case against petitioner. In his petition to the MSPB, Gipson argued that “nothing on the [consúltation] sheets was 'false’ except that they were back dated” and that “this was insufficient evidence to substantiate this charge [of falsification of medical records].” A.R. 244. The MSPB was therefore plainly apprised of Gip-son’s version of the events when it stated that “appellant admits the factual basis underlying the agency charges.” Gipson v. Veterans Admin., Docket No. DC075209249, slip op. at 4 (M.S.P.B. July 17, 1981); A.R. 262. . In fact, Gipson never received approval from Dr. Kenmore. According to Gipson’s own testimony, Nurse Durham signed the consultation sheets for Leak and Lloyd in December, and Gipson never discussed their referral with Dr. Kenmore. Tr. II 29. . The Veterans Administration asserted that two offenses in this Table encompassed Gipson’s conduct or were analogous to it: “26. Intentional falsification, misstatement, or concealment of material fact in connection with employment or any investigation, inquiry or other proper proceeding; or willfully forgoing [sic] or falsifying official Government records or documents;” and “27. Loss of, damage to, or unauthorized use of Government property, . .. b. Through maliciousness or intent.” A.R. III. The recommended penalties for a first commission of either of these offenses range from a minimum of a reprimand to a maximum of removal. Id. . In each of these cases, the reviewing court upheld the employee’s dismissal. . Gipson argues that the MSPB failed to consider all of the mitigating factors enumerated in Douglas v. Veterans Admin., Docket No. AT075299006 (M.S.P.B. Apr. 10, 1981). Although the MSPB did not list each of the potentially mitigating factors from Douglas that was arguably relevant to Gipson’s penalty, we do not believe that the MSPB thereby erred. The MSPB cited its ruling in Douglas in this case and indicated that it had considered the potentially mitigating factors in accordance with that opinion. Gipson v. Veterans Admin., Docket No. DC075209249, slip op. at 4-5 (M.S.P.B. July 17, 1981); A.R. 262-63. Thus, the MSPB adequately disclosed its reasoning process and did not “cross[] the line from the tolerably terse to the intolerably mute.” WAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C.Cir.1969). Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

sc_decisiontype

A

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. HICKS, DISTRICT ATTORNEY FOR COUNTY OF ORANGE, CALIFORNIA, acting on behalf of FEIOCK v. FEIOCK No. 86-787. Argued December 1, 1987 Decided April 27, 1988 White, J., delivered the opinion of the Court, in which Brennan, Marshall, Blackmun, and Stevens, JJ., joined. O’Connor, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia, J., joined, post, p. 641. Kennedy, J., took no part in the consideration or decision of the case. Michael R. Capizzi argued the cause for petitioner. With him on the briefs was Cecil Hicks, pro se. Richard L. Schwartzberg argued the cause and filed a brief for respondent. Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Lauber, Michael K. Kellogg, and Michael Jay Singer; for the State of California by John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, and Mark Alan Hart and Andrew D. Amerson, Supervising Deputy Attorneys General; and for the Women’s Legal Defense Fund et al. by Carolyn F. Corwin and Susan Deller Boss. Justice White delivered the opinion of the Court. A parent failed to comply with a valid court order to make child support payments, and defended against subsequent contempt charges by claiming that he was financially unable to make the required payments. The trial court ruled that under state law he is presumed to remain able to comply with the térms of the prior order, and judged him to be in contempt. The state appellate court held that the legislative presumptions applied by the trial court violate the Due Process Clause of the Fourteenth Amendment, which forbids a court to employ certain presumptions that affect the determination of guilt or innocence in criminal proceedings. We must decide whether the Due Process Clause was properly applied in this case. I On January 19, 1976, a California state court entered an order requiring respondent, Phillip Feiock, to begin making monthly payments to his ex-wife for the support of their three children. Over the next six years, respondent only sporadically complied with the order, and by December 1982 he had discontinued paying child support altogether. His ex-wife sought to enforce the support orders. On June 22, 1984, a hearing was held in California state court on her petition for ongoing support payments and for payment of the arrearage due her. The court examined respondent’s financial situation and ordered him to begin paying $150 per month commencing on July 1,1984. The court reserved jurisdiction over the matter for the purpose of determining the arrearages and reviewing respondent’s financial condition. Respondent apparently made two monthly payments but paid nothing for the next nine months. He was then served with an order to show cause why he should not be held in contempt on nine counts of failure to make the monthly payments ordered by the court. At a hearing on August 9, 1985, petitioner made out a prima facie case of contempt against respondent by establishing the existence of a valid court order, respondent’s knowledge of the order, and respondent’s failure to comply with the order. Respondent defended by arguing that he was unable to pay support during the months in question. This argument was partially successful, but respondent was adjudged to be in contempt on five of the nine counts. He was sentenced to 5 days in jail on each count, to be served consecutively, for a total of 25 days. This sentence was suspended, however, and respondent was placed on probation for three years. As one of the conditions of his probation, he was ordered once again to make support payments of $150 per month. As another condition of his probation, he was ordered, starting the following month, to begin repaying $50 per month on his accumulated arrearage, which was determined to total $1,650. At the hearing, respondent had objected to the application of Cal. Civ. Proc. Code Ann. § 1209.5 (West 1982) against him, claiming that it was unconstitutional under the Due Process Clause of the Fourteenth Amendment because it shifts to the defendant the burden of proving inability to comply with the order, which is an element of the crime of contempt. This objection was rejected, and he renewed it on appeal. The intermediate state appellate court agreed with respondent and annulled the contempt order, ruling that the state statute purports to impose “a mandatory presumption compelling a conclusion of guilt without independent proof of an ability to pay,” and is therefore unconstitutional because “the mandatory nature of the presumption lessens the prosecution’s burden of proof.” 180 Cal. App. 3d 649, 654, 225 Cal. Rptr. 748, 751 (1986). In light of its holding that the statute as previously interpreted was unconstitutional, the court went on to adopt a different interpretation of that statute to govern future proceedings: “For future guidance, however, we determine the statute in question should be construed as authorizing a permissive inference, but not a mandatory presumption.” Id., at 655, 225 Cal. Rptr., at 751. The court explicitly considered this reinterpretation of the statute to be an exercise of its “obligation to interpret the statute to preserve its constitutionality whenever possible.” Ibid. The California Supreme Court denied review, but we granted certiorari. 480 U. S. 915 (1987). II Three issues must be decided to resolve this case. First is whether the ability to comply with a court order constitutes an element of the offense of contempt or, instead, inability to comply is an affirmative defense to that charge. Second is whether § 1209.5 requires the alleged contemnor to shoulder the burden of persuasion or merely the burden of production in attempting to establish his inability to comply with the order. Third is whether this contempt proceeding was a criminal proceeding or a civil proceeding, i. e., whether the relief imposed upon respondent was criminal or civil in nature. Petitioner argues that the state appellate court erred in its determinations on the first two points of state law. The court ruled that whether the individual is able to comply with a court order is an element of the offense of contempt rather than an affirmative defense to the charge, and that § 1209.5 shifts to the alleged contemnor the burden of persuasion rather than simply the burden of production in showing inability to comply. We are not at liberty to depart from the state appellate court’s resolution of these issues of state law. Although petitioner marshals a number of sources in support of the contention that the state appellate court misapplied state law on these two points, the California Supreme Court denied review of this case, and we are not free in this situation to overturn the state court’s conclusions of state law. The third issue, however, is a different matter: the argument is not merely that the state court misapplied state law, but that the characterization of this proceeding and the relief given as civil or criminal in nature, for purposes of determining the proper applicability of federal constitutional protections, raises a question of federal law rather than state law. This proposition is correct as stated. In re Winship, 397 U. S. 358, 365-366 (1970); In re Gault, 387 U. S. 1, 49-50 (1967); Shillitani v. United States, 384 U. S. 364, 368-369 (1966). The fact that this proceeding and the resultant relief were judged to be criminal in nature as a matter of state law is thus not determinative of this issue, and the state appellate court erred insofar as it sustained respondent’s challenge to the statute under the Due Process Clause simply because it concluded that this contempt proceeding is “quasi-criminal” as a matter of California law. 180 Cal. App. 3d, at 653, 225 Cal. Rptr., at 750. III A The question of how a court determines whether to classify the relief imposed in a given proceeding as civil or criminal in nature, for the purposes of applying the Due Process Clause and other provisions of the Constitution, is one of long standing, and its principles have been settled at least in their broad outlines for many decades. When a State’s proceedings are involved, state law provides strong guidance about whether or not the State is exercising its authority “in a nonpunitive, noncriminal manner,” and one who challenges the State’s classification of the relief imposed as “civil” or “criminal” may be required to show “the clearest proof” that it is not correct as a matter of federal law. Allen v. Illinois, 478 U. S. 364, 368-369 (1986). Nonetheless, if such a challenge is substantiated, then the labels affixed either to the proceeding or to the relief imposed under state law are not controlling and will not be allowed to defeat the applicable protections of federal constitutional law. Ibid. This is particularly so in the codified laws of contempt, where the “civil” and “criminal” labels of the law have become increasingly blurred. Instead, the critical features are the substance of the proceeding and the character of the relief that the proceeding will afford. “If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court.” Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 441 (1911). The character of the relief imposed is thus ascertainable by applying a few straightforward rules. If the relief provided is a sentence of imprisonment, it is remedial if “the defendant stands committed unless and until he performs the affirmative act required by the court’s order,” and is punitive if “the sentence is limited to imprisonment for a definite period.” Id., at 442. If the relief provided is a fine, it is remedial when it is paid to the complainant, and punitive when it is paid to the court, though a fine that would be payable to the court is also remedial when the defendant can avoid paying the fine simply by performing the affirmative act required by the court’s order. These distinctions lead up to the fundamental proposition that criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings, including the requirement that the offense be proved beyond a reasonable doubt. See, e. g., Gompers, supra, at 444; Michaelson v. United States ex rel. Chicago, St. P., M. & O. R. Co., 266 U. S. 42, 66 (1924). The Court has consistently applied these principles. In Gompers, decided early in this century, three men were found guilty of contempt and were sentenced to serve 6, 9, and 12 months respectively. . The Court found this relief to be criminal in nature because the sentence was determinate and unconditional. “The distinction between refusing to do an act commanded, —remedied by imprisonment until the party performs the required act; and doing an act forbidden, — punished by imprisonment for a definite term; is sound in principle, and generally, if not universally, affords a test by which to determine the character of the punishment.” Gompers, 221 U. S., at 443. In the former instance, the conditional nature of the punishment renders the relief civil in nature because the contemnor “can end the sentence and discharge himself at any moment by doing what he had previously refused to do.” Id., at 442. In the latter instance, the unconditional nature of the punishment renders the relief' criminal in nature because the relief “cannot undo or remedy what has been done nor afford any compensation” and the contemnor “cannot shorten the term by promising not to repeat the offense.” Ibid. The distinction between relief that is civil in nature and relief that is criminal in nature has been repeated and followed in many cases. An unconditional penalty is criminal in nature because it is “solely and exclusively punitive in character.” Penfield Co. v. SEC, 330 U. S. 585, 593 (1947). A conditional penalty, by contrast, is civil because it is specifically designed to compel the doing of some act. “One who is fined, unless by a day certain he [does the act ordered], has it in his power to avoid any penalty. And those who are imprisoned until they obey the order, ‘carry the keys of their prison in their own pockets.’” Id., at 590, quoting In re Nevitt, 117 F. 448, 461 (CA8 1902). In Penfield, a man was found guilty of contempt for refusing to obey a court order to produce documents. This Court ruled that since the man was not tried in a proceeding that afforded him the applicable constitutional protections, he could be given a conditional term of imprisonment but could not be made to pay “a flat, unconditional fine of $50.00.” Penfield, supra, at 588. See also United States v. Rylander, 460 U. S. 752 (1983); Nye v. United States, 313 U. S. 33 (1941); Fox v. Capital Co., 299 U. S. 105 (1936); Lamb v. Cramer, 285 U. S. 217 (1932); Oriel v. Russell, 278 U. S. 358 (1929); Ex parte Grossman, 267 U. S. 87 (1925); Doyle v. London Guarantee Co., 204 U. S. 599 (1907); In re Christensen Engineering Co., 194 U. S. 458 (1904); Bessette v. W. B. Conkey Co., 194 U. S. 324 (1904). Shillitani v. United States, 384 U. S. 364 (1966), adheres to these same principles. There two men were adjudged guilty of contempt for refusing to obey a court order to testify under a grant of immunity. Both were sentenced to two years of imprisonment, with the proviso that if either answered the questions before his sentence ended, he would be released. The penalties were upheld because of their “conditional nature,” even though the underlying proceeding lacked certain constitutional protections that are essential in criminal proceedings. Id., at 365. Any sentence “must be viewed as remedial,” and hence civil in nature, “if the court conditions release upon the contemnor’s willingness to [comply with the order].” Id., at 370. By the same token, in a civil proceeding the court “may also impose a determinate sentence which includes a purge clause.” Id., at 370, n. 6 (emphasis added). “On the contrary, a criminal contempt proceeding would be characterized by the imposition of an unconditional sentence for punishment or deterrence.” Id., at 370, n. 5. B In repeatedly stating and following the rules set out above, the Court has eschewed any alternative formulation that would make the classification of the relief imposed in a State’s proceedings turn simply on what their underlying purposes are perceived to be. Although the purposes that lie behind particular kinds of relief are germane to understanding their character, this Court has never undertaken to psychoanalyze the subjective intent of a State’s laws and its courts, not only because that effort would be unseemly and improper, but also because it would be misguided. In contempt cases, both civil and criminal relief have aspects that can be seen as either remedial or punitive or both: when a court imposes fines and punishments on a contemnor, it is not only vindicating its legal authority to enter the initial court order, but it also is seeking to give effect to the law’s purpose of modifying the contemnor’s behavior to conform to the terms required in the order. As was noted in Gompers: “It is true that either form of [punishment] has also an incidental effect. For if the case is civil and the punishment is purely remedial, there is also a vindication of the court’s authority. On the other hand, if the proceeding is for criminal contempt and the [punishment] is solely punitive, to vindicate the authority of the law, the complainant may also derive some incidental benefit from the fact that such punishment tends to prevent a repetition of the disobedience. But such indirect consequences will not change [punishment] which is merely coercive and remedial, into that which is solely punitive in character, or vice versa” 221 U. S., at 443. For these reasons, this Court has judged that conclusions about the purposes for which relief is imposed are properly drawn from an examination of the character of the relief itself. There is yet another reason why the overlapping purposes of civil and criminal contempt proceedings have prevented this Court from hinging the classification on this point. If the definition of these proceedings and their resultant relief as civil or criminal is made to depend on the federal courts’ views about their underlying purposes, which indeed often are not clearly articulated in any event, then the States will be unable to ascertain with any degree of assurance how their proceedings will be understood as a matter of federal law. The consequences of any such shift in direction would be both serious and unfortunate. Of primary practical importance to the decision in this case is that the States should be given intelligible guidance about how, as a matter of federal constitutional law, they may lawfully employ presumptions and other procedures in their contempt proceedings. It is of great importance to the States that they be able to understand clearly and in advance the tools that are available to them in ensuring swift and certain compliance with valid court orders — not only orders commanding payment of child support, as in this case, but also orders that command compliance in the more general area of domestic relations law, and in all other areas of the law as well. The States have long been able to plan their own procedures around the traditional distinction between civil and criminal remedies. The abandonment of this clear dividing line in favor of a general assessment of the manifold and complex purposes that lie behind a court’s action would create novel problems where now there are rarely any — novel problems that could infect many different areas of the law. And certainly the fact that a contemnor has his sentence suspended and is placed on probation cannot be decisive in defining the civil or criminal nature of the relief, for many convicted criminals are treated in exactly this manner for the purpose (among others) of influencing their behavior. What is true of the respondent in this case is also true of any such convicted criminal: as long as he meets the conditions of his informal probation, he will never enter the jail. Nonetheless, if the sentence is a determinate one, then the punishment is criminal in nature, and it may not be imposed unless federal constitutional protections are applied in the contempt proceeding. IV The proper classification of the relief imposed in respondent’s contempt proceeding is dispositive of this case. As interpreted by the state court here, §1209.5 requires respondent to carry the burden of persuasion on an element of the offense, by showing his inability to comply with the court’s order to make the required payments. If applied in a criminal proceeding, such a statute would violate the Due Process Clause because it would undercut the State’s burden to prove guilt beyond a reasonable doubt. See, e. g., Mullaney v. Wilbur, 421 U. S. 684, 701-702 (1975). If applied in a civil proceeding, however, this particular statute would be constitutionally valid, Maggio v. Zeitz, 333 U. S. 56, 75-76 (1948); Oriel, 278 U. S., at 364-365, and respondent conceded as much at the argument. Tr. of Oral Arg. 37. The state court found the contempt proceeding to be “quasi-criminal” in nature without discussing the point. 180 Cal. App. 3d, at 653, 225 Cal. Rptr., at 750. There were strong indications that the proceeding was intended to be criminal in nature, such as the notice sent to respondent, which clearly labeled the proceeding as “criminal in nature,” Order to Show Cause and Declaration for Contempt (June 12, 1985), App. 21, and the participation of the District Attorney in the case. Though significant, these facts are not dispositive of the issue before us, for if the trial court had imposed only civil coercive remedies, as surely it was authorized to do, then it would be improper to invalidate that result merely because the Due Process Clause, as applied in criminal proceedings, was not satisfied. It also bears emphasis that the purposes underlying this proceeding were wholly ambiguous. Respondent was charged with violating nine discrete prior court orders, and the proceeding may have been intended primarily to vindicate the court’s authority in the face of his defiance. On the other hand, as often is true when court orders are violated, these charges were part of an ongoing battle to force respondent to conform his conduct to the terms of those orders, and of future orders as well. Applying the traditional rules for classifying the relief imposed in a given proceeding requires the further resolution of one factual question about the nature of the relief in this case. Respondent was charged with nine separate counts of contempt, and was convicted on five of those counts, all of which arose from his failure to comply with orders to make payments in past months. He was sentenced to 5 days in jail on each of the five counts, for a total of 25 days, but his jail sentence was suspended and he was placed on probation for three years. If this were all, then the relief afforded would be criminal in nature. But this is not all. One of the conditions of respondent’s probation was that he begin making payments on his accumulated arrearage, and that he continue making these payments at the rate of $50 per month. At that rate, all of the arrearage would be paid before respondent completed his probation period. Not only did the order therefore contemplate that respondent would be required to purge himself of his past violations, but it expressly states that “[i]f any two payments are missed, whether consecutive or not, the entire balance shall become due and payable.” Order of the California Superior Court for Orange County (Aug. 9, 1985), App. 39. What is unclear is whether the ultimate satisfaction of these accumulated prior payments would have purged the determinate sentence imposed on respondent. Since this aspect of the proceeding will vary as a factual matter from one case to another, depending on the precise disposition entered by the trial court, and since the trial court did not specify this aspect of its disposition in this case, it is not surprising that neither party was able to offer a satisfactory explanation of this point at argument. Tr. of Oral Arg. 42-47. If the relief imposed here is in fact a determinate sentence with a purge clause, then it is civil in nature. Shillitani, 384 U. S., at 370, n. 6; Fox, 299 U. S., at 106, 108; Gompers, 221 U. S., at 442. The state court did not pass on this issue because of its erroneous view that it was enough simply to aver that this proceeding is considered “quasi-criminal” as a matter of state law. And, as noted earlier, the court’s view on this point, coupled with its view of the Federal Constitution, also led it to reinterpret the state statute, thus softening the impact of the presumption, in order to save its constitutionality. Yet the Due Process Clause does not necessarily prohibit the State from employing this presumption as it was construed by the state court, if respondent would purge his contempt judgment by paying off his arrearage. In these circumstances, the proper course for this Court is to vacate the judgment below and remand for further consideration of § 1209.5 free from the compulsion of an erroneous view of federal law. See, e. g., Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U. S. 138, 152 (1984). If on remand it is found that respondent would purge his sentence by paying his arrearage, then this proceeding is civil in nature and there was no need for the state court to reinterpret its statute to avoid conflict with the Due Process Clause. We therefore vacate the judgment below and remand for further proceedings not inconsistent with this opinion. It is so ordered. Justice Kennedy took no part in the consideration or decision of this case. California Civ. Proc. Code Ann. § 1209.5 (West 1982) states that “[w]hen a court of competent jurisdiction makes an order compelling a parent to furnish support ... for his child, proof that . . . the parent was present in court at the time the order was pronounced and proof of noncompliance therewith shall be prima facie evidence of a contempt of court.” Although the court mentioned one state case among the cases it cited in support of this proposition, the court clearly rested on federal constitutional grounds as articulated in this Court’s decisions, 180 Cal. App. 3d, at 652-655, 225 Cal. Rptr., at 749-751, as did the other state case it cited. See People v. Roder, 33 Cal. 3d 491, 658 P. 2d 1302 (1983). “Where an intermediate appellate state court rests its considered judgment upon the rule of law which it announces, that is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise. . . . This is the more so where, as in this case, the highest court has refused to review the lower court’s decision rendered in one phase of the very litigation which is now prosecuted by the same parties before the federal court. . . . Even though it is arguable that the Supreme Court of [the State] will at some later time modify the rule of [this] case, whether that will ever happen remains a matter of conjecture. In the meantime the state law applicable to these parties and in this case has been authoritatively declared by the highest state court in which a decision eoúld be had. . . . We think that the law thus announced and applied is the law of the state applicable in the same case and to the same parties in the federal court and that the federal court is not free to apply a different rule however desirable it may believe it to be, and even though it may think that the state Supreme Court may establish a different rule in some future litigation.” West v. American Telephone & Telegraph Co., 311 U. S. 223, 237-238 (1940). California is a good example of this modern development, for although it defines civil and criminal contempts in separate statutes, compare Cal. Civ. Proc. Code Ann. § 1209 (West Supp. 1988) with Cal. Penal Code Ann. § 166 (West 1970), it has merged the two kinds of proceedings under the same procedural rules. See Cal. Civ. Proc. Code Ann. §§ 1209-1222 (West 1982 and Supp. 1988). We have recognized that certain specific constitutional protections, such as the right to trial by jury, are not applicable to those criminal contempts that can be classified as petty offenses, as is true of other petty crimes as well. Bloom v. Illinois, 391 U. S. 194, 208-210 (1968). This is not true, however, of the proposition that guilt must be proved beyond a reasonable doubt. Id., at 205. In Penfield, the original court order required a person to produce certain documents. He refused to comply. The District Court then found him guilty of contempt and required him to pay a fine to the court, which he promptly paid. (The court had also ordered him to stand committed until he paid this fine.) The Court of Appeals reversed, finding that the District Court had erred in imposing this relief, which was criminal in nature, and ordered the man instead to stand committed to prison until he complied with the original order by producing the documents. This Court affirmed, finding that this relief was civil in nature and was properly imposed, whereas the relief that had been ordered by the District Court was criminal in nature and had not been properly imposed. 330 U. S., at 587-595. The reason that the sanction imposed by the District Court was found to be criminal in nature is because it was determinate: the contemnor could not avoid the sanction by agreeing to comply with the original order to produce the documents. Yet the sanction of confinement imposed by the Court of Appeals was civil in nature because it was conditional, i. e., not determinate: the contemnor would avoid the sanction by agreeing to comply with the original order to produce the documents. In these passages from Shillitani, the Court clearly indicated that when it spoke of a court’s conditioning release upon the contemnor’s willingness to comply, it did not mean simply release from physical confinement, but release from the imposition of any sentence that would otherwise be determinate. The critical feature that determines whether the remedy is civil or criminal in nature is not when or whether the contemnor is physically required to set foot in a jail but-whether the contemnor can avoid the sentence imposed on him, or purge himself of it, by complying with the terms of the original order. It follows that the remedy in this case is not rendered civil in nature merely by suspending respondent’s sentence and placing him on probation (with its attendant disabilities, see n. 11, infra). This does not even suggest, of course, that the State is unable to suspend the sentence imposed on either a criminal contemnor or a civil contemnor in favor of a term of informal probation. That action may be appropriate and even most desirable in a great many cases, especially when the order that has been disobeyed was one to pay a sum of money. This also accords with the repeated emphasis in our decisions that in wielding its contempt powers, a court “must exercise ‘the least possible power adequate to the end proposed.’” Shillitani v. United States, 384 U. S. 364, 371 (1966), quoting Anderson v. Dunn, 6 Wheat. 204, 231 (1821). Our precedents are clear, however, that punishment may not be imposed in a civil contempt proceeding when it is clearly established that the alleged contemnor is unable to comply with the terms of the order. United States v. Rylander, 460 U. S. 752, 757 (1983); Shillitani, supra, at 371; Oriel, 278 U. S., at 366. This can also be seen by considering the notice given to the alleged contemnor. This Court has stated that one who is charged with a crime is “entitled to be informed of the nature of the charge against him but to know that it is a charge and not a suit.” Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 446 (1911). Yet if the relief ultimately given in such a proceeding is wholly civil in nature, then this requirement would not be applicable. It is also true, of course, that if both civil and criminal relief are imposed in the same proceeding, then the “‘criminal feature of the order is dominant and fixes its character for purposes of review.’ ” Nye v. United States, 313 U. S. 33, 42-43 (1941), quoting Union Tool Co. v. Wilson, 259 U. S. 107, 110 (1922). That a determinate sentence is suspended and the contemnor put on probation does not make the remedy civil in nature, for a suspended sentence, without more, remains a determinate sentence, and a fixed term of probation is itself a punishment that is criminal in nature. A suspended sentence with a term of probation is not equivalent to a conditional sentence that would allow the contemnor to avoid or purge these sanctions. A determinate term of probation puts the contemnor under numerous disabilities that he cannot escape by complying with the dictates of the prior orders, such as: any conditions of probation that the court judges to be reasonable and necessary may be imposed; the term of probation may be revoked and the original sentence (including incarceration) may be reimposed at any time for a variety of reasons without all the safeguards that are ordinarily afforded in criminal proceedings; and the contemnor’s probationary status could affect other proceedings against him that may arise in the future (for example, this fact might influence the sentencing determination made in a criminal prosecution for some wholly independent offense). It is also perhaps of some significance, though not binding upon us, that' the parties reinforce the ambiguity on this point by entitling this contempt order, in the Joint Appendix, as “Order of the Superior Court of the State of California, County of Orange, to Purge Arrearage and Judgment of Contempt.” App. i. Even if this relief is judged on remand to be criminal in nature because it does not allow the contemnor to purge the judgment by satisfying the terms of the prior orders, this result does not impose any real handicap on the States in enforcing the terms of their orders, for it will be clear to the States that the presumption established by § 1209.5 can be imposed, consistent with the Due Process Clause, in any proceeding where the relief afforded is civil in nature as defined by this Court’s precedents. In addition, the state courts remain free to decide for themselves the state-law issues we have taken as having been resolved in this case by the court below, and to judge the lawfulness of statutes that impose similar presumptions under the provisions of their own state constitutions. 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:

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What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable". OREGON NATURAL RESOURCES COUNCIL, Oregon Guides and Packers Assn., Inc., Rogue Flyfishers, Inc., and Rogue River Guides Assn., Plaintiffs-Appellants, v. John O. MARSH, Jr., in his Official Capacity as Secretary of the United States Department of the Army, and Elvin R. Heiberg, III, in his Official Capacity as Chief of Engineers of the United States Department of the Army, DefendantsAppellees. No. 86-3670. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 8, 1986. Decided June 23, 1987. Neil S. Kagan, Portland, Or., for plaintiffs-appellants. Dorothy R. Burakreis, Grants Pass, Or., Laura Frossard, Washington, D.C., for defendants-appellees. James H. Boldt, Grants Pass, Or., for amicus curiae Josephine County. Before WALLACE, FERGUSON and NORRIS, Circuit Judges. FERGUSON, Circuit Judge: Plaintiffs, the Oregon Natural Resources Council, Oregon Guides and Packers Association, Rogue Flyfishers, Inc., and Rogue River Guides Association (“Resources Council”), appeal the denial of an injunction to stop construction by the United States Army Corps of Engineers (“Corps”) of a dam on Elk Creek in Southern Oregon, 628 F.Supp. 1557. The Resources Council contends that the Corps’ final supplemental environmental impact statement (“EIS”) for the dam project fails to comply with the National Environmental Policy Act of 1969, Pub.L. No. 91-190, 83 Stat. 853 (1970) (codified at 42 U.S.C. § 4332) (“NEPA”). We affirm in part and reverse in part. I. Elk Creek is a tributary of Oregon’s Rogue River. The Rogue was one of eight rivers in the nation designated as “wild and scenic” in the Wild and Scenic Rivers Act of 1968, Pub.L. No. 90-542, 82 Stat. 906 (1968) (codified at 16 U.S.C. § 1271). The Rogue is known nationally for its white-water rafting and fly-fishing. In 1962, Congress authorized construction of three dams to control flooding of the Rogue River Basin: Elk Creek Dam, Applegate River Dam, and Lost Creek Dam. The latter two dams are completed. The Elk Creek project consists of a proposed concrete dam 249 feet high and 2,580 feet long. The reservoir behind the proposed dam would collect runoff from most of Elk Creek’s watershed and cover 1,290 acres of land. In 1971, the Corps filed a final EIS for the Elk Creek Project. In 1975, after studying the projected effects of the dam on turbidity in the Rogue River, the Corps filed a draft supplemental EIS. Construction of the project was suspended until completion of further water quality studies. In 1980, the Corps filed a revised draft supplemental EIS, which included turbidity and temperature projections based on the Corps’ observations of turbidity caused by the Lost Creek Dam during the year 1977 and the Corps’ computer simulation models. Several state and federal agencies criticized the Corps’ turbidity analysis on the ground that rain runoff levels during 1977 were the lowest on record in the area. The Corps placed these critical comments, and its responses to them, in a separate section, and released the aggregate as its final supplemental EIS. The Resources Council then brought this action in federal district court for a temporary restraining order, a preliminary injunction, and a permanent injunction to stop construction of Elk Creek Dam. The Resources Council argued that the final supplemental EIS failed in several ways to comport with the requirements of the NEPA and regulatory guidelines of the Council on Environmental Quality. The Resources Council also contended that the Corps was required to prepare a new supplemental EIS because of new information. The district court found the final supplemental EIS adequate and denied the requested relief. The Corps has since awarded contracts for relocation of roads and utilities and for construction of the dam. II. The Resources Council contends that the final supplemental EIS violates the NEPA procedural standards and the Council on Environmental Quality guidelines in six respects. The district court held that the environmental impact statement comported with these standards. We review de novo the district court’s determination of whether the EIS is reasonably thorough in discussing the significant aspects of the probable environmental impact of the proposed agency action. Enos v. Marsh, 769 F.2d 1363, 1372 (9th Cir.1985) (applying a “rule of reason”). Purely factual findings are, of course, reviewed for clear error. Id. We thus endeavor to determine whether the final supplemental EIS satisfies the two purposes of an EIS: (1) to provide decisionmakers with enough information to aid in the substantive decision whether to proceed with the project in light of its environmental consequence; and (2) to provide the public with information and an opportunity to participate in gathering information. Citizens for a Better Henderson v. Hodel, 768 F.2d 1051, 1056 (9th Cir.1985); California v. Block, 690 F.2d 753, 761 (9th Cir.1982) (the “form, content and preparation [of the EIS] foster both informed decisionmaking and informed public participation”); 40 C.F.R. § 1502.1 (purpose of EIS is to “provide full and fair discussion of significant environmental impacts and ... [to] inform the decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts First, the Resources Council contends that the final supplemental EIS is deficient because it fails to discuss adequately ways to mitigate adverse environmental impacts of the project. Specifically, the Resources Council claims that the mitigation plan for wildlife contains neither a detailed analysis of mitigation measures nor an explanation of how effective those measures would be. We agree, and reverse for further proceedings on this issue. An EIS must include a discussion of measures to mitigate adverse environmental impacts of the proposed action. 40 C.F.R. § 1502.16(h). As long as significant measures are undertaken to mitigate the project’s effects, the measures need not compensate completely for adverse environmental impacts. Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 987 (9th Cir.1985). The mere listing of mitigation measures, however, is insufficient to satisfy the NEPA requirements. Northwest Indian Cemetery Protective Ass’n v. Peterson, 795 F.2d 688, 697 (9th Cir.1986). Moreover, the EIS must analyze the mitigation measures in detail and explain the effectiveness of the measures. See id. Here, the mitigation plan for wildlife is not yet fully developed. The mitigation plan, published in 1980, states: “Measures to compensate project-caused loss of wildlife habitat associated with reservoir construction will be developed, based upon the results of the wildlife compensation plan currently underway at Applegate Project and recommendations of Oregon Department of Fish and Wildlife and the U.S. Fish and Wildlife Service.” No mitigation plan had been finalized as of January 1986. We fail to see how mitigation measures can be properly analyzed and their effectiveness explained when they have yet to be developed. Moreover, the mitigation measures set forth in the final supplemental EIS are inadequate to satisfy the Council on Environmental Quality guidelines. The mitigation plan for wildlife, in its entirety, states: The compensation [for project-caused loss of wildlife habitat] would be accomplished by managing selected lands to increase the quality of habitat and therefore its carrying capacity for wildlife. The management would consist of a number of habitat manipulative techniques in conjunction with other land uses, landscaping at the project, and development of recreation sites. Specific habitat development measures would be oriented toward development of palatable browse plants, creation of “edge,” maximizing foliage height diversity in certain areas, and creation of snags in the reservoir. This compensation plan will be developed in coordination with Federal and state resource agencies. This plan lists general measures to mitigate the impact of the project on wildlife. The plan refers to “habitat manipulative techniques,” but fails to specify which techniques will be used. It also fails to identify any of the “specific habitat development measures” that would be utilized to develop palatable browse plants, create “edge,” maximize foliage height diversity, or create snags in the reservoir. More important, there is no analysis of the mitigation measures listed, or any estimation of how effective the measures will be. The importance of the mitigation plan cannot be overestimated. It is a determinative factor in evaluating the adequacy of an environmental impact statement. Without a complete mitigation plan, the decisionmaker is unable to make an informed judgment as to the environmental impact of the project — one of the main purposes of an environmental impact statement. See Citizens for a Better Henderson, 768 F.2d at 1056. Because the wildlife mitigation plan here merely lists measures to be used and includes neither an analysis nor an explanation of effectiveness, it is inadequate to satisfy the NEPA or Counsel on Environmental Quality mitigation guidelines. See Northwest Indian Cemetery Protective Ass’n, 795 F.2d at 697. III. The Resources Council also contends that the Corps violated the NEPA by failing to prepare a new supplemental EIS taking into account new information acquired since the 1980 EIS. We agree, and remand for further proceedings on this issue as well. A federal agency has a continuing duty to gather and evaluate new information relevant to the environmental impact of its actions after release of an EIS. Stop H-3 Ass’n v. Dole, 740 F.2d 1442, 1463 (9th Cir.1984), cert. denied, 471 U.S. 1108, 105 S.Ct. 2344, 85 L.Ed.2d 859 (1985). The agency must supplement the EIS if “[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.-9(c)(1)(ii); see Enos, 769 F.2d at 1373. When new information comes to light, the agency must consider it, evaluate it, and make a reasoned determination whether it is of such significance as to require implementation of formal NEPA filing requirements. Stop H-3 Ass’n, 740 F.2d at 1463-64. We will uphold an agency’s decision not to supplement an environmental impact statement in light of new information if the decision is reasonable. Enos, 769 F.2d at 1373. Reasonableness depends on the environmental significance of the new information, the probable accuracy of the information, the degree of care with which the agency considered the information and evaluated its impact, and the degree to which the agency supported its decision not to supplement with a statement of explanation or additional data. Stop H-3 Ass’n, 740 F.2d at 1464 (citation omitted). Applying the Stop H-3 Ass’n standard, we conclude that subsequent to the preparation of the final supplemental EIS, significant new information came to light. We further conclude, based upon the proceedings in the district court, that this information is probably accurate. The Corps failed to exercise the proper degree of care in evaluating the impact of the new information and failed to properly support its decision not to supplement the EIS with an explanation or additional data. Thus, a new supplemental EIS should have been prepared. Two studies provided significant new information regarding the environmental impact of the project. The Oregon Department of Fish and Wildlife concluded that the project could result in decreased survivability of chinook salmon, higher turbidity, increased disease potential in fish, and decreased prospects for lure- and fly-fishing. The United States Soil Conservation Service found a greater turbidity potential than indicated by the final supplemental EIS. These studies contained the significant new information contemplated by Stop H-3 Ass’n. The final draft of the Fish and Wildlife Department study, dated August 5, 1985, was based on the impact of Lost Creek Dam on salmon and steelhead populations downstream. Department scientists observed decreased survival of chinook salmon, and speculated that it was a result of increased water temperatures caused by the release of warmer water from the Lost Creek Reservoir. Based on Lost Creek Dam’s impact on survivability, the Department believed that conditions from Elk Creek Dam also would affect negatively chinook salmon survivability. Department scientists concluded that, even though their study was not conclusive, this phenomenon should be studied further before Elk Creek Dam is built. With regard to higher turbidity, information was based on a study of logging and road-building activity in the Elk Creek watershed since 1980. The logging and road-building has caused soil disturbance. Fish and Wildlife Department scientists believe that this activity will result in higher turbidity than that reported in the final supplemental EIS. Consequently, they suggest additional studies on turbidity potential before the dam is built. As to disease potential in fish, Fish and Wildlife Department statistics indicate that in 1979, following the construction of Lost Creek Dam, there was a 76% mortality rate in fall chinook salmon populations due to disease and a 32% mortality rate in 1980. Although there has been almost no mortality since 1981, Department scientists concluded there may be a connection between dam closure and the potential for increased disease among fish. Finally, the Fish and Wildlife Department was concerned about higher flows in the Rogue River that could decrease the effectiveness of lure- and fly-fishing along the river, including the wild and scenic portion. The Department wanted to conduct studies to evaluate this concern, but the Corps reduced the Department’s budget, making further study impossible. The Corps evaluated the Department study and concluded that the new information was not significant enough to warrant a new supplemental EIS. The Soil Conservation Service soil study also revealed significant new turbidity information tending to corroborate the Department study. The Soil Conservation Service study indicates that the Elk Creek watershed has substantially greater turbidity potential than previously reported in the EIS. Uncontradicted testimony showed that the soil content in the watershed is different than indicated in the final supplemental EIS. The Corps conducted no studies after receiving this new information because it had investigated erosion potential in 1979 and found nothing to substantiate the Department’s concerns over the soil study. Thus, the Corps concluded that no significant new information had been discovered. The district court found that the Corps’ decision not to release a new supplemental EIS was reasonable. Like the district court, we review the agency’s decision for reasonableness. See Enos, 769 F.2d at 1373. We conclude otherwise. The Department presented new information as a result of its study of Lost Creek Dam’s impact on the river. Although the evidence is not conclusive, it presented a legitimate concern about decreased survivability of fish and the potential for higher turbidity based on information from the two studies that was not available at the time the final supplemental EIS was published. The evidence clearly is environmentally significant under the Stop H-3 Ass’n test. The information must be more than environmentally significant. It must be “probably accurate” as well. Stop H-3 Ass’n, 740 F.2d at 1464. Based on our review of the experts’ testimony and data, we believe that, at the very least, some of the proffered information is probably accurate. Although the Corps had two independent experts evaluate the Fish and Wildlife Department’s study, and these experts were critical of many of the conclusions reached, the experts also agreed with significant portions of the study. The Corps did not dispute that there was increased logging and road-building activity in the Elk Creek watershed since 1980. The Fish and Wildlife Department is concerned that this activity will result in increased turbidity. The Corps also did not respond to the study’s conclusions concerning increased fish mortality from epizootic diseases. The information admittedly was not conclusive. Yet, the study raised legitimate concerns regarding the relationship between dam construction and epizootic diseases. The Corps should have considered the information, evaluated its impact and, at the very minimum, supported its decision not to supplement with a statement of explanation or additional data. Id. The Corps does not appear to have exercised the proper degree of care regarding the new information. The Corps also has not supported its decision with a statement of explanation or additional data. The testimony below also reveals that the information provided by the Soil Conservation Service was never considered by the Corps, even when the Corps issued its Supplemental Information Report in September 1985. In response to questions submitted by the Council of Environmental Quality (CEQ) in 1981, the Corps stated that soils in the Elk Creek Watershed erode more easily than those in the Lost Creek Watershed and therefore produce a higher volume of suspended material per unit of stream runoff and require a longer time to settle out. The Corps concluded that this factor was considered in the modeling effort. Later, in response to commentary (identified as “Letter 14,” attached to the final supplemental EIS) submitted in response to the draft EIS, the Corps stated that morphological factors cannot be incorporated into the WESTEX model but are qualitatively included in the overall analysis of the potential turbidity of the watershed. However, when presented with evidence showing that the soil content in the Elk Creek watershed was different from that indicated in the final supplemental EIS, the Corps chose not to respond. Table Four of the final supplemental EIS indicates that erosion potentials differ with soil associations. Further, the EIS states that turbidity is “generally caused by soil particles in the water column which are washed downstream in the runoff from the watershed.” Soil type and turbidity may not be directly related, as the Corps contends. Yet, the data reveals that soil type is related to erosion potential which, in turn, affects turbidity. The Corps took this into account earlier in its analysis and should do so again using the new information. Even if this data cannot be included in the WES-TEX model, the Corps should include it qualitatively in its “overall analysis” of turbidity. These are significant matters, the accuracy of which is not disputed. The Corps did not address adequately these issues. Thus, applying the final two factors of Stop H-3 Ass’n, we conclude that the Corps must prepare a supplemental EIS to address these issues. IV. The Resources Council also contends that the Corps was required by the CEQ “worst case” regulation to research further the effects of Elk Creek Damon turbidity in the Rogue River during high, average, and normal-low rainwater runoff years. The worst case analysis regulation, 40 C.F.R. § 1502.22, requires that when there are gaps in relevant information or scientific uncertainty with regard to significant adverse environmental effects, the agency must make it clear that the information is lacking or that uncertainty exists. If information is lacking that is essential to a reasoned choice and the cost of obtaining it is not exorbitant, the agency must obtain the information and include it in the statement or include a worst case analysis. The Oregon Department of Fish and Wildlife formally criticized the Corps’ conclusion that Elk Creek Dam would have little effect on temperature and turbidity on the Rogue. The state agency specifically disagreed with the Corps’ finding that Elk Creek would make only a small contribution to total flow in the Rogue River and commented that there may be periods when Elk Creek provides a significant percentage of the total flow of the Rogue. The Corps, in responding to the state agency’s comment (identified as “Letter 6,” attached to the final supplemental EIS), acknowledged that Elk Creek could contribute up to 25% of the flow in the Rogue during high flow periods. Thus, the Corps’ assessment of turbidity due to Elk Creek Dam is subject to uncertainty. This uncertainty is disclosed in the final supplemental EIS. The district court concluded that the Corps complied with the worst case analysis requirement because the final supplemental EIS included comments that exposed uncertainty, if uncertainty did in fact exist. Yet, exposing uncertainty is not enough. Save Our Ecosystems v. Clark, 747 F.2d 1240, 1244 n. 5 (9th Cir.1984), requires that the Corps include a worst case analysis in the EIS when there are gaps in the information engendering scientific uncertainty which the agency determines to be important and when the necessary information cannot be obtained because of scientific impossibility or because the costs of obtaining it would be exorbitant. See also Oregon Environmental Council v. Kunzman, 817 F.2d 484, 495 (9th Cir.1987). The Corps did not include a worst case analysis and did not conduct any further research with regard to the water flow contribution from Elk Creek. The Corps should pursue one of these alternatives. Additionally, since the Corps is now required to consider new information brought forth by the two studies, the Corps should take this information into account in its decision concerning a worst case analysis. If uncertainty remains at that time, the Corps should prepare a worst case analysis or conduct further research with regard to the new information. Y. The Resources Council further contends that the Corps unreasonably limited the scope of the final supplemental EIS by failing to consider the cumulative effects of all three dam projects, Lost Creek Dam, Applegate Dam, and Elk Creek Dam, the first two of which already have been completed. The Resources Council contends that the Corps should address the cumulative effects of the dams in a single EIS because the three components of the Rogue River Basin Project are connected. The “cumulative impact” regulation requires the Corps to evaluate “the incremental impact of the action when added to other past, present, and reasonably foreseeable actions.” 40 C.F.R. § 1508.7. Although the CEQ guidelines require that “cumulative actions” be considered together in a single EIS, 40 C.F.R. § 1508.25(a)(2), and “cumulative actions” consist only of “proposed actions,” this does not negate the requirement of 40 C.F.R. § 1508.7 that the Corps consider cumulative impacts of the proposed actions which supplement or aggravate the impacts of past, present, and reasonably foreseeable actions. The district court correctly ruled that a separate EIS was not required for the entire project. Only proposed actions must be discussed in a separate EIS. 40 C.F.R. § 1508.25(a)(2). The court also concluded that the final supplemental EIS adequately described and analyzed the impacts in terms of the effects of the entire project. The court was convinced that the Corps took a hard look at the cumulative impacts in the EIS. We disagree with the district court that the Corps took a hard look at the cumulative environmental impacts. Plaintiffs point out two examples of the Corps’ failure to consider the cumulative impacts. First, although the final supplemental EIS conceded that the overall basin project would increase the turbidity of the Rogue River, it concluded that there would be no major adverse effect on fish production from increased turbidity. In reaching this conclusion, however, it considered only the turbidity created by the individual project. Similarly, in response to a comment made by the United States Environmental Protection Agency suggesting that the EIS should discuss the effects of Lost Creek Dam on downstream water quality, the Corps responded that the Elk Creek EIS was not the proper place to discuss the effects of Lost Creek Lake. Insofar as the effects of the Lost Creek Dam were necessary to a complete presentation of the cumulative impact of construction of Elk Creek Dam, we disagree. The synergistic impact of the project should be taken into account at some stage, and certainly before the last dam is completed. In Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976), the Court specifically noted that “an agency could approve one pending project that is fully covered by an impact statement, then take into consideration the environmental effects of that existing project when preparing the comprehensive statement on the cumulative impact of the remaining proposals.” Id. at 415 n. 26, 96 S.Ct. at 2732 n. 26. While a separate EIS is not required, the Corps should consider the impact of Elk Creek Dam in conjunction with Lost Creek Dam and, if appropriate, Apple-gate River Dam. The Corps is building Elk Creek Dam in an area that already has two dams. It must consider the area as it finds it and take into consideration the cumulative impact of the basin project. VI. We affirm the district court’s rulings on the Resources Council’s remaining three challenges. First, the Resources Council contends that the final supplemental EIS gave no meaningful response to comments critical of the Corps’ draft supplemental EIS, because these comments were not integrated into the body of the final supplemental EIS. The Resources Council relies on a CEQ regulation that requires discussion “at appropriate points in the final [EIS of] any responsible opposing view.” 40 C.F.R. § 1502.9(b). The Resources Council argues that the only “appropriate points” in an EIS for discussion of opposing views are in the body. We first note that section 1502.9(b) does not define “appropriate points.” We must therefore examine that guideline and the Corps’ final supplemental EIS in light of the purposes of an environmental impact statement of providing complete information to the decisionmaker and the public. We find that an agency may place responsible opposing views in a separate “comments and responses” section when, as here, many of the critical comments prompted revisions in the body, the Corps discussed in the body all of the environmental problems to which the comments were addressed, and the Corps provided thoughtful and well-reasoned responses to most of the critical comments. We therefore hold that the Corps sufficiently complied with the purposes of the NEPA in its treatment of opposing views, even if the most “appropriate points” for addressing those views would be in the body. Second, the Resources Council contends that the final supplemental EIS is inadequate because it fails to discuss, as required by 40 C.F.R. § 1502.16(c), possible conflicts between the proposed action and other federal policy objectives for the affected area. Specifically, the Resources Council argues that the agency failed to analyze the effect of the dam on the wild and scenic portion of the Rogue River, located fifty-seven miles downstream. An EIS need contain only a reasonably thorough discussion of the significant aspects of the probable environmental consequences of a proposed action. Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir.1974). In this case, the United States Forest Service commented that the final supplemental EIS should address the effect of the project on the wild and scenic portion of the river. The Corps responded that, based on its conclusion that the impact on the immediate downstream portion of the river would be insignificant, the impact on the wild and scenic portion fifty-seven miles downstream also would be insignificant. The agency assumed that the reservoirs’ impacts diminish with distance. Applying this court’s “rule of reason,” see Enos, 769 F.2d at 1372, the agency logically concluded that the impact from the project on the wild and scenic portion of the river would be insignificant. Assuming the agency reaches the same conclusion concerning the immediate downstream portion of the river after it takes into consideration the new information, its decision concerning the wild and scenic portion of the river will stand. Third, the Resources Council contends that the final supplemental EIS is defective because the Corps placed a cost-benefit analysis of the Elk Creek Project using a 2>lk% discount rate in the body, but relegated an analysis based on a more realistic 7½% rate to an appendix. The Resources Council argues that the placement of these analyses misled the decisionmaker as to the economic value of the project. An EIS is not required to contain a formal, mathematically expressed cost-benefit analysis. California v. Block, 690 F.2d at 764. Nevertheless, if such an analysis is included, it should not be misleading. See Johnston v. Davis, 698 F.2d 1088, 1094 (10th Cir.1983). We find that the Corps’ use of a 3V4% discount rate or its placement of the 7V2% cost-benefit analysis in an appendix was not misleading. The Water Resources Development Act of 1974, Pub.L. No. 93-251, § 80, 88 Stat. 34 (1974) (codified at 42 U.S.C. § 1962d-17(b)), required use of the 31/4% discount rate. Johnston, 698 F.2d at 1092-95. The Corps’ inclusion of the analysis based on the more realistic comported with CEQ guidelines. See 40 C.F.R. § 1502.23 (cost-benefit analysis “shall be incorporated by reference or appended to the statement”). Moreover, although the purposes of an EIS might have been better served if the 3V4% analysis in the body had made reference to the 7 ¥2% analysis in the appendix, the inclusion of the latter analysis sufficiently cured whatever misleading effects resulted from use of the 3V4 percent rate. Cf Enos, 769 F.2d at 1375 n. 14. VII. We conclude that the Corps’ mitigation report is inadequate, and that the Corps should file a new supplemental EIS because of new information obtained. The Corps also must prepare a worst case analysis or conduct further research with regard to the waterflow contribution from Elk Creek. The Corps also should conduct a worst case analysis based on the new information submitted in the two studies, if necessary. Finally, although the Corps need not prepare a separate statement addressing the cumulative impact of the dams, it should supplement the statement and address the cumulative impact of Lost Creek and Elk Creek Dams and, if appropriate, Applegate River Dam. We therefore remand to the district court for entry of appropriate injunctive relief in accordance with this opinion. Attorneys fees and costs are awarded to plaintiffs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. . "Turbidity" is defined in the glossary to the final supplemental EIS as "an expression of the optical property of water which causes light to be scattered and absorbed rather than transmitted through in straight lines. Turbidity is caused by the presence of suspended matter." Simply stated, turbidity is murkiness due to stirred-up sediment. . The plaintiffs are several nonprofit organizations representing their members who assert injury by the dam’s construction. The plaintiffs therefore have standing under the rule in Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636 (1972). . We note, however, that the factors set forth in Stop H-3 Ass'n v. Dole, 740 F.2d 1442, 1464 (9th Cir.1984), cert. denied. 471 U.S. 1108, 105 S.Ct. 2344, 85 L.Ed.2d 859 (1985), to determine reasonableness are neither mandatory nor exclusive. Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017 (9th Cir.1980), upon which Stop H-3 Ass’n relies, specifically states that ‘jVjeasonableness depends on such factors as____" Id. at 1024 (emphasis added). . The district court noted that the Corps is still reviewing the concerns expressed in the final Department study. Because the Corps has yet to complete its review of the new information, it is too early to conclude that the new information is not significant. . An epizootic disease is a disease that affects many members of a population at the same time. See Webster’s Third New International Dictionary 766 (1976). . The WESTEX model is a mathematical model developed by the Corps’ Waterways Experiment Station in Vicksburg, Mississippi, and the University of Texas. The Corps used this model to analyze potential turbidity problems from Elk Creek Dam. . We note that the United States Fish and Wildlife Service also recommended a new supplemental EIS because there may no longer be a need for the water storage assumed necessary in the final supplemental EIS. . We reject the argument of the Corps that section 1502.22 is inapplicable due to its rescission on May 27, 1986. The worst case regulation is a codification of prior NEPA case law. See Save Our Ecosystems v. Clark, 747 F.2d 1240, 1244 (9th Cir.1984). Thus, the rules embodied in the regulation remain in effect even though the regulation was rescinded. . The parties disagree as to the appropriate standard of review for this issue. The Resources Council contends that the decision to limit the scope of an EIS is akin to a decision not to prepare a statement at all. Therefore, under Foundation for N. Am. Wild Sheep v. United States Dep’t of Agric., 681 F.2d 1172, 1177 (9th Cir.1982), we would review the decision to determine its reasonableness. Appellees contend that this court should review the decision to determine whether it is arbitrary and capricious. Neither contention is correct. As stated previously, this court reviews the district court’s conclusion to determine whether it is based on an erroneous legal standard or on clearly erroneous findings of fact. See Northwest Indian Cemetery Protective Ass’n, 795 F.2d at 696. . As originally drafted, section 1502.9(b) read: "In the final statement the agency shall discuss at appropriate points in the text the existence of any responsible opposing view____” 43 Fed. Reg. 25,237 (1978). Because the deletion of the words "in the text” was not accompanied by an explanation, see 43 Fed.Reg. 55,995 (1978), it is unclear whether the CEQ intended the change to affect the meaning of "appropriate points.” . Moreover, to the extent that the critical responses of the state and federal agencies were merely "substantive comments," rather than "responsible opposing views," the Corps was not required to discuss the comments in the text. See 40 C.F.R. § 1503.4(b). . The Resources Council contends that the agency’s assumption violates 40 C.F.R. § 1502.-24, which requires agencies to identify any methodologies used and to make explicit reference by footnote to the scientific and other sources relied on for conclusions in the statement. We disagree. The regulation is satisfied here because the Corps identified the methodologies used and sources relied on for its conclusions concerning the immediate downstream portion of the stream. This was sufficient to support its decision concerning the wild and scenic portion of the river. Question: What federal agency's decision was reviewed by the court of appeals? A. Benefits Review Board B. Civil Aeronautics Board C. Civil Service Commission D. Federal Communications Commission E. Federal Energy Regulatory Commission F. Federal Power Commission G. Federal Maritime Commission H. Federal Trade Commission I. Interstate Commerce Commission J. National Labor Relations Board K. Atomic Energy Commission L. Nuclear Regulatory Commission M. Securities & Exchange Commission N. Other federal agency O. Not ascertained or not applicable Answer:

songer_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). ST. PAUL FIRE & MARINE INSURANCE COMPANY, a Corporation, Appellant, v. TENNEFOS CONSTRUCTION CO., Inc., a Corporation, Appellee. No. 19020. United States Court of Appeals Eighth Circuit. June 28, 1968. Rehearing Denied Aug. 14, 1968. Ellsworth E. Evans, of Davenport, Evans, Hurwitz & Smith, Sioux Falls, S. D., for appellant; Robert C. Heege, of the same firm, Sioux Falls, S. D., and Wattam, Vogel, Vogel, Bright & Peterson, Fargo, N. D., were on the briefs with Ellsworth E. Evans. Norman G. Tenneson, of Tenneson, Serkland, Lundberg & Erickson, Fargo, N. D., for appellee; Harold A. Dronen, of the same firm, Fargo, N. D., was on the brief with Norman G. Tenneson. Before MEHAFFY, GIBSON, and HEANEY, Circuit Judges. GIBSON, Circuit Judge. The main issue presented in this case and on this appeal concerns the coverage afforded by a contract bond issued to a member of a joint venture indemnifying that member against all loss sustained by reason of the other member’s failure to comply with any of the terms of the joint venture agreement. The District Court for North Dakota held that the bond covered the loss in question and entered judgment for $147,591.22 and costs against the appellant and defendant below, St. Paul Fire & Marine Insurance Company. Diversity jurisdiction was established. A timely appeal was filed. We affirm. The facts are lengthy but for the most part are stipulated or are not in dispute. On May 21, 1955 Tennefos Construction Co., Inc. (Tennefos) and Ed Cox & Son, a partnership, (Cox) submitted a joint proposal to the South Dakota Highway Commission for the construction and improvement of United States Highway No. 16, in Lyman County, South Dakota. In' anticipation of formalizing the contract with the State Highway Commission, Tennefos and Cox executed a joint venture agreement on June 4, 1955, which provided for a division of the work between them and the compensation to be paid Cox for its part of the project. Under this agreement Cox was to provide the labor and material necessary to construct the sand and gravel sub-base of the road project and was to “furnish a satisfactory contract bond in the penal sum of $199,334.25 payable to the second party (Tennefos) as obligee similar in form to the contract bond required by the South Dakota State Highway Commission from the parties hereto, and pay the premium therefor.” In line with Cox’s bond obligation under the joint venture agreement it, as principal, and the St. Paul Fire & Marine Insurance Company (St. Paul), as surety, executed a contract bond under date of June 14, 1955 agreeing to indemnify the obligee Tennefos for “all loss” that Tennefos might sustain by reason of Cox’s failure to comply with any of the terms of the joint venture agreement. The bond was called a “contract bond” and was on a regular form prepared and supplied by St. Paul. The formal contract between the State Highway Commission and Tennefos and Cox, as contractors was dated August 25, 1955, and provided that “The said Contractor further agrees to pay all just claims for materials, supplies, food, tools, appliances, and labor, and all other just claims incurred by him * * * and further agrees that the contract bond shall be held to cover all such claims.” In accordance with the requirements of the highway contract Tennefos and Cox, as principals, and United Pacific Insurance Company (United Pacific), as surety, on August 31, 1955 furnished a performance bond running to the State of South Dakota as obligee in the sum of $408,671.84. As part of the consideration and as an inducement for United Pacific’s execution of the performance bond Tennefos agreed to indemnify United Pacific. Cox was short of capital and in order to carry out its obligations under the joint venture agreement Cox borrowed money from the Farmers State Bank of Flandreau, South Dakota (Bank). On March 23, 1956 St. Paul notified Tennefos that “* * * there are numerous unpaid bills on the part of Ed Cox and Son for work and materials furnished” and requested that “* * * no further funds on this job be released to Ed Cox and Son, in order that our position under the captioned bond, in which you are obligee, should not be prejudiced in any way.” St. Paul then under date of April 3, 1956 wrote to the Bank requesting the Bank to exercise certain control over future advances made to Cox on this project. Although the record is not clear, apparently Cox owed the Bank at the time this letter was written a considerable amount for monies advanced on this project. The Bank agreed to these controls and continued to finance Cox. On July 11, 1956 and again on August 23, 1956 St. Paul authorized Tennefos to pay over to the Bank, funds which Tennefos had received from the State for work done by Cox. St. Paul also made payments in excess of $20,000 for labor, materials and equipment rental so that Cox could comply with the terms and conditions of the joint venture agreement. After Cox had completed its part of the work under the joint venture agreement there remained unpaid and outstanding $108,492.92 in bank loans that had been obtained and used by Cox in carrying out the project. This amount apparently all had been incurred prior to St. Paul’s letter of April 3, 1956 to the Bank, though there is considerable doubt on this point. The Bank commenced an action in the South Dakota state court against Tennefos and Cox as principals, on the bond furnished to the State, and United Pacific as surety, seeking to recover the amount of the unpaid bank loans. Defense of this action was tendered to St. Paul but it was declined. Tennefos recognized its obligation as an indemnitor of United Pacific and assumed the defense of this state action. Tennefos raised the issue of coverage, much the same as St. Paul, but judgment was entered against Cox and Tennefos and United Pacific for $108,492.42 plus costs. Tennefos then tendered the appeal to St. Paul but this also was declined. The judgment was affirmed by the Supreme Court of South Dakota in State for Use of Farmers State Bank v. Ed Cox and Son, 132 N.W.2d 282 (S.D. 1965). Tennefos paid the judgment and then commenced this action against St. Paul to recover the amount paid, together with costs incurred in defending and appealing the state action. The District Court heard the case without a jury and granted judgment for Tennefos in the amount of $147,591.-92 based on an estoppel theory. The trial court’s ultimate determination was: “After having induced the Bank to continue financing Cox and prevailing upon Tennefos to transmit progress payments to the Bank to apply on the loans, in the view of this Court St. Paul Fire is estopped from denying that the loans were outside the coverage afforded under the terms of its indemnity bond.” We think the trial court reached a correct result but that an estoppel would not apply to the bank funds advanced before St. Paul became involved with the bank advances and in authorizing the Bank’s advances, as indicated by its letter of April 3, 1956. It is impossible for us to tell on the record or by a reading of the state case what funds were advanced before April 3, 1956 and what funds were advanced after that date; or whether the original $108,000 comprising the basis of the Bank’s state court suit represented advanees made by the Bank prior to April 3, 1956, or after April 3, 1956 or both. To the extent that the judgment includes funds advanced by the Bank after St. Paul authorized the bank advancements by its letter of April 3, 1956, we think an estoppel theory would be applicable but that an estoppel could not be applied prior to the time that St. Paul by its acts authorized and induced the Bank to make the advances. The evidence would indicate this approximate date would be April 3, 1956, though there might have been some oral preliminary authorization shortly prior to that date. We, however, feel that this matter is not crucial, as “A successful party in the District Court may sustain its judgment on any ground that finds support in the record.” Jaffke v. Dunham, 352 U.S. 280, 281, 77 S.Ct. 307, 308, 1 L.Ed.2d 314 (1957); Crossett Lumber Co. v. United States, 87 F.2d 930, 109 A.L.R. 1348 (8 Cir. 1937), and we think the contract bond as written-covers Tennefos’s loss. St. Paul contends that its contract bond only covers Cox’s obligations under the joint venture agreement; that the agreement specifies in detail the obligations which Cox agreed to assume and that these obligations have been fully met; that the payment of money borrowed by its principal Cox is not within the contemplation of the joint venture agreement nor the bond; and further that no estoppel is warranted under the facts of this case. At the outset it should be noted that the case of United States for the Use of First Continental National Bank & Trust Co., Lincoln, Neb. v. Western Contracting Corporation, 341 F.2d 383, 387 (8 Cir. 1965) holding: “ Tt is the generally accepted view that one who loans or advances money to another for the purpose of meeting a payroll and paying for supplies cannot sue a surety who has guaranteed payment to those furnishing labor and material.’ ” and other cases similarly holding that loans or advances of money to a contractor to pay for labor or material are not protected by a performance bond are not in point in this case, as the performance bond required by the South Dakota Highway Commission covered, in addition to the usual labor and material claims, all other just claims and was, as properly held by the South Dakota Supreme Court, much broader in coverage than the usual type of performance bond. Cox and Tennefos began their joint venture by making a successful bid for the road construction project. They proceeded to execute the feasible and necessary documents to carry out the construction project. The instruments which they deemed feasible and necessary to accomplish their purpose were: 1. The joint venture agreement between themselves outlining the sphere of work to be performed by each and defining in detail Cox’s obligation to Tennefos; 2. An indemnity agreement executed by Cox as principal and St. Paul as surety running to Tennefos as obligee; 3. The contract between the State Highway Commission and the joint venturers covering the road construction project; 4. The performance bond required by the State contract and executed by the joint venturers as principals and United Pacific as surety. These various agreements and the recitals contained in them refer to a single transaction and were necessarily an integral part of the construction project. The joint venture agreement refers to the bond, which Cox agreed to furnish Tennefos as “similar in form to the contract bond required by the South Dakota Highway Commission” of Tennefos and Cox. The joint venture agreement also outlines the scope of work to be performed by each of the joint venturers and states their individual responsibility for their share of the work, on which they were jointly obligated to perform for the State. The law presumes that a surety knows the contents of its principal’s contracts. Hartford Accident & Indemnity Company v. United States, 127 F.Supp. 565, 567, 130 Ct. Cl. 490 (1955); United States v. Tyler, 220 F.Supp. 386 (Iowa 1963). A contract of indemnity, which is issued by a compensated surety “* * * is to be regarded as in the nature of an insurance contract governed by the rules applicable to insurance contracts * * Massachusetts Bonding & Insurance Co. v. Feutz, 182 F.2d 752 (8 Cir. 1950). The bond issued by a compensated surety is related to and must be read and interpreted in connection with the other documents which make up the whole transaction: “* * * where a bond and another contract or instrument relate to and form one and the same transaction, or the bond refers to such other instrument or is conditioned for the performance of specific agreements set forth therein, such instrument with all its stipulations, limitations or restrictions becomes a part of the bond, and the two should be read together and construed as a whole.” 9 Apple-man, Insurance Law and Practice 70, § 5276. We recognized and applied this principle in Home Indemnity Company v. F. H. Donovan Painting Co., 325 F.2d 870, 874 (8 Cir. 1963) ; “It is a fundamental rule of construction that where the contract which is the subject of the performance bond is referred to in the latter, that the contract is to be regarded as a part of the undertaking of the surety under the bond.” (Citations omitted). The joint venture agreement, which is admittedly covered by St. Paul’s contract bond, specifically refers to and is related to the contract with the State Highway Commission. Absent the contract with the State Highway Commission there would be no need for the joint venture agreement or St. Paul’s bond. These agreements should be read together as they represent successive steps which were taken to accomplish a single purpose. The courts have long recognized that a contract may consist of more than one instrument. “A contract may be contained in several instruments. These if made at the same time, in relation to the same subject-matter, may be read together as one instrument, and the recitals in one may be explained or limited by reference to the other. This rule obtains even when the parties are not the same, if the several contracts were known to all the parties and were delivered at the same time to accomplish an agreed purpose.” Peterson v. Miller Rubber Co. of New York, 24 F.2d 59, 62 (8 Cir. 1928) — -cited with approval in 182 F.2d 752 (8 Cir. 1950). And in Kurz v. United States, 156 F. Supp. 99, 104 (N.Y.1957), aff’d 254 F.2d 811 (2 Cir. 1958), the Court recognized the principle: “* * * [W]here several instruments, executed contemporaneously or at different times, pertain to the same transaction, they will be read together, even though they do not expressly refer to each other.” (Citations omitted). Further recognition of this principle is noted and discussed in Doherty Research Co. v. Vickers Petroleum Co., 80 F.2d 809 (10 Cir. 1936); Williston on Contracts, 3d Ed., § 628. 17A C.J.S. Contracts § 298, p. 128, expresses this construction rule, thusly: “* * * as a general rule, * * * where several instruments of writings are made as part of one transaction, they will be read, or construed, together, and each will be construed with reference to the other. This is true even though the instruments involved do not in terms refer to one another Similar comments on the problem of construction and interpretation of a contract consisting of more than one document is found in 3 Corbin on Contracts, pp. 188-192, § 549: “In many cases * * * the terms of agreement may be expressed in two or more separate documents, * * * In every such case, these documents should be interpreted together, each one assisting in determining the meaning intended to be expressed by the others. “This is true whether the documents are all executed by a single party or by two or more parties, and whether some of the documents are executed by parties who have no part in executing the others. A transaction may be tri-partite or even more complex, a factor that must not be disregarded in the process of interpretation of any of the documents. “Internal references to one document to another are often helpful in the processes of interpretation and adjudication; but the absence of such a reference does not make a document unusable in these processes or inadmissible in evidence. Its connection and relevancy can be established otherwise.” The condition of St. Paul’s indemnity bond is for payment of all loss sustained by Tennefos. It was issued by St. Paul to protect Tennefos against any failure of Cox in fulfilling its obligations under the joint venture agreement, which necessarily covers Cox’s performance in carrying out its share of the South Dakota Highway contract. The performance bond issued by United Pacific covering the construction project of the joint venturers was much broader than the usual performance bond, which ordinarily covers only claims for labor and material. This bond specifically covered “all just claims for materials, supplies * * * labor, and all other just claims incurred by him or any of his subcontractors in carrying out the provisions of this contract.” And was specifically held by the South Dakota Supreme Court in State for Use of Farmers State Bank v. Ed Cox and Son, supra, to include bank loans advanced on this particular project; and expressly held at 287 of 132 N.W.2d: “* * * the obligation assumed under the bond is determined by construing it together with the contract, and when so viewed it is extremely broad. Also emphasized is the principle that the bond should be construed most strongly in favor of indemnity.” St. Paul expresses surprise at the holding of the State Supreme Court in the Ed Cox and Son case but an examination of an earlier South Dakota case, J. F. Anderson Lumber Co. v. National Surety Co., 49 S.D. 235, 207 N.W. 53 (1926) would show a similar holding on an identical provision of “and all other just claims.” The Court in Anderson reasoned at 57: “The appellant surety voluntarily undertook an obligation so broad in its terms that it would be difficult to define the extremities of its scope as applied to various possibilities. No case has been cited to us by counsel for either party to this appeal, where the obligation of the surety is shown to be as broad. [And the obligation of appellant’s surety] * * * includes, not only ‘labor’ and ‘material,’ but ‘supplies,’ tools, appliances, * * * and all other just claims incurred by him * * * in carrying out the provisions of the contract.” By virtue of the joint venture agreement, Cox as principal and St. Paul as surety were obligated to furnish a bond similar in form to the bond required by the South Dakota Highway Commission and furnished by United Pacific. Similar in form would clearly indicate that at least as broad a coverage must be furnished by Cox and St. Paul as was required by the State and furnished by United Pacific. In other words, the construction contract and the performance bond given in connection therewith were a joint undertaking of Cox and Tennefos and in the contemplation of the parties any bond furnished pursuant to the joint venture agreement must afford protection to the obligee equal to the obligation of Cox and Tennefos to the State of South Dakota. This is a diversity case wherein the law of South Dakota applies and that State’s interpretation of its law is binding on all of the parties. The contract bond furnished by St. Paul by its terms is clearly capable of being interpreted as covering the loss in question. St. Paul was obligated to furnish a bond as broad as that furnished by United Pacific and under which the loss in question was established as an ultimate liability against Tennefos. St. Paul should now not be heard to say that its bond afforded less coverage than it was obligated to afford under the joint venture agreement. In summary, we think the four instruments must be read together as they form the basis for a single transaction. In construing these instruments we think the coverage of the St. Paul bond must be at least equally as broad as Cox and Tennefos furnished the State. The St. Paul bond would also cover Tennefos’s loss sustained by reason of Cox’s failure to pay “all just claims.” The money loaned to Cox by the Bank was determined to be a just claim by the South Dakota Supreme Court in State for Use of Farmers State Bank v. Ed Cox and Son, supra. This judgment was paid to the Bank by Tennefos thus causing him a loss which is directly attributable to Cox’s failure to perform its obligation under the joint venture agreement. Since St. Paul’s bond agrees to indemnify Tennefos against all loss sustained by Cox’s failure to comply with the terms of the joint venture agreement, the loss suffered by Tennefos and occasioned by Cox clearly comes within the terms of St. Paul’s bond. Judgment affirmed. “11. Furnish a satisfactory contract bond in the penal sum of $199,334.25 payable to the second party (Tennefos) as obligee similar in form to the contract bond required by the South Dakota State Highway Commission from the parties hereto, and pay the premium therefor.” (Emphasis supplied). . The parties will be referred to as listed below or by their abbreviated name designation. Ed Cox & Son, a partnership, will be referred to as an entity. . The pertinent clause reads: “Now, Therefore, the condition of the foregoing obligation is such that if the Principal shall indemnify the Obligee for all loss that the Obligee may sustain by reason of the Principal’s failure to comply with any of the terms of said contract, then this obligation shall be void; otherwise it shall remain in force.” . The pertinent part of Tennefos’s indemnity agreement contained in the application for contract or bid bond reads as follows: “To indemnify, and keep indemnified, the Company, against all loss, costs, damages, expenses and attorneys’ fees whatever, and any and all liability therefor, sustained or incurred by the Company by reason of executing or procuring the execution of any said bond or bonds, * * * or sustained or incurred by reason of making any investigation on account thereof, prosecuting or defending any action brought in connection therewith, * * *. Payment of any such amounts to the Company shall be made by the undersigned as soon as the Company shall be liable therefor, whether or not it shall have paid out any portion thereof.” . The pertinent part of the letter reads: “To resume operations on this project, it would appear that Ed Cox & Son will need some financing to meet payrolls and material bills, and equipment rentals during the interim etween the receipt of periodic progress payments from the State. “Should you undertake to finance Ed Cox & Son’s continued operations on this project until final completion thereof, under arrangements whereby you exercise control over advances made by you so that such advances are used only to cover payrolls, supplies and material bills, and equipment rentals incurred in connection with this job, we shall have no objection to your being reimbursed for such advances out of the monthly progress payments. “However, inasmuch as labor and material suppliers have an equitable lien on the proceeds of the contract we must ask that you agree that no part of Ed Cox & Son’s present indebtedness to you will be paid out of progress payments hereafter received until the job is finally completed, and all labor and material bills incurred on it have been paid. So far as that present indebtedness is concerned you will look only to any excess funds remaining after all labor and material bills are paid on this job, and to any other asset of Ed Cox and Son. “ * * * * * * “Signed “St. Paul-Mercury Indemnity Co.” . The record indicates that the Bank made further advances to Cox after the letter of April 3, 1956 and that the Bank was reimbursed for those advances by Tennefos upon instruction to do so by St. Paul. Plaintiff’s exhibit No. 10 is a letter dated August 23, 1956 in which St. Paul authorizes payment of $42,721.39 to the Bank for the account of Cox for “!! * * current estimate for work done.” Also in a telegram of apparent date of July 11, 1956, St. Paul authorizes Tennefos to release to the Bank all proceeds Tennefos was then holding arising out of the first estimate of work performed on the project. The State trial court also made factual findings, (VI), indicating that after crediting all payments to the Bank made both prior and subsequent to March 1956, there remained owing to the Bank sums in excess of some $149,000. . The District Court judgment may, therefore, be affirmed by this Court on a legal theory different than the theory announced by the District Court if we think the judgment was correct based on the record before us. Barunica v. United Hatters, Cap and Millinery Workers, Local Number 55, 321 F.2d 764, 765-766 (8 Cir. 1963) ; State Mutual Life Assur. Co. of Worchester, Mass. v. Fleischer, 186 F.2d 358, 364 (8 Cir. 1951). . That agreement in part reads: 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_procedur

B

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. BOAZE v. WINDRIDGE & HANDY, Inc. No. 7177. United States Court of Appeals for the District of Columbia. Argued Jan. 17, 18, 1939. Decided Jan. 30, 1939. Alvin L. Newmyer and David G. Bress, both of Washington, D. C., for appellant. Norman B. Frost and Frank H. Myers, both of Washington, D. C., for appellee. Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices. GRONER, C. J. Tljis appeal is from a judgment for appellee entered on a verdict directed by the court. The action below was brought by Annie V. Boaze, as administratrix of the estate of her husband, to- recover damages for his death resulting f-rom a collision with a motorcycle operated by appel-lee’s agent on M Street in the City of Washington. Appellee’s plea admitted the collision and the death of appellant’s husband therefrom, but alleged that its agent was not negligent in any of the particulars charged in the declaration, and that deceased’s own negligence was the cause of the injury and death. The single question we have to decide is whether the evidence, construed most favorably to plaintiff, was sufficient to warrant a finding by the jury that defendant was negligent as charged in the declaration. If so, the motion for binding instructions should have been denied. Improvement Company v. Munson, 14 Wall. 442, 448, 20 L.Ed. 867. On such a motion, in order to determine whether there is evidence upon which a jury can properly find a verdict, the court must assume that the evidence proves all that it reasonably may be found sufficient to establish. If fair minded men may honestly draw different conclusions as to the existence or nonexistence of the negligence charged, the question is not one of law but of fact to be settled by the jury. Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720. The evidence introduced by the plaintiff shows that on the afternoon of June 19, 1934, deceased drove his car in an easterly direction on M Street, N. W., between 25th and 26th Streets and parked it adjacent to the south curb, headed in an easterly direction; that he got out of his car and started to walk across M Street to the north side; and that when he had got to a point about 6 or 7 feet from the north curb, he was struck by a motorcycle operated by defendant’s agent, Charles Rind. The eye witnesses to the collision were the injured and the operator of the motorcycle. The former died the following day. The driver did not testify. Of the witnesses who testified, two — Brenner and Otis — saw the deceased as he hit the ground immediately after the collision. Another — Mrs. Williams — saw him as he lay in the street just before he was removed to the hospital. Brenner testified he was standing in an office door on the north side of M Street, nearly opposite the point of collision; that he saw deceased leave his car and take a step and did not see him again until he heard an exclamation from Otis, to whom he was talking at the time, as the result of which he looked and saw the deceased fall to the ground; that at that moment the motorcycle was on the north side of the street headed east and 6 to 7 feet from the curb; that he ran out into the street and when he reached the place of accident, deceased lay with his head a few feet from the north curb and with his body and feet in a southerly direction. Otis testified that he did not see the impact but did see deceased’s head hit the ground. He placed the point of the accident as slightly on the north side of the center of the street,, stating that as the body lay on the ground injured’s feet were near the center line of the street and the head toward the north side. Mrs. Williams, who saw the body before it was removed, testified it was near the center but more on the north half of the street. She said that after the accident she saw the driver of the motorcycle drive around and come back to the scene but did not know how far he went before turning around. M Street runs east and west; and at the point where the accident occurred its width is a few inches less than 40 feet from curb to curb. The evidence showed that the driver of the motorcycle had shortly before the accident brought an automobile, with the motorcycle attached to its rear, to an “automobile laundry" on the north side of M Street some 40 or 50 feet west from the point of the accident; that the' automobile was brought to the “laundry” to be washed, and the motorcycle to convey the driver back to defendant’s place of business; that the automobile was driven to the rear of the lot fronting on the north side of M Street; and that the driveway from the rear which defendant’s agent would use in returning was, at the point of intersection with the street, approximately 38 feet from the place of accident. At the time of the collision there were no parked cars on the north side of the street, but there were cars parked against the curb on the south side, and there was also a milk truck with a tall body parked double on that side just to the west of deceased’s automobile. In these circumstances we think that, when deceased undertook to walk from the south to the north side of the street, especially in view of the presence of parked automobiles on the near sidé, it was his duty to look in the directions from which danger might be expected and that, if he failed to do so and his negligence in this respect was the sole proximate cause of the injury, there could be no recovery. If, therefore, the evidence had shown that the collision occurred as deceased emerged from behind a parked car and when the view of the driver of the motorcycle was obscured, so that he could not see the deceased as he walked into his pathway, we should have to affirm the judgment of the court below. But that is not this case, for here the evidence, together with the inference that justifiably may be drawn from it, tends to show that the' collision occurred after deceased had fully cleared the parked automobiles and passed the center line of the street to a point within 6 or 7 feet of the north curb, a part of the roadway over which, in the circumstances, it was an act of negligence to drive a vehicle in an easterly direction. In addition to this, the evidence at least tends to show that, on the side of the roadway on which the motorcycle was being driven, there was nothing to obstruct the view of the driver and that he could and should have seen deceased and realized his peril in time to avoid the accident. If this is true, the driver of the motorcycle was guilty of negligence for which a recovery could be had, notwithstanding deceased himself might have been guilty of contributory negligence in failing to look. Chunn v. City & Suburban Railway, 207 U.S. 302, 309, 28 S.Ct. 63, 52 L.Ed. 219; Jackson v. Capital Transit Co., 69 App.D.C. 147, 99 F.2d 380; Goodyear Service v. Pretzfelder, 65 App.D.C. 389, 84 F.2d 242; Terminal Taxicab Co. v. Blum, 54 App.D.C. 357, 298 F. 679. Enough, we think, has been said to show that in our opinion the trial court was in error in taking the case from the jury. Reversed and remanded for a new trial. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_usc1

0

What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. UNITED STATES of America, Appellee, v. Fred BULL, Jr., Appellant. No. 77-1315. United States Court of Appeals, Fourth Circuit. Argued Aug. 10, 1977. Decided Nov. 23, 1977. Brian K. Miller, Richmond, Va., for appellant. Alexandra E. Divine, Third-Year Law Student (William B. Cummings, U. S. Atty., Alexandria, Va., and David A. Schneider, Asst. U. S. Atty., Richmond, Va., on brief) for appellee. Before RUSSELL, WIDENER and HALL, Circuit Judges. PER CURIAM: The appellant was found guilty by a jury of possession of a firearm in violation of App., § 1202(a)(1), 18 U.S.C. He has appealed, alleging that the court erred in finding that the “stop and frisk” conducted by the police officer, during which the firearm was discovered, was reasonable or proper and in failing to suppress evidence of the discovery of the weapon. We affirm. The critical issue is whether the “stop and frisk” of the defendant, which resulted in the discovery of the concealed weapon and the subsequent arrest, was a “stop and frisk” or an actual arrest and, whether if a “stop and frisk” it was reasonable under the circumstances. This is so because, if the “stop and frisk” was valid, the confiscation of the weapon on which the prosecution rested, was necessarily valid since it was abandoned by the defendant in open view of the accosting officer. The officer involved testified that his initial accosting of the defendant was a “stop and frisk” and not an arrest. All the circumstances, save the one cited by the defendant, support this testimony of the officer. The oné circumstance on which the defendant relies for his contention that the action of the officer constituted an arrest was the use of his gun when he accosted the defendant. This fact, standing alone, however, is not sufficient to constitute the action of the officer as an arrest; it is but one circumstance, along with all the others surrounding the incident, to be weighed in determining the character of the officer’s action. Considering all the circumstances, as the district judge did, the conclusion that the action of the officer in stopping the defendant was not an arrest is amply supported in the record. Accepting the finding that the action of the officer was a “stop and frisk,” the next issue is whether the “stop and frisk” was proper, i. e., did the officer have a reasonable and “founded” suspicion that criminal activity might be afoot. If he had such a “founded” suspicion, he had a right to stop the defendant in order to question him, and, in connection with that questioning, to conduct a limited search for weapons provided the officer reasonably feared that the one to be questioned might be armed. Terry v. Ohio (1968) 392 U.S. 1, 29, 88 S.Ct. 1868, 20 L.Ed.2d 889; Adams v. Williams (1972) 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612. Among the circumstances to be considered in connection with this issue are the “characteristics of the area” where the stop occurs, the time of the stop, whether late at night or not, as well as any suspicious conduct of the person accosted such as an obvious attempt to avoid officers or any nervous conduct on the discovery of their presence. See United States v. Brignoni-Ponce (1975) 422 U.S. 873, 884-85, 95 S.Ct. 2574, 45 L.Ed.2d 607. In evaluating or assessing such circumstances — particularly the conduct of the suspect the officer is entitled to draw upon his own experience as an officer. Terry v. Ohio, supra, 392 U.S. at 27, 88 S.Ct. 1868. This is so because “[c]onduct innocent in the eyes of the untrained may carry entirely different ‘messages’ to the experienced or trained observer.” Davis v. United States (1969) 133 U.S.App.D.C. 172, 174, 409 F.2d 458, 460, cert. denied 395 U.S. 949, 89 S.Ct. 2031, 23 L.Ed.2d 469. United States v. Purry (1976) 178 U.S.App.D.C. 139, 142, 545 F.2d 217, 220. In this case, the officer had long been engaged in investigating night-time burglaries in shopping areas such as that involved here. While he was traveling in an unmarked car, the car was one well known in the community to be of the type used by plain-clothes detectives, such as the officer in this case. The time was late and most of the stores in the area had long since been closed. The defendant and his companion were the only ones observable in the area where they were seen by the officer, and there was no vehicular traffic. They seemed to be wandering aimlessly about the area, looking the area over. When they saw the officer approaching, they turned their backs and bent over as if they were tying their shoes, in an apparent effort to avoid having their faces observed by the officer. When the officer passed, he looked in his rear-view mirror and observed that the defendant and his companion promptly looked up in order to observe carefully where the officer went. Because of the suspicious conduct of the defendant and his companion, the officer proceeded beyond the sight of the defendant, stopped his ear, got out and hid behind some bushes to observe the defendant and his companion as they proceeded in his direction. When the defendant and his companion drew near, the officer stopped the two of them, and at this point, he noticed that they had on hats from beneath which protruded panty hose, and with companion officers whom he had called to the scene for assistance, he instructed them to turn around for frisking preparatory to questioning them. His determination to frisk them was prompted, he explained, by the fact that one of the parties had on a jacket on a warm night under which he feared a weapon might be concealed. At this point, he observed the defendant remove a firearm from his belt, drop it to the ground and kick it under the police car, in plain view of the officer. The officer later seized the weapon which the defendant had dropped and the arrest of the defendant followed. We are satisfied that, under the circumstances there was probable cause for the “stop and frisk.” Since the “stop and frisk” was reasonable, the seizure of the weapon, abandoned by the defendant in plain view of the accosting officer, in turn was proper. Harris v. United States (1968) 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067. See, United States v. McLaughlin (9th Cir. 1975) 525 F.2d 517, 519, cert. denied 427 U.S. 904, 96 S.Ct. 3190, 49 L.Ed.2d 1198; United States v. Maryland (5th Cir. 1973) 479 F.2d 566, 568; Robinson v. Parratt (D.Neb.1976) 421 F.Supp. 664, 668-69, aff’d., 8th Cir., 546 F.2d 764. The judgment of the district court is accordingly AFFIRMED. . United States v. Worthington (5th Cir. 1977) 544 F.2d 1275, 1280, n. 3, U.S. appeal pending; United States v. Maslanka (5th Cir. 1974) 501 F.2d 208, 213, n. 10, cert. denied 421 U.S. 912, 95 S.Ct. 1567, 43 L.Ed.2d 777 (“[t]o require an officer to risk his life in order to make an investigatory stop would run contrary to the intent of Terry v. Ohio * * *.”); United States v. Russell (9th Cir. 1976) 546 F.2d 839, 841 (Wright, J., concurring); United States v. Richards (9th Cir. 1974) 500 F.2d 1025, 1028, cert. denied 420 U.S. 924, 95 S.Ct. 1118, 43 L.Ed.2d 393. . See, United States v. Magda (2d Cir. 1976) 547 F.2d 756, 758: “The Terry Court found that the governmental interest in crime prevention and detection would permit a police officer in appropriate circumstances to ‘approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.’ ” Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:

sc_certreason

C

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. 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 reason, if any, does the court give for granting the petition for certiorari? A. case did not arise on cert or cert not granted B. federal court conflict C. federal court conflict and to resolve important or significant question D. putative conflict E. conflict between federal court and state court F. state court conflict G. federal court confusion or uncertainty H. state court confusion or uncertainty I. federal court and state court confusion or uncertainty J. to resolve important or significant question K. to resolve question presented L. no reason given M. other reason Answer:

sc_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. ZINERMON et al. v. BURCH No. 87-1965. Argued October 11, 1989 Decided February 27, 1990 Blackmun, J., delivered the opinion of the Court, in which Brennan, White, Marshall, and Stevens, JJ., joined. O’Connor, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia and Kennedy, JJ., joined, post, p. 139. Louis F. Hubener, Assistant Attorney General of Florida, argued the cause for petitioners. With him on the briefs was Robert A. Butterworth, Attorney General. Richard M. Poivers argued the cause and filed a brief for respondent. Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Leon Friedman and Steven R. Shapiro; and for the American Orthopsychiatric Association et al. by John Toimisend Rich, James E. Kaplan, Ruth L. Henning, and Leonard S. Rubenstein. Justice Blackmun delivered the opinion of the Court. I Respondent Darrell Burch brought this suit under 42 U. S. C. §1983 (1982 ed.) against the 11 petitioners, who are physicians, administrators, and staff members at Florida State Hospital (FSH) in Chattahoochee, and others. Respondent alleges that petitioners deprived him of his liberty, without due process of law, by admitting him to FSH as a “voluntary” mental patient when he was incompetent to give informed consent to his admission. Burch contends that in his case petitioners should have afforded him procedural safeguards required by the Constitution before involuntary commitment of a mentally ill person, and that petitioners’ failure to do so violated his due process rights. Petitioners argue that Burch’s complaint failed to state a claim under § 1983 because, in their view, it alleged only a random, unauthorized violation of the Florida statutes governing admission of mental patients. Theii? argument rests on Parratt v. Taylor, 451 U. S. 527 (1981) (overruled in part not relevant here, by Daniels v. Williams, 474 U. S. 327, 330-331 (1986)), and Hudson v. Palmer, 468 U. S. 517 (1984), where this Court held that a deprivation of a constitutionally protected property interest caused by a state employee’s random, unauthorized conduct does not give rise to a § 1983 procedural due process claim, unless the State fails to provide an adequate postdeprivation remedy. The Court in those two cases reasoned that in a situation where the State cannot predict and guard in advance against a deprivation, a postdeprivation tort remedy is all the process the State can be expected to provide, and is constitutionally sufficient. In the District Court, petitioners did not file an answer to Burch’s complaint. They moved, instead, for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The court granted that motion, pointing out that Burch did not contend that Florida’s statutory procedure for mental health placement was inadequate to ensure due process, but only that petitioners failed to follow the state procedure. Since the State could not have anticipated or prevented this unauthorized deprivation of Burch’s liberty, the District Court reasoned, there was no feasible predeprivation remedy, and, under Parratt and Hudson, the State’s postdeprivation tort remedies provided Burch with all the process that was due him. On appeal, an Eleventh Circuit panel affirmed the dismissal; it, too, relied on Parratt and Hudson. Burch v. Apalachee Community Mental Health Services, Inc., 804 F. 2d 1549 (1986). The Court of Appeals, however, upon its own motion, ordered rehearing en banc. 812 F. 2d 1339 (1987). On that rehearing, the Eleventh Circuit reversed the District Court and remanded the case. 840 F. 2d 797 (1988). Since Burch did not challenge the constitutional adequacy of Florida’s statutory procedure, the court assumed that that procedure constituted the process he was due. Id., at 801, n. 8. A plurality concluded that Parratt did not apply because the State could have provided predeprivation remedies. 840 F. 2d, at 801-802. The State had given petitioners the authority to deprive Burch of his liberty, by letting them determine whether he had given informed consent to admission. Petitioners, in the plurality’s view, were acting as the State, and since they were in a position to give Burch a hearing, and failed to do so, the State itself was in a position to provide predeprivation process, and failed to do so. Five judges dissented on the ground that the case was controlled by Parratt and Hudson. 840 F. 2d, at 810-814. This Court granted certiorari to resolve the conflict — so evident in the divided views of the judges of the Eleventh Circuit — that has arisen in the Courts of Appeals over the proper scope of the Parratt rule. 489 U. S. 1064 (1989). Because this case concerns the propriety of a Rule 12(b)(6) dismissal, the question before us is a narrow one. We decide only whether the Parratt rule necessarily means that Burch’s complaint fails to allege any deprivation of due process, because he was constitutionally entitled to nothing more than what he received — an opportunity to sue petitioners in tort for his allegedly unlawful confinement. The broader questions of what procedural safeguards the Due Process Clause requires in the context of an admission to a mental hospital, and whether Florida’s statutes meet these constitutional requirements, are not presented in this case. Burch did not frame his action as a challenge to the constitutional adequacy of Florida’s mental health statutes. Both before the Eleventh Circuit and in his brief here, he disavowed any challenge to the statutes themselves and restricted his claim to the contention that petitioners’ failure to provide constitutionally adequate safeguards in his case violated his due process rights. II A For purposes of review of a Rule 12(b)(6) dismissal, the factual allegations of Burch’s complaint are taken as true. Burch’s complaint, and the medical records and forms attached to it as exhibits, provide the following factual background: On December 7, 1981, Burch was found wandering along a Florida highway, appearing to be hurt and disoriented. He was taken to Apalachee Community Mental Health Services (ACMHS) in Tallahassee. ACMHS is a private mental health care facility designated by the State to receive patients suffering from mental illness. Its staff in their evaluation forms stated that, upon his arrival at ACMHS, Burch was hallucinating, confused, and psychotic and believed he was “in heaven.” Exhibit B-l to Complaint. His face and chest were bruised and bloodied, suggesting that he had fallen or had been attacked. Burch was asked to sign forms giving his consent to admission and treatment. He did so. He remained at ACMHS for three days, during which time the facility’s staff diagnosed his condition as paranoid schizophrenia and gave him psychotropic medication. On December 10, the staff found that Burch was “in need of longer-term stabilization,” Exhibit B-2 to Complaint, and referred him to FSH, a public hospital owned and operated by the State as a mental health treatment facility. Later that day, Burch signed forms requesting admission and authorizing treatment at FSH. Exhibits C-l and C-2 to Complaint. He was then taken to FSH by a county sheriff. Upon his arrival at FSH, Burch signed other forms for voluntary admission and treatment. One form, entitled “Request for Voluntary Admission,” recited that the patient requests admission for “observation, diagnosis, care and treatment of [my] mental condition,” and that the patient, if admitted, agrees “to accept such treatment as may be prescribed by members of the medical and psychiatric staff in accordance with the provisions of expressed and informed consent.” Exhibit E-l to Complaint. Two of the petitioners, Janet V. Potter and Marjorie R. Parker, signed this form as witnesses. Potter is an accredited records technician; Parker’s job title does not appear on the form. On December 23, Burch signed a form entitled “Authorization for Treatment.” This form stated that he authorized “the professional staff of [FSH] to administer treatment, except electroconvulsive treatment”; that he had been informed of “the purpose of treatment; common side effects thereof; alternative treatment modalities; approximate length of care”; and of his power to revoke consent to treatment; and that he had read and fully understood the Authorization. Exhibit E-5 to Complaint. Petitioner Zinermon, a staff physician at FSH, signed the form as the witness. On December 10, Doctor Zinermon wrote a “progress note” indicating that Burch was “refusing to cooperate,” would not answer questions, “appears distressed and confused,” and “related that medication has been helpful.” Exhibit F-8 to Complaint. A nursing assessment form dated December 11 stated that Burch was confused and unable to state the reason for his hospitalization and still believed that “[t]his is heaven.” Exhibits F-3 and F-4 to Complaint. Petitioner Zinermon on December 29 made a further report on Burch’s condition, stating that, on admission, Burch had been “disoriented, semi-mute, confused and bizarre in appearance and thought,” “not cooperative to the initial interview,” and “extremely psychotic, appeared to be paranoid and hallucinating.” The doctor’s report also stated that Burch remained disoriented, delusional, and psychotic. Exhibit F-5 to Complaint. Burch remained at FSH until May 7, 1982, five months after his initial admission to ACMHS. During that time, no hearing was held regarding his hospitalization and treatment. After his release, Burch complained that he had been admitted inappropriately to FHS and did not remember signing a voluntary admission form. His complaint reached the Florida Human Rights Advocacy Committee of the State’s Department of Health and Rehabilitation Services (Committee). The Committee investigated and replied to Burch by letter dated April 4, 1984. The letter stated that Burch in fact had signed a voluntary admission form, but that there was “documentation that you were heavily medicated and disoriented on admission and . . . you were probably not competent to be signing legal documents.” Exhibit G to Complaint. The letter also stated that, at a meeting of the Committee with FSH staff on August 4, 1983, “hospital administration was made aware that they were very likely asking medicated clients to make decisions at a time when they were not mentally competent.” Ibid. In February 1985, Burch .filed a complaint in the United States District Court for the Northern District of Florida. He alleged, among other things, that ACMHS and the 11 individual petitioners, acting under color of Florida law, and “by and through the authority of their respective positions as employees at FSH ... as part of their regular and official employment at FSH, took part in admitting Plaintiff to FSH as a ‘voluntary’ patient.” App. to Pet. for Cert. 200. Specifically, he alleged: “Defendants, and each of them, knew or should have known that Plaintiff was incapable of voluntary, knowing, understanding and informed consent to admission and treatment at FSH.' See Exhibit G attached hereto and incorporated herein. [] Nonetheless, Defendants, and each of them, seized Plaintiff and against Plaintiff’s will confined and imprisoned him and subjected him to involuntary commitment and treatment for the period from December 10, 1981, to May 7, 1982. For said period of 149 days, Plaintiff was without the benefit of counsel and no hearing of any sort was held at which he could have challenged his involuntary admission and treatment at FSH. “. . . Defendants, and each of them, deprived Plaintiff of his liberty without due process of law in contravention of the Fourteenth Amendment to the United States Constitution. Defendants acted with willful, wanton and reckless disregard of and indifference to Plaintiff’s Constitutionally guaranteed right to due process of law.” Id., at 201-202. B Burch’s complaint thus alleges that he was admitted to and detained at FSH for five months under Florida’s statutory provisions for “voluntary” admission. These provisions are part of a comprehensive statutory scheme under which a person may be admitted to a mental hospital in several different ways. First, Florida provides for short-term emergency admission. If there is reason to believe that a person is mentally ill and likely “to injure himself or others” or is in “need of care or treatment and lacks sufficient capacity to make a responsible application on his own behalf,” he may immediately be detained for up to 48 hours. Fla. Stat. §394.463(l)(a) (1981). A mental health professional, a law enforcement officer, or a judge may effect an emergency admission. After 48 hours, the patient is to be released unless he “voluntarily gives express and informed consent to evaluation or treatment,” or a proceeding for court-ordered evaluation or involuntary placement is initiated. §394.463(l)(d). Second, under a court order a person may be detained at a mental health facility for up to five days for evaluation, if he is likely “to injure himself or others” or if he is in “need of care or treatment which, if not provided, may result in neglect or refusal to care for himself and . . . such neglect or refusal poses a real and present threat of substantial harm to his well-being.” § 394.463(2)(a). Anyone may petition for a court-ordered evaluation of a person alleged to meet these criteria. After five days, the patient is to be released unless he gives “express and informed consent” to admission and treatment, or unless involuntary placement proceedings are initiated. § 394.463(2)(e). Third, a person may be detained as an involuntary patient, if he meets the same criteria as for evaluation, and if the facility administrator and two mental health professionals recommend involuntary placement. §§ 394.467(1) and (2). Before involuntary placement, the patient has a right to notice, a judicial hearing, appointed counsel, access to medical records and personnel, and an independent expert examination. § 394.467(3). If the court determines that the patient meets the criteria for involuntary placement, it then decides whether the patient is competent to consent to treatment. If not, the court appoints a guardian advocate to make treatment decisions. §394.467(3)(a). After six months, the facility must either release the patient, or seek a court order for continued placement by stating the reasons therefor, summarizing the patient’s treatment to that point, and submitting a plan for future treatment. §§394.467(3) and (4). Finally, a person may be admitted as a voluntary patient. Mental hospitals may admit for treatment any adult “making application by express and informed consent,” if he is “found to show evidence of mental illness and to be suitable for treatment.” §394.465(l)(a). “Express and informed consent” is defined as “consent voluntarily given in writing after sufficient explanation and disclosure ... to enable the person . . . to make a knowing and willful decision without any element of force, fraud, deceit, duress, or other form of constraint or coercion.” §394.455(22). A voluntary patient may request discharge at any time. If he does, the facility administrator must either release him within three days or initiate the involuntary placement process. §394.465(2)(a). At the time of his admission and each six months thereafter, a voluntary patient and his legal guardian or representatives must be notified in writing of the right to apply for a discharge. §394.465(3). Burch, in apparent compliance with §394.465(1), was admitted by signing forms applying for voluntary admission. He alleges, however, that petitioners violated this statute in admitting him as a voluntary patient, because they knew or should have known that he was incapable of making an informed decision as to his admission. He claims that he was entitled to receive the procedural safeguards provided by Florida’s involuntary placement procedure, and that petitioners violated his due process rights by failing to initiate this procedure. The question presented is whether these allegations suffice to state a claim under § 1983, in light of Parratt and Hudson. Ill A To understand the background against which this question arises, we return to the interpretation of § 1983 articulated in Monroe v. Pape, 365 U. S. 167 (1961) (overruled in part not relevant here, by Monell v. New York City Dept. of Social Services, 436 U. S. 658, 664-689 (1978)). In Monroe, this Court rejected the view that § 1983 applies only to violations of constitutional rights that are authorized by state law, and does not reach abuses of state authority that are forbidden by the State’s statutes or Constitution or are torts under the State’s common law. It explained that § 1983 was intended not only to “override” discriminatory or otherwise unconstitutional state laws, and to provide a remedy for violations of civil rights “where state law was inadequate,” but also to provide a federal remedy “where the state remedy, though adequate in theory, was not available in practice.” 365 U. S., at 173-174. The Court said: “It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.” Id., at 183. Thus, overlapping state remedies are generally irrelevant to the question of the existence of a cause of action under § 1983. A plaintiff, for example, may bring a §1983 action for an unlawful search and seizure despite the fact that the search and seizure violated the State’s Constitution or statutes, and despite the fact that there are common-law remedies for trespass and conversion. As was noted in Monroe, in many cases there is “no quarrel with the state laws on the books,” id., at 176; instead, the problem is the way those laws are or are not implemented by state officials. This general rule applies in a straightforward way to two of the three kinds of § 1983 claims that may be brought against the State under the Due Process Clause of the Fourteenth Amendment. First, the Clause incorporates many of the specific protections defined in the Bill of Rights. A plaintiff may bring suit under § 1983 for state officials’ violation of his rights to, e. g., freedom of speech or freedom from unreasonable searches and seizures. Second, the Due Process Clause contains a substantive component that bars certain arbitrary, wrongful government actions “regardless of the fairness of the procedures used to implement them.” Daniels v. Williams, 474 U. S., at 331. As to these two types of claims, the constitutional violation actionable under §1983 is complete when the wrongful action is taken. Id., at 338 (Stevens, J., concurring in judgments). A plaintiff, under Monroe v. Pape, may invoke § 1983 regardless of any state-tort remedy that might be available to compensate him for the deprivation of these rights. The Due Process Clause also encompasses a third type of protection, a guarantee of fair procedure. A § 1983 action may be brought for a violation of procedural due process, but here the existence of state remedies is relevant in a special sense. In procedural due process claims, the deprivation by state action of a constitutionally protected interest in “life, liberty, or property” is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law. Parratt, 451 U. S., at 537; Carey v. Piphus, 435 U. S. 247, 259 (1978) (“Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property”). The constitutional violation actionable under §1983 is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process. Therefore, to determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate. This inquiry would examine the procedural safeguards built into the statutory or administrative procedure of effecting the deprivation, and any remedies for erroneous deprivations provided by statute or tort law. In this case, Burch does not claim that his confinement at FSH violated any of the specific guarantees of the Bill of Rights. Burch’s complaint could be read to include a substantive due process claim, but that issue was not raised in the petition for certiorari, and we express no view on whether the facts Burch alleges could give rise to such a claim. The claim at issue falls within the third, or procedural, category of § 1983 claims based on the Due Process Clause. B Due process, as this Court often has said, is a flexible concept that varies with the particular situation. To determine what procedural protections the Constitution requires in a particular case, we weigh several factors: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U. S. 319, 335 (1976). Applying this test, the Court usually has held that the Constitution requires some kind of a hearing before the State deprives a person of liberty or property. See, e. g., Cleveland Board of Education v. Loudermill, 470 U. S. 532, 542 (1985) (“i[T]he root requirement’ of the Due Process Clause” is “ That an individual be given an opportunity for a hearing before he is deprived of any significant protected interest’”; hearing required before termination of employment (emphasis in original)); Parham v. J. R., 442 U. S. 584, 606-607 (1979) (determination by neutral physician whether statutory admission standard is met required before confinement of child in mental hospital); Memphis Light, Gas & Water Div. v. Craft, 436 U. S. 1, 18 (1978) (hearing required before cutting off utility service); Goss v. Lopez, 419 U. S. 565, 579 (1975) (at minimum, due process requires “some kind of notice and . . . some kind of hearing” (emphasis in original); informal hearing required before suspension of students from public school); Wolff v. McDonnell, 418 U. S. 539, 557-558 (1974) (hearing required before forfeiture of prisoner’s good-time credits); Fuentes v. Shevin, 407 U. S. 67, 80-84 (1972) (hearing required before issuance of writ allowing repossession of property); Goldberg v. Kelly, 397 U. S. 254, 264 (1970) (hearing required before termination of welfare benefits). In some circumstances, however, the Court has held that a statutory provision for a postdeprivation hearing, or a common-law tort remedy for erroneous deprivation, satisfies due process. See, e. g., Logan v. Zimmerman Brush Co., 455 U. S. 422, 436 (1982) (“ ‘[T]he necessity of quick action by the State or the impracticality of providing any predeprivation process’” may mean that a postdeprivation remedy is constitutionally adequate, quoting Parratt, 451 U. S., at 539); Memphis Light, 436 U. S., at 19 (“[W]here the potential length or severity of the deprivation does not indicate a likelihood of serious loss and where the procedures . . . are sufficiently reliable to minimize the risk of erroneous determination,” a prior hearing may not be required); Ingraham v. Wright, 430 U. S. 651, 682 (1977) (hearing not required before corporal punishment of junior high school students); Mitchell v. W. T. Grant Co., 416 U. S. 600, 619-620 (1974) (hearing not required before issuance of writ to sequester debtor’s property). This is where the Pan-att rule comes into play. Parratt and Hudson represent a special case of the general Mathews v. Eldridge analysis, in which postdeprivation tort remedies are all the process that is due, simply because they are the only remedies the State could be expected to provide. In Parratt, a state prisoner brought a § 1983 action because prison employees negligently had lost materials he had ordered by mail. The prisoner did not dispute that he had a postdeprivation remedy. Under state law, a tort-claim procedure was available by which he could have recovered the value of the materials. 451 U. S., at 543-544. This Court ruled that the tort remedy was all the process the prisoner was due, because any predeprivation procedural safeguards that the State did provide, or could have provided, would not address the risk of this kind of deprivation. The very nature of a negligent loss of property made it impossible for the State to predict such deprivations and provide predeprivation process. The Court explained: “The justifications which we have found sufficient to uphold takings of property without any predeprivation process are applicable to a situation such as the present one involving a tortious loss of a prisoner’s property as a result of a random and unauthorized act by a state employee. In such a case, the loss is not a result of some established state procedure and the State cannot predict precisely when the loss will occur. It is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place.” Id., at 541. Given these special circumstances, it was clear that the State, by making available a tort remedy that could adequately redress the loss, had given the prisoner the process he was due. Thus, Parratt is not an exception to the Mathews balancing test, but rather an application of that test to the unusual case in which one of the variables in the Mathews equation — the value of predeprivation safeguards — is negligible in preventing the kind of deprivation at issue. Therefore, no matter how significant the private interest at stake and the risk of its erroneous deprivation, see Mathews, 424 U. S., at 335, the State cannot be required constitutionally to do the impossible by providing predeprivation process. In Hudson, the Court extended this reasoning to an intentional deprivation of property. A prisoner alleged that, during a search of his prison cell, a guard deliberately and maliciously destroyed some of his property, including legal papers. Again, there was a tort remedy by which the prisoner could have been compensated. 468 U. S., at 534-535. In Hudson, as in Parratt, the state official was not acting pursuant to any established state procedure, but, instead, was apparently pursuing a random, unauthorized personal vendetta against the prisoner. 468 U. S., at 521, n. 2, 532. The Court pointed out: “The state can no more anticipate and control in advance the random and unauthorized intentional conduct of its employees than it can anticipate similar negligent conduct.” Id., at 533. Of course, the fact that the guard’s conduct was intentional meant that he himself could “foresee” the wrongful deprivation and could prevent it simply by refraining from his misconduct. Nonetheless, the Court found that an individual state employee’s ability to foresee the deprivation is “of no consequence,” because the proper inquiry under Parratt is “whether the state is in a position to provide for predeprivation process.” 468 U. S., at 534 (emphasis added). C Petitioners argue that the dismissal under Rule 12(b)(6) was proper because, as in Parratt and Hudson, the State could not possibly have provided predeprivation process to prevent the kind of “random, unauthorized” wrongful deprivation of liberty Burch alleges, so the postdeprivation remedies provided by Florida’s statutory and common law necessarily are all the process Burch was due. Before turning to that issue, however, we must address a threshold question raised by Burch. He argues that Parratt and Hudson cannot apply to his situation, because those cases are limited to deprivations of property, not liberty. Burch alleges that he was deprived of his liberty interest in avoiding confinement in a mental hospital without either informed consent or the procedural safeguards of the involuntary placement process. Petitioners do not seriously dispute that there is a substantial liberty interest in avoiding confinement in a mental hospital. See Vitek v. Jones, 445 U. S. 480, 491-492 (1980) (commitment to mental hospital entails “ ‘a massive curtailment of liberty,’ ” and requires due process protection); Parham v. J. R., 442 U. S., at 600 (there is a “substantial liberty interest in not being confined unnecessarily for medical treatment”); Addington v. Texas, 441 U. S. 418, 425 (1979) (“[C]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection”); Jackson v. Indiana, 406 U. S. 715, 738 (1972) (due process requires at least that the nature and duration of commitment to a mental hospital “bear some reasonable relation to the purpose” of the commitment). Burch’s confinement at FSH for five months without a hearing or any other procedure to determine either that he validly had consented to admission, or that he met the statutory standard for involuntary placement, clearly infringes on this liberty interest. Burch argues that postdeprivation tort remedies are never constitutionally adequate for a deprivation of liberty, as opposed to property, so the Parratt rule cannot apply to this case. We, however, do not find support in precedent for a categorical distinction between a deprivation of liberty and one of property. See Lynch v. Household Finance Corp., 405 U. S. 538, 552 (1972) (“[T]he dichotomy between personal liberties and property rights is a false one”); Wolff, 418 U. S., at 557-558 (a hearing is generally required before final deprivation of property interests, and “a person’s liberty is equally protected”). In Parratt itself, the Court said, 451 U. S., at 542, that its analysis was “quite consistent with the approach taken” in Ingraham v. Wright, 430 U. S. 651 (1977), a liberty interest case. It is true that Parratt and Hudson concerned deprivations of property. It is also true that Burch’s interest in avoiding five months’ confinement is of an order different from inmate Parratt’s interest in mail-order materials valued at $23.50. But the reasoning of Parratt and Hudson emphasizes the State’s inability to provide predeprivation process because of the random and unpredictable nature of the deprivation, not the fact that only property losses were at stake. In situations where the State feasibly can provide a predeprivation hearing before taking property, it generally must do so regardless of the adequacy of a postdeprivation tort remedy to compensate for the taking. See Loudermill, 470 U. S., at 542; Memphis Light, 436 U. S., at 18; Fuentes, 407 U. S., at 80-84; Goldberg, 397 U. S., at 264. Conversely, in situations where a predeprivation hearing is unduly burdensome in proportion to the liberty interest at stake, see Ingraham, 430 U. S., at 682, or where the State is truly unable to anticipate and prevent a random deprivation of a liberty interest, post-deprivation remedies might satisfy due process. Thus, the fact that a deprivation of liberty is involved in this case does not automatically preclude application of the Parratt rule. To determine whether, as petitioners contend, the Parratt rule necessarily precludes § 1983 liability in this case, we must ask whether predeprivation procedural safeguards could address the risk of deprivations of the kind Burch alleges. To do this, we examine the risk involved. The risk is that some persons who come into Florida’s mental health facilities will apparently be willing to sign forms authorizing admission and treatment, but will be incompetent to give the “express and informed consent” required for voluntary placement under §394.465(l)(a). Indeed, the very nature of mental illness makes it foreseeable that a person needing mental health care will be unable to understand any proffered “explanation and disclosure of the subject matter” of the forms that person is asked to sign, and will be unable “to make a knowing and willful decision” whether to consent to admission. §394.455(22) (definition of informed consent). A person who is willing to sign forms but is incapable of making an informed decision is, by the same token, unlikely to benefit from the voluntary patient’s statutory right to request discharge. See §394.465(2)(a). Such a person thus is in danger of being confined indefinitely without benefit of the procedural safeguards of the involuntary placement process, a process specifically designed to protect persons incapable of looking after their own interests. See §§394.467(2) and (3) (providing for notice, judicial hearing, counsel, 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_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". UNITED STATES of America, Appellee, v. Russell W. BARRETT, et al., Appellants. No. 15090. United States Court of Appeals, Fourth Circuit. Argued Feb. 2, 1971. Decided May 5, 1971. William Bruce Hoff, Parkersburg, W. Va. (William W. Gracey, Parkersburg, W. Va., on brief) for appellants. Ronald R. Glancz, Atty., Dept, of Justice, (L. Patrick Gray, III, Asst. Atty. Gen., and Robert V. Zener, Atty., Dept, of Justice, and Paul C. Camilletti, U. S. Atty., on brief) for appellee. Before BRYAN and BUTZNER, Circuit Judges, and MILLER, District Judge. ALBERT V. BRYAN, Circuit Judge: Under the United States Housing Act of 1937, as amended, 42 U.S.C. § 1401 et seq., the Parkersburg (West Virginia) Housing Authority entered into the requisite contracts to secure the aid of the United States in the construction of a low-rent housing project. This suit was brought in Federal court by the United States to confirm the exercise of the prerogative it reserved in the contracts, to take over completion of the project whenever the right of the Authority to enter into the agreements is questioned. Such a challenge to the legal status of the Authority was issued in a State court action initiated by Russell W. Barrett, et al., residents of the City of Park-ersburg. The charges levelled were that the Authority had no cognizable existence, either de jure or de facto, and therefore the project contracts were invalid. A judicial declaration to that effect and an injunction against construction of the project were sought in a West Virginia Circuit Court. Suit was then instituted in Federal court by the United States to enjoin prosecution of the State court action. The District Court upheld the Government’s position — that it legally undertook completion of the project after the Authority’s contracting powers had been assailed in the State suit. The State court plaintiffs were enjoined by the District Court from maintaining their action on the grounds that the pending litigation severely hampered obtaining private capital for the Federal project. On the appeal from this decision, we affirm. The scheme of the Act was closely followed by the City of Parkersburg. First, it signed a Cooperation Agreement on January 2, 1968 with the Authority, in which the latter covenanted to open negotiations with the Government for loans and annual contributions for building 300 low-rent housing units. In this instrument the City also promised to extend certain privileges necessary for the operation of the project. The undertaking was part of the Government’s “turnkey” program. It is best described in the Government regulations, 24 CFR 1520.6(b), as follows: “Under the ‘turnkey’ technique, a private developer or builder, who has a site or an option, or can obtain one, can approach the Local Authority with a proposal to build [low-rent housing] in accordance with plans and specifications prepared by his own architect and the usual commercial standards of quality and workmanship. If the proposal is acceptable, they will then enter into a contract under which the Local Authority agrees to purchase the completed property. This contract is backed by [Government] financial assistance commitment to the Local Authority, thereby enabling the developer to secure commercial construction financing in his usual manner. * * * ” Next, a local contractor, Theodore Mor-lang, was selected as the project developer, and approved by the Government. He entered into a sales and purchase contract with the Authority. Section 9 of the Act, 42 U.S.C. § 1409, authorizes the Government to “make loans to public-housing agencies to assist the development, acquisition, or administration of low-rent-housing or slum-clearance projects by such agencies”. Provision is made in Section 10(a), 42 U.S.C. § 1410(a), for “Annual Contributions” by the Government to public housing agencies to allow consummation of the project undertaking. On June 19, 1968 the Authority executed with the Government an Annual Contributions Contract. Section 22(a), 42 U.S.C. § 1421a(a), allows the Government to assume the title to a project in the event of a “substantial default” by the Authority. Inclusion of the following provision in an Annual Contributions Contract — and here it was included — is permitted: “upon the occurrence of a substantial default in respect to the covenants or conditions to which the public housing agency is subject (as such substantial default shall be defined in such contract), the public housing agency shall be obligated at the option of the * * * [Government], either to convey title in any case where, in the determination of the * * * [Government] (which determination shall be final and conclusive), such conveyance of title is necessary to achieve the purposes of this chapter, or to deliver possession to the * * * [Government] of the project, as then constituted, to which such contract relates: * * *” 42 U.S.C. § 1421a(a) (1). Substantial default was defined in the instant contract as follows : “ * * * if the power or right of the Local Authority to * * * enter into the Contract of Sale is drawn into question in any legal proceedings, * * * the occurrence of any such event, if the seller is not in default, shall constitute a Substantial Default * * * and, in such case, the Government will continue the undertaking of the Project and will take delivery of such right, title or interest in the Project as the Local Authority may have and perform such * * * Contract of Sale * * *. The provisions of this paragraph are made with, and for the benefit of, the seller and his assignees who will have been specifically approved by the Government prior to such assignment.” In this contract and in the contract of sale between the developer, Theodore Morlang, and the Authority, the latter represented that it was a duly and legally organized body corporate and politic, and empowered to execute the agreement. The contract of sale stipulated that a breach of the warranty would be deemed a substantial default under the sales contract and also under the Annual Contributions Contract. Such a default would occur, according to the sales contract, “if the power or right of the Purchaser [the Authority] to enter into this Agreement is thrown into question in any legal proceeding”. As the institution of the action in the State court on July 19, 1968 questioned the power and right of the Authority to contract with the Government, the latter declared the Authority in default pursuant to the terms of the contracts. The Authority was then required to assign its interest in the contract of sale to the Government. The assignment was executed on December 6, 1968. Morlang, the project developer, was asked to accept the Government as his obligor in the stead of the Authority. This he did by attornment on December 20, 1968. The consequences were that the Government thereupon became bound to support completion of the housing project and to purchase it from Morlang thereafter. The contention of the appellants is that the power of the Government to take over the project was dependent upon the validity of its contracts with the Authority. If they were not valid, then the Government had no right to require transfer of the project pursuant to the substantial default provisions. The thrust of the accusation is that the Authority was illegally established and therefore incapable of executing a binding contract. Plaintiffs point to the creation in 1937 of an Authority under a 1933 Act of the West Virginia legislature, W.Va.Code of 1937 § 1409(58). This statute authorized a municipality to create an Authority, as was done in Parkersburg. The provisions of the 1933 Act, we are told, were superseded by an Act passed in 1941, which is still in effect. W.Va.Code § 1409(58). The later Act, it is said, recognized the original Authority, continued it in being indefinitely beyond 1941 and countenanced only one Authority in a city. From this the appellants argue that the Authority now contracting with the Government, which was named in April 1967, has no legal existence. Plaintiffs, therefore, conclude that only the original Authority created in 1937 could contract with the Government, and that the present or second Authority is wholly impotent, inasmuch as there was no legislative provision for two Authorities. The answer to this contention is readily summarized. The municipal council of Parkersburg purported to act in April 1967 under the 1933 West Virginia statute in setting up the present Authority. The 1941 statute vested in the State legislature the power to create an Authority, limiting the municipality to the appointment of members, but it expressly preserved the existence of any Authority established under the 1933 law. We construe the action of the municipal council in April 1967 as not creating an additional Authority, but rather reactivating the original. That this was the council’s intention is confirmed by the fact, as the record discloses, that at the time of its April action there were no incumbents in the membership of the Authority created in 1933, the last appointment apparently having been made in 1940, to expire in 1946. The council simply filled these positions. In fine, we think that the Parkersburg Housing Authority was a legal entity capable of executing the instant contracts. Accordingly, the Government was fully authorized to take over the Parkers-burg project, and we approve its actions in this regard. The suit in the State court jeopardized advancement of the project by clouding the financial responsibility of the Authority in the eyes of creditors and subcontractors. It thus tended to defeat the purpose and policy of the Congress in furnishing low-rent housing to citizens deserving of this help. 42 U.S.C. § 1401. The District Court recognized these threats, and rightly enjoined prosecution of the State court proceeding. We have no doubt that a Federal court may enjoin State court actions which imperil the “superior federal interest” embodied in the United States Housing Act and the Parkersburg project. Leiter Minerals, Inc., v. U. S., 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267 (1957). Affirmed. . To avoid confusion and repetition in referring to the municipal and Ifederal ageneies, we have used “Authority” as meaning the City’s agency and “Government” as including all of the agencies of the United States involved in effectuating the Act. 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_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". INTERSTATE ENGINEERING CO., Inc., et al. v. DISTRICT OF COLUMBIA, to Use of ALCO PRODUCTS, Inc. No. 7435. United States Court of Appeals for tlie District of Columbia. Argued March 7, 1940. Decided April 29, 1940. Robert E. Lynch, of Washington, D. C., for appellants. Charles Dickerman Williams, of New York City, and Richard H. Wilmer and Douglas L. Hatch, both of Washington, D. C., for appellee. Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices. GRONER, C. J. This is an action brought in the District Court by Aleo Products, Incorporated (ap-pellee), against Interstate Engineering Company, Inc., and New Amsterdam Casualty Company, its surety (appellants), for the balance of the purchase price of steel pipe sold and delivered by Aleo to Interstate for use in a public improvement in the District of Columbia, pursuant to a proposal made by Aleo June 14, 1934, and confirmed September 20, 1934. The agreement provided for payment in full “not later than 200 days from date of'first shipment”. Shipments began November 20, 1934, and were completed in December, 1934. Interstate admitted receipt of the pipe, but sought to diminish the amount due therefor by claiming damages caused by delay in delivery. The lower court instructed the jury to find for the plaintiff in the full amount of the claim, with interest. On this appeal, Interstate and the surety company charge error in the admission by the court in evidence of a series of letters from Aleo showing demands for payment and from Interstate in acknowledgment of tlie indebtedness. Also in the refusal of the court to direct a verdict in favor of Interstate, and in instructing the jury in favor of Aleo. The grounds of Interstate’s objections to the. letters do not appear in the record, but we have examined the correspondence and are of opinion that all of it was relevant and properly a part of plaintiff’s case. In addition to this, the correspondence showed express admissions by Interstate relevant and proper in denial of its counterclaim. Appellants’ main argument on this appeal is that the court erred in directing a verdict for appellee “on the theory of an account stated”. The basis of this argument is that the court, in directing a verdict for the plaintiff, said: “ * * * the defendant accepted the bills which the plaintiff rendered for the materials shipped, and agreed to pay those hills in full, making no claim or objection to them; so that this defendant must be treated as having assented to the bills rendered, or the bills rendered ha ve become, as we say, an account stated, not subject to objection later.” Appellants insist the theory that the suit was brought on an account stated is not responsive to the pleadings. I f that was ihe theory of the decision, undoubtedly appellants are correct, for an account stated is treated as a new contract and is not necessarily conclusive of claims not intended to be. covered. Willis ton on Contracts (2d Ed.), §§ 1862, 1864; Stearns Company v. United States, 291 U.S. 54, 65, 54 S.Ct. 325, 78 L.Ed. 647; Chinn v. Lewin, 57 App.D.C. 16, 16 F.2d 512, 40 A.L.R. 1480. But we think the court’s language was not intended in a technical sense but merely as a method of conveying to the jury the idea that defendant, having received the pipe and thereafter without objection having agreed to pay for it, was presumed to have assented 5o the correctness of the amount due and waived the defenses which nearly two years later it attempted to set up. The use of the words — account stated — was merely a figure of speech which, in deference to the jury, the court thought they would likely understand as impelling his action in talcing the case from them. The record shows the shipments of pipe began in November, 1934, and were completed in December, 1934 (except as to an “extra”, subsequently ordered). Plaintiff wrote defendant on January 10, 1935, enclosing statement of account and asking when payment might be expected. Defendant answered this communication January 16, acknowledging the correctness of the account and advising that it expected payment from the District of Columbia within 60 days. Later, on June 4, 1935, defendant wrote plaintiff: “Just as soon as the line has been tested and payment made to us, we will forward you payment in full for this material. “Thanking you for your co-operation in this matter, we are * * * ” Again, on June 17, 1936, defendant wrote: “We are exceedingly pleased to herewith attach Government check #474,567, in the amount of $33,350.35, endorsed to your order to apply on our account. “We are vigorously pressing our claim against the District and we anticipate an early conclusion thereof. The balance of the account will be paid at said time. “In closing, permit us to say that we are very appreciative of the patience which you have displayed.” At no time during' the eighteen months’ correspondence did defendant or its surety intimate the .existence of any counterclaim for damages by delay in receipt of the pipe. While the authorities are not entirely uniform as to what conduct will amount to a waiver of counterclaim for damages, Williston on Contracts, § 704, we are of opinion that the absence of any protest for a period of almost two years, coupled with two written promises in the interim to pay in full, and a substantial payment expressly stated to be “on our account”, are sufficient to show a waiver as a matter of law. Kalamazoo Ice Co. v. Gerber, 6 Cir., 4 F.2d 235; Reid v. Field, 83 Va. 26, 1 S.E. 395; White v. T. W. Little Co., 118 Wash. 582, 204 P. 186; Minneapolis Threshing-Machine Co. v. Hutchins, 65 Minn. 89, 67 N.W. 807; Roby v. Reynolds, 65 Hun 486, 20 N.Y.S. 386. Cf. Restatement of Contracts, § 412. On this branch of the case, we have no doubt the holding of the District Court was correct. This leaves for consideration only the calculation of interest. Appellee admits an inaccuracy of $13 in the computation, and agrees that the court may direct a remittitur as to this excess. With this exception, the computation was correct under the rule in Story v. Livingston, 13 Pet. 359, 10 L.Ed. 200. The judgment of the lower court is, therefore, affirmed, subject to the remittitur mentioned above. Affirmed. The question of waiver is now controlled by D.C.Code (Supp. Y), Tit. II, § 105), which is § 49 of tlie Uniform Sales Act, enacted for the District of Columbia in 1987, after the transactions involved in this case. 50 Stat. 29. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:

songer_source

F

What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals. Homer R. SYKES, Petitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR and Itmann Coal Company, a corporation, Respondents. No. 85-1441. United States Court of Appeals, Fourth Circuit. Argued November 11, 1986. Decided March 3, 1987. W. Richard Staton, D. Grove Moler, Moler & Staton, Mullens, W. Va., on brief, for petitioner. Douglas A. Smoot (Jackson, Kelly, Holt & O’Farrell, Charleston, W. Va., on brief), for respondents. Before WIDENER, PHILLIPS and ERVIN, Circuit Judges. ERVIN, Circuit Judge: I. Petitioner Homer Sykes worked in coal mines for over forty years. Prior to 1950, he was a motorman inside the mines. Nearly all of his more recent work occurred above ground as a heavy-equipment operator and mechanic. He retired from his last coal mining job in 1976 because of shortness of breath. Sykes had never lost time working in the mines from respiratory problems or any of his other injuries; he was a dedicated worker who was asked to remain in his position even after retirement age. He testified that his breathing difficulty kept him from staying on the job. In 1972, Sykes was examined and tested for state occupational pneumoconiosis benefits. Three doctors interpreted his x-ray as showing some degree of pneumoconiosis. Pulmonary function studies from that date were just outside the range required for invocation of the federal interim presumption of disability. Sykes received a state award based on a 25% loss of pulmonary capacity. Sykes filed a petition for federal black lung benefits in 1974. He was examined that year by Dr. A.R. Piracha, who found chronic obstructive pulmonary disease with a minimal to moderate level of impairment. An x-ray taken in 1974 was read by a field reader as showing simple pneumoconiosis, q-type, of a 3/3 profusion. The Department of Labor requested another interpretation. A B-reader, Dr. William S. Cole, read simple pneumoconiosis, r-type, of 2/2 profusion. Dr. Cole also found the film to indicate complicated pneumoconiosis, category A. Three years later, the company obtained another reading of the same x-ray from Dr. Paul C. Francke, also a B-reader. Dr. Francke interpreted the film as simple pneumoconiosis, q-type, of a 2/1 profusion. He made no finding of complicated pneumoconiosis. After Dr. Cole’s reading of complicated pneumoconiosis, the Department of Labor determined that Sykes was entitled to benefits under the irrebuttable presumption of § 411(c)(3), 30 U.S.C. § 921(c)(3) (1982). The company controverted the claim, and a hearing was set before an administrative law judge (AU). The company arranged for Sykes to be examined by a physician of its choosing, as provided at 20 C.F.R. § 725.414(a) (1986). Sykes made two trips to this physician, Dr. Willard Pushkin, yielding the ventilatory test results noted supra note 1. But Sykes refused to submit to another x-ray, on the basis of a note from his treating physician, which said that further x-rays could endanger Sykes’ health. Dr. Pushkin noted in his report that Sykes “has shortness of breath with minimal effort,” “has difficulty negotiating a flight of stairs,” has “chronic cough and expectorates mucoid sputum,” and “wheezes and vomits a good deal.” Dr. Pushkin opined that: 1. There is sufficient objective evidence to justify a diagnosis of coal workers’ pneumoconiosis with respect to Mr. Sykes____ 3. Mr. Sykes does not suffer from pulmonary or respiratory impairment, based on blood gas studies, as well as spirometry. II. The AU awarded benefits based on the § 727.203 presumption at the one and only hearing that was ever held. The AU had the x-ray evidence of complicated pneumoconiosis before him, and the central issue in the hearing was whether or not Sykes would get benefits based on the irrebuttable presumption of 30 U.S.C. § 921(c)(3) (1982). The AU decided at the hearing not to consider the evidence of complicated pneumoconiosis because of possible prejudice to the employer in examining Sykes without the benefit of an additional x-ray. But in his written opinion, the AU reversed this decision sua sponte and claimed to have considered and rejected evidence of complicated pneumoconiosis. The change of position between the hearing and the time of the written opinion, and the hearing transcript itself, indicate that the AU felt that Sykes definitely should receive benefits. The AU pegged his holding on the interim presumption rather than the irrebuttable presumption so as to avoid any appearance of prejudice to the employer from its inability to get a new x-ray film. At the hearing, there was little discussion of the other evidence in the case, including the Pushkin report. The AU concluded that the interim presumption was invoked by the x-ray evidence and was not rebutted under 20 C.F.R. § 727.203(b)(2) (miner able to do his usual coal mine work) or § 727.-203(b)(3) (total disability not caused by coal mine employment). The AU considered the Pushkin report in his written opinion, but gave it less than compelling weight. The AU held that the Pushkin opinion “does not tend to affirmatively ‘establish’ the ability or lack of causation required by 727.203(b)” based on the actual wording of the opinion and the fact that its primary conclusion was premised solely on nonqualifying ventilatory and blood gas studies. The Benefits Review Board (BRB or the Board) affirmed the AU’s written treatment of the irrebuttable presumption evidence, but reversed the AU’s finding of entitlement to benefits. The BRB first asserted that the AU completely ignored Dr. Pushkin’s report; the Board then explained that a medical opinion on the severity of pulmonary impairment based on nonqualifying ventilatory or blood gas studies was competent rebuttal evidence. See Sykes v. Itman Coal Co., 2 Black Lung Rep. 1-1089 (1980). The BRB remanded for renewed consideration of the medical evidence in the case on the question of a § 727.203(b)(2) rebuttal. One Board member dissented, urging that the AU’s initial decision did consider the Pushkin report in a way that accorded precisely with this court’s approach to rebuttal of the interim presumption. On remand, the ALT reversed and denied benefits due to Dr. Pushkin’s finding of no pulmonary impairment, while noting that three other doctors came to a different conclusion. None of those other doctors found that Sykes was totally disabled; however, the overall summary of the medical evidence was accurately given by the dissenting BRB member: All nine physicians expressing an opinion on the existence of pneumoconiosis agreed that claimant suffered from pneumoconiosis; ... of six physicians expressing an opinion on the existence of respiratory impairment, five physicians found that claimant suffers from a respiratory impairment; all five physicians expressing an opinion on claimant’s work ability found that claimant had suffered a decrease in capacity to work; and only one physician was selected by the claimant, with all others being referrals by the Department of Labor, West Virginia Occupational Pneumoconiosis Board, or the employer. Id. (dissenting opinion). Nevertheless, the BRB affirmed the denial of benefits in the second instance. III. We agree with the dissenting BRB member: the initial AU decision, awarding benefits, was based on substantial evidence and should not have been vacated. The denial of benefits in this case would work a glaring injustice. The Board chided the AU for ignoring Dr. Pushkin’s report, when in fact the AU considered that report, but properly chose not to give it controlling weight. The AU’s choice of words in describing the Pushkin report was not ideal, but the context of his decision makes clear that he merely refused to credit it above the other reports that indicated the existence of some disability. Dr. Pushkin found that “Mr. Sykes does not suffer from pulmonary or respiratory impair-merit, based on blood gas studies, as well as spirometry” (emphasis added). Considered alongside the other evidence in this case, including the opinion of a B-reader that Mr. Sykes had complicated pneumoconiosis, this statement alone does not compel the conclusion that “the individual is able to do his usual coal mine work or comparable and gainful work.” 20 C.F.R. § 727.-203(b)(2) (1986). While Dr. Pushkin’s statement is probative evidence for a rebuttal under § 727.203(b), it was a mistake for the Board to vacate the AU’s decision and implicitly suggest that, on the basis of Dr. Pushkin’s opinion alone, the interim presumption should be rebutted. Dr. Pushkin’s report fails to mention the exertive requirements of Sykes’ job or the extent to which Sykes’ symptoms would hinder his performing comparable work. A mere finding of “no impairment” under the American Medical Association standards cannot be equated with a finding that a claimant can continue to perform coal mining work. See Sykes v. Itman Coal Co., 2 Black Lung Rep. 1-1089 (1980) (dissenting opinion). At the .least, for an employer to rebut the interim presumption under § 727.203(b)(2), consideration should be given to the health requirements for work comparable to that performed by the claimant. The plain words of the regulation mandate such consideration. By remanding to the AU in this case and suggesting that Dr. Pushkin’s opinion deserved more weight than it was initially given, the Board effectively dictated a result contrary to the one that the AU clearly believed was just. The BRB has taken another position in this case which is contrary to the plain language of the statute. It held that an employer may rebut the interim presumption under § 727.203(b)(2) by showing that a miner, while concededly totally disabled, is not disabled for pulmonary or respiratory reasons. That is, the BRB asserted that a causation requirement may be imported into § 727.203(b)(2). This is belied by the words of the regulation. Section 727.-203(b)(2) is concerned with the question of whether miners are totally disabled for whatever reason. There is no inquiry into causation in a proper § 727.203(b)(2) rebuttal. The reference in that subsection to § 410 merely clarifies the nature of “usual and comparable work”; it does not bring causation into question. Causation is addressed in § 727.203(b)(3). Once the miner’s disability is conceded, then the question arises whether that disability is unrelated to mine work. In the case of Mr. Sykes, a fair reading of the record shows that the ALJ and all who considered his affliction prior to the BRB reversal believed that this miner should receive benefits. The AU struggled with the proper way to award benefits; he might well have proceeded under the irrebuttable presumption initially relied on by the Department of Labor, had not Sykes’ inability to produce another x-ray appeared to block his path. He instead wrote an opinion that relied on the rebut-table presumption and that dealt rather cursorily with all the medical evidence, including that of Dr. Pushkin. There was substantial evidence for his awarding of benefits, and the BRB should not have disturbed this initial decision. Since the Board did vacate the initial decision, with directions that more weight be placed on Dr. Pushkin’s report, the ALJ was left with little choice on remand other than to switch positions and deny benefits. The dissent was correct and the Board in error in Sykes v. Itman Coal Co., 2 Black Lung Rep. 1-1089 (1980). Accordingly, we reverse and remand to the Board with instructions that the ALJ’s initial decision be reinstated. REVERSED. . See 20 C.F.R. § 727.203(a)(2) (1986). Sykes’ 1972 ventilatory study produced an FEV-1 of 2.6 and an MW of 89. According to his medical report, he was 69 inches tall in 1972. The § 727.203(a)(2) qualifying figures for a miner 69 inches tall are an FEV-1 of 2.4 and an MW of 96. By the time of his last available test, by Dr. Pushkin in 1979, Sykes scored an FEV-1 of 2.538 and an MW of 62. His height was then listed as 67 inches. Dr. Pushkin attributed the very low MW score to submaximal effort on the part of Sykes. Counsel for Sykes indicated at oral argument that Sykes had consistently produced qualifying ventilatory test results prior to Dr. Pushkin’s evaluation. However, in the record before us, none of the values are qualifying. All are just above the § 727.203(a)(2) levels. The existence of values that do not qualify to invoke the interim presumption, of course, is not determinative of the question whether a claimant is entitled to benefits. The presumption can be invoked in any of four ways, see 20 C.F.R. § 727.203(a)(1)-(4) (1986), and once invoked, rebuttal must be accomplished under one of the methods at § 727.203(b). . The two subsections read as follows: (b) Rebuttal of interim presumption ... The presumption in paragraph (a) of this section shall be rebutted if: (2) In light of all relevant evidence it is established that the individual is able to do his usual coal mine work or comparable and gainful work (see § 410.412(a)(1) of this title); or (3) The evidence establishes that the total disability or death of the miner did not arise in whole or in part out of coal mine employment. 20 C.F.R. § 727.203(b) (1986). Question: What forum heard this case immediately before the case came to the court of appeals? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Court of Customs & Patent Appeals H. Court of Claims I. Court of Military Appeals J. Tax Court or Tax Board K. Administrative law judge L. U.S. Supreme Court (remand) M. Special DC court (not the US District Court for DC) N. Earlier appeals court panel O. Other P. Not ascertained Answer:

songer_respond2_1_3

E

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the 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. CALCASIEU CHEMICAL CORPORATION, a corporation, and Sears, Roebuck & Company, a corporation, Plaintiffs-Appellants, v. CANAL BARGE COMPANY, Inc., a corporation, the BARGE NBC 924, its tackle, apparel, etc., and the M/V REBAJANE, her engines, tackle, apparel, etc., Defendants-Appellees. No. 16899. United States Court of Appeals Seventh Circuit. Jan. 3, 1969. Rehearing Denied Jan. 23, 1969. William K. Johnson, Warren C. Ingersoll, John E. Corkery, Chicago, Ill., for plaintiffs-appellants; Lord, Bissell & Brook, Chicago, Ill., of counsel. Harvey Wienke, Robert D. Barnes, Chicago, Ill., for defendants-appellees; McBride, Baker, Wienke & Schlosser, Chicago, Ill., of counsel. Before CASTLE, Chief Judge, and SWYGERT and CUMMINGS, Circuit Judges. CASTLE, Chief Judge. On July 6, 1966, plaintiff, Sears, Roebuck and Company (Sears), entered into a charter party or contract of affreightment with defendant, Canal Barge Company, Inc., (Canal), for the transportation by barge of a quantity of ethylene glycol (antifreeze) from Lake Charles, Louisiana, to Berwyn, Illinois. Canal picked up the cargo from plaintiff, Cal-casieu Chemical Corporation, which had sold it to Sears, and transported it to the prescribed destination. Upon arrival at Berwyn, the portion of the cargo carried in one compartment of the barge was found to have been contaminated by 16% water, allegedly due to a negligently leaky cement patch in the barge’s hull. Plaintiffs brought this admiralty action to recover damages arising out of the cargo’s contamination. After answering, Canal moved for and was granted summary judgment on the ground that the charter had been breached by Sears, in that the latter had failed to obtain insurance for the joint account of itself and Canal on the cargo, as the charter required. In plaintiffs’ words, “This appeal is taken to reverse the court’s order granting that judgment on the ground, inter alia, that a genuine issue of material fact remain to be tried.” One of the printed clauses in the charter provided: “Neither the tug, tow, master nor owner shall be liable for any loss of, or damage to, or delay in the delivery thereof, however, arising or resulting, even if caused by negligence or unseaworthiness. Deviation by the owner shall not be a breach of this contract. Insurance against all risks shall be carried by the Charterer on the cargo, and on any craft of Charterer, for the Owner’s and Charterer’s joint account. No underwriter on cargo or on Charterer’s craft shall have any claim, by subrogation, loan receipt or otherwise, against the tug, tow, master or Owner, for any loss paid, regardless of the nature or circumstances thereof, and Charterer’s policies on cargo and on Charterer’s craft shall be claused accordingly.” A further, typewritten clause appearing in the charter provides: “Special Conditions “Barge is to be tendered suitable to load ethylene glycol. Any cleaning at Owner’s expense. All inspection fees for account of the Charterer.” Plaintiffs’ main contention is that the above clause constitutes an express warranty of seaworthiness, a condition precedent, which was not met. At least, plaintiffs claim, the meaning of the clause is ambiguous and requires for its interpretation a finding of the parties’ intent. Therefore, plaintiffs argue, a question of material fact is presented —namely, the intent of the parties — and summary judgment was improper. Defendants, on the other hand, contend that the special condition was clearly intended by the parties to have the limited application of obligating Canal to tender barges whose tanks were sufficiently clean to be suitable to load the cargo, and to pay for all cleaning expenses. Moreover, defendants argue that regardless of the meaning of this provision, the clause requiring Sears to acquire insurance for the joint account of Sears and Canal was unquestionably breached by Sears’ obtaining insurance solely for its own account, and therefore as a matter of law, plaintiffs are precluded from recovery. We believe the District Court properly granted defendants’ motion for summary judgment on the basis of Sears’ breach of the insurance clause. Since there is no doubt as to the intention of the parties in agreeing to that clause, there was no issue of material fact presented, the resolution of which could have changed the outcome of the litigation. Regarding the “Special Conditions” clause relied upon by plaintiffs, we fail to see how the breach of that clause by Canal, if in fact such a breach occurred, would affect the holding rendered below. Even if there is an ambiguity which raised a question of fact, and even if that question could be resolved in favor of plaintiffs — i. e., that Canal breached an obligation to tender a seaworthy craft — plaintiffs are still precluded from recovery as a matter of law since it was Sears’ obligation to insure both itself and Canal against all loss and Sears failed to meet that obligation. As the lower court concluded, “It is clear that had Sears obtained insurance on behalf of itself and Canal covering any Cargo damage, as required by the Charter Party, none of the parties to the instant controversy would have borne the loss of the damaged cargo.” Thus, it was Sears’ own breach of the charter which occasioned its loss, and it is therefore precluded from recovering that loss from defendant. To hold defendants responsible would be manifestly unfair since Canal “might [itself] have insured against the loss, even though occasioned by [its] own negligence.” Luckenbach v. W. J. McCahan Sugar Co., 248 U.S. 189, 146, 39 S.Ct. 53, 54, 63 L.Ed. 170 (1918). The case of T.N. No. 73, 1939 A.M.C. 673 (S.D.N.Y.1939), cited by defendants, is factually quite similar to the instant case. The shipper in that case also breached a contract requirement to insure the cargo for the account of the carrier, but contended that since the contract contained an express warranty of seaworthiness, the insurance clause was not intended to cover losses due to unseaworthiness. In holding that the carrier was not liable to the shipper for the value of the cargo, allegedly lost due to the unseaworthiness of the carrier’s craft, Judge Leibell issued a thorough, well-reasoned opinion. The following language of that opinion, of which we approve, is particularly appropriate to the instant case: “In the case at bar * * * the claimant [shipper] was under an obligation to the petitioner [carrier] to take out insurance on the cargo. This was not a mere ‘benefit of insurance’ clause. Claimant was contractually obligated to effect insurance for the account of the petitioner. This was part of the consideration moving from the claimant and, in all likelihood, it had an effect on the freight rate. ****** “ * * * The contract provision as to insurance in this case is stronger and affords greater protection to the barge owner than the ordinary benefit of insurance clause. “Claimant argues that the result of this interpretation of the insurance clause would be to nullify the express warranty of seaworthiness contained in the same contract of carriage. I do not see it that way. If the charterer, the claimant herein, had lived up to its obligations under the insurance clause, it would not thereby lose the benefit of the personal warranty of seaworthiness. That warranty would still be in effect and in the event of a loss to the cargo, resulting from the unseaworthiness of the barge, claimant could hold both the petitioner and the barge. See [Luckenbach v. (W. J.) McCahan Sugar Refining Co., 248 U.S. 139 (39 S.Ct. 53) (1918); Pendleton v. Benner Line, 246 U.S. 353 (38 S.Ct. 330, 62 L.Ed. 770) (1918)]. ****** “There is another aspect to this issue that should not be over-looked. To add by implication to the broad and general language of the insurance clause, an exception of losses resulting from the unseaworthiness of the barge, would leave the barge owner without insurance that he otherwise might have obtained, a result that would be manifestly unfair. The barge owner had the right to assume that the insurance clause in the contract of carriage meant just what it said, without any implied exceptions. The cargo owner (claimant) has only itself to blame if it failed in its obligation to effect insurance for the account of the barge owner (petitioner). ****** “As we have seen, the [carrier] could have taken out insurance on its own account which would cover cargo losses due to unseaworthiness. In fact, •having warranted the seaworthiness of the barges to the claimant, it would seem that insurance covering such a contingency would be the kind most desired by the petitioner. I am of the opinion the aforementioned insurance clause of the contract of carriage was intended to cover any losses the carrier (petitioner) could have insured against, including cargo losses due to unseaworthiness. Since claimant (or its predecessor) contracted to obtain such insurance and did not do so, I am of the opinion that petitioner should be granted exoneration from liability.” 1939 A.M.C. at 689-691. While we are aware that a 1939 District Court decision from another circuit is not binding upon this Court, we believe the above holdings are a correct view of the law as applied to an almost identical factual situation as the instant case. Moreover, plaintiffs have cited no cases differing with T.N. No. 73, nor can we discover any. Since the foregoing discussion disposes of the case, we find plaintiffs’ other contentions to be irrelevant. We therefore deem it unnecessary in this opinion to discuss the same. In addition, since the validity of the insurance clause was not challenged in the District Court, we will not consider this issue for the first time on appeal. Minneapolis, St. P. & S.S.M.R. Co. v. City of Fond Du Lac, 297 F.2d 583, 587, 93 A.L.R.2d 1378 (7th Cir. 1961); United States v. County of Iowa, 295 F.2d 257, 259 (7th Cir. 1961). The judgment below is, therefore, affirmed. Affirmed. . T.N. No. 73 was affirmed on different grounds — burden of proof — by the Court of Appeals, sub nom., Commercial Molasses Corp. v. New York Tank Barge Corp., 114 F.2d 248 (2nd Cir. 1940), and by the Supreme Court, 314 U.S. 104, 62 S.Ct. 156, 86 L.Ed. 89 (1941). Neither reviewing court found it necessary to discuss the insurance clause and its effects. The District Court opinion in T.N. No. 73 was cited with approval in Hercules Powder Co. v. Commercial Transport Corp., 270 F.Supp. 676, 681 (N.D.Ill., E.D.1967). 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_usc1

0

What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. Eileen M. THOURNIR, Plaintiff-Appellant, v. Natalie MEYER, Secretary of State for the State of Colorado; and State of Colorado, Defendants-Appellees. No. 89-1082. United States Court of Appeals, Tenth Circuit. July 23, 1990. David H. Miller (Tamara K. Vincelette and Linda C. Michow of Holland & Hart, Denver, Colo., with him on the briefs), American Civil Liberties Union Foundation of Colo., Denver, Colo., for plaintiff-appellant. Maurice G. Knaizer, Deputy Atty. Gen. (Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., and Richard H. Forman, Sol. Gen., with him on the briefs), Denver, Colo., for defendants-appellees. Before MOORE and McWILLIAMS, Circuit Judges, and BRATTON, District Judge. Judge McWilliams attended oral argument, but did not participate in the decision. The Honorable Howard C. Bratton, Senior District Judge for the United States District Court of New Mexico, sitting by designation. JOHN P. MOORE, Circuit Judge. This case challenges the constitutionality of Colorado Revised Statutes § 1 — 4—801(l)(i) (1980) which provides that a person seeking elective office as an unaffiliated candidate must be registered in Colorado as an unaffiliated voter for at least one year before filing a nomination petition. On cross-motions for summary judgment, the district court concluded the statute imposed no constitutionally impermissible burden and granted summary judgment in favor of the defendant, Secretary of State Natalie Meyer. Thournir v. Meyer, 708 F.Supp. 1183 (D.Colo.1989). Ms. Thournir has appealed contending the statute violates First Amendment freedoms as well as the due process and equal protection clauses of the Fourteenth Amendment. We affirm. The facts are undisputed. Ms. Thournir moved to Colorado from California in February 1981, but she did not register as an unaffiliated voter until July 14, 1982. On August 19, 1982, she filed nominating petitions with the State to run as an unaffiliated candidate for Congress. Despite the designation of her candidacy, Ms. Thournir had been a member of the Socialist Workers Party (SWP) in California since 1976, but Colorado election laws in existence at the time would permit voters to register only as a “Democrat,” a “Republican,” or as “Unaffiliated.” After litigation initiated by the Secretary in state court resulted in Ms. Thournir’s removal from the ballot because of her failure to meet the qualifications of Colo.Rev.Stat. § l-4-801(l)(i), Ms. Thournir filed this action under 42 U.S.C. § 1983 challenging the statute. Subsequent actions in state court involving other candidates and changes in the Secretary’s rules have significantly moderated the effect of the statute on independent candidates in ways not germane here; therefore, we approach this case solely on the basis of how the statute affects a person in the precise status of Msi Thournir at the time she sought to run as an unaffiliated candidate. We review de novo a district court’s decision on a motion for summary judgment, Osgood v. State Farm Mut. Auto. Ins. Co., 848 F.2d 141, 143 (10th Cir.1988). In doing so, we must review the record in the light most favorable to the nonmoving party. R-G Denver, Ltd. v. First City Holdings, 789 F.2d 1469, 1471 (10th Cir.1986). The principal question presented for our consideration is whether Colo.Rev.Stat. § 1 — 4—801(l)(i) places a constitutionally impermissible burden upon unaffiliated candidates which effectively excludes them from the election process. See Anderson v. Celebrezze, 460 U.S. 780, 793, 103 S.Ct. 1564, 1572, 75 L.Ed.2d 547 (1983). In reviewing this issue, “we must first consider the character and magnitude of the asserted injury” to the plaintiff’s constitutional right and then “identify and evaluate the precise interest” advocated by the state to justify any burden state law places on the plaintiff’s right. Rainbow Coalition v. Oklahoma State Election Bd., 844 F.2d 740, 743 (10th Cir.1988) (quoting Anderson, 460 U.S. at 789, 103 S.Ct. at 1570). “Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.” Anderson, 460 U.S. at 789, 103 S.Ct. at 1570. The right asserted here by Ms. Thournir appears twofold. She advocates her individual right to seek office, but she also asserts the associational rights of the members of the Socialist Workers Party to advocate their political beliefs through the aegis of her candidacy. We shall consider the issues separately. ASSOCIATIONAL RIGHTS Colorado did not recognize party affiliation other than Democrat and Republican in 1982, Thournir v. Meyer, 708 F.Supp. at 1185; therefore, Ms. Thournir’s membership in the SWP and the collective interests of those adhering to membership in that party are not legally distinguishable from the interests of the broad spectrum of persons claiming no affiliation with the established major parties. Under the Colorado -statutory scheme, no attempt was made to distinguish one group of unaffiliated voters from another; therefore, we must assume the generic classification of “unaffiliated voter” was protected by the same umbrella of rights and interests. Moreover, this generic sameness resulted in the elimination or denial of the existence of any political party other than Democrat and Republican. Thus, when Ms. Thournir submitted herself in candidacy for Congress, she could not carry the banner of the Socialist Workers Party. Ms. Thournir and her trial counsel recognized this peculiarity of then existent Colorado law in district court proceedings. In his recitation of undisputed facts during an early hearing, counsel stated: “[Ms. Thournir] registered to vote in early July 1982, and she registered as unaffiliated as the Socialist Workers Party is not a recognized party within the State of Colorado.” (R. Vol. I, doc. 4, at 26). In her affidavit for summary judgment, Ms. Thournir stated: “Affi-ant registered in the City and County of Denver as an unaffiliated voter. (While Affiant was in fact a member of the SWP, Affiant was not allowed to register as such because of other then-existing Colorado Election Code provisions prohibiting registration as anything except ‘Democrat’, ‘Republican’, or ‘Unaffiliated’).” • Id., at 29-30. Indeed, as a purely factual matter, there is nothing in the record to suggest Ms. Thour-nir actually sought or was to appear on the ballot as a candidate of the Socialist Workers Party, notwithstanding her own ideology and claim of party membership. We therefore cannot accept Ms. Thour-nir’s thesis that her putative candidacy represented a distinct political body of common interest which was denied an opportunity to voice its views because she was refused a place on the ballot. Instead, we must view Ms. Thournir’s case as we would that of a person who maintained no identifiable political affiliation and who simply sought an opportunity to stand for public office. Indeed, when questioned during oral argument, her counsel admitted the community of interest represented by her candidacy had to have been all of Colorado’s unaffiliated voters. Thus, despite the political views and the interests she shared with people who claimed membership in the SWP, those views and interests were substantially diluted within the whole of the diverse views and interests of persons claiming no affiliation with the major political parties. Indeed, the peculiar Colorado law created the unique situation in which “the rights of voters and the rights of candidates do [] lend themselves to neat separation.” Therefore, we must regard Ms. Thournir’s membership in the Socialist Workers Party essentially irrelevant to the question before us. So focused, we find ourselves unable to deal with the broad issues of associational rights that form the nucleus of Ms. Thour-nir’s case. Because of the strictures of then current state law and the fact that Ms. Thournir was truly unaffiliated in the eyes of that law, we believe there is no legal substance to her claim of denial of associational rights. Indeed, we conclude that claim is not justiciable. Given her inability to be the candidate of a particular voter group, we simply cannot assay the associational rights Ms. Thournir attempts to vindicate. While we in no way denigrate the significance of those rights, we find no vehicle in this case that would allow us to reach them. MS. THOURNIR’S INDIVIDUAL RIGHT Given our previous analysis, we must now examine the durational registration requirement only as it affects all individual unaffiliated candidates in Colorado regardless of their political ideology. This circumscription of'the right involved diminishes its magnitude in the balancing test required by Rainbow Coalition. While the right to freely exchange political thought has resulted in a severe limitation of a state’s power to affect associational and voting rights of political parties, Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989); Tashjian v. Republican Party, 479 U.S. 208, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986); Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979), the effects of a state’s durational limitations on the rights of individual candidates are less clear. In Bullock v. Carter, 405 U.S. 134, 142-43, 92 S.Ct. 849, 855, 31 L.Ed.2d 92 (1972), the Court stated it had not “attached such [a] fundamental status to candidacy as to invoke a rigorous standard of review.” The Bullock Court had before it a Texas statute that required a substantial filing fee as a precondition to qualifying a candidate for placement on the ballot. The Court defined the fee as a barrier to the candidate’s ballot access but not to a citizen’s right to vote. The Court stated, “In approaching.candidate restrictions, it is essential to examine in a realistic light the extent and nature of. their impact on voters.” Id. at 143, 92 S.Ct. at 856. So directed, it becomes difficult for us to see how Ms. Thournir’s removal from the ballot had a significant impact in 1982 upon the unaffiliated voters of Colorado. See City of Akron v. Bell, 660 F.2d 166, 169 (6th Cir.1981). Ms; Thournir’s individual candidacy, without a legally recognizable constituency, can be accorded no special status under Bullock. Indeed, had the converse been true, had she been able to legally claim a constituency, the associational rights of those voters would be germane to this case because denial of her candidacy would have impacted directly upon the voters comprising that constituency. Yet, as we have pointed out, the only issue relates to Ms. Thournir and her individual right to run for office. In that context, we are unpersuaded that the twelve-month registration requirement, standing alone, presents an undue burden on the rights of a putative candidate. Here, the Secretary has established the purpose for Colorado’s durational requirement is to protect the integrity of the party system and to prohibit “frivolous” candidacies. Reasonable restrictions on candidacy to accomplish these ends are sufficient to uphold the statute. Storer v. Brown, 415 U.S. 724, 733, 94, S.Ct. 1274, 1280, 39 L.Ed.2d 714 (1974); Rosario v. Rockefeller, 410 U.S. 752, 761, 93 S.Ct. 1245, 1251, 36 L.Ed.2d 1 (1973); Lubin v. Panish, 415 U.S. 709, 715, 94 S.Ct. 1315, 1319, 39 L.Ed.2d 702 (1974); Andress v. Reed, 880 F.2d 239, 242 (9th Cir.1989). We believe the one-year requirement is not an unreasonable restriction. Cf. City of Akron, 660 F.2d at 169 (one-year durational residency requirement does not impair a candidate’s First Amendment rights). DUE PROCESS CLAIMS Ms. Thournir challenges Colo.Rev. Stat. § 1 — 4—801(l)(i) as a de facto residency requirement prohibited by Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). She maintains the statute evokes the same punitive consequence as that proscribed by Dunn. We disagree. Those election laws impacting upon the travel freedoms which have been invalidated by Dunn are not analogous to the statutes imposing burdens on candidacy. Candidacy itself is not a fundamental right which is comparable to the right to vote; therefore, burdens inflicted upon candidates are not to be measured by the same yardstick applied to burdens affecting voters. City of Akron, 660 F.2d at 169. Ms. Thournir also argues the statute is a “broadly worded trap” because “it fails to discriminate between those who have, and those who have not, been affiliated with their party” for one year. As we have already pointed out, under the 1980 election laws from which this case arose, “party” affiliation other than that of Democrat or Republican was irrelevant to an “unaffiliated” candidate. Consequently, we can find no basis for Ms. Thournir’s argument, as the statute would not have to provide a means to distinguish the duration of membership in a nonrecognized political group. Ms. Thournir contends the statute creates an impermissible, conclusive presumption that she was not a member of the SWP for the necessary one year. ■ We think that argument falls, once again, upon the statute’s failure to give recognition to the SWP. The irrelevance of her party membership as an unaffiliated candidate moots any suggestion of an issue based upon impermissible conclusions within the statute. Ms. Thournir finally argues the State of Colorado disenfranchised her and her supporters when, by regulation of the Secretary, she was not permitted to run as a write-in candidate. The Secretary has pointed out, and Ms. Thournir has admitted, this regulation was repealed in 1987; hence this issue is moot. Having found no factual substance to, or support for, the central issues of this appeal, and having concluded the district court correctly analyzed the remaining issues, we AFFIRM the judgment of the district court. . Because the election in which Ms. Thournir sought to run has been held, the Secretary has moved to dismiss this appeal as moot. We disagree. See Barnard v. Chamberlain, 897 F.2d 1059, 1062 n. 3 (10th Cir.1990). . This limitation on candidacy has not been raised directly in this proceeding. .Ms. Thournir did not regain a place on the ballot and did not run in the 1982 election. The ultimate disposition has been delayed because of prior appeals from, and remands to, the district court. . Ms. Thournir advocates the "strict scrutiny” review we refused to follow in Rainbow Coalition, 844 F.2d at 742. Having once rejected that doctrine, we are not free to apply it here. . Current Colorado law is much different. An independent candidate can run under any affiliation other than the name of an official political party. CoIo.Rev.Stat. § l-4-801(l)(a) (Supp. 1989). . Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 855, 31 L.Ed.2d 92 (1972). .Ms. Thournir's attack here is dissimilar from the focus of Baer v. Meyer, 728 F.2d 471 (10th Cir.1984), in which persons associated with political groups other than the Democrat and Republican parties successfully challenged Colorado's failure to grant those groups the same ballot process protections as the major parties. We find no support in Baer for Ms. Thournir's case as she has framed it. . Ms. Thournir argues the State has no interest in a particular person's choice of party affiliation, and that is correct. We do not, however, believe that the State is under any burden to pass a "less restrictive means” of accomplishing its legitimate purpose as that purpose applies to an individual candidate’s right to seek office. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:

sc_casesource

022

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. COUNTY OF ALLEGHENY v. FRANK MASHUDA CO. et al. No. 347. Argued April 2, 1959. Decided June 8, 1959. Philip Baskin argued the cause for petitioner. With him on the brief were Maurice Louik and Francis A. Barry. Harold R. Schmidt argued the cause for respondents. With him on the .brief were Don Rose and John L. Laubach, Jr. Mr.. Justice Brennan delivered the opinion of the Court. ■This case presents the question whether a District Court may abstain from exercising its properly invoked diver-' sity jurisdiction in a state eminent domain case in which the exercise of that jurisdiction would not entail the possibility of a premature and perhaps unnecessary decision of a serious federal constitutional question, would not create the hazard of. unsettling some delicate balance in the area of federal-state relationships, and would not even require the District Court to guess at the resolution of uncertain and difficult issues of state law. We hold that in such circumstances a District Court cannot refuse to discharge the responsibility, imposed by Congress under 28 U. S. C. §§ 1332 and 1441, to render prompt justice in cases where its diversity jurisdiction has been properly invoked. The Board of County Commissioners of Allegheny County, Pennsylvania, invoked the applicable eminent domain statutes of the State to appropriate certain property of respondents, citizens of Wisconsin, for the alleged purpose of improving and enlarging the Greater Pittsburgh Airport. The Board adopted the required resolution of taking, and thereafter petitioned the Court of Common Pleas of Allegheny County for appointment of a Board of Viewers to assess damages for the taking. A Board of Viewers was convened and awarded the respondents $52,644 in compensation for their property. Both 'parties appealed this award to the Common Pleas Court pursuant to the state procedure, and that proceeding is now pending. Subsequent to the time when the County' obtained possession respondents learned that their property had been leased to Martin W. Wise, Inc., allegedly for its private business use. The applicable Pennsylvania substantive law is clear: “It is settled law in Pennsylvania that private property cannot be taken for a private use under the power of eminent domain.” Philadelphia Clay Co. v. York Clay Co., 241 Pa. 305, 308, 88 A. 487; see also Winger v. Aires, 371 Pa. 242, 89 A. 2d 521; Lance’s Appeal, 55 Pa. 16. On the basis of this settled law respondents brought süit in the United States District Court for the Western District of Pennsylvania, alleging that “at the time of thé taking the only definite plan and-purpose of the County with regard to .said land was that the same would be leased to defendant Martin W. Wise, Inc. for the benefit of the said lessée and for no public use,” and seeking a judgment of ouster against the County and Martin W. Wise, Inc., damages,' and, in the alternative, an injunction restraining the County, from proceeding further in the pending state court damage proceeding. The District Court, although recognizing that its diversity jurisdiction had been properly invoked, dismissed the suit on the ground .that it “should not interfere with the administration of the affairs of a political subdivision acting under color of State law in a .condemnation proceeding.” 154 F. Supp. 628, 629. The Court of Appeals reversed, holding that a challenge to the validity of a taking such as respondents make in this case may, and perhaps must, be brought in an independent suit different from the Board of Viewers proceeding to assess damages, and that such an independent. suit based on diversity of citizenship could therefore be maintained in the District Court. 256 F. 2d 241. We granted certiorari because of the important question presented as to whether the District Court had discretion to abstain from the exercise of jurisdiction in the circumstances of this case. 358 U. S. 872. The doctrine of abstention,, under which a District Court may decline to exercise or postpone the exercise of its. jurisdiction, is an extraordinary and narrow exception to the duty of a District'Court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified under this, doctrine only" in the exceptional circumstances where the order-to-the parties to repair to. the state court would clearly serve an important countervailing interest. Since no exceptional circumstances justifying abstention appear in this case we think that the Court of Appeals was correct in holding that the District Court should have adjudicated the respondents’ claim. This Court has sanctioned a federal court’s postponement of the exercise of its jurisdiction in cases presenting a federal constitutional issue which might be mooted or presented in a different posture by a state court determination of pertinent state law. See, e. g., City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U. S. 639; Government Employees Organizing Comm. v. Windsor, 353 U. S. 364; Leiter Minerals, Inc., v. United States, 352 U. S. 220; Albertson v. Millard, 345 U. S. 242; Shipman v. DuPre, 339 U. S. 321; Stainback v. Mo Hock Ke Lok Po, 336 U. S. 368; American Federation of Labor v. Watson, 327 U. S. 582; Alabama State Federation of Labor v. McAdory, 325 U. S. 450; Spector Motor Service, Inc., v. McLaughlin, 323 U. S. 101; Chicago v. Fieldcrest Dairies, Inc., 316 U. S. 168; Railroad Comm’n of Texas v. Pullman Co., 312 U. S. 496. But there are no federal constitutional questions raised in this case. This Court has also dpheld an abstention on grounds of comity with the States when the exercise of jurisdiction by. the federal court would disrupt a state administrative process, Burford v. Sun Oil Co., 319 U. S. 315; Pennsylvania v. Williams, 294 U. S. 176, interfere with the collection of state taxes, Toomer v. Witsell, 334 U. S. 385, 392; Great Lakes Dredge & Dock Co. v. Huffman, 319 U. S. 293, or otherwise create needless friction by unnecessarily enjoining state officials from executing domestic policies, Alabama Public Service Comm’n v. Southern R. Co., 341 U. S. 341; Hawks v. Hamill, 288 U. S. 52. But adjudication of the issues in this case by the District Court woúld present no hazard of disrupting federal-state relations. The. respondents did not ask the District Court to apply paramount federal law to prohibit state, officials from carrying out state domestic policies, nor do they seek the obvious irritant to state-federal relations of an injunction against state officials. The only question for decision is the purely factual question whether the County expropriated the respondents! land for private rather than for public use. The District Court would simply be acting as would a court of the State in applying to the facts of this case the settled state policy that a County may not take a private citizen’s land under the State’s power of eminent domain except for public use. It is true that a decision by the District Court returning the land to respondents on the ground that the taking was invalid would interfere' with the proceeding to assess damages now 'pending in the state court in the sense that the damage proceeding would be mooted since the County would no longer have the land. But this, interference, if properly called interference at all, cannot justify abstention since exactly the same suit to contest the validity of the taking could be brought in a state court different from the one in which the damage proceeding is no4 pending. It is perfectly clear under Pennsylvania law' that the respondents could have challenged the validity of the taking, on the ground that it was not for public purposes, in a suit brought in a Court of Common .Pleas independent of the damage"proceedings pending on appeal from the Board of Viewers. The Court of‘ Appeals’ opinion instructs us as to the state procedure which would have applied if respondent's had chosen the state forum: “These [Pennsylvania] authorities establish the propriety, if not the necessity, of testing the validity of a. condemnation in a proceeding in the Pennsylvania .courts independent of that in which compensation is awarded.” 256 F. 2d, at 243. Again the Court of Appeals stated: “the question involved before the federal court need not, and perhaps cannot, be raised in the pending state action . .. .” Ibid. We, of course, usually accept-state law as found by the Court of Appeals, see Propper v. Clark, 337 U. S. 472; The Tungus v. Skovgaard, 358 U. S. 588, 596, and we have no hesitancy in doing so here where there is no indication that its conclusion as to the state law is not correct. The issues of validity and damage are triable separately not because federal jurisdiction has been invoked, but because they are triable separately under the Pennsylvania law. Respondents, it bears repetition, could have brought this very suit in a state court different from the one in which the damage proceeding is pending and an adjudication of that validity suit by the state court would have the same effect on the pending damage proceeding as will the federal court adjudication. Instead of bringing such a suit in the state court, respondents -exercised their right under 28 U. S. C. § 1332 to institute the equivalent suit in the District Court based on diversity of citizenship. Certainly considerations of comity are satisfied if the District Court acts toward the pending' state damage proceeding in the same manner as would a state court. It is suggested, however, that abstention is justified on grounds of avoiding the hazard of friction in fechral-state relations any time a District Court is called on to adjudicate a case involving the State’s power of eminent domain, even though, as in this case, the District Court would simply be applying state law in the same manner as would a sti^te court. But the fact that a’ case concerns a ■ State’s power óf eminent domain no more justifies abstention than the fact that it involves any other issue related-'to sovereignty. Surely eminent domain is. no more mystically involved with “sovereign prerogative” than a State’s power to regulate fishing in its waters, Toomer v. Witsell, 334 U. S. 385, its power to regulate intrastate trucking rates, Public Utilities Comm’n of California v. United States, 355 U. S. 534, a city’s power to issue certain bonds without a referendum, Meredith v. Winter Haven, 320 U. S. 228, its power to license motor vehicles, Chicago v. Atchison, T. & S. F. R. Co., 357 U. S. 77, and a host of other governmental activities carried on by the States and their subdivisions which have been brought into question in the Federal District Courts despite suggestions that those courts should have stayed their hand pending prior state court determination of state law. Furthermore, the federal courts have been adjudicating cases involving, issues of state eminent domain law for many years, without any' suggestion that there was entailed a hazard of friction, in federal-state relations. A host of cases, many in this Court, have approved the decision by a federal court-of precisely the same kind of-state eminent domain question which the District Court was asked to decide in this case. This Court approved such a decision as early as 1878, in Boom Co. v. Patterson, 98 U. S. 403. There the petitioner, a private corporation authorized to utilize the State’s power of eminent domain, moved in a state' court to condemn respondent’s land’ Both parties appealed from an award.by Commissioners, as provided by the relevant state statute, to a state court for a trial de novo. . At this point, respondent'removed the case'to a federal court oh the'basis of diversity of citizenship. This Court, while recognizing that eminent domain is “an exercise by the State of its sovereign right . . . and with its exercise the United States . . . has no right to' interfere . . . /’ held that the removal was proper and that the federal court correctly adjudicated the issues involved. The Court concluded: “But notwithstanding the right is one that appertains to sovereignty, when the sovereign power attaches conditions to its exercise, the inquiry whether the conditions have been observed is a proper matter for judicial cognizance. If that inquiry take the form of a proceeding before the courts between parties, . . . there is a controversy' which,is subject to the ordinary incidents of a civil suit, and its determination derogates in no respect from the sovereignty of the State.” 98 U. S., at 406. This rationale was subsequently applied by this Court to uphold adjudication of state eminent domain proceedings involving suits between diverse parties in the federal courts even though the procedures available would not be the same as those provided by the state practice, Searl v. School District No. 2, 124 U. S. 197, and even though the case involved the power of the condemning authority to take the property, Pacific Railroad Removal Cases, 115 U. S. 1, 17-23. It is now settled practice for Federal District Courts to decide state condemnation proceedings in proper cases despite, challenges to the power of the condemning authority to take the property. This Court has approved of the practice many times. East Tennessee, Va. & Ga. R. Co. v. Southern Telegraph Co., 112 U. S. 306; Clinton v. Missouri P. R. Co., 122 U. S. 469; Upshur County v. Rich, 135 U. S. 467, 475-477 (dictum); Martin’s Adm’r v. Baltimore & Ohio R. Co., 151 U. S. 673, 683 (dictum); Madisonville Traction Co. v. St. Bernard Mining Co., 196 U. S. 239; Mason City and Fort Dodge R. Co. v. Boynton, 204 U. S. 570; Commissioners of Lafayette County v. St. Louis Southwestern R. Co., 257 U. S. 547 (dictum); Cincinnati v. Vester, 281 U. S. 439. Cf. Risty v. Chicago, R. I. & P. R. Co., 270 U. S. 378. Trial of state eminent domain cases has become a common practice in the federal courts. Indeed, Rule 71A of the Federal Rules of Civil Procedure, adopted by the Court in 1951, provides a detailed procedure for use in eminent domain cases in the Federal District Courts and specifically provides, in subsection (k)', “The practice as herein prescribed governs in actions involving the exercise of the power of eminent domain under the law of a state, provided that if the state law makes provision for trial of any issue by jury, or for trial of the issue of compensation by jury or commission or both, that provision shall be followed.” This Rule makes perfectly clear, as do the Notes of the Advisory Committee on Rules pertaining to it, that this Court, when it adopted the Rule, intended that state eminent domain cases, including those which raised questions of authority to take land, would be tried in the Federal District Courts if jurisdiction was properly invoked. This was confirmed by this Court's opinion in Chicago, R. I. & P. R. Co. v. Stude, 346 U. S. 574. Although holding that the respondent could not remove a state condemnation case to the Federal District Court on diversity grounds because he was the plaintiff in the state proceeding, the Court clearly recognized that the defendant in such a proceeding could remove in accordance with § 1441 and obtain a federal adjudication of the issues involved. There is no suggestion that the state eminent domain proceedings tried in the federal courts, both before and after promulgation of the Rule 71A procedures, have resulted in misapplication of state law, inconvenience, or friction with the States. Rule 71A was adopted only after a thorough investigation of eminent domain practice in the federal courts, and its provision for trying state eminent domain cases in the District Courts necessarily reflects a'conclusion that this practice is unobjectionable. Aside from the complete absence of any possibility that a District Court adjudication in this case would necessitate decision of a federal constitutional issue or conflict with state policy, the state law that the District Court was asked to apply, is clear and certain. All that was'necéssary for the District Court td dispose of this case was to determine whether, as a matter of fact, the respondents’ property was taken for the private use of Martin W. Wise, Inc. The propriety óf a federal adjudication in this case follows . a fortiori from the established principle that Federal District Courts should apply settled state law without abstaining from .the exercise of jurisdiction even though this course w.ould require decision of difficult federal constitutional questions. Chicago v. Atchison, T. & S. F. R. Co., 357 U. S. 77; Public Utilities Comm’n of California v. United States, 355 U. S. 534; Toomer v. Witsell, 334 U. S. 385. The, uhdesirability of a refusal to exercise jurisdiction in the absence of exceptional circumstances which clearly justify an abstention is demonstrated by the facts of this case. Respondents have consumed considerable time and expense in pursuing their claim that their property has been unlawfully taken. To order them out of the federal court would accomplish nothing except to require still another lawsuit, with added delay and expense for all parties. This would-be a particular hardship for the respondents, who, besides incurring, the added expense, would also suffer a further prolonged unlawful denial of the possession of their property if ultimately they prevail against the County and its lessee. It exacts a severe penalty from citizens for their attempt to exercise rights of access to the federal courts granted them by Congress to deny them “that promptness of decision which in all judicial actions is one of the elements of justice.” Forsyth v. Hammond, 166 U. S. 506, 513. Two other contentions raised by the County can be disposed of quickly. The County argues that the Board of Viewers has established jurisdiction over the land in question and thus the rule applies that when one court has assumed jurisdiction over a res, no other court will undertake to enter a judgment which might be incompatible with the disposition ultimately to be made by the first court. The short answer to this contention is that the Board of Viewers under Pennsylvania law does not have in rem jurisdiction over property. This is apparent from the fact that an independent proceeding lies to question the validity of the taking of property which is the subject of a Board of Viewers’ proceeding. The “damage” proceeding is simply an in personam suit to determine what the State must pay for property it appropriates; it does not require or contemplate control of the res by the Board of Viewers. The County also urges that a decision by the District Court holding the taking to be invalid would be barred by 28 U. S. C. § 2283. That section provides: “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”' The County’s theory is that a holding that the taking was invalid and an order reconveying the land to respondents would be res judicata on the parties in the Board of Viewers’ proceedings. Since the County would no longer have the land, that proceeding to determine/the compensation due for the taking of the land would be mooted. But it has been firmly established under the language of § 2283, which has, in substance, been in force since first enacted in § 5 of the Act of March 2, 1793, that a federal suit is not barred merely because a holding in the case might be res judicata on the same parties litigating the same issue in a. state court and thereby moot the state proceeding. Kline v. Burke Construction Co., 260 U. S. 226, settled the governing principle. In that case diversity jurisdiction had been invoked to adjudicate an alleged breach of contract. The defendant in the federal- court proceeding had initiated a suit in a state court to adjudicate the same issue. The Court of Appeals ruled that the Federal District Court should have issued a' requested injunction to stay the state court proceedings. This Court held that a statute similar to present § 2283 barred the injunction, but that the District Court could adjudicate the breach of contract issue even though its holding would be decisive of the state case.. The Court stated that “the rule ... has become generally established that where the action first brought is in personam and seeks only a personal judgment,' another action for the same cause in another jurisdiction .is not precluded.”, 260 U. S., at 230. Congress in enacting § 2283 expressed no intention to modify this firmly established principle. Thus there is no reason to expand the plain wording of § 2283 which bars only injunctions designed to stay state court proceedings. The respondents’ suit in the District Court was for a judgment of ouster. They abandoned the claim for an injunction against the state court and against the County. It follows that § 2283 would not bar the relief requested in the District Court. Affirmed. The prayer for injunctive relief-was expressly abandoned in'oral' argument before this Court. The Court of Appeals’ conclusion as to the Pennsylvania law is amply supported .by Pennsylvania authorities. E. g., Spann v. Joint Boards of School Directors, 381 Pa. 338, 113 A. 2d 281; Pioneer Coal Co. v. Cherrytree & D. R. Co., 272 Pa. 43, 116 A. 45; Philadelphia Clay Co. v. York Clay Co., 241 Pa. 305, 88 A. 487. See also 14 Standard Pa. Practice, c. 71, §§ 230, 231, 233, 235. The basis for federal court adjudication of state eminent domain proceedings was established even before this. In 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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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_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". NATIONAL LABOR RELATIONS BOARD v. TOWNSEND. No. 12362. United States Court of Appeals Ninth Circuit. Sept. 11, 1950. Rehearing Denied Nov. 22, 1950. David P. Findling, Associate Gen. Counsel, National Labor Relations Board, A. Norman Somers, Asst. Gen. Counsel, Abraham H. Mailer, all of Washington, D. C., and Charles K. Hackler, Attys., National Labor Relations Board, Los Angeles, Cal., for petitioner. Findlay A. Carter, ’Frederick A. Potruch and Carter & Potruch, all of Los Angeles, Cal. (James M. Nicoson, Los Angeles, Cal., of counsel), for respondent. Before DENMAN, Chief Judge, and STEPHENS and ORR,- Circuit Judges. DENMAN, Chief Judge. This is a petition by the National Labor Relations Board pursuant to the National Labor Relations Act, as amended, herein-after called the Act, for the enforcement of its order directing respondent to cease and desist from certain unfair labor practices, to reinstate with back pay three employees and to take other action. Respondent resists on the ground that the Board lacks jurisdiction because the claimed unfair labor practices were not proved to affect interstate commerce. Respondent is the proprietor of the “M. L: ‘Red’ Townsend’s Garage” in Santa Maria, California. He sells new and used automobiles, automotive parts and supplies, and does automobile repair work. His sales of new automobiles are confined to Hudson automobiles purchased from the Hudson Sales Corporation located in Los Angeles, California. All such automobiles are picked up by respondent in that city. Pursuant to a complaint filed in 1948 proceedings were had culminating in the order sought to be enforced. The Board determined that respondent’s activities were within the purview of the Act, finding that in the year 1947 the respondent sold new Hudson automobiles purchased from the Hudson Sales Corporation to the extent of $70,770, and that in 1948, the time of the admitted unfair labor practices, was engaged in the same business. The Board also found “that a substantial portion of the Respondent’s business involved the sale of new Hudson automobiles which were originally shipped from points outside the State of California.” The basis of the latter finding consisted of a decision, of which the Board took judicial notice, wherein the Board had held' that the Hudson Sales Corporation was engaged in interstate commerce because in 1946 a large portion of the automobiles, accessories and parts the Sales Corporation was selling had been shipped to it from points outside the State of California. The respondent was not a party to this prior proceeding against the Hudson Sales Corporation but, although twice notified that he might do so, the respondent did not avail himself of a twenty day period allowed by the Board’s Regulation 203.46 to object to receipt in evidence of the prior decision by the questionable procedure of taking judicial notice thereof or to the finding of basic fact rested thereon. We think 'the failure to make such objection precludes respondent from here ’claiming error in the admission of such evidence or contesting the finding that the new automobiles sold by respondent were originally shipped from points outside the state. Section 10(e) provides, inter alia, that “No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.” Respondent presents various arguments as to why Section 10(e) does not apply. He contends in substance, that he was deprived of the right to be confronted with the evidence and so could not explain or refute it and that the Act requires that the Board base its decision upon evidence in the record. These arguments would of course apply in every case where the useful device of judicial notice was utilized. We are not prepared to say that administrative agencies may never take judicial notice. The Administrative Procedure Act recognizes that in a proper case judicial notice may be taken, Section 7(d) providing that “Where any agency decision rests on official notice of a material fact not appearing in the evidence in the record, any party shall on timely request be afforded an opportunity to show the contrary.” And Section 10(b) of the National Labor Relations Act provides that an unfair labor practice proceeding “shall, so far as practicable, be conducted in accordance with the rule.s of evidence applicable in the district courts of the United States under the rules of civil procedure * * * ”. The district courts can take judicial notice. The further contention is advanced that to foreclose respondent from challenging the action of the Board in taking judicial notice is to confer jurisdiction by consent. We cannot agree. It is enough to rebut this contention to point out that if the decision of the Board in the Matter of Hudson Sales Corporation had been offered and received in evidence at the hearing without objection by the respondent he could not now assign such admission as error. This would be so even though exception was taken to the Board’s ultimate finding of fact that respondent’s activities were such as to fall within Section 2(6) and (7). In substance, that is what happened here, for respondent was given an opportunity to object to the action of the Board. From its prior decision, the Board found as a fact that the new automobiles sold by respondent originated out-of-state. In the absence of any objection we must accept that finding. The rule that jurisdiction cannot be conferred by consent does not go so far as to require a court to redetermine the existence of probative facts which, without objection, the trier of fact has found to exist from evidence before it. As was observed in United States v. Wilson, 10 Cir., 78 F.2d 465, 467, “Where jurisdiction of the trial court depends upon the existence of a fact, that fact must be proven if put in issue by the pleadings; but if the losing party complains of error of the trial court with regard to that fact, such error must be preserved in the record below and assigned and specified as error here. United States v. Kiles, 8 Cir., 70 F.2d 880; United States v. Ellison, 4 Cir., 74 F.2d 864, 869; Vincent v. United States, 64 App.D. 178, 76 F.2d 428.” The opportunity to object here afforded also disposes of any due process objections. Due process deals with substance, not with form. Cf. Market Street R. Co. v. Railroad Commission, 324 U.S. 548, 562, 65 S.Ct. 770, 89 L.Ed. 1171. The questions then remain whether the business of the respondent in selling new Hudson automobiles is one in which a labor dispute would affect commerce within the meaning of the Act and, if the answer is in the affirmative, whether the power of Congress under the commerce clause reaches so far. Bearing in mind that the scope of the Act extends to all labor disputes affecting interstate commerce that ■ Congress can constitutionally reach and- that in the Act “Congress has explicitly regulated not merely transactions or goods in interstate commerce but activities which in isolation might be deemed to be merely local but in the interlacings of business across state lines adversely affect such commerce,” Polish National Alliance of U. S. v. N. L. R. B., 322 U.S. 643, 648, 64 S.Ct. 1196, 1199, 88 L.Ed. 1509, we think both questions must be answered in the affirmative. As noted above, respondent’s sales of new automobiles are confined to Hudson automobiles. These automobiles, which we must assume originated out-of-state, are purchased through a “Hudson Distributor-Master Dealer Sales Agreement” with the Hudson Sales Corporation of Los Angeles. As a “Master Dealer,” respondent has the exclusive rights to sell Hudson vehicles within the limits of Santa Maria. During 1947 respondent’s total volume of business amounted to $346,341. Sales of new Hudson automobiles purchased from Hudson Sales Corporation accounted for $70,770 of this total volume. We think it apparent that the cessation of respondent’s business due to a strike caused by its unfair labor practices would inevitably decrease , the number of 'automobiles brought from without the state by the Hudson Sales Corporation during the period when respondent ceased to buy them because of a strike-caused stoppage of its business of selling them. Such a decrease might be relatively small. It might be possible to buy new Hudsons outside of Santa Maria and respondent’s business is not large. However, in N. L. R. B. v. Bradford Dyeing Ass’n, 310 U.S. 318, 326, 60 S.Ct. 918, 84 L.Ed. 1226, it was noted that the possibility of turning to another source of supply is not controlling. And unless the volume of commerce that might be affected is so slight as -to bring into play the maxim de minimis, the applicability of the Act is not dependent upon the amount of commerce affected. N. L. B. R. v. Fainblatt, 306 U.S. 601, 607, 307 U.S. 609, 59 S.Ct. 668, 83 L.Ed. 1014. With respondent’s sales of new automobiles amounting to $70,770, it is obvious that •there is here no room for the application of the maxim de minimis. Further, as the Supreme Court has said, “Whether or no practices may be deemed by Congress to" affect interstate commerce is not to be determined by confining judgment to the quantitative effect of the activities immediately before the Board. Appropriate for judgment is the fact that the immediate situation is representative of many others throughout; the country, the total incidence of which if left unchecked may well become far-reaching in its harm ■to commerce.”' Polish National' Alliance of U. S. v. N. L. R. B., supra, 322 U.S. page 648, 64 S.Ct. page 1199. For us to hold that'respondent is beyond the Board’s jurisdiction would allow countless like retailers of new automobiles to engage in unfair labor practices with impunity. The results might well be drastic. The. fact that Hudson Sales Corporation, respondent’s immediate vendor, acquired title and intervened between the manufacturer and respondent does not require a different result. Williams Motor Car Co. v, N. L. R. B., 8 Cir., 128 F.2d 960, 963; Cf. N. L. R. B. v. Fainblatt, supra, 306 U.S. page 605, 59 S.Ct. 671. And it makes no difference that the obstruction follows rather than precedes the interstate movement. N. L. R. B. v. Van De Kamp’s Holland-Dutch Bakers, Inc., 9 Cir., 152 F.2d 818; Williams Motor Co. v. N. L. R. B., 8 Cir., supra. We do not consider N. L. R. B. v. Idaho-Maryland Mines Corp., 9 Cir., 98 F.2d 129 controlling in the situation here presented. In this case respecting a national industry we accept our later statement in N. L. R. B. v. Sunshine Mining Co., 9 Cir., 110 F.2d 780, 784, that “The fact that the company, instead of itself buying all its supplies outside the state and shipping them in, as the record shows it did, now has some arrangement whereby someone else ships them in and then it buys them from the shipper after they come into the state, does not destroy the effect of the transactions on interstate commerce.” We recognize that the commerce clause cannot be pushed so far as to destroy the distinction between what is solely within the domain of the states and what is subject to federal control. N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352. But we feel that unfair labor practices of retailers of new automobiles which originate out-of-state present such a threat of substantially interfering with the free flow of goods across state lines that they may be reached by Congress and are within the scope of the Act. So far as the instant case is concerned, it was for the Board to determine whether, in particular instances, unfair labor practices will adversely affect interstate commerce. Polish National Alliance of U.S. v. N. L. R. B., supra, 322 U.S. page 648, 64 S.Ct. 1199. In view of what we have said, and since respondent’s labor practices are admittedly unfair, we feel the Board was fully within its powers in determining that it had jurisdiction in the instant case. 9 A further contention of respondent is that even though he is subject to the Board’s jurisdiction, the Board should not assert jurisdiction in this case. Providing the Board acts within its statutory and constitutional power it is not for the courts to say when that power should be exercised. Many factors such as lack of funds or the imminence of a more drastic disruption of commerce in another industry might dictate that in a particular case powers explicitly granted should not be exercised. Cf. United States v. Morton Salt Co., 338 U.S. 632, 647, 70 S.Ct. 357. Respondent also takes the position that the Board’s assumption of jurisdiction in his case results in an unconstitutional unequal application of the law and, therefore, is contrary to due process. To answer this it is only necessary to point out that the Board has recently asserted jurisdiction over other dealers selling automobiles at retail. See Liddon White Truck Co., 76 N.L.R.B. 1181; Bell-Wyman Company, 79 N.L.R.B. 1424; Harrys Cadillac-Pontiac Company, 81 N.L.R.B. 1, 3; Midtown Motors, 80 N.L.R.B. 1679; Valley Truck and Tractor Co., 80 N.L.R.B. 444. The petition for a decree of enforcement of the Board’s order is granted. . 61 Stat. 136, 29 U.S.C.A. § 151 et seq. . Matter of Hudson Sales Corporation, 77 N.L.R.B. 378. . Rules and Regulations of the N.L.R.B. as amended August 18, 1948 (12 F.R. 5656, 5862; 13 R.R. 4872; redesignated as section 102.46 in 14 F.R. 78). . However, as the Board’s brief admits, respondent is not precluded from here contesting the ultimate finding of fact that his activities affect interstate commerce. The Board was informed of, and dealt with, respondent’s contention that he was not subject to the Act because his activities were purely local. But the Board was not apprised of respondent’s objection to taking judicial notice or the subordinate finding that the automobiles were originally shipped from outside the state until the matter reached this court. . 60 Stat. 287, 5 U.S.C.A. § 1001 et seq. . Section 2 provides: “(6) The term ‘commerce’ means trade, traffic, commerce, transportation, or communication among tbe several States, or between the District of Columbia or any Territory of the United States and any State or other Territory, or between any foreign country and any State, Territory, or the District of Columbia, or within the District of Columbia or any Territory, or between points in the same State but through any other State or any Territory or the District of Columbia or any foreign country. “(7) The term ‘affecting commerce’ means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce.” 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:

sc_adminaction_is

A

What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. KP PERMANENT MAKE-UP, INC. v. LASTING IMPRESSION I, INC., et al. No. 03-409. Argued October 5, 2004 Decided December 8, 2004 Soutee, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Kennedy, Thomas, and Ginsburg, JJ., joined, in which Scalia, J., joined as to all but footnotes 4 and 5, and in which Breyer, J., joined as to all but footnote 6. Michael Machat argued the cause and filed briefs for petitioner. Patricia A. Millett argued the cause for the United States as amicus curiae urging reversal. With her on the brief were former Solicitor General Olson, Assistant Attorney General Keisler, Deputy Solicitor General Hungar, Anthony J. Steinmeyer, Anthony A. Yang, John M. Whealan, Cynthia C. Lynch, and Nancy C. Slutter. Beth S. Brinkmann argued the cause for respondents. With her on the brief were Charles C. H. Wu, Mark H. Cheung, Drew S. Days III, Edward W. Gray, Jr., Seth M. Galanter, and J. Thomas McCarthy. Briefs of amici curiae urging reversal were filed for the American Intellectual Property Law Association by Michael P. Boudett, Denise W DeFranco, and Rick D. Nydegger; for the Private Label Manufacturers Association by Artlmr M. Handler; and for Malla Pollack et al. by Ms. Pollack, pro se. Robert A. Long, Jr., filed a brief for the Society of Permanent Cosmetic Professionals et al. as amici curiae urging affirmance. William D. Raman, Theodore H. Davis, Jr., and Olivia Maria Baratía filed a brief for the International Trademark Association as amicus curiae. Justice Souter delivered the opinion of the Court. The question here is whether a party raising the statutory affirmative defense of fair use to a claim of trademark infringement, 15 U. S. C. § 1115(b)(4), has a burden to negate any likelihood that the practice complained of will confuse consumers about the origin of the goods or services affected. We hold it does not. I Each party to this case sells permanent makeup, a mixture of pigment and liquid for injection under the skin to camouflage injuries and modify nature's dispensations, and each has used some version of the term “micro color” (as one word or two, singular or plural) in marketing and selling its product. Petitioner KP Permanent Make-Up, Inc., claims to have used the single-word version since 1990 or 1991 on advertising flyers and since 1991 on pigment bottles. Respondents Lasting Impression I, Inc., and its licensee, MCN International, Inc. (Lasting, for simplicity), deny that KP began using the term that early, but we accept KP’s allegation as true for present purposes; the District and Appeals Courts took it to be so, and the disputed facts do not matter to our resolution of the issue. In 1992, Lasting applied to the United States Patent and Trademark Office (PTO) under 15 U. S. C. § 1051 for registration of a trademark consisting of the words “Micro Colors” in white letters separated by a green bar within a black square. The PTO registered the mark to Lasting in 1993, and in 1999 the registration became incontestable. § 1065. It was also in 1999 that KP produced a 10-page advertising brochure using “microcolor” in a large, stylized typeface, provoking Lasting to demand that KP stop using the term. Instead, KP sued Lasting in the Central District of California, seeking, on more than one ground, a declaratory judgment that its language infringed no such exclusive right as Lasting claimed. Lasting counterclaimed, alleging, among other things, that KP had infringed Lasting’s “Micro Colors” trademark. KP sought summary judgment on the infringement counterclaim, based on the statutory affirmative defense of fair use, 15 U. S. C. § 1115(b)(4). After finding that Lasting had conceded that KP used the term only to describe its goods and not as a mark, the District Court held that KP was acting fairly and in good faith because undisputed facts showed that KP had employed the term “microcolor” continuously from a time before Lasting adopted the two-word, plural variant as a mark. Without enquiring whether the practice was likely to cause confusion, the court concluded that KP had made out its affirmative defense under § 1115(b)(4) and entered summary judgment for KP on Lasting’s infringement claim. See Case No. SA CV 00-276-GLT (EEx) (May 16, 2001), pp. 8-9, App. to Pet. for Cert. 29a-30a. On appeal, 328 F. 3d 1061 (2003), the Court of Appeals for the Ninth Circuit thought it was error for the District Court to have addressed the fair use defense without delving into the matter of possible confusion on the part of consumers about the origin of KP’s goods. The reviewing court took the view that no use could be recognized as fair where any consumer confusion was probable, and although the court did not pointedly address the burden of proof, it appears to have placed it on KP to show absence of consumer confusion. Id, at 1072 (“Therefore, KP can only benefit from the fair use defense if there is no likelihood of confusion between KP’s use of the term ‘micro color’ and Lasting’s mark”). Since it found there were disputed material facts relevant under the Circuit’s eight-factor test for assessing the likelihood of confusion, it reversed the summary judgment and remanded the case. We granted KP’s petition for certiorari, 540 U. S. 1099 (2004), to address a disagreement among the Courts of Appeals on the significance of likely confusion for a fair use defense to a trademark infringement claim, and the obligation of a party defending on that ground to show that its use is unlikely to cause consumer confusion. Compare 328 F. 3d, at 1072 (likelihood of confusion bars the fair use defense); PACCAR Inc. v. TeleScan Technologies, L. L. C., 319 F. 3d 243, 256 (CA6 2003) (“[A] finding of a likelihood of confusion forecloses a fair use defense”); and Zatarains, Inc. v. Oak Grove Smokehouse, Inc., 698 F. 2d 786, 796 (CA5 1983) (alleged infringers were free to use words contained in a trademark “in their ordinary, descriptive sense, so long as such use [did] not tend to confuse customers as to the source of the goods”), with Cosmetically Sealed Industries, Inc. v. Chesebrough-Pond’s USA Co., 125 F. 3d 28, 30-31 (CA2 1997) (the fair use defense may succeed even if there is likelihood of confusion); Shakespeare Co. v. Silstar Corp. of Am., Inc., 110 F. 3d 234, 243 (CA4 1997) (“[A] determination of likely confusion [does not] preclud[e] considering the fairness of use”); Sunmark, Inc. v. Ocean Spray Cranberries, Inc., 64 F. 3d 1055, 1059 (CA7 1995) (finding that likelihood of confusion did not preclude the fair use defense). We now vacate the judgment of the Court of Appeals. II A The Trademark Act of 1946, known for its principal proponent as the Lanham Act, 60 Stat. 427, as amended, 15 U. S. C. § 1051 et seq., provides the user of a trade or service mark with the opportunity to register it with the PTO, §§1051, 1053. If the registrant then satisfies further conditions including continuous use for five consecutive years, “the right... to use such registered mark in commerce” to designate the origin of the goods specified in the registration “shall be incontestable” outside certain listed exceptions. § 1065. The holder of a registered mark (incontestable or not) has a civil action against anyone employing an imitation of it in commerce when “such use is likely to cause confusion, or to cause mistake, or to deceive.” § 1114(l)(a). Although an incontestable registration is “conclusive evidence ... of the registrant’s exclusive right to use the . . . mark in commerce,” § 1115(b), the plaintiff’s success is still subject to “proof of infringement as defined in section 1114,” ibid. And that, as just noted, requires a showing that the defendant’s actual practice is likely to produce confusion in the minds of consumers about the origin of the goods or services in question. See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U. S. 763, 780 (1992) (Stevens, J., concurring); Lone Star Steakhouse & Saloon, Inc. v. Alpha of Virginia, Inc., 43 F. 3d 922, 935 (CA4 1995); Restatement (Third) of Unfair Competition §21, Comment a (1995) (hereinafter Restatement). This plaintiff’s burden has to be kept in mind when reading the relevant portion of the further provision for an affirmative defense of fair use, available to a party whose “use of the name, term, or device charged to be an infringement is a use, otherwise than as a mark, ... of a term or device which is descriptive of and used fairly and in good faith only to describe the goods or services of such party, or their geographic origin . . . .” § 1115(b)(4). Two points are evident. Section 1115(b) places a burden of proving likelihood of confusion (that is, infringement) on the party charging infringement even when relying on an incontestable registration. And Congress said nothing about likelihood of confusion in setting out the elements of the fair use defense in § 1115(b)(4). Starting from these textual fixed points, it takes a long stretch to claim that a defense of fair use entails any burden to negate confusion. It is just not plausible that Congress would have used the descriptive phrase “likely to cause confusion, or to cause mistake, or to deceive” in §1114 to describe the requirement that a markholder show likelihood of consumer confusion, but would have relied on the phrase “used fairly” in § 1115(b)(4) in a fit of terse drafting meant to place a defendant under a burden to negate confusion. “ '[Wjhere Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’ ” Russello v. United States, 464 U. S. 16, 23 (1983) (quoting United States v. Wong Kim Bo, 472 F. 2d 720, 722 (CA5 1972); alteration in original). Nor do we find much force in Lasting’s suggestion that “used fairly” in § 1115(b)(4) is an oblique incorporation of a likelihood-of-confusion test developed in the common law of unfair competition. Lasting is certainly correct that some unfair competition cases would stress that use of a term by another in conducting its trade went too far in sowing confusion, and would either enjoin the use or order the defendant to include a disclaimer. See, e. g., Baglin v. Cusenier Co., 221 U. S. 580, 602 (1911) (“[W]e are unable to escape the conclusion that such use, in the manner shown, was to serve the purpose of simulation . . .”); Herring-Hall-Marvin Safe Co. v. Hall’s Safe Co., 208 U. S. 554, 559 (1908) (“[T]he rights of the two parties have been reconciled by allowing the use, provided that an explanation is attached”). But the common law of unfair competition also tolerated some degree of confusion from a descriptive use of words contained in another person’s trademark. See, e. g., William R. Warner & Co. v. Eli Lilly & Co., 265 U. S. 526, 528 (1924) (as to plaintiff’s trademark claim, “[t]he use of a similar name by another to truthfully describe his own product does not constitute a legal or moral wrong, even if its effect be to cause the public to mistake the origin or ownership of the product”); Canal Co. v. Clark, 13 Wall. 311, 327 (1872) (“Purchasers may be mistaken, but they are not deceived by false representations, and equity will not enjoin against telling the truth”); see also 3 L. Altman, Callmann on Unfair Competition, Trademarks and Monopolies § 18:2, pp. 18-8 to 18-9, n. 1 (4th ed. 2004) (citing cases). While these cases are consistent with taking account of the likelihood of consumer confusion as one consideration in deciding whether a use is fair, see Part II-B, infra, they do not stand for the proposition that an assessment of confusion alone may be dispositive. Certainly one cannot get out of them any defense burden to negate it entirely. Finally, a look at the typical course of litigation in an infringement action points up the incoherence of placing a burden to show nonconfusion on a defendant. If a plaintiff succeeds in making out a prima facie case of trademark infringement, including the element of likelihood of consumer confusion, the defendant may offer rebutting evidence to undercut the force of the plaintiff's evidence on this (or any) element, or raise an affirmative defense to bar relief even if the prima facie case is sound, or do both. But it would make no sense to give the defendant a defense of showing affirmatively that the plaintiff cannot succeed in proving some element (like confusion); all the defendant needs to do is to leave the factfinder unpersuaded that the plaintiff has carried its own burden on that point. A defendant has no need of a court’s true belief when agnosticism will do. Put another way, it is only when a plaintiff has shown likely confusion by a preponderance of the evidence that a defendant could have any need of an affirmative defense, but under Lasting’s theory the defense would be foreclosed in such a case. “[I]t defies logic to argue that a defense may not be asserted in the only situation where it even becomes relevant.” Shakespeare Co. v. Silstar Corp., 110 F. 3d, at 243. Nor would it make sense to provide an affirmative defense of no confusion plus good faith, when merely rebutting the plaintiff’s case on confusion would entitle the defendant to judgment, good faith or not. Lasting tries to extenuate the anomaly of this conception of the affirmative defense by arguing that the oddity reflects the “vestigial” character of the fair use defense as a historical matter. Tr. of Oral Arg. 39. Lasting argues that, because it was only in 1988 that Congress added the express provision that an incontestable markholder’s right to exclude is “subject to proof of infringement,” Trademark Law Revision Act of 1988, § 128(b)(1), 102 Stat. 3944, there was no requirement prior to 1988 that a markholder prove likelihood of confusion. Before 1988, the argument goes, it was sensible to get at the issue of likely confusion by requiring a defendant to prove its absence when defending on the ground of fair use. When the 1988 Act saddled the markholder with the obligation to prove confusion likely, § 1115(b), the revision simply failed to relieve the fair use defendant of the suddenly strange burden to prove absence of the very confusion that a plaintiff had a new burden to show in the first place. But the explanation does not work. It is not merely that it would be highly suspect in leaving the claimed element of § 1115(b)(4) redundant and pointless. Hibbs v. Winn, 542 U. S. 88, 101 (2004) (noting “rule against superfluities” in statutory construction). The main problem of the argument is its false premise: Lasting’s assumption that holders of incontestable marks had no need to prove likelihood of confusion prior to 1988 is wrong. See, e. g., Beer Nuts, Inc. v. Clover Club Foods Co., 805 F. 2d 920, 924-925 (CA10 1986) (requiring proof of likelihood of confusion in action by holder of incontestable mark); United States Jaycees v. Philadelphia Jaycees, 639 F. 2d 134, 137, n. 3 (CA3 1981) (“[incontestability [does not] mak[e] unnecessary a showing of likelihood of confusion . . .”); 5 J. McCarthy, Trademarks and Unfair Competition §32:154, p. 32-247 (4th ed. 2004) (“Before the 1988 Trademark Law Revision Act, the majority of courts held that while incontestability grants a conclusive presumption of the ‘exclusive right to use’ the registered mark, this did not relieve the registrant of proving likelihood of confusion”). B Since the burden of proving likelihood of confusion rests with the plaintiff, and the fair use defendant has no freestanding need to show confusion unlikely, it follows (contrary to the Court of Appeals’s view) that some possibility of consumer confusion must be compatible with fair use, and so it is. The common law’s tolerance of a certain degree of confusion on the part of consumers followed from the very fact that in cases like this one an originally descriptive term was selected to be used as a mark, not to mention the undesirability of allowing anyone to obtain a complete monopoly on use of a descriptive term simply by grabbing it first. Canal Co. v. Clark, 13 Wall., at 323-324, 327. The Lanham Act adopts a similar leniency, there being no indication that the statute was meant to deprive commercial speakers of the ordinary utility of descriptive words. “If any confusion results, that is a risk the plaintiff accepted when it decided to identify its product with a mark that uses a well known descriptive phrase.” Cosmetically Sealed Industries, Inc. v. Chesebrough-Pond’s USA Co., 125 F. 3d, at 30. See also Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U. S. 189, 201 (1985) (noting safeguards in Lanham Act to prevent commercial monopolization of language); Car-Freshner Corp. v. S. C. Johnson & Son, Inc., 70 F. 3d 267, 269 (CA2 1995) (noting importance of “protect[ing] the right of society at large to use words or images in their primary descriptive sense”). This right to describe is the reason that descriptive terms qualify for registration as trademarks only after taking on secondary meaning as “distinctive of the applicant’s goods,” 15 U. S. C. § 1052(f), with the registrant getting an exclusive right not in the original, descriptive sense, but only in the secondary one associated with the markholder’s goods, 2 McCarthy, supra, §11:45, p. 11-90 (“The only aspect of the mark which is given legal protection is that penumbra or fringe of secondary meaning which surrounds the old descriptive word”). While we thus recognize that mere risk of confusion will not rule out fair use, we think it would be improvident to go further in this case, for deciding anything more would take us beyond the Ninth Circuit’s consideration of the subject. It suffices to realize that our holding that fair use can occur along with some degree of confusion does not foreclose the relevance of the extent of any likely consumer confusion in assessing whether a defendant’s use is objectively fair. Two Courts of Appeals have found it relevant to consider such scope, and commentators and amici here have urged us to say that the degree of likely consumer confusion bears not only on the fairness of using a term, but even on the further question whether an originally descriptive term has become so identified as a mark that a defendant’s use of it cannot realistically be called descriptive. See Shakespeare Co. v. Silstar Corp., 110 F. 3d, at 243 (“[T]o the degree that confusion is likely, a use is less likely to be found fair...” (emphasis deleted)); Sunmark, Inc. v. Ocean Spray Cranberries, Inc., 64 F. 3d, at 1059; Restatement §28; Brief for American Intellectual Property Law Association as Amicus Curiae 13-18; Brief for Private Label Manufacturers Association as Amicus Curiae 16-17; Brief for Society of Permanent Cosmetic Professionals et al. as Amici Curiae 8-11. Since we do not rule out the pertinence of the degree of consumer confusion under the fair use defense, we likewise do not pass upon the position of the United States, as ami-cus, that the “used fairly” requirement in § 1115(b)(4) demands only that the descriptive term describe the goods accurately. Tr. of Oral Arg. 17. Accuracy of course has to be a- consideration in assessing fair use, but the proceedings in this case so far raise no occasion to evaluate some other concerns that courts might pick as relevant, quite apart from attention to confusion. The Restatement raises possibilities like commercial justification and the strength of the plaintiff’s mark. Restatement § 28. As to them, it is enough to say here that the door is not closed. III In sum, a plaintiff claiming infringement of an incontestable, mark must show likelihood of consumer confusion as part of the prima facie case, 15 U. S. C. § 1115(b), while the defendant has no independent burden to negate the likelihood of any confusion in raising the affirmative defense that a term is used descriptively, not as a mark, fairly, and in good faith, § 1115(b)(4). Because we read the Court of Appeals as requiring KP to shoulder a burden on the issue of confusion, we vacate the judgment and remand the case for further proceedings consistent with this opinion. It is so ordered. Justice Scalia joins all but footnotes 4 and 5 of this opinion. Justice Breyer joins all but footnote 6. We note that in its brief to the Court of Appeals, Lasting appeal’s to have conceded KP’s use of “microcolor” in the early 1990’s. Appellants’ Opening Brief in No. 01-56055 (CA9), p. 8. A trademark may be “any word, name, symbol, or device, or any combination thereof. . . used by a person ... to identify and distinguish his or her goods ... from those manufactured and sold by others and to indicate the source of the goods, even if that source is unknown.” 15 U. S. C. § 1127. We summarize the proceedings in this litigation only as they are relevant to the question before us. The District Court’s findings as to the generic or descriptive nature of the term “micro color” and any secondary meaning that term has acquired by any of the parties, see Case No. SA CV 00-276-GLT (EEx) (CD Cal., May 16, 2001), pp. 3-5, 5-8, are not before us. Nor are the Court of Appeals’s holdings on these issues. See 328 F. 3d 1061, 1068-1071 (CA9 2003). Nor do we address the Court of Appeals’s discussion of “nominative fair use.” Id., at 1071-1072. Not only that, but the failure to say anything about a defendant’s burden on this point was almost certainly not an oversight, not after the House Subcommittee on Trademarks declined to forward a proposal to provide expressly as an element of the defense that a descriptive use be ‘“[un]likely to deceive the public.’” Hearings on H. R. 102 et al. before the Subcommittee on Trade-Marks of the House Committee on Patents, 77th Cong., 1st Sess., 167-168 (1941) (hereinafter Hearings) (testimony of Prof. Milton Handler). See also Hearings 72 (testimony of Wallace Martin, Chairman, American Bar Association Committee on Trade-Mark Legislation) (“Everybody has got a right to the use of the English language and has got a right to assume that nobody íb going to take that English language away from him”). The record indicates that on remand the courts should direct their attention in particular to certain factual issues bearing on the fair use defense, properly applied. The District Court said that Lasting’s motion for summary adjudication conceded that KP used “microcolor” descriptively and not as a mark. Case No. SA CV 00-276-GLT (EEx), at 8, App. to Pet. for Cert. 29a. We think it is arguable that Lasting made those concessions only as to KP’s use of “microcolor” on bottles and flyers in the early 1990’s, not as to the stylized version of “microcolor” that appeared in KP’s 1999 brochure. See Opposition to Motion for Summary Judgment/ Adjudication in Case No. SA CV 00-276-GLT (EEx) (CD Cal.), pp. 18-19; Appellants’ Opening Brief in No. 01-56055 (CA9), pp. 31-32. We also note that the fair use analysis' of KP’s employment of the stylized version of “microcolor” on its brochure may differ from that of its use of the term on the bottles and flyers. Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:

songer_numappel

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Mrs. Amanda Stewart RABB, Administratrix of the Estate of Johnny Rabb, Plaintiff-Appellant, v. The CANAL BARGE COMPANY, Defendant-Appellee. No. 28866. United States Court of Appeals, Fifth Circuit. June 18, 1970. Norman L. Breland, Holleman & Necaise, Gulfport, Miss., Robert L. Netterville, Natchez, Miss., for plaintiff-appellant. George Morse, Gulfport, Miss., John Peters, Jr., Jones'^ Walker, Waechter, Poitevant, Carrere & Denegre, New Orleans, La., for defendant-appellee. Before BELL, COLEMAN and AINSWORTH, Circuit Judges. AINSWORTH, Circuit Judge: The issue before us is whether there is an evidentiary basis to sustain the jury’s finding of no negligence or unseaworthiness in this action against Canal Barge Company, Inc., growing out of the unexplained drowning of Johnny Rabb, a seaman. We find that there is and affirm. Suit was brought under the Jones Act and the general maritime law by decedent’s mother as the administratrix of his estate. Decedent is also survived by sisters and brothers. On the date in question, Johnny Rabb was employed by appellee ' Canal Barge Company as a deck hand aboard the tug, The M/V Eugenia P. Jones. The vessel at the time was pushing seven barges loaded with sulphur up the Ohio River. Rabb, who had been standing available for a fog watch, was last seen alive about midnight on August 2, 1968. Shortly before 3:25 a. m. he was ordered by the Pilot through the ship’s intercom to proceed to the head of the tow as the vessel was beginning to come into fog. After a lapse of several minutes, the Pilot, having been unable to see a flashlight on the tow and having failed in his attempts to contact Rabb through the intercom, awakened the Captain who immediately ordered and shortly thereafter assisted with a general search of the tug and the barges in an attempt to find Rabb. A searchlight was turned on, and the vessel immediately following the tug and all towboats in the vicinity were notified to keep watch. Some time later, about daylight, a launch was put over the side to look for Rabb. The search, however, proved futile. Rabb’s body, without a life jacket, was found the next day. By special verdict, the jury found for defendant. The Court denied motions of both parties for a directed verdict and all other post-trial motions. Appellant’s argument, basically a factual one, is addressed to the weight of the evidence and the Court’s refusal to grant a peremptory instruction on both the negligence and unseaworthiness issues. The standard for testing the sufficiency of the evidence in a Jones Act case is that expressed by the Supreme Court in Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916 (1946), as follows: “It is no answer to say that the jury’s verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury’s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court’s function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.” See also McBride v. Loffland Bros. Co. & Travelers Ins. Co., 5 Cir., 1970, 422 F.2d 363. Cf. Boeing Company v. Shipman, 5 Cir., 1969, 411 F.2d 365. We must determine, therefore, whether there was a reasonable evidentiary basis upon which the jury could have found for appellee. Appellant calls attention to the following omissions of the Captain of the vessel and appellee barge line: the alleged dilatory actions of the Captain by remaining in bed ten to fifteen minutes after having been told of Rabb’s disappearance; his further delay in stopping the vessel and in putting a launch over to look for Rabb; failure to provide a backup man to watch for men overboard in dense fog; and failure to sound distress signals. Appellant further alleges that the failure of appellee to provide adequate lighting and guard rails around the tug constituted actionable unseaworthiness of the vessel. Having been given the proper instructions by the Court on negligence, unseaworthiness and proximate cause, it was the jury’s function properly to assess that evidence against the following evidence favorable to appellee in determining whether there was liability: Deck hands, venturing out on the barge, were required under all circumstances to wear life jackets and encouraged to use flashlights. There was no life jacket on decedent’s body, and the Pilot looked for, but was unable to see, a flashlight on the head of the tow. Under these circumstances, the jury could have reasonably concluded that decedent’s negligence was the sole proximate cause of his drowning. There were no eyewitnesses to the accident, thus necessitating the jury to draw on inferences. We may assume, therefore, that a certain amount of conjecture forms the basis of the verdict. This, however, does not detract from its validity. As said by the Supreme Court in a F.E.L.A. case, the counterpart of a Jones Act proceeding, “Fact finding does not require mathematical certainty. Jurors are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on evidence consisting of direct statements by witnesses or proof of circumstances from which inferences can fairly be drawn.” Schulz v. Pennsylvania Railroad Company, 350 U.S. 523, 527, 76 S.Ct. 608, 610, 100 L.Ed. 668 (1956). (Emphasis supplied.) See also Lavender v. Kurn, 327 U.S. at 653, 66 S.Ct. at 744. Appellant stresses the alleged negligent failure of the tug’s Captain to take proper and adequate measures when informed of Rabb’s disappearance. We cannot say that the jury was unreasonable in refusing to find the Captain derelict or dilatory in his duty by allowing no more than fifteen minutes to lapse between being awakened and actively participating in the search. There was evidence that the vessel had already been stopped and that the Captain was aware of it, indicating that the necessary emergency measures were already in motion. Nevertheless, the Captain responded immediately by ordering a search; a searchlight was used to assist; all towboats in the vicinity were notified to keep watch; any search of the river and the banks by launch prior to daylight and a break in the fog would have been dangerous and useless. There was also evidence to refute appellant’s contention that the absence of handrails and additional lights on the barges constituted unseaworthiness. Testimony showed the impracticality and danger of placing life lines around the perimeter of the barges; that all necessary navigational lights were in use and that any other lights aboard the barges would have created confusion and danger. There was also evidence that a one-man fog watch was normal; that there was a clear and unobstructed walkway for a deck hand to use in proceeding to the bow to serve as fog watch. Around the perimeter of the barges was a white glossy enamel stripe about eighteen inches wide painted there as a safety measure to warn a deck hand that he was approaching the edge of a barge. Appellant nevertheless urges that the tug was unseaworthy as a matter of law and that the unexplained drowning of Rabb requires the application of the res ipsa loquitur doctrine. Resort to this doctrine, however, is not warranted in the absence of showing at least a malfunction, failure or misuse of the vessel, its appurtenances or gear, or some defect therein. Compare Vega v. The Malula, 5 Cir., 1961, 291 F.2d 415; Marshall v. Ove Skou Rederi A/S, 5 Cir., 1967, 378 F.2d 193. The facts of this case are vastly distinguishable from those of Gibbs v. Kiesel, 5 Cir., 1967, 382 F.2d 917, and authorities cited therein, relied on by appellant. In Gibbs the petitioner was struck from behind by doors which unaccountably fell from above. Inability of petitioner to pinpoint the cause which triggered the doors to fall did not preclude a finding of unseaworthiness. We expressed our approval of the application of the res ipsa doctrine to an action for unseaworthiness noting that “the logical inference is often that the gear or appurtenance would not have broken had it not been defective.” 382 F.2d at 919. Here, however, there was no evidence of any untoward effect from which a possible unseaworthy “cause” could be argued. The District Judge, in a very fair and comprehensive charge, instructed the jury that all of the alleged derelictions of appellee were matters to be decided by them in determining whether there was causal negligence or unseaworthiness. The Court properly instructed the jury on the “slight-negligence” test to be applied in determining liability under the Jones Act. See Webb v. Illinois Central Railroad Co., 352 U.S. 512, 77 S.Ct. 451, 1 L.Ed.2d 503 (1957); Ferguson v. Moore McCormack Lines, 352 U.S. 521, 522, 77 S.Ct. 457, 1 L.Ed.2d 511 (1957). The Court also informed the jury of the absolute duty of the shipowner in respect to seaworthiness. See Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960). The jury nevertheless found for appellee on both issues. We cannot say the verdict was without evidentiary basis. Affirmed. Question: What is the total number of appellants in the case? Answer with a number. Answer:

songer_respond1_1_3

J

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. TORNELLO v. DELIGIANNIS BROTHERS, Inc. No. 10010. United States Court of Appeals Seventh Circuit. Feb. 16, 1950. Rehearing Denied March 7, 1950. Harold A. Fein, Chicago, Ill., George A. Gordon, Chicago, Ill., for appellant. Amos J. Coffman, Eugene T. Devitt, Chicago, Ill., for appellee. Before KERNER, FINNEGAN, and SWAIM, Circuit Judges. KERNER, Circuit Judge. C. Tornello, plaintiff, sued defendant to recover the purchase price paid for 58 boxes of cheese, and for expenses arising out of an , alleged breach of warranty in that the cheese was unfit for human consumption. The case was tried by the court without a jury. The trial judge made special findings of fact, pronounced his conclusions of law thereon, and rendered judgment iñ'fávor 'of plaintiff. This judgment, defendant seeks to reverse. The complaint showed affirmatively the requisite jurisdictional amount and the necessary diversity of citizenship. It alleged that on August 8, 1946, defendant shipped to plaintiff at Youngstown, Ohio, 100 boxes of cheese which plaintiff accepted and for which it paid the purchase price; that a libel was prosecuted against the cheese by the United States, and 58 boxes of the cheese were found to be adulterated in interstate commerce in that the cheese consisted of a filthy substance because of the presence ■ therein of rodent excreta and maggots. The cheese was condemned, and the United States marshal was ordered to destroy it. As a result, plaintiff suffered the damages for which the suit was brought. In its answer defendant averred that it delivered the cheese to the common carrier at Black Creek, Wisconsin, in good and edible condition, and denied that the cheese was contaminated and unfit for human consumption, or that it consisted of any filthy substance. The record discloses that on October 30, 1946, a libel action against the cheese was filed in the United States District Court at Cleveland, Ohio, in which it was alleged that the cheese was adulterated in interstate commerce in that it consisted in whole or in part of a filthy substance by reason of the presence therein of rodent excreta and maggots. On November 4, 1946, pursuant to a warrant of seizure and monition issued in the libel action, 58 ¡boxes of the •cheese were seized -by a United States marshal. The defendant was duly served with a summons and a copy of the Information in the libel action, and in addition, defendant was promptly notified by plaintiff of the pendency of the libel action, but chose not to participate therein. Thereafter, the District Court in Cleveland found that the cheese had been shipped in interstate commerce in violation of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 301 et seq., adjudged the cheese to be condemned, and ordered the marshal to destroy it. The decision turns principally on the question whether defendant shipped the cheese in an adulterated condition. There is but little, if any, dispute as to the facts. The court concluded that the plaintiff had performed every obligation of the contract of purchase, but that defendant had failed to perform its obligations in that the cheese was not fit and suitable for human food due to the presence therein of rodent excreta at the time the cheese was shipped to plaintiff. The court made additional findings to the effect that the 100 boxes of cheese had been shipped from Black Creek, Wisconsin, by refrigerated truck ahd railroad car; that the cheese arrived at Youngstown, Ohio, on August 12, 1946, was unloaded during the afternoon' of August 13 and placed in cold storage until November 4, 1946, except for 42 boxes that were removed and sold by plaintiff during the period between August 13 and November 4. Defendant says that the issue is not whether the cheese became adulterated, but when. It makes the point that the decree in the libel action was not conclusive of that issue. It admits, as it must (see Kansas City Wholesale Grocery Co. v. Weber Packing Corporation, 93 Utah 414, 73 P.2d 1272, 1276), that the record in the libel action was admissible, that it is res judicata as to the condition of the cheese when seized by the United States marshal (Bob’s Candy & Pecan Co. v. McConnell, 140 Tex. 331, 167 S.W.2d 511), but insists that the decree did not constitute evidence of adulteration on August 7, the date of shipment, and contends that plaintiff has failed to establish a breach of warranty. The entire record in the libel action was admitted in evidence. Defendant concedes that such record was conclusive as to the condition of the cheese on November 4. On the issue whether defendant had shipped the cheese in an adulterated condition, the proofs were that defendant had examined the cheese before it was shipped, and that at that time the outside surface of the cheese was washed, and no contamination was observed; that upon its arrival at Youngstown plaintiff examined the cheese, but no contamination was discovered — there was no outer destruction of the surface and no evidence of any foreign material on the outside of the cheese. The boxes of cheese did not remain under refrigeration continually from the time they were delivered to plaintiff, but withdrawals were made from the cold storage on August 28, and on intermittent dates to and including October 26, to the plaintiff’s unrefrigerated salesroom where the boxes were opened and kept for varying periods of from 1 to 17 days. Each piece so sold was examined and found to be in good condition so far as discernible by ordinary examination of the surface. Three pieces of the cheese were sold to the United States Food and Drug Administration on September 26, 1946. On November 4 plaintiff, in conjunction with-an examination by an examiner of the Federal Food & Drug Administration, examined three or four boxes of the cheese seized by the marshal and found no contamination or break in the outside covering of the cheese. An expert food technologist of many years’ experience, fully acquainted with the deterioration of cheese and what causes deterioration of cheese, testified that if maggots were on the rind or on top of the cheese after it was manufactured, they would be visible, but that rodent excreta can not be seen by ordinary visible means; that if rodent excreta and maggots come into cheese during the process of manufacture, their presence could not be discovered by ordinary visual examination, but if the cheese becomes contaminated by rodent excreta and maggots after manufacture, the maggots could be discerned by ordinary visual examination. It was his opinion that where rodent excreta and maggots are found inside the cheese, they are in the cheese because unsanitary or unclean raw material was used in the process of manufacture. As already noted, there was positive undisputed evidence that before the cheese was shipped it was washed and no contamination was observed; that upon its arrival at Youngstown it was examined and no foreign material was found on the outside of the cheese; and that on November 4, the cheese seized by the marshal, upon a visual examination, showed no contamination nor break in the outside covering. Compare Smith v. Great Atlantic & Pacific Tea Co., 8 Cir., 170 F.2d 474. Obviously, in the nature of this case, the question as to when the cheese became adulterated and whether contamination resulted from the presence inside .the cheese of the contaminating factors, cannot properly be determined without the aid of the testimony of experts. True it • is, the testimony of an expert must not be speculative and conjectural. His conclusion must be to a reasonable certainty, yet evidence such as testified to by the expert in this case was proper for the purpose of corroborating the evidence that the adulteration was inside the cheese. Under these circumstances, the testimony of the expert that the adulteration was caused by the unsanitary or unclean raw material used •in the manufacture of the cheese did not leave the matter in a state of speculation. It was evidence to be considered on the question whether the rodent excreta was in the cheese on August 7, the date of shipment. We have repeatedly said that a judgment may be reversed only if the findings of fact are clearly erroneous, and that a finding is not clearly erroneous if there is substantial evidence to support it. In the state of this record we cannot say that the findings and the conclusions of the trial judge were clearly erroneous. On the contrary, we think the District Court was justified in finding that defendant had shipped the cheese in an adulterated condition, and that the cheese had not become adulterated during shipment or after its delivery, to plaintiff. Defendant’s final contention is that plaintiff had not complied with the Uniform Sales Act, c. 121 i/¿ §§ 48 and 49, Ill.Rev. Stat.1949, in that he failed to give notice of breach of warranty within a reasonable time, — in other words, that plaintiff was guilty of laches and hence was estopped in .bringing his action. Rule 8(c), Federal Rules Civil Procedure, 28 U.S.C.A., provides that “In pleading to a preceding pleading, a party shall set forth affirmatively * * * estoppel * * * laches * * * and any other matter constituting an avoidance or affirmative defense. * * * ” The defense of estoppel or laches is an affirmative defense, Zeligson v. Hartman-Blair, 10 Cir., 135 F.2d 874; Bergeron v. Mansour, 1 Cir., 152 F.2d 27; Topping v. Fry, 7 Cir., 147 F.2d 715, and must be pleaded. If it is not pleaded, it is waived under Rule 12. Furthermore, defendant has not, in its statement of points, raised either the defense of estoppel or laches. It is true that in its answer to plaintiff’s complaint defendant averred that control and title to the cheese passed to plaintiff August 6, 1946, and that defendant submitted to plaintiff its invoice which provided that “All claims must be made within three days after receipt of goods.” But whether such an averment did or did not raise the defense of estoppel or laches, we think it best that we dispose of defendant’s contention on the merits. There is no evidence that plaintiff knew that the cheese was contaminated before he was served with the summons in the libel action, and since plaintiff notified defendant of the breach of warranty on the day he was served with the summons— that being the first day that he knew of the breach — it is clear there is no merit to defendant’s contention that plaintiff failed to give notice of breach of warranty within a reasonable time. Affirmed. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:

sc_authoritydecision

C

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. TEXAS v. NEW MEXICO No. 65, Orig. Argued March 24, 1980 Decided May 19, 1980 Douglas G. Caroom, Assistant Attorney General of Texas, argued the cause for plaintiff. With him on the briefs were Mark White, Attorney General, John W. Fainter, Jr., First Assistant Attorney General, and Ted L. Hartley, Executive Assistant Attorney General. Richard A. Simms, Special Assistant Attorney General of New Mexico, argued the cause for defendant. With him on the briefs were Jeff Bingaman, Attorney General, and G. Emlen Hall, Charles M. Tansey, and Jay F. Stein, Special Assistant Attorneys General. Solicitor General McCree filed a memorandum for the United States as intervenor. Per Curiam. Upon consideration of the report filed October 15, 1979, by Senior Judge Jean S. Breitenstein, Special Master, and the exceptions thereto, and on consideration of briefs and oral argument thereon, It Is Adjudged, Ordered, and Decreed that all exceptions are overruled, the report is in all respects confirmed, and the ruling of the Special Master on the “1947 condition” as that term appears in Arts. II (g) and III (a) of the Pecos River Compact is approved. 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:

sc_authoritydecision

G

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. PUGACH v. DOLLINGER, DISTRICT ATTORNEY OF BRONX COUNTY, et al. No. 111. Argued January 16, 1961. Decided February 27, 1961. George J. Todaro argued the cause and filed a brief, and Frances Kahn filed an appearance, for petitioner. Walter E. Dillon and Irving Anolik argued the cause for respondents. With them on the brief were Isidore Dollinger, respondent, pro se, and Alexander E. Scheer. Briefs of amici curiae, urging affirmance, were filed by Louis J. Lefkowitz, Attorney General of New York, Pax-ton Blair, Solicitor General, and Jean M. Coon, Assistant Attorney General, for the Attorney General of New York, and by Edward S. Silver and Aaron Nussbaum for the District Attorneys' Association of New York. Emanuel Redfield filed a brief for the New York Civil Liberties Union et al., as amici curiae, urging reversal. Per Curiam. The judgment is affirmed on the authority of Schwartz v. Texas, 344 U. S. 199, and Stefanelli v. Minard, 342 U. S. 117. Mr. Justice Brennan would also affirm but solely on the authority of Stefanelli v. Minard, 342 U. S. 117. 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:

sc_respondent

141

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. GOLDBERG, COMMISSIONER OF SOCIAL SERVICES OF THE CITY OF NEW YORK v. KELLY et al. No. 62. Argued October 13, 1969 Decided March 23, 1970 John J. Loflin, Jr., argued the cause for appellant. With him on the briefs were J. Lee Rankin and Stanley Buchsbaum. Lee A. Albert argued the cause for appellees. With him on the brief were Robert Borsody, Martin Qarbus, and David Diamond. Briefs of amici curiae were filed by Solicitor General Griswold, Assistant Attorney General Ruckelshaus, and Robert V. Zener for the United States, and by Victor G. Rosenblum and Daniel Wm. Fessler for the National Institute for Education in Law and Poverty. Mr. Justice Brennan delivered the opinion of the Court. The question for decision is whether a State that terminates public assistance payments to a particular recipient without affording him the opportunity for an evidentiary hearing prior to termination denies the recipient procedural due process in violation of the Due Process Clause of the Fourteenth Amendment. This action was brought in the District Court for the Southern District of New York by residents of New York City receiving financial aid under the federally assisted program of Aid to Families with Dependent Children (AFDC) or under New York State’s general Home Relief program. Their complaint alleged that the New York State and New York City officials administering these programs terminated, or were about to terminate, such aid without prior notice and hearing, thereby denying them due process of law. At the time the suits were filed there was no requirement of prior notice or hearing of any kind before termination of financial aid. However, the State and city adopted procedures for notice and hearing after tho suits were brought, and the plaintiffs, appellees here, then challenged the constitutional adequacy of those procedures. The State Commissioner of Social Services amended the State Department of Social Services’ Official Regulations to require that local social services officials proposing to discontinue or suspend a recipient’s financial aid do so according to a procedure that conforms to either subdivision (a) or subdivision (b) of § 351.26 of the regulations as amended. The City of New York elected to promulgate a local procedure according to subdivision (b). That subdivision, so far as here pertinent, provides that the local procedure must include the giving of notice to the recipient of the reasons for a proposed discontinuance or suspension at least seven days prior to its effective date, with notice also that upon request the recipient may have the proposal reviewed by a local welfare official holding a position superior to that of the supervisor who approved the proposed discontinuance or suspension,' and, further, that the recipient may submit, for purposes of the review, a written statement to demonstrate why his grant should not be discontinued or suspended. The decision by the reviewing official whether to discontinue or suspend aid must be made expeditiously, with written notice of the decision to the recipient. The section further expressly provides that “[assistance shall not be discontinued or suspended prior to the date such notice of decision is sent to the recipient and his representative, if any, or prior to the proposed effective date of discontinuance or suspension, whichever occurs later.” Pursuant to subdivision (b), the New York City Department of Social Services promulgated Procedure No. 68-18. A caseworker who has doubts about the recipient’s continued eligibility must first discuss them with the recipient. If the caseworker concludes that the recipient is no longer eligible, he recommends termination of aid to a unit supervisor. If the latter concurs, he sends the recipient a letter stating the reasons for proposing to terminate aid and notifying him that within seven days he may request that a higher official review the record, and may support the request with a written statement prepared personally or with the aid of an attorney or other person. If the reviewing official affirms the determination of ineligibility, aid is stopped immediately and the recipient is informed by letter of the reasons for the action. Appellees’ challenge to this procedure emphasizes the absence of any provisions for the personal appearance of the recipient before the reviewing official, for oral presentation of evidence, and for confrontation and cross-examination of adverse witnesses. However, the letter does inform the recipient that he may request a post-termination “fair hearing.” This is a proceeding before an independent state hearing officer at which the recipient may appear personally, offer oral evidence, confront and cross-examine the witnesses against him, and have a record made of the hearing. If the recipient prevails at the “fair hearing” he is paid all funds erroneously withheld. HEW Handbook, pt. IV, §§ 6200-6500; 18 NYCRR §§ 84.2-84.23. A recipient whose aid is not restored by a “fair hearing” decision may have judicial review. N. Y. Civil Practice Law and Rules, Art. 78 (1963). The recipient is so notified, 18 NYCRR § 84.16. I The constitutional issue to be decided, therefore, is the narrow one whether the Due Process Clause requires that the recipient be afforded an evidentiary hearing before the termination of benefits. The District Court held that only a pre-termination evidentiary hearing would satisfy the constitutional command, and rejected the argument of the state and city officials that the combination of the post-termination “fair hearing” with the informal pre-termination review disposed of all due process claims. The court said: “While post-termination review is relevant, there is one overpowering fact which controls here. By hypothesis, a welfare recipient is destitute, without funds or assets. . . . Suffice it to say that to cut off a welfare recipient in the face of . . . ‘brutal need’ without a prior hearing of some sort is unconscionable, unless overwhelming considerations justify it.” Kelly v. Wyman, 294 F. Supp. 893, 899, 900 (1968). The court rejected the argument that the need to protect the public’s tax revenues supplied the requisite “overwhelming consideration.” “Against the justified desire to protect public funds must be weighed the individual’s overpowering need in this unique situation not to be wrongfully deprived of assistance .... While the problem of additional expense must be kept in mind, it does not justify denying a hearing meeting the ordinary standards of due process. Under all the circumstances, we hold that due process requires an adequate hearing before termination of welfare benefits, and the fact that there is a later constitutionally fair proceeding does not alter the result.” Id., at 901. Although state officials were party defendants in the action, only the Commissioner of Social Services of the City of New York appealed. We noted probable jurisdiction, 394 U. S. 971 (1969), to decide important issues that have been the subject of disagreement in principle between the three-judge court in the present case and that convened in Wheeler v. Montgomery, No. 14, post, p. 280, also decided today. We affirm. Appellant does not contend that procedural due process is not applicable to the termination of welfare benefits. Such benefits are a matter of statutory entitlement for persons qualified to receive them. Their termination involves state action that adjudicates important rights. The constitutional challenge cannot be answered by an argument that public assistance benefits are “a ‘privilege' and not a ‘right.’ ” Shapiro v. Thompson, 394 U. S. 618, 627 n. 6 (1969). Relevant constitutional restraints apply as much to the withdrawal of public assistance benefits as to disqualification for unemployment compensation, Sherbert v. Verner, 374 U. S. 398 (1963); or to denial of a tax exemption, Speiser v. Randall, 357 U. S. 613 (1958); or to discharge from public employment, Slochower v. Board of Higher Education, 350 U. S. 551 (1956). The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be “condemned to suffer grievous loss," Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 168 (1951) (Frankfurter, J., concurring), and depends upon whether the recipient’s interest in avoiding that loss outweighs the governmental interest in summary adjudication. Accordingly, as we said in Cafeteria & Restaurant Workers Union v. McElroy, 367 U. S. 886, 895 (1961), “consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.” See also Hannah v. Larche, 363 U. S. 420, 440, 442 (1960). It is true, of course, that some governmental benefits may be administratively terminated without affording the recipient a pre-termination evidentiary hearing. But we agree with the District Court that when welfare is discontinued, only a pre-termination evidentiary hearing provides the recipient with procedural due process. Cf. Sniadach v. Family Finance Corp., 395 U. S. 337 (1969). For qualified recipients, welfare provides the means to obtain essential food, clothing, housing, and medical care. Cf. Nash v. Florida Industrial Commission, 389 U. S. 235, 239 (1967). Thus the crucial factor in this context — a factor not present in the case of the blacklisted government contractor, the discharged government employee, the taxpayer denied a tax exemption, or virtually anyone else' whose governmental entitlements are ended — is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits. Since he lacks independent resources, his situation becomes immediately desperate. His need to concentrate upon finding the means for daily subsistence, in turn, adversely affects his ability to seek redress from the welfare bureaucracy. Moreover, important governmental interests are promoted by affording recipients a pre-termination evi-dentiary hearing. From its founding the Nation's basic commitment has been to foster the dignity and well-being of all persons within its borders. We have come to recognize that forces not within the control of the poor contribute to their poverty. This perception, against the background of our traditions, has significantly influenced the development of the contemporary public assistance system. Welfare, by meeting the basic demands of subsistence, can help bring within the reach of the poor the same opportunities that are available to others to participate meaningfully in the life of the community. At the same time, welfare guards against the societal malaise that may flow from a widespread sense of unjustified frustration and insecurity. Public assistance, then, is not mere charity, but a means to “promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” The same governmental interests that counsel the provision of welfare, counsel as well its uninterrupted provision to those eligible to receive it; pre-termination evidentiary hearings are indispensable to that end. Appellant does not challenge the force of these considerations but argues that they are outweighed by countervailing governmental interests in conserving fiscal and administrative resources. These interests, the argument goes, justify the delay of any evidentiary hearing until after discontinuance of the grants. Summary adjudication protects the public fisc by stopping payments promptly upon discovery of reason to believe that a recipient is no longer eligible. Since most terminations are accepted without challenge, summary adjudication also conserves both the fisc and administrative time and energy by reducing the number of evidentiary hearings actually held. We agree with the District Court, however, that these governmental interests are not overriding in the welfare context. The requirement of a prior hearing doubtless involves some greater expense, and the benefits paid to ineligible recipients pending decision at the hearing probably cannot be recouped, since these recipients are likely to be judgment-proof. But the State is not without weapons to minimize these increased costs. Much of the drain on fiscal and administrative resources can be reduced by developing procedures for prompt pre-termination hearings and by skillful use of personnel and facilities. Indeed, the very provision for a post-termination evidentiary hearing in New York’s Home Relief program is itself cogent evidence that the State recognizes the primacy of the public interest in correct eligibility determinations and therefore in the provision of procedural safeguards. Thus, the interest of the eligible recipient in uninterrupted receipt of public assistance, coupled with the State’s interest that his payments not be erroneously terminated, clearly outweighs the State’s competing concern to prevent any increase in its fiscal and administrative burdens. As the District Court correctly concluded, “[t]he stakes are simply too high for the welfare recipient, and the possibility for honest error or irritable misjudgment too great, to allow termination of aid without giving the recipient a chance, if he so desires, to be fully informed of the case against him so that he may contest its basis and produce evidence in rebuttal.” 294 F. Supp., at 904-905. II We also agree with the District Court, however, that the pre-termination hearing need not take the form of a judicial or quasi-judicial trial. We bear in mind that the statutory “fair hearing” will provide the recipient with a full administrative review. Accordingly, the pre-termination hearing has one function, only: to produce an initial determination of the validity of the welfare department’s grounds for discontinuance of payments in order to protect a recipient against an erroneous termination of his benefits. Cf. Sniadach v. Family Finance Corp., 395 U. S. 337, 343 (1969) (Harlan, J., concurring). Thus, a complete record and a comprehensive opinion, which would serve primarily to facilitate judicial review and to guide future decisions, need not be provided at the pre-termination stage. We recognize, too., that both welfare authorities and recipients have an interest in relatively speedy resolution of questions of eligibility, that they are used to dealing with one another informally, and that some welfare departments have very burdensome caseloads. These considerations justify the limitation of the pre-termination hearing to minimum procedural safeguards, adapted to the particular characteristics of welfare recipients, and to the limited nature of the controversies to be resolved. We wish to add that we, no less than the dissenters, recognize the importance of not imposing upon the States or the Federal Government in this developing field of law any procedural requirements beyond those demanded by rudimentary due process. “The fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean, 234 U. S. 385, 394 (1914). The hearing must be “at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U. S. 545, 552 (1965). In the present context these principles require that a recipient have timely and adequate notice detailing the reasons for a proposed termination, and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally. These rights are important in cases such as those before us, where recipients have challenged proposed terminations as resting on incorrect or misleading factual premises or on misapplication of rules or policies to the facts of particular cases. We are not prepared to say that the seven-day notice currently provided by New York City is constitutionally insufficient per se, although there may be cases where fairness would require that a longer time be given. Nor do we see any constitutional deficiency in the content or form of the notice. New York employs both a letter and a personal conference with a caseworker to inform a recipient of the precise questions raised about his continued eligibility. Evidently the recipient is told the legal and factual bases for the Department's doubts. This combination is probably the most effective method of communicating with recipients. The city’s procedures presently do not permit recipients to appear personally with or without counsel before the official who finally determines continued eligibility. Thus a recipient is not permitted to present evidence to that official orally, or to confront or cross-examine adverse witnesses. These omissions are fatal to the constitutional adequacy of the procedures. The opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard. It is not enough that a welfare recipient may present his position to the decision maker in writing or secondhand through his caseworker. Written submissions are an unrealistic option for most recipients, who lack the educational attainment necessary to write effectively and who cannot obtain professional assistance. Moreover, written submissions do not afford the flexibility of oral presentations; they do not permit the recipient to mold his argument to the issues the decision maker' appears to regard as important. Particularly where credibility and veracity are at issue, as they must be in many termination proceedings, written submissions are a wholly unsatisfactory basis for decision. The secondhand presentation to the decisionmaker by the caseworker has its own deficiencies; since the caseworker usually gathers the facts upon which the charge of ineligibility rests, the presentation of the recipient’s side of the controversy cannot safely be left to him. Therefore a recipient must be allowed to state his position orally. Informal procedures will suffice; in this context due process does not require a particular order of proof or mode of offering evidence. Cf. HEWJiandbook, pt. IV, § 6400 (a). ^ In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses. E. g., ICC v. Louisville & N. R. Co., 227 U. S. 88, 93-94 (1913); Willner v. Committee on Character & Fitness, 373 U. S. 96, 103-104 (1963). What we said in Greene v. McElroy, 360 U. S. 474, 496-497 (1959), is particularly pertinent here: “Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in the Sixth Amendment .... This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, . . . but also in all types of cases where administrative . . . actions were under scrutiny.” Welfare recipients must therefore be given an opportunity to confront and cross-examine the witnesses relied on by the department. “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.” Powell v. Alabama, 287 U. S. 45, 68-69 (1932). We do not say that counsel must be provided at the pre-termination hearing, but only that the recipient must be allowed to retain an attorney if he so desires. Counsel can help delineate the issues, present the factual contentions in an orderly manner, conduct cross-examination, and generally safeguard the interests of the recipient. We do not anticipate that this assistance will unduly prolong or otherwise encumber the hearing. Evidently HEW has reached the same conclusion. See 45 CFR § 205.10, 34 Fed. Reg. 1144 (1969); 45 CFR § 220.25, 34 Fed. Reg. 13595 (1969). Finally, the decisionmaker’s conclusion as to a recipient’s eligibility must rest solely on the legal rules and evidence adduced at the hearing. Ohio Bell Tel. Co. v. PUC, 301 U. S. 292 (1937); United States v. Abilene & S. R. Co., 265 U. S. 274, 288-289 (1924). To demonstrate compliance with this elementary requirement, the decision maker should state the reasons for his determination and indicate the evidence he relied on, Question: Who is the respondent of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:

sc_issue_8

10

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. No. 55. Indiana Department of State Revenue, Gross Income Tax Division, v. Nebeker. Argued February 1, 1955. Decided February 7, 1955. Lloyd C. Hutchinson, Deputy Attorney General of Indiana, argued the cause for petitioner. With him on the brief were Edwin K. Steers, Attorney General, and Carl M. Franceschini, Deputy Attorney General. Raymond O. Evans argued the cause and filed a brief for respondent. Certiorari, 348 U. S. 808, to the Supreme Court of Indiana. Per Curiam: Affirmed on the authority of Freeman v. Hewit, 329 U. S. 249. Mr. Justice Black and Mr. Justice Douglas dissent. Question: What is the issue of the decision? 01. antitrust (except in the context of mergers and union antitrust) 02. mergers 03. bankruptcy (except in the context of priority of federal fiscal claims) 04. sufficiency of evidence: typically in the context of a jury's determination of compensation for injury or death 05. election of remedies: legal remedies available to injured persons or things 06. liability, governmental: tort or contract actions by or against government or governmental officials other than defense of criminal actions brought under a civil rights action. 07. liability, other than as in sufficiency of evidence, election of remedies, punitive damages 08. liability, punitive damages 09. Employee Retirement Income Security Act (cf. union trust funds) 10. state or local government tax 11. state and territorial land claims 12. state or local government regulation, especially of business (cf. federal pre-emption of state court jurisdiction, federal pre-emption of state legislation or regulation) 13. federal or state regulation of securities 14. natural resources - environmental protection (cf. national supremacy: natural resources, national supremacy: pollution) 15. corruption, governmental or governmental regulation of other than as in campaign spending 16. zoning: constitutionality of such ordinances, or restrictions on owners' or lessors' use of real property 17. arbitration (other than as pertains to labor-management or employer-employee relations (cf. union arbitration) 18. federal or state consumer protection: typically under the Truth in Lending; Food, Drug and Cosmetic; and Consumer Protection Credit Acts 19. patents and copyrights: patent 20. patents and copyrights: copyright 21. patents and copyrights: trademark 22. patents and copyrights: patentability of computer processes 23. federal or state regulation of transportation regulation: railroad 24. federal and some few state regulations of transportation regulation: boat 25. federal and some few state regulation of transportation regulation:truck, or motor carrier 26. federal and some few state regulation of transportation regulation: pipeline (cf. federal public utilities regulation: gas pipeline) 27. federal and some few state regulation of transportation regulation: airline 28. federal and some few state regulation of public utilities regulation: electric power 29. federal and some few state regulation of public utilities regulation: nuclear power 30. federal and some few state regulation of public utilities regulation: oil producer 31. federal and some few state regulation of public utilities regulation: gas producer 32. federal and some few state regulation of public utilities regulation: gas pipeline (cf. federal transportation regulation: pipeline) 33. federal and some few state regulation of public utilities regulation: radio and television (cf. cable television) 34. federal and some few state regulation of public utilities regulation: cable television (cf. radio and television) 35. federal and some few state regulations of public utilities regulation: telephone or telegraph company 36. miscellaneous economic regulation Answer:

songer_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. UNITED STATES of America, Appellee, v. Patti Ann MEYER, Appellant. No. 90-5085MN. United States Court of Appeals, Eighth Circuit. Submitted June 13, 1990. Decided June 26, 1990. Paul Engh, Minneapolis, Minn., for appellant. Jeanne J. Graham, Asst. U.S. Atty., Minneapolis, Minn., for appellee. Before JOHN R. GIBSON, MAGILL, and BEAM, Circuit Judges. PER CURIAM. Patti Ann Meyer appeals her conviction of making, and aiding and abetting the making of false statements in a passport application, in violation of 18 U.S.C. §§ 1542 and 2. Meyer argues that the government’s delay of over three years between the date of her offense and trial violated her sixth amendment right to a speedy trial, her fifth amendment right to due process and the Speedy Trial Act, 18 U.S.C. § 3161, et. seq. She further argues that the government’s proof at trial was insufficient as a matter of law to prove her guilt beyond a reasonable doubt. The district court rejected these arguments. We affirm. I. On September 6, 1985, Wilson George Simon (Simon), Meyer’s boyfriend, applied for a United States passport in the name of his deceased brother, Sayed George Simon (Sayed Simon). Because Simon did not have the necessary identification to prove he was Sayed Simon, he submitted an affidavit in Meyer’s name vouching for his identity. Despite her protestations to the contrary, through its verdict the jury found that Meyer personally signed the affidavit. Over one year before this incident, Simon was tried and convicted in federal district court of possession with intent to distribute hashish and hashish oil, in violation of 21 U.S.C. § 841(a)(1), and of being a convicted felon in possession of two firearms, in violation of 18 U.S.C. § 922. Meyer attended the entire trial and, along with others, picketed outside the courthouse carrying signs declaring Simon’s innocence. During the pendency of Simon’s appeal to this court, he remained free on bond. On August 15, 1985, Simon, Meyer and two others applied for passports. Simon listed his home address as 1811 Como Avenue S.E., Minneapolis, his travel plans as Europe and his date of departure as August 25, 1985. Meyer listed the same information on her application. In addition, Simon’s daughter and Takashi David Yoshino each completed a passport application, listing August 25, 1985 as their departure date and Europe as their destination. Because neither Simon’s daughter nor Yoshino had sufficient forms of identification, Simon signed an affidavit of identifying witness vouching for his daughter’s identity and Meyer signed an affidavit vouching for Yoshino’s identity. Upon submitting the form, Meyer presented her driver’s license to Roger Walstead, a postal employee who processes passport applications. Walstead testified that on the affidavit he copied Meyer’s license number and its expiration date. Her driver's license number was listed as beginning with an “M” followed by twelve digits, the last three of which were “829”. The expiration date of her license was noted as October 27, 1988. On August 19, 1985, over one month after we upheld his conviction, United States v. Simon, 767 F.2d 420 (8th Cir.), cert. denied, 474 U.S. 863, 106 S.Ct. 179, 88 L.Ed.2d 148 (1985), Simon was given notice to voluntarily surrender to United States Marshals on September 10, 1985. However, Simon had other plans. On September 6, 1985, Simon and a female companion went to the post office. Simon applied for another passport in his deceased brother’s name. Simon listed his address as 1019 Main Street N.E., Minneapolis, a departure date of September 20,1985, and destination as Europe. An affidavit in Meyer’s name vouching for Simon’s identity was submitted with the passport application. The affiant stated that she had known “Sayed Simon” for five years. The affiant also listed the same address Meyer had provided in her August 15, 1985 affidavit, vouching for Yoshino’s identity. Alan Rodeberg, a postal employee, processed the applications. He testified that the affidavit was completed and signed in his presence. Although he testified he could not identify the affiant, he did recall that she was younger than Simon. Meyer is approximately eighteen years younger than Simon. Rodeberg further testified that the affiant produced a driver’s license, whose number and expiration date he copied onto the affidavit. Although Rodeberg noted the expiration date as October 27, 1958, he testified that he had mistakenly copied the date of birth from the license. October 27, 1958 is in fact Meyer’s date of birth. The driver’s license number he wrote down began with an “N” and was followed by twelve digits, the last three of which were “828”. On September 6, 1985, Simon and his younger female companion also went to an American Automobile Association (AAA) office to purchase six photographs for an international driving permit and passport. He also applied for international driving permits under his and Meyer’s names. After being shown Meyer’s international driving permit photograph, the AAA representative stated that it appeared to be a picture of the woman who was with Simon. Simon failed to voluntarily turn himself in to the marshals on September 10, 1985 as ordered. Local authorities received information that Simon was in an apartment in Fridley, Minnesota. A search warrant was then obtained. Later that day, when officers entered the apartment, they found Simon, Meyer and the apartment’s resident. The police seized a large number of documents, including two letters, one from the Seattle Passport Agency addressed to Sayed Simon, dated September 10, 1985, and one written to the Seattle Passport Agency purporting to be from Sayed Simon, dated September 15, 1985; microfilm copies of school records for Sayed Simon from 1953; an application for a Minnesota driver’s license; international driving permits in the names of Meyer and Simon, issued on September 17, 1985; and passports issued to Simon on August 19, 1985 and to Meyer on August 16, 1985. On April 9, 1986, Meyer was indicted on one count of making, and aiding and abetting the making of false statements in a passport application on September 6, 1985. On May 21, 1986, pursuant to the government’s request, the district court dismissed the indictment without prejudice to permit additional investigation to confirm the passport affiant’s identity. After the dismissal, the government obtained from Meyer handwriting exemplars and signatures made in the ordinary course of business. These signatures were analyzed by an expert and compared with the passport document at issue in this case. The expert testified that she was certain the signature on the document was Meyer’s and not a forgery. On April 18, 1989, the grand jury returned another indictment charging Meyer with the same offense. After making her initial appearance on July 17, 1989, she was released on a $5,000 unsecured bond. Trial was originally scheduled for September 11, 1989, but did not commence until the following month. On August 31, 1989, Meyer filed a pro se motion for continuance charging her counsel with ineffective assistance, collusion with the government, and otherwise unethical behavior. Counsel subsequently filed a motion to withdraw. The court appointed new counsel on September 11, 1989, and granted Meyer’s motion for a continuance, setting a new trial date of October 10, 1989. On several occasions before trial, Meyer unsuccessfully moved to dismiss the indictment on speedy trial grounds. On October 12, 1989, the jury returned a verdict finding Meyer guilty. She filed a motion for judgment of acquittal, arguing that the evidence was insufficient to support the verdict. In the alternative, she sought a new trial arguing that her due process and speedy trial rights had been violated. On October 31, 1989, the district court denied both motions. II. A. Meyer first argues that the nature of the government’s prosecution violated her sixth amendment right to a speedy trial. Meyer’s sixth amendment claim is based on the three-year delay between the date of the offense and the date of the trial. Her claim is without merit because it ignores the intervening dismissal of the first indictment. The original indictment was dismissed without prejudice only two months after it was returned. She was not reindicted until nearly three years later. This three-year period between the dismissal of that indictment and Meyer’s reindictment for the same offense does not implicate her sixth amendment right to a speedy trial because that guaranty is not operative after charges have been formally dismissed. See United States v. MacDonald, 456 U.S. 1, 9-10, 102 S.Ct. 1497, 1502-03, 71 L.Ed.2d 696 (1982) (no speedy trial violation when defendant indicted on civilian charges four years after dismissal of military charge for same crime); United States v. Wallace, 848 F.2d 1464, 1469 (9th Cir.1988) (period between dismissal of original indictment and reindictment reviewed by due process preaccusation standard because speedy trial right inapposite). Such a delay implicates only the due process clause. Id.; see infra at 1251-52. Therefore, we reject Meyer’s speedy trial claim. If Meyer is to successfully allege a violation of her sixth amendment right to a speedy trial, she must focus on either the approximate two-month period from her arrest to the dismissal of the first indictment or on the approximate three-month period from her first appearance on the second indictment to her trial. Because, however, Meyer does not argue that either delay violated her constitutional right to a speedy trial, we need not reach that issue. Nevertheless, we do note, and Meyer concedes, that the government’s delay did not violate the terms of the Speedy Trial Act. It is “an unusual case” in which the sixth amendment has been violated when the Act’s time limits have been met. United States v. Thirion, 813 F.2d 146, 154 (8th Cir.1987). B. Meyer next argues that the delay of over three years in bringing her to trial violated her right to due process because the government was able to obtain an unfair tactical advantage. Although statutes of limitations are the primary safeguard against prejudicial preaccusation delay, Meyer may establish a due process violation based upon preaccusation delay by showing that it resulted in actual prejudice and was intentional and improperly motivated. United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971). To meet her heavy burden of establishing actual prejudice, she must prove that the preaccusation delay substantially prejudiced her defense. United States v. Scott, 795 F.2d 1245, 1249-50 (5th Cir.1986) (mere passage of time plus unsubstantiated assertions of memory failure and loss of witness insufficient to establish prejudice). Furthermore, Meyer must demonstrate that the government intentionally delayed either to gain a tactical advantage or to harass her. United States v. Lovasco, 431 U.S. 783, 789-90, 97 S.Ct. 2044, 2048-49, 52 L.Ed.2d 752 (1977); United States v. Carlson, 697 F.2d 231, 236 (8th Cir.1983). Although we would normally first inquire into whether Meyer was actually prejudiced by the delay, we need not do so in this case because Meyer does not even allege, nor does the evidence even come close to demonstrating, that the government intentionally delayed with the purpose of harassing her or gaining a tactical advantage. The government dismissed the first indictment in order to permit additional investigation into the offender’s identity. Merely because the police did not come up with substantial additional information does not demonstrate that the police intentionally delayed for an improper purpose. We therefore reject Meyer’s due process challenge. See Lovasco, 431 U.S. at 789-90, 97 S.Ct. at 2048-49 (no due process violation when defendant alleged prejudice because government properly delayed prosecution to discover identities of other participants in theft, not for tactical advantage); Marion, 404 U.S. at 324-25, 92 S.Ct. at 465-66 (1971) (no due process violation when defendant failed to prove delay intended to gain tactical advantage or harass defendant); United States v. Sebetich, 776 F.2d 412, 430 (3d Cir.1985) (no due process violation although government had enough information for indictment two years before defendant indicted when delay due to confusion between state and federal authorities), cert. denied, 484 U.S. 1017, 108 S.Ct. 725, 98 L.Ed.2d 673 (1988). C. Meyer further argues that the district court abused its discretion when it denied her motion to dismiss the indictment based upon a violation of the Speedy Trial Act. The Act requires, inter alia, that a defendant’s trial commence within seventy days from the filing of the indictment, or from the date the defendant has first appeared before a judicial officer, whichever is later, subject to enumerated periods of excludable delays including a defendant’s request for a continuance. Meyer prudently concedes that the government, in pursuing her prosecution, did not violate the terms of the Act. Instead, she argues the government violated the spirit of the Act. We reject her argument as completely without merit. United States v. Leone, 823 F.2d 246, 248-49 (8th Cir.1987). III. Finally, Meyer argues that the government’s proof at trial was insufficient as a matter of law to establish her guilt beyond a reasonable doubt. We must affirm her conviction if, viewing the evidence in the light most favorable to the government, there is substantial evidence to support the jury’s verdict. United States v. Marin-Cifuentes, 866 F.2d 988, 992 (8th Cir.1989). In making this determination, we must give the government the benefit of all inferences that may reasonably be drawn from the evidence. Id. The evidence need not exclude every reasonable hypothesis of innocence, but simply be sufficient to convince the trier of fact beyond a reasonable doubt that the defendant is guilty. Id. We will not lightly overturn the jury’s finding of guilt. United States v. Knife, 592 F.2d 472, 475 (8th Cir.1979). This is not even a close case. The evidence in support of Meyer’s conviction was overwhelming. She was Simon’s live-in girlfriend. She knew about his upcoming incarceration because she had attended his entire trial in 1984. On August 15, 1985, she and Simon applied for passports together for a trip to Europe. They planned to depart shortly before Simon was scheduled to turn himself in to the marshals. On that date, she completed an affidavit vouching for Yoshino’s identity. A few weeks later, Simon went to the passport office, accompanied by a woman younger than himself. Meyer is eighteen years younger than Simon. A handwriting expert testified that in her opinion the signature on the fraudulent affidavit was definitely Meyer’s. Furthermore, the birth date written on the affidavit was the same as Meyer’s, and the driver’s license number was identical with the exception of the first letter and last digit. Finally, after completing the passport application and corresponding affidavit at the post office, Simon, accompanied by the younger woman, went to an AAA office and applied for two international driving permits in both his and Meyer’s names. The AAA representative identified the woman in Meyer’s international driving permit photograph as the woman who was with Simon on that date. There was substantial evidence upon which the jury could reasonably have convicted Meyer. IV. As a preliminary matter, we wish to extend our thanks to Meyer’s court-appointed counsel for his exemplary representation of his client on appeal. Despite counsel’s outstanding efforts, however, we conclude that Meyer has not stated a violation of the Speedy Trial Act, her sixth amendment right to a speedy trial, or her fifth amendment right to due process. Furthermore, the evidence introduced at trial was sufficient as a matter of law to sustain her conviction. Accordingly, we affirm. . The Honorable Diana E. Murphy, United States District Judge for the District of Minnesota. . Sayed Simon died in 1954 from burns suffered as a result of a car accident. . This is the same month and day noted on Meyer's August 15, 1985 affidavit. However, the year is different. . This number is identical to the number written down on the August 15, 1985 application except for the first letter and last number. The remaining eleven digits were identical. .Meyer was initially charged by complaint on March 28, 1986. . Meyer's claim that the government violated the spirit of the Speedy Trial Act will be briefly discussed later. See infra at 1252. . Meyer attempts to impugn the credibility of the handwriting witness on appeal. The jury presumably heard this attack but nonetheless found the witness to be credible. . We further note that we have carefully and thoroughly considered the arguments made in Meyer’s pro se brief and find them to be without merit. 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_genresp1

C

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. SPENCER PRESS, INC., Plaintiff-Appellant, v. Donald ALEXANDER, etc., Defendant-Appellee. No. 73-1399. United States Court of Appeals, First Circuit. Argued Jan. 10, 1974. Decided Feb. 5, 1974. Robert B. Smith, Boston, Mass., with whom Galvin, Smith & Nordlinger, Boston, Mass., were on brief, for plaintiff-appellant. Daniel F. Ross, Atty., Tax Div., Dept. of Justice, with whom Scott P. Cramp-ton, Asst. Atty. Gen., James N. Gabriel, U. S. Atty., William Brown, Asst. U. S. Atty., Meyer Rothwacks, and Crombie J. D. Garrett, Attys., Tax Div., Dept. of Justice, were on brief, for defendant-appellee. Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges. LEVIN H. CAMPBELL, Circuit Judge. Appellant Spencer Press, Inc. (Spencer) brought an action against the Commissioner of Internal Revenue, seeking a preliminary injunction to prohibit, the Commissioner from collecting an “addition to tax” provided by the Internal Revenue Code of 1954, 26 U.S.C. § 6651, for late filing of an income tax return. Spencer requested the district court to .determine that, on the merits, no addition to tax was owed; alternatively it requested the court to order the Commissioner to issue a notice of deficiency (90 day notice) so that Spencer would have an opportunity to present the matter to the Tax Court prior to collection of the tax. 26 U.S.C. §§ 6212, 6213. The district court, on December 7, 1973, dismissed the complaint “with leave to file a complaint with proper jurisdictional allegation, within 30 days.” An amended complaint was filed on December 10, 1973, and was dismissed without hearing by the district court on December 11 “in view of the fact that this Court after a hearing on December 7, 1973 denied an application for a preliminary injunction based on the same allegations of fact . . . ” Spencer immediately appealed and requested an injunction pending appeal. Because the Internal Revenue Service proposed to levy on Spencer’s property on December 21, we issued an injunction pending appeal and restrained the collection of the tax until the appeal had been determined. The case was advanced on the docket and oral argument heard on January 10, 1974. The appeal like the original petition actually raises two issues or groups of issues. The first pertain to whether or not under existing statutes plaintiff is entitled to a pre-levy judicial determination of its liability for the additional tax. We conclude, as did apparently the district court, that he is not. The second pertain to whether, under expanded concepts of due process, see Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), a statutory scheme which authorizes or directs seizure of plaintiff’s property without affording any opportunity for a prior hearing is constitutional. As to this issue, neither a single-judge district court nor ourselves have jurisdiction. 28 U.S.C. § 2282. We accordingly affirm the order of the district court insofar as. it was based upon its interpretation of the statutes of the United States, cf. Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), but remand to the district court with instructions to request the convening of a three-judge district court should the plaintiff within ten days file an amended complaint requesting such a court and framing appropriate constitutional issues. According to Spencer’s complaint its difficulties began when, in 1963, it hired a former officer of the Internal Revenue Service to act as its tax accountant, and turned over to him the task of preparing and filing tax returns. Although everything was apparently being handled in due course, Spencer says it was rudely surprised when the Internal Revenue Service informed it that no returns had been filed for the tax years 1967 through 1970. Spencer asserts that it promptly .hired a new accountant, reconstructed its records, and filed returns for those years, paying in full all of the tax and interest due. The IRS is apparently satisfied that the taxes have been paid in full. The IRS has claimed the statutory penalty for late filing of returns. Spencer resisted the claimed “addition to tax”, believing that case law supported its position that a taxpayer acting in good faith and with reasonable care is not liable for an addition to tax when defrauded by its accountant. See, e. g., Fisk v. CIR, 203 F.2d 358 (6th Cir. 1953); Giesen v. United States, 369 F.Supp. 33 (W.D.Wis.1973). Spencer wrote the IRS to request a waiver of the addition to tax, but the Service announced its intention to levy on Spencer’s property unless Spencer paid the tax allegedly due. Spencer then filed the instant suit, requesting that the Commissioner be enjoined from collecting the tax until Spencer has had an opportunity for hearing on its claims that it should be excused. The complaint further contends, perhaps anticipating the Commissioner’s defense, that any actions taken to collect the tax without such a hearing would be in violation of due process. See Fuentes v. Shevin, supra. The Commissioner responded by drawing attention to 26 U.S.C. § 7421, which precludes district courts from enjoining the collection of a “tax”. He then argued that, although there is an exception to § 7421 for cases in which the IRS was required to, but did not, issue a 90 day notice, no such notice was required. The Commissioner relied upon § 6659, which provides that additions to tax such as the one in this case are not the “deficiencies” for which a 90 day notice is required. We agree with the Commissioner’s interpretation. Appellant’s reliance upon cases decided prior to the change in § 6659 effected in 1960 by P.L. 86-470, 74 Stat. 132, is entirely misplaced. What is left therefore is the question of the constitutionality of §§ 6659, 6213, 6212, and 7421 to the extent that they, together or singly, operate to deprive a taxpayer of an opportunity to contest, prior to payment, a penalty assertedly due to the government. However, 28 U.S.C. § 2282 provides that an injunction “restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution . . . shall not be granted . unless the application therefor is heard and determined by a district court of three judges . . .” We do not fault the district court for not initially recognizing that the complaint raised issues requiring three-judge resolution. Appellant did not ask for such a court, and while it raised in general terms its Fuentes due process claim, it did not apparently recognize that the government was bound by law to act as it has. It is not up to the courts to analyze a plaintiff’s case and guide him into the correct courtroom. Cf. Aaron v. Cooper, 261 F.2d 97, 105 (8th Cir. 1958). However, it is now apparent that if appellant is to secure a determination of its constitutional claim, a three-judge court is required. Although Spencer did not seek to enjoin a specific section of the Code, its claim inevitably involved a request that an injunction issue directing an officer of the United States to ignore an Act of Congress on the grounds of its unconstitutionality. Cf. cases cited and discussed in Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1, 37-50 (1964). In extraordinary circumstances we might have jurisdiction to continue our injunction in effect until organization of the three-judge court, cf. Hicks v. Pleasure House, Inc., 404 U.S. 1, 92 S.Ct. 5, 30 L.Ed.2d 1 (1971). While we are not inclined to do so here, we rely upon the government’s good faith not to take further action to collect the additional tax until sufficient time has elapsed for plaintiff, acting with dispatch, to file an amended complaint, request a three-judge court, and make a timely request to that court for such temporary or preliminary relief as the court may be able or willing to give. The ease is remanded to the same district judge. Since appellant must bear the heaviest responsibility for the time that has been wasted going in the wrong direction, we award costs of this appeal to the government. Judgment vacated. Remanded to the district court with instructions to call for convening of a three-judge court should the plaintiff within ten days file an amended complaint requesting such a court and raising appropriately framed issues, the action otherwise to be dismissed with prejudice. Costs to appellee. . The constitutionality or applicability of § 7421 in another context is now before the Supreme Court. Walters v. “Americans United”, Inc., 155 U.S.App.D.C. 284, 477 F.2d 1169, cert. granted 412 U.S. 927, 93 S.Ct. 2752, 37 L.Ed.2d 154 (1973) ; Bob Jones University v. Connally, 472 F.2d 903 (4th Cir.), cert. granted, 414 U.S. 817, 94 S.Ct. 116, 38 L.Ed.2d 49 (Oct. 9, 1973). Cf. Commonwealth Development Ass’n v. United States, 365 F.Supp. 792 (M.D.Pa.1973). . The legislative history of § 6659 precludes any interpretation of it that would provide a 90 day notice. The section “provides a general rule that the additions to tax for the late filing of income . . . tax returns . . . are to be assessed and collected without the issuance of a 90 day letter.” S.Rep. No.86-1098, 86th Cong., 2d Sess. (1960), 1960 U.S.Code Cong. & Admin.News 2025. . Cases such as Grandquist v. Hackleman, 264 F.2d 9 (9th Cir. 1959) and Strawberry Hill Press, Inc. v. Scanlon, 273 F.2d 306 (2d Cir. 1959), were expressly mentioned in the Senate committee report and apparently were the impetus for the statutory revision. 1960 U.S.Code Cong. & Admin.News 2025-26. 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_usc1

0

What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. UNITED STATES of America, Appellee, v. Ernest MALIZIA, Defendant-Appellant. No. 1132, Docket 74-1389. United States Court of Appeals, Second Circuit. Argued June 18, 1974. Decided Sept. 17, 1974. Certiorari Denied Jan. 27, 1975. See 95 S.Ct. 834. Bancroft Littlefield, Jr., Asst. U. S. Atty. (Paul J. Curran, U. S. Atty. S.D. N. Y., S. Andrew Schaffer, Asst. U. S. Atty., of counsel), for appellee. J. Jeffrey Weisenfeld, New York City (Goldberger, Feldman & Breitbart, New York City, on the brief), for defendant-appellant. Before SMITH and MANSFIELD, Circuit Judges, and BARTELS, District Judge. Of the Eastern District of New York, sitting by designation. BARTELS, District Judge: After a three-day trial in the Southern District of New York before Constance Baker Motley, District Judge, and a jury, Ernest Malizia was convicted on February 15, 1974, of a one-count indictment which charged him with the sale of 995 grams of cocaine in violation of 21 U.S.C. §§ 173 and 174. He was sentenced to ten years imprisonment and a $20,000 fine. On appeal Malizia raises several errors, the most important of which was the admission of testimony that informant Stanley Gerstenfeld stated that he would not testify because of fear of death, and that Malizia’s fingerprints were taken from the files in the office of the Bureau of Narcotics and Dangerous Drugs. The record reveals that at about 6 P. M. on February 17, 1971, Group Supervisor Leonard Vecchione of the Federal Bureau of Narcotics and Dangerous Drugs (B.N.D.D.) and Investigator Edward Kayner of the New York State Police proceeded to the area of Park Place and Church Street where they met with Stanley Gerstenfeld, the Government’s informant, whom they instructed to enter an undercover taxicab driven by State Police Investigator George Gross, to whom Vecchione then delivered a paper bag containing $16,500 in advanced Government funds. Gross and Gersten-feld proceeded in the taxicab to Christine’s Luncheonette at 349 Pleasant Avenue in Manhattan, followed by Vec-chione and Kayner in an unmarked police vehicle and by B.N.D.D. Agent John Maltz in a second vehicle. At approximately 9:15 P.M. they arrived in front of Christine’s Luncheonette, whereupon Gross handed Gersten-feld the paper' bag containing the $16,500 and Gerstenfeld then exited the cab and entered Christine’s. The luncheonette was located below the level of the sidewalk and was enclosed by two large glass windows on both sides of a glass door. A serving counter ran from front to back, perpendicular to- the street. Gerstenfeld entered the luneh-eonette and delivered the bag of money to Malizia who was standing alone behind the counter. Malizia then removed the money from the bag and after thumbing through the bills, came from behind the counter, lifted up the back of Gerstenfeld’s three-quarter length leather jacket and stuck a yellowish package inside Gerstenfeld’s belt in the small of his back and pulled the jacket down over the package. Gross observed the entire transaction from his taxicab and Vec-chione and Kayner who stopped momentarily also witnessed Malizia counting the money. After the sale Gerstenfeld hailed a passing cab which took him to 86th Street and York Avenue where he transferred to Investigator Gross’ cab. Gross then drove Gerstenfeld to 89th Street and York Avenue where they met Vecchione and Gerstenfeld delivered to Vecchione the yellowish package, which upon analysis contained 995 grams of cocaine. Ten minutes after Gersten-feld’s departure, Malizia was observed leaving Christine’s and proceeding to 118th Street and Pleasant Avenue where he placed a brown paper bag in the trunk of a blue Pontiac registered in the name of Rose Malizia, his sister-in-law. One week later, on February 24, 1971, agents attempted unsuccessfully to locate and arrest Malizia in New York City and also at his house in Nanuet, New York. They interviewed Malizia’s wife and children concerning his whereabouts but without success. They maintained surveillance at Malizia’s home on a regular basis for the next two years and also on the homes of his relatives during Christmas and Thanksgiving, all without success. Malizia was not arrested until December 18, 1973, when he was apprehended in the vicinity of 236th Street and Johnson Avenue in the Bronx, after he had given the false name of Harry Luppes, which was the name on a driver’s license found in his possession. This was the second time Malizia had given false identification while he was being sought; the first being when he was arrested for a traffic violation in Rockland County on December 5, 1971. At that' time he claimed he was John Conite, the name on a forged driver’s license then held by him. I We turn first to the most troublesome issue concerning the admission of testimony relative to the state of mind of Stanley Gerstenfeld. Ordinarily one of the most important witnesses called by the Government in a narcotics case is the purchaser. Here the purchaser was not a Government agent but the informant Gerstenfeld, who from the beginning indicated to the Government agents that he would not testify. Nevertheless an exhaustive search was made by the Government for Gerstenfeld without success. After testimony of the search was adduced, the Government stopped and approached the bench for a conference relative to its offer of proof to show that Gerstenfeld had told Vecchione that he would never testify because he was in fear of being killed. Realizing the importance of the testimony of the informant in this case and at the same time the prejudicial effect of the informant’s stated reason for failing to appear, Judge Motley, outside of the jury’s presence, indicated to the defendant’s counsel that if he did not intend to comment adversely on the Government’s failure to produce the informant, the testimony as to the reason for the failure of the witness to appear would be excluded. Instead of accepting this suggestion, counsel replied that he would raise the question in his summation in the context of the Government’s failure to sustain “its burden of producing all witnesses.” Only after defendant’s rejection of the suggestion did Judge Motley allow the Government to explain why Gerstenfeld was not produced at the trial on the premise that the probative value of the testimony was sufficient to outweigh its prejudicial effect. “Informants in drug cases are not Brahmins, nor are they noted for long-term occupancy of well-tended premises. Their disappearance, voluntary or otherwise, is not extraordinary.” United States v. Super, 492 F.2d 319, 322 (2d Cir. 1974). We have, under cautionary instructions, upheld the testimony of a witness explaining his own prior failure to testify for the Government or his prior contradictory or inconsistent statements because of fear of threatened retaliation. United States v. Place, 263 F.2d 627 (2d Cir.), cert. denied, 360, U.S. 920, 79 S.Ct. 1439, 3 L.Ed.2d 1535 (1959); United States v. Cirillo, 468 F.2d 1233 (2d Cir. 1972), cert. denied, 410 U.S. 989, 93 S.Ct. 1501, 36 L.Ed.2d 188 (1973); United States v. Berger, 433 F.2d 680 (2d Cir. 1970), cert. denied, 401 U.S. 962, 91 S.Ct. 970, 28 L.Ed.2d 246 (1971); United States v. Scandifia, 390 F.2d 244 (2d Cir. 1968), vacated on other grounds, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969). While these cases permit an impeached witness to explain the circumstances concerning his own state of mind, they do not extend to the explanation for the failure of a presumably favorable witness to testify. A much more serious risk of prejudice exists in such a case because the witness is not present to be cross-examined, even though the testimony concerning his state of mind falls within the hearsay exception. Vecchione, while on the stand, testified that Gerstenfeld was not in the custody of the Government, that he was not in any way under the control of the Government, that efforts to locate him were unsuccessful, and that Gerstenfeld had told Vecchione that he would never' testify because “he was .in fear of being killed.” It was a general statement which did not point to Malizia as a potential killer and, in fact, on cross-examination Vecchione testified that Gerstenfeld never told him that he heard that Malizia was trying to kill him and further, that Gerstenfeld had worked for Vecchione in other cases prior to making the purchase from Malizia. Malizia claims that the explanation was unnecessary and that all the Government was entitled to was testimony to show that it had attempted without success to find Gerstenfeld. See United States v. Young, 150 U.S.App.D.C. 98, 463 F.2d 934, 939-940 (1972); Wynn v. United States, 130 U.S.App.D.C. 60, 397 F.2d 621, 625 (1967). This, however, may not be sufficient. An adverse inference is likely to arise if a party fails to call a key witness who is expected to give favorable testimony to his cause. “It would present an anomaly in the law if, while one party may comment upon the absence of an opposing party’s witness, the opposing party were not permitted to introduce evidence to excuse the absence of such witness.” Schumacher v. United States, 216 F.2d 780, 788 (8th Cir. 1954), cert. denied, 348 U.S. 951, 75 S.Ct. 439, 99 L.Ed. 743 (1955). On the other hand, such testimony predicated upon fear of retaliation, is so prejudicial that it should be excluded in the absence of exceptional circumstances. In this case Malizia had an option to exclude the testimony but he rejected that option and chose instead to exploit the absence of the witness, emphasizing upon summation that Gerstenfeld was “not here to tell you what happened.” From these exceptional circumstances arose the necessity to anticipatorily rebut the claim that the Government should have produced the witness. While we believe that cautionary instructions would have been advisable in this case, we conclude that on balance defendant was treated fairly and that the admission of the prejudicial testimony was not sufficient to warrant a reversal, particularly in view of the overwhelming nature of the evidence by the seven agents who had participated in the surveillance of the sale of February 17, 1971. Malizia next challenges the admission of the testimony of Investigator Kayner to the effect that he brought three fingerprint cards from the Federal Bureau of Narcotics, among which was Malizia’s fingerprint, to the State Police Laboratory to compare with a fingerprint located on the innermost plastic bag containing the cocaine sold to the informant. Kayner testified that no prints at all had been readable from the outer two wrappings around the cocaine; that the partial print removed from the innermost plastic bag had been compared with known parts of Malizia’s prints but the print on the bag was not Malizia’s print. The theory of Malizia’s objection is that reference to Malizia’s fingerprints from the Bureau of Narcotics carried the implication that he was a narcotics violator. It is well known that the Government has in its files fingerprints of most Government officers and employees as well as those who had ever been in any branch of the military service and those who have voluntarily offered their prints. It would have been sufficient without causing any prejudice had the Government’s witness simply testified that the fingerprint cards had been produced from the Government files instead of the Bureau of Narcotics files. However, no card was introduced into evidence and no objection was made to the testimony which, in fact, absolved Malizia, whose counsel exploited the issue on both cross-examination and summation. Cf. United States v. Schwartz, 398 F.2d 464 (7th Cir. 1968), cert. denied, 393 U.S. 1062, 89 S.Ct. 714, 21 L.Ed.2d 705 (1969); United States v. Dichiarinte, 385 F.2d 333, 337 (7th Cir. 1967), cert. denied, 390 U.S. 945, 88 S.Ct. 1029, 19 L.Ed.2d 1133 (1968). We find no reversible error. II Malizia raises three other claims of error, which are of a substantial nature. In connection with establishing proof that Malizia was a fugitive, the Government attempted to show that Malizia was aware of the fact that he was being sought for arrest by introducing evidence that on February 24, 1971 agents stopped an automobile and advised the driver, Malizia’s brother John, that they were looking for Malizia. In examining Investigator Gross the prosecutor asked “What brought you to John Malizia exactly?” and he replied “Well, the night of the Operation Flanker — ,” and when Investigator Pinto was asked what happened on February 24 and 25 he replied that “It was an operation of the federal government called Flanker, .” The reference to the code word “Flanker” was a passing innocuous reference and did not indicate that Malizia was the target of the operation. No objection was made to the use of the phrase and no curative instruction was sought. We find no error. See United States v. Cioffi, 493 F.2d 1111, 1119 (2d Cir. 1974). Malizia also claims error in the admission of evidence of his flight, on the ground that he was not informed personally of the charge and no evidence was introduced as to exactly when he fled. The existence of a warrant or proof of defendant’s knowledge that he is being charged with a crime is not a prerequisite to the admissibility of the evidence of flight, United States v. Ayala, 307 F.2d 574 (2d Cir. 1962), and it is also proper to establish flight by showing unsuccessful efforts by the police to locate the defendant. United States v. Waldman, 240 F.2d 449 (2d Cir. 1957); Kanner v. United States, 34 F.2d 863, 866 (7th Cir. 1929). Evidence of flight, like any other circumstantial evidence, has consistently been admissible as evidence of guilt if considered with other facts of the case. United States v. Ayala, supra; United States v. Miles, 468 F.2d 482 (3d Cir. 1972). The evidence here was amply sufficient to be admitted and justified Judge Motley’s instructions to the jury on flight, which adequately protected Malizia’s rights.. Finally, Malizia objects to the trial court’s charge as being coercive. He claims that the trial judge gave what he characterizes as an improper Allen charge in the original charge to the jury. In her instructions to the jury the trial judge stated, among other things: “As we have already pointed out, I think Government counsel and defense counsel have, and I will now point it out, that this is an important case to both the Government and defendant, and therefore since it is an important case, it must be decided. You are not to single out any one instruction alone as stating the law, but you have to consider these instructions as a whole.” She also stated that the jurors were not to surrender their honest convictions and that the verdict must reflect the conscientious conviction of each and everyone of them. Malizia claims that the statement that the case “must be decided” was coercive. The charge was given at 6:15 P.M. on Friday, February 15, 1974, on the eve of a holiday, and the remark was perhaps a slip better left unsaid. But it was not said after a disagreement or deadlock on the part of the jury but before submission of the case to the jury. Taken into consideration with other portions of the charge, this remark could hardly be deemed coercive. As a matter of fact, the charge as a whole was eminently fair to the defendant. See Nick v. United States, 122 F.2d 660, 674 (8th Cir.), cert. denied, 314 U.S. 687, 62 S.Ct. 302, 86 L.Ed. 550 (1941); United States v. McNeil, 140 U.S.App.D.C. 3, 433 F.2d 1109 (1969); United States v. Martinez, 446 F.2d 118, 119 (2d Cir.), cert. denied, 404 U.S. 944, 92 S.Ct. 297, 30 L.Ed.2d 259 (1972). Affirmed. . Appellant does not on appeal contest the district court’s ruling that the statement was not barred by the hearsay rule “since it was limited to bringing out the informant’s state of mind” (Tr. 43-44). Frank v. United States, 220 F.2d 559, 564 (10th Cir. 1955); Mattox v. News Syndicate Co., 176 F.2d 897, 903-904 (2d Cir.), cert. denied, 338 U.S. 858, 70 S.Ct. 100, 94 L.Ed. 525 (1949); see also Case v. New York Central Railroad Co., 329 F.2d 936 (2d Cir. 1964); VII Wigmore, Evidence § 1790 (3d 1940). 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_r_subst

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 "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 re BANKERS LIFE & CASUALTY CO. No. 14222. United States Court of Appeals Fifth Circuit. Nov. 6, 1952. Rehearing Denied Dec. 12, 1952. Charles F. Short, Jr., Chicago, 111., Miller Walton, Miami, Fla., for appellant. M. H. Blaclcshear, Jr., Asst. Atty. Gen. of Georgia, Lamar Sizemore, Asst. Atty. Gen., for appellee. Before HUTCHESON, Chief Judge, and HOLMES and RUSSELL, Circuit Judges. PER CURIAM. Upon full consideration of the briefs and arguments on the motion to dismiss, the court is of the opinion that no fact or reason is stated showing that the relief by mandamus is an appropriate remedy. Without, therefore, determining, or considering on the merits, whether the order complained of was rightly entered, the motion to dismiss the petition, because the relief prayed for is not appropriate, is granted, and the petition is dismissed. 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:

songer_casetyp1_2-3-2

K

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 - voting rights, race discrimination, sex discrimination". The MILLER-WOHL CO., INC., Plaintiff-Appellant, v. COMMISSIONER OF LABOR AND INDUSTRY, STATE OF MONTANA, and Tamara L. Buley, Defendants-Appellees. Equal Employment Opportunity Commission, California Dep’t of Fair Employment & Housing, Employment Law Center, and Equal Rights Advocates, Inc., Amici Curiae. No. 81-3333. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 9, 1982. Decided Aug. 27, 1982. See also, 9th Cir., 694 F.2d 203. Charles L. Fine, Phoenix, Ariz., for plaintiff-appellant. Paul Van Tricht, Helena, Mont., argued, for Com’r of Labor. Richard R. Buley, Missoula, Mont., argued, for T. L. Buley; Tipp, Hoven, Skjelset & Fizzell, Missoula, Mont., on brief. Linda Krieger, San Francisco, Cal., for Dept, of Fair Employment. Karen MacRae Smith, Washington, D.C., for E.E.O.C. Before WRIGHT, KILKENNY, and CANBY, Circuit Judges. EUGENE A. WRIGHT, Circuit Judge: The Miller-Wohl Company fired Tamara Buley because she missed several days of work. Buley was pregnant. Her pregnancy-related illness caused her absences. The company’s employment policy permits no sick leave nor leave of absence for any illness during the first year of employment. Regardless what illness or condition causes a new employee’s absence, he or she is discharged for missing work. The company claims it applies this policy consistently. Two statutes are involved. The Montana Maternity Leave Act (MMLA) proscribes an employer’s termination of a woman’s employment or refusal to grant a reasonable leave of absence because she is pregnant. Mont.Code Ann. § 39-7-203(1), (2). And in Title VII, the Pregnancy Discrimination Act (PDA), 42 U.S.C. § 2000e(k) (Supp. II 1978), declares that pregnant women shall be treated the same as nonpregnant employees similar in their ability or inability to work. Buley complained to the Montana Commissioner of Labor and Industry who concluded that the discharge violated the MMLA because Miller-Wohl fired her for pregnancy-related absences. Miller-Wohl sued in district court for declaratory relief. It argues that the MMLA conflicts with the PDA because it requires an employer to treat pregnant employees preferentially. It asserts that Title VII preempts the application of the contrary state provision. The company’s argument rests on the plain language of the Pregnancy Discrimination Act, which reads: The terms “because of sex” or “on the basis of sex” include .. . pregnancy . . .; and' women affected by pregnancy . . . shall be treated the same for all employment-related purposes ... as other persons not [pregnant] but similar in their ability or inability to work .... 42 U.S.C. § 2000e(k) (Supp. II 1978). The PDA expressly requires employers to treat pregnant women the same as similarly able nonpregnant persons. Women who are disabled because they are pregnant must be treated the same as women or men who are disabled for any other reason. Because the Montana Act requires Miller-Wohl to treat its pregnant employees differently, the company argues, it violates Title VII. Not unexpectedly, the Commissioner and Buley, defendants in Miller-Wohl’s declaratory judgment action, and amici curiae, including the EEOC, argue that the MMLA does not fail under Title VII. They contend that, although the company’s policy is facially neutral, it violates Title VII because it exerts a disparate impact based on sex. E.g., Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977). See also Abraham v. Graphic Arts International Union, 660 F.2d 811 (D.C.Cir.1981); 29 C.F.R. § 1604.10(c) (1981) (EEOC Guidelines). Because Title VII would require a leave policy to provide a reasonable period for pregnancy, the result achieved by the MMLA, they contend the two statutes do not conflict and both may apply. The district court agreed and granted summary judgment against Miller-Wohl. It held that the company should provide a reasonable leave period for all first-year employees rather than permit no sick leave for pregnant employees. See 29 C.F.R. § 1604.10 (questions & answers 19, 29, 30) (1981). However intriguing these arguments, we conclude this court lacks jurisdiction to decide the question. The federal claims contained in Miller-Wohl’s declaratory judgment complaint are defenses to the employee’s state claim. They fail to create the requisite federal question. See, e.g., Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 673, 70 S.Ct. 876, 879, 94 L.Ed. 1194 (1950); Guinasso v. Pacific First Federal Savings & Loan Association, 656 F.2d 1364, 1366 (9th Cir. 1981), cert. denied, - U.S. -, - - -, 102 S.Ct. 1716-17, 72 L.Ed.2d 138 (1982). The Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, is procedural. It provides an additional remedy, but only in cases resting on some independent basis of federal jurisdiction. Alton Box Board Co. v. Esprit De Corp., 682 F.2d 1267 (9th Cir. 1982). Here, Miller-Wohl’s anticipation of a federal defense to a state claim is insufficient to state that independent basis. Buley’s claim lies entirely within the Montana statute. That Miller-Wohl asserts a preemption defense, in the form of a declaratory judgment complaint, does not change its essential nature as a defense. See Gully v. First National Bank in Meridian, 299 U.S. 109, 112-18, 57 S.Ct. 96, 97-100, 81 L.Ed. 70 (1936) (jurisdictional basis must appear in complaint). Federal law does not impose a remedy by displacing state law, see 42 U.S.C. § 2000e-7, nor does it define rights, duties, or relationships upon which the state claim depends. See Guinasso, 656 F.2d at 1367 & n.7; cf. Franchise Tax Board of California v. Construction Laborers Vacation Trust, 679 F.2d 1307, at 1308 n.1 (9th Cir. 1982) (federal question requirement satisfied in state’s action challenging a trust created under a federal statute and naming a fiduciary defined by and subject to duties contained in federal statutes). All of Miller-Wohl’s defenses that are federal in nature may be raised in its defense in the state courts. Indeed, they all are asserted in the company’s petition for review of the Commissioner’s determination that it violated the MMLA. Every issue pleaded in its federal complaint, as well as several defenses based solely on state law, appear in that complaint. We vacate the district court’s judgment, 515 F.Supp. 1264. It had no jurisdiction, Similarly, we dismiss this appeal because we have no jurisdiction to decide its merits. . Miller-Wohl also invokes the equal protection clause. That claim, like its statutory claim, is directed toward an anticipated application of the MMLA. If any constitutional rights are directly affected, but see Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974); General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), they are those of male employees, not of Miller-Wohl. The company asserts no federal claim of its own, constitutional or statutory, sufficient to confer jurisdiction under either 28 U.S.C. § 1343 or § 1331. See Maine v. Thiboutot, 448 U.S. 1, 8 n.6, 100 S.Ct. 2502, 2506 n.6, 65 L.Ed.2d 555 (1980). Question: What is the specific issue in the case within the general category of "civil rights - voting rights, race discrimination, sex discrimination"? A. voting rights - reapportionment & districting B. participation rights - rights of candidates or groups to fully participate in the political process; access to ballot C. voting rights - other (includes race discrimination in voting) D. desegregation of schools E. other desegregation F. employment race discrimination - alleged by minority G. other race discrimination - alleged by minority H. employment: race discrimination - alleged by caucasin (or opposition to affirmative action plan which benefits minority) I. other reverse race discrimination claims J. employment: sex discrimination - alleged by woman K. pregnancy discrimination L. other sex discrimination - alleged by woman M. employment: sex discrimination - alleged by man (or opposition to affirmative action plan which benefits women) N. other sex discrimination - alleged by man O. suits raising 42 USC 1983 claims based on race or sex discrimination Answer:

songer_usc2sect

1332

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 28. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". PAN AMERICAN PETROLEUM CORPORATION, Appellant, v. KANSAS-NEBRASKA NATURAL GAS COMPANY, Inc., Appellee. No. 16583. United States Court of Appeals Eighth Circuit. Jan. 12, 1962. Byron M. Gray, Topeka, Kan., for appellant; Wilbur W. Heard and John F. Jones, Tulsa, Okl., on the brief. Ezekiel G. Stoddard, Washington, D. C., for appellee; James D. Conway and Elmer J. Jackson/ 'Hastings, Neb., on the brief. Before VOGEL and BLACKMUN, Circuit Judges, and BECK, District Judge. VOGEL, Circuit Judge. This is an appeal from a judgment allowing appellee, Kansas-Nebraska Natural Gas Company, Inc., recovery of alleged overpayments for natural gas purchased from Pan American Petroleum Corporation, appellant. Appellee is a Kansas corporation engaged in the purchase, production, transmission, distribution and sale of natural gas in the states of Kansas, Nebraska and Colorado. It concededly comes within the definition of a natural-gas company (15 U.S.C.A. § 717a(6)) in the Natural Gas Act, 15 U.S.C.A. §§ 717-717w, as amended, hereinafter referred to as the Act. Appellant is a Delaware corporation engaged in the production and sale of natural gas in interstate commerce from wells in the Kansas Hugoton Field. The amount in controversy exceeds $10,000, exclusive of interest and costs. (28 U.S.C.A. § 1332(a) as amended.) The case, tried to the court upon the pleadings and a written stipulation of facts, involved sales of natural gas from the Hugoton Field to appellee for transportation and resale by the latter in interstate commerce. These sales were made pursuant to three separate contracts dated October 8, 1949, March 28, 1950, and March 11, 1952, which provided for wellhead prices of 70 per MCF (thousand cubic feet), 7.50 per MCF and 100 per MCF respectively. The pressure base under each contract was 16.4 p. s. i. a. (pounds per square inch absolute). The contract of March 28, 1950, stipulated as being representative of all three contracts, provided for wellhead prices of gas for five years from date of first delivery at 70 per MCF at 16.4 p. s. i. a.; for the second five years at 80. Included also was the following provision: “If the Kansas Corporation Commission, the Federal Power Commission, or any other governmental agency, whether State or Federal, having competent jurisdiction, at any time during the term of this contract fixes or determines a higher price for gas in the Kansas Hugoton Field than is set forth in this Section 1, (a), (b) and (c), the Buyer shall pay Seller the price thus fixed or determined, provided, however, that the price to be paid by Buyer to Seller shall at no time during the contract period hereof be less than the price set out * * Subsequently, the Kansas Corporation Commission, by order dated December 2, 1953, set a minimum price of 110 per MCF measured at a standard pressure base of 14.65 p. s. i. a. for natural gas at the wellhead from the Hugoton Field. In January, 1954, appellee and Cities Service Gas Company instituted review proceedings of this order in a Kansas state court. Appellee, however, to avoid expense and upon assurances that Cities Service would continue the suit, withdrew without prejudice from the review action. Before final decision of the Kansas Supreme Court in these review proceedings, appellee, by letter dated February 18, 1954, and speaking of the 110 order, notified appellant as follows: “During the period of appeal and pending final judicial determination of said Order, beginning January 1, 1954, Kansas-Nebraska Natural Gas Company, Inc., intends to pay for all gas purchased by it in the Kansas Hugoton Field in compliance with said Order. This compliance, however, is made to avoid any penalties or actions under the laws of Kansas for any violation, and all payments made to you in compliance with said Order, pending its final judicial determination will be paid to you under protest and as involuntary payments on our part, all without prejudice to our rights. Should the said order be modified or declared to be invalid either in whole or in part, any and all over-payments made to you by virtue thereof shall be due and owing Kansas-Nebraska Natural Gas Company, Inc. In event of any such overpayments, the amount shall be withheld from subsequent payments in the event you have not made full settlement of any overpayment.” The checks given by appellee and accepted by appellant for gas thereafter purchased referred to the above letter and noted that payment was being made subject to the terms thereof. On March 3, 1954, as a result of the 11^ order, appellee applied for permission from the Kansas Corporation Commission to increase its rates for the sale of natural gas, which permission was granted. A similar application was subsequently made to, and granted by, the FPC effective as of January 1, 1955. On June 7, 1954, Phillips Petroleum Co. v. State of Wisconsin was decided by the Supreme Court of the United States, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035. Thereby the jurisdiction of the FPC under the Act was, for the first time, extended to include the regulation of sales of natural gas by independent producers, such as appellant, who resell in interstate commerce. Pursuant to this decision, the FPC on July 16, 1954, issued its order No. 174 requiring, inter alia, that: (1) All natural gas companies subject to the Act obtain a certificate of public convenience and necessity before engaging in any transportation or sale of natural gas; (2) under § 4 of the Act (15 U.S.C.A. § 717c) the filing of schedules show all rates and charges incident thereto; and (3) by regulation, no independent producer make any change in rates in effect on and after June 7, 1954, without first filing a change in rates pursuant to § 4(d) of the Act (15 U.S.C.A. § 717c(d)). The rules and regulations adopted by such order were made applicable on and after June 7, 1954, the date of the Phillips decision, supra. In accordance with this order, appellant in November, 1954, tendered to the FPC its rate schedule of gas sold appellee under the October 8, 1949, March 29, 1950, and March 11, 1952, contracts; a copy of said contracts; a copy of the Kansas ll<f order and a copy of the billing for gas sold appellee during May, 1954. Appellant simultaneously mailed appellee copies thereof, stating that they had been-filed with the FPC in compliance with the latter’s order No. 174-A. Thereafter by letter dated March 8, 1955, the FPC advised appellant that its rate filings “have been accepted for filing” and: “This acceptance for filing shall not be construed, as a wrnver of the requirements of Section 7 of the Natural Gas Act, as amended; nor shall it be construed as constituting approval of any rate, charge, classification, or any rule, regulation or practice affecting such rate or service contained in the rate filing; nor shall such acceptance be deemed as recognition of any claimed contractual right or obligation associated therewith; and such acceptance is without prejudice to any findings or orders which have been or may hereafter be made by the Commission in any proceeding now pending or hereafter instituted by or against your company.” (Emphasis supplied.) The only information appellee had of the FPC’s acceptance of appellant’s rate filings was the latter’s letter of May 10, 1955, with an enclosure of a copy of the FPC’s letter of acceptance. Apparently this information was furnished appellee in conformity with a letter dated November 23, 1954, wherein appellee requested data as to the steps taken by appellant in compliance with Order No. 174-A. In 1957 the State of Kansas enacted a 1% severance tax on natural gas to become effective July 1, 1957. In regard thereto, appellee informed appellant that pursuant to the original gas-purchase contracts it would share one-half of this tax burden, but that first, since such would constitute an increase in rate, appellant, under FPC regulations, was required to file such increased rate with the FPC before it would become effective. In conformity with the applicable FPC regulations, appellant on June 28, 1957, by letter submitted an increased rate schedule of 11.055?! which reflected appellee’s share of said severance tax. This letter of transmittal contained a “Comparison of prices prior to and subsequent to such change in price (cents per MCF)”, showing an 11(6 base price per MCF as of June 30, 1957, and as of July 1, 1957, a total price per MCF of 11.055?!. By letter to the appellant dated August 19, 1957, the FPC notified the former of the acceptance of such new rate for filing. The letter also contained a cautionary paragraph similar to the one contained in the letter of March 8, 1955, supra. Appellee was notified of the FPC’s action in this regard by appellant’s letter of August 29, 1957. The review proceedings instituted by appellee and Cities Service, spoken of earlier, resulted in a decision of the Kansas Supreme Court on December 8, 1956, sustaining the 11 order. Cities Service Gas Co. v. State Corporation Commission of Kansas, 180 Kan. 454, 304 P.2d 528. This decision was reversed by the Supreme Court of the United States. Cities Service Gas Co. v. State Corporation Commission of Kansas, 1958, 355 U.S. 391, 78 S.Ct. 381, 2 L.Ed.2d 355. Thereafter, on April 11,1959, the Kansas Supreme Court held that the result of the reversal in Cities Service, supra, was to render the Kansas 11(6 order void ab initio. Cities Service Gas Co. v. State Corporation Commission of Kansas, 184 Kan. 540, 337 P.2d 640, certiorari denied 361 U.S. 836, 80 S.Ct. 89, 4 L.Ed.2d 77. The Kansas severance tax had earlier been held invalid by the Kansas Supreme Court. State ex rel. Dole v. Kirchner, 1958, 182 Kan. 622, 322 P.2d 759. By letters dated January 23, 1958, and February 18, 1958, appellee, relying upon the judicially determined invalidity of the severance tax and Kansas 11(6 order, advised appellant and other sellers of gas from the Hugoton Field that future payments would be calculated on the basis of the contract rates effective January 7, 1954, and would not include reimbursement for any share of the severance tax; also, that pursuant to its letter of February 18, 1954, refunds for the excess payments involuntarily made under the invalid 11?! order would be requested. Upon appellant’s denial of appellee’s claim for recovery of such alleged overpayments, this suit was commenced. No claim is being made for recovery of appellee’s share of the Kansas severance tax. Appellant filed a counterclaim for recovery of the difference, plus interest, between the amounts paid to it after January 1, 1958, and the amounts it alleges should have been paid to it under the rate of 11.055(6. It was stipulated that appellee took no action before the FPC in relation to any of the rate filings mentioned above, nor did it seek to stay the effectiveness of the Kansas 11?! order except by its earlier participation in the action by Cities Service Gas Company. The trial court handed down an oral decision from the bench, subsequently making formal Findings and Conclusions. It found, inter alia, that: “ * * * the Kansas 11(6 Order was void ab initio and never had any legal validity because at the time the Order was issued and at all times thereafter the Federal Power Commission had, under the Natural Gas Act, the exclusive jurisdiction over such sales and the Kansas State Corporation Commission had no jurisdiction over such sales” and “ * * * there was no determination by the FPC that 11.055(6 was a reasonable rate or the legal rate * * *» In its Conclusions the court, after noting jurisdiction under 28 U.S.C.A. § 1332, observed: “The interpretation and enforcement of the contracts between the parties on file with the FPC and granting relief to Plaintiff [appellee] does not require this Court to determine the reasonableness of the rates on file with the FPC nor to determine what constitutes reasonable rates” and “Plaintiff’s action to recover the overpayments -made under compulsion of the Kansas 110 Order does not constitute a collateral attack on any order or determination of the FPC and does not attack or challenge any rate schedules on file with the FPC. Plaintiff’s action merely requires the proper interpretation under the law of what constituted the legal rates under its contracts filed as rate schedules and the enforcement of such rate schedules as so properly interpreted.” The court, relying upon United Gas Pipe Line Co. v. Mobile Gas Service Corp., 1956, 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373, and United Gas Pipe Line Co. v. Memphis Light, Gas & Water Div., 1958, 358 U.S. 103, 79 S.Ct. 194, 3 L.Ed.2d 153, held: “ * * * The legally effective rate under each rate schedule was the price which Defendant was entitled to receive and Plaintiff was obligated to pay on June 7, 1954 under the terms of each contract, and not the 110 per Mcf price that was actually being paid under compulsion of the Kansas lijé Order. ****** “The supplemental rate filings made by Defendant in July 1957 pursuant to Order No. 197 did not constitute 11.0550 per Mcf as the legally valid rate under the three rate schedules. The supplemental filings merely authorized an increase in the contractual rates effective as of June 7, 1954, by permitting Plaintiff to pay and Defendant to receive, in addition to those rates, the amount of one-half of the Kansas state severance tax of 1%. Since Plaintiff was actually paying 115! per Mcf at that time under compulsion of the invalid Kansas 110 Order (pending ultimate judicial determination of the validity of that Order), the 1% severance tax was measured on the basis of 110 per Mcf, making the tax 0.1100 per Mcf and making Plaintiff’s share .0550 per Mcf. In accepting such supplemental filings there was no determination by the FPC that 11.0550 was a reasonable rate or the legal rate under the contracts filed as rate schedules.” In so holding the court noted: “The instant contract contains a specific rate or rates. By reason of an invalid order of the Kansas Commission, a higher rate has been collected. The order fixing the invalid rate was void from its beginning. To this Court, therefore, it would seem to be unjust to permit the defendant to retain the amounts thus unlawfully collected.” Accordingly, judgment was given for .appellee for the full amount of the alleged overpayments, $20,831.82 plus interest and appellant’s counterclaim was dismissed. Appellant’s assignments of error are concerned essentially with the alleged infringement by the trial court of the exclusive primary jurisdiction of the FPC. It points out initially that appellee’s action can succeed only as an enforcement action under § 22 of the Act (15 U.S.C.A. § 717u). In this regard appellant contends that while the court disclaimed making any collateral attack upon the filed rate with the FPC but, rather, stated the action to be one to enforce filed rate schedules (§22 supra), yet the court noted the derivation of its jurisdiction to be 28 U.S.C.A. § 1332 (diversity and amount). Appellant contends that by the Commission accepting the tendered rates for filing which were based upon the Kansas 11^ order and the severance tax, such rates became the “effective” or “legal” filed rates and could be changed only by FPC action under § 5(a) of the Act (15 U.S.C.A. § 717d(a)). From this they reason that the only way the action could be questioned would be by the review procedure provided by § 19 of the Act (15 U.S.C.A. § 717r as amended), and that appellee, not having utilized such appeal procedure, is now precluded from questioning collaterally the FPC “orders” here involved on grounds that the latter are now res judicata,. They further contend that the trial court, by “nullifying” the orders of the FPC accepting the 11(£ and 11.055^ rates, has usurped the power of the Courts of Appeals under § 19 of the Act. First, with reference to the question of jurisdiction, it is noted that the requirements of 28 U.S.C.A. § 1332 as to diversity of citizenship and amount involved are fully satisfied. Unless the provisions of the Natural Gas Act bar jurisdiction of the district court, the action has been properly brought and the court acquired and maintained jurisdiction of the parties and of the subject matter in suit. We think the answer is found in the recent case of the Supreme Court of the United States, Pan American Petroleum Corp. v. Superior Court of Delaware, 1961, 366 U.S. 656, 81 S.Ct. 1303, 6 L.Ed.2d 584. The sole issue there was whether the Delaware Superior Court could take jurisdiction of a case which was bottomed on circumstances identical with those involved herein. The Delaware Supreme Court had sustained its lower court’s finding of jurisdiction, stating that the claims of Cities Service “ * * * are not founded upon any liability created by the Natural Gas Act, but upon a private contract deriving its force from state law.” (Emphasis in the original.) Columbian Fuel Corp. v. Superior Court of Delaware, Del.1960, 158 A.2d 478, 482. In affirming the Delaware court, Mr. Justice Frankfurter said, at page 663 of 366 U.S., at page 1307 of 81 S.Ct.: “The rights as asserted by Cities Service are traditional common-law claims. They do not lose their character because it is common knowledge that there exists a scheme of federal regulation of interstate transmission of natural gas.” At page 664 of 366 U.S., at page 1308 of 81 S.Ct.: “ * * * We are not called upon to decide the extent to which the Natural Gas Act reinforces or abrogates the private contract rights here in controversy. The fact that Cities Service sues in contract or .quasi-contract, not the ultimate validity of its arguments, is decisive.” We conclude here that the District Court had jurisdiction of the controversy under 28 U.S.C.A. § 1332. Appellant next refers to §§ 4 and 5 of the Act (15 U.S.C.A. §§ 717c and 717d) as giving specific authority to the FPC with respect to rates and argues that the action of the District Court was an invasion of the FPC’s “exclusive and primary jurisdiction”. In United Gas Pipe Line Co. v. Mobile Gas Service Corp., supra, 1956, 350 U.S. 332, 341, 76 S.Ct. 373, 379, 100 L.Ed. 373, the Supreme Court said: “ * * * These sections [§§ 4 and 5 of the Act] are simply parts of a single statutory scheme under which all rates are established initially by the natural gas companies, by contract or otherwise, and all rates are subject to being modified by the Commission upon a finding that they are unlawful. The Act merely defines the review powers of the Commission and imposes such duties on natural gas companies as are necessary to effectuate those powers; it purports neither to grant nor to define the initial rate-setting powers of natural gas companies. “The powers of the Commission are defined by §§ 4(e) and 5(a). The basic power of the Commission is that given it by § 5 (a) to set aside and modify any rate or contract which it determines, after hearing, to be ‘unjust, unreasonable, unduly discriminatory, or preferential.’ This is neither a ‘rate-making’ nor a ‘rate-changing’ procedure. It is simply the power to review rates and •contracts made in the first instance by natural gas companies and, if they are determined to be unlawful, to remedy them. * * * The scope and purpose of the Commission’s review remain the same — to determine whether the rate fixed by the natural gas company is lawful.” At page 343 of 350 U.S., at page 380 of 76 S.Ct.: “ * * * The initial rate-making and rate-changing powers of natural gas companies remain undefined and unaffected by the Act.” In the instant case, the jurisdiction of the FPC to determine the lawfulness of the rates involved has not been brought to bear. There has been no request for a hearing before the FPC, either on its own motion or on the motion of anyone else, to have determined the lawfulness of the rates under the “just and reasonable” standard of § 4(e) (15 U.S.C.A. § 717c(e)). The court here was not asked to adjudicate any violation of the Act or to enforce any liability created thereby under § 22 of the Act (15 U.S. C.A. § 717u), supra. Appellee’s claims for refund because of alleged overpayment are not founded on any liability created by the Act but arise solely out of the contracts between the parties, which they had a perfect right to make and which are binding upon them, unaffected by the Act unless there has been a finding on the part of the FPC that the rates were unlawful as being unjust and unreasonable. Such a finding by the FPC could only be made after a hearing initiated on its own motion or by that of interested parties. ■ Appellant nevertheless argues that by the FPC’s acceptance of the tendered rates based partially on the Kansas 110 order and the 1% severance tax, these rates became “effective or legal” and effectively changed the contract rate between the parties. Answer to this contention is in the letter from the FPC dated March 8, 1955, and subsequent letters accepting rate filings by the appellant, wherein the FPC stated, “ * * * acceptance for filing shall not be construed as a waiver * * *; nor shall it be construed as constituting approval of any rate, charge, classification, or any rule, regulation or practice affecting such rate or service contained in the rate filing ; nor shall such acceptance be deemed as recognition of any claimed contractual right or obligation associated therewith; and such acceptance is without prejudice to any findings or orders which have been or may hereafter be made by the Commission * * No order was issued and no approval was given and no determination of any kind was made by the FPC. It should also be remembered that the contracts between the parties specifically provided that if the Kansas Corporation Commission, the FPC, or any other governmental agency, whether state or federal, having competent jurisdiction, should determine a higher price for gas, such higher price would be paid. When the Kansas 11 ^ order was made, the appellee took the position by letter that it would pay the increased rate but that if such order was subsequently declared invalid, such overpayments were to be due appellee. Checks in payment of gas thereafter carried the notation that payment was being made subject to the terms of such letter. When the Supreme Court of the United States in Cities Service Gas Co. v. State Corporation Commission of Kansas, 1958, 355 U.S. 391, 78 S.Ct. 381, 2 L.Ed.2d 355, held the Kansas 11¢ order unlawful and the Supreme Court of Kansas, in Cities Service Gas Co. v. State Corporation Commission of Kansas, 1959, 184 Kan. 540, 337 P.2d 640, certiorari denied 361 U.S. 836, 80 S.Ct. 89, 4 L.Ed. 2d 77, held in accordance with such decision that the Kansas llfá order was void db initio, the effect was that the order became a complete nullity. Being a nullity, it could not modify the contract rates between the parties. The effect could only have been to leave the parties where they were prior to the unlawful order — in other words, bound by the contract rates to which they had agreed in 1949, 1950 and 1952. A parallel of reasoning is applicable to the Kansas 1% severance tax subsequently held invalid by the Kansas Supreme Court, State ex rel. Dole v. Kirchner, supra. In dealing with a similar problem involving an order of the Oklahoma Commission establishing a minimum rate, which order was found to be invalid, the Court of Appeals for the Third Circuit in Natural Gas Pipeline Co. of America v. F. P. C., 1958, 253 F.2d 3, 7, certiorari denied sub nom. Dorchester Corp. v. Natural Gas Pipeline Co., 357 U.S. 927, 78 S.Ct. 1372, 2 L.Ed.2d 1370, said: “* * * When the United States Supreme Court found Oklahoma’s action to have been unlawful and set the state commission order aside, there was no longer even the semblance of a valid law, or lawful order which could modify the contract rate. The contract rate, therefore, under the mandate of the Supreme Court must be held to have been the rate effective on June 7, 1954.” The Tenth Circuit, in Cities Service Gas Co. v. F. P. C., 1958, 255 F.2d 860, certiorari denied sub nom. Magnolia Petroleum Co. v. Cities Service Gas Co., 358; U.S. 837, 79 S.Ct. 61, 3 L.Ed.2d 73, in-dealing with the same Kansas order with which we are here concerned, said: “ * * * The Act recognizes the rights of the parties to set rates by individual contract and abrogates none of the usual contract rights except for the reviewing powers granted the Commission upon hearing. * * * (255 F.2d at 864.) ****** « * * * jn present case, as in the Mobile case, no hearing has been held to determine the propriety of the filed rate. When the United-States Supreme Court struck down-the Kansas order, there was no longer a valid order which could modify the contract rate, and the contract rate was the rate effective on June-7, 1954. See Natural Gas Pipeline Co. of America v. Federal Power Commission, supra.” (255 F.2d 865.) (Emphasis supplied.) Support for the proposition that the Natural Gas Act is not inconsistent with agreements between the parties for repayments in the event certain increases in rates are held void is found in Natural Gas Pipeline Co. of America v. Harrington, 5 Cir., 1957, 246 F.2d 915, certiorari denied 356 U.S. 957, 78 S.Ct. 992, 995, 2 L.Ed.2d 1065. Therein recovery was sustained for the difference between the contract rate and the price paid under order of the Oklahoma Corporation Commission, which order was subsequently held to be invalid, as was the Kansas. Ilf! order here. The Supreme Court, in holding that the Natural Gas Act does not give the right to gas companies to abrogate their contract obligations and increase at will their price of gas by filing new rate schedules, subject only to the FPC’s approval under § 4(e) (15 U.S.C.A. § 717c (e)), stated in United Gas Pipe Line Co. v. Memphis Light, Gas & Water Div., supra, 1958, 358 U.S. 103, 113-114, 79 S.Ct. 194, 200: “ * * * This concern [protection of the public from excessive rates as well as the financial stability of natural gas companies] was surely a proper one for Congress to take into account in framing its regulatory scheme for the natural gas industry, cf. Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 603 [64 S.Ct. 281, 88 L.Ed. 333], and we think that it did .so not only by preserving the ‘integrity’ of private contractual arrangements for the supply of natural gas, [United Gas Pipe Line Co. v. Mobile Gas Service Corp.] 350 U.S. [332], at 344 [76 S.Ct. 373, at 380, 100 L.Ed. 373] (subject of course to .any overriding authority of the Commission), but also by providing in § 4 for the earliest effectuation of contractually authorized or otherwise permissible rate changes consistent with appropriate Commission review.” Appellant has cited cases dealing with the Interstate Commerce Commission as .authority for the proposition that “it would destroy the purpose of the Interstate Commerce Act to permit a court to reach behind the rate on file with the Commission and collaterally revise the rate properly on file with the Commission”, stating that this doctrine has been followed without deviation and citing Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 1907, 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553; T. I. M. E., Inc. v. United States, 1959, 359 U.S. 464, 79 S.Ct. 904, 3 L.Ed.2d 952. The answer to that attempt to draw a parallel between the Interstate Commerce Act and the Natural Gas Act is found in Mobile, supra, at pages 338 and 339 of 350 U.S., at page 378 of 76 S.Ct., where the Supreme Court said: “In construing the Act [the Natural Gas Act], we should bear in mind that it evinces no purpose to abrogate private rate contracts as such. To the contrary, by requiring contracts to be filed with the Commission, the Act expressly recognizes that rates to particular customers may be set by individual contracts. In this respect, the Act is in marked contrast to the Interstate Commerce Act, which in effect precludes private rate agreements by its requirement that the rates to all shippers be uniform, a requirement which made unnecessary any provision for filing contracts. See Armour Packing Co. v. United States, 209 U.S. 56 [28 S.Ct. 428, 52 L.Ed. 681], The Commission in its brief recognizes this basic difference between the two Acts and notes the differing natures of the industries which gave rise to it. The vast number of retail transactions of railroads made policing of individual transactions administratively impossible; effective regulation could be accomplished only by requiring compliance with a single schedule of rates applicable to all shippers. On the other hand, only a relatively few wholesale transactions are regulated by the Natural Gas Act and these typically require substantial investment in capacity and facilities for the service of a particular distributor. Recognizing the need these circumstances create for individualized arrangements between natural gas companies and distributors, the Natural Gas Act permits the relations between the parties to be established initially by contract, the protection of the public interest being afforded by supervision of the individual contracts, which to that end must be filed with the Commission and made public.” (Emphasis supplied.) Inasmuch as there has been no hearing before the FPC to determine the lawfulness of the rates specified in the contracts between the parties, and no orders have been made by the FPC approving, rejecting or in any way affecting such rates, the “integrity” of the private contractual arrangements between the parties, as referred to by the Supreme Court in Memphis, supra, remains unaffected. The action of the District Court here has preserved that integrity. Appellant’s contention that the doctrine of res judicata is applicable cannot be maintained as the FPC issued no orders and made no determinations. Appellant’s further claim that the trial court usurped the power of the Courts of Appeals under § 19 of the Act (15 U.S.C.A. § 717r as amended) is for the same reason without merit. Affirmed. . Order No. 174 was subsequently amended pertinent to this appeal. . - by Nos. 174-A' and 174-B in matters not . Apparently the court here has reference to the contract stipulated as being representative of all three contracts. . § 22. “The District Courts of the United States * * * shall have exclusive jurisdiction of violations of this chapter or the rules, regulations, and orders thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by, or to enjoin any violation of, this chapter or any rule, regulation, or order thereunder. * * *»» . § 5. This section provides in part: “Whenever the Commission, after a hearing had upon its own motion or upon complaint * * * shall find that any rate * * * is unjust * * * the Commission shall- determine, the just and reasonable rate * * * and shall fix same by order * * . § 19. This section provides for review of a -Commission order, after rehearing •by the Commission, in a United States Court iof Appeals. ' 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 28? Answer with a number. 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. BIG LAKE OIL CO. v. COMMISSIONER OF INTERNAL REVENUE. No. 6449. Circuit Court of Appeals, Third Circuit. Feb. 18, 1938. Rehearing Denied April 19, 1938. Edgar J. Goodrich, of Washington, D. C., and S. Leo Ruslander, of Pittsburgh, Pa., for petitioner. James W. Morris, Asst. Atty. Gen., and Sewall Key and L. W. Post, Sp. Assts. to Atty. Gen., for respondent. Before BUFFINGTON, THOMPSON, and BIGGS, Circuit Judges. THOMPSON, Circuit Judge. This is a petition for review of a decision of the Board of Tax Appeals determining a deficiency in the petitioner’s income tax for 1927. The issue is whether the amount of $598,571.01, the agreed fair market value of certain shares of common stock received by the petitioner, should be included in the petitioner’s taxable income for 1927. The determination of this issue is dependent upon whether the shares were received by the petitioner in 1927 or in some prior year. The shares of stock were acquired by the petitioner under the following circumstances: The petitioner and others, hereinafter referred to as the producers, were engaged in producing and selling petroleum oil from wells in Reagan county, Texas. In prder to procure access to pipe lines by which to transport the oil to market, the petitioner and the producers, in a contract dated October 22, 1924, agreed to sell to Marland Oil Company, hereinafter referred to as Marland, or its nominee, all the oil they should produce up to an agreed maximum amount. Marland agreed to organize Reagan County Purchasing Company, Inc., hereinafter referred to as Reagan, and to provide the necessary working capital for Reagan by the purchase of its preferred stock at par. This stock was to be retired out of the profits of the company. Marland was to receive 51 per cent, of the common stock. The petitioner and the producers were to share the remaining 49 per cent, temporary certificates for which were to be issued in the name of the petitioner for one-half and in the names of the producers jointly for the other half. The final several ownership of the 49 per cent, was to be determined in accordance with the terms of a separate agreement between the petitioner and the producers. This agreement was evidenced by a letter dated October 19, 1924, in which it was agreed that the division be made among the petitioner and the producers as soon after December 1, 1926, as convenient, based proportionately upon the amount of oil which each should deliver towards the daily quota of 20,000 barrels during a test period from December, 1925, to December, 1926. In a contract dated November 24, 1924, the petitioner and the producers agreed to sell to Reagan, and Reagan agreed to purchase, a maximum of 20,000 barrels of oil daily. Reagan likewise agreed to provide the necessary pipe lines. On January 2, 1926, an escrow agreement was executed which provided that the temporary certificates issued in the names of the petitioner and the producers be deposited with the escrow agent, and that the shares of stock represented by the certificates could not be sold, assigned, or transferred (except to Marland, the petitioner, or to the producers) so long as any of the preferred stock had not been retired. The certificates were deposited with the escrow agent on March 12, 1926. During the test period the petitioner and •the producers each delivered more than 10,--000 barrels of oil daily; thus entitling the petitioner to one-half of the 49 per cent, of common stock and the producers to one-half. The- last remaining preferred stock was retired and the escrow was terminated in January, 1927. The petitioner received a certificate for 2,450 shares, free of restrictions in March, 1927; the shares having an agreed fair market value of $598,-571.01. The petitioner did not report any income from the receipt of these shares for 1927 or for any prior year. The Commissioner determined that the petitioner received the shares in 1927. Section 213 of the Revenue Act of 1926, c. 27, 44 Stat. 9, 23, requires that all items of gross income shall be included for the taxable year in which received by the taxpayer. Stoner v. Commissioner of Internal Revenue, 3 Cir., 79 F.2d 75, certiorari denied Helvering v. Stoner, 296 U.S. 650, 56 S.Ct. 309, 80 L.Ed. 462; Taylor v. Commissioner of Internal Revenue, 7 Cir., 89 F.2d 465; United States v. Safety Car Heating Co., 297 U.S. 88, 95, 56 S.Ct. 353, 356, 80 L.Ed. 500. Until 1927, when the escrow was terminated, the petitioner not only lacked either actual possession or control, but the number of shares to which it would ultimately be entitled was dependent upon future tests and the shares themselves were burdened with restrictions until and if Reagan earned sufficient profits to retire the preferred shares. It is our opinion that the petitioner realized no income pending determination of the true and ultimate ownership and that this did not occur until 1927. The decision of the Board of Tax Appeals is affirmed. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:

songer_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. Bobby Ray KINES, Plaintiff, Appellant, v. John DAY, et al., Defendants, Appellees. No. 84-1425. United States Court of Appeals, First Circuit. Argued Oct. 1, 1984. Decided Feb. 5, 1985. G. Richard Shell, Boston, Mass., with whom Nonnie S. Burnes and Hill & Barlow, Boston, Mass., were on brief, for plaintiff, appellant. Roberta Thomas Brown, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief, for defendants, appellees. Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and WEIGEL, Senior District Judge. Of the Northern District of California, sitting by designation. WEIGEL, Senior District Judge. Bobby Ray Kines, an inmate at the Massachusetts Correctional Institute in Walpole, brought this Section 1983 action challenging the constitutionality of the prison’s “Publishers Only Rule”. The Rule limits the sources from which prisoners may receive reading material. The district court decided that the Rule did not on its face violate the First Amendment and limited trial to the question of the constitutionality of the Rule as applied. Evaluating the evidence on that basis, the district court held Kines’ challenge to the Rule as applied was not ripe for decision and did not present a justiciable controversy. We affirm. I. The MCI-Walpole Publishers Only Rule has been in effect since December 14, 1979. Its central provision is that “[a]n inmate may receive hardcover, softcover and newspaper publications only from the publisher, from a book club, from a book store or news store.” 103 WAL 650.04(4.1). The Rule provides for a limited exception: “The Superintendent or his designee may, under special circumstances, approve soft cover books to enter, after inspection, via visits.” 103 WAL 650.05(5.2). Prison regulations also limit prisoners to receiving one package of personal property per month. 103 WAL 403.08(B)(3). This limit applies to packages containing books and magazines, as well as other forms of personal property. Inmates are allowed to subscribe to newspapers and magazines, apparently without limit. Inmates in the general population at MCI-Walpole have access to an institutional library with a general (non-law) collection of 4,000 to 5,000 books, four daily newspapers, three weeklies, one monthly, and 27 magazine subscriptions. The institution librarian testified that inmates can also make written requests for books not available in the library and that she undertakes to fill such requests by borrowing from the Walpole Public Library and other libraries in the region. Library records show that Kines was in the library nine times between December 1983 and March 1984. The librarian recalled that Kines had inquired after particular books and that she told him the library did not have them. Kines declined to fill out a request slip for those books although the librarian informed him that he could do so. At trial Kines listed a number of books he wanted that were not in the institution library. Some appear to be out of print. There was no showing that the listed books were unavailable from the outside libraries. There was also testimony that friends had sent books to Kines through a bookstore and that some were' delivered. In addition, Kines was once allowed to receive two paperback books on woodworking that had been brought by a visitor. II. In rejecting Kine’s challenge to the Publishers Only Rule as written, the district court correctly held that the Rule does not on its face violate the First Amendment. The Supreme Court’s decision in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1971), compels this conclusion. In Bell the Court upheld a “publishers only” rule in place at the New York Metropolitan Correctional Center. The Court acknowledged that “convicted prisoners do not forfeit all constitutional protections” but noted that “[t]he fact of confinement as well as the legitimate goals and policies of the penal institution limits these retained constitutional rights.” Id. at 545-46, 99 S.Ct. at 1877-78 (citations omitted). The Court further noted that prison administrators “should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Id. at 546-47, 99 S.Ct. at 1877-78. In examining the publishers only rule before it in Bell, the Supreme Court considered such factors as: (1) The security risks associated with hardcover books (they can be used to secrete contraband); (2) the content-neutral operation of the rule; (3) the availability of other sources for written works, including the institution library; and (4) the brief terms of confinement for most inmates at the Metropolitan Correctional Center. The Court concluded that the publishers only rule challenged in Bell was reasonable as to time, place and manner and necessary to further significant governmental interests. See Id. at 552, 99 S.Ct. at 1881. ' While there are differences between the MCI-Walpole Publishers Only Rule and that upheld in Bell, the analysis employed by the Supreme Court in Bell is nonetheless applicable. Although the rule considered in Bell applied only to hardback books, and the decision specifically emphasized the security risks associated with hardbacks (441 U.S. at 550-51, 99 S.Ct. at 1880-81) many of these risks are posed by paperbacks as well. See Cotton v. Lockhart, 620 F.2d 670, 672 (8th Cir.1980) (“[Rjeceipt of softcover as well as hardback books poses a substantial security problem[.]”). In light of the deference accorded prison administrators under Bell, we must conclude that the MCI-Walpole Rule serves a significant government interest in internal security. Similarly, the fact that Bell involved a pre-trial detention center rather than a prison does not distinguish it from the present case. The decision in Bell did note the brief periods of incarceration for the inmates in question as a factor that mitigated the deprivation caused by the challenged rule. 441 U.S. at 552, 99 S.Ct. at 1881. However, in the present case, as in Bell, the more important mitigating factor is that “there are alternative means of obtaining reading material that have not been shown to be burdensome or insufficient.” Id. at 551, 99 S.Ct. at 1881. In addition to having an institutional library, as did the inmates in Bell, inmates at MCI-Walpole have available a procedure for requesting books from other libraries. Moreover, the MCI-Walpole Rule provides on its face for exceptions when paperbacks are brought in by visitors. The district court was also correct in its determination that the MCI-Walpole institutional order limiting inmates to receiving one package per month did not render the Publishers Only Rule invalid on its face. The order might be significant in determining whether the Publishers Only Rule is constitutional as applied, if it were shown that the order limiting packages, in combination with the Publishers Only Rule, significantly restricts inmates’ access to reading material. Without such a showing, however, the one package per month restriction does not distinguish the Rule in this case from that upheld in Bell. III. A determination that a rule is not unconstitutional on its face does not foreclose challenges to its actual operation. An inmate may sue if an otherwise valid rule is being applied to him in an unconstitutional manner. However, challenging a rule as applied often requires more specific allegations of harm than are necessary to test facial validity. A constitutional challenge to a rule as written may constitute a case or controversy appropriate for adjudication in an Article III forum even without a showing of specific or immediate harm. See, e.g., Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22 (1965). However, once the rule has been adjudged constitutional on its face there is no presumption of harm. To present a justiciable claim a “plaintiff ... must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979). In other words, a challenge to a rule or statute may be ripe for, adjudication on the question of facial constitutionality and yet not be ripe for adjudication on the question of constitutionality as applied. See, e.g., Grayned v. City of Rockford, 408 U.S. 104, 121 & n. 50, 92 S.Ct. 2294, 2306 n. 50, 33 L.Ed.2d 222 (1972) (upholding noise control ordinance but reserving decision on constitutionality of possible applications); Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403 (1961) (upholding ordinance requiring licensing of films prior to public exhibition) and Teitel Film Corp. v. Cusack, 390 U.S. 139, 88 S.Ct. 754, 19 L.Ed.2d 966 (1968) (invalidating same ordinance as applied); Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517 (1952) (upholding New York statutory scheme for identifying and removing subversive school teachers) and Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967) (invalidating portions of same statutory scheme as applied). Although Kines’s challenge to the constitutionality of the MCI-Walpole Rule as written was justiciable, once that challenge was correctly denied, the justiciability of Kines’s “as applied” challenge presented a separate question. As the court below observed: Absent proof of circumstances of actual denial of access to identified published materials, this court cannot reach the constitutional issue posed by plaintiff ____ Plaintiff has never applied to the Superintendent for permission to receive an out-of-print book, unobtainable from the publisher, from an alternative source. Opinion, May 4, 1984, at 6. In this case, the evidence before the trial court was not sufficient to show that the Rule as applied violated Kines’ constitutional rights. Speculation, rather than solid evidence, would have been the only basis for any such conclusion. Therefore, the district court was correct in concluding that Kines’ constitutional claims based upon application of the Rule were not ripe for decision. As the Supreme Court noted in Bell, in adjudicating the constitutionality of a publishers only rule, “ ‘we [are] called upon to balance First Amendment rights against [legitimate] governmental ... interests.’ ” 441 U.S. at 552, 99 S.Ct. at 1881 (quoting Pell v. Procunier, 417 U.S. 817, 824, 94 S.Ct. 2800, 2805, 41 L.Ed.2d 495 (1974) and Kleindienst v. Mandel, 408 U.S. 753, 765, 92 S.Ct. 2576, 2582, 33 L.Ed.2d 683 (1972)). Any decision maker would be foolhardy to undertake such a delicate task without a fully developed record. The district court properly declined appellant’s invitation to speculate. The judgment of the district court is AFFIRMED. . The book Poems of Mao Tse Tung was excluded, while two others in the same package were admitted and received by Kines. The basis for exclusion was not clear. Kines has raised no claim that Prison Authorities have engaged in censorship. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:

sc_respondent

008

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. WHEELDIN et al. v. WHEELER. No. 493. Argued April 23, 1963. Decided June 3, 1963. A. L. Wirin argued the cause for petitioners. With him .on the briefs were Fred Okrand arid Nanette Dembitz. . Alan S. Rosenthal argued the cause for respondent. With him on the brief were Solicitor General Cox, Acting Assistant Attorney General Guilfoyle and Mark R. Joelson. Mr. Justice Douglas delivered the opinion of the .Court. Petitioner Dawson was served with a subpoena to appear before the House Un-American Activities Committee. He alleges that the subpoena was signed in blank by the Committee Chairman and that respondent Wheeler, an investigator for the Committee, filled in Dawson’s name without authorization of the Committee. We read the complaint, as does the Solicitor General, most favorably to Dawson and conclude that the complaint alleges that no member of the Committee even attempted to delegate the Committee’s subpoena power to Wheeler. The complaint also alleges that Wheeler intended to subject petitioner, when he appeared as a witness before the Committee, to public shame, disgrace, ridicule, stigma, scorn and obloquy, and falsely place upon him the stain of disloyalty without any opportunity of fair defense, to petitioner’s irreparable injury. The complaint alleges not only the lack of authority of respondent Wheeler to fill in the blank subpoena-but also the unconstitutionality of the House Resolution and the Act of Congress, 60 Stat. 828, authorizing the Committe to act and to. subpoena witnesses. The complaint alleges that the mere service of the subpoena on Dawson cost him his job and that Wheeler caused service to be made while petitioner was at work knowing that loss of employment would result. It prays that the subpoena be declared void and of no force or effect, and asks for damages and for,an injunction. The District Court denied declaratory and injunctive relief, holding that since Dawson’s appearance did not seem imminent the case was not ripe for equitable intervention and that the mere apprehension that a federal right might be infringed at some future time did not warrant declaratory or injunctive relief at the present time. The District Court held that no federal cause of action was stated as respects damages and dismissed the complaint for lack of jurisdiction over the subject matter. The Court of Appeals held that declaratory relief, being within the District Court’s discretion, was properly denied and that the claim for injunctive relief had become moot. It held, however, that “in the sense of Bell v. Hood, 327 U. S. 678,” there was “jurisdiction to entertain the claim for money damages,” and to that extent reversed. 280 F. 2d 293. On remand the District Court dismissed the action without opinion. The Court of Appeals affirmed. 302 F. 2d 36. The case is here on a petition for a writ of certiorari which we granted. 371 U. S. 812. The basic question presented is whether a federal claim for damages is stated. We agree with the Court of Appeals in its first opinion (280 F. 2d 293) that on the face of the complaint the federal court had jurisdiction. As we stated in Bell v. Hood, 327 U. S. 678, 685, “the right of the petitioners to recover under their complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another. For this reason the District Court has-jurisdiction.” And see Bock v. Perkins, 139 U. S. 628, 630. But on the undisputed facts, as they appear on argument of the case, no federal cause of action can be made out. Dawson’s main reliance is on the Fourth Amendment, which protects a person against unreasonable searches and seizures. Its violation, he contends, occurred when an unauthorized subpoena was served on him. But there was neither a search nor a seizure of him. He was neither arrested nor detained pursuant to any subpoena; nor, so far as the complaint discloses, did he respond to the subpoena and either téstify or refuse to testify; nor was the subpoena used to cite him for contempt. Cf. Williams v. United States, 341 U. S. 97. In short, the facts alleged do not establish a violation of the Fourth Amendment. And the provisions of the Civil Rights Act are clearly inapplicable to this kind of case. See R. S. §§ 1979, 1980, 42 U. S. C. §§ 1983, 1985; Tenney v. Brandhove, 341 U. S. 367; Monroe v. Pape, 365 U. S. 167. Apart from any rights which may arise under the Fourth Amendment, .Congress has not created a cause of action for abuse of the subpoena power by a federal officer, at least where the subpoena was never given coercive effect. No claim is made that the Federal Tort Claims Act reaches that far. Cf. Hatahley v. United States, 351 U. S. 173. There is much discussion in the briefs of Barr v. Matteo, 360 U. S. 564. But that was a libel action brought against a federal official in the District of Columbia. And the immunity doctrine of that case and Howard v. Lyons, 360 U. S. 593, upon which the Court of Appeals rested, is not relevant here; for, as the Solicitor General has conceded, under the allegations of the complaint respondent Wheeler was not acting sufficiently within the scope of his authority to bring the doctrine into play. It is argued that the statute governing the issuance of subpoenas not having been complied with, a cause of action for damages “arises” under it within the meaning of 28 U. S. C. § 1331. As respects the creation by the federal courts of common-law rights, it is perhaps needless to state that we are not in the free-wheeling days antedating Erie R. Co. v. Tompkins, 304 U. S. 64. The instances where we have created federal common law are few and restricted. In Clearfield Trust Co. v. United States, 318 U. S. 363, we created federal common law to govern transactions in the commercial paper of the United States; and we did so in view of the desirability of a uniform rule in that area. Id., p. 367. But even that rule was qualified in Bank of America v. Parnell, 352 U. S. 29. In Tunstall v. Brotherhood, 323 U. S. 210, the federal right was derived from-the federal duty of the union to act as bargaining representative for all members of the union. But it is difficult for us to see how the present statute, which only grants power to issue subpoenas, implies a cause of action for abuse of that power. Congress has not done here what was done in Textile Workers v. Lincoln Mills, 353 U. S. 448, and left to federal courts the creation of a federal common law for abuse of process. When it comes to suits for damages for abuse of power, federal officials are usually governed by local law. See, e. g., Slocum v. Mayberry, 2 Wheat. 1, 10, 12. Federal law, however, supplies the defense, if the conduct complained of was done pursuant to a federally imposed duty (see, e. g., Mayor v. Cooper, 6 Wall. 247; cf. Tennessee v. Davis, 100 U. S. 257), or immunity from suit. See Barr v. Matteo, supra; Howard v. Lyons, supra. Congress could, of course, provide otherwise, but it has not done so. Over the years Congress has 'considered the problem of state civil and criminal actions against federal officials many times. See Hart and Wechsler, The Federal Courts. and the Federal System, 1147-1150, But no general statute making federal officers liable for acts committed “under color,” but in violation, of their federal authority has been passed. Congress has provided for removal to a federal court of any state action, civil or criminal, against “[a]ny officer of the United States ... , or person acting under him, for any act under color of .such office . . . .” 28 U. S. C. § 1442 (a)(1). That state law governs the cause of action alleged is shown- by the fact that removal is possible in a nondiversity case such as this one only because the interpretation of a federal defense makes the case one “arising .under” the Constitution or laws of the United States. See Tennessee v. Davis, supra; Gay v. Ruff, 292 U. S. 25, 34. We conclude, therefore, that it is not for us to fill any hiatus Congress has left in this area. No question of pendent jurisdiction as in Hurn v. Oursler, 289 U. S. 238, is presented, for petitioner has not attempted to state a'claim under state law. We hold on the conceded facts that no federal cause'of action was stated and that .the judgment must be and is Affirmed. Petitioner Donald Wheeldin was in the case when we granted certiorari.' But since that time Wheeldin has moved for leave to withdraw his petition, which motion we hereby grant. By § 1983 Congress made liable in civil suits “every person” who “under color” of any state or territorial law deprives anyone of a right “secured by the Constitution and laws” of the United States. But respondent Wheeler was not acting “under color” (see Screws v. United States, 325 U. S. 91, 108, 111; Monroe v. Pape, 365 U. S. 167, 171-187) of state or territorial law- And even if § 1985 applies to federal officers (compare Screios v. United States, supra, with Collins v. Hardyman, 341 U. S. 651) who conspire with others to commit acts falling within the narrow confines of that statute, no such conspiracy is here involved. See generally 1 Emerson and Haber, Political and Civil Rights in the United States, 79-100; 1961 United States Commission on Civil Rights Report, Book 5, 71-77. 28 U. S. C. § 2680 provides: “The provisions of [the Tort Claims Act] . . . shall not apply to— “ (h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” Legislative Reorganization Act of 1946, P. L. 601, c. 753, House Rule XI (1) (q) (2), 60 Stat. 828: “Subpenas may be issued under the signature of the chairman of the committee [on Un-American Activities] or any subcommittee, or by any’ member designated by any such chairman ....”, The other cases cited are singularly inapposite. Holmberg v. Armbrecht, 327 U. S. 392, was a suit to enforce a liability created by a federal statute, and the question was what remedies the federal courts should apply. Howard v. Lyons, 360 U. S. 593, held in a diversity suit for libel against a federal official that, although state law created the right, the defense of privilege is to be formulated by the federal courts.. Id., 597. 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_indigent

E

What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the defendant's rights as an indigent were violated?" 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". ABINGTON HEIGHTS SCHOOL DISTRICT, Appellant, v. SPEEDSPACE CORPORATION, Appellee. No. 82-3199. United States Court of Appeals, Third Circuit. Argued Sept. 29, 1982. Decided Nov. 17, 1982. Joseph P. Lenahan, (argued), Lenahan & Dempsey, Scranton, Pa., for appellant. Oldrich Foucek, III, Thomas C. Sadler, Jr., (argued), Butz, Hudders & Tallman, Allentown, Pa., for appellee. Before ALDISERT and HIGGINBOT-HAM, Circuit Judges and MEANOR, District Judge. Hon. H. Curtis Meanor, United States District Judge for the District of New Jersey, sitting by designation. OPINION OF THE COURT MEANOR, District Judge. On June 1, 1976 a fire occurred upon premises owned by the plaintiff-appellant. This diversity action was begun on June 27, 1979 naming appellee Speedspace Corporation, a California corporation, and Universal Manufacturing Corp. as defendants. The complaint sought damages arising out of the fire. It asserted that Speedspace had negligently designed and constructed the elementary school building in which the fire took place and that Universal had supplied defective fluorescent light ballasts. After some difficulty in effecting service upon it, Speedspace appeared and moved to dismiss upon the ground that as a California corporation having been dissolved on December 31, 1978, under the law of that state it was no longer amenable to suit. In May, 1980 the district court, relying upon Ray v. Alad Corp., 19 Cal.3d 22, 560 P.2d 3, 136 Cal.Rptr. 574 (1977) .held that, under the law of California, once a certificate of dissolution is filed, corporate existence ceases and there is no longer amenability to suit. On the heels of this ruling, the plaintiff moved for reconsideration, contending that it had just discovered that prior to dissolution Speedspace had been a subsidiary of Potlach Corporation and that the dissolution may have been a “merger” between Potlach and its subsidiary. Plaintiff did not move to add Potlach as a defendant. Reconsideration was denied, on the ground that imposition of liability upon Potlach as the parent or successor could not be accomplished by re-instituting the complaint against Speedspace, a “non-entity for the purpose of suit.” Plaintiff attempted to appeal the above rulings, but the appeal was dismissed on April 24,1981 for want of a final judgment, since the case remained open as to Universal. Subsequently, Universal settled and secured a dismissal, thus rendering final and appealable the previous entry of judgment in favor of Speedspace. We believe that the district court misread Ray v. Alad Corp. That case did not involve the question whether a dissolved corporation remained subject to suit. The defendant there, Alad II, had purchased the assets of the dissolved Alad I, without assuming any liabilities pertinent to the product liability claim advanced by plaintiff arising out of his use of a product manufactured by Alad I. Alad II simply continued the business of Alad I. Under these circumstances, the Supreme Court of California imposed successor liability upon Alad II with respect to product liability arising out of its predecessor’s manufacture. In that case the California court was not confronted with an attempt to sue the dissolved Alad I. The remarks of the court on which the district court relied did not go to the question whether, under California law, a dissolved corporation was susceptible to being sued. Those remarks, rather, were directed to the futility of collection after dissolution, liquidation and distribution. This futility, in turn, played a part in the policy decision to place product liability upon a successor corporation which had purchased only assets without assuming liabilities. Rule 17(b), F.R.Civ.P. provides in pertinent part: “The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized.” Hence, we must turn to California law to determine whether Speedspace, though dissolved, remains subject to suit on account of an asserted pre-dissolution tort. The pertinent provisions of the applicable California statute are set forth below. In our judgment the result in the matter before us is controlled by North American Asbestos v. Superior Court, 128 Cal.App.3d 138, 179 Cal.Rptr. 889 (1982). There, personal injury claimants brought suit against a dissolved Illinois corporation. Illinois law provided that a dissolved corporation could be sued within two years of dissolution. The suits before the California Court of Appeal had been brought more than two years following the date of dissolution. The plaintiff, therefore, argued that California law should apply. Although the Court rejected the application of California law and applied Illinois law instead, in discussing section 2010 of the California Corporation Code it stated: It is clear that the California survival law does not apply to suits against dissolved foreign corporations. California Corporations Code section 2010 provides that ‘(a) corporation which is dissolved nevertheless continues to exist for the purpose of winding up its affairs, prosecuting and defending actions by or against it .... ” It also provides that “[n]o action or proceeding to which a corporation is a party abates by the dissolution of the corporation or by reason of proceedings for winding up and dissolution thereof.” Thus, there is no time limitation for suing a dissolved corporation for injuries arising out of its pre-dis-solution activities. If section 2010 applies to foreign corporations as well as to domestic corporations, then application of California law would permit these lawsuits to continue. However, section 2010 does not apply to a foreign corporation. North American Asbestos, 128 Cal.App.3d at 144, 179 Cal.Rptr. 889. In light of the language quoted above, we hold that under California law, Speedspace, as a dissolved corporation, is subject to suit arising out of its pre-dissolution activities, with the only time bar being that of an applicable general statute of limitations. The judgment under review will be reversed and the matter remanded for proceedings consistent with this opinion. Costs taxed in favor of appellant. . Ray v. Alad Corp. is consistent with our decision imposing successor liability in Knapp v. North American Rockwell Corp., 506 F.2d 361 (3d Cir.1974). . Section 2010 of the California General Corporation Law provides: (a) A corporation which is dissolved nevertheless continues to exist for the purpose of winding up its affairs, prosecuting and defending actions by or against it and enabling it to collect and discharge obligations, dispose of and convey its property and collect and divide its assets, but not for the purpose of continuing business except so far as necessary for the winding up thereof. (b) No action or proceeding to which a corporation is a party abates by the dissolution of the corporation or by reason of proceedings for winding up and dissolution thereof. . To date, plaintiff has not attempted to amend to add Potlach Corporation as a defendant. If such a motion is made promptly upon remand, we direct that it be granted. Questions of successor liability, relation back and the statute of limitations can be resolved after Potlach is properly joined and served. At oral argument counsel for appellant, in response to a question from the court, stated that he was representing the interests of a subrogated fire insurance carrier. Attention is called to the real party in interest provisions of rule 17(a) F.R.Civ.P. See United States v. Aetna Surety Co., 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171 (1949) and Virginia Electric & Power Co. v. Westinghouse Elec. Corp., 485 F.2d 78 (4th Cir.1973). Question: Did the court rule that the defendant's rights as an indigent were violated? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:

songer_appbus

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 "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. DAVIS ELLIOTT INTERNATIONAL, INC., Appellant, v. PAN AMERICAN CONTAINER CORP. No. 82-1531. United States Court of Appeals, Third Circuit. Argued March 11, 1983. Decided May 2, 1983. Daniel B. Pierson, V (argued), Pierson, Cameron & Morris, P.C., Philadelphia, Pa., for appellant. James W. Johnson (argued), William H. Black, Jr., Hecker, Maginnis, Rainer & Brown, Philadelphia, Pa., for appellee. Before SEITZ, Chief Judge, and HIGGINBOTHAM and SLOVITER, Circuit Judges. OPINION OF THE COURT SLOVITER, Circuit Judge. Plaintiff appeals from the district court’s sua sponte entry of summary judgment for the defendant, entered before responses to discovery requests were filed, without notice to the parties that disposition on the merits was being considered, and without a hearing. Because the district court’s action departed from the orderly procedures required and contemplated by the Federal Rules of Civil Procedure, we reverse. Plaintiff Davis Elliott International, Inc. (Davis), an exporter of goods to foreign countries, sued Pan American Corp. (Pan American), alleging that it had contracted with Pan American, a freight forwarder and carrier, to ship hardware to plaintiff’s customer in Nigeria; that Pan American represented that the goods would be containerized; that Pan American failed to containerize the goods; and that as a result merchandise was lost and plaintiff sustained damages of $18,000. The complaint alleged common law breach of contract or, alternatively, a violation of the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. §§ 1300-15 (1976 & Supp. V 1981). Federal jurisdiction was predicated on diversity of citizenship. Defendant denied the substantive allegations of the complaint, and interposed 26 affirmative defenses including the one year statute of limitations set forth in COGSA, 46 U.S.C. § 1303 (1976). A month after the answer was filed, the district court filed a Pre-trial Report and Order, which set forth the status of settlement negotiations and directed the parties to submit Pre-trial Memos and Proposed Findings of Fact and Conclusions of Law. Plaintiff’s Pre-trial Memo was due approximately two weeks from the date of the Order and defendant’s was due one week thereafter. Shortly after those documents were filed, plaintiff filed a Brief in Support of Liability and defendant filed a Memorandum in Support of the Applicability of the Carriage of Goods by Sea Act. Plaintiff represents that these briefs, which the parties agreed to file, were requested by the court in aid of settlement discussions. Brief for Appellant at 9. It is undisputed that there were two pre-trial conferences in addition to telephone communications with the district court relating to possible settlement. The parties also filed discovery requests. Defendant sought documents and plaintiff filed a Motion for Letters Rogatory. There were no substantive responses to these discovery requests. No motion for summary judgment was filed, nor were the parties advised that the district court was considering summary judgment. Nonetheless, shortly after the filing of the briefs, the district court entered a judgment in favor of the defendant and against the plaintiff, and in the accompanying memorandum opinion held that plaintiff’s claims are covered by COGSA and are also time barred by its application. Davis Elliott International, Inc. v. Pan American Container Corp., 546 F.Supp. 1068 (E.D.Pa.1982). Neither the order nor the opinion of the district court states under which provision of the Federal Rules of Civil Procedure judgment was entered. It is apparent that judgment could not have been a dismissal for failure to state a claim or a judgment on the pleadings since the court considered matters, such as the bill of lading, which were outside the pleadings. We therefore construe the order as one granting summary judgment. In its opinion, the district court stated that “[t]he parties agree that they have concluded their presentation of the case by the pleadings, memoranda filed by them and that there is no further evidence to be presented to the court and the matter is ripe for adjudication.” Id. at 1069. Appellant disputes this statement and we find nothing on the record to support it. Indeed in reading plaintiff’s brief filed in the district court in support of its theory of liability, it is apparent that plaintiff believed the case was not ready for adjudication since that brief referred to “what Plaintiff intends to prove at trial”, App. at 41a; and stated that the plaintiff intended to file a motion asking defendant to produce a “legible reproduced facsimile” of the bill of lading, App. at 53a. The procedure followed by the district court in this case is almost identical to that which it followed and which was disapproved in Bryson v. Brand Insulations, Inc., 621 F.2d 556 (3d Cir.1980), where we reversed its entry of pretrial judgment. In Bryson also, the district court had stated that the parties had agreed to submit the case on the pleadings, a statement this court rejected after a review of the record. Id. at 558-59. In Bryson, in language equally applicable here, we commented on the necessity of giving notice to the parties under Fed.R. Civ.P. 56. Judge Hunter, speaking for the court, stated: A summary judgment procedure under Fed.R.Civ.P. 56 has its own protections against unwarranted pretrial dismissal of an action. Rule 12(b) requires that “all parties ... be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Preterm, Inc. v. Dukakis, 591 F.2d 121, 134 (1st Cir.); cert. denied sub nom. Baird v. Pratt, 441 U.S. 952, 99 S.Ct. 2181, 60 L.Ed.2d 1057 (1979); Sims v. Mercy Hospital of Monroe, 451 F.2d 171, 173 (6th Cir.1971). To exercise the right to oppose summary judgment, a party must have notice. Here, however, no notice was given. Although the court may dismiss the action at its own instance, it must first provide Bryson an opportunity to oppose an entry of summary judgment against him. Id. at 559. Here, as in Bryson, plaintiff “had no prior knowledge that the court was considering judgment on the pleadings or summary judgment.” Id. Here, as in Bryson, “[wjithout notice, [plaintiff] had no reasonable opportunity to present to the court material relevant to a Rule 56 proceeding.” Id. Here, as in Bryson, “[b]ecause the procedure of Rule 56 requiring an opportunity to present pertinent material, which presumes notice to the party so that he may take advantage of the opportunity, was not followed, the entry of judgment must be reversed.” Id.; see also Crown Central Petroleum Corp. v. Waldman, 634 F.2d 127 (3d Cir.1980). Defendant relies on United States v. Fisher-Otis Co., 496 F.2d 1146 (10th Cir.1974), to support its contention that notice and hearing were not required in this case. That case is inapposite because the parties there had agreed to submit the particular legal issue to the court for resolution on the basis of stipulated facts. Id. at 1151-52. In this case, the parties did not submit any legal issues for resolution but only in aid of settlement. It remains for consideration only whether there is any state of facts on which plaintiff could conceivably recover. Plaintiff concedes that if COGSA were applicable to this transaction the statute of limitations would bar its claim since it did not file suit until approximately 16 months after the arrival of the goods in Nigeria. We thus examine plaintiff’s factual contentions (which it has not had an opportunity to present in verified form) to ascertain whether they might provide a basis for recovery. COGSA was enacted in 1936 as part of an international effort to achieve uniformity and simplification of bills of lading used in international trade. See Union Ins. Soc'y. v. S.S. Elikon, 642 F.2d 721, 723 (4th Cir.1981). Its provisions govern the responsibility and liability of carriers, shippers and their underwriters. All bills of lading or other similar documents of title which are “evidence of a contract for the carriage of goods by sea to or from ports of the United States, in foreign trade” are subject to the provisions of COGSA. 46 U.S.C. § 1300 (1976). The term “carriage of goods” refers to the period from loading the goods onto the ship until they are discharged from the ship. 46 U.S.C. § 1301(e) (1976). The statute does not, by its own terms, apply to the pre- and post-loading stages. See 46 U.S.C. § 1311 (1976). The carrier and shipper may agree “as to the responsibility and liability of the carrier or the ship for the loss or damage to or in connection with the custody and care and handling of goods prior to the loading on and subsequent to the discharge from the ship on which the goods are carried by sea.” 46 U.S.C. § 1307 (1976). In its district court brief, plaintiff proposed to prove that it had advised Pan American of its customer’s specific request for containerization and the reasons for this request, that it had entered into an agreement with Pan American under which Pan American agreed to perform containerized shipping services for the goods, that plaintiff relied on the defendant’s promise to containerize, that therefore plaintiff arranged for the drop shipment of goods to defendant’s warehouse in two-ply cardboard boxes instead of export crates or export packaging, and that Pan American’s failure to containerize the goods before they were loaded resulted in the injury for which it claims recovery. Plaintiff contends that Pan American’s undertaking to containerize constituted a valid contract covering preloading activities to which COGSA is inapplicable. The district court rejected plaintiff’s argument because one of the provisions of the bill of lading covering the goods “provided for . .. incorporation [of COGSA] throughout the period that the goods were in custody of defendant,” which included the preloading period. 546 F.Supp. at 1070. Plaintiff argues that the bill of lading referred to was issued unilaterally and after the goods were already on board, and that therefore the language in the bill of lading incorporating COGSA throughout the entire period, which was relied on by the district court, constituted an attempt by defendant to change the pre-existing contrary bilateral agreement between the parties. Plaintiff explains its failure to object to this provision, when it finally received the bill of lading, on the ground that this provision was illegible, and the district court apparently agreed. Davis Elliott International, Inc. v. Pan American Container Corp., 546 F.Supp. at 1070. By its terms, COGSA applies to the preloading stage only if the parties so agree. If plaintiff proves its version of the facts, the parties never agreed to apply COGSA to the pre-loading stage. Therefore, we are not persuaded that the case relied on by the district court, Miller Export Corp. v. Hellenic Lines, Ltd., 534 F.Supp. 707 (S.D.N.Y.1982), even if applicable, should govern this situation. We cannot conclude at this preliminary stage that plaintiffs legal theory has no possibility of success. It must be examined in light of the factual development. For the foregoing reasons, we will reverse the judgment for defendant and remand for further proceedings. . Because of our disposition we do not address plaintiffs additional argument that Pan American’s failure to containerize the goods constituted an unreasonable “deviation” would deprive a carrier of the benefit of its contractual limitations of liability. See generally Friedell, The Deviating Ship, 32 Hastings L.J. 1535 (1981). 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_timely

D

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". UNITED STATES of America and Hillary E. Goode, Special Agent, Internal Revenue Service, Plaintiffs-Appellants, v. Seymour SCHWARTZ, as President of Carson’s of Atlanta, Inc., and Carson’s of Fort Lauderdale, Inc., et al., Defendants-Appellees. No. 72-1222. United States Court of Appeals, Fifth Circuit. Nov. 13, 1972. Scott P. Crampton, Meyer Rothwacks, Asst. Attys. Gen., Tax Div., Dept, of Justice, Washington, D. C., John W. Stokes, Jr., U. S. Atty., Julian M. Long-ley, Jr., Asst. U. S. Atty., Atlanta,. Ga., Charles E. Anderson, Atty., Tax Div., Dept, of Justice, Washington, D. C., for plaintiffs-appellants. Samuel Appel, Atlanta, Ga., for defendants-appellees. Before TUTTLE, BELL and AINS-WORTH, Circuit Judges. TUTTLE, Circuit Judge: The United States and Hillary E. Goode, Special Agent, Internal Revenue Service, appealed from the order of the trial court dismissing their petition to enforce an Internal Revenue summons against Patricia Long, bookkeeper, and Seymour Schwartz, president, for the production of certain described books and records of Carson’s of Atlanta, Inc. and Carson’s of Fort Lauderdale, Inc. The trial court dismissed the petition on the ground that “the Government seeks a second inspection of the documents listed in its summons but declines to comply with Sections 7605(b) of the Internal Revenue Code of 1954 and with the requirements of United States v. Powell, 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964). Section 7605(b) of the Internal Revenue Code of 1954, dealing with the requirements imposed upon the Internal Revenue Service when it seeks a second inspection of a taxpayer’s books of account provides as follows : “Restrictions on examinations of taxpayer. No taxpayer shall be subjected to unnecessary examination or investigations, and only one inspection of a taxpayer’s books of account shall be made for each taxable year unless the taxpayer requests otherwise or unless the Secretary or his delegate, after investigation, notifies the taxpayer in writing that an additional inspection is necessary.” The requirements of United States v. Powell, supra, as they relate to the present ease, will be discussed below. Essentially, they deal with the requirement of a showing that the information sought by the summons was not within the Government’s possession. The factual setting before the trial court at the time of its dismissal of the petition was formed by affidavit and counter-affidavit by Special Agent Goode for the United States and Mrs. Long and Mr. Appel, Counsel for Appel-lees, for the appellees, together with oral testimony given by the Special Agent at the hearing for motion to dismiss. Although some of the affidavits are ambiguous, it is clear that the following facts are undisputed on the record. During the latter part of 1969 an examination of the corporate records of the two Carson corporations was being conducted by Special Agent Goode and other agents of the Internal Revenue Service. During that time the agents had been given “free access to all of its records” which continued until counsel was employed at which time counsel demanded that Special Agent Goode “list the documents he wished to examine”. Special Agent Goode refused to do this and thereupon counsel advised the Special Agent that respondent’s records would not be furnished him. Thereupon, the special agent issued a summons which covered only the following items: “(1) All Paid Invoices (2) Cash Disbursement Journals (3) All Cancelled Checks and Bank Statements.” Upon refusal of appellees to comply with the said summons it was judicially enforced by an order of the district court on June 17, 1970. This order provided: “Such examination shall continue from day to day until completed.” Subsequently, Carson’s bookkeeper, Mrs. Long, was ill for several months. But on March 4, 1971, she testified with regard to the tax liabilities of Carson’s of Fort Lauderdale, Inc., and on March 11, 1971, she gave testimony with regard to the tax liability of Carson’s of Atlanta, Inc. Then, according to the affidavit of Mr. Goode, which was not disputed, the following transpired: “Your affiant asked her to review an invoice and advise if Carson’s, Inc. had paid the invoice. She replied that the corporation had paid the invoice. The invoice represented a payment for the personal benefit of the corporation president. Your affiant next asked Patricia Long if the corporation president had reimbursed the corporation for the expenditure. She replied that she could not answer the question without an examination of the daily proof journals, in addition to the sales journal she had in front of her. She explained that some cash sales had not been entered on the corporation records as sales but were entered on the records as recoveries of bad debts and she would have to check those entries back to the daily proof sheet to answer the question.” The parties are in disagreement as to what then transpired. Mr. Goode’s affidavit says: “An agreement was reached between all persons present that Internal Revenue Agent Hudson and your affiant would go to the office of Carson’s of Atlanta, Inc., on Friday, March 12, 1971 and extract only the pages from the daily proof journal that Mrs. Long would need to answer the question, and that Mrs. Long would come back to the Internal Revenue office on Monday, March 15th and complete her testimony.” On the other hand, Mr. Appel, counsel for appellee, by his affidavit, states: “Mrs. Long informed Special Agent Goode that the daily proof journals would have to be examined to determine the answer to such questions [the question as to whether the corporation president had repaid the amount to the corporation]. After discussion concerning the best method for accomplishing such an examination, Mr. Goode insisted that Mrs. Long review the daily proof sheets and furnish him with answers to a list of questions which he would submit concerning receipt of payments by respondent corporations. At that point, deponent states that respondents were advised that such request was unreasonable and unduly burdensome in its demand and would cause undue interference with the conduct of respondent’s business. The enforcement proceedings, Civil Action #15230 resulted because of such refusal.” The trial court did not resolve the question whether a mutual agreement had been made by Mr. Goode and Mrs. Long and her counsel to reconvene on March 15th, as stated in Mr. Goode’s affidavit. Although this is not directly rebutted in any affidavit on behalf of appellees, Mr. Appel’s affidavit having been executed on the 17th of August, 1971, and Mr. Goode’s having thereafter been executed on the 23rd of August, Mr. Appel implies that there was no agreement about any further production of documents. Nevertheless, it is not disputed that, as stated by Special Agent Goode in his affidavit: “On Friday, March 12, 1971, at 8:20 a. m. Attorney Appel called your affiant and stated that he would advise Patricia Long not to testify to facts that required her to go to the daily proof journal since that journal was not included in the court order of June 16, 1970.” (Emphasis supplied.) Thereafter, Special Agent Goode issued a summons to Mrs. Long and Mr. Schwartz, requiring them to appear and produce the following documents: (1) daily proof journals used by the above corporations for recording cash sales, credit sales, cash receipts and bad debt recoveries.- (2) All subsidiary and source documents necessary to support and explain the aforementioned documents in connection with determining the tax liability of this taxpayer. (3) Certain payroll checks (not relevant to this inquiry). On March 29, 1971, Mrs. Long and Mr. Schwartz appeared, but each refused to testify or to produce any of the books, records or other documents described above. Thereupon the United States and Special Agent Goode filed the proceedings with which we are here concerned. Additional facts which developed upon the hearing are that Special Agent Goode, who was in charge of the investigation, testified that he did not examine or inspect the “daily proof journals,” but that on several occasions Mrs. Long had traced certain cash sales to certain daily journals. Agent Goode was not able to testify of his own knowledge that none of the other agents made any other or further examination of the daily proof journals, although Mrs. Long’s affidavit does contain the following statement, which conflicts with any idea that all 4,000 sheets g were readily available or spread out for the inspection of the agents in the offices of the corporation: “Upon later investigation, I found that the daily proof journals for Carson’s of Atlanta were all located in the basement of the corporation’s office in Atlanta, Georgia. The proof journals for Carson’s of Fort Lauderdale are located in Fort Lauderdale with the exceptions of the journals for the year 1967, which cannot be located.” Thus, the sum of it all is that the special agent was engaged in his original investigation, which had once been terminated by counsel for the company’s president and bookkeeper; a court order was obtained requiring the bookkeeper, Mrs. Long, to appear and produce certain records other than the “daily proof journals”; after the investigation showed certain payments by the corporations on behalf of the president and other officials of the companies, the agents were faced with a prima facie ease of irregularity or distortion of the companies’ income; in order to give the companies an opportunity to rebut this inference, Mrs. Long was asked whether Mr. Schwartz and the other officers had reimbursed the companies. She replied that she could not answer without referring to the daily proof journals, because such reimbursements were sometimes treated as “Cash Sales” (no explanation having been given why they were so treated) and they appeared on the daily proof journals but then were carried on to the permanent books of record in a lump sum for the day. In order to answer Special Agent Goode’s questions relative to the ad-vanees to officers, Mrs. Long said they would have to go the daily proof journals; when Mr. Goode and Mrs. Long were unable to arrive at a mutually agreeable time and place to inspect these daily journals, counsel for Mrs. Long called off any inspection of these particular books since “he would advise Patricia Long not to testify to facts that required her to go to the daily proof journal since that journal was not included in the court order of June 16th, 1970;” thereupon, Goode went to the district court a second time, and sought enforcement of a summons which, for the first time, included the “Daily Proof Journals” — the summons with which we are now concerned. It is to be remembered that the original order for the production of the books that were adequate to show the irregularities, contained the following language: “Such examination shall continue from day to day until completed.” Mrs. Long objected, by answer, on the grounds that this second subpoena would be a “second inspection” of the books of the taxpayer and, as such, it was prohibited by Section 7605(b) of the Internal Revenue Code of 1954. (b) Restrictions on examination of taxpayer. — No taxpayer shall be subjected to unnecessary examination or investigations, and only one inspection of a taxpayer's books of account shall be made for each taxable year unless the taxpayer requests otherwise or unless the Secretary or his delegate, after investigation, notifies the taxpayer in writing that an additional inspection is necessary.” 26 U.S.C.A. Section 7605(b) In support of her position, in which Mrs. Long claims the taxpayers’ privilege as excusing her from responding and producing books for a “second inspection”, Mrs. Long stated in her affidavit that all the books and records were made available to Mr. Goode and the other agents, including a number of references to the daily receipts journals (but see comment above) although they were not covered by the original summons. If that is the posture she wishes to take, then she clearly shows that the privilege to see them was abruptly withdrawn after she made the suggestion that they were the only (although abnormal) source of information to exculpate the officers from a prima facie ease of improper disbursements of corporate funds. Either this is a failure of Mrs. Long to comply with the first order, if she wishes to include these daily proof journals among the books “inspected” the first time (since that order directed that the books made available from day to day until such examination was “completed”) ; or there was never a “first inspection” in the sense in which the term is used in the statute, because the investigation had not been completed under the court’s order to continue it from day to day and the need for the particular books is not a part of the agents’ inquiry, but is for the purpose of enabling the bookkeeper to answer the one simple question of whether the officers had reimbursed the companies; or, if this summons is construed as a “second inspection” which we think it was not, then, in all reason, it must be held that the “second inspection” requirement was satisfied when Mrs. Long “requested” this reference to the daily proof journals (the second inspection). By any common sense approach, this statement of Mrs. Long that she could tell the special agents whether these payments had been refunded by the corporate officers only by reference to these daily journals constituted a “request” that the journals be consulted in order that, if repayments had been made, she could testify to this fact and the officers and the companies would be exculpated. In view of the commissioner’s statutory duty to “cause officers or employees of the Treasury Department to proceed, from time to time, through each internal revenue district and inquire after and concerning all persons therein who may be liable to pay any internal revenue tax. . . .”, 26 U.S.C.A. Section 7601, and to examine records and data and to require persons liable for taxes and others to give testimony and produce records relevant thereto “for the purpose of ascertaining the correctness of any return . . . determining the liability of any person for any internal revenue tax ... or collecting any such liability,” 26 U.S.C.A. Section 7602, it is clear that the limitations contained in 7605(b), supra, must be liberally construed to permit the Commissioner to carry out these duties imposed by law as stated in deMasters v. Arend, CA 9, 313 F.2d 79. There the Court of Appeals for the Ninth Circuit said: “These grants of power [Section 7601 and 7602, supra] are to be liberally construed in recognition of the vital public purposes which they serve [citing Falsone v. United States, 205 F.2d 734, 742 (5th Cir. 1953)]; the exception stated in Section 7605(b) is not to be read so broadly as to defeat them [citing Application of the United States, 246 F.2d 762, 765 (2nd Cir. 1957)]. A limited construction of Section 7605(b) is also supported by the law’s general antipathy to the erection of barriers to the ascertainment of truth [citing Application of Magnus, 299 F.2d 335, 337 (2nd Cir. 1962), McMann v. SEC, 87 F.2d 377 (2nd Cir. 1937)], and the policy against judicial intervention in the investigative stage of tax matters because of the danger of undue delay in the collection of the revenues [citing Enochs v. William Packing Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962)].” We think that the statement in the statute “Only one inspection of a taxpayer’s books of account shall be made for each taxable year” is to be read in pari materia with the first clause of the Section: “No taxpayer shall be subjected to unnecessary examination or investigations”. This seems to be the original purpose of the statute which was initially enacted as Section 1309 of the Revenue Act of 1921. See United States v. Powell, 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112, for a discussion by the Supreme Court of the legislative history dealing with the matter. It is not clear from appellees’ brief precisely how they would construe the Section, but it seems apparent that for the court to construe this statute as contended for by them, an agent or special agent could not see the same books more than once during a continuing investigation without following the procedure of giving written notice for each day’s “look” at the books. We do not believe the use of the word “inspection” in Section 7605(b), as contrasted with the words “unnecessary examination or investigations” can be so restricted as to mean that there is ap “inspection” every time the agent or special agent looks at a book of account of a taxpayer. The word “inspection” must, in all reason, have some relation to the activities of the agents in making the examination authorized under the statute. The meaning seems to have been well understood by the district court in connection with this taxpayer at the time of its first order enforcing the summons, for there the court directed that “such examination shall continue from day to day until completed”. Certainly the trial court could not have intended that while such examination was continuing it would be necessary for the Commissioner of Internal Revenue or his delegate to give a notice in writing under Section 7605 (b) of each daily need to inspect any of the books or records of these companies. What happened here is that without having made any “inspection” of the set of books or, rather, file of loose leaf pages called daily proof journals, although, during the course of the continuing examination, the agents traced items to certain of these pages, the witness who was subject to subpoena and was undergoing this continuing examination, was asked a question which she stated she was unable to answer without referring to these daily proof journals. Thereupon the special agent said, in effect, “Well, let’s have them”. Thereupon, because counsel said these particular documents were not named in the original order to enforce the first summons, the witness could not be questioned with respect to matters which she could answer only by reference to these records. This amounts to nothing more than a clear failure of the witness to comply with the original order of the court, requiring her to continue to testify from day to day until the examination was completed. If it was necessary for her to obtain the answer to the inquiries made by Mr. Goode by going to records of the company, which had not thus far been subpoenaed, then she was at liberty to do so. Rather than doing this she, and subsequently her counsel, cast the transaction in the form of a demand by Mr. Goode of the right to “inspect” the daily proof journals. Even assuming there had been such a demand, initiated by the special agent, it is clear that there had not been any first “inspection” in the sense in which the word is used in the statute. It is clear that the trial court’s order, touching upon the books actually mentioned in that order, provided for a day to day inspection of those records. Thus, when in order to exculpate the taxpayer and its official from a prima facie case of distortion of income, the bookkeeper said she could answer only by reference to the daily proof journals, this amounted in fact to a tender of the journals to the special agent for that purpose. At the very least, it could be turned around into a request by the agent for access to these journals to enable Mrs. Long to continue with her deposition. Such a request would not be a demand ior a second “inspection”. The district court seemed preoccupied with the thought that it was such a simple matter for the Internal Revenue Service to give a written notice that it was futile to have this litigation over such a refusal by taxpayers’ representative to make books available. It is to be noted, however, that the statute speaks of notifying “the taxpayer in writing” and “after investigation” that “an additional inspection is necessary”. Thus, it is not a perfunctory letter-writing job. Moreover, if this became necessary for every day of inspection or every request for a new set of journals during a continuing investigation, the administration of the tax laws would become a shambles, once an investigation of a taxpayer’s true tax liability commenced. It is significant that the Internal Revenue Service does not treat the giving of a notice required under Section 7605(b) as a perfunctory matter, it deals with the matter of a second inspection on the assumption that it relates to an inspection following the closing of an examination by the agents. In such situation the Internal Revenue Service has issued regulations providing that there shall be no re-openings except: “1. There is evidence of fraud, malfeasance, collusion, concealment or misrepresentation of a material fact; or 2. The prior closing involved a clearly defined substantial error based on an established Service position existing at the time of the previous examination ; or 3. Other circumstances exist which indicate failure to reopen would be a serious administrative omission.” See Rev.Proe. 68-28, 1968-2 Cum,Bull. 912, Section 4.01. The Revenue procedure also provides that the notice to the taxpayer required by Section 7605(b) must be signed by the Regional Commissioner. If each “look” by the agents of books of a taxpayer must be authorized only after such a notice, issued after investigation where evidence of one of the three itemized circumstances above referred to has been found, it is clear that litigation arising under this section could easily frustrate the completion of an investigation into even the simplest corporate affairs. We think this is not contemplated by this statute. Although there were different circumstances before the court in United States v. Giordano, 419 F.2d 564 (8th Cir., 1970), nevertheless, we think that the standard of construction of this section of the statute must be one that “could not possibly and reasonably lend itself to a construction that would preclude the Government from making at least one meaningful examination of the books of account for the years involved”, 419 F.2d 564, 567, without the necessity of having a written notice given to the taxpayer for each days’ look at the books. So, too, the Court of Appeals for the Second Circuit, in National Plate and Window Glass Company v. United States, 254 F.2d 92, although dealing with an initial examination that was very short, nevertheless, stated the proper principle when it said, “The cursory examination of the taxpayer’s records on February 28, 1957 was not shown to have completed the investigation: it did not constitute an ‘inspection’ within the meaning of this statute”, 254 F.2d 92, 93. It will be noted that both of these courts held, in effect, that there had not been a first “inspection”, so as to require the statutory notice before the second inspection of the books. In United States v. Crespo, 281 F.Supp. 928, 933 (DMd 1968), the trial court equated the “inspection” dealt with in this section with an investigation. The court there said “Similarly, the fact that a revenue agent has seen a cash book, journal or ledger once does not mean that he may not need to see it again for a different purpose.” The court went on to hold that when an investigation has not been completed, such examination is not a second inspection within the meaning of the statute requiring written notice. We agree with this concept of the meaning of the word “inspection”, rather than a meaning that would make it necessary for the Internal Revenue Service to conduct an investigation each time there had been one look and determine that it was necessary to furnish a written notice for a second look to complete an ongoing investigation. The appellees here also undertake to support the trial court’s order of dismissal on the ground that the Government failed to show that the information sought by the summonses was not already in the Government’s possession. We conclude that the trial court’s determination that there was no sufficient showing on this point to satisfy the requirements of the United States v. Pritchard, CA 5, 1971, 438 F.2d 969, is clearly erroneous. The affidavits as quoted above, together with the testimony of Mr. Goode at the hearing, clearly demonstrated that the company’s bookkeeper herself did not have this information and that in order to get it reference would have to be made to what the trial court spoke of as 20,000 pages (testified to by the witness as 2,500 pages in Atlanta and 1,500 pages in Fort Lauderdale) to be able to answer his question. This is clearly sufficient to show that the information was not in the possession of the Government. The judgment is reversed and the case is remanded to the trial court with directions that an order be entered requiring the enforcement of the summons. . It appears that the daily proof journals carried cash items showing the source of the receipt of cash, which were then lumped together and posted in the journal in one lump sum. Thus, if cash repayments of amounts advanced to officers of the corporation were treated by the taxpayer as cash sales or recovery of bad debts, clearly an unusual practice and one which would distort the books of account, the identity of the source of the payment could not be determined from the journal, but could be determined only from the daily proof journal. . Counsel, in liis motion to dismiss, referred to these as being 20,000 sheets and this figure was picked up by the trial court in its discussion of the case. In point of fact there would be one sheet for each business day for the years in question for each corporation. . In a normally kept set of books of account it would not be necessary to ask such a question. Any such repayments would be reflected by entries in an Exchange account. Here, although there was such an account, there were no such entries. . As implausible as is this manner of handling a refund of advances to officers (leaving absolutely no proof on the general books of account of the companies that such advances had ever been repaid) such was the method Mrs. Long said might have been followed. . Mrs. Long testified that she was authorized to work with the special agent on behalf of the corporate taxpayers. Question: Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

sc_certreason

L

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. REISMAN et al., doing business as TRAMMELL, RAND & NATHAN, v. CAPLIN et al. No. 119. Argued December 12, 1963. —Decided January 20, 1964. Warren E. Magee argued the cause for petitioners. With him on the briefs was Hans A. Nathan. Assistant Attorney General Oberdorfer argued the cause for respondents. With him on the brief for respondent Caplin were Solicitor General Cox, Stephen J. Poliak, Joseph M. Howard and Norman Sepenuk. Mr. Justice Clark delivered the opinion of the Court. Petitioners, attorneys for taxpayers Martin J. and Allyn Bromley, seek declaratory and injunctive relief against respondent Caplin, the Internal Revenue Commissioner, and the accounting firm of Peat, Marwick, Mitchell & Co., which at the instance of petitioners has been working on the financial records of the Bromleys. Petitioners claim as null and void summonses issued by the Commissioner, under § 7602 of the Internal Revenue Code of 1954, to Peat, Marwick, Mitchell & Co., directing the production of “all audit reports, work papers and correspondence” in that firm’s custody pertaining to Mr. Bromley and his several business interests. The contention is that the enforced production of the papers is an unlawful appropriation of petitioners’ work product and trial preparation as well as an unreasonable seizure requiring the Bromleys to incriminate themselves and depriving them of the effective assistance of counsel. The District Court concluded that petitioners had no standing to sue; that the complaint failed to state a cause of action; that none of the papers were the work product of the petitioners; and, that the papers did not fall within the attorney-client privilege. The Court of Appeals affirmed, but on the entirely different theory that the suit was, in substance, one against the United States to which it had not consented. 115 U. S. App. D. C. 59, 317 F. 2d 123. We granted certiorari, 374 U. S. 825, and have concluded that petitioners have an adequate remedy at law and that the complaint is therefore subject to dismissal for want of equity. This obviates our passing upon any of the other questions presented. I. Petitioner Reisman, an attorney of California, had for several years represented the Bromleys. In April 1960 he associated with himself the three other attorney petitioners of Washington, D. C., as counsel in connection with the Bromleys’ tax matters. Petitioners employed the accounting firm of Peat, Marwick, Mitchell & Co. to assist them in connection with certain civil and criminal tax proceedings arising from the alleged tax liability of the Bromleys. Under the supervision of the petitioners, the accountants analyzed various original records of Mr. Bromley and his business interests and made periodic reports thereof. The products of the joint work of the accountants together with all of the records and papers of Bromley furnished them by the petitioners were kept separate in the accounting firm’s files and labeled as the property of petitioners. The subpoenas were served on June 13, 1961, after Bromley had refused to make his papers available upon being informed that a criminal investigation against him was pending. The subpoenas were directed to three separate branches of Peat, Marwick, Mitchell & Co., located in Los Angeles, Chicago, and New York. They required the accountants to testify before a special agent of the Commissioner on the work performed and also to produce all documents, work papers and other material in their possession with regard to the Bromley matters. At the time of service there were four civil tax cases pending in the Tax Court contesting alleged deficiencies in income tax returns of the Bromleys. In addition, a criminal investigation of Mr. Bromley on the tax matters was in progress. None of the parties involved here had prepared the tax returns under scrutiny nor advised the Bromleys with regard to the same. On July 7,1961, petitioners filed the complaint involved here. They alleged that Peat, Marwick, Mitchell & Co. intended to comply with the subpoenas. This would result, they claimed, in an unlawful appropriation of their work product and trial preparation as well as an unconstitutional seizure of confidential and privileged documents for future use in civil and criminal litigation against petitioners’ clients, the Bromleys. They moved for and obtained a temporary restraining order which was later dissolved when the complaint was dismissed. On appeal the Court of Appeals for the District of Columbia held that the complaint was properly dismissed because “it is not within the court’s jurisdiction because it is in substance a suit against the United States to which it has not consented.” 115 U. S. App. D. C. 59, 61, 317 F. 2d 123, 125. The case reaches us at a stage when the only affirmative action taken by the Commissioner is the issuance of the summonses for the accountants to appear before a hearing officer, i. e., a special agent of the Internal Revenue Service, to testify and produce records. The accountants have not yet refused to do so. It is therefore necessary that we first consider the statutory scheme which Congress has provided for the issuance and enforcement of the summonses. II. Section 7602 authorizes the Secretary of the Treasury, or his delegate, for “the purpose of ascertaining the correctness of any return . . . , determining the liability of any person for any internal revenue tax ... , or collecting any such liability . . . [t]o summon the person liable for tax ... , or any person having possession, custody, or care of books of account containing entries relating to the business of the person liable for tax ... , or any other person the Secretary or his delegate may deem proper, to appear . . . and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry . . . .” The petitioners make no claim that this provision suffers any constitutional infirmity on its face. This Court has never passed upon the rights of a party summoned to appear before a hearing officer under § 7602. However, the Government concedes that a witness or any interested party may attack the summons before the hearing officer. There are cases among the circuits which hold that both parties summoned and those affected .by a disclosure may appear or intervene before the District Court and challenge the summons by asserting their constitutional or other claims. In re Albert Lindley Lee Memorial Hospital, 209 F. 2d 122 (C. A. 2d Cir.); Falsone v. United States, 205 F. 2d 734 (C. A. 5th Cir.); and Corbin Deposit Bank v. United States, 244 F. 2d 177 (C. A. 6th Cir.). We agree with that view and see no reason why the same rule would not apply before the hearing officer. Should the challenge to the summons be rejected by the hearing examiner and the witness still refuse to testify or produce, the examiner is given no power to enforce compliance or to impose sanctions for noncompliance. If the Secretary or his delegate wishes to enforce the summons, he must proceed under § 7402 (b), which grants the District Courts of the United States jurisdiction “by appropriate process to compel such attendance, testimony, or production of books, papers, or other data.” Any enforcement action under this section would be an adversary proceeding affording a judicial determination of the challenges to the summons and giving complete protection to the witness. In such a proceeding only a refusal to comply with an order of the district judge subjects the witness to contempt proceedings. III. It is urged that the penalties of contempt risked by a refusal to comply with the summonses are so severe that the statutory procedure amounts to a denial of judicial review. The leading cases on this question are Ex parte Young, 209 U. S. 123 (1908), and Oklahoma Operating Co. v. Love, 252 U. S. 331 (1920). However, we do not believe that this point is well taken here. In Young certain railroad rates could be tested only by a failure to comply, which occasioned a risk of both imprisonment and large fines, regardless of the willfulness of the refusal to comply. And in Oklahoma Operating Co. the laundry rate fixed by the Oklahoma Corporation Commission could be tested only by contempt with a penalty of $500 per day, each day being a separate violation. On the other hand, in tax enforcement proceedings the hearing officer has no power of enforcement or right to levy any sanctions. It is true that any person summoned who “neglects to appear or to produce” may be prosecuted under § 7210 and is subject to a fine not exceeding $1,000, or imprisonment for not more than a year, or both. However, this statute on its face does not apply where the witness appears and interposes good faith challenges to the summons. It only prescribes punishment where the witness “neglects” either to appear or to produce. We need not pass upon the coverage of this provision in light of the facts here. It is sufficient to say that noncompliance is not subject to prosecution thereunder when the summons is attacked in good faith. Petitioners also point to § 7604 (b) as posing the risk of arrest should the Commissioner proceed under that section for an “attachment ... as for a contempt.” Arguably, such a sanction, even though temporary, might be a penalty severe enough to bring the section within the rationale of Young, supra, but we do not so read § 7604 (b). This section provides that where “any person summoned . . . neglects or refuses to obey such summons” the Commissioner may proceed before the United States Commissioner or the judge of the District Court “for an attachment against him, as for a contempt.” Upon a showing of “satisfactory proof,” an attachment for the person so refusing is issued and he is brought before the United States Commissioner or the district judge who proceeds “to a hearing of the case.” Upon the hearing the United States Commissioner or the district judge may “make such order as he shall deem proper, not inconsistent with the law for the punishment of con-tempts . . . .” The predecessor of § 7604 (b) was adopted by the Congress in 1864 (13 Stat. 226) at a time when Congress was greatly concerned with tax collection delay. Cong. Globe, 38th Cong., 1st Sess. 2440-2441 (1864). The proponents of the bill emphasized that after arrest the witness could assert his objections to the summons. Cong. Globe, 38th Cong., 1st Sess. 2997 (1864). It appears to us that the provision was intended only to cover persons who were summoned and wholly made default or contumaciously refused to comply. Section 7402 (b) came into the statute in 1913 (38 Stat. 179) and has been uniformly used since that time. As we read the legislative history, § 7604 (b) remains in this comprehensive procedure provided by Congress to cover only a default or contumacious refusal to honor a summons before a hearing officer. But even in such cases, just as in a criminal prosecution under § 7210, the witness may assert his objections at the hearing before the court which is authorized to make such order as it “shall deem proper.” § 7604 (b). Furthermore, we hold that in any of these procedures before either the district judge or United States Commissioner, the witness may challenge the summons on any appropriate ground. This would include, as the circuits have held, the defenses that the material is sought for the improper purpose of obtaining evidence for use in a criminal prosecution, Boren v. Tucker, 239 F. 2d 767, 772-773, as well as that it is protected by the attorney-client privilege, Sale v. United States, 228 F. 2d 682. In addition, third parties might intervene to protect their interests, or in the event the taxpayer is not a party to the summons before the hearing officer, he, too, may intervene. See In re Albert Lindley Lee Memorial Hospital, supra, and Corbin Deposit Bank v. United States, supra. And this would be true whether the contempt be of a civil or criminal nature. Cf. McCrone v. United States, 307 U. S. 61 (1939); Brody v. United States, 243 F. 2d 378. Finally, we hold that such orders are appealable. See O’Connor v. O’Connell, 253 F. 2d 365 (C. A. 1st Cir.) ; In re Albert Lindley Lee Memorial Hospital, supra; Falsone v. United States, supra; Bouschor v. United States, 316 F. 2d 451 (C. A. 8th Cir.); Martin v. Chandis Securities Co., 128 F. 2d 731 (C. A. 9th Cir.); D. I. Operating Co. v. United States, 321 F. 2d 586 (C. A. 9th Cir.). Contra, Application of Davis, 303 F. 2d 601 (C. A. 7th Cir.). It follows that with a stay order a witness would suffer no injury while testing the summons. Nor would there be a difference should the witness indicate — as has Peat, Marwick, Mitchell & Co. — that he would voluntarily turn the papers over to the Commissioner. If this be true, either the taxpayer or any affected party might restrain compliance, as the Commissioner suggests, until compliance is ordered by a court of competent jurisdiction. This relief was not sought here. Had it been, the Commissioner would have had to proceed for compliance, in which event the petitioners or the Brom-leys might have intervened and asserted their claims. Finding that the remedy specified by Congress works no injustice and suffers no constitutional invalidity, we remit the parties to the comprehensive procedure of the Code, which provides full opportunity for judicial review before any coercive sanctions may be imposed. Cf. United States v. Babcock, 250 U. S. 328, 331 (1919). Affirmed. “§ 7602. Examination of books and witnesses. “For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax, or collecting any such liability, the Secretary or his delegate is authorized— “(1) To examine any books, papers, records, or other data which may be relevant or material to such inquiry; “(2) To summon the person liable for tax or required to perform the act, or any officer or employee of such person, or any person having possession, custody, or care of books of account containing entries relating to the business of the person liable for tax or required to perform the act, or any other person the Secretary or his delegate may deem proper, to appear before the Secretary or his delegate at a time and place named in the summons and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry; and “(3) To take such testimony of the person concerned, under oath, as may be relevant or material to such inquiry.” These have been heard and are now under advisement in the Tax Court. In their answer Peat, Marwick, Mitchell & Co. admitted the essential allegations in the complaint, except the one alleging that they would voluntarily comply with the subpoenas. As to this they said compliance “could compromise trial preparations” in the Tax Court cases. They joined the prayer of petitioners for relief. Section 7604 (a) and (b) gives an additional remedy which is considered hereafter. Internal Revenue Code of 1954, § 7210: “Any person who, being duly summoned to appear to testify, or to appear and produce books, accounts, records, memoranda, or other papers, as required under sections 6420 (e) (2), 6421 (f) (2), 7602, 7603, and 7604 (b), neglects to appear or to produce such books, accounts, records, memoranda, or other papers, shall, upon conviction thereof, be fined not more than $1,000, or imprisoned not more than 1 year, or both, together with costs of prosecution.” The only prosecution under § 7210 is United States v. Becker, 259 F. 2d 869. There the word “neglect” was equated with willfulness. The Government admits that the section is inapplicable to persons who appear and in good faith interpose defenses as a basis for noncompliance. Brief for the Respondent Caplin, pp. 9, 22. Cf. Federal Power Comm’n v. Metropolitan Edison Co., 304 U. S. 375, 387 (1938). Internal Revenue Code of 1954, § 7604 (b): “Enforcement.— Whenever any person summoned under section 6420 (e)(2), 6421 (f)(2), or 7602 neglects or refuses to obey such summons, or to produce books, papers, records, or other data, or to give testimony, as required, the Secretary or his delegate may apply to the judge of the district court or to a United States commissioner for the district within which the person so summoned resides or is found for an attachment against him as for a contempt. It shall be the duty of the judge or commissioner to hear the application, and, if satisfactory proof is made, to issue an attachment, directed to some proper officer, for the arrest of such person, and upon his being brought before him to proceed to a hearing of the case; and upon such hearing the judge or the United States commissioner shall have power to make such order as he shall deem proper, not inconsistent with the law for the punishment of contempts, to enforce obedience to the requirements of the summons and to punish such person for his default or disobedience.” It is true that the attachment procedure of § 7604 (b) has been occasionally used even where the person summoned refused to testify because of a claimed privilege. E. g., Sale v. United States, 228 F. 2d 682, and Brownson v. United States, 32 F. 2d 844. We believe that the use of §'7604 (b) in that context is inappropriate. Attachment of a witness who has neither defaulted nor contumaciously refused to comply would raise constitutional considerations, which need not be considered at this time under our reading of the statute. Question: What reason, if any, does the court give for granting the petition for certiorari? A. case did not arise on cert or cert not granted B. federal court conflict C. federal court conflict and to resolve important or significant question D. putative conflict E. conflict between federal court and state court F. state court conflict G. federal court confusion or uncertainty H. state court confusion or uncertainty I. federal court and state court confusion or uncertainty J. to resolve important or significant question K. to resolve question presented L. no reason given M. other reason Answer:

songer_usc1

26

What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. HOCK et al. v. COMMISSIONER OF INTERNAL REVENUE. No. 12991. Circuit Court of Appeals, Eighth Circuit. Dec. 27, 1945. Paul Bakewell, Jr., of St. Louis, Mo. (John E. Cramer, Jr., of St. Louis, Mo., on the brief), for petitioners. Helen Goodner, Sp. Asst, to the Atty. Gen. (Samuel 0. Clark, Jr., Asst. Atty. Gen., and Sewall Key, J. Louis Monarch, and L. W. Post, Sp. Assts. to the Atty. Gen., on the brief), for respondent. Before GARDNER, THOMAS, and RIDDICK, Circuit Judges. RIDDICK, Circuit Judge. The question on these petitiqns for review is whether the proceeds of a policy of insurance on the life of decedent, Edward H. Simmons, who died in 1937, are includi-ble in his gross estate under section 302(g) of the Revenue Act of 1926, as amended by section 404 of the Revenue Act of 1934, 26 U.S.C.A. Int.Rev.Acts, pages 227, 231. The applicable statutory provisions are: “Sec. 302. The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated, except real property situated outside of the United States— ****** “(g) To the extent of the amount receivable by the executor as insurance under policies taken out by the decedent upon his own life; and to the extent of the excess over $40,000 of the amount receivable by all other beneficiaries as insurance under policies taken out by the decedent upon his own life.” Petitioners are the transferees of the assets of decedent’s estate, each having received a share of the assets in excess of the deficiency in estate tax which the Commissioner has determined and the Tax Court has sustained. Paul Bakewell, Jr., and St. Louis Union Trust Company are testamentary trustees of decedent’s estate. Dorothy Simmons Hock, his surviving daughter, named as irrevocable beneficiary in the policy of insurance, received the pro-, ceeds of the policy. The policy of insurance, dated October 11, 1920, was issued upon the application of decedent in which he waived the right to change the beneficiary. The printed portions of the policy contained the following provisions: “Beneficiary Clauses, (a) Unless otherwise specifically provided herein, upon the death of any beneficiary hereunder during the lifetime of the insured, any interest of such beneficiary shall revert to any surviving beneficiaries (in equal shares) then named hereunder, but if there be none to the insured or assigns. “(b) The insured if of legal age may, whenever and as often as he likes, change any beneficiary designated herein by filing at the Home Office of the Company a written notice thereof duly executed and accompanied by the policy for record and endorsement of the change thereon by the Company. Unless the notice is so recorded and endorsed it shall not take effect, but when recorded and endorsed, whether the insured be then living or not, it shall relate back and take effect as of the date of the execution of said notice by the insured. “(c) The interest of any beneficiary hereunder shall be subj ect to and 'bound by any assignment, pledge or release of this policy by the insured, dated either prior or subsequent to the nomination of such beneficiary.” To conform to the surrender of the right to change beneficiary contained in decedent’s application for the policy, the insurance company stamped upon it the following clause: “Beneficiary Clause. At the request of the insured in the application herefor the beneficiary provisions of paragraphs b and c, Section 9 hereof are hereby made inoperative and the beneficiary hereunder is made irrevocable. The insured reserves the right to make premium loans, to change the method of applying any dividends and to change the mode of paying premiums, but during the lifetime of the beneficiary, no other change may be made in the policy or value allowed without the consent of such beneficiary.” The Tax Court sustained the action of the Commissioner in including the proceeds of the policy in decedent’s gross estate, on the ground that under the terms of the policy the decedent retained a possibility of reversion in the proceeds of the policy, since had he survived his daughter, the irrevocable beneficiary, her interest would have reverted to him or his assigns. It based its holding upon Helvering v. Hal-lock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368, and upon the Treasury Regulations in force at the time of the trial in the Tax Court. For reversal the petitioners assert that the Tax Court erred (1) in its interpretation of the insurance contract, (2) in holding that the Hallock case is controlling on the issue here, and (3) in applying the Treasury Regulations in force at the time of the hearing before the Tax Court instead of the regulations in force at the time of decedent’s death on October 16, 1937. In support of the first assignment of error petitioners assert that there is a conflict between the printed beneficiary clause in the policy, which provides that the interest of the beneficiary dying in the lifetime of the insured shall revert to the insured or his assigns, and the provision endorsed on the policy, which provides that the insured may make premium loans or change the method of applying dividends and paying premiums, but that during the lifetime of the beneficiary no other change may be made in the policy without the consent of the beneficiary. In this situation, the petitioners say that the provision stamped on the policy must control the printed clause. We answer this argument, as did the Tax Court, by saying that there is no conflict between the printed and stamped provisions of the policy. There is no discoverable inconsistency in contracts of insurance appointing an irrevocable beneficiary and providing that upon the death of the beneficiary during the lifetime of insured the interest of the beneficiary in the policy shall revert to the insured. Petitioners argue in support of the second assignment of error as follows: The appointment of the 'beneficiary of the policy having been irrevocable from the moment of its issue, the proceeds of the policy vested immediately in the beneficiary. The decedent as the insured under the policy, therefore, never owned any interest in the policy proceeds, and hence could not make and did not make a transfer of the proceeds of the policy during his lifetime. The decedent could not have a reversionary interest in property which he never owned. At most, he had only the hope or bare possibility that if he survived the beneficiary he might acquire an interest in property in which he had had no interest at any time during his life. From this interpretation of the policy petitioners argue that this case is ruled by decisions of this court (Walker v. United States, 8 Cir., 83 F.2d 103; Helvering v. Parker, 8 Cir., 84 F.2d 838) and of the Supreme Court of the United States (Lewellyn v. Frick, 268 U.S. 238, 45 S.Ct. 487, 69 L.Ed. 934; Chase National Bank v. United States, 278 U.S. 327, 49 S.Ct. 126, 73 L.Ed. 405, 63 A.L.R. 388; Bingham v. United States, 296 U. S. 211, 56 S.Ct. 180, 80 L.Ed. 160; and Industrial Trust Co. v. United States, 296 U.S. 220, 56 S.Ct. 182, 80 L.Ed. 191), all of which came down before the decision of the Hallock case. Petitioners assert that the principles announced in the Hal-lock case have no application in the case of life insurance, since the Supreme Court was there dealing only with trust property under section 302(c) of the applicable revenue act. Aside from the fact that petitioners’ interpretation of the insurance contract ignores that part of it which provides that on the death of the beneficiary during the life of the insured the proceeds of the policy shall become payable to the insured or his assigns, the decisions of this and other circuit courts of appeals, following the Hallock case, have held that the principles there announced in respect to trust property are applicable in the case of life-insurance, and that the Bingham case and earlier decisions to the same effect, dealing with the proceeds of life insurance policies, are no longer law. Schultz v. United States, 8 Cir., 140 F.2d 945, 949; Bodell v. Commissioner, 1 Cir., 138 F.2d 553, 556, 150 A.L.R. 1262; Commissioner v. Washer, 6 Cir., 127 F.2d 446, 448, 449; Liebermann v. Hassett, 1 Cir., 148 F.2d 247; Schongalla v. Hickey, 2 Cir., 149 F.2d 687. The cases rule that where there exists in an insured the possibility of a reversion to him or his assigns of the proceeds of a policy of insurance (as where the policy provides for payment to the insured or his estate or assigns in the event of the prior death of the beneficiary), the transfer of the proceeds of the policy from the insured to the beneficiary, named in the policy takes effect only upon the death of the insured. And see Chase National Bank v. United States, supra, 278 U.S. 327 at page 339, 49 S.Ct. 126, 73 L.Ed. 405, 63 A.L.R. 388; Goldstone v. United States, 325 U.S. 687, 65 S.Ct. 1323; Fidelity-Philadelphia Trust Co. v. Rothensies, 324 U.S. 108, 111, 65 S. Ct. 508; Commissioner v. Field’s Estate, 324 U.S. 113, 65 S.Ct. 511; Paul, Federal Estate and Gift Taxation, § 10.20. Petitioners’ third assignment of error must also be denied. Prior to decedent’s death on October 16, 1937, Articles 25 and 27 of Regulations 80 provided: “Art. 25. Taxable insurance — The statute provides for the inclusion in the gross estate of insurance taken out by the decedent upon his own life, as follows: (a) All insurance receivable by, or for the benefit of, the estate; (b) all other insurance to the extent that it exceeds in the aggregate $40,000. “ * * * Legal incidents of ownership in the policy include, for example: The right of the insured or his estate to its economic benefits, the power to change the beneficiary, to surrender or cancel the policy, to assign it, to revoke an assignment, to pledge it for a loan, or to obtain from the insurer a loan against the surrender value of the policy, etc. The decedent possesses a legal incident of ownership if the rights of the beneficiaries to receive the proceeds are conditioned upon the beneficiaries surviving the decedent.” “Art. 27. Insurance receivable by other beneficiaries. — The statute requires the inclusion in the gross estate of the decedent of the proceeds of any policy, or the aggregate proceeds of all policies, not receivable by or for the benefit of decedent’s estate, to the extent that such proceeds exceed $40,000, regardless of when the policy was or the policies were issued, if the decedent possessed at the time of his death any of the legal incidents of ownership.” On March 18, 1937, following the decision of the Supreme Court in the Bingham case, the sentence “The decedent possesses a legal incident of ownership if the rights of the beneficiaries to receive the proceeds are conditioned upon the beneficiaries surviving the decedent” was struck out of the Regulations by Treasury Decision 4729 (C.B. 1937-1, pp. 284-288), which adopted as to insurance proceeds the principles announced in Helvering v. St. Louis Union Trust Co., 296 U.S. 39, 56 S.Ct. 74, 80 L. Ed. 29, 100 A.L.R. 1239. The Supreme Court’s decision in the Hallock case came down in 1940, and the Treasury Regulations were amended to restore Article 25 of Regulations 80 to its original form. The amended regulation was in force at the time of the trial in the Tax Court. We think it was applicable in the present case in preference to the regulations, in existence at the time of decedent’s death, which fell with the Bingham case. I Merten’s Law of Federal Income Taxation, par. 3.25; Manhattan General Equipment Co. v. Commissioner, 297 U.S. 129, 56 S.Ct. 397, 80 L.Ed. 528; Helvering v. Hallock, supra, 309 U.S. 106 at page 121, 60 S.Ct 444, 84 L.Ed. 604, 125 A.L.R. 1368, Note 8; Helvering v. Griffiths, 318 U.S. 371, 397, Note 49, 63 S.Ct. 636, 87 L.Ed. 843; Helvering v. Edison Bros. Stores, 8 Cir., 133 F.2d 575; Oberwinder v. Commissioner, 8 Cir., 147 F.2d 255. The decision of the Tax Court is affirmed. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:

songer_typeiss

A

What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. 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 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_appnatpr

0

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES v. CARPENTER. No. 8300. Circuit Court of Appeals, Seventh Circuit. May 26, 1944. Attorney Lewis L. Levin was appointed by this court to represent Carpenter on this appeal. Appellant is now serving in the Army, having been paroled for such service. Lewis L. Levin, of Chicago, Ill., for appellant. Howard L. Doyle and Marks Alexander, U. S. Atty., both of Springfield, Ill., for appellee. Before EVANS, SPARKS and MAJOR, Circuit Judges. EVANS, Circuit Judge. Appellant argues that a proper interpretation of the grammatical and structural composition of the statute (18 U.S.C.A. § 409) necessitates the conclusion that Congress meant to impose penalties for any of three separate classes or categories of crimes. It did not, however, mean to make a separate crime of every act described in each of the several classes or categories. In support of such theory, counsel points out that each category begins with the identical word “whoever” and is set off by semi-colons, whereas the several condemned acts within the respective categories are not so stated, merely being joined with the disjunctive “or” and separated by commas. 0 The statute reads (we add the numerals which appellant uses to designate his categories) : “(1) Whoever shall unlawfully break the seal of any railroad car * * * or shall enter any such car with intent in either case to commit larceny therein; (2) or whoever shall steal or unlawfully take, carry away, or conceal, or by fraud or deception obtain from any railroad car, * * * with intent to convert to his own use any goods or chattels * * *, or shall buy or receive or have in his possession any such goods or chattels, knowing the same to have been stolen; (3) or whoever shall steal or shall unlawfully take, carry away, or by fraud or deception obtain with intent to convert * * * any baggage, * * * or shall break into, steal, take, carry away, or conceal any of the' contents of such baggage, or shall buy, receive, or have in his possession any such baggage * * * shall in each case be fined not more than $5,000 or imprisoned not more than ten years, or both * * It is counsel’s urge that the second and third counts, namely, for stealing and for receiving, are for but a single crime in that they are both covered by the one category, i. e., class (2), and therefore appellant has suffered two five year sentences for but one crime. Appellant also stresses the phrase "in each case" as being indicative of Congressional intent to impose a sentence only upon each of the classes of acts outlined. A second contention, which was the one involved in the habeas corpus proceedings, is that the charge of stealing and possessing does not define two crimes because only one criminal intent was involved. In other words, in all cases where there is a stealing, there is, per se, a possessing. Counsel stresses the fact that the bill of exceptions, which was not consulted on the prior appeal because not duly filed, disclosed that appellant was not even at the site of the crime, but a block distant, and only by virtue of a conspiracy or by proxy could he be deemed to have participated in the stealing. Appellant also contends that there is duplication of punishment in the imposition of a sentence on the conspiracy count, for the same evidence was used to gain a conviction on this count as was used to establish guilt under the first three counts. The earnestness of counsel, the severity of the sentence, and the'parolement of appellant to service in the army, have all impelled us to re-examine this statute and the decisions. We repeat the statute, but in skeleton form. It would seem that crimes were described therein as follows: (1) break the seal enter (2) (as to goods or chattels in interstate commerce) steal unlawfully take carry away conceal obtain by fraud or deception buy possess (3) (as to any baggage) steal unlawfully take carry away obtain by fraud or deception. Congress defined and penalized every conceivable form of act, every gradation of the process of .burglarizing interstate commerce, when it enumerated these many acts. It intended to make criminal amy act therein recited. If two of the acts in any category were disclosed, two crimes were committed. It would be different if the terms were synonymous or the acts, one within the scope, or partial scope of the other, but each defines an act of a different, nature. It is true that one who steals generally possesses, but the contrary is not inherently true. Another possible explanation for the categorical structure of the section might be that one category relates to the stealing of interstate freight, a second to stealing of baggage, and the third, the initial steps of such larceny, i. e., entering a freight car. We are unable to read the statute other than that Congress intended to make each and every separate act named, a separate crime. See Blockburger v. United States, 7 Cir., 50 F.2d 795; Id., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306; Carpenter v. Hudspeth, 10 Cir., 112 F.2d 126. If the construction seems harsh, it must also be appreciated that there is a vast difference between the maximum and the minimum sentence provision as there is a vast difference between the action and motives of different offenders. In the trial judge, there is lodged wide discretion, and if misjudgment results in too severe judgments, the accused may secure relief through executive clemency, as well as by parole. Our problem is to construe the statute. In so doing, we cannot rewrite it, nor ignore the language which is clear. The court is indebted to counsel appointed to represent appellant, for his earnest and devoted effort to aid the court. The judgment is affirmed. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:

songer_usc1

0

What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. UNITED STATES of America, Plaintiff-Appellee, v. Charles THOMAS, a/k/a Reginald Gardner, and Melvin Cooper, Jr., Defendants-Appellants. Nos. 89-3423, 89-3508. United States Court of Appeals, Seventh Circuit. Argued May 29, 1990. Decided July 9, 1990. As Amended July 27, 1990. Eric J. Klumb, Maxine A. White, Asst. U.S. Attys., Milwaukee, Wis., for U.S. Charles 0. Blaha, Milwaukee, Wis., for Charles Thomas. Debra J. Patterson, Wauwatosa, Wis., for Melvin Cooper, Jr. Before BAUER, Chief Judge, FLAUM, Circuit Judge, and ESCHBACH, Senior Circuit Judge. PER CURIAM. The district court departed upward from the applicable Guideline range in the sentencing of defendants Charles Thomas and Melvin Cooper. We find that the court did not provide adequate, detailed reasons for departure, and did not justify the extent of departure by linking it to the structure of the Guidelines. Accordingly, we vacate the sentences and remand for resentencing. The sentences at issue arise out of two different convictions. The first arose when, in early November 1988, Milwaukee police officers stopped a car in which Charles Thomas was a passenger. Thomas, a convicted felon, was seen holding a handgun between his legs which he then dropped on the back seat floor of the car. Thomas was charged with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) & 924(a)(2), but was released pending trial. The second conviction arose out of events on April 9, 1989. On that date, a confidential informant told the Milwaukee Police Department that members of the Brothers of Struggle Gang (“BOS”) were using 2507A West Atkinson Avenue as a drug house to sell cocaine. The informant identified several members of the BOS gang, including defendants Cooper and Thomas, and stated that the members of the gang were heavily armed with sawed-off shotguns and automatic weapons. The informant reported that during the preceding week, he had observed Cooper at the house handling a TEC-9 pistol while another gang member held a shotgun and checked out potential drug customers. Finally, the informant stated that a lookout was normally stationed in the front window, armed with a sawed-off shotgun or automatic weapon. Several police officers proceeded to the house in street clothes and an unmarked car. As the officers approached the house, they observed Cooper standing near the second floor window holding a sawed-off shotgun. Cooper was watching the officers and pointing the gun in their direction. The officers, with guns drawn, ordered Cooper to drop the gun. After a second warning from the officers, Cooper opened the window and threw the shotgun out. A few seconds later, Cooper threw a plastic bag from the window containing approximately 22.5 grams of cocaine. After the officers called for additional assistance, they proceeded to the entrance of the upper unit. The officers forcibly entered the house where they found Cooper and Thomas sitting on the couch in the living room. The police searched the premises and seized an Intratec-9 semiautomatic pistol loaded with 27 rounds of ammunition, a silencer threaded to fit the pistol and boxes of ammunition for several types of weapons. The officers also seized drug paraphernalia, including a box for a gram scale, a hand sifter, a bottle of inositol (used as a cutting agent for cocaine), plastic bags, and other packaging material. The house was sparsely furnished and fit the Milwaukee Police’s drug house profile. In June 1989, Thomas and Cooper were charged in a five-count superseding indictment. They were charged with possession of unregistered firearms in violation of 26 U.S.C. §§ 5861(b) and 5871, possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and use of a firearm in relation to a drug trafficking crime contrary to 21 U.S.C. § 924(c)(1). In addition, Thomas was charged with a second count (in addition to the November charge) of being a felon in possession of a firearm contrary to 18 U.S.C. §§ 922(g)(1) and 924(a)(1)(D). Thomas pleaded guilty to one count of being a felon in possession of a firearm, the narcotics charge and the use of a firearm in relation to a drug trafficking crime. Cooper pleaded guilty to possession of an unregistered firearm, the narcotics charge and the use of a firearm in relation to a drug trafficking crime. Pursuant to a plea agreement, the government dropped the remaining charges. The presentence report calculated Thomas’ base offense level for possession of cocaine with intent to distribute at 12. Thomas was being sentenced for more than one offense, so his offense level was increased by 2, for a combined offense level of 14. Finally, because Thomas accepted responsibility for all the offenses, his base offense level was decreased by 2, leaving the total offense level at 12. Thomas’ criminal history consisted of two prior offenses, for which he received a score of 4. Thomas was on parole at the time, so he was assessed 2 additional points. Another point was then added because Thomas had been released from custody less than two years before the commission of the offenses for which he was being sentenced. His total criminal history score was thus 7, placing him in a criminal history category of IV. For an offense level of 12 and criminal history category of IV, the Guidelines indicated a sentencing range of 21 to 27 months. In addition, Thomas’ conviction for use of a firearm in relation to a drug trafficking crime, a non-Guidelines offense, carried a mandatory, consecutive, five-year term of imprisonment. Cooper's base offense level for possession of an unregistered firearm was 12. He received a 1 point increase because the firearm was stolen and a 4 point increase because the firearm had an unregistered silencer. His criminal history category was I, yielding a sentencing range of 24 to 30 months. In addition, Cooper’s conviction for use of a firearm in relation to a drug trafficking crime carried a mandatory, consecutive, five-year term of imprisonment. The two defendants were sentenced separately. At Thomas’ sentencing hearing, the government requested an upward departure of about 48 months based on his admissions that he was a member of a gang and had sold cocaine on occasions aside from the date of the charged offense. The government introduced evidence of the gang related activities and its dangers to the community. The court then made its findings: I’ve talked about these guidelines in a lot of cases and this is just another example of their total inadequacy in addressing the serious problems in ... urban communities, [in] Milwaukee, [and] in our state. So I find, first of all, that the guidelines ... totally, completely underestimate the seriousness of this particular set of criminal charges.... Well, I intend to significantly depart from the guidelines. I think it’s a case that a message should be sent to others who are thinking about this kind of gang activity. A message should be sent to people who run drug houses and peddle this terrible stuff to others which is being used to destroy the lives of people. A message should be sent to people who possess these weapons of destruction. A message should be sent to gang members that very serious consequences will fall if you persist in that kind of activity. I mean, unless something is done here about this, we’re just going down the road to destruction. And, Mr. Thomas, you’ve earned the sentence I’m going to give you here. Your prior convictions, being on parole, one thing after another. Without further comment, the court sentenced Thomas to the maximum sentence on each count, all consecutive, totalling 30 years imprisonment. The departure on the Guidelines offenses was from a range of 21 to 27 months to a sentence of 25 years. At Cooper’s sentencing hearing, the government asked for an upward departure of 24 to 30 months. The court incorporated its remarks made during Thomas’ hearing as reasons for also departing upward in Cooper’s sentence. In addition, the court based departure on the following statement: I’m going to do what I think is the right thing to do in these cases. And here we have this very terrible situation, violent street gang, drug houses in the inner city which cause fear and intimidation and no regard to everybody else, the cocaine in the house, the arsenal of weapons. Now, I don’t intend to give Mr. Cooper a sentence that is nearly as severe as the sentence I imposed on Mr. Thomas. Very significant difference is the fact that Thomas had a prior record. Cooper was sentenced to a total of 15 years. The departure on the Guidelines offense was from a range of 24 to 30 months to a sentence of 10 years. We are puzzled by the district court’s actions. The broad grounds on which a sentencing court may depart from the Guidelines are clearly established. “A sentencing court is not generally allowed to depart from a Guidelines sentencing range unless the court finds aggravating or mitigating circumstances of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines.” United States v. Schmude, 901 F.2d 555, 558-59 (7th Cir.1990) (citing 18 U.S.C. § 3553(b)). The statements by the district court do not reflect an attempt to follow this statutory requirement: the court did not discuss the structure of the Guidelines and why they failed to reflect the aggravating factors in this case. The district court’s statements in this case closely resemble those rejected as inadequate in United States v. Lopez, 875 F.2d 1124 (5th Cir.1989). In that case, the defendant was found with seven machine guns, four rifles, six shotguns and a .357 Magnum pistol, all concealed. The district judge, sentencing the defendant for only one count of possession of an unregistered firearm, departed upward, stating: The guidelines themselves are weak and ineffectual with respect to this crime. It is apparent to the court that the calculations of the offense level, together with the criminal history category does not reflect the conduct in which the Defendant Lopez engaged, nor does it reflect, most importantly in the court’s view, the potential harm to the public.... The court believes that this defendant’s conduct presents a bigger picture of harm to the public and bigger picture of criminality than ... does the breakdown of points awarded and offense level. The court concluded, “The guideline absolutely gives away this offense.” Id. at 1126. The Fifth Circuit vacated the sentence, holding that “a sentencing court’s personal disagreement with the guidelines does not provide a reasonable basis for sentencing.” Id. at 1127. “Without a more particularized rationale, we cannot gauge the reasonableness of this departure....” Id. The circuit court agreed that departure might be warranted under these facts, but held that to depart, the district court must find more particularized factors that had not been adequately considered by the Guidelines. The Fifth Circuit’s holding in Lopez, is applicable to this case. A finding by the district court that the Guidelines direct a sentence that is different than one the court would otherwise give is not grounds for departure. By closely parsing the district court’s statements it is possible to discover three, more specific grounds for departure. First, it based its departure on a finding of the Guidelines’ “total inadequacy in addressing the serious problems in ... urban communities, [in] Milwaukee, [and] in our state.” That is, the court reasoned that the Guidelines did not adequately account for regional differences. The court also departed based on its feeling that a “message should be sent to others who are thinking about this kind of gang activity,” i.e., the Sentencing Commission failed to adequately consider the deterrent effect of punishment. Finally, the court discussed the specifics of the defendant’s gang activities, finding that these gang activities might indicate a recidivist tendency that is not reflected in the defendants’ criminal history categories or a potential for violence not normally associated with the crimes charged. The first two grounds for departure are inappropriate. Courts are not free to base sentencing on purely local conditions such as the degree of violence in Milwaukee. “Congress sought uniformity in sentencing by narrowing the wide disparity in sentences imposed by different federal courts for similar criminal conduct by similar offenders.” Guidelines Manual at 1.2. Criminals in large urban areas should not be sentenced to longer terms than criminals elsewhere. In addition, sentencing based on locale is not based on the relevant conduct of the offender. See § 3B1.3; United States v. Missick, 875 F.2d 1294, 1302 (7th Cir.1989); United States v. White, 888 F.2d 490, 496 (7th Cir.1989). Courts are also not free to depart based on the need for general deterrence. See Lopez, 875 F.2d at 1126. It would be difficult to imagine a finding that the Sentencing Commission failed to adequately consider the general deterrent effect of the criminal law. See Guidelines Manual at 1.3 (Sentencing Commission’s discussion of deterrence). District courts must justify their departures by reference to factors particular to the defendant that the Guidelines inadequately considered. Involvement in gang activities might provide more fruitful grounds for departure, but the district court insufficiently articulated reasons for departure based on gang affiliation. When deciding to depart, the district judge must “provide articulable reasons, of a type contemplated by the Act and the Guidelines, and based on a sufficiently sound factual foundation to justify a departure from the Guidelines.” United States v. Miller, 874 F.2d 466, 471 (7th Cir.1989). The court must state specific reasons for departing, preferably tying the reason for and extent of departure to a circumstance inadequately considered by a specific section or portion of the Guidelines. United States v. Carey, 895 F.2d 318, 325-26 (7th Cir.1990); United States v. Mendoza, 890 F.2d 176, 180 (9th Cir.1989). The factual contexts which departures have been upheld illustrate the type of factors envisioned by the Sentencing Commission. See, e.g., Schmude, 901 F.2d at 559 (departure because prior conviction for same offense not considered by § 4A1.3); United States v. Williams, 901 F.2d 1394 (7th Cir.1990) (departure because § 2B3.1(b)(2)(C) did not adequately consider the risk of harm arising from possession of a firearm while under the influence of drugs); United States v. Ferra, 900 F.2d 1057, 1061 (7th Cir.1990) (departure because defendant continued to sell narcotics after arrest). Absent a sufficient, particularized statement by the district court of the reasons for and extent of the departure, we must vacate the sentence and remand the case for the district court to satisfy the requirement. See, e.g., Ferra, 900 F.2d at 1064; Carey, 895 F.2d at 325. At sentencing, the government offered evidence that the defendants were members of a violent street gang whose business was trafficking in illegal narcotics. The evidence strongly indicated that the BOS gang, of which both defendants were members, has contributed greatly to the urban drug and crime problems in the communities in which it operates. The government argued that this evidence warranted departure under § 5K2.9 for criminal purpose. This section states that “[i]f the defendant committed the offense in order to facilitate or conceal the commission of another offense, the court may increase the sentence above the guidelines range to reflect the actual seriousness of the defendant’s conduct.” While the government failed to point to a specific offense that the charged crimes facilitated, the government argued that the possession of the firearms generally facilitated the gang’s violent mission. The district court did not, however, say whether it accepted or rejected the government’s reasoning. It did not cite § 5K2.9 when giving its reasons for departing. Nor did it cite to any portion of the Guidelines, discuss the particulars of the Guidelines’ structure, or indicate the particular factors of this case that the Guidelines failed to consider. Moreover, a factual finding that gang activities are terrible is insufficient to support a holding that the Guidelines failed to adequately consider the effects of such activities. The Guidelines provide for enhancements or departures in many specific circumstances that might adequately consider the problems associated with gang activities. For example, departure is warranted where death or physical injury is a result of the crime. §§ 5K2.1 & 2. Criminal history categories are enhanced for defendants with prior convictions. § 4A1.1. Leaders of gangs can receive enhancements for playing an aggravating role in the offense under § 3B1.1. The simple statement that gang activity is terrible does not point to where the Guidelines insufficiently take the problems into account. The district court is obliged to provide specific, articulable reasons for departure, explaining why the Guidelines failed to adequately consider some aspect of this case, and none were provided here. The significantly differing departures for Thomas and Cooper is also of some concern. The district court based its departure for Thomas on the fact that he had several prior convictions. These prior convictions, however, had already been accounted for in determining his criminal history category. The district court made no finding that the criminal history category inadequately reflected Thomas’ prior convictions. The government offers no basis for such a finding. It is well established that departure is warranted only where there is an “aggravating or mitigating circumstance of a kind, or to a degree not adequately taken into consideration by the Sentencing Commission_” 18 U.S.C. § 3553(b). See Schmude, 901 F.2d at 559 (prior conviction does not support departure because it was included in the criminal history category); United States v. Franklin, 902 F.2d 501 (7th Cir.1990). We fail to understand how the district court could base an upward departure on the existence of a prior criminal record with no finding that the Guidelines underestimated the seriousness of prior conviction. Even if the district court had adequately stated its reasons for departure and we had found that the facts supporting the departure were not clearly erroneous, the district court would still have failed to give reasons justifying the extent of departure. Once the court has made the decision to depart, “the judge should compare the seriousness of the aggravating factors at hand with those the Commission considered.” Ferra, 900 F.2d at 1062. “Reasonableness [] implies that some effort must be made to fashion the degree of departure to correspond to the number and the nature of the factors which warrant departure.” Schmude, 901 F.2d at 560. “Unless there is discipline in departure, [] sentencing disparity will reappear,” and courts, therefore, should, where possible, seek to “link the extent of departure to the structure of the guidelines.” Ferra, 900 F.2d at 1062. The district court appears to have made no meaningful attempt to perform such a procedure. Indeed, before oral argument, the government acknowledged that the extent of departure was not adequately linked to the structure of the Guidelines and conceded that remand was necessary. With respect to the extent of departure based on Thomas’ prior convictions, the Guidelines provide a specific mechanism for departing from the criminal history category. See § 4A1.3 (policy statement). Under this mechanism, “the courts [are to] use, as a reference, the guideline range for a defendant with a higher or lower criminal history category, as applicable.” Id.; Ferra, 900 F.2d at 1062. Again, the district court did not make an attempt to determine which criminal history category was appropriate for Thomas. We are distressed by the failure of the very able and experienced district court to follow the clear mandate of the Guidelines and of this Court. Judges are not free to reject the Guidelines out of hand, nor are they at liberty to impose personalized sentencing agendas. The Guidelines, over which there has been much scholarly debate, have been found to be a constitutional act of Congress and must be followed. The sentences are Vacated and the case Remanded for resentencing comporting with the Guidelines and our reflecting precedents. Circuit Rule 36 shall not apply- . This is not to say that, on the evidence presented by the government, departure may not be warranted. Departure under § 5K2.9 for criminal purpose may be appropriate. Alternatively, the government urges on appeal departure under § 5K2.15, because it claims the gang violence amounts to terrorist activity. Departure could also be based on a ground not listed in § 5K2 such as a finding that the Guidelines did not adequately consider the greater potential for violent use of the firearms by gang members when acting in concert. We do not make such a determination; the district court is free to do so on remand. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:

sc_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. BREUER v. JIM’S CONCRETE OF BREVARD, INC. No. 02-337. Argued April 2, 2003 Decided May 19, 2003 Souter, J., delivered the opinion for a unanimous Court. Donald E. Pinaud, Jr., argued the cause for petitioner. With him on the briefs was Eric Schnapper. Andrew S. Hament argued the cause for respondent. With him on the brief was Gregory Williamson. Lisa S. Blatt argued the cause for the United States as amicus curiae urging affirmance. With her on the brief were Solicitor General Olson, Deputy Solicitor General Kneedler, Howard M. Radzely, Allen H. Feldman, and Edward D. Sieger. Briefs of amici curiae urging affirmance were filed for the Academy of Florida Management Attorneys, Inc., by Peter W Zinober; and for the Human Resource Association of Palm Beach County, Florida, et al. by Christine D. Hanley, Sally Still, and Betty L. Dunkum. Justice Souter delivered the opinion of the Court. The question is whether the provision of the Fair Labor Standards Act of 1938 (FLSA or Act), that suit under the Act “may be maintained ... in any Federal or State court of competent jurisdiction,” 52 Stat. 1069, as amended, 29 U. S. C. § 216(b), bars removal of a suit from state to federal court. We hold there is no bar. I Petitioner, Phillip T. Breuer, sued respondent, his former employer, Jim’s Concrete of Brevard, Inc., in a state court of Florida for unpaid wages, liquidated damages, prejudgment interest, and attorney’s fees. Section 216(b) provides not only that an employer who violates its minimum wage and overtime provisions is liable to an employee, but that “[a]n action to recover the liability prescribed . . . may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction.” Jim’s Concrete removed the case to the United States District Court for the Middle District of Florida under 28 U. S. C. § 1441(a), which reads that “[ejxcept as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” Breuer sought an order remanding the case to state court, arguing that removal was improper owing to the FLSA’s provision that an action “may be maintained” in any state court, a provision that Breuer put forward as an express exception to the general authorization of removal under § 1441(a). Though the District Court denied Breuer’s motion, it certified the issue for interlocutory appeal under § 1292(b). The Eleventh Circuit affirmed, saying that Congress had expressly barred removal in “direct, unequivocal language” in other statutes, 292 F. 3d 1308, 1310 (2002), but was not comparably prohibitory in § 216(b). The Eleventh Circuit thus joined the First, see Cosme Nieves v. Deshler, 786 F. 2d 445 (1986), but placed itself at odds with the Eighth, see Johnson v. Butler Bros., 162 F. 2d 87 (1947) (denying removability under FLSA). We granted certiorari to resolve the conflict, 537 U S. 1099 (2003), and now affirm. II A There is no question that Breuer could have begun his action in the District Court. The FLSA provides that an action “may be maintained ... in any Federal or State court of competent jurisdiction,” 29 U. S. C. § 216(b), and the district courts would in any event have original jurisdiction over FLSA claims under 28 U. S. C. § 1331, as “arising under the Constitution, laws, or treaties of the United States,” and § 1337(a), as “arising under any Act of Congress regulating commerce.” Removal of FLSA actions is thus prohibited under § 1441(a) only if Congress expressly provided as much. Nothing on the face of 29 U. S. C. § 216(b) looks like an express prohibition of removal, there being no mention of removal, let alone of prohibition. While § 216(b) provides that an action “may be maintained ... in any ... State court of competent jurisdiction,” the word “maintain” enjoys a breadth of meaning that leaves its bearing on removal ambiguous at best. “To maintain an action” may mean “to continue” to litigate, as opposed to “commence” an action. Black’s Law Dictionary 1143 (3d ed. 1933). But “maintain” in reference to a legal action is often read as “bring” or “file”; “[t]o maintain an action or suit may mean to commence or institute it; the term imports the existence of a cause of action.” Ibid.; see 1A J. Moore et al., Moore’s Federal Practice ¶0.167[5], p. 472 (2d ed. 1996) (calling the “‘may be maintained’ ” language an “ambiguous phrase” and “certainly not an express provision against removal within the meaning of §1441”); 14C C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3729, p. 235 (1998) (referring to “use of the ambiguous term ‘maintain’ in the statute”). The most, then, that Breuer can claim simply from the use of the term “maintain” is that any text, even when ambiguous, that might be read as inconsistent with removal is an “express” prohibiting provision under the statute. But if an ambiguous term like “maintain” qualified as an express provision for purposes of 28 U. S. C. § 1441(a), then the requirement of an “expres[s] provision]” would call for nothing more than a “provision,” pure and simple, leaving the word “expressly” with no consequence whatever. “[E]xpres[s] provision]” must mean something more than any verbal hook for an argument. The need to take the express exception requirement seriously is underscored by examples of indisputable prohibitions of removal in a number of other statutes. Section 1445, for example, provides that “(a) A civil action in any State court against a railroad or its receivers or trustees . . . may not be removed to any district court of the United States. “(b) A civil action in any State court against a carrier or its receivers or trustees to recover damages for delay, loss, or injury of shipments . . . may not be removed to any district court of the United States unless the matter in controversy exceeds $10,000, exclusive of interest and costs. “(c) A civil action in any State court arising under the workmen’s compensation laws of such State may not be removed to any district court of the United States. “(d) A civil action in any State court arising under ... the Violence Against Women Act of 1994 may not be removed to any district court of the United States.” See also 15 U. S. C. § 77v(a) (“[N]o case arising under [the Securities Act of 1933] and brought in any State court of competent jurisdiction shall be removed to any court of the United States”); § 1719 (“No case arising under [the Interstate Land Sales Full Disclosure Act] and brought in any State court of competent jurisdiction shall be removed to any court of the United States, except where the United States or any officer or employee of the United States in his official capacity is a party”); § 3612 (“No case arising under [the Condominium and Cooperative Abuse Relief Act of 1980] and brought in any State court of competent jurisdiction shall be removed to any court of the United States, except where any officer or employee of the United States in his official capacity is a party”). When Congress has “wished to give plaintiffs an absolute choice of forum, it has shown itself capable of doing so in unmistakable terms.” Cosme Nieves, 786 F. 2d, at 451. It has not done so here. B None of Breuer’s refinements on his basic argument from the term “maintain” puts him in a stronger position. He goes on to say, for example, that interpretation does not stop at the dictionary, and he argues that the statutory phrase “may be maintained” shows up as sufficiently prohibitory once it is coupled with a federal policy of construing removal jurisdiction narrowly. Breuer relies heavily on our statement in Shamrock Oil & Gas Corp. v. Sheets, 318 U. S. 100 (1941), that “the policy of the successive acts of Congress regulating the jurisdiction of federal courts is one calling for the strict construction of [removal legislation] .... ‘Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits ... the statute has defined.’ ” Id., at 108-109 (quoting Healy v. Ratta, 292 U. S. 263, 270 (1934)). But whatever apparent force this argument might have claimed when Shamrock was handed down has been qualified by later statutory development. At the time that case was decided, § 1441 provided simply that any action within original federal subject-matter jurisdiction could be removed. Fourteen years later, however, it was amended into its present form, requiring any exception to the general removability rule to be express. See Act of June 25, 1948, § 1441(a), 62 Stat. 937 (authorizing removal over civil suits within the district courts’ original jurisdiction “[e]xcept as otherwise expressly provided by Act of Congress”); see also 28 U. S. C. § 1441 (historical and revision notes). Since 1948, therefore, there has been no question that whenever the subject matter of an action qualifies it for removal, the burden is on a plaintiff to find an express exception. As Shamrock itself said, “the language of the Act. .. evidenced] the Congressional purpose,” 313 U. S., at 108, and congressional insistence on express exception is hardly satisfied by the malleability of the term “maintain” in the text Breuer relies upon. Nor does it do Breuer any good to emphasize a sense of “maintain” as implying continuation of an action to final judgment, so as to give a plaintiff who began an action the statutory right under 29 U. S. C. § 216(b) to see it through. We may concede that it does, and the concession leaves the term “maintain” just as ambiguous as ever on the issue before us. The right to maintain an action may indeed be a right to fight to the finish, but removal does nothing to defeat that right; far from concluding a case before final judgment, removal just transfers it from one forum to another. As between a state and a federal forum, the statute seems to betray an indifference, with its provision merely for maintaining action “in any Federal or State Court,” ibid. But even if the text of § 216(b) were not itself reason enough to doubt that the provision conveys any right to remain in the original forum, the implication of Breuer’s position would certainly raise misgivings about his point. For if the phrase “[a]n action ... may be maintained” meant that a plaintiff could insist on keeping an FLSA case wherever he filed it in the first place, it would seem that an FLSA case brought in a federal district court could never be transferred to a different one over the plaintiff’s objection, a result that would plainly clash with the provision for change of venue, 28 U. S. C. § 1404(a) (“For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought”). It is, finally, a like concern about consequences that leaves us with fatal reservations about Breuer’s pragmatic appeal that, many claims under the FLSA are for such small amounts that removal to a sometimes distant federal court may make it less convenient and more expensive for employees to vindicate their rights effectively. This may often be true, but even if its truth somehow justified winking at the ambiguity of the term “maintain,” the implications would keep us from going Breuer’s way. A number of other statutes incorporate or use the same language as § 216(b), see 29 U. S. C. § 626(b) (providing that the Age Discrimination in Employment Act of 1967 “shall be enforced in accordance with the powers, remedies, and procedures provided in” § 216(b) and other sections of the FLSA); § 2005(c)(2) (“An action to recover the liability prescribed [under the Employee Polygraph Protection Act of 1988] in paragraph (1) may be maintained against the employer in any Federal or State court of competent jurisdiction”); § 2617(a)(2) (“An action to recover the damages or equitable relief [under the Family and Medical Leave Act of 1998] prescribed in paragraph (1) may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees”). Breuer, then, cannot have a removal exception for the FLSA without entailing exceptions for other statutory actions, to the point that it becomes just too hard to believe that a right to “maintain” an action was ever meant to displace the right to remove. III Breuer scase was properly removed under 28 U. S. C. § 1441, and the judgment of the Eleventh Circuit is affirmed. It is so ordered. Actually, there is reason to think that this sense of “maintain” was intended. Under the FLSA, the Secretary of Labor may file a suit on behalf of an employee to recover unpaid wages or overtime compensation, and when the Secretary files such a suit, an employee’s right to bring a comparable action terminates, see, e.g., 29 U. S. C. § 216(c). Congressional reports suggest that although an employee may no longer initiate a new action once the Secretary has sued, an employee may continue to litigate, i. e., “maintain,” an action already pending. See H. R. Conf. Rep. No. 327, 87th Cong., 1st Sess., 20 (1961) (filing of the Secretary’s complaint would “not, however, operate to terminate any employee’s right to maintain such a private suit to which he had become a party plaintiff before the Secretary’s action”); S. Rep. No. 145, 87th Cong., 1st Sess., 39 (1961) (Secretary’s filing of complaint “terminates the rights of individuals to later file suit”); cf. Smallwood v. Gallardo, 275 U. S. 56, 61 (1927) (“To maintain a suit is to uphold, continue on foot and keep from collapse a suit already begun”). Seen in this light, Congress’s use of the term “maintain” is easy to understand, carrying no implication for removal. As to individual cases brought before the institution of any suit by the Government, see n. 1, supra. Breuer points to two nonjudicial authorities that do nothing to assuage our skepticism. He calls our attention to the position taken by the Administrator of the Wage and Hour Division, United States Department of Labor, in an amicus brief filed before the Eighth Circuit in Johnson v. Butler Bros., 162 F. 2d 87 (1947), arguing that the text of the FLSA and the policies motivating its passage demonstrate that FLSA actions may not be removed to federal court. But this brief is not persuasive authority. The Secretary has no responsibility for applying the removal statute and no particular authority to interpret it; the Secretary’s opinion cannot make up for the absence of express statutory language. Breuer also points to a Senate Report accompanying the 1958 enactment of 28 U. S. C. §1445, a provision barring removal of workers’ compensation actions under state law. Referring to actions brought under the FLSA, the report states “[i]f filed in the State courts the law prohibits removal to the Federal court.” S. Rep. No. 1830, 85th Cong., 2d Sess., 9 (1958). But a stray comment in a congressional report stands a long way from an express statutory provision. 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_counsel2

E

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party GEBHART v. HUNTER. No. 4091. United States Court of Appeals Tenth Circuit. Oct. 25, 1950. Marvin Gebhart, pro se. Lester Luther, U. S. Atty., Eugene W, Davi-s, Asst. U. S. Atty., and Malcolm Miller, Asst. U. S. Atty., all of Topeka, Kan., for appellee. Before PHILLIPS, Chief Judge, and MURRAH and PICKETT, Circuit Judges. PHILLIPS, Chief Judge. This is an appeal from an order dismissing an application for a writ of -habeas corpus. An indictment containing three counts was returned against Gebhart in the United States District'-Court for the District of Nebraska, Lincoln Division. The first count charged that Gebhart, on August 25, Í934, in such Lincoln Division, with a pistol which he held, put in feár- Frank M. 'Farr and Mayme Erickson, and thereby took -from them $1535.40 in money belonging to the First National Bank in Aurora, Aurora, Nebraska, a banking institution organized under the laws of the United States. The second count charged that Gebhart at the same time and place, in committing the offense charged in count one, did make an assault by the use of a dangerous weapon, to wit, a ¡pistol, upon Farr and Erickson, ■by then and there pointing such pistol at Farr and Erickson. ¡Count three charged that Gebhart at the same time and place in committing the offense charged in count one, did put in jeopardy the lives of Farr and Erickson by the use of a dangerous weapon, to wit, a pistol, which pistol Gebhart pointed at Farr and Erickson. Count one charged a violation of 12 U.S.C.A. § 588b(a), and counts two and three charged violations of 12 U.S.C.A. § 588t>(b) Gebhart was found guilty on each of the three counts by a verdict of a jury, and was sentenced to a term of 20 years on count one, 25 years on count two and 25 years on count three, the sentence on the first count to run concurrently with the sentences on the second and third counts, and the sentences on the second and third counts to run concurrently with each other. Prior to the effective date of 28 U.S. C.A. § 2255, September 1, 1948, and in February, 1947, Gebhart filed in the sentencing court a motion to vacate the judgment and sentence on the second and third counts on the ground that when the sentencing court imposed its sentence on count one it exhausted its power to sentence and therefore the sentences on counts two and three were void. On March 19, 1947, the sentencing court entered an order denying the motion. On appeal that order was affirmed. 4The sentencing court and the ■Court of Appeals, Eighth Circuit, followed the former decisions of the latter court in Holbrook v. United States, 8 Cir., 136 F.2d 649, and Holiday v. United States, 8 Cir., 130 F.2d 988, In the instant case the trial court denied the motion primarily on the ground that Gebhart had not sought the remedy provided by 28 U.S.C.A. § 2255 The grounds set up in the motion in the instant case were identical with the grounds set up for the motion filed in the Eighth Circuit in February, 1947. Since the precise issue here raised was ■adjudicated by the order of the sentencing court, affirmed by the Court of Appeals, Eighth Circuit, Gebhart is ¡barred from relitigating it in this court, under the doctrine of res judicata. Moreover, we agree with the decision of the Eighth Circuit, that since counts two and three charged facts.’ Warranting the imposition of the greater punishment ¡provided for by 12 U.S.C.A. § 588b (b) and Gebhart Was found guilty on those counts, the concurrent sentences imposed on ¡counts two and three, although longer than the sentence imposed on count one, were valid. This court’s observation in the closing sentence of the opinion in Holbrook v. Hunter, 10 Cir., 149 F.2d 230, has no .application in the, instant case. There, each of the two counts of the indictment charged facts bringing the offense within 12 U.S.C.A. § 588‘b(b), and both sentences were imposed under that section. Here, the sentence on count one was imposed under 12 U.S.C.A. § 588b(a) and the sentences on counts two and three were imposed under 12 U.S.C.A. § 588b(b). Affirmed. . 1948 Revised Criminal Code, 18 U.S.C.A. § 2113. . United States v. Gebhart, D.C., 70 F. Supp. 824. . Gebhart v. United States, 8 Cir., 163 F.2d 962. . After the decision by the court below in the instant case,' Gebhart filed a motion in the sentencing court under § 2255, supra, seeking an order vacating the sentences imposed on counts two and three. That motion was denied. See United States v. Gebhart, D.C., 90 F.Supp. 509. . Holbrook v. Hunter, 10 Cir., 149, F.2d 230, 231; Fowler v. Hunter, 10 Cir., 164 F 2d 668, 669; Garrison v. Hunter, 10 Cir., 149 F.2d 844, 845; Strewl v. Sanford, Warden, 5 Cir., 151 F.2d 648; Goldsmith v. Sanford, Warden, 5 Cir., 132 F.2d 126, 127; Spaulding v. Sanford et al., 5 Cir., 142 F.2d 444; Orencia v. Overholser, 82 U.S.App.D.C. 285, 163 F. 2d 763, 765. . Ward v. United States, 10 Cir., 183 F.2d 270, 272. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:

sc_caseoriginstate

17

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the court in which the case originated. Consider the District of Columbia as a state. McCRAY v. ILLINOIS. No. 159. Argued January 10-11, 1967. Decided March 20, 1967. R. Eugene Pincham argued the cause for petitioner. With him on the briefs were Sam Adam, Charles B. Evins and Earl E. Strayhom. John J. O’Toole, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief were William G. Clark, Attorney General, and Richard A. Michael, Assistant Attorney General. Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Evelle J. Younger filed a brief for the State of California, as amicus curiae. Mr. Justice Stewart delivered the opinion the Court. The petitioner was arrested in Chicago, Illinois, on the morning of January 16, 1964, for possession of narcotics. The Chicago police officers who made the arrest found a package containing heroin on his person and he was indicted for its unlawful possession. Prior to trial he filed a motion to suppress the heroin as evidence against him, claiming that the police had acquired it in an unlawful search and seizure in violation of the Fourth and Fourteenth Amendments. See Mapp v. Ohio, 367 U. S. 643. After a hearing, the court denied the motion, and the petitioner was subsequently convicted upon the evidence of the heroin the arresting officers had found in his possession. The judgment of conviction was affirmed by the Supreme Court of Illinois, and wé granted certiorari to consider the petitioner’s claim that the hearing on his motion to suppress was constitutionally defective. The petitioner’s arrest occurred near the intersection of 49th Street and Calumet Avenue at about seven in the morning. At the hearing on the motion to suppress, he testified that up until a half hour before he was arrested he had been at “a friend’s house” about a block away, that after leaving the friend’s house he had “walked with a lady from 48th to 48th .and South Park,” and that, as he approached 49th Street and Calumet Avenue, “[t]he Officers stopped me going through the alley.” “The officers,” he said, “did not show me a search warrant for my person or an arrest warrant for my arrest.” He said the officers then searched him and found the narcotics in question. The petitioner did not identify the “friend” or the “lady,” and neither of them appeared as a witness. The arresting officers then testified. Officer Jackson stated that he and two fellow officers had had a conversation with an informant on the morning of January 16 in their unmarked police car. The officer said that the informant had told them that the petitioner, with, whom Jackson was acquainted, “was selling narcotics and had narcotics on his person and that he could be found-in the vicinity of 47th and Calumet at this particular time.”. Jackson said that he and his fellow officers drove to that vicinity in the police car and that when they spotted the petitioner, the • informant pointed him out and then departed on foot. Jackson stated that the officers observed the petitioner walking with a woman, then separating from her and' meeting briefly with a man, then proceeding alone, and finally, after seeing the police car, “hurriedly walking] between two buildings.” “At this point,” Jackson testified, “my partner and myself got out of the car and informed him we had information he had narcotics on his person, placed him in the police vehicle at this point.” Jackson stated that the officers then searched the petitioner and found the heroin in a cigarette package. Jackson testified that he had been acquainted with the informant for approximately a year, that during this period the informant had supplied him with information about narcotics activities “fifteen, sixteen times at least,” that the information had proved to be accurate and had resulted in numerous arrests and convictions. On cross-examination, Jackson was even more specific as to the informant’s previous reliability, giving the names of people who had been convicted of narcotics violations as the result of information the informant had supplied. When Jackson was asked for the informant’s name and address, counsel for the State objected, and the objection was sustained by the court. Officer Arnold gave substantially the same account of the circumstances of the petitioner’s arrest and search, stating that the informant had told the officers that the petitioner “was selling narcotics and had narcotics on his person now in the vicinity of 47th and Calumet.” The informant, Arnold testified, “said he had observed [the petitioner] selling narcotics to various people, meaning various addicts, in the area of 47th and Calumet.” Arnold testified that he had known the informant “roughly two years,” that the informant had given him information concerning narcotics “20 or 25 times,” and that the information had resulted in convictions. Arnold too was asked on cross-examination for the informant’s name and address, and objections to these questions were sustained by the court. There can be no doubt, , upon the basis of the circumstances related by Officers Jackson and Arnold, that there was probable cause to sustain the arrest and incidental search in this case. Draper v. United States, 368 U. S. 307. Unlike the situation in Beck v. Ohio, 379 U. S. 89, each of the officers in this case described with specificity “what the informer actually said, and why the officer thought the information was credible.” 379 U. S., at 97. The testimony of each of the officers informed the court 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.’ ” Aguilar v. Texas, 378 U. S. 108, 114. See United States v. Ventresca, 380 U. S. 102. Upon the basis of those . circumstances, along with the officers’ personal observations. of the petitioner, the court was fully justified in holding that at the time the officers made the arrest “the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. Brinegar v. United States, 338 U. S. 160, 175-176; Henry v. United States, 361 U. S. 98, 102.” Beck v. Ohio, supra, at 91. It is the petitioner’s claim, however, that even though the officers’ sworn testimony fully supported a finding of probable cause for the arrest and search, the state court nonetheless violated the Constitu- - tion when it sustained objections to the petitioner’s questions as to the identity of the informant. We cannot agree. . In permitting the officers to withhold the informant’s identity, the court was following well-settled Illinois law. When the issue is not guilt or innocence, but, as here, the question of probable-cause for an arrest or search, the Illinois Supreme Court has held that police officers need not invariably be required to disclose an informant’s identity if the trial judge is convinced, by evidence submitted in open court and subject to cross-examination, that the officers did rely in good faith upon credible information supplied by a reliable informant. This Illinois evidentiary rule is consistent with the law of many other States. In California, the State Legislature in 1965 enacted a statute adopting just such a rule for cases like the one before us: “[I]n any preliminary hearing, criminal trial, or other criminal proceeding, for violation of any provision of Division 10 (commencing with Section 11000) of the Health and Safety Code, evidence of information communicated to a peace officer by a confidential informant, who is not a material witness to the guilt or innocence of the accused of the offense charged, shall be admissible on the issue of reasonable cause to make an arrest or search without requiring that the name or identity of the informant be disclosed if the judge or magistrate is satisfied, based upon evidence produced in open court, out of the presence of the jury, that such information was received from a reliable informant and in his discretion does not require such disclosure.” California Evid. Code § 1042 (c). The reasoning of the Supreme Court of New Jersey in judicially adopting the same basic evidentiary rule was instructively expressed by Chief Justice Weintraub in State v. Burnett, 42 N. J. 377, 201 A. 2d 39: “If a defendant may insist upon disclosure of the informant in order to test the truth of the officer’s statement that there is an informant or as to what the informant related or as to the informant’s reliability, we can be sure that every defendant will demand disclosure. He has nothing to lose and the prize may be the suppression of damaging evidence if the State cannot afford to reveal its source, as is so often the case. And since there is no way to test the good faith of a defendant who presses the demand, we must assume the routine demand would have to be routinely granted. The result would be that the State could use the informant’s information only as a lead and could search only if it could gather adequate evidence of probable cause apart from the informant’s data. Perhaps that approach would sharpen investigatorial techniques, but we doubt that there would be enough talent and time to cope with crime upon that basis. Rather wp accept the premise that the informer is a vital part of society’s defensive arsenal. The basic rule protecting his identity rests upon that belief. “We must remember also that we are not dealing with the trial of the criminal charge itself. There the need for a truthful verdict outweighs society’s need for the informer privilege. Here, however, the accused seeks to avoid the truth. The very purpose of a motion to suppress is to escape the inculpatory thrust of evidence in hand, not because its probative force is diluted in the least by the mode •of seizure, but rather as a sanction to compel enforcement officers to respect the constitutional security of all of us under the Fourth Amendment. State v. Smith, 37 N. J. 481, 486 (1962). If the motion to suppress is denied, defendant will still be judged upon the untarnished truth. “The Fourth Amendment is served if a judicial mind passes upon the existence of probable cause. Where the issue is submitted upon an application for a warrant, the magistrate is trusted to evaluate the credibility of the affiant in an ex parte proceeding. As we havé said, the magistrate is concerned, not with whether the informant lied, but with • whether the affiant is truthful in his recitation of what he was told. If the magistrate doubts .the credibility of the affiant, he may require that , the informant be identified or even produced. It seems to us that the same approach is equally sufficient where the search was without a warrant, that is to - say, that it should rest entirely with the judge who hears the motion to suppress to decide whether he needs such disclosure as to the informant in order to decide whether the officer is a believable witness.” 42 N. J., at 385-388, 201 A. 2d, at 43-45. What Illinois and her sister States have doné is no more than recognize a well-established testimonial privilege, long familiar to the law of evidence. Professor Wigmore, not known as an enthusiastic advocate of testimonial privileges generally, has described that privilege in these words: “A genuine privilege, on . . . fundamental principle . . . , must be recognized for the identity of persons supplying the government with information concerning the commission of crimes. Communications of this kind ought to receive encouragement. They are discouraged if the informer’s identity is disclosed. Whether an informer is motivated by good citizenship, promise of leniency or prospect of pecuniary reward, he will usually condition his cooperation on an assurance of anonymity — to protect himself and his family from harm, to preclude adverse social reactions and to avoid the risk of defamation or malicious prosecution actions against him. The government also has an interest in nondisclosure of the identity of its informers. Law enforcement officers often depend upon professional informers to furnish them with a flow of information about criminal activities. Revelation of the dual role played by such persons ends their usefulness to the government and discourages others from entering into a like relationship. “That the government has this privilege is well established, and its soundness cannot be questioned.” (Footnotes omitted.) 8 Wigmore, Evidence § 2374 (McNaughton rev. 1961), In the federal courts the rules of evidence in criminal trials are governed “by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.” This Court, therefore, has the ultimate task of defining the scope to be accorded to the various common law eviden-tiary privileges in the trial of federal criminal cases. See Hawkins v. United States, 358 U. S. 74. This is a task which is quite different, of course, from the responsibility of constitutional adjudication. In the exercise of this supervisory jurisdiction the Court had occasion 10 years ago, in Roviaro v. United States, 353 U. S. 53, to give thorough consideration to one aspect of the informer’s privilege, the privilege itself having long been recognized in the federal judicial system. The Ruviaro case involved the informer’s privilege, not at a preliminary hearing to determine probable cause for an arrest or search, but at the trial itself where the issue was the fundamental, one of innocence or guilt. The petitioner there had been brought to trial upon a two-count federal indictment charging sale and transportation of narcotics. According to the prosecution’s evidence, the informer had been. an active participant in the crime. He “had taken a material part in bringing about the possession of certain drugs by the accused, had been present with the accused at the occurrence of the alleged crime, and might be a material witness as to whether the accused knowingly transported the drugs as charged.” 353 U. S., at 55. The trial court nonetheless deniéd a defense motion to compel the prosecution to disclose the informer’s identity. This Court held that where, in an actual trial of a federal criminal case, “the disclosure of an informer’s identity ... is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action. ... “We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” 353 U. S., at 60-61, 62. (Footnotes omitted.) The Court’s opinion then carefully reviewed the particular circumstances of Roviaro’s trial, pointing out that the informer’s “possible testimony was highly relevant . . . ,” that he “might have disclosed an entrapment . . . ,” “might have thrown doubt upon petitioner’s identity or on the identity of the package . . . ,” “might, have testified to petitioner’s possible lack of knowledge of the contents of the package that he ‘transported’ ...,” and that the “informer was the sole participant, other than the accused, in the transaction charged.” 353 U. S., at 63-64. The Court concluded “that, under these cir-. cumstances, the trial court committed prejudicial error in permitting the Government to withhold the identity of its undercover employee in the face of repeated demands by the accused for his disclosure.” 353 IT. S., at 65. What Roviaro thus makes clear is that this Court was unwilling to impose any absolute rule requiring disclosure of an informer’s identity even in formulating evidentiary rules for federal criminal trials. Much less has the Court ever approached the formulation of a federal evidentiary rule of- compulsory disclosure where the issue is the preliminary one of probable cause, and guilt or innocence is not at stake. Indeed, we have repeatedly made clear that federal officers need not disclose an informer’s identity in applying for an arrest or search warrant. As was said in United States v. Ventresca, 380 U. S. 102, 108, we have “recognized that ‘an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant/ so long as the magistrate is ‘informed of some of the underlying circumstances’ supporting the affiant’s, conclusions and his belief that any informant involved ‘whose identity need not he disclosed ... was “credible” or his information “reliable.” ’ Aguilar v. Texas, supra, at 114.” (Emphasis added.) See also Jones v. United States, 362 U. S. 257, 271-272; Rugendorf v. United States, 376 U. S. 528, 533. And just this Term we have taken occasion to point out that a rule virtually prohibiting the use of informers would “severely hamper the Government” in enforcement of the narcotics laws. Lewis v. United States, 385 U. S. 206, 210. In sum, the Court in the exercise of its power to formulate evidentiary rules for federal criminal cases has consistently declined to hold that an informer’s identity need always be disclosed in a federal criminal trial, let alone in a preliminary hearing to determine probable cause for an arrest or search. Yet we are now asked to hold that the Constitution somehow compels Illinois to abolish the informer’s privilege from its law of evidence, and to require disclosure of the informer’s identity in every such - preliminary hearing where it appears that the officers made the arrest or search in reliance upon facts supplied by an informer they had reason to trust. The argument is based upon the Due Process Clause of the Fourteenth Amendment, and upon the Sixth Amendment right of confrontation, applicable to the States through the Fourteenth Amendment. Pointer v. Texas, 380 U. S. 400. We find no support for the petitioner’s position in either of those constitutional provisions. The arresting officers in this case testified, in open court, fully and in precise detail as to what the informer told them and as to why they had reason to believe his information was trustworthy. Each officer was under oath. Each was subjected to searching cross-examination. The judge was obviously satisfied that each was telling the truth, and for that reason he exercised the discretion conferred upon him by the established law of Illinois to respect the informer’s privilege. Nothing in the Due Process Clause of the Fourteenth Amendment requires a state court judge in every such hearing- to assume the arresting officers are committing perjury. “To take such a step would be quite beyond the pale of this Court’s proper function in our federal system. It would be a wholly unjustifiable encroachment by this Court upon. the. constitutional power of States to promulgate their own rules of evidence ... in their own state courts . . . .” Spencer v. Texas, 385 U. S. 554, 568-569. The petitioner does not explain precisely hotf he thinks his Sixth Amendment right to confrontation and cross-examination was violated by Illinois’ recognition of the informer’s privilege in this case. If the claim is that the State violated the Sixth Amendment by not producing the informer to testify against the petitioner, then we need no more than repeat the Court’s answer to that claim a few weeks ago in Cooper v. California: “Petitioner also -presents the contention here that he was unconstitutionally deprived of the right to confront a witness against him, because the State did not produce the informant to testify against him. This contention we - consider absolutely devoid of merit.”. Ante, p. 68, at 62, n. 2. On the- other hand, the claim may be that the petitioner was deprived of his Sixth Amendment right to cross-examine the arresting officers themselves, because their refusal to reveal the informer’s identity was upheld. But it would follow from this argument that no witness on cross-examination could ever constitutionally assert a ■ testimonial privilege, including the privilege against compulsory self-incrimination guaranteed by the Constitution itself.. We. have never given the Sixth Amendment such a construction, and we decline to do so now. Affirmed. 33 Ill. 2d, 210 N. E. 2d 161 384 U.S. 949. The weather was “real cold,” and the petitioner testified he “had on three coats.” In order to conduct the search, the arresting officers required the petitioner to remove some of his clothing, but even the petitioner’s version of the circumstances of the search did not disclose any conduct remotely akin to that condemned by this Court, in Rochin v. California, 342 U. S. 165. “Q. What is the name of this informant that gave you this information? “Mr. Engerman: Objection, Your Honor. “The Court: State for the record the reasons for your objection. “Mr. Engerman: Judge, based upon the testimony of the officer so far that they had used this informant for approximately a year, he has worked with this individual, in the interest of the public, I see no reason why the officer should be forced to disclose the name of the informant, to cause harm or jeopardy to an individual who has cooperated with the police. The City of Chicago have a tremendous problem with narcotics. If the police are not able to withhold the name of the informant they will not be able to get informants. They are not willing to risk their lives if their names become known. “In the, interest of the City and the law enforcement of this community, I feel the officer should not be forced to reveal the name of the informant. And I also cite People vs. Durr. “The Court: I will sustain that. “Mr. Adam: Q. Where does this informant live? “Mr. Engerman: Objection, your Honor, same basis. “The Court: Sustained.” People v. Durr, 28 Ill. 2d 308, 192 N. E. 2d 379; People v. Nettles, 34 Ill. 2d 52, 213 N. E. 2d 536; People v. Connie, 34 Ill. 2d 353, 215 N. E. 2d 280; People v. Freeman, 34 Ill. 2d 362, 215 N. E. 2d 206; People v. Miller, 34 Ill. 2d 527, 216 N. E. 2d 793. Cf. People v. Pitts, 26 Ill. 2d 395, 186 N. E. 2d 357; People v. Parren, 24 Ill. 2d 572, 182 N. E. 2d 662. State v. Cookson, 361 S. W. 2d 683 (Mo. Sup. Ct.); Simmons v. State, 198 Tenn. 587, 281 S. W. 2d 487; People v. Coffey, 12 N. Y. 2d 443, 191 N. E. 2d 263. But see People v. Malinsky, 15 N. Y. 2d 86, 209 N. E. 2d 694. Cf. Stelloh v. Liban, 21 Wis. 2d 119, 124 N. W. 2d 101; Baker v. State, 150 So. 2d 729 (Fla. App.); State v. Boles, 246 N. C. 83, 97 S. E. 2d 476. In the present case California has filed a helpful amicus brief, advising us that the validity of this provision is now before the Supreme Court of California. Martin v. Superior Court (LA 29078). The statute was enacted to modify that court’s decision in Priestly v. Superior Court, 50 Cal. 2d 812, 330 P. 2d 39. See also Ford v. City of Jackson, 153 Miss. 616, 121 So. 278. See 8 Wigmore, Evidence §2192 (McNaughton rev. 1961). Rule 26, Fed. Rules Crim. Proc. See Scher v. United States, 305 U. S. 251; In re Quarles & Butler, 158 U. S. 532; Vogel v. Gruaz, 110 U. S. 311. Some federal courts have applied the same rule of nondisclosure in both warrant and nonwarrant cases. Smith v. United States, 123 U. S. App. D. C. 202, 358 F. 2d 833; Jones v. United States, 326 F. 2d 124 (C. A. 9th Cir.), cert. denied, 377 U. S. 956; United States v. One 1957 Ford Ranchero Pickup, 265 F. 2d 21 (C. A. 10th Cir.). Other federal courts, however, have distinguished between these two classes of cases and have required the identification of informants in nonwarrant cases. United States v. Robinson, 325 F. 2d 391 (C. A. 2d Cir.); Cochran v. United States, 291 F. 2d 633 (C, A. 8th Cir.). Cf. Wilson v. United States, 59 F. 2d 390 (C. A. 3d Cir.). See Comment, Informer’s Word as the Basis for Probable Cause in the Federal Courts, 53 Calif. L. Rev. 840 (1965). In drawing this distinction some of the federal courts have relied upon a dictum in Roviaro v. United States, 353 U. S. 53, 61: “Most of the federal cases involving this limitation on the scope of the informer’s privilege have arisen where the legality of a search without a warrant is in issue and the communications of an informer are claimed to establish probable cause. In these cases the Government has been required to disclose the identity of the informant unless there was sufficient evidence apart from his confidential communication.” Since there was no probable cause issue in Roviaro, the quoted statement was clearly not necessary for decision. Indeed, an absolute rule of disclosure for probable cause determinations would conflict with the case-by-case approach upon which the Roviaro decision was based. Moreover, the precedent upon which this dictum was grounded furnishes only dubious support. Scher v. United States, 305 U. S. 251, the only decision of this Court which was cited, affirmed the trial judge’s refusal to order arresting officers to reveal the source of their information'. Question: What is the state of the court in which the case originated? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:

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. FLORIDA v. WHITE No. 98-223. Argued March 23, 1999 Decided May 17, 1999 Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, Kennedy, Souter, and Breyer, JJ., joined. Souter, J., filed a concurring opinion, in which Breyer, J., joined, post, p. 566. Stevens, J., filed a dissenting opinion, in which Ginsburg, J., joined, post, p. 567. Carolyn Snurkowski, Assistant Deputy Attorney General of Florida, argued the cause for petitioner. With her on the briefs were Robert A. Butterworth, Attorney General, and Daniel A. David, Assistant Attorney General. Malcolm L. Stewart argued the States as amicus curiae urging reversal. With him on the brief were Solicitor General Waxman, Assistant Attorney General Robinson, Deputy Solicitor General Dreeben, and Kathleen A. Felton. David P. Gauldin argued the cause for respondent. With him on the brief were David A, Davis and Michael J. Minerva. A brief of amici curiae urging reversal was filed for the State of Arkansas et al. by Winston Bryant, Attorney General of Arkansas, David R. Raupp, Senior Assistant Attorney General, and Dan Schweitzer, and by the Attorneys General for their respective States as follows: Bill Lock-yer of California, M. Jane Brady of Delaware, Thurbert E. Baker of Georgia, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, James E. Ryan of Illinois, Jeffrey A. Modisett of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, J. Joseph Curran, Jr., of Maryland, Jennifer M. Granholm of Michigan, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Peter Vemiero of New Jersey, Heidi Heitkamp of North Dakota, Betty D. Montgomery of Ohio, W. A. Drew Edmondson of Oklahoma, Mike Fisher of Pennsylvania, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Paul G. Summers of Tennessee, Jan Graham of Utah, Mark L. Earley of Virginia, Christine 0. Gregoire of Washington, and Gay Woodhouse of Wyoming. Richard J. Troberman and Lisa B. Kemler filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance. Justice Thomas delivered the opinion of the Court. The Florida Contraband Forfeiture Act provides that certain forms of contraband, including motor vehicles used in violation of the Act’s provisions, may be seized and potentially forfeited. In this ease, we must decide whether the Fourth Amendment requires the police to obtain a warrant before seizing an automobile from a public place when they have probable cause to believe that it is forfeitable contraband. We hold that it does not. I On three occasions in July and August 1993, police officers observed respondent Tyvessel Tyvorus White using his car to deliver cocaine, and thereby developed probable cause to believe that his ear was subject to forfeiture under the Florida Contraband Forfeiture Act (Act), Fla. Stat. §932.701 et seq. (1997). Several months later, the police arrested respondent at his place of employment on charges unrelated to the drug transactions observed in July and August 1993. At the same time, the arresting officers, without securing a warrant, seized respondent’s automobile in accordance with the provisions of the Act. See § 932.703(2)(a). They seized the vehicle solely because they believed that it was forfeitable under the Act. During a subsequent inventory search, the police found two pieces of crack cocaine in the ashtray. Based on the discovery of the cocaine, respondent was charged with possession of a controlled substance in violation of Florida law. At his trial on the possession charge, motion to suppress the evidence discovered during the inventory search. He argued that the warrantless seizure of his car violated the Fourth Amendment, thereby making the cocaine the “fruit of the poisonous tree.” The trial court initially reserved ruling on respondent’s motion, but later denied it after the jury returned a guilty verdict. On appeal, the Florida First District Court of Appeal affirmed. 680 So. 2d 550 (1996). Adopting the position of a majority of state and federal courts to have considered the question, the court rejected respondent’s argument that the Fourth Amendment required the police to secure a warrant prior to seizing his vehicle. Id., at 554. Because the Florida Supreme Court and this Court had not directly addressed the issue, the court certified to the Florida Supreme Court the question whether, absent exigent circumstances, the war-rantless seizure of an automobile under the Act violated the Fourth Amendment. Id., at 555. In a divided opinion, the Florida Supreme Court answered the certified question in the affirmative, quashed the First District Court of Appeal’s opinion, and remanded. 710 So. 2d 949, 955 (1998). The majority of the court concluded that, absent exigent circumstances, the Fourth Amendment requires the police to obtain a warrant prior to seizing property that has been used in violation of the Act. Ibid. According to the court, the fact that the police develop probable cause to believe that such a violation occurred does not, standing alone, justify a warrantless seizure. The court expressly rejected the holding of the Eleventh Circuit, see United States v. Valdes, 876 F. 2d 1554 (1989), and the majority of other Federal Circuits to have addressed the same issue in the context of the federal civil forfeiture law, 21 U. S. C. §881, which is similar to Florida’s. See United States v. Decker, 19 F. 3d 287 (CA6 1994) (per curiam); United States v. Pace, 898 F. 2d 1218, 1241 (CA7 1990); United States v. One 1978 Mercedes Benz, 711 F. 2d 1297 (CA5 1983); United States v. Kemp, 690 F. 2d 397 (CA4 1982); United States v. Bush, 647 F. 2d 357 (CA3 1981). But see United States v. Dixon, 1 F. 3d 1080 (CA10 1993); United States v. Lasanta, 978 F. 2d 1300 (CA2 1992); United States v. Linn, 880 F. 2d 209 (CA9 1989). We granted certiorari, 525 U. S. 1000 (1998), and now reverse. ► — 1 The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and further provides that "no Warrants shall issue, but upon probable cause.” U. S. Const., Arndt. 4. In deciding whether a challenged governmental action violates the Amendment, we have taken care to inquire whether the action was regarded as an unlawful search and seizure when the Amendment was framed. See Wyoming v. Houghton, ante, at 299; Carroll v. United States, 267 U. S. 182, 149 (1925) (“The Fourth Amendment is to be construed in light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens”). In Carroll, we held that when federal officers have probable cause to believe that an automobile contains contraband, the Fourth Amendment does not require them to obtain a warrant prior to searching the car for and seizing the contraband. Our holding was rooted in federal law enforcement practice at the time of the adoption of the Fourth Amendment. Specifically, we looked to laws of the First, Second, and Fourth Congresses that authorized federal officers to conduct warrantless searches of ships and to seize concealed goods subject to duties. Id., at 150-151 (citing Act of July 81,1789, §§24,29,1 Stat. 43; Act of Aug. 4,1790, §50,1 Stat. 170; Act of Feb. 18, 1793, §27, 1 Stat. 315; Act of Mar. 2, 1799, §§68-70, 1 Stat. 677, 678). These enactments led us to conclude that “contemporaneously with the adoption of the Fourth Amendment,” Congress distinguished “the necessity for a search warrant between goods subject to forfeiture, when concealed in a dwelling house or similar place, and like goods in course of transportation and concealed in a movable vessel where they readily could be put out of reach of a search warrant.” 267 U. S., at 151. The Florida Supreme Court recognized that under Carroll, the police could search respondent’s car, without obtaining a warrant, if they had probable cause to believe that it contained contraband. The court, however, rejected the argument that the warrantless seizure of respondent’s vehicle itself also was appropriate under Carroll and its progeny. It reasoned that “[tjhere is a vast difference between permitting the immediate search of a movable automobile based on actual knowledge that it then contains contraband [and] the discretionary seizure of a citizen’s automobile based upon a belief that it may have been used at some time in the past to assist in illegal activity.” 710 So. 2d, at 953. We disagree. The principles underlying the rule in Carroll and the founding-era statutes upon which they are based fully support the conclusion that the warrantless seizure of respondent’s ear did not violate the Fourth Amendment. Although, as the Florida Supreme Court observed, the police lacked probable cause to believe that respondent’s car contained contraband, see 710 So. 2d, at 953, they certainly had probable cause to believe that the vehicle itself was contraband under Florida law. Recognition of the need to seize readily movable contraband before it is spirited away undoubtedly underlies the early federal laws relied upon in Carroll. See 267 U. S., at 150-152; see also California v. Carney, 471 U. S. 386, 390 (1985); South Dakota v. Opperman, 428 U. S. 364, 367 (1976). This need is equally weighty when the automobile, as opposed to its contents, is the contraband that the police seek to secure. Furthermore, the early federal statutes that we looked to in Carroll, like the Florida Contraband Forfeiture Act, authorized the warrantless seizure of both goods subject to duties and the ships upon which those goods were concealed. See, e. g., 1 Stat. 43, 46; 1 Stat. 170, 174; 1 Stat. 677, 678, 692. In addition to the special considerations recognized in the context of movable items, our Fourth Amendment jurisprudence has consistently accorded law enforcement officials greater latitude in exercising their duties in public places. For example, although a warrant presumptively is required for a felony arrest in a suspect’s home, the Fourth Amendment permits warrantless arrests in public places where an officer has probable cause to believe that a felony has occurred. See United States v. Watson, 423 U. S. 411, 416-424 (1976). In explaining this rule, we have drawn upon the established “distinction between a warrantless seizure in an open area and such a seizure on private premises.” Payton v. New York, 445 U. S. 573, 587 (1980); see also id., at 586-587 (“It is also well settled that objects such as weapons or contraband found in a public place may be seized by the police without a warrant”). The principle that underlies Watson extends to the seizure at issue in this case. Indeed, the facts of this case are nearly indistinguishable from those in G. M. Leasing Corp. v. United States, 429 U. S. 338 (1977). There, we considered whether federal agents violated the Fourth Amendment by failing to secure a warrant prior to seizing automobiles in partial satisfaction of income tax assessments. Id., at 351. We concluded that they did not, reasoning that “[t]he seizures of the automobiles in this case took place on public streets, parking lots, or other open places, and did not involve any invasion of privacy.” Ibid. Here, because the police seized respondent’s vehicle from a public area — respondent’s employer’s parking lot — the warrantless seizure also did not involve any invasion of respondent’s privacy. Based on the relevant history and our prior precedent, we therefore conclude that the Fourth Amendment did not require a warrant to seize respondent’s automobile in these circumstances. The judgment of the Florida Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered. That Act provides, in relevant part: “Any contraband article, vessel, motor vehicle, aircraft, other personal property, or real property used in violation of any provision of the Florida Contraband Forfeiture Act, or in, upon, or by means of which any violation of the Florida Contraband Forfeiture Act has taken or is taking place, may be seized and shall be forfeited.” Fla. Stat. § 932.703(l)(a) (1997). Nothing in the Act requires the police to obtain a warrant prior to seizing a vehicle. See State v. Pomerance, 434 So. 2d 329, 330 (Fla. App. 1983). Rather, the Act simply provides that “[plersonal property may be seized at the time of the violation or subsequent to the violation, if the person entitled to notice is notified at the time of the seizure . . . that there is a right to an adversarial preliminary hearing after the seizure to determine whether probable cause exists to believe that such property has been or is being used in violation of the Florida Contraband Forfeiture Act." §932.703(2)(a). The Aet defines "contraband” to include any "vehicle of any kind,... which was used... as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony.” § 932.701(2)(a)(5). At oral argument, respondent contended that the delay between the time that the police developed probable cause to seize the vehicle and when the seizure actually occurred undercuts the argument that the war-rantless seizure was necessary to prevent respondent from removing the car out of the jurisdiction. We express no opinion about whether excessive delay prior to a seizure could render probable cause stale, and the seizure therefore unreasonable under the Fourth Amendment. 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_genresp2

I

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. SWETNAM v. EDMUND WRIGHT GINSBERG CORPORATION. No. 192. Circuit Court of Appeals, Second Circuit. Argued Feb. 9, 1942. Decided May 5, 1942. Edward C. Weinrib, of New York City (Shaine & Weinrib, of New York City, on the brief), for plaintiff-appellant. Duane R. Dills, of New York City (Dills, Muecke, Schelker & Levinson and Florence G. Brodman, all of New York City, on the brief), for defendant-appellee. Before SWAN, AUGUSTUS ' N. HAND, and CLARK, Circuit Judges. CLARK, Circuit Judge. This case involves an attempted pledge whereby the asserted pledgee seeks to comply with the traditional, common-law requirements of possession and still leave the asserted pledgor with sufficient access to the property to allow processing. The issue is presented by a plenary suit brought by a bankruptcy trustee appointed by the District Court for the Western District of Virginia, in which he seeks to set aside transfers of accounts receivable and merchandise during the four months prior to bankruptcy. The principal defense, offered is that the transfers were made pursuant to a valid pledge and are not preferences. The District Court upheld this defense with a considered opinion. 37 F.Supp. 546. We are constrained to disagree. The bankrupt, the Deford Company, a West Virginia corporation engaged in tanning operations, entered into a factoring agreement in 1936 with defendant, Edmund Wright Ginsberg Corporation. Under this agreement defendant was to be the exclusive factor for Deford, in order to provide working capital. As security, the contract gave defendant a lien on all hides and leather, and provided that all accounts receivable arising from the shipment of pledged leather were to be assigned to defendant. In furtherance of the pledge agreement, provision was made for lease of the warehouses by defendant, for insurance in favor of defendant, for a custodian under the pledgee’s control, for reports. of various kinds, and for control over the persons to whom leather was sold and the methods of assignment of accounts. During the period of the contract, advances from defendant to Deford amounted to something over $1,000,000. 'Yet the financial condition of Deford Was at all times precarious, and defendant knew at least as early as October, 1937, that De-ford was insolvent. At about that time defendant ceased advancing funds and processing soon stopped. Finished hides were still sold, however; and as late as April, 1938, negotiations concerning further advances were had between defendant and Deford. These fell through, and on July 20, 1938, Deford was adjudicated a bankrupt. The trustee seeks to recover $94,278.30, the adjusted amount of the accounts receivable assigned during the four months preceding the date of adjudication. As the District Court remarked, the requirement that possession of pledged property must pass to the pledgee “is so well established in the law that it is not open, to discussion.” But, as the court also observed, “possession” is “not a self-expounding term.” In a case such as this, where the parties clearly tried-to come as close as possible to meeting the legal requirements of “possession,” yet leave the pledgor free to operate its business, it is necessary to examine closely the actual course of activity. We may put to one side the provisions of the contract and the supervision of sales by defendant. All this cannot be finally decisive, even though it may be indispensable as a first step, in establishing possession. None of it hits the real purpose of requiring possession — notice to third parties that property apparently owned by the debtor is subject to a security interest. See 51 Yale L. J. 431; Irving Trust Co. v. Commercial Factors Corp., 2 Cir., 68 F.2d 864, 866. The crucial question is how well defendant and Deford signified to the world what property was and what property was not pledged. The first, and most important, element is the nature of signs indicating that property on the Deford grounds was pledged to defendant. The Deford plant occupied approximately fifteen acres of land at Luray, Virginia, with thirty or so buildings scattered over the tract. At the entrance was a small sign warning that the property was private and belonged to the Deford Company. Numerous large signs, visible for some distance, also stated that the property was the site of the Deford leather plant. Of the many buildings on the grounds, five were leased to defendant — the hide house, three warehouses, and the warehouse office. On these buildings, usually only at one spot, not the most conspicuous, small brass plates, 16" by 4", reading “Edmund Wright Ginsberg Corporation, Factor for The Deford Company,” or “Edmund Wright Ginsberg Corporation, Factors,” were, placed. In one instance this sign was so placed on a door that whenever the screen was closed the sign was virtually invisible. There was also evidence that cardboard signs stating “All leather in this warehouse is pledged to Edmund Wright Ginsberg Corporation” had been put up on warehouses. They were removed, however, when the brass plates were put up. Apparently there were also some signs inside the buildings, but at best they would not be too valuable as notices to third parties; and even they were not too conspicuously placed. All in all, the notices were placed obscurely, were frequently vaguely worded, and were generally offset by the more noticeable indications of ownership by Deford. Not even the attempted possession, apart from notice, comported with the traditional common-law rules. One of Deford’s employees was switched to defendant’s pay roll and made custodian of the pledged hides. But except for making some notations in a small notebook, he continued his work as before. All other activity continued as formerly, except as to actual sales, which had to be approved by defendant. Even though the custodian was given a set of keys to the leased buildings, three other sets remained in Deford’s hands; and although the custodian was supposed to unlock and lock the premises, it appears that he did so only when he was the first to arrive or the last to leave. There was also a small stamp, consisting of a circle around a cross, placed on each hide to indicate that the hide was pledged; but the stamp seems always to have been around the premises, and use of it appears to have differed only in that after the pledge arrangement every hide was stamped. Thus, the attempted legal shift of control was little more than a matter of lip service to the rules. Actually, business went on as before. All the acts here recited are conceded by the parties in a well-presented case. The question becomes one of the legal consequences of these acts. There is no question but that pledge agreements which allow processing to continue are difficult to arrange. It is to avoid this difficulty that an act like the New York provision for notice of liens on merchandise, Personal Property Law, Consol.Laws c. 41, § 45, was passed. But no such provision exists in Virginia, and common-law rules must govern. Though there are no specific decisions in Virginia covering a pledge of the sort here, there is no indication that Virginia courts would not follow the universal rule. As good a statement of the authorities as any will be found in In re Merz, 2 Cir., 37 F.2d 1, certiorari denied Degener v. Boyd, 281 U. S. 738, 50 S.Ct. 333, 74 L.Ed. 1152. We are content to rest on that case as stating the common-law rule, and as covering this situation. Here in net effect the lendor’s possession was neither open nor exclusive. 2 Glenn, Fraudulent Conveyances and Preferences, Rev.Ed.1940, § 477. Defendant seeks to rely on the Virginia Traders Act, set out in the margin, with which it sought to comply. A careful search of the Virginia authorities reveals no instance in which that statute has been held to obviate the necessity for possession. The purpose of the statute is to hit agency and consignment arrangements and undisclosed partners or backers. Southern Dairies v. Cooper, 4 Cir., 35 F.2d 439; 16 Va.L.Rev. 311. In fact, the courts have been criticized for extending the statute to instances where chattel mortgages and conditional sales had been recorded. See, generally, notes in 27 Va.L.Rev. 962; 14 Va.L.Rev. 496. If the statute goes this far, it might be argued that a pledgee both had to take possession and comply with the act. Compare Wood Preserving Corp. v. Coney Grocery Corp., 176 Miss. 406, 168 So. 864, where the court held otherwise under a similar statute, yet assumed for the sake of argument only that compliance with the statute would protect a “non-posses-sory pledge.” Seaboard Citizens’ Nat. Bank v. Spandorfer, 160 Va. 826, 170 S.E. 12, relied upon by defendant, only establishes affirmatively the applicability of the Traders Act to the situation there disclosed of a bank loaning money to an auto dealer who was to continue to sell cars; it does not establish the non-applicability of the law of pledge. Furthermore, in view of our discussion of the poor attempt at disclosure in this case, it seems unlikely that there was a sign “placed conspicuously at the house wherein such business [was] transacted.” Defendant also seeks to rely .on disclosures of the factoring agreements in various credit agency reports. These substitutes for possession by pledgees have not been accorded legal recognition. And since the rule of possession does not rest on actual deception, but on the possibility of it, the fact that some of Deford’s creditors might have been on notice is irrelevant. Finally, defendant argues that the assignments of accounts during the four months preceding bankruptcy relate back to the date of the agreement. This is clearly erroneous. In 1936, there was only an agreement to assign, and, as we have held, no valid lien upon the hides and leather. Hence until the accounts came into existence, no security could exist; and until actually assigned, the security interest did not exist. Okin v. Isaac Goldman Co., 2 Cir., 79 F.2d 317; In re Modell, 2 Cir., 71 F.2d 148. When the assignment was made, a preference was created. Under § 60, sub. b, Bankr.Act, 11 U.S.C.A. § 96, sub. b, this was voidable. Nor can the procedure followed be fairly assimilated to the taking of actual possession under an equitable pledge, for that never happened. Instead, Deford delivered possession to its vendees; and having thus created a new property in itself, by way of claim against the vendees, it assigned that to defendant. Thus fairly considered, there were two separate steps, not merely the one step of perfecting a heretofore imperfect pledge. The judgment is reversed for the entry of judgment in favor of the plaintiff. We follow Virginia, not New York, law, of course. Goetschius v. Brightman, 245 N.Y. 186, 156 N.E. 660; New York Trust Co. v. Island Oil & Transport Co., 2 Cir., 33 F.2d 104, 79 A.L.R. 1007. “If any person transact business as a trader * * * and fail to disclose the name of his principal or partner by a sign in letters easy to be read, placed conspicuously at the house wherein such business is transacted, and also by a notice published for two weeks in a newspaper (if any) printed in the city, town or county wherein the same is transacted ; or if any person transact such business in his own name, without any such addition; all the property, stock, and choses in action acquired or used in such business shall, as to the creditors of any such person, be liable for the debts of such person.” Va.Code 1936, § 5224. 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_genresp1

A

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. Candis O. RAY, trading as Candis O. Ray & Associates, Appellant, v. Senator William PROXMIRE et al. No. 77-1522. United States Court of Appeals, District of Columbia Circuit. Argued March 23, 1978. Decided July 31, 1978. Certiorari Denied Oct. 30, 1978. See 99 S.Ct. 326. Appeal from the United States District Court for the District of Columbia. (D.C. Civil Action No. 77-0259). Bruce W. Haupt, Washington, D. C., for appellant. Timothy A. Vanderver, Jr., Washington, D. C., with whom Donald A. Lofty, Washington, D. C., was on brief, for appellees. Before WRIGHT, Chief Judge, and TAMM and ROBINSON, Circuit Judges. PER CURIAM: Appellant operates a tour and hospitality service catering to conventions and sightseeing groups in the District of Columbia. Appellee Ellen H. Proxmire is a central figure in a competing enterprise, Washington Whirl-Around, Inc., which in recent years has captured much of appellant’s business. Ms. Proxmire’s husband, the only other appellee, is the senior United States Senator from Wisconsin. Appellant brought suit in the District Court, contending that appellees had tortiously injured her through activities related to Whirl-Around. After a hearing, the suit was dismissed, with prejudice, on the ground that appellant’s complaint failed to state a claim upon which relief could be granted. Having closely studied the complaint, we find that, even given its broadest reading, it does not denote any legally actionable conduct. Consequently, we affirm. I One claim, implicating Senator Proxmire alone, must be dealt with in the context of the privilege constitutionally conferred upon Members of Congress. The complaint theorizes that the Senator libeled appellant and disparaged her business in a letter to Senator Cannon, Chairman of the Senate Select Committee on Standards and Conduct. The letter was in reply to an inquiry by Senator Cannon with regard to appellant’s charge that Senator Proxmire had arranged for Whirl-Around to make use of Senate rooms on its tours. The allegedly defamatory statement was that appellant’s business rivals “are obviously more competitive and more efficient than she is.” Assuming, as we must in the context of a motion to dismiss, that appellant could prove all she avers, this facet of her suit cannot survive the Speech or Debate Clause. In responding to a Senate inquiry into an exercise of his official powers, Senator Proxmire was engaged in a matter central to the jurisdiction of the Senate, and “[t]he claim of unworthy purpose does not destroy the privilege.” There is no indication that he disseminated his letter to anyone whose knowledge of its contents was not justified by legitimate legislative needs. Nor is there any suggestion that the statement objected to intimated anything not reasonably spurred by the subject of Senator Cannon’s inquiry. II There are two other assertions against Senator Proxmire. One, previously mentioned, is that he arranged for use of Senate rooms by Whirl-Around’s clientele; the other is that he voted favorably to positions supported by its existing or potential customers in order to further Whirl-Around’s interests. These allegations might raise a difficult question with respect to immunity under the Speech or Debate Clause, but one we need not reach since we conclude that in no event could either provide the basis for suit by appellant. As to the first, appellant alludes to a Senate rule supposedly prohibiting such uses of the rooms and to the proposition that governmental facilities should not be used for private gain at public expense. For the second, appellant invokes the criminal statute forbidding senators from accepting favors in return for influence on their official performances. Neither of these considerations provides appellant with a private cause of action nor serves to define the Senator’s duty of care in a common-law-tort cause of action. The Supreme Court has enunciated the criteria determining whether a statute affords an individual right of action: First, is the plaintiff “one of the class for whose especial benefit the statute was enacted,” . . . —that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? . Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? . . . And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? Viewed in this framework, it is evident that the criminal statute in question safeguards the interests of the Nation, which might have a cause of action, but not those of appellant in her business pursuits. Nor does the legislative history of the statute suggest a purpose to create a private right of action. As the Court has held with respect to a quite similar statute, this legislation “is a bare criminal statute, with absolutely no indication that civil enforcement of any kind was available to anyone.” We agree with the District Court that appellant has no privately-enforceable right under this penal provision. And assuming without deciding that an internal rule of the Senate could ever give rise to a private cause of action, we are satisfied that none is conferred by that' adverted to here. Obviously the purpose of such a rule is at minimum to administer Senate facilities, and at most, to regulate one aspect of its members’ conduct. In each respect, interpretation and application of the rule is a matter not for the courts, but for the Senate; and if the rule was designed to impose a higher standard than the law of torts exacts, it is for the Senate, not us, to so declare. What we can say is that if the rule denies visitation to customers of one commercial enterprise, it could hardly have been intended to thereby protect the commercial interests of another. While we are sympathetic to the argument that taxpayers’ money should not be spent on maintenance of publicly-owned property to enable private companies to turn a profit, a violation of the rule is not a predicate for a lawsuit. The same considerations lead us inevitably to the conclusion that neither the statute nor the rule delimits duties on the Senator’s part that can be enforced through a traditional tort cause of action. As a tour-business-person, appellant is not “ ‘a member of the class to be protected’ ” by these directives. Nor were they “designed to prevent the sort of harm to the individual relying upon [them] which has in fact occurred.” Indeed, Senator Cannon’s committee apparently decided that the practice complained of involves no breach of the rules. The judicial function is not implicated at all, for only in the Senate forum can observance of the rule be compelled. Ill Perhaps appellant’s strongest claim is unfair competition. The major allegation under that rubric is that Ms. Proxmire has utilized in Whirl-Around’s business the prestige and contacts enjoyed by a senator’s wife, and resultantly has enabled Whirl-Around to gain competitive advantages over appellant. We think, however, that this theory of action shares the fate of the others. In a society encouraging aggressive economic competition, this court has recognized that the tort of unfair competition is a somewhat anomalous creature. Its scope has therefore been limited to three categories: passing off one’s goods as those of another, engaging in activities designed solely to destroy a rival and using methods themselves independently illegal. The case at bar does not fall within the first classification, and the second is intercepted by appellant’s complaint itself. There appellant does not so much as hint that the challenged conduct has as its purpose simply an effort to demolish her business; rather, she concedes in effect that it was “undertaken ‘with the legitimate purpose of reasonably forwarding personal interest and developing trade.’ ” The substance of what is alleged is that Ms. Proxmire wanted to make a bigger profit by capturing every potential customer, and that she must have realized that in doing so appellant would suffer grievously. That is not the same thing as acting with the motive of annihilating appellant’s enterprise. That leaves only the third category — unlawful competitive mechanisms — and the insuperable difficulty there is that simple use of one’s status in society is not itself illegal. Appellant states that Whirl-Around secured entry to the vice-presidential mansion, the west lawn of the Capitol, State Department entertaining rooms and various rooms in the Senate office buildings. Because appellant could not match these arrangements, Whirl-Around could advertise “special tours” to “places normally inaccessible to other groups.” In like fashion, appellant says, Whirl-Around’s popularity grew partly because it could offer the opportunity to meet wives of governmental officials and to see their private homes. The key to Whirl-Around’s success thus assertedly was appellees’ fame and ability to “open doors.” A hallmark of our way of life is the belief that personal gain should flow from individual ability and effort — not merely from perceived rank. The judge’s function, however, is limited to redress of legally-cognizable wrongdoing, and financial success does not become unlawful simply because it is aided by prominence; nor could it be, without locking the famous out of the economy. Even with the most conscientious endeavor not to trade upon personal repute, many will still treat celebrities specially, and their spouses should not be exiled from the business world just because the marital relationship might lead others to grant unique opportunities. Nor does acceptance of those opportunities flaunt any known rule of law, though without the celebrity’s well-earned stature they might never have been made available. Moreover, however reprehensible it might be through political influence to use public property for private gain, that evil cannot provide a basis for this private damage suit. IV Appellant suggests that because she was formally without counsel until oral argument of this appeal, we must construe her complaint with great liberality. We agree wholeheartedly that courts must always heed their responsibility to afford pro se litigants “every fair opportunity to present their case[s].” We are mindful, too, as the Supreme Court has instructed, that no complaint may be dismissed for failure to state a claim unless, after patient scrutiny and a liberal reading in the plaintiff’s favor, “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Appellant’s complaint has received at least that level of care, both in the District Court and here. It was dismissed not because appellant appeared pro se but because none of the factual allegations or inferences possibly deducible therefrom made out a cause of action against either appellee. Were there any plausible sug-gestión that appellant could do so now with counsel, we would remand to the District Court to afford that opportunity. But with all facts material to appellant’s complaint ostensibly before us, we see no occasion for extending the life of this litigation. The interest of those who are sued in having the matters resolved quickly, when justified, must not give way completely to our desire •to protect those who sue without counsel. Appellant has no doubt suffered injury, but not injury actionable at law. The complaints registered in this litigation may be matters for the Senate, but certainly not for the courts. Agreeing, then, as we must, that no claim has been stated upon which relief could be granted, the judgment of the District Court is Affirmed. . See Fed.R.Civ.P. 12(b)(6). . Appendix to Brief for Appellant (App.) (fourth unnumbered page). . E. g., Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90, 96 (1974); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957). . U.S.Const. art. I, § 6, cl. 1. In so concluding, we do not intimate a view as to whether the statement in question could be deemed actionable under general principles of the law of defamation. . See Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 2627, 33 L.Ed.2d 583, 602-603 (1972). . Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 788, 95 L.Ed. 1019, 1027 (1951). . Compare Gravel v. United States, supra note 5, 408 U.S. at 625-626, 92 S.Ct. at 2627-2628, 33 L.Ed.2d at 602-603 and McSurely v. McClellan, 180 U.S.App.D.C. 101, 109, 553 F.2d 1277, 1285 (1976), cert. dismissed,-U.S.-, 98 S.Ct. 3116, 57 L.Ed.2d 704 (1978); see Doe v. McMillan, 185 U.S.App.D.C. 48, 566 F.2d 713 (1977), cert. denied, 435 U.S. 969, 98 S.Ct. 1607, 56 L.Ed.2d 59 (1978), after remand from 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973); Hutchinson v. Proxmire, 579 F.2d 1027 (7th Cir. 1978). . Closely related is an averment, which the Senator disputes, of a conflict of interest prohibiting him from voting on legislation that would benefit Whirl-Around’s clients. See also Transcript of District Court Hearing (Tr.) 5. Since that claim involves similar legislative behavior, and since the same factors counsel against the implication of a private cause of action, this theory is identically ill-fated. . Compare Powell v. McCormack, 395 U.S. 486, 502, 89 S.Ct. 1944, 1954, 23 L.Ed.2d 491, 505-506 (1969) with United States v. Brewster, 408 U.S. 501, 526, 92 S.Ct. 2531, 2544, 33 L.Ed.2d 507, 525-526 (1972). . The text of the rule does not appear either in the record or in the parties’ briefs, and it is unclear whether Senate rules actually forbid such use or whether that is simply left to the discretion of individual senators. It is undisputed, however, that appellant has been unable to find a senator who would reserve a room for use of her groups. Senator Proxmire stopped reserving rooms for such uses in late 1975, not because he thought it improper but because he felt he “should be above criticism.” App. (third unnumbered page). The Senator tells us that “[a]U [appellant] needs to do if she wishes to reserve a room for her customers to hear a Senator speak is to ask the Senator to reserve one. I know of no rule which would prevent that.” Id. (fourth unnumbered page). No one, of course, would see anything wrong with access by touring groups incidental to an audience of some sort with a senator when a room was not needed for Senate business. Certainly our Capitol is a stellar attraction, and visitation with Senate members an opportunity few would pass up. We may not, however, proceed at this state of the litigation on this version of the facts. See text supra at note 3. . 18 U.S.C. § 201 (1976). . Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26, 36 (1975), quoting Texas & P. Ry. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed. 874, 877 (1916) (emphasis in original) (citations omitted). . See Continental Management, Inc. v. United States, 527 F.2d 613, 617, 208 Ct.Cl. 501 (1975). . See Cort v. Ash, supra note 12, 422 U.S. at 80, 95 S.Ct. at 2089, 45 L.Ed.2d at 37. . See id. at 82, 95 S.Ct. at 2090, 45 L.Ed.2d at 39. . Id. at 80, 95 S.Ct. at 2089, 45 L.Ed.2d at 37. . Marusa v. District of Columbia, 157 U.S. App.D.C. 348, 354, 484 F.2d 828, 834 (1973), quoting Whetzel v. Jess Fisher Management Co., 108 U.S.App.D.C. 385, 389, 282 F.2d 943, 947 (1960); accord, Wyandotte Transp. Co. v. United States, 389 U.S. 191, 202, 88 S.Ct. 379, 386, 19 L.Ed.2d 407, 415-416 (1967), citing Restatement (Second) of Torts § 286. . Peigh v. Baltimore & O. R. Co., 92 U.S.App. D.C. 198, 200, 204 F.2d 391, 393 (1953); Prosser, Torts § 36, at 197 (4th ed. 1971), citing DeHaen v. Rockwood Sprinkler Co., 258 N.Y. 350, 179 N.E. 764 (1932). . At oral argument, appellant’s counsel for the first time suggested the possibility that appellant might have claims under the antitrust laws or for tortious interference with contract. We have parsed the complaint once again, but have not found any allegations that might adequately support such theories. As to tortious interference, the averment relied upon is merely that an organization that appellant thought she had as a firm client informed her that it had decided to employ the services of Whirl-Around. Without at least an inference that appellees knew of an existing contract between the organization and appellant and acted to induce a breach of that contract, tortious interference is not sufficiently raised. See Meyer v. Washington Times Co., 64 App.D.C. 218, 222, 76 F.2d 988, 992, cert. denied, 295 U.S. 734, 55 S.Ct. 646, 79 L.Ed. 1682 (1935). As to the antitrust laws, the only theory at all relevant would be monopolization, but the element of conduct necessary could be supplied only by the allegation of unfair competition. The complaint, as we discuss in text, see text accompanying notes 19-24 infra, does not allege facts adequate to state a cause of action in that regard. . Scanweli Laboratories, Inc. v. Thomas, 172 U.S.App.D.C. 281, 289, 521 F.2d 941, 949 (1975), cert. denied, 425 U.S. 910, 96 S.Ct. 1507, 47 L.Ed.2d 761 (1976). . Id. . See, e. g., Complaint ¶ ¶ 1 & 6. . Standard Oil Co. v. United States, 221 U.S. 1, 58, 31 S.Ct. 502, 515, 55 L.Ed. 619, 644 (1911), quoted in Scanweli Laboratories, Inc. v. Thomas, supra note 20, 172 U.S.App.D.C. at 289, 521 F.2d at 949. . Complaint, Exhibit 3. . At the hearing on appellees’ motion to dismiss, appellant stated that “I am representing myself. However, I have had legal assistance." Tr. 12. There is no reason to assume that an attorney actually helped appellant prepare her complaint but then decided not to appear formally in order to gain the tactical advantage of having the complaint tested only by the standard demanded of pro se pleadings. . Mason v. BeLieu, 177 U.S.App.D.C. 68, 70, 543 F.2d 215, 217, cert. denied, 429 U.S. 852, 97 S.Ct. 144, 50 L.Ed.2d 127 (1976). . See cases cited supra note 3. . Conley v. Gibson, supra note 3, 355 U.S. at 45 46, 78 S.Ct. at 102, 2 L.Ed.2d at 84. . See, e. g., Tr. 7 & 13. . Appellant argues that she was treated unfairly because, at the time of the hearing on the motion to dismiss she did not know the full implications of the phrase “dismissal with prej udice.” See text supra at note 1. Be that as it may, any error inhering in that circumstance is harmless since the District Court applied the proper standard to the motion to dismiss with prejudice, see notes 26-27 supra, and accompanying text and arrived at the correct result. 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_appel2_1_4

K

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". Your task is to determine what subcategory of business best describes this litigant. Albert A. DeVRIES, and A. DeVries and Sons, Incorporated, a corporation, Appellants, v. E. H. STARR, Appellee. No. 9544. United States Court of Appeals Tenth Circuit. April 19, 1968. Robert C. Hanna, of Hanna & Mercer, Albuquerque, N. M., for appellants. John E. Conway and Charles W. Dur-rett, of Wilkinson, Durrett & Conway, Alamogordo, N. M., for appellee. Before MURRAH, Chief .. Judge, DELEHANT , Senior District Judge, and DOYLE , District Judge. Senior District Judge for the District of Nebraska, sitting by designation. United States District Judge for tbe District of Colorado, sitting by designation. DELEHANT, Senior District Judge. Notwithstanding the foregoing caption, this proceeding is pending here between Albert A. DeVries, alone, as the appellant, and E. H. Starr as the ap-pellee. Actually, the case has been so pending from its inception, through the filing on May 8, 1965, in the District Court, of the Complaint. For, theretofore, and as of March 28, 1963, the California corporation, A. DeVries and Sons, had been dissolved; and, as its sole shareholder and owner, Albert A. De-Vries had succeeded to the ownership of all of its corporate property, including its choses in action. In his STATEMENT OF THE CASE in appellant’s brief, which statement is approved and adopted by the appellee in appellee’s brief, the appellant, with essential accuracy, states: “This was a civil suit for the misuse of a trade secret, namely, a confidential customers list. The Plaintiffs are” (sic) “Albert A. DeVries, a citizen of the Netherlands and A. DeVries and Son, Inc., a dissolved California corporation.” (The words “Sons” and “Son” are used indiscriminately in allusions to the former corporation.) “The Defendant, E. H. Starr, is a resident (sic) of New Mexico. The complaint in two counts alleged damages of $25,000.00 actual damages, and $25,-000.00 punitive damages. The first count alleged a tortious violation of Plaintiff’s confidential customers list and the second count alleged a contractual breach with respect to the customer’s list. The answer denied the allegations of the Complaint, including the complaint’s allegation that the amount in controversy exceeded $10,000.00. The matter was tried to the court without a jury, the Honorable H. Vearle Payne presiding, on June 3, 1966. The trial court found that it had jurisdiction based on diversity and the amount in controversy; that Plaintiff Albert A. DeVries was the proper party to bring the action; that he had succeeded to all the rights of the Plaintiff Corporation, which corporation was dissolved in accordance with California law in March of 1963. “The trial court found for the plaintiff on the question of liability, but dismissed the complaint for failure to prove damages. “From the order dismissing the complaint for failure to prove damages Plaintiff has appealed.” (Citations to pages of the trial court record omitted in this quotation.) Thus, strictly speaking, the sole appeal tendered here is that of the appellant, Albert A. DeVries, from the order or judgment of the District Court dismissing his complaint and action. For the obvious reason that the trial court’s order or judgment dismissed the action, the appellee has not tendered a cross appeal. However, in his brief he does question the correctness of certain eviden-tiary rulings during the trial; and does also argue that the trial judge was mistaken and in error in his conclusion that, in his use, or misuse, of a list of the purchasing customers of the importer, A. DeVries and Sons, Incorporated (which appears to have been its- correct name) in the area of foreign produced cork and cork porducts, the appellee was guilty of a breach of trust as against A. DeVries and Sons, Incorporated, and was liable therefor in damages, if any, to that corporation, and on its dissolution, to its sole shareholder and successor, namely the appellant, Albert A. DeVries, and that the appellant was, consequently, entitled to recover such damages, if any, from the appellee. The appellee may, therefore, be understood to contend that he was entitled to a judgment of dismissal as well upon the ground of his innocence of the misuse of the alleged trade secret, as upon the ground of a failure of the appellee adequately to prove damages. Upon due examination and consideration of the record, and of the briefs and oral arguments of counsel in this court, we are satisfied that, despite patent infirmity in its initial assertion, supra, the actual existence in the trial court of jurisdiction upon the basis of diversity of citizenship and the presence of a controversy in the statutory jurisdictional amount, Title 28, U.S.C. Section 1332(a) (2), was correctly found by the trial judge. It is true that the complaint failed adequately to aver the citizenship of either Albert A. DeVries or E. H. Starr, and spoke, instead, of “residence” as to each of them, with the consequence that its immediately ensuing sentence, “a diversity of citizenship therefore exists,” was a eonclusionary non seiquitur. Also, in his answer, the defendant, for asserted want of information, denied the existence of such diversity, and categorically denied the presence of an amount in controversy exceeding $10,000.00 (exclusive of interest and costs). But in the course of the trial, it was made clearly to appear that Albert A. DeVries then (i. e. on June 3, 1966) was, and theretofore, and, with reasonable certainty, on May 3, 1965, had been, a resident of Spain and a citizen of The Netherlands, and that E. H. Starr is, and throughout the litigation has been, a citizen of New Mexico. As between those parties, diversity of citizenship clearly existed. And such diversity also existed as between A. DeVries and Sons, Incorporated (so long as it was a California corporation, and until its dissolution as of March 28, 1963) on the one hand, and; E. H. Starr, on the other hand. But, in the circumstances, such diversity between the appellant and the appellee is what mattered. And the complaint fairly discloses the presence of a controverted claim exceeding in amount $10,000.00, exclusive of interest and costs. It is mentioned at this point that, at the close of the trial of this action, and upon the motion of the defendant, E. H. Starr, expressly unresisted by the plaintiff Albert A. DeVries, the ostensible (though actually nonexistent, supra) plaintiff, A. DeVries and Sons, Incorporated was “dismissed from this lawsuit.” Neither the propriety nor the finality of that dismissal is an issue on this appeal. Upon similar examination and consideration, we are convinced that, for the reasons (a) set forth by the trial judge in the oral announcement in open court of his findings and ruling, and (b) contained in the court’s Findings of Fact and Conclusions of Law, the trial court correctly found and concluded that, in consequence of his tortious misuse of a list of customers of the appellant, or of A. DeVries and Sons, Incorporated, which list the appellant, at the appellee’s written request, had prepared and delivered to the appellee, upon the faith of the latter’s written assurance of confidentiality in its employment by the appellee and of the appellee’s abstinence from any competitive approach to the customers named in the list, the appellee was and is liable to the appellant, as the legal successor to the rights of A. DeVries and Sons, Incorporated, for such damages as resulted to that corporate entity, or to the appellant, its sole successor, as the proximate consequence of such misuse. It appears to us to be unnecessary, and, in the current plight of the present appeal, inappropriate, for us to embark upon any exhaustive analysis of the trial court’s finding and conclusion adverted to in the immediately preceding paragraph hereof. At the close of the trial conducted under obvious pressure on the score of available time, and with notable resort to selected excerpts from sundry pretrial depositions, together with oral testimony of the parties litigant, for its evidentiary ingredient, the trial judge promptly announced from the bench his findings and conclusions, and foreshadowed his later formal entry of judgment. Some twenty days thereafter, and on June 23, 1966, he prepared and filed in the action Findings of Fact and Con-elusions of Law, wherein he reiterated and essentially restated that earlier oral announcement, and also announced the entry of the judgment of dismissal. That judgment was entered as of July 5, 1966 and filed on July 15, 1966. Notice of appeal was filed in the office of the clerk of the District Court on August 9, 1966. Incidentally, with the record before us are photographic copies (certified by the clerk of the District Court) of: (a) JUDGMENT dismissing the plaintiff’s action and awarding judgment in favor of the defendant, filed in the office of the Clerk of the District Court on May 15, 1967; and, (b) NOTICE OF APPEAL from the “final” Judgment entered in this action on May 15, 1967, also certified by the Clerk of the District Court, as a true copy of the original filed in the office of the Clerk of the District Court, with a certification by one Mary Ann Montoya that a copy of such Notice of Appeal was “mailed to opposing counsel of record this 16th day of May, 1967,” which item in its entirety is marked “Filed, United States Court of Appeals Tenth Circuit, July 10, 1967, WILLIAM L. WHITTAKER, Clerk.” The evidence before the trial court, as reflected on this appeal, clearly supports the factual statement now made. At all times material herein, and particularly from some inexactly established time in 1954 or 1955, Albert A. DeVries was engaged in business as an importer, that is, in acquiring commodities of foreign production and manufacture, and reselling them, desirably at a profit, to retail outlets in the United States. He was and is a citizen of The Netherlands. His residence during this litigation was, and presently appears to be, in Spain; but before, and during, the interval within which this litigation arose, he also had a residence in California, and, as appears from the record, at Carmel, in that state, where he transacted his business. While his importing business was not strictly limited to the product now mentioned, he dealt largely in the commodity of cork and cork products. And it is with that commodity that this litigation is solely concerned. The cork in which he dealt was and is produced abroad, largely, if not entirely, in Portugal. So, Albert A. DeVries depended, for his acquisition of a stock of salable merchandise, upon purchases by him from the representative or representatives of foreign sources of such products. He operated both in his individual name and, during a few years before its corporate dissolution as of March 28, 1963, supra, through his wholly owned corporation, A. DeVries and Sons, Incorporated. At all times material herein, the appel-lee, E. H. Starr, held the agency for the sale, within the area of the operations of Albert A. DeVries and A. DeVries and Sons, Incorporated, of the cork and cork products which Mr. DeVries and his corporate alter ego required for their trade. From an uncertainly identified date in 1960, and until the occurrences giving rise to this litigation, Albert A. DeVries, in the name of A. DeVries and Sons, Incorporated, purchased his requirements in the way of foreign produced cork and cork products, through the appellee, E. H. Starr. In consequence of the operation of reduced prices to importers, A. De-Vries and Sons, Incorporated, solely owned and operated by Albert A. De-Vries, purchased from the appellee such products at prices low enough to enable it to sell to its purchasing customers at a profit, yet at prices substantially higher than those paid by the appellee to the European producers of such products. Thus, for such products, the appellee paid a price substantially lower than the price at which the identical products were being purchased from the appellee by A. DeVries and Sons, Incorporated, and, thereby, derived a profit on and from his sales to A. DeVries and Sons, Incorporated. Shortly prior to June 6, 1962, the ap-pellee, by way of solicitation of business, sent a price list for cork products to Lin-Brook Hardware, Anaheim, California, one of the DeVries customers for such products. The appellant learned early of that incident, and on June 6, 1962 transmitted to the appellee a letter protesting against the action. On June 9, 1962, the appellee replied to that protest disclaiming any antecedent knowledge by himself of the status of seller and customer relations between DeVries and Lin-Brook Hardware, and also stating: “If I could have in strict confidence a list of your customers regardless of address and location, I could the better protect your interest should any approach be made to me direct. All such would be immediately checked of (sic) my mailing list if they appear on it for witholding (sic) from all mailings. We have a rather broad mailing list and trade coverage from San Diego to Seattle but I am sure your wishes can be granted. “As to any damage having been done I question if any has, as you are established with this Firm and our mailing amounts to just another general advertisement in their normal mail receipts. “Send us your Clientale and Adress’s (sic) and we will cooperate with you in every respect.” Promptly thereupon, and as of June 11, 1962, the appellant in the name of A. DeVries and Sons, Incorporated, replied by a letter to the appellee, wherewith was included a list of the names and addresses of the appellant’s customers, some sixteen in number, all but one in California, as the writer of this opinion understands the list, and that one in Seattle, Washington. In that letter, the appellant made the following request: “Please sign the duplicate of this letter, agreeing that you will not now or in the future correspond with these peoples (sic), or in any way, direct or indirect maintain any contact with them.” Immediately, and on June 12, 1962, the appellee responded by means of a long letter dealing largely with other matters, but containing the following paragraph: “With reference to your Customer Listing. Upon comparison with my mailing list I find but one, i. e. Lin-Brook Hardware of Anaheim, appearing and was handed to me by my long standing customer in Anaheim. All of the others listed I never heard of and rightfully are your customers and their identity now in my hands constitutes your assurance that any correspondence received from any of them would automatically be handed over to you and without any action on my part and thus we have a Gentlemen’s agreement in mutual interest. When you have customers and I have customers in the same locality we will try to function to avoid complications or rivalry between the customers.” And, in a letter to A. DeVries & Sons as of June 18, 1962, which dealt with several subjects, the appellee mentioned two of the appellant’s customers, and closed with this paragraph: “With me a Gentlemens agreement is sufficient and ample in your best interest and with us is stronger than any other means of agreement and we have passed along to you and will be in fact perpetual as long as you respect it. We have had other and similar Gentlemens agreements in existance (sic) and they are all working in perfect harmony, our agreement with you will be the same.” Reference is now made, without formal reflection, to the evidence and testimony received upon the trial, and especially to the announcement, at the close of the trial, by the trial judge, of his ruling and decision in the ease, and to the trial court’s Findings of Fact and Conclusions of Law, filed on June 23, 1966, and foreshadowed in the trial judge’s announcement at the conclusion of the trial, supra. Shortly stated, this court is of the opinion that the trial court’s finding and conclusion that the list of the appellant’s customers thus furnished by the appellant to the appellee upon the latter’s express solicitation was, from the time of its submission to the appellee, and remained, in the nature of a trade secret, of which the appellee was legally obliged to make no use abusive of the appellant; that the appellee did misuse such list, and the information therein contained, by competitively approaching, upon the basis and prompting of such list, a substantial number of the more desirable customers identified on such list; and, in consequence of its own preferential position in the involved particular trade, underpricing cork and cork products to such customers of the appellant below the appellant’s ability to meet the resulting competition, and thus enticing such customers, or some of them, away from the appellant. Heyman v. A. R. Winarick, Inc. (2 Cir.), 325 F.2d 584, 9 A.L.R. 3d 652; Aktiebolaget Befors v. United States, 90 U.S.App.D.C. 92, 194 F.2d 145, Restatement, Law of Torts, Sec. 757, comment (b). This court clearly understands that, in consequence of a dispute which had theretofore arisen between the appellant and the appellee over an item or items of shipment, they discontinued the transaction of business with each other, and the appellant ceased to make purchases from the appellee some time early in 1963, thus antedating the appellee’s principally alleged circularization with price lists, of the appellant’s major customers, and long before the institution of this action. It is to be recognized that the present appeal is from the court’s final judgment of dismissal of this action. And that dismissal is explicitly premised upon the trial court’s announcement at the conclusion of the trial of its ruling in the case, and upon the Findings of Fact and Conclusions of Law. And it rests ultimately on the trial court’s announced Conclusion of Law declared by it in the following language: “The .Court concludes as a matter of law, that the plaintiff has failed to prove any damages and, by reason thereof, his complaint should be dismissed.” Upon due consideration of the evidence in this cause, this court is of the opinion that such announced Conclusion of Law on the part of the trial court is mistaken and erroneous. In Anvil Mining Company v. Humble, 153 U.S. 540, 14 S.Ct. 876, 38 L.Ed. 814, as of May 14, 1894, the Supreme Court of the United States, speaking through Mr. Justice Brewer, in a case arising out of breach of contract, said upon the subject of the proof of damages: “Now, there was in this case testimony to show the cost of mining each ton of ore, and also the amount of ore remaining in the first level of the mine at the time the work stopped. From these figures the profit which would have been made by the plaintiffs if they had completed the work of mining all the ore on the first level is a mere matter of multiplication. It is true that the cost of mining the remaining ore might differ from that of mining the ore which had already been taken out; but still, proof of the cost of taking out that which had been mined, and of the condition of the mine as it was left, furnished a basis upon which a reasonable estimate could be made as to the cost of extracting the remaining ore. Equally true is it that there was no mathematical certainty, as to the amount of ore remaining in the mine; yet both plaintiff and defendant furnished testimony as to such amount, and testimony which, while not such as to put it beyond doubt, was sufficient to enable the jury to make a fair and reasonable finding in respect thereto. The case is one, therefore, in which the profits are not open to the objection of uncertainty, and certainly not to that of remoteness, for they would have been the direct result of carrying on the contract to a completion, and were obviously within the intent and mutual understanding of both parties at the time it was entered into.” Much more recently, and as of January 6, 1941, the Supreme Court, speaking through Mr. Justice Reed, in Palmer v. Connecticut Railway and Lighting Company, 311 U.S. 554 to 562, 61 S.Ct. 379, 384, 85 L.Ed. 336, said: “As there was no significant dispute over the facts proven, the conclusion as to the sufficiency of the evidence was for the reviewing court. We deal, in this review, with the method of the proof of damages, not the measure. Narrowed even more, the issue is whether the evidence offered justifies an award, whether the quantum of proof produced forms an adequate basis for a reasoned judgment. “Future rental value cannot be susceptible of precise proof. As it depends, so far as the amount of damages for breach of a lease is concerned, upon future profits, it partakes of the nature of loss of earning capacity or of credit. To require proof of rental value approaching mathematical certitude would bar a recovery for an actual injury suffered. All that can be done is to place before the court such facts and circumstances as are available to enable an estimate to be made based upon judgment and not guesswork. Every anticipatory breach of an obligation, and every appraisal of damage involving the present value of property involves a prediction as to what will occur in the future. Present market value of property is but the resultant of the prediction of many minds as to the usability of property and probable financial returns from that use, projected into the future as far as reasonable, intelligent men can foresee the future. “The proof of future profits by the evidence of past profits in an established business gives a reasonable basis for a conclusion. It is true that this business changed from trolley to bus within two years of the end of the base period and that management changed from lessee to lessor but we think the fact of transportation in the same communities for more than a quarter of a century sufficed to give the operation the classification of an established business. Here different methods of operation or normal changes in the executive staffs do not seem sufficient to interfere with the probative value of past experience. Franchises and property of street railways and bus lines are difficult of appraisal. Nothing is more indicative of their value for lease or sale of the fee than past earnings. If we were to adopt the view that the interest conveyed is a defeasible fee, its defeasance dependent upon a condition such as nonpayment of annual instalments of the purchase price, the same difficulties exist. The unknown subtrahend would be the present value, instead of the rental value. Evidence of value would be made up of the items of proof. One of the most important of these, in the case of property such as here involved, would be past earnings. “This Court has sustained recoveries for future profits over four years based solely upon evidence of the profits of an established business for the past four years. We there approved an instruction which told the jury, ‘Damages are not rendered uncertain because they cannot be calculated with absolute exactness. It is sufficient if a reasonable basis of computation is afforded, although the result be only approximate.’ “The ways compensatory damages may be proven are many. The injured party is not to be barred from a fair recovery by impossible requirements. The wrong-doer should not be mulcted, neither should he be permitted to escape under cover of a demand for nonexistent certainty. Damages for breach of the lease were in contemplation of the parties when the contract was made. The lease contained a covenant of reentry without prejudice to right of action for arrears of rent or breach of covenants. The provision in the Bankruptcy Act gives a new right of recovery in bankruptcy only. This right of recovery is an unsecured claim of the character of a claim for a deficiency above the value of inadequate collateral. “Certainty in the fact of damage is essential. Certainty as to the amount goes no further than to require a basis for a reasoned conclusion. The certainty of the evidence as to damages for rejection of a lease depends upon the same tests as in other situations where damages are difficult of proof. This Court, recently, in an infringement case was required to appraise the value of opinion evidence as to the part of profits attributable to the use of a pirated play, an obviously elusive fact. No expert thought any greater percentage than ten should be attributed to the play. The lower court allowed twenty so that the award might by no possibility be too small. We approved because ‘what is required is not mathematical exactness but only a reasonable approximation. That, after all, is a matter of judgment * * “Satisfactory evidence was presented for the three years of actual operation of the properties covered by this lease. We think that prior earnings of the same property over fourteen years was a fair base to use to project the estimate of the earnings for the eight years of future operation. The failure to produce further evidence, either through experts or transportation surveys, was not fatal to respondent’s ease, even though such evidence is admissible. We see no reason to disagree with the conclusion of the circuit court of appeals that under the evidence presented the damages for eight years might be predicted with a ‘fair degree of certainty.’ ” It is true that in that case there was a dissent explicitly on the ground of the inadequacy of proof of damages by Mr. Justice Douglas (concurred in by Mr. Justice Black) from the majority ruling reflected in Mr. Justice Reed’s opinion. But it may well be considered that the dissent, instead of discrediting the prevailing opinion, served rather to emphasize the actuality of mature reflection and consideration out of which the majority ruling emerged. In Sheldon v. Metro-Goldwyn Pictures Corporation, (2 Cir.) 106. F.2d 45, 51, aff’d 309 U.S. 390, 406-408, 60 S.Ct. 681, 84 L.Ed. 825, the Court of Appeals, Second Circuit, through Judge Learned Hand, in a copyright infringement case, said: “We are aware that out of all this no real standard emerges, and that it would be absurd to treat the estimates of the experts as being more than expressions of very decided opinions that the play should count for very little. But we are resolved to avoid the one certainly unjust course of giving the plaintiffs everything, because the defendants cannot with certainty compute their own share. In cases where plaintiffs fail to prove their damages exactly, we often make the best estimate we can, even though it is really no more than a guess (Pieczonka v. Pullman Co., 2 Cir., 102 F.2d 432, 434), and under the guise of resolving all doubts against the defendants we will not deny the one fact that stands undoubted. Procedural duties are devised in aid of truth; and their unsparing use may defeat their whole purpose, as here it would. However, though we do not press the burden of proof so far, the defendants must be content to accept much of the embarrassment resulting from mingling the plaintiffs’ property with their own. We will not accept the experts’ testimony at its face value-; we must make an award which by no possibility shall be too small. It is not our best guess that must prevail, but a figure which will favor the plaintiffs in every reasonable chance of error. With this in mind we fix their share of the net profits at one fifth.” And in National Labor Relations Board v. Kartarik, Inc. (8 Cir.), 227 F.2d 190, 192, 193, the court, speaking through Judg^ (later, Chief Judge) Johnsen, said: “On respondent’s second contention, as set out above, that the determinations of back-pay made by the Board were clearly erroneous as having been speculatively arrived at in their amounts, we think that, at the least, such determinations on the part of the Board may not judicially be required to rest upon any greater degree of certainty as to amount than that applicable to contract or statutory breaches generally. Cf. F. W. Woolworth Co. v. N.L.R.B., 2 Cir., 121 F.2d 658, 663. “That degree of certainty may appropriately be recalled. ‘There is a clear distinction between the measure of proof necessary to establish the fact that (a party) sustained some damage and the measure of proof necessary to enable (a tribunal) to fix the amount.’ Story Parchment Paper Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 562, 51 S.Ct. 248, 250, 75 L.Ed. 544. ‘Certainty in the fact of damage is essential. Certainty as to the amount goes no further than to require a basis for a reasoned conclusion.’ Palmer v. Connecticut Ry. & Lighting Co., 311 U.S. 544, 561, 61 S.Ct. 379, 385, 85 L.Ed. 336. These principles are, of course intended to permit a solution of the problem of amount to be made upon any range of facts, circumstances or reasonable inferences, which afford a rational basis for a conclusion.” This court in several reported opinions has disclosed its concurrence in the decisional considerations reflected in the foregoing quoted language. Thus, in Mountain States Telephone and Telegraph Company v. Hinchcliffe (10 Cir.), 204 F.2d 381, 382, 383 (a suit by a customer for the failure of a telephone corporation to furnish him with proper service), the court, by Chief Judge Phillips, said: “The trial court also submitted to the jury the issue of loss of profits, if any, resulting from the failure to furnish proper and adequate telephone facilities. Whether there was any competent evidence to take that issue to the jury is the more difficult question presented on this record. It should be noted, however, that the trial court in submitting that issue carefully instructed the jury that its verdict must be based upon evidence and not upon speculation or conjecture. “In Hoffer Oil Corp. v. Carpenter, 10 Cir., 34 F.2d 589, 592, we said: ‘The general rule is that, where the cause and existence of damages has been established with requisite certainty, recovery will not be denied because such damages are difficult of ascertainment. * * * ‘In Straus v. Victor Talking M(ach). Co., supra, page 802 of 297 F., the court said: “The constant tendency of the courts is to find some way in which damages can be awarded where a wrong has been done. Difficulty of ascertainment is no longer confused with right of recovery.” * * * ‘A reasonable basis for computation, and the best evidence which is obtainable under the circumstances of the case and which will enable the jury to arrive at an approximate estimate of the loss, is sufficient.’ “While the damages may not be determined by mere speculation or guess, it is enough if the evidence shows the extent of the damages as a matter of just and reasonable inference, although the result be only approximate. “However, the plaintiff must establish his damage by the most accurate .basis possible under the circumstances. He must produce the best evidence reasonably obtainable.” In an earlier opinion, this court in Shannon v. Shaffer Oil and Refining Company (10 Cir.), 51 F.2d 878, 882, 78 A.L.R. 851, in the way of support of a ruling affirming a judgment denying damages largely through want of adequate proof of the elements and amount thereof, thus summarized the pertinent judicial teaching upon the point : “Obviously a plaintiff may not come into court and say no more than ‘the „ defendant stole some wheat’ or that ‘a fire destroyed some of my goods,’ and ask for substantial damages. The rule is that, if an injured plaintiff has produced the best evidence available, and if it is sufficient to afford a reasonable basis for estimating his loss, he is not to be denied a substantial recovery because the exact amount of the damage is incapable of ascertainment. In Eastman [Kodak] Co. v. Southern Photo Co., 273 U.S 359, at page 379, 47 S.Ct. 400, 405, 71 L.Ed. 684, the court held: ‘Damages are not rendered uncertain because they cannot be calculated with absolute exactness. It is sufficient if a reasonable basis of computation is afforded, although the result be only approximate. This, we think, was a correct statement of the applicable rules of law. Furthermore, a defendant whose wrongful conduct has rendered difficult the ascertainment of the precise damages suffered by the plaintiff, is not entitled to complain that they cannot be measured with the same exactness and precision as would otherwise be possible.’ In Anvil Min. Co. v. Humble, 153 U.S. 540, 14 S.Ct. 876, 38 L.Ed, 814, the Supreme Court held that mathematical certainty as to damage was not necessary, if the evidence ‘furnished a basis upon which a reasonable estimate’ of the elements entering into the damage might be made. In the Hoffer Case, supra, we held that ‘a reasonable basis for computation, and the best evidence which is obtainable under the circumstances of the case and which will enable the jury to arrive at an approximate estimate of the loss, is sufficient.’ ” In Wells Truckways v. Burch (10 Cir.), 247 F.2d 194, 196, 197, the court, after a comprehensive factual review, and with instant pertinence, said: “There was, therefore, substantial evidence from which the jury could find loss of profits. Before recovery may be had for loss of future profits, it must be established by substantial evidence that such loss will occur. But when that is once established, it is not necessary that the exact amount of such loss be ascertained. It is then necessary only that the evidence be sufficient to enable the jury to reasonably approximate the amount of such loss.” In United States v. Griffith, Gornall and Carman, Inc. (10 Cir.), 210 F.2d 11, 13, a Federal Tort Claims Act suit by a contractor for damages caused by the flow of rain water from a government air base upon a concrete water pipeline under construction by the contractor, this court remanded to the trial court a judgment for the plaintiff with direction to eliminate from the trial court’s judgment so much thereof as constituted an award of $15,000.00 for “injury and impairment of business, loss of earnings, destruction of credit and reduction of net worth” because of failure of proof of any such damage in the particular ease. There was clearly a failure of such proof, coupled with evidence possibly reflective of the loss of gross receipts or “gross profits,” so called, and a failure, despite the intimation of its availability, to show “net losses.” Nevertheless, the opinion offers the following discussion reflective of the applicable decisional standard: “Prospective profits are necessarily somewhat uncertain and problematical, but in eases where damages are definitely attributable to the wrong of the defendant and are only uncertain as to amount, they will not be denied even though they are difficult of ascertainment. Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544; Kobe, Inc. v. Dempsey Pump Co., 10 Cir., 198 F.2d 416, 426, certiorari denied 344 U.S. 837, 73 S.Ct Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". What subcategory of business best describes this litigant? A. auto, auto parts, auto repairs B. chemical C. drug D. food E. oil, natural gas, gasoline F. textile, clothing G. electronic H. alcohol or tobacco I. general merchandise J. other K. unclear Answer:

songer_genapel1

G

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. UNITED STATES of America, Plaintiff-Appellee, v. Richard A. LEONARD, Defendant-Appellant. No. 78-5744. United States Court of Appeals, Fifth Circuit. Jan. 15, 1980. Thomas M. West (Court-Appointed), Frank L. Derrickson, Atlanta, Ga., for defendant-appellant. Julie E. Carnes, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee. Before GODBOLD, RONEY and FRANK M. JOHNSON, Jr., Circuit Judges. FRANK M. JOHNSON, Jr., Circuit Judge: Richard A. Leonard was convicted of conspiracy to murder John Charles Widener, a fellow prisoner in the Atlanta Federal Penitentiary. He was also convicted of first degree murder and of conveying a weapon inside the prison. He was sentenced to serve a life sentence for conspiracy to commit murder, a life sentence for murder, and ten years for conveying the weapon. Prior to trial, Leonard filed notice pursuant to Federal Rule of Criminal Procedure 12.2(b) that he intended to rely on a defense of insanity and that he intended to introduce expert testimony at trial relating to whether defendant possessed the mental state required before one can be convicted for the offense of murder or conspiracy to murder. After this motion and in response to a Government motion, made pursuant to Rule 12.2(c), the district court ordered Leonard to undergo an examination by a psychiatrist. Subsequent to the examination but before trial, however, defendant stipulated to his mental competency at the time of the alleged offenses and waived the issue. At trial the prosecution cross-examined Leonard as to the statements made by him to the prosecution psychiatrist. On appeal, defendant raises several issues besides the one involving Rule 12. These concern the defendant’s motion for continuance, his request for a mental competency hearing [to determine competency to stand trial] and the court’s denial thereof, his motion to exclude evidence of a serological examination, the defendant’s access to witnesses, the abbreviated “Allen” charge given the jury and a portion of instructions given the jury. Because we find it necessary to reverse on the basis of the violation of Rule 12, and absent the likelihood of reoccurrence of these matters upon retrial, we do not reach these other issues. Rule 12.2(b) requires a defendant to give notice prior to trial of his intention to rely on the defense of insanity. Subdivision “c” of this rule gives the trial court authority upon motion of the Government to order the defendant to submit to an examination by a psychiatrist designated by the court. Subdivision “c” also provides: No statement made by the accused in the course of any examination provided for by this rule, whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding. On its face, Rule 12.2(c) precludes the use upon the issue of guilt of statements made by Leonard in the course of the court-ordered psychiatric examination. The rule reflects a clear congressional intent that such statements not be used in a proceeding on the issue of guilt, but rather that they be used solely on the issue of sanity. As the legislative history makes clear, the purpose of Rule 12.2(c) is to secure the defendant’s Fifth Amendment right against self-incrimination. See Historical Note, following 18 U.S.C. Rule 12.2. Because sanity at the time of the commission of the alleged offense bears heavily on the issue of guilt, it implicates Fifth Amendment concerns. Thus, there is a sharp distinction between the use of the defendant’s statements made during a court-ordered psychiatric examination on the issue of sanity and the use, before the “fact finders” (here a jury), of incriminating statements made during such psychiatric examination on the issue of guilt and before guilt had been determined. See Gibson v. Zahradnick, 581 F.2d 75, 78 (4th Cir. 1978), cert. denied, 439 U.S. 996, 99 S.Ct. 597, 58 L.Ed.2d 669 (1979); United States v. Bennett, 148 U.S.App.D.C. 364, 370-72, 460 F.2d 872, 878-80 (D.C.Cir.1972). Therefore, central to the court’s authority to order a defendant to submit to a psychiatric examination is what we believe to be a clear understanding that the function of statements obtained during the examination is limited to the sanity issue. There is another obvious rationale behind the rule. Both the Government and the defendant may need the assistance of expert testimony on the issue of sanity. In many cases, psychiatrists would not be able to obtain reliable testimony unless they were free to inquire into the prior conduct of the defendant, including his participation in the criminal activity with which he is charged. Moreover, the psychiatric inquiry cannot succeed unless the defendant cooperates; a defendant’s mental condition would not be discovered in many instances unless the psychiatrist can engage in a candid conversation with the defendant about it. Therefore, it may be appropriate and even in some cases necessary for the psychiatrist, when testifying on the issue of sanity, to disclose the criminal activity related to him by the defendant. Thus, drawing on the language of the rule and the reasoning behind it, Leonard’s statements introduced at trial for impeachment purposes were inadmissible under Rule 12.2(c). To secure the reliability of the psychiatric interview as well as to prevent the infringement of the defendant’s Fifth Amendment rights, Leonard’s right to a competency determination to prove insanity cannot be conditioned on allowing the statements obtained at such a determination to be used by the Government for evidence on issues other than sanity. The legislative history of the rule supports this conclusion. The Conference Committee Notes, the Senate Debate, and the House Debate all indicate that facts related in a psychiatric examination should not be admissible on the issue of guilt and that the only purpose for which the statements can be admitted is to determine the issue of sanity. See Historical Note, supra; 121 Cong.Rec. 25843, 25986 (1975). The Government urges us to adopt case law developed under 18 U.S.C. § 4244 as binding on the interpretation of Rule 12.2. Section 4244 permits the court to order a psychiatric examination in cases where there is a question concerning the competency to stand trial. Like Rule 12.2, Section 4244 precludes the admission into evidence on the issue of guilt any statement made by the defendant. We reject the assertion that the similarity in language in the two provisions demands application of precedent developed under Section 4244 to Rule 12.2 for several reasons. To support its contention, the Government relies principally on United States v. Castenada, 555 F.2d 605 (7th Cir.), cert. denied, 434 U.S. 847, 98 S.Ct. 152, 54 L.Ed.2d 113 (1977). In that case, defendant appealed his conviction on the ground that 18 U.S.C. § 4244 precludes the admission into evidence on the issue of guilt of any statement made by the defendant. The Seventh Circuit held that Section 4244 does not bar the use of statements by the accused for purposes of impeachment. The court relied on the “Miranda exception to impeachment” to support the distinction between precluding the admission of evidence on the issue of guilt in the case in chief and admitting otherwise inadmissible evidence for purposes of impeachment. Id. at 609. See Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1970). We do not find the reasoning applied in Castenada persuasive on the issue presented here. First, Castenada involved the construction of a separate statute, 18 U.S.C. § 4244, and not a Federal Rule of Criminal Procedure. Legislative history does not indicate that existing case law developed under Section 4244 was enacted into the rule; instead it emphasizes that the two provisions are to be treated separately. See Notes of Advisory Committee on Rules, Historical Note, supra. Additionally, there is a reasoned basis to treat the prophylactic rule concerning a competency hearing less stringently than that concerning the insanity defense. Unlike an examination to ascertain competence to stand trial, the purpose of an interview to probe sanity at the time of the commission of the charged offense is to obtain from the accused information bearing directly on his guilt. See United States v. Malcolm, 475 F.2d 420, 425 (9th Cir. 1973). Insanity at the time of the offense charged involves an intent question that eventually may negate a basic element of the offense. Statements from the defendant are most critical to a determination of the intent question that is basic to the issue of mental capacity to commit a crime. Because such statements are focused on the time of the commission of the crime, there is a greater likelihood of soliciting statements that breach a defendant’s Fifth Amendment rights. On the other hand, determining the defendant’s capacity to stand trial under Section 4244 does not primarily concern his mental state at the time of the commission of the alleged crime but concerns his mental condition at the time of trial. We conclude that a firm rule that prevents the prosecution from relying on statements of a defendant given during the course of a compelled psychiatric examination for impeachment purposes not only protects the integrity and reliability of the psychiatric interview but also prevents infringement on the defendant’s Fifth Amendment rights. We, therefore, give effect to the apparent command of Rule 12.-2(c). Accordingly, we REVERSE the ruling of the trial court and REMAND for a new trial. . The following is a portion of the cross-examination of the defendant by Government counsel: Q And you testified that you followed them as they went down toward the ramp and step area, with Joe-Joe hitting away, was that your testimony? A I testified that he stabbed J.C. somewhere in the chest and J.C. bent over and spun around and started running and he ran out into — you got the ramp on this side and you got the walkway on this side and Joe-Joe was trying to hit him. J.C. started running and I stayed there I guess — I don’t have a recollection of a time I stood there but maybe a minute, five, ten minutes, fifteen seconds, but I went on out and when I got out they was halfway down what you call that walkway, you know. I stood a little bit down from the safety building and it was just like a shock, you know, just — I don’t know what you call it, you know. I don’t know what to do really. Q Your recollection of all this is fairly detailed today, isn’t it? A Well, I was there. Q Do you recall being interviewed by a psychiatrist named Dr. Bachus on September 26, 1978? A Yes, ma’am. Q Do you recall him asking you, Mr. Leonard, what happened and do you recall answering “I don’t know what happened. A dark cloud just seemed to come down over me”? A Yes, ma’am. Q Do you recall him asking you to develop what you meant and do you recall answering “I saw Widener and Williams struggling. Williams ran toward him and grabbed Leonard,” you. A Yes, ma’am. Q That you recalled that next you pushed Williams away and then a dark shadow came over you and the next thing you knew Williams was pulling on you. A Yes, ma’am. Q A dark shadow came over you. The shadow lifted and it was “as if 1 opened my eyes and my last recollection was seeing Widener coming after me with a hatchet in his hand. After the shadow lifted, I was aware that I was still in the prison yard, was bleeding, had blood all over me. So I knew something had happened.” Do you recall stating that answer? A Yes, ma’am. Q That is not quite the same thing you testified today, is it? A No, ma’am. Q Has your recollection gotten a lot better in the last few weeks— A No, ma’am. Q —than when you talked to the doctor? A No, ma’am. Q You lied to the doctor then? A Yes, ma’am. Q You lied when you told him a dark cloud had come over you? A Yes, ma’am. Q You lied when you told him Mr. Widener was coming after you with a hatchet? MR. DERRICKSON: Your Honor, he has answered. She has been over this and he has answered. He has admitted he made those statements. It seems to me that is sufficient. THE COURT: Well, she is entitled to determine which is correct. Ask him which is correct. MR. DERRICKSON: Well, she already asked him and he answered. THE COURT: She asked him once. She is asking him about another fact now but don’t belabor— MISS CARNES: Yes, sir. Q And you also lied when you said Williams had come toward you and grabbed you, is that correct? A Yes, ma’am. Q Because your testimony today is actually you went down and grabbed him away. A Yes, ma’am. . Whether these statements are admissible in a separate determination for sentencing purposes once guilt has been determined need not be decided in this case. Cf. Smith v. Estelle, 602 F.2d 694 (5th Cir. 1979) (defendant may not be compelled to speak to a psychiatrist for the purpose of determining dangerousness when psychiatrist can use defendant’s statements against him at the sentencing phase of a capital trial). Nor do we discuss the use of a defendant’s statements at a separate determination on the issue of sanity. . A defendant can be barred from raising the issue of insanity as a defense if he did not submit to an examination by the court-designated psychiatrist. See Smith v. Estelle, supra, at 704. This Circuit has found that empowering the court to order a psychiatric examination concerning the insanity defense does not violate per se the defendant’s rights under the Fifth Amendment. See United States v. Cohen, 530 F.2d 43, 47 (5th Cir.), cert. denied, 429 U.S. 855, 97 S.Ct. 149, 50 L.Ed.2d 130 (1976). The holding in Cohen rested on the premise that, if a defendant raises insanity as a defense and introduces psychiatric testimony, “the government will seldom have a satisfactory method of meeting defendant’s proof on the issue of sanity except by the testimony of a psychiatrist it selects . . who has had the opportunity to form a reliable opinion by examining the accused.” Id. at 48. More importantly, however, the court recognized that eliciting statements at a compulsory examination is not unconstitutional per se because any statement about the offense itself could be suppressed. Id. at 47. . Both the Advisory Committee’s Notes and the Report of the House Judiciary Committee specifically contemplate a separate determination of the issue of sanity. See Historical Note, supra. This is because use of the defendant’s statements elicited at a psychiatric examination solely at a hearing to determine sanity encounters no self-incrimination objection under the rule. . 18 U.S.C. § 4244 provides in applicable part: No statement made by the accused in the course of any examination into his sanity or mental competency provided for by this section, whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding. . Although the defendant in Castenada, unlike the situation in the case before us, opened the door on direct examination to the content of the statements made during his competency examination, we do not rely on that distinction. 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_appnatpr

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Joyce E. KEEGAN, Appellant, v. Margaret HECKLER, Secretary of Health and Human Services. No. 84-1113. United States Court of Appeals, Third Circuit. Submitted Under Third Circuit Rule 12(6) Sept. 10, 1984. Decided Sept. 24, 1984. Jack I. Kaufman, Allentown, Pa., for appellant. Edward S. G. Dennis, Jr., U.S. Atty., Edward T. Ellis, Asst. U.S. Atty., E.D.Pa., Beverly Dennis, III, Regional Atty., David L. Hyman, Asst. Regional Atty., Dept, of Health and Human Services, Philadelphia, Pa., for appellee. Before GIBBONS and GARTH, Circuit Judges, and TEITELBAUM, District Judge. Hon. Hubert I. Teitelbaum, Chief Judge, United States District Court for the Western District of Pennsylvania, sitting by designation. OPINION OF THE COURT GIBBONS, Circuit Judge: Joyce E. Keegan appeals from a summary judgment in favor of the Secretary of Health and Human Services in her action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) (1982), for a review of a denial of disability benefits under Title II and Title XVI of the Social Security Act. Keegan contends that the district court erred in its interpretation and application of the guidelines for the termination of disability benefits as set forth in Kuzmin v. Schweiker, 714 F.2d 1233 (3d Cir.1983). We agree and therefore reverse. I. Ms. Keegan, born in 1932, and formerly employed as a secretary, applied for disability insurance benefits on June 28, 1976. Her application was denied initially and on reconsideration by the Office of Disability Operations of the Social Security Administration. The case was considered de novo by an Administrative Law Judge (AU) who, in a decision dated April 27, 1978, determined that Ms. Keegan was disabled for purposes of the Act, and that her disability commenced on November 8, 1974. The AU concluded, based in part on medical reports from Doctors Farber and Chirieleison, that Keegan was disabled due to a combination of: “(1) rheumatic heart disease, (2) mitral stenosis and insufficiency with the insufficiency predominating, and. (3) anxiety.” Subsequently on April 30, 1978 Ms. Keegan filed for and was granted Supplemental Security Income Benefits. On June 23, 1981 Ms. Keegan was notified that her disability had ceased as of May, 1981 and that her benefits would be terminated as of July, 1981. The administration in its notice advised Ms. Keegan that her benefits had been initially granted “because of rheumatic heart disease,” Tr. 163, and that the medical evidence indicated that her heart was currently enlarged and that her cardiogram reflected “some non-specific changes consistent with [her] condition.” Further the evidence showed, according to the notice, the absence of symptoms indicative of congestive heart failure, chest pains or fainting spells. Tr. 163. Accordingly, she was advised that “[i]n view of the evidence you have the functional ability to perform your customary occupation as a secretary as it is generally performed in the national economy.” Tr. 163. Following a hearing which was requested by Ms. Keegan, the AU found that Ms. Keegan was unable to work as a secretary since that activity involved “light exertion” as defined in 20 C.F.R. § 404.1567(b) (1984), but that she retained sufficient residual capacity to perform sedentary work as defined in 20 C.F.R. § 404.1567(a) (1984). The AU determined that Ms. Keegan’s past work experience should be classified as “skilled” as defined in 20 C.F.R. § 404.1568(c) (1984), and that these clerical skills were transferable to sedentary work. 20 C.F.R. § 404.1568(a) (1984). The AU’s opinion, relying heavily on the report of Dr. Kastenbaum who examined Ms. Keegan for the Administration, conceded that the claimant suffers from rheumatic heart disease with probable mitral insufficiency along with a history of atrial fibrillation, and that this impairment “significantly limits her physical ability to perform basic work related activities.” Tr. 22. The AU stated that Ms. Keegan’s symptoms are aggravated by exertion but relieved by rest and that she was “able to carry out her daily activities without much in the way of symptoms.” This latter observation is apparently taken from Dr. Kastenbaum’s report. Tr. 179. The Appeals Council refused to review the AU’s opinion, thereby making the Secretary’s determination of non-disability final. Ms. Keegan appealed the decision to the district court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) (1982). Each party moved for summary judgment, and the matter was referred to a magistrate for a recommendation. The magistrate reviewed the evidence and recommended that Ms. Keegan’s motion for summary judgment be denied and the Secretary’s motion for summary judgment be granted. In addressing one of Ms. Keegan’s contentions, namely, that the AU made an error of law in determining that her disability had ceased, the magistrate’s report discussed our decision in Kuzmin. The report stated that Kuzmin was satisfied in that Ms. Keegan failed to meet her burden of proof by showing that her condition remained the same as it was at the time of the earlier determination of disability. The magistrate’s report seems to base this conclusion on the lack of additional medical evidence subsequent to the initial determination of disability attributable to the fact that Ms. Keegan was not being treated by any particular physician since 1977. Ms. Keegan contends that the magistrate’s interpretation of Kuzmin was incorrect. She argues that her testimony constituted evidence of a continuing disability which thereby effectively shifted the burden of proof to the Secretary to present evidence of sufficient improvement in her condition to permit her to undertake “gainful activity.” The district court adopted the recommendation of the magistrate and granted the Secretary’s motion for summary judgment. The court held that the guidelines for the termination of benefits provided by our decision in Kuzmin were properly followed. First, the court concluded that Ms. Keegan failed to introduce “sufficient evidence that her condition is the same or worse when compared to her condition at the time of the prior finding of disability.” App. 8A at 4. Second, the court concluded that even if a presumption of continuing disability was created by Ms. Keegan, Dr. Kastenbaum’s report was sufficient evidence to enable the Secretary to rebut the presumption of continuing disability. Since Ms. Keegan's sole ground for appeal rests on the district court’s alleged error in interpreting and implementing our decision in Kuzmin, that is the only issue we need address. II. Our inquiry is limited to a determination of whether the Secretary’s final determination of non-disability is supported by “substantial evidence,” 42 U.S.C. §§ 405(g) and 1383(c)(3) (1982), which has been defined as such evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). In our decision in Kuzmin we addressed the effect to be given to a prior determination of disability on a subsequent decision to terminate benefits. We concluded that both basic principles of fairness and the need to provide the appearance and fact of consistency in the administrative process dictate that “once the claimant has introduced evidence that his or her condition remains essentially the same as it was at the time of the earlier determination, the claimant is entitled to the benefit of a presumption that his or her condition remains disabling.” Kuzmin, 714 F.2d at 1237. Regarding the nature of proof that must be offered by a claimant, our decisions in both Kuzmin and Daring v. Heckler, 727 F.2d 64 (3d Cir.1984), are instructive. In Kuzmin we stated that a claimant may meet his or her burden by relying on medical evidence previously introduced, supplemented by the claimant’s own testimony of the continuing nature of the disability. Kuzmin, 714 F.2d at 1237. Any doubt which may have persisted after Kuzmin as to the sufficiency of a claimant’s own testimony standing alone to raise the Kuzmin presumption has been resolved in Daring wherein we recognized that this was an adequate means of proof. Thus, once the claimant produces evidence of continuing disability, the burden of proof, or more properly the risk of non-persuasion, shifts to the Secretary to produce evidence that the claimant is capable of undertaking gainful activity in order to rebut the presumption of continuing disability. Kuzmin, 714 F.2d at 1237. III. In the present case the district court’s conclusion that Ms. Keegan failed to meet her burden under Kuzmin was in error. The record reflects that in addition to giving testimony of a continuing disability Ms. Keegan did in fact offer additional medical evidence at the hearing itself. Specifically, at the hearing Ms. Keegan introduced medical reports from St. Joseph Hospital, dated April 23, 1982, and records resulting from a visit to the Reading Hospital and Medical Center Emergency Unit. Ms. Keegan had been brought to the hospital by a friend because she complained of weakness, poor appetite and palpitations. Tr. 191. While this additional evidence alone would likely be sufficient to raise the Kuzmin presumption, our decision in Daring makes it clear that her testimony standing alone was sufficient to create the presumption of continuing disability. Daring, 727 F.2d at 69. The Secretary argued in her brief that a leading question asked by Ms. Keegan’s attorney cannot be sufficient even under Daring to satisfy the Kuzmin burden. Brief for Appellee at 10. The exchange referred to by the Secretary was: BY ATTORNEY: Q: Mrs. Keegan, 1978, based on the evidence, there was evidence indicating that you experienced frequent fatigue and weakness to the point where you could not do your housework. Okay. Is that still your situation? A: Yes Tr. 35. The Secretary’s argument is without merit for two reasons. First, the Secretary’s objection to the form of the question is inappropriate given the liberal evidentiary rules governing administrative hearings. Section 556(d) of the Administrative Procedure Act provides, “[a]ny oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence.” The record nowhere reflects the AU’s instructions to Ms. Keegan’s counsel to frame his questions in a certain way. Thus, if the Secretary simply objects to the form of the question, the objection is incorrect. If, on the other hand, the Secretary is arguing that Ms. Keegan’s answer cannot be sufficient to meet her Kuzmin burden because she is only adopting the words of her attorney, the argument must also fail. The question must be fairly read to constitute the attorney’s asking if Ms. Keegan feels any better now than she did at the time of the initial hearing. Given the nature of disability benefit termination proceedings, such a question can hardly be improper. The other flaw in the Secretary’s argument concerning the “leading question” is that it implicitly assumes that the above referred-to exchange between Ms. Keegan and her attorney is the only portion of her testimony that arguably could furnish a basis for the presumption of continuing disability. This argument is curious particularly since the Secretary’s own brief concedes that the record does contain a “claim” by the claimant that her condition remained the same as it was at the time of the initial hearing. In any case it is clear that Ms. Keegan’s testimony, taken as a whole clearly meets her Kuzmin burden. For example, she testified to difficulty with climbing stairs, and doing housework, weakness in the legs, collapse, and episodic palpitations. Tr. 36-37. These symptoms are undeniably consistent with continuing disability. Similarly, we can dispose with the Secretary’s argument that Ms. Keegan failed to meet her Kuzmin burden because she testified that she was somewhat less anxious than she had been at the time of the prior hearing, at least to the extent that her former husband was a source of her anxiety. Appellee’s Brief at 10. This is similar to the situation posed in Daring where we concluded that “[t]here is also no basis to support the AU’s reliance on his own impressions that Daring’s relationship with her former boyfriend had been ‘primarily responsible for the claimant’s severe emotional outbursts.’ ” (emphasis in original). Daring, 727 F.2d at 70. In the present case there is similarly no basis for an inference that Ms. Keegan’s husband was the sole cause or even a significant cause of Ms. Keegan’s anxiety. Indeed, it is more likely that Ms. Keegan’s physical condition and the attendant difficulties she experiences in attempting to cope with her illness are the main source of her anxiety. The Secretary’s argument has even less force than it would have if posed in Daring, since in the present case, unlike Daring, the AU’s opinion never mentioned Ms. Keegan’s supposed reduced anxiety in her findings. The district court also concluded that notwithstanding Ms. Keegan’s failure to meet her burden, the Secretary met her burden of proof to rebut the presumption of continuing disability. In view of our conclusion that Ms. Keegan did offer sufficient evidence to raise a presumption of continuing disability, we must turn to the issue of whether there is substantial evidence to support the Secretary’s findings that Ms. Keegan’s disability had ceased. If we conclude, as the district court did, that the Secretary’s decision was supported by substantial evidence we would have to accept her findings as conclusive. Daring, 727 F.2d at 68. In this regard the district court stated that the Secretary met her burden with Dr. Kastenbaum’s report and the testimony of Ms. Keegan. As in Kuzmin a comparison between the evidence before the first AU and the termination proceedings record reveals a marked similarity between the two. Kuzmin, 714 F.2d at 1238. For example, the first AU in finding disability considered the medical reports of Drs. Farber, an administration consultant, and Chirieleison. Tr. 142. Dr. Farber concluded that Ms. Keegan was suffering from “rheumatic heart disease, mitral stenosis and insufficiency with the insufficiency predominating ... enlargement of the left atrium and the outflow tract of the left ventricle,” along with “premature atrial and ventricular contractions.” Tr. 107. That report continued Mrs. Keegan has evidence of strain on her cardiovascular system resulting from her damaged mitral valve. If progression of the strain is to be kept to a minimum she will have to curtail her physical activities. She has too much to care for at home and should really have help with her housework. She could not consider doing work outside of the house and continuing with her housework. If she had a job, it would have to be a sedentary type of occupation, and she would then have to have full time help at home. Tr. 107 (emphasis added). Dr. Chirieleison stated in his report that Ms. Keegan had a “significant cardiovascular problem with her mitral stenosis and insufficiency causing her to have some evidence of cardiac decompensation in regards to her supraventricular tachycardia.” Tr. 134. He also referred to a stress cardiogram which showed “marked impairment of her functional aerobic impairment [sic].” Tr. 134. Dr. Chirieleison concluded that “Mrs. Keegan with her rheumatic valvular disease is certainly not capable of performing any strenuous activity or indeed any employment which would require her to be under stress.” Tr. 134. The AU in the second de novo hearing considered all the foregoing along with the medical report of an administration consultant, Dr. Kastenbaum. Dr. Kastenbaum concluded that Ms. Keegan had an enlarged heart, rheumatic heart disease with mitral valve disease which was most likely mitral stenosis, and that she probably has episodes of atrial fibrillation. He classified her as “American Heart Association Class 2 to 3.” Tr. 179. The AU apparently seized upon the portion of Dr. Kastenbaum’s report which stated that Ms. Keegan “is apparently able to carry out her daily activities without much in the way of symptoms, but does get help with her housework by her children” and that she “[h]as not had symptomatic failure for the last four years at least that required hospitalization.” Tr. 179 (emphasis added). Given the substantially similar clinical findings of Drs. Farber, Chirieleison and Kastenbaum, namely an enlarged heart, rheumatic heart disease, and mitral stenosis, along with Dr. Kastenbaum’s classification of Ms. Keegan as being between American Heart Association 2 and 3, it is apparent that her condition has not improved to the point where she is capable of gainful activity. A person between American Heart Association classes 2 and 3 will experience symptoms at something less than ordinary activity and is only asymptomatic at rest. Further, Dr. Kastenbaum’s statement to the effect that Ms. Keegan is capable of conducting her daily activities “without much in the way of symptoms” was conditioned on her receiving help with her housework from her children. The language suggests that Ms. Keegan might not be able to conduct her daily activities, much less hold down a job, without help with her housework. This is practically identical to the conclusion reached by Dr. Farber, Tr. 107, which was one basis for the initial determination of disability. The AU also apparently relied on Dr. Kastenbaum’s noting the absence of “symptomatic failure” for four years “at least that required hospitalization.” The non-occurrence of an attack serious enough to require hospitalization is hardly inconsistent with a continuing disability. All three examining physicians and the AU at the termination hearing concurred that Ms. Keegan could be asymptomatic if she remained at rest; and that any symptoms she does experience can be relieved by rest. Therefore, the very nature of her illness is such that if she carefully limits her activity she should not require hospitalization. Hence, the absence of symptoms severe enough to require hospitalization in this case does not constitute substantial evidence of non-disability. In this regard it is also instructive to note that Dr. Kastenbaum considered Ms. Keegan’s condition serious enough to warrant consideration of her as a possible candidate for open-heart surgery. Tr. 179. Based on the foregoing we conclude that Dr. Kastenbaum’s report did not furnish a basis for rebutting the presumption of continuing disability. We shall briefly consider the district court’s conclusion that Ms. Keegan’s testimony constituted sufficient evidence to enable the Secretary to rebut the Kuzmin presumption. The district court’s memorandum opinion stated that “[t]he Secretary has met her burden by showing through Dr. Kastenbaum’s report and by testimony from the plaintiff, that the plaintiff is not now disabled.” App. 8A at 4. If the district court is suggesting that Ms. Keegan’s testimony standing alone can furnish the basis for rebutting the Kuzmin presumption, we point out that this issue was not addressed in Kuzmin or Daring. In Daring we made it clear that a claimant could meet her Kuzmin burden by offering her own testimony, and then be given the benefit of a presumption of continuing disability. Once the claimant offered such evidence the Secretary “must present evidence, that there has been sufficient improvement in the claimant’s condition to allow the claimant to undertake gainful activity.” Kuzmin 714 F.2d at 1237. While it is conceivable that a case could arise where the testimony of the claimant alone is sufficient to rebut the Kuzmin presumption of continuing disability, our concerns for “[bjasic principles of fairness as well as the need to provide both the appearance and fact of consistency” lead us to conclude that, at least in most cases, the Secretary should, rely on more than solely the claimant’s own testimony to rebut the presumption of continuing disability. See Early v. Heckler, 743 F.2d 1002 at 1007 (3d Cir.1984) (unrepresented claimant’s equivocal testimony not substantial evidence of improvement). Therefore, given the administration’s power to require the claimant to submit to medical examinations, 20 C.F.R. § 404.1517 (1984), our concerns for fairness and administrative consistency suggest that medical evidence rather than claimant’s testimony standing alone should furnish the basis to rebut the Kuzmin presumption. It is conceivable that in a given case medical evidence will not be sufficient to rebut the presumption but that extremely damaging admissions made by the claimant would be sufficient. Therefore, it is not possible to categorically state that a claimant’s testimony, standing alone, can never constitute sufficient evidence to rebut the Kuzmin presumption, but such cases should be rare. IV. In light of the foregoing we will reverse the summary judgment in favor of the Secretary with instructions to remand to the Secretary for reinstatement of benefits commencing August, 1981. . Ms. Keegan also raised several other objections before the district court, namely: that the ALJ’s conclusion regarding Ms. Keegan’s residual functional capacity was not supported by substantial evidence; that the absence of a vocational expert's testimony along with the ALJ’s taking administrative notice of the existence of sedentary work or that Ms. Keegan could do such work constituted legal error; that Ms. Keegan’s inability to afford a doctor or her refusal to complete a stress test should not provide the basis for a finding of lack of disability. The district court addressed all the arguments except for the final one, finding it unnecessary for the disposition of the case. We will deal, however, only with the objection arguing a misapplication of Kuzmin since that is the sole ground on which Ms. Keegan’s appeal to this court rests. . Both for purposes of disability insurance and for SSI benefits, disability has been defined as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A)(1982). A person is disabled within the meaning of these provisions "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy....” 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B) (1982). . In Daring we also pointed out that a claimant could meet the Kuzmin burden with evidence of continued episodes of hospitalization or even medical reports relied on by the Secretary. Daring, 727 F.2d at 69. . The American Heart Association has developed a system of classification which categorizes heart patients in terms of the types of activity which will produce symptoms. The classification scheme states in pertinent part: Functional Class II: Patients with cardiac disease resulting in slight limitation of physical activity. They are comfortable at rest. Ordinary physical activity results in fatigue, palpitation, dyspnea, or anginal pain. Functional Class III: Patients with cardiac disease resulting in marked limitation of physical activity. They are comfortable at rest. Less than ordinary physical activity causes fatigue, palpitation, dyspnea, or anginal pain. Diseases of the Heart and Blood Vessels — Nomenclature and Criteria for Diagnosis, N.Y. Heart Association (6th ed. 1964). Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. 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. GREEN et al., v. UNITED STATES. Circuit Court of Appeals, Ninth Circuit. May 9, 1927. No. 5006. I. Criminal law <@=>1072 — Rule forbidding writ of error, unless assignment of errors is filed, is only rule of practice (Circuit Court rule ID. Circuit Court rule 11, requiring that no writ of error shall be allowed, unless assignment of error has been filed, is not jurisdictional, but is only a rule of practice. 2. Criminal law <@=>424(0— Statements of defendant not on trial to officers while under arrest held admissible, where evidence connected him with conspiracy (National Prohibition Act [Comp. St. § 1013814 et seq.]). In prosecution for conspiracy to violate National Prohibition Act (Comp. St. § 1013814 et seq.), statements which certain defendant not on trial made to government officers while under arrest were admissible, where evidence tended to connect such defendant with conspiracy charged, notwithstanding that he was not on trial with other defendant; it not even being necessary that he should have been indicted in order to render declarations admissible. 3. Criminal law <@=>423(9) — Testimony of defendant in conspiracy prosecution relative to division of profits held admissible, as statement of one performing services in furtherance of conspiracy. In prosecution for conspiracy to violate the National Prohibition Act (Comp. St. § 1013814 et seq.), testimony by defendant, who had pleaded guilty and was called as witness for government relative to division of profits by members of conspiracy, obtained during conversation with bookkeeper, held admissible as statement of one performing services in furtherance of conspiracy and concerning method of operation of defendants. 4. Witnesses <@=>256 — Denying possession to defendants of memoranda used by witnesses to refresh recollection, or separation of portions, held not erroneous, in view of opportunity for inspection (National Prohibition Act [Comp. St. § 10138(4 et seq.]). In prosecution for conspiracy to violate National Prohibition Act (Comp. St. § 1013814 et seq.), denial to defendants of right to possession overnight for inspection of volume containing memoranda of conversations overheard by government witnesses tapping telephone wires, and for separation of portions of book used to refresh recollection of witnesses, held not erroneous, where there was no denial of opportunity to inspect complete volume. 5. Criminal law <@=>650 — Denying application for experimental test of 'witness’ ability to identify voices over telephone held not abuse of discretion (National Prohibition Act [Comp. St. § 101381/4 .et seq.]). In prosecution for conspiracy to violate the National Prohibition Act (Comp. St. § 1013814 et seq.), wherein government witness testified to conversations heard on tapping telephone wires, refusal of application for permission to make experimental test of witness’ ability to identify voices heard over telephone held not erroneous, as being within discretion of lower court. 6. Witnesses <@=>326, 330(1) — Refusal, on cross-examination to impeach rebutting testimony, to require' witness to write certain words, held proper (National Prohibition Act [Comp. St. § 101381/t et seq.]). In prosecution for conspiracy to violate National Prohibition Act (Comp. St. § 1013814 et seq.), refusal, on cross-examination to impeach, rebutting testimony, to require witness to write certain words which he had denied to have written on exhibits shown to him held proper, as not proper cross-examination, and as constituting impeachment of impeaching witness. 7. Witnesses <§=>52 (7) — Wife of defendant charged with conspiracy to violate prohibition law held competent witness (National Prohibition Act [Comp. St. § 10138% et seq.]). Wife of defendant in prosecution for conspiracy to. violate National Prohibition Act (Comp. St. § 10138% et seq.) held competent to testify as witness in his behalf. 8. Criminal law <§=>1186(4) — Excluding testimony of wife of one defendant charged with conspiracy tending to show alibi, held not'to require reversal under ievidence (Judicial Code, § 269, as amended by act Feb. 26, 1919 [Comp. St. § 1246]; National Prohibition Act [Comp. St. § IOf.38% et seq.]). In prosecution for conspiracy to violate the National Prohibition Act (Comp. St. § 10138% et seq.), exclusion of testimony by wife of one of defendants, tending to establish alibi as to certain defendants, held not ground for reversal, under Judicial Code, § 269, as amended by Act Feb. 26, 1919 (Comp. St. § 1246), in view of uncontradieted evidence showing complicity of such defendants in conspiracy charged. 9. Conspiracy <§=>48 — Evidence of conspiracy to violate prohibition law held for jury as to one defendant (National Prohibition Act [Comp. St. § 10138% et seq.]). Evidence in prosecution for conspiracy to violate National Prohibition Act (Comp. St. § 10138% et seq.) held, as pertaining to. one defendant, sufficient for jury. 10. Jury <§=>103(6) — Denial of challenge to jurors who had formed opinion held not erroneous, where they stated opinion would be disregarded (Rem. Comp. Stat. Wash. § 331). Under Rem. Comp. Stat. Wash. § 331, relative to acceptance of juror who has formed or expressed opinion, denial of challenge to" jurors who had formed opinion, but stated that it was not fixed opinion, and could be disregarded, and that they would render verdict according to evidence, held not erroneous. 11. Criminal law <§=>1059(3) — Failure to except to court’s charge as comment on evidence precludes consideration on appeal. Failure of defendants to except to charge of court on ground that it constituted a comment on the evidence precludes consideration thereof on appeal. Rudkin, Circuit Judge, dissenting. In Error to the District Court of the United States for the NQrthem Division of the Western District of Washington; Jeremiah Neterer, Judge. Charles S. Green and others were convicted for conspiracy to violate the National Prohibition Act (Comp. St. § 10138% et seq.), and they bring error. Affirmed. George F. Vanderveer, of Seattle, Wash.,( for plaintiffs in error. Thos. P. Revelle, U. S. Atty., and C. T. McKinney, Asst. U. S. Atty., both of Seattle, Wash. Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges. Rehearing denied July 18, 1927. GILBERT, Circuit Judge. The plaintiffs •in error here are others of the defendants who were convicted on the trial of the indictment which was under consideration in the ease of Olmstead et al. v. United States (No. 5016) 19 F.(2d) 842. They bring the case to this court .upon a separate writ of error. A motion is made to dismiss the writ of error on the ground that the record contains no assignments of error. The writ was allowed and service of citation was had on March 8, 1926. Whether an assignment of errors was filed at the same time does not appear from the record, but the record shows that on May 6, 1926, by stipulation of counsel, an “amended assignment” of errors was filed in the court below. The case was not docketed in this court until November 10, 1926. We are inclined to the view, expressed by Judge Baker in Hultberg v. Anderson (C. C. A.) 203 F. 853, that the requirements of rule 11 that no writ of error shall be allowed unless an assignment of errors has been filed is not juris- . dictional, but is only a rule of practice. Such, also, was the view expressed by Judge Denison in Miller v. United States (C. C. A.) 300 F. 529. The motion is denied. Error is assigned to the admission in evidence of statements which certain defendants not on trial made to government officers while under arrest; said statements having, it is said, no purpose or tendency to promote the objects of the conspiracy, such as the statements of Capt. Jack Rhodes, made at the time of the seizure of the Eva B, as charged in the ninth overt act of count 1. He stated that the Eva B had gone to a point in American waters and there loaded a cargo of liquor, and had then gone to a point in Canadian waters to await an opportunity to bring the liquor into the United States under cover of darkness. Objection was made to the testimony as hearsay. The court, in overruling the objection, instructed the jury that the statement was not to be considered against any of the other defendants under any circumstances, unless it was shown that„there was a conspiracy entered into as charged in the indictment, and that, unless it were shown that there was a conspiracy between the defendant Rhodes and some of the other defendants on trial, or all of them, they could not consider it under any circumstances. It is to be noted, also, that the statements of Rhodes were but corroborative of those of Erickson and Green as to the movements of the Eva B, which statements were received in evidence without objection.' At the close of the trial the defendants moved to withdraw from the consideration of the jury the ninth overt act for want of competent evidence to sustain it. The motion was denied, but the court instructed the jury that statements by any of the defendants, either to officers of the law or others not involved in the conspiracy, not made in furtherance of the conspiracy, were to be considered as evidence only against the parties making the same, and if such parties were not then on trial the jury should disregard the same. If there was error in that instruction, it was error in favor of the defendants, for evidence had been received tending to connect Rhodes with the conspiracy charged, and, such being the case, his acts or declarations were admissible. That he was not on trial with the other defendants was immaterial, Clune v. United States, 159 U. S. 590,16 S. Ct. 125, 40 L. Ed. 269; Isenhouer v. United States (C. C. A.) 256 F. 842; Reeder v. United States (C. C. A.) 262 F. 36; Sprinkle v. United States (C. C. A.) 141 F. 811; United States v. McKee, 3 Dill. 546, Fed. Cas. No. 15,685. And to render the declarations admissible it was not even necessary that he should have been indicted, United States v. Cole, 5 McLean, 513, Fed. Cas. No. 14,832. The assignments of error directed to evidence of statements made by Curry, Fletcher, Bennett, and Graignic, who also were defendants, but not on trial, come within the principles above announced, and require no further discussion. "We find without merit, also, the assignment as to the testimony of McLean. McLean was a defendant who had pleaded guilty and was called as a witness for the government. He testified, among other things, that he had a conversation with Bennett, the bookkeeper, who was a defendant, but not on trial, concerning the division of the profits, in which Bennett said: “Eleven men put in $1,000 apiece. It was not just a personal conversation. My duties did not call upon me to know anything about that, but it came up one day in my general work.” This was objected to on the ground that it was a statement not made in the course oí business by any of the defendants on trial. It was a statement, however, of one who was performing services in the furtherance of the conspiracy, and it concerned the method of operation of the defendants. Error is assigned to what is said to have been the refusal of the trial court to permit full and free opportunity to inspect the volume of memoranda of conversations overheard by witnesses listening in on telephone wires. We search the record in vain for evidence of-error under this assignment. The defendants requested an order of the court to turn over to them the book of memoranda containing 700 pages, that they might take it into their possession and inspect it overnight, for purposes of cross-examination on the following day. Again they requested that those portions of the book which had been used to refresh the recollection of the witness Whitney be in some way separated from the remainder of the book and be surrendered to them for inspection. These requests were denied, but there was no denial of opportunity to inspect the volume. For the purpose of impeaching the witness Corwin, the defendants made application for permission to make an experimental test in open court, or elsewhere, in the presence of court and jury, of Corwin’s ability to identify voices heard over the telephone. The denial of the application is assigned as error, but we think it was within the court’s discretion. 22 C. J. 756. The request for leave to make the experiment was not an offer to show as a scientific fact the impossibility of recognizing voices in conversations over the telephone, but was a demand that the witness be required to subject himself to a test of his ability to recognize voices, under conditions to be created which, in the very nature of things,-could not be identical with conditions under which he had heard the voices to which he testified. Such an experiment would not tend to enlighten a jury, and could only tend to confusion by the creation of collateral issues. It is common knowledge that the recognition of voices heard over telephone wires depends upon many and diverse conditions. In such an experiment as was requested, there could be no certainty of obtaining the conditions under which the witness had listened to conversations, and in any such experiment recognition of the voices would largely depend on the tone force and projective quality of the speaker’s voice, the strength of the electric current, and the absence of disturbing sounds. What was said in United States v. Ball, 163 U. S. 662, 673, 16 S. Ct. 1192, 1196 (41 L. Ed. 300), is applicable here: “The granting or refusal of such a request, first made in the midst of the trial, was clearly within the discretion of the court.” It is assigned as error that the court restricted the cross-examination of the witness Fryant, and excluded the defendants’ offer to impeach his testimony. Behneman had to some extent been associated with Fryant, a prohibition officer, in listening in on the wires. He subsequently left that service and associated himself with the defense, and he told Olmstead that he had been listening in on his wires, and later he appeared as a witness for the defendants. Fryant had testified as a witness for the prosecution. Behneman’s testimony contradicted Fryant’s in some particulars. Fryant was called in rebuttal and contradicted several of the items of Behneman’s testimony. On his cross-examination, to impeach his rebutting testimony, Fryant was shown three of the defendant’s exhibits, and he denied that certain words thereon were written by him. Defendants’ counsel then asked him to write those words. This was objected to as not proper cross-examination, and as impeaching an impeaching witness. The same objection was made to the attempted cross-examination of Fryant on Exhibits B-l to B-27. Those exhibits had not been received in evidence. They had been offered for identification, but excluded by the court as incompetent. We find no error in the rulings. They were clearly sustainable on both grounds of objection. Under our decision in Rendleman v. United States, 18 F.(2d) 27, the wife of a defendant in the present case was competent to testify as a witness in his behalf. The question arises whether it was reversible errdr to exclude the testimony of Green’s wife, which was offered to show that she, her husband, and the defendant Wm. P. Smith were at Portland, Or., in 1924, from July 7 to September 9, inclusive, or the testimony of Harvey’s wife, offered on behalf of the defendants Harvey and. Thompson, to show that in 1924, continuously from July 3 to July 10, inclusive, she and her husband were at a place 80 miles distant from Seattle. As it affects the defendant Smith it is very clear that the exclusion of Mrs. Green’s testimony is no ground for reversal. The purpose of it was to prove an alibi as against two features of the evidence against Smith: First, the testimony of Corwin that Smith admitted to him that he' was in the wholesale liquor business at 3116 Eastlake avenue until the early part of September, and the testimony of Whitney that Smith admitted to him that he had lived at 3116 Eastlake avenue, Seattle, “from the month of July on,” and that Smith admitted the truth of Whitney’s statement that he (Whitney) had found on Smith’s premises, when raided on November 26, 1924, “a very good history of Smith’s liquor transactions.” The papers so found were admitted in evidence and they contained entries of liquor transactions, bearing dates of July 7 to*' July 14, inclusive. Among the papers was the lease of the premises to Smith, which he signed and acknowledged at Seattle on July 14,1924, as attested by the notary’s certificate. These papers show conclusively the untruth of testimony that Smith was in Portland on those dates. The other evidence against Smith, sought to be disproved by the proposed proof of alibi, was that which related to Smith’s arrest in Seattle on September 7,1924. Jones, a police officer, testified that he had been cautioned to keep his eye on Smith; that he observed suspicious movements by Smith on September 7, 1924, at and near the Georgetown police station, in Seattle; that Smith got into his car, the number of which was 130,947, and started away, that the officer followed him until Smith reached a point where there was a Cadillac car in which were 3 men and 18 cases of liquor; that Smith came along with no lights; that about two blocks away he commenced to switch his lights off and on; that the officer answered by a similar switching of his lights; that Smith drove up, and the officer arrested him and the men in the Cadillac; and that Smith said to the officer that it was Olmstead’s car and booze and that they were on their way to Portland. There was contradiction by another witness, who testified that on that morning he heard Smith state to Jones at the Georgetown station that he had come back to get the two Cadillac cars which were being held at the station, which he said belonged to Olmstead. Obviously testimony of Green’s wife that Smith was at Portland on September 7 could have no probative value to disprove the well-established fact of his arrest by a public officer in Seattle on that date. Neither that fact, nor the evidence of the circumstances which attended the arrest, has been disputed by any witness, unless it be by the testimony • of Green’s sister, who, as a witness for the defendants, testified that Green, his wife, and Smith came to Portland on September 7,1924 —evidence wholly inconsistent with the offered testimony of Green’s wife that they went to Portland on July 3 and remained there until September 9. As to the defendant Green, the only evidence which the proposed alibi would have tended to contradict was the testimony of Cor-win that he saw Green visit Olmstead’s house during the latter part of August and the early part of September, 1924. That was a very unimportant portion of the evidence against Green. There was undisputed testimony that Green was early associated with Olmstead, and that he actively participated in the importation of liquors in furtherance of the conspiracy. He was one of the crew of the Eva B when she was seized on October 5, 1924, while carrying a large cargo of liquors. Whitney testified that, at the time of the raid of the Olympic Repair Shop on September 11, 1924, the defendants Kern and Green said: “We are in the whisky business all right; but we don’t like to go to jail, unless you catch some whisky on us. You didn’t get us this time; you are too soon.” Whitney testified further than Green stated to him in November, 1924, that he and Kern had been in the whisky business, and had been on the Eva B at the time when she was captured in Canadian waters. There was other testimony of Green’s association with the Olmstead group, and of his presence at a meeting of them at Olmstead’s house on November 17, 1924. There was undisputed evidence that Green’s house had been used as an office for the disposition of liquor, and that telephone calls that came to the house would be relayed either by Green or his wife to Smith or to the defendant Carroll. The purpose of the testimony so offered as to the defendants Harvey and Thompson must have been to contradict the testimony of government witnesses concerning conversations between the said defendants overheard on the telephone on July 4, 5, and 10, 1924, conversations which indicated participation on the part of both in the work of the conspiracy. But, aside from the testimony as to those conversations, there was abundant and convincing evidence of the complicity of both of said defendants in the conspiracy, evidence which is in no particular contradicted. McLean testified that about May 1,1924, he was hired by Thompson at a salary of $50 per week to work for Olmstead in taking liquor orders over the telephone, and that Olmstead later raised the weekly pay to $100, that he worked with Thompson taking the morning shift, while he took the afternoon shift. There was evidence that Harvey was one of the defendants who invested $1,000 in the venture at the beginning, and that it was he who about the middle of July, 1924, told McLean that the wires had been tapped. It was shown, also, that Harvey was one of the defendants present at the garage on Lenora street when it was raided on April 17, 1924, and a truck containing 80 eases of liquor was seized, and that on many occasions he was seen with Olmstead at the Olympic Repair Shop, a place of rendezvous of the defendants. There was the testimony of McPherson, a disinterested witness, as to Harvey’s activities at the Mercer Street Garage at a time when a number of the defendants were unloading small square sacks from a truck, and the defendant Nicholles'stated that there were 400 cases of whisky there which had come on a truck, and that daily during the months of July and August, for 12 or 14 days, liquor was brought into that garage. Whitney testified to two conversations which he overheard between Thompson and Harvey on July 11, one at 2:56 p. m., and the other at 5:56 p. m., referring to the business of selling and delivering liquor, in which Harvey said, “Well, Dan’s stuff is ready;” and Thompson replied, “All right; send it out.” We cannot believe that the exclusion of this offered testimony, testimony which was under the ban of the common law, is ground for reversal of the judgment as to any of the defendants. The evidence of the complicity of Smith, Harvey, and Thompson in the conspiracy is direct, convincing, and wholly uneontradieted. The jury must have decided the issues upon the broad lines of that testimony, and it is not believed that their verdict could have been affected by the evidence offered to show that at certain dates they were not at the places where witnesses for the government said that they were. If any defendant or any witness had denied any of the testimony adduced by the government, so that the jury would have been called upon to weigh conflicting testimony, the proffered evidence of an alibi might have been sufficient to affect the result, and its exclusion would have been error, requiring reversal.' But, while the ruling of the court below may have been technical error, we think it was error which did not affect the substantial rights of any defendant. Under section 269 of the Judicial Code (Comp. St. 1919, § 1246), a conviction is not reversible for errors on the trial where the defendant’s guilt is clear. Haywood v. United States (C. C. A.) 268 F. 795; Rich v. United States (C. C. A.) 271 F. 566; Jones v. United States (C. C. A.) 296 F. 632; Fitter v. United States (C. C. A.) 258 F. 567; Raine v. United States (C. C. A.) 299 F. 407; Hobart v. United States (C. C. A.) 299 F. 784; Simmons v. United States (C. C. A.) 300 F. 321; Shuman v. United States (C. C. A.) 16 F.(2d) 457; Horning v. District of Columbia, 254 U. S. 135, 41 S. Ct. 53, 65 L. Ed. 185. It is contended that the defendant Wm. P. Smith was merely a customer of the 01m-stead gang, and not a partner or agent, and that his “motion for a directed verdict should have been granted.” We do not find in the record that such a motion was made or denied,_ or that a ruling thereon is assigned as error. It would be a sufficient answer to such an assignment, if it had been made, to point to the evidence against Smith which has just been adverted to. Error is assigned to the denial of the defendants’ challenge of certain of the jurors for actual bias. While it was shown that they had heard about the case, and some of them had formed an opinion as to the guilt or-innocence of the defendants, all admitted in substance that it was not a fixed opinion, that it could be disregarded, and that they would endeavor to render a verdict according to the evidence, under the instructions of the court. We think there was no error. Section 331, Washington Compiled Statutes (Remington), provides: “Although it should appear that the juror challenged has formed or: expressed an opinion upon what he may have heard or read, such opinion shall not of itself be sufficient to sustain the challenge, but the court must be satisfied, from all the circumstances, that the juror cannot disregard such opinion and try the issue impartially.” We are not convinced that there was abuse of discretion in denying the challenge. Spies v. Illinois, 123 U. S. 131, 8 S. Ct. 22, 31 L. Ed. 80. It is contended that the trial court erred in commenting on the evidence and in attributing to the witness McLean the testimony that $1,000 was subscribed and contributed by each “of 11 of the men and $11,000 by Olmstead to promote the enterprise, and it is asserted that McLean did not so testify, but testified merely that he had been so informed by one of the defendants. It is sufficient answer to this contention, which to us seems trivial, to point to the fact that no exception was taken to the charge on the ground now presented. Nor do- we find that the court went beyond permissible limits in commenting on the testimony, or that any exception was taken specifically to any expression of the court’s discussion of the evidence. The other points made on behalf of these defendants have been considered in the opinion in the case of Olmstead v. United States (No. 5016) 19 F.(2d) 842, and are not discussed herein. We find no error. The judgment is affirmed. 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_applfrom

J

What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). COMMISSIONER OF INTERNAL REVENUE v. GILMORE’S ESTATE and six other cases. Nos. 7937-7943. Circuit Court of Appeals, Third Circuit Argued May 7, 1942. Decided Aug. 28, 1942. Samuel H. Levy, of Washington, D. C. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, and Bernard Chertcoff, Sp. Assts. to the Atty. Gen., on the brief), for petitioner. Andrew B. Young, of Philadelphia, Pa. (Richard K. Stevens, of Philadelphia, Pa., on the brief), for respondents. Before BIGGS, MARIS, and GOODRICH, Circuit Judges. GOODRICH, Circuit Judge. Under § 112(b) (3) of the Revenue Act of 1934, under which this litigation arises, no gain or loss is recognized “if stock or securities in a corporation a party to a reorganization are, in pursuance of the plan of reorganization, exchanged solely for stock or securities in such corporation or in another corporation a party to the reorganization.” One of the given definitions of a “reorganization” is a “statutory merger or consolidation”. This appeal presents two questions: first, whether the transaction, hereinafter described, between a holding company and operating company constituted a “statutory merger or consolidation” and secondly, if it did, whether it was, nevertheless, of such a character that the exchange of stock incident thereto was a taxable event. The respondents were shareholders in the Webster Finance and Investment Company, a New Jersey holding company. They had received their shares from Warren Webster, Sr., who, upon the organization of the holding company in 1927 obtained all its shares for a bare majority of the stock of the operating company, Warren Webster and Company, incorporated in New Jersey in 1895. There is evidence in the record, although no express finding of fact by the Board, that the device of a holding company was chosen by Mr. Webster to insure that the control of the operating company remain in the hands of those active in its management and at the same time enable him to distribute non-controlling beneficial interests, the non-voting stock of the holding company which constituted half of its shares, to the members of his family and employees who at the time did not participate in its management or whose future relationship thereto was uncertain. On October 28, 1935, the directors of the two corporations executed an “Agreement of Merger and Consolidation”. The agreement provided that the operating company was to be the surviving corporation. All “rights, privileges, powers and franchises” of the holding company and “all [its] property, * * * except as otherwise provided in Article X” were to vest in the survivor. Under the latter Article, all of the assets, with the exception of the shares of the operating company, were to be distributed as a dividend to the Shareholders of the holding company which was to transfer the shares it held in the operating company to the surviving corporation. There was an additional article which enumerated the powers of the surviving company. After approval by the respective shareholders, the agreement was filed with the' Secretary of State of New Jersey. The respondents, in accordance with a provision of the agreement of merger, surrendered their holding company stock to the surviving corporation and received its shares in return. The holding company stock was thereupon cancelled. The Commissioner asserted that the respondents were taxable upon the gain resulting from this exchange. The Board of Tax Appeals, two members dissenting, did not sustain his position and he took 'this appeal. Was There a Statutory Merger? We reject without hesitation the Commissioner’s first argument that there was no merger. Admonished by the argument that we should apply Congressional language in the ordinary sense we think that the term used by Congress “statutory merger or consolidation” means, as Treasury Regulation 86, Art. 112(g)-2 states “a merger or consolidation effected in pursuance of the corporation laws of a State or Territory or the District of Columbia”. The Commissioner’s argument, based upon the dissenting opinion of the Board contends that all of the definitions of the term “merger” require that there be a transfer of property. There was no transfer of property, so it was argued, in the surrender by the holding company to the operating company of the shares of the latter corporation. One may question whether this argument is now open to the Commissioner. A stipulation between the parties states that the “Agreement of Merger and Consolidation” was approved by the stockholders of the two companies in conformity with the general corporation law of the State of New Jersey and that the appropriate officers of the companies, following the requirements of the New Jersey statute filed the certificates with the appropriate official. However, this point need not be stressed to conclusion. Possibly all that was meant to be admitted was that certain of the statutory procedures were in fact followed. The conclusion that there was a statutory merger can stand upon other bases. The Board’s finding of fact states that the officers of the companies followed the requirements of the statutes of New Jersey in filing their documents relative to the merger and that “The filing of those documents effected the merger of the two corporations.” The New Jersey statutes provide for a certification by the Secretary of State of a copy of the agreement filed and that such certification “shall be evidence of the existence of such new or consolidated corporation.” N.J.S.A. 14:12-3. Such certification is part of the record in this case. Furthermore, we can find no provision under the New Jersey Statutes on “Merger or Consolidation”, N.J.S.A. 14:12-1 et seq., which makes it a prerequisite to a merger that there be a transfer of property as contended by the Commissioner. Section 14:12-5 does provide that when a merger or consolidation is effected “all the rights, privileges, powers and franchises * * * all * * * property [etc.] shall vest in the consolidated corporation as effectually as they were vested in the several and respective former corporations.” However, this falls far short of saying that if the absorbed corporation owned no property, it could not participate in a merger. Were the Commissioner’s contention valid, then it would follow that a “pure” holding company could not become a party to a merger in New Jersey. No statute or decision of that State standing for this proposition has been cited to us; nor have we been able to find any to this effect. We see no basis on which it can be held that the transaction here questioned was not a merger under the New Jersey statutes and, therefore, not a literal compliance with the Act of Congress within the definitions of the New Jersey statutes and within the definitions of Treasury Regulations construing the Act of Congress. Was the Merger a Tax Free Transaction? It is now settled that whether a transaction qualifies as a reorganization under the various Revenue Acts does not turn alone upon compliance with the literal language of the statute. The judicial interpretation has determined that something more may be needed and that, indeed, under some circumstances, something less will do. Our concern in this case is the “something more” since we have concluded that there was a literal compliance. The starting point is Gregory v. Helvering, 1935, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596, 97 A.L.R. 1355. The difference between that case and the one here to be decided is clear. The new corporation was set up for temporary purposes and dissolved when it had accomplished the purpose for which it was created, namely, to get part of the holdings of the old corporation into the hands of its shareholders. A distribution in fact was accomplished and the question was whether having made formal compliance with the statute the distribution escaped classification as a taxable event. Despite the petitioner’s description of the events in the instant case as devious mechanics we see no such situation in this case as that presented in Gregory v. Helvering. The reorganization provisions were enacted to free from the imposition of an income tax purely “paper profits or losses” wherein there is no realization of gain or loss in the business sense but merely the recasting of the same interests in a different form, the tax being postponed to a future date when a more tangible gain or loss is realized. This is recognized by the Treasury Regulations. They state that: “The purpose of the reorganization provisions * * * is to except from the general rule certain specifically described exchanges * * * which effect only a readjustment of continuing interests in property under modified corporate forms. Requisite to a reorganization under the Act are a continuity of the business enterprise under the modified corporate form, * * * continuity of interest therein on the part of those persons who were the owners of the enterprise prior to the reorganization.” In this case we have two corporations established long before the transaction in question, an operating company and a holding company. They desire to get rid of the holding company. The shareholders of the holding company were the majority owners of the operating company. By reason of the plan chosen they received the shares they had theretofore held indirectly through the holding company. There was no conversion into cash on withdrawal. Rather, the entire history of the two corporations reveals that the interests obtained through the merger were to be continuing and the surviving corporation kept on doing business with no change in management or personnel after the merger. We have, then, a genuine transaction in the sense that it was operating upon the situation of the companies as they stood. We have the continuity of uninterrupted corporate existence of the merged company and the interest of all prior owners therein, except, of course, of the dropping out of the holding company. Are there further requirements? Argument for the Commissioner maintains that what has been done is still not enough. The result to be reached through this merger, it is said, could have been reached more directly by an out and out liquidation which, of course, would have been taxable under § 115(c). Granted that the elimination of the holding company as a subject for taxation was a legitimate business object, it does not follow that the method taken in getting rid of it is a tax-free method. We think this gets down to the proposition that if there are two ways of accomplishing a legitimate business result, one of which clearly creates a taxable transaction, one is equally subject to tax liability if he chooses the other unless there is an adequate business reason for the particular method used. We do not think this is the rule of the statute, the Regulations, nor, as we read them, the decisions. The cases cited by the appellant do not extend the Gregory doctrine this far. In each of them, that which was attempted to be accomplished in a tax-free manner was not within the spirit and purpose of the reorganization provisions. On the other hand, in a recent case, the Supreme Court employed the Gregory principle to bring within the reorganization provisions a transaction which technically could have been excluded where basically there was present a continuity of interest but in a different form so that the transaction was within the spirit of the exemption provision. These authorities, we believe, support a negative answer to the question posed. Both parties have cited a group of cases arising out of the reorganization of the General Baking Company. While what transpired there as a result of the reorganization of the parent and subsidiary corporations was far more complicated, we find that the principle which withdrew them from the condemnation of Gregory v. Helvering underlies also the present case. As was said in one of those cases, the fact of there being a merger of a holding company with an operating company does not deny it the exemption provided by the Act. Our conclusion is that what took place between these companies was a “reorganization in reality”, to use the language of the court in the Gregory case, and that it complies with the statutes and the decisions under it. The decisions of the Board of Tax Appeals are affirmed. 26 U.S.C.A. Int.Rev.Acts, page 692. Revenue Act of 1934, § 112(g) (1) (A), 26 U.S.C.A. Int.Rev.Acts, page 695. 1941, 44 B.T.A. 881. “10. On the 2nd day of December 1935, the said ‘Agreement of Merger and Consolidation’ was approved by the respective stockholders of Warren Webster and Company and W. F. I. [Webster Finance and Investment Company] in conformity with the general corporation law of the State of New Jersey. “11. On the 5th day of December, 1935, pursuant to the authority granted by the stockholders of Warren Webster and Company and W. F. I. at the meetings referred to in paragraph hereto, marked ‘10’, the appropriate officers of said companies following the requirements of the Statute of New Jersey entitled ‘An Act concerning Corporations (Revision of 1896),’ filed the said ‘Agreement of Merger and Consolidation’ and certificates relative to the vote of the stockholders, hereinbefore referred to as Schedule 3, in the Office of the Secretary of State of New Jersey.” See Leavenworth County Commissioners v. Chicago, Rock Island & Pacific Ry., 1890, 134 U.S. 688, 701, 10 S.Ct. 708, 713, 33 L.Ed. 1064, where the Court was called upon to determine whether a consolidation had been effected. The state statute provided that a certified copy from the office of the Secretary of State of the articles of consolidation would be conclusive evidence of the consolidation. The Supreme Court quoted with approval the language of the lower court to the effect that in a suit between the consolidated corporation and an individual or other corporation “in regard to any matter affecting its rights, its powers, its authority to make contracts, to sue or to be sued, the production of the paper mentioned shall end all inquiry into its existence as a corporation, with such powers as the law confers on it.” In Person & Riegel v. Lipps, 1907, 219 Pa. 99, 67 A. 1081, it was held that a certificate under the seal of the Secretary of the State of New Jersey was competent evidence to establish the fact and the validity of an increase of capital stock by a New Jersey corporation. Helvering v. Alabama Asphaltic Limestone Co., 1942, 315 U.S. 179, 62 S.Ct. 540, 86 L.Ed. —. The facts were these: the taxpayer owned all of the stock of the United Mortgage Corporation which owned 1,000 shares in another corporation. She caused to be organized the Averill Corporation to which the 1000 shares were transferred by United in exchange for its stock going to taxpayer. Six days later Averill was dissolved, the 1,000 shares, its sole asset, being distributed to taxpayer who immediately sold them. Averill never transacted any business. The Gregory case was the subject of criticism (which we do not share) as imposing a requirement not found in the statute. It was therefore argued that it should be limited to the facts of the ease. Rudick, The Problem of Personal Income Tax Avoidance (1940) 7 Law and Cont. Problems, 243, 254; Fahey, Income Tax Definition of “Reorganization” (1939) 39 Col.L.Rev. 933, 936 et seq.; Hendricks, Developments in the Taxation of Reorganizations .(1934) 34 Col.L.Rev. 1198, 1205 et seq., discussing the decision of the Circuit Court of Appeals, Helvering v. Gregory, 2 Cir., 1934, 69 F.2d 809 which was affirmed by the Supreme Court, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596, 97 A.L.R. 1355. But cf. Note, Corporate Reorganization to Avoid Payment of Income Tax (1935) 45 Yale L.J. 134 and see Magill, Taxable Income (1936) p. 141. See Seidman’s Legislative History of Federal Income Tax Laws (1938) pp. 795, 796, 332-340. Treas.Reg. 86, Art. 112(g)-!. See Chisholm v. Commissioner of Internal Revenue, 2 Cir., 1935, 79 F.2d 14, 15, 101 A.L.R. 200, certiorari denied, 1935, 296 U.S. 641, 56 S.Ct. 174, 80 L.Ed. 456. Petitioner and four others transferred all the shares of an engineering corporation to a partnership which then performed the option given to another corporation to purchase them. After the sale the partnership continued to do business. The Commissioner sought to tax them then upon the sale, contending that the transaction was governed by Gregory v. Helvering. The court did not agree and said of the Gregory case, “the incorporators adopted the usual form for creating business corporations; but their intent, or purpose, was merely to draught the papers, in fact not to create corporations as the court understood that word. That was the purpose which defeated their exemption, not the accompanying purpose to escape taxation; that purpose was legally neutral. Had they really meant to conduct a business by means of the two reorganized companies, they would have escaped whatever other aim they might have had, whether to avoid taxes, or to regenerate the world.” Revenue Act of 1934, 26 U.S.C.A. Int.Rev.Aets, page 703. The respondents assert that there were numerous additional objects: 1. The original purpose for the existence of the holding company, that the control of the operating company remain in those most active in its management, had been served and could be further fulfilled more satisfactorily by trusts and other means. 2. Holding companies were being regarded unfavorably by current legislation and taxing acts. This is in accordance with the Board’s statement. 3. Corporate expenses, other than taxes would be decreased if there were only one corporation. 4. A merger would be the most appropriate means of solving some of the problems encountered because some of the holding company stock was held by fiduciaries. 5. The powers of the operating company had to, for business reasons, be enlarged and a merger would accomplish this. Query, whether the first and fourth reasons may be termed “business” exigencies. As to the fifth, the Board stated that the merger did accomplish this. However, as the Commissioner pointed out, it does not appear that this is the fact. The merger agreement provided “The objects and purposes * * * shall include and be the objects and purposes for which Warren Webster and Company, * * * was formed, * * * and shall include the following objects: [enumerating]”. This of course does not disclose what the powers of the operating company had been theretofore nor that the powers enumerated are new. Nor do other facts in the record supply this information. In considering such a question reliance is not to be placed too much on general statements either as to liability or non-liability, although equitable dicta are easily found. For example, “Where for legitimate business purposes a person has a choice of conducting his business transactions without tax liability, such a liability does not arise simply because it would have arisen if another process had been chosen.” Commissioner of Internal Revenue v. Kolb, 9 Cir., 1938, 100 F.2d 920, 926. One may match the petitioner’s quotation that “A given result at the end of a straight path is not made a different result because reached by following a devious path.” (from the Minnesota Tea Co. v. Helvering case, infra, 302 U.S. at page 613, 58 S.Ct. at page 395, 82 L.Ed. 474;) with “The legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted.” (from Gregory v. Helvering, supra, 293 U.S. at page 469, 55 S.Ct. at page 267, 79 L.Ed. 596, 97 A.L.R. 1355). Cf. Magill, Taxable Income (1936) 141, f.n. 49. Thus in two of the cases, there was rather than a distribution to shareholders, a payment to creditors. Minnesota Tea Co. v. Helvering, 1938, 302 U.S. 609, 58 S.Ct. 393, 82 L.Ed. 474; United States v. Hendler, 1938, 303 U.S. 564, 58 S.Ct. 655, 82 L.Ed. 1018. In Helvering v. Elkhorn Coal Co., 4 Cir., 1937, 95 F.2d 732, certiorari denied, 1938, 305 U. S. 605, 59 S.Ct. 65, 83 L.Ed. 384, rehearing denied, 1938, 305 U.S. 670, 59 S.Ct. 141, 83 L.Ed. 435, there was no transfer of all the assets as required by the Revenue Act. In two other cases, there was lacking the continuity of interest which would bring the transaction within the exemption provisions for the courts found that what really had been accomplished was a sale of assets. Morgan Mfg. Co. v. Commissioner of Internal Revenue, 4 Cir., 1941, 124 F.2d 602; Worcester Salt Co. v. Commissioner of Internal Revenue, 2 Cir., 1935, 75 F.2d 251. In Starr v. Commissioner of Internal Revenue, 4 Cir., 1936, 82 F.2d 964, certiorari denied, 1936, 298 U.S. 680, 56 S.Ct. 948, 80 L.Ed. 1401, the device chosen was such as to enable the shareholders to convert their interests into cash and thus realize a tangible profit. Helvering v. Alabama Asphaltic Limestone Co., 1942, 315 U.S. 179, 183, 62 S.Ct. 540, 86 L.Ed. 775. A creditors’ committee had acquired the assets of an insolvent corporation and transferred them to a new corporation for its stock which went to the creditors of the old corporation. The Court held that there was a continuity of interest in the creditors from the time they instituted bankruptcy proceedings against the insolvent and that the transitional stage of the creditor’s committee did not disrupt that continuity. Helvering v. Leary, 4 Cir., 1938, 93 F.2d 826; Helvering v. Schoellkopf, 2 Cir., 1938, 100 F.2d 415; Commissioner of Internal Revenue v. Kolb, 9 Cir., 1938, 100 F.2d 920; Commissioner of Internal Revenue v. Whitaker, 1 Cir., 1938, 101 F.2d 640; Commissioner of Internal Revenue v. Food Industries, Inc., 3 Cir., 1939, 101 F.2d 748. In Helvering v. Leary, supra, the court said at page 828 of 93 F.2d: “The interest of the stockholders of the Maryland Corporation in the business owned by the New York Company and the Maryland Corporation, the holding company, remained, with but slight change, in the property owned by the New York Company after the plan was earned out. It seems clear that such a situation results, in its legal effect, in a reorganization within not only the letter but the spirit of the taxing statute and brings the transaction within that class which Congress plainly intended not to tax until the stockholder finally disposed of his stock and his profit was definitely ascertainable. There was no change in the taxpayer’s position with respect to the ownership of the property but merely a change in the form of the stock certificates held by him.” See also f.n. 19 infra. Helvering v. Schoellkopf, supra, 100 F.2d at page 417: “The truth is that the liquidation of a holding company is one of those corporate changes which might properly have been made exempt anyway; and indeed §§ 371, 372 and 373 of the Act of 1938, 26 U.S.C.A. ’ §§ 330-330b [26 U.S.C.A. Int.Rev.Code §§ 371-373], have now made it so in certain cases. The underlying purpose of the exemptions in § 112 is to disregard corporate manipulations which do not substantially affect the shareholders’ interest in the properties. Apparently the liquidation of a holding company was not thought of as such a case, and for that reason it was made taxable; but we need not wince when this hiatus is filled by what appears to be an insufficient occasion.” Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:

sc_casesource

158

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. PHILLIPS CHEMICAL CO. v. DUMAS INDEPENDENT SCHOOL DISTRICT. No. 40. Argued November 17-18, 1959. Decided February 23, 1960. Clark M. Clifford argued the cause for appellant. With him on the brief were Carson M. Glass, Rayburn L. Foster, Harry D. Turner, C. J. Roberts and Thomas M. Blume. Earnest L. Langley argued the cause for appellee. With him on the brief were James W. Witherspoon, John D. Aikin and Wayne E. Thomas. John F. Davis argued the cause for the United States, as amicus curiae, by invitation of the Court. On the. brief were Solicitor General Rankin, Assistant Attorney General Rice and Myron C. Baum. Jack N. Price, Assistant Attorney General of Texas, . argued the cause pro hac vice, by special leave of' Court, on behalf of the State of Texas, as amicus curiae, in support of appellee. With him on the brief were Will Wilson, Attorney General of Texas, and W. V. Geppert, Executive Assistant Attorney General. Mr. Chief Justice Warren delivered the opinion of the Court. In this case, among other issues which we need not reach, we are asked to decide whether a Texas tax statute, Article 5248 of the Revised Civil Statutes of Texas, as amended in 1950, discriminates unconstitutionally against the United States and those with whom it deals. We hold that it does. Appellant, Phillips Chemical Company, engages in the commercial manufacture of ammonia on valuable industrial property leased from the Federal Government in Moore County, Texas. The lease, executed in 1948 pursuant to the Military Leasing Act of 1947, 61 Stat. 774, is for a primary term of 15 years and calls for an annual rental of over $1,000,000. However, it reserves to the Government the right to terminate upon 30 days’ notice in the event of a national emergency and upon 90 days’ notice in the event of a sale of the property. In 1954, appellee, Dumas Independent School District, assessed a tax against Phillips for the years 1949 through 1954. The tax, measured by the estimated full value of the leased premises, was assessed in accordance with the District’s ordinary ad valorem tax procedures. When the District assessed the tax, Phillips commenced the present action in the state courts to enjoin its collection. Phillips contested both the District’s right to levy the tax and the valuation figure upon which the amount of the tax was calculated. The latter issue was severed by the trial court for later decision and is not involved in this appeal. The lower state courts denied relief for the years subsequent to the effective date of the 1950 amendment to Article 5248, and on writ of error the Supreme Court of Texas, by a divided court, affirmed. 159 Tex. -, 316 S. W. 2d 382. Phillips appealed from the decision, and we noted probable, jurisdiction. 359 U. S. 987. The District’s power to levy the tax was found to lie in amended Article 5248. Before 1950, Article 5248 provided a general tax exemption for land and improvements “held, owned, used and occupied by the United States” for public purposes. In 1950, the Texas Legislature added two provisions to Article 5248, one providing for taxation of privately owned-personal property located on federal lands, and the other reading as follows: “[Pjrovided, further, that any portion of said lands and improvements which is used and occupied by any person, firm, association of persons or corporation in its private capacity, or which is being used or occupied in the conduct of any private business or enterprise, shall be subject to taxation by this State and its political subdivisions.” As construed by a majority of the Texas court, this provision is an affirmative grant of authority to the State and its political subdivisions to tax private users of government realty. While the subject ci the tax is the right to the use of the property, i. e., the leasehold, its measure is apparently the value of the fee. The constitutionality of the provision, thus construed, depended upon the court’s interpretation of our decisions in the Michigan cases two Terms ago, where we held that a State might levy a tax on the private use of government property,, measured by the full value of the property. . United States v. City of Detroit, 355 U. S. 466; United States v. Township of Muskegon, 355 U. S. 484; cf. City of Detroit v. Murray Corp., 355 U. S. 489. However, three members of the Texas court, joined by a fourth on petition for rehearing, were of the opinion that under the majority’s construction the statute discriminates unconstitutionally against the United States and its lessees. Their conclusion rested on the fact that Article 7173 of the Revised Civil Statutes of Texas imposes a distinctly lesser burden on similarly situated lessees of exempt property owned by the State and its political subdivisions. We agree with the dissenters’ conclusion. Article 7173 is the only Texas statute other than Article 5248 which authorizes a tax on lessees. It provides in-part that: “Property held under a lease for a term of three years or more, or held under a contract for the purchase thereof, belonging to this State, or that is exempt by law from taxation in the hands of- the owner thereof, shall be considered for all the purposes of taxation, as the property of the person so holding the same, except as otherwise specially provided by law.” As construed by the Texas courts, Article 7173 is less burdensome than Article 5248 in three respects. First, the measure of a tax under Article 7173 is not the full value of leased tax-exempt premises, as it apparently is under Article 5248, but only the price the taxable lease-, hold would bring at a fair voluntary sale for cash — the value of the leasehold itself. Second, by its very terms, Article 7173 imposes no tax on a lessee whose lease is for a term of less than three years. Finally, and crucial here, a lease for three years or longer but subject — like-Phillips^ — to. termination at the lessor’s option in the event of a sale is not “a lease for a term of three years or moré” for purposes of Article 7173. Trammell v. Faught, 74 Tex. 557, 12 S. W. 317. Therefore, because of the termination provisions in its lease, Phillips could not be taxed under Article 7173. Although Article 7173 is, in terms, applicable to all lessees who hold tax-exempt property under a lease for a term of three years or more, it appears that only lessees of public property fall within this class in Texas. Tax exemptions for real property owned by private organizations — charities, churches, and similar entities — do not survive a lease to a business lessee. The full value of the leased property becomes taxable to the owner, and the lessee’s indirect burden consequently is as heavy as the burden imposed directly on federal lessees by Article 5248. Under these circumstances, there appears to be no discrimination between the Government’s lessees and lessees of private property. However, all lessees of exempt public lands would appear to belong to the class defined by Article 7173. In view of the fact that lessees in this class are taxed because they use exempt property for a nonexempt purpose, they appear to be similarly situated and presumably should be taxed alike. Yet by the amendment of Article 5248, the Texas Legislature segregated federal lessees and imposed on them a heavier tax burden than is imposed on the other members of the class by Article 7173. In this case the resulting difference in tax, attendant upon the identity of Phillips’ lessor, is extreme; the State and the School District concede that Phillips would not be taxed at all if its. lessor were the State or one of its political subdivisions. instead of the Federal Government. The discrimination against the United States and its lessee seems apparent. The question, however, is whether it can be justified. Phillips argues that because Article 5248 applies only to private users of federal property, it is invalid for that reason, without more. For this argument, it relies on Miller v. Milwaukee, 272 U. S. 713; see also Macallen.Co. v. Massachusetts, 279 U. S. 620. Macollen might be deemed to support the argument, but to the extent that it dóes, it no longer has precedential value. See United States v. City of Detroit, supra, at 472, n. 2. Miller was a rather, different case. In Miller it was thought that a State had attempted indirectly to levy a tax on exempt .income from government bonds. Phillips’ use of the Government’s property, by way of contrast, is not exempt. 10 U. S. C. § 2667 (e); United States v. City of Detroit, supra: It is true that in Miller the ostensible incidence of the tax — shareholders’ income from corporate dividends — was not itself exempt, but the measure of the tax excluded all income not attributable to federal bonds owned by the corporation; that was the defect in the tax. See Pacific Co. v. Johnson, 285 U. S. 480, 493. Therefore, in practical operation, the tax was either an indirect tax on the exempt income, ór a discriminatory tax on shareholders of corporations which, as bondholders, dealt with the Government. Thus, if Miller has any relevance here, it is only to the extent that it may support the proposition that a State may not single out those who deal with the Government, in one capacity or another,, for a tax burden not imposed on others similarly situated. A determination that Article 5248 is invalid, under this test, cannot rest merely on an examination of that article. It does not operate in a vacuum. First, it is necessary to determine how other taxpayers similarly situated are treated. Such a determination requires “an examination of the whole tax structure of the state.” Cf. Tradesmens National Bank v. Oklahoma Tax Comm’n, 309 U. S. 560, 568. Although Macollen may have departed somewhat from this rule, nothing in Miller, at least as it has been interpreted in later cases,' should be read as indicating that less is required. Cf. Educational Films Corp. v. Ward, 282 U. S. 379; Pacific Co. v. Johnson, 285 U. S. 480. Therefore, we must focus on the nature of the classification erected by Articles 5248 and 7173. The imposition of a heavier tax burden on lessees of federal property than is imposed on lessees of other exempt public property must be justified by significant differences between the two classes: The School District addresses.this problem, essentially, as-one of equal protection, and argues that we must uphold the classification, though apparently discriminatory, “if any state of facts reasonably can be conceived that would sustain it.” Allied Stores v. Bowers, 358 U. S. 522, 528. The argument, in this context, turns on three supposed differences between the two classes. First, the School District and the State say that the State can collect in rent what it loses in taxes from its own lessees — something it cannot do, of course, with the Federal Government’s lessees. Second, they argue that the State may legitimately ■ foster its own interests by adopting measures which facilitate the leasing of its property. Finally, they claim that because of its allegedly greater magnitude, federal leasing of exempt land has a more serious impact on the finances and operations of local government than does the State’s own leasing activities. None of these considerations provides solid support for the classification. It is- undoubtedly true, as a general proposition, that the State is free to adopt measures reasonably designed to facilitate the leasing of its own land. But if the incentive which it provides is in the form of a reduction in tax which discriminates against the Gov- ' ernment’s lessees, the question remains, is it permissible? Likewise, it is not enough to say that the State can make up in' rent what it loses in taxes from its lessees. What the State’s political subdivisions lose in taxes from the State’s lessees cannot be made up in this fashion. Other local taxpayers — including the Government’s lessees — must make up the difference. Nor is the classification here supported by the allegedly serious impact of federal leasing, as contrasted with state leasing, on the operations of local government. .It is claimed, in this respect, that neither the State nor its subdivisions lease property exactly comparable — in size, value, or number of employees involved — to the ordnance works leased by Phillips from the Government. However, the classification erected by Article 5248 is not based on such factors. Article 5248 imposes its burdens on atl lessees of federal property. It is conceded that the State and its subdivisions lease valuable property to commercial and business enterprises, as does the Federal Government. Warehouse facilities are an example.- But the identity of the exempt lessor bears no relation to the impact on local government of otherwise identical leasing activities. Still, the variant tax consequences to the lessee, under Article 7173 on the one hand and Article 5248 on the other, differ, widely. It is true that perfection is by no means required under the equal protection test of permissible classification.. But we have made it clear, in the equal protection cases, that our decisions in that field are not necessarily controlling where problems of intergovernmental tax immunity are involved. In Allied Stores v. Bowers, supra, for example, we noted that the State was “dealing with [its] proper domestic concerns, and not trenching upon the prerogatives of the National Government.” 358 U. S., at 526. When such is the-case, the State’s power to classify is,' indeed, extremely broad, and its discretion is limited only by constitutional rights and by the doctrine that a classification may not be palpably arbitrary. Id., at 526-528. But where taxation of the private use of the Government’s property is concerned, the Government’s interests must be weighed in the balance. Accordingly, it does not seem toó much to require that the State treat those who deal with the Government as well as it treats those with whom it deals itself. Compare Esso Standard Oil Co. v. Evans, 345 U. S. 495, 500. Nevertheless, it is claimed that the classification here is supported by our decision in United States v. City of Detroit, supra, because of the assertedly similar nature of the classification created by the statute involved in that case. The Michigan statute, although applicable generally to lessees of exempt property, contained an exception for property owned by state-supported educational institutions. Appellee’S argument, essentially, is that the exemption of lessees of- school-owned property from the Michigan statute supports the imposition here of a heavier tax on federal lessees than is imposed on lessees of other exempt public property, in general. This argument misconceives the scope of the Michigan decisions. In those cases we did not decide — in fact, we were not asked to decide — whether the exemption of school-owned property rendered the statute discriminatory. Neither the Government nor its lessees, to whom the statute was applicable, claimed discrimination of this character. Since the issue was not ráised, the basis for the separate classification of property owned by schools was not examined. Therefore, the Michigan cases shed no light on the classification problem here. None of these arguments, urged in support of the Texas classification, seems adequate to justify what appears to be so substantial and transparent a discrimination against the Government and its lessees. Here, Phillips is taxed under Article 5248 on the full value of the real property which it leases from the Federal Government, while businesses with similar leases, using exempt property .owned by the State and its political subdivisions, are not taxed on their leaseholds at all. The differences between the two classes, at least when the Government’s interests are weighed in the balance, seem too impalpable to warrant such a gross differentiation. It follows that Article 5248, as applied in this case, discriminates unconstitutionally against the United States and its lessee. As we had occasion to state, quite recently, it still remains true, as it has from the time of M’Culloch v. Maryland, 4 Wheat. 316, that a state tax may not discriminate against the Government or those with whom it deals. See United States v. City of Detroit, supra, at 473. Therefore, this tax may not be exacted. Reversed. Mr. Justice Frankfurter concurs in the result. Vernon’s Tex. Rev. Civ. Stat., 1948 (Supp. 1950), Art. 5248. The amendatory Act is Tex. Laws, 1st C. S. 1950, c. 37. The Court of Civil Appeals thought that the tax should be limited to the value of Phillips’ leasehold, 307 S. W. 2d 605, 609, while the Texas Supreme Court expressed the view indicated above. However, as the State points out, these statements in the opinions of the two appellate courts were apparently dicta, for the trial court decided only the bare question of taxability, reserving for later a decision on the measure and amount of the tax. The measure of the tax, however, is not presently critical, for, as will be indicated, the levy of any tax in the circumstances of this case appears to discriminate against the Government and Phillips. Vernon’s Tex. Rev. Civ. Stat., ,1948, Art. 7173. Vernon’s Tex. Rev. Civ. Stat., 1948, Art. 7174; State v. Taylor & Kelley, 72 Tex. 297, 12 S. W. 176; cf. Daugherty v. Thompson, 71 Tex. 192, 9 S. W. 99; Taylor v. Robinson, 72 Tex. 364, 10 S. W. 245. Tex. Const., Art. VIII, § 2; Morris v. Masons, 68 Tex. 698, 5 S. W. 519; State v. Settegast, 254 S. W. 925 (Tex. Comm. App.); cf. Houston v. Scottish Rite Benev. Assn., 111 Tex. 191, 230 S. W. 978; Markham Hospital v. Longview, 191 S. W. 2d 695 (Tex. Civ. App.). Although public lands in general are exempt from state and local taxation in Texas, Tex. Const., Art. XI, § 9; Vernon’s Tex. Rev. Civ. Stat., 1948, Art. 7150 (4), there are certain conditions and exceptions to the exemption. The exemption does not survive a lease if the “public purpose” of the property is abandoned. Abilene v. State, 113 S. W. 2d 631 (Tex. Civ. App.); State v. Beaumont, 161 S. W. 2d 344 (Tex. Civ. App.). The School District concedes that this condition is met in this case because the lease reserves to the United States the right to terminate in the event of a national emergency. Exceptions to the general exemption of land owned by the State and its political subdivisions are created by statutes expressly providing for the taxation of certain types of public property by specific taxing authorities. E. g., school-owned agricultural and grazing land is subject to local taxation, Tex. Const., Art. VII, § 6a; Vernon’s Tex. Rev. Civ. Stat., 1948, Art. 7150a; state farms on which convict labor is employed are subject to county and school taxation, Vernon’s Tex. Rev. Civ. Stat., 1948, Art. 7150 (4); prison property is subject to school taxation, Vernon’s Tex. Rev. Civ. Stat., 1948, Arts. 7150 (17) and (18); and land which forms a part of the endowment of the University of Texas is subject to county taxation, Vernon’s Tex. Rev. Civ. Stat., 1948, Art. 7150c. Although these exceptions to the general nontaxability of public lands reduce th,e extent of the discrimination created by Article 5248, they obviously do not eliminate it. During the years in question, the leasehold was taxable under § 6 of the Military Leasing Act of 1947, 61 Stat. 774, the predecessor • of the provision now codified as 10 U. S. C. § 2667 (e). Section 6 provided in part that “[tjhe lessee’s interest, made or created pursuant to the provisions of this Act, shall be made subject to State or local taxation.” See, e. g., Op. Tex. Atty. Gen., No. WW-531, Dec. 9, 1958. Mich. Acts 1953, No. 189, now compiled in 6 Mich. Stat. Ann., 1950 (1957 Cum. Supp.), §§ 7.7 (5) and 7.7 (6). See United States v. City of Detroit, supra, at 467, n. 1. “Under Michigan law this means persons who use property-owned by the Federal Government, the State, its political subdivisions, churches, charitable organizations and a great host of other entities.” United States v. City of Detroit, supra, at 473. In its brief, the Government stated that the exception was not pertinent to its argument. Its- discrimination argument rested on the proposition that the Michigan, statute was, in reality, “special legislation” directed at government property. The Government argued that this purpose was manifested by the fact that the statute contained an exception for cases in which payments had been, made by the United States “in lieu of taxes in amounts equivalent to taxes which might otherwise be lawfully assessed.” It was argued that the purpose thus manifested was 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. 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Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims Answer:

songer_casetyp1_2-3-1

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 "civil rights - civil rights claims by prisoners and those accused of crimes". Richard GOODWIN et al., Plaintiffs-Appellees, v. Russell G. OSWALD, Commissioner of Correctional Services of the State of New York, et al., Defendants-Appellants. No. 776, Docket 72-1307. United States Court of Appeals, Second Circuit. Argued April 13, 1972. Decided June 19, 1972. Judith A. Gordon, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of N. Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., of counsel), for defendants-appellants. Barbara A. Shapiro, New York City (William E. Hellerstein, The Legal Aid Society, Richard A. Greenberg, New York City, of counsel), for plaintiffs-ap-pellees. Jack Greenberg and Stanley A. Bass, New York City, on the brief for NAACP Legal Defense and Educational Fund, Inc., and National Office for the Rights of the Indigent as amici curiae. Before FRIENDLY, Chief Judge, and SMITH and OAKES, Circuit Judges. J. JOSEPH SMITH, Circuit Judge: This appeal raises interesting and difficult questions concerning the balance to be struck between prisoners’ sixth and fourteenth amendment rights and the need to allow prison officials discretion to exclude communications they feel will endanger their institutions. The United States District Court for the Southern District of New York, Charles Tenney, Judge, granted a preliminary injunction to plaintiffs, prisoner-members of the Prisoners’ Labor Union at Green Haven (“the union”) holding that they must be allowed to receive a letter from their attorneys containing legal advice about the formation of the union and efforts to have it officially certified, and all letters from the Legal Aid Society, in accordance with the provisions of Administrative Bulletin No. 20 (January 31, 1972) of the Department of Correctional Services. The order was not given effect, as this court granted a stay and expedited the appeal of the Commissioner of Corrections and the Superintendent of Green Haven, who claim that the court below erred in his estimate of the effect the letters would have and abused his discretion in granting preliminary relief and allowing the letters to enter the allegedly tense prison. We find error only in the extent of relief granted and modify and affirm the grant of preliminary injunction. The case presents three basic issues: (1) whether the court was incorrect in finding, on constitutional grounds, that the officials were unjustified in withholding the letters; (2) whether it was proper to require obedience to Administrative Regulation No. 20, which sets a standard for censorship of legal mail that is more lenient than constitutionally required; and (3) whether the conditions which justify issuance of a preliminary injunction exist. We are not faced on this appeal with the question of the constitutionality or legality of unions or other organizations of prisoners, but only with the right of prisoners to receive communications from counsel whose advice has been sought on that question. We do not therefore intimate any views as to the legality, desirability, dangers or possible benefits of any type of prisoner collective bargaining on prison working conditions or of any other organized representation of prisoners. The inmates at Green Haven, a maximum security institution at Stormville, New York, holding 1900-2000 men, began during the summer of 1971 to organize a labor union to act on their behalf in connection with conditions of labor in the prison. They contacted the Legal Aid Society’s Prisoners’ Rights Project for assistance in this endeavor. The Project was told, when it inquired of the Commissioner, that prisoners are not in an employee-employer relationship with the Department of Corrections and that the Department would not recognize any inmate labor organization because “it would be contrary to the best interests of the Department and of the general welfare of the prison population.” In December, 1971, the Project received the signatures of approximately 800 inmates requesting the attorneys to draft a union constitution and represent them in union-related matters. The constitution was sent to the inmates; though it may have been signed and become effective, by its own terms, the union has thus far taken no action. Legal Aid also provided authorization forms to sign up new union members. The communication which is the subject of this suit was sent by Legal Aid during the week of February 7, 1972 to all those inmates who had signed up as members of the union but to no one else. In the packet sent to each inmate the main document was a seven-page letter detailing legal steps being taken on behalf of the union and giving legal advice on a number of union matters. A copy of the letter to the Commissioner requesting recognition of the union, the union constitution, and press releases issued February 7 announcing the formation of the union and commitments of support for it by prominent individuals, were included. On February 9, the Commissioner told Legal Aid that he would deny recognition to the union; a week later he informed the Society that he had not and would not deliver the February 7 letters to the 980 addressees. Apparently, fifteen of the letters had arrived unsealed and were examined by prison officials; on the basis of this scrutiny the authorities had decided to withhold the letters. The next day, the 18th, Legal Aid filed a petition with the Public Employees Relations Board requesting certification of the union as collective bargaining agent for the prisoners. The present complaint was filed on February 23; the action was brought under 42 U.S.C. § 1983 and its jurisdictional complement 28 U.S.C. § 1343, and plaintiffs requested a preliminary injunction ordering the defendants to deliver the communications from their attorneys. Affidavits were submitted to the court by both sides; neither requested an evidentiary hearing. The defendants argued that their action was justified because the formation of a union was against prison policy and would jeopardize their control of the institution. They interpreted the letter as a declaration that the union was “operational” and as an incitement to “concerted activity” that would present a clear and present danger of disruption to the institution. They anticipated that if the letters were delivered, and they were then obliged to burst the balloon of rising expectations by proscribing union activity, they would subject themselves to danger. The court found that the letter was a communication of legal advice, not a call to illegal action, and that its optimism about the formation of a union was carefully hedged with cautionary instructions to obey all prison rules in the interim, which might be lengthy, before the union was certified and could negotiate with prison officials. The court held that the letter came within the “legal mail” classification of Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971), cert. denied, sub nom. Oswald, Correction Commissioner et al. v. Sostre, 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972), and neither violated the standards applicable to such mail nor presented a clear and present danger to the security of the institution. The court felt that the resort to legal methods of challenging the prison’s refusal to countenance unions and of improving the prisoners’ status was a constructive and rehabilitative rather than a dangerous move. The withholding also violated the Commissioner’s own Administrative Regulation No. 20, and the court ordered that rule followed in the future. He held the class of all inmates proper under Rule 23(b) (2). He was not entirely clear on the issues of irreparable injury and balance of hardships. The only issues for this court are whether the court made clearly erroneous findings of fact or abused his discretion in ordering the warden to deliver the letters from Legal Aid and to abide by his mail regulation in the future. The court’s easy characterization of the Legal Aid letter as pure legal advice may be open to question, as it was somewhat more ambiguous than that, but we hold that he was quite correct in his assessment of the appropriate legal standard and his application of it to the facts of the case. The main letter from the Prisoners’ Rights Project attorneys is addressed to “Dear Union Member” and begins by remarking on the public announcement of that day and by noting the possibility of affiliation with already existing unions. The letter goes on: “Now that your union is ready to function we have been requested to provide further legal advice as to the role it can play, how it will operate, and how to deal with problems that may arise.” The letter continues with a recitation of efforts to induce the Commissioner to recognize the union as the collective bargaining agent for the inmates; if he denies it recognition, the attorneys state that they will file a petition with the Public Employees Relations Board (PERB). The letter in general and the above sentences in particular had a positive tone about the probable outcome of the PERB proceeding and the chance that the union would be functional in the relatively near future that undoubtedly seemed unwarranted and threatening to the state. The letter advised inmates that it was crucial that they obey all institutional rules during the certification process before PERB and, if necessary, in the courts. The letter goes on to describe the issues the union would treat were it certified ; certain of these paragraphs have a note, once again, of confident assumption that the recognition of the union is an event whose occurrence is quite certain rather than merely marginally possible. Most of the sentences, however, use the verb “would” rather than “will,” thus keeping the tone conditional. The letter mentions the fact that the prison officials have not objected to solicitation of union members over the preceding months and presents the Project’s view on why a union would serve the interests of the inmates more effectively than a liaison committee serving at the discretion of the administration. The letter ends with a warning that should the administration resist the union, the process of obtaining recognition will be long and arduous; the belief expressed is that the union “will eventually succeed” rather than that it will begin negotiations tomorrow. The constitution sets forth as union goals the advancement of the economic, political, social and cultural interests of the prisoners, the adoption of laws increasing the welfare of prisoners, and the equalization of the rights of prison labor and free labor by expansion and recognition of the former. There are clauses on dues, meetings, and other routine matters. The press releases raise no problems. Before discussing the specific factors operative in this situation, we review the constitutional context in which the claims of the plaintiffs arise. As convicted prisoners, they are denied the full panoply of constitutional rights which citizens normally enjoy. But among the basic rights which they do retain in prison are certain of the first amendment freedoms and the sixth and fourteenth amendment right of access to the courts. It is the latter right which is principally involved here, although there are first amendment overtones, recognized by the lower court, in this situation. The right of a prisoner to access to the courts was first articulated by the Supreme Court in Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941). Since then, the boundaries of the right has been further delineated; a necessary concomitant to the right of access is the right to assistance of counsel. See, e. g., McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed. 2d 718 (1969); Gilmore v. Lynch, 319 F.Supp. 105 (N.D.Cal.), aff’d sub nom. Younger v. Gilmore, 404 U.S. 15, 92 S. Ct. 250, 30 L.Ed.2d 142 (1971). In turn, the provision of effective assistance requires the opportunity for confidential communication between attorney and client on pending litigation and related legal issues. Coleman v. Peyton, 362 F.2d 905 (4th Cir.), cert. denied, 385 U.S. 905, 87 S.Ct. 216, 17 L.Ed.2d 135 (1966); McCloskey v. Maryland, 337 F.2d 72 (4th Cir. 1966); Carothers v. Follette, 314 F.Supp. 1014 (S.D.N.Y. 1970); Fulwood v. Clemmer, 206 F. Supp. 370 (D.D.C.1962). This court and others have recognized the primary importance of mail in this attorney-client relationship and have granted it protection from interference by prison staff in all but extraordinary circumstances. Sostre v. McGinnis, supra; Nolan v. Scafati, 430 F.2d 548 (1st Cir. 1970); McDonough v. Director of Patuxent, 429 F.2d 1189 (4th Cir. 1970); Smith v. Robbins, 328 F.Supp. 162 (D.Me.1971), aff’d 454 F.2d 696 (1st Cir. 1972); Marsh v. Moore, supra; Palmigiano v. Travisono, 317 F.Supp. 776 (D.R.I. 1970). See Corby v. Conboy, 457 F.2d 251 (2d Cir. 1972); Wright v. McMann, 460 F.2d 126 (2d Cir. 1972). Cf. Coplon v. United States, 89 U.S.App.D.C. 103, 191 F.2d 749 (1951), cert. denied, 342 U.S. 926, 72 S.Ct. 363, 96 L.Ed. 690 (1952). The standard which applies to attorney-client mail in this circuit was formulated in Sostre v. McGinnis, supra; in distinction to other correspondence, which may be read and censored for material which inhibits or threatens rehabilitation, security, or other professed goals of incarceration, mail to or from attorneys is rarely proscribed: The generous scope of discretion accorded prison authorities also heightens the importance of permitting free and uninhibited access by prisoners to both administrative and judicial forums for the purpose of seeking redress of grievances against state officers. The importance of these rights of access suggests the need for guidelines both generous and specific enough to afford protection against the reality or the chilling threat of administrative infringement. Thus, we do not believe it would unnecessarily hamper prison administration to forbid prison authorities to delete material from, withhold or refuse to mail a communication between an inmate and his attorney (citations omitted) or any court . . . unless it can be demonstrated that a prisoner has clearly abused his rights of access. [I]f a communication is properly intended to advance a prisoner’s effort to secure redress for alleged abuses, no interest would justify deleting material thought by prison authorities to be irrelevant to the prisoner’s complaint. The chance that an official will improperly substitute his judgment for that of the correspondent then preponderates. For similar reasons, prison officials may not withhold . . . material from otherwise protected communications merely because they believe the allegations to be repetitious, false, or malicious. [442 F.2d at 200-201] The state argues that under any of the relevant tests the letter was properly excluded from the prison. Citing Roberts v. Pepersack, 256 F.Supp. 415 (D. Md.1966), which held that it was permissible to punish an inmate who had called for a demonstration against prison conditions, and McCloskey v. Maryland, 337 F.2d 72 (4th Cir. 1964), in which similar restriction was held permissible even though the advocacy was not a call to action but merely a dissemination of political or social views, the defendants urge that this is an analogous situation in which the first and sixth amendment rights of the inmates may be curtailed in order to prevent an incitement to concerted effort to evade institutional rules. Nor, defendants claim, can this threatening behavior hide behind a purported attorney-client relationship when in essence it is not bona fide legal advice. See Sostre v. McGinnis, 442 F.2d at 200; McCloskey v. Maryland, 337 F.2d at 74. The answer to the question of which category the letter from Legal Aid falls into — whether it urged illegal concerted action, was merely correspondence by interested persons, or was communication to clients giving legal advice on actions intended to challenge and improve the conditions of confinement-— seems to us reasonably clear, although because prison unions are very new we find no cases directly on point. Most of the cases deal with representation in criminal cases, on habeas corpus petitions, or in civil rights actions, under 42 U.S.C. § 1983. The attorneys here might be said to be taking action analogous, though on a larger scale, to a section 1983 action, trying to establish a right, possibly derived from the first and thirteenth amendments, for the prisoners to associate and try to lessen the harshness of prison work conditions and contribute to the success of training and rehabilitation programs. Nor does the fact that the union was declared “operational” remove this letter from the realm of advice, for there is a valid and significant distinction between the existence of the union and its certification as an operating bargaining agent. To apply to PERB, the union had to be in existence, and the letter made it clear that the group could not deal with the officials yet, that the certification was a potentially lengthy legal proceeding, and that thinking about the issues the union might eventually raise (while obeying all prison rules) was the only concerted action inmates ought to take at present. They were not urged to change their work habits or to present any demands to the administration. A finding that this is not propaganda or incitement cannot be termed clearly erroneous. Under the test for attorney-client mail, the state must show clearly an abuse of access in order to justify restriction. Defendants claim that such an abuse exists here, because the letter advocated an “unlawful scheme,” one instance mentioned by the Sostre court in which some restriction would be permissible. The contention that an application for recognition of the union and communication with one’s clients preparatory to such application are components of an unlawful scheme seems a misuse of that term. The lawyers were telling the prisoners to utilize lawful, not unlawful channels for the presentation of grievances and were guiding a challenge to a prison rule through orderly procedures. It is difficult to discern in what other fashion the prison would prefer to have the rule examined; it is the only peaceful method by which it can be reviewed by someone other than the Commissioner or his deputy, who are naturally interested in quelling any inmate activity which may arrogate to inmates themselves some decision-making power about the conditions of prison life. Legal Aid points out, as the district court found, the inconsistency between the officials’ tolerance of the solicitation and mailing of authorization forms and the intolerance of a legal opinion which they undoubtedly never expected and with which they vehemently disagree. Given the fact that they allowed the solicitation which raised inmate hopes, their argument about the danger that will result from the disillusionment they will have to cope with on the heels of the Legal Aid letter seems highly disingenuous. They can hardly claim that to allow the prisoners to read a letter will be more disruptive than to deny them all word of the result of their organizational efforts of several months. In fact, the state conceded this point at oral argument; counsel stated that her clients did not object to a letter advising the inmates of the applicable law and recent events, but that the objection to the present letter was that it assumed the union was “operational.” This objection has been disposed of above. Despite the fact that the letter was not within that category of legal mail which constitutes an abuse of access, defendants claim that the existence of a clear and present danger to the security of the institution justifies the exclusion. When such a danger exists, it has been held permissible to restrict even those most basic and “preferred” freedoms of individuals. A standard for such danger in a prison context has been set forth in Fortune Society v. McGinnis, supra n. 3, with which we agree: that in order to justify official interference, the state must show “a compelling state interest centering about prison security, or a clear and present danger of a breach of prison security, * * * or some substantial interference with orderly institutional administration.” 319 F.Supp. at 904. The Commissioner, in an affidavit by an assistant attorney general, claims that the distribution of the letter would impair the orderly administration of the institution by creating an alternate source of authority to challenge the officials. However, the union’s legality is being adjudicated in another proceeding, and the introduction of the letters will not lead irresistibly to that result before the conclusion of that other procedure; it merely keeps the parties to that proceeding informed of its progress and of issues on which they may have to advise counsel. He emphasized his fear of reprisals when, after delivery of the letters, he is obliged to inform the inmates that the union can never exist. As the very issue of its right to negotiate is being litigated in another forum, he need not and cannot honestly tell the inmates that it “can never” exist, but merely give his opinion on the probable outcome of that proceeding. And defendants’ fears that their own response to the letters will in turn cause a disturbance cannot justify a refusal to deliver them. Finally, the Superintendent states that he expects fights between pro and anti-union inmates. These conclusory predictions are based on the fact that there are approximately ten fistfights a week at the institution (which houses 1900 inmates) and that there have been threats. against several guards over a period of months and a few unfounded rumors of “trouble.” But during this past fall of anxiety and disruption at prisons in New York and elsewhere, Green Haven was quiet; and we conclude that no factual basis is shown for the dire predictions of the defendants. Compare the situations in Lee v. Washington, 390 U.S. 333, 88 S. Ct.994, 19 L.Ed.2d 1212 (1968); Rhem v. McGrath, 326 F.Supp. 681 (S.D.N.Y. 1971) ; Long v. Parker, 390 F.2d 816, 822 (3d Cir. 1968). See Davis v. Lindsay, 321 F.Supp. 1134 (S.D.N.Y.1970). We conclude that the court was correct in requiring the delivery of the letters and enclosures. The judgment, however, goes further and requires adherence to the present departmental regulation on attorney mail. This regulation goes beyond the requirements of Sostre in requiring that attorney mail be opened in the presence of the inmate, presumably to insure that it is checked only for contraband and is not read for content. This would inhibit the chilling effect of any procedure under which the inmate must trust prison staff not to read an opened letter. While we feel that this policy is desirable, (and has been required in the First Circuit, see Smith v. Robbins, 454 F.2d 696 (1972) ) and urge the Commissioner to pursue it, we think it unnecessary to go so far and to freeze the regulations on this matter on this appeal on the narrow issue of the present Legal Aid letters. The issue here is confined to mail from that source, in accordance with the principles set out herein. The injunction may be modified to require only the delivery of the letters and enclosures described above, and other mail from Legal Aid to the prisoners concerning their union claims and other legal problems. . The rule on mail from attorneys is as follows: “You may correspond with any attorney on legal matters or regarding your legal rights. Your incoming and outgoing letters and enclosures will be opened and examined in your presence to insure the absence of contraband. The contraband will be censored.” . In Marsh v. Moore, 325 F.Supp. 392 (D.Mass.1971), cited by the court below, the withholding of mail from an attorney to his client concerning a pending legal matter was held to be irreparable injury in the preparation and prosecution of the case, and to warrant preliminary relief. . On the first amendment rights of prisoners, see Barnett v. Rodgers, 133 U.S. App.D.C. 296, 410 F.2d 995 (1969); Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971); Seale v. Manson, 326 F. Supp. 1375 (D.Conn.1971); Payne v. Whitmore, 325 F.Supp. 1191 (D.Cal. 1971); Fortune Society v. McGinnis, 319 F.Supp. 901 (S.D.N.Y.1970); Sobell v. Reed, 327 F.Supp. 1294 (S.D.N.Y. 1971). See generally.Note: Prison Mail Censorship and the First Amendment, 81 Yale L.J. 87 (1971). . As the court said in Nolan v. Scafati, 430 F.2d 548 (1st Cir. 1970), “that prison inmates do not have all the constitutional rights of citizens in society— and may hold some constitutional rights in diluted form — does not permit prison officials to frustrate vindication of those rights which are enjoyed by inmates or to be the sole judges' — by refusal to mail letters to counsel — to determine which letters assert constitutional rights.” 430 F.2d at 551. . If the documents do not constitute a call to illegal concerted action against the institution, then the appellants claim that they are merely correspondence between members of the public and the inmates that may be censored, as “many kinds of controls on the correspondence of the inmate” are constitutionally permissible. Sostre, supra, 442 F.2d at 199. Limits on those to whom he can write and on what he can say and censorship to remove offensive material are permissible. See Administrative Regulation No. 20, paragraph 12. We think, however, the letter and documents cannot properly be termed merely correspondence sent to the prisoners by interested members of the public. The Legal Aid Society had no involvement in prisoner unions before they received the letter from the prisoners in Green Haven asking for advice on the formation of such a group. The letter specifically gave a legal opinion on how to form a union, its legal status, possible powers, etc. This appears to us bona fide legal advice despite the somewhat over-enthusiastic language in some parts of the letter. That language, given the clearly expressed lack of intent to incite any violence against the institution, does not change the legal nature of the letter. . The rule in Sostre and most other cases is not limited to certain forms of legal action but extends to communication on any legal questions and issues intended to obtain redress for alleged unconstitutional rules or actions. . Nolan v. Fitzpatrick, 326 F.Supp. 209, 214-217 (D.Mass.1971). Cf. Edwards v. South Carolina, 372 U.S. 229, 231, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Terminiello v. Chicago, 337 U.S. 1, 5, 69 S.Ct. 894, 93 L.Ed. 1131 (1949). Of course, the likelihood of the communications themselves causing breach of security or of prison discipline or substantial interference with administration is to be measured in the light of the situation within the institution, rather than the conditions outside portrayed in Edwards and Terminiello. 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_state

31

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". Louis J. ABBRUZZESE, Appellant, v. William P. BERZAK and Postmaster General Elmer T. Classen and United States of America. No. 76-1882. United States Court of Appeals, Third Circuit. Argued June 4, 1979. Decided July 6, 1979. Michael J. Mella, P. A., David L. Rutherford (argued), Fair Lawn, N. J., for appellant. Robert J. Del Tufo, U. S. Atty., Eric L. Chase (argued), Asst. U. S. Atty., Newark, N. J., Mason D. Harrell, Jr., U. S. Postal Service, Washington, D. C., of counsel, for appellees. Before ADAMS and ROSENN, Circuit Judges, and LAYTON, Senior District Judge. Honorable Caleb R. Layton, III, United States District Court for the District of Delaware, sitting by designation. OPINION OF THE COURT ADAMS, Circuit Judge. When Congress adopted the Postal Reorganization Act, it provided two types of procedures for resolving labor disputes between the United States Postal Service (USPS) and its employees. Veterans, also known as preference eligible employees, were given the choice of appealing an adverse decision to the Civil Service Commission or invoking those procedures found in the applicable collective bargaining agreement. Non-preference eligible employees, on the other hand, were given recourse only to the process found in their contract. Louis Abbruzzese, formerly a preference-eligible employee of USPS, was separated from his letter-carrier position following his conviction for mail theft. He received notice of the proposed action on September 24, 1973, in a letter from his employer stating that his removal would become effective on the following October 15, and that he could appeal the decision to the Civil Service Commission within fifteen calendar days after the effective date of such action. The correspondence also stated that Abbruzzese had certain arbitration rights pursuant to the collective bargaining agreement signed by his union and USPS. It did not indicate whether choosing one procedure would have any effect on the availability of the other. Abbruzzese decided to arbitrate. His decision apparently was motivated in large part by advice from his union indicating that if arbitration proved futile, he would still be able to file an appeal with the Commission provided the appeal was taken within fifteen days after his removal from the rolls This advice, apparently given in good faith, was erroneous. In any event, Abbruzzese decided not to file his appeal within the time specified by the Postal Service in its September 24 letter. On January 24, 1974, Abbruzzese’s union informed him that it would not pursue arbitration because of his conviction, but that he could nevertheless still appeal to the Commission provided he did so within the upcoming fifteen days. Such an appeal was filed on January 30. However, pursuant to 5 C.F.R. § 752.204, the Commission rejected the appeal as untimely. It stated that Abbruzzese initiated his action well after the appeals deadline, of which he had been informed. Additionally, the Commission held that Abbruzzese did not fall within any exemptions from the requirement. The district court sustained the Commission and Abbruzzese appealed to this Court. We affirm the judgment of the district court. Appellant first contends that the effect of the Commission’s action is to deny him a hearing in violation of the due process clause of the Fifth Amendment. We disagree. Although Abbruzzese had a property right in his continued employment with the Service, it does not follow that he has a right to a full hearing even when he has failed to file a timely appeal. Due process requires only that he have an opportunity to present his case; it does not require that this opportunity be extended indefinitely. In the present case, USPS informed Ab-bruzzese of the fifteen-day deadline for appeals. Moreover, it specifically advised him when that period commenced. Appellant nevertheless disregarded such information, choosing instead to rely on advice which ultimately turned out to be incorrect. We believe that Abbruzzese in fact forfeited his appeal rights by failing to file such action in a timely manner, and for that reason his constitutional claim must be rejected. Appellant next argues that the Commission acted in an arbitrary and capricious manner when it failed to grant him an extension of the fifteen-day time limit. The regulation permits such extensions only when an employee shows that he “was not notified of the time limit and was not otherwise aware of it” or when he demonstrates that he was “prevented by circumstances” beyond his control from appealing within the time limit.” On this record, we do not believe that the district court’s judgment upholding the Commission in this regard was error. First, as we indicated earlier, Abbruzzese was specifically informed by USPS of the applicable deadline. Although its letter might not have clearly delineated the relationship between Abbruzzese’s contractual and statutory rights, it did unmistakably inform him that if he wanted to appeal, he had to do so in a timely manner. Second, Abbruzzese himself chose to rely on the advice of his union. As a result, because he alone made that decision, we agree that there simply were no circumstances beyond his control that prevented a timely appeal. Accordingly, the decision of the district court will be affirmed. . Pub.L. 91-375, 84 Stat. 719 (1979) (codified in scattered titles and sections). . 5 U.S.C.A. § 2108(3) (1977). . 39 U.S.C.A. § 1005(a)(2) and § 1206(b) (1979 Supp.). These sections also provide that under no circumstances may access to the Commission be blocked by such agreements. . 39 U.S.C.A. § 1005(a)(1) and § 1206(b) (1979 Supp.). Such procedures have survived due process challenges. See Winston v. United States Postal Service, 585 F.2d 198, 207-210 (7th Cir. 1978); Austin v. United States Postal Service and American Postal Workers Union, AFL-CIO, No. 76-C 4681 (N.D.Ill.1978); Tufts v. United States Postal Service, 431 F.Supp. 484 (N.D.Ohio 1976). . The record does not clearly indicate upon what basis the union reached this conclusion. However, we note that Article XVI, § 3 of the 1975-78 National Agreement between the Postal Service and the National Association of Letter Carriers states: In the case of suspensions of more than thirty (30) days, or of discharge, any employee shall unless otherwise provided herein, be entitled to an advance written notice of the charges against him and shall remain either on the job or on the clock at the option of the employer for a period of thirty (30) days. Thereafter, the employee shall remain on the rolls (nonpay status) until disposition of his case has been had either by settlement with the Union or through exhaustion of the grievance-arbitration procedure. A preference eligible who chooses to appeal his suspension of more than thirty (30) days or his discharge to the Civil Service Commission rather than through the grievance-arbitration procedure shall remain on the rolls (nonpay status) until disposition of his case has been had either by settlement or through exhaustion of his Civil Service appeal, (emphasis added) . § 752.204 Time limit for initial appeal. (a) Except as provided in paragraph (b) of this section and § 752.205, an employee may submit an appeal at any time after receipt of the notice of adverse decision but not later than 15 days after the adverse action has been effected. (b) The Commission or the agency, as appropriate, may extend the time limit on appeal to it when the appellant shows that he was not notified of the time limit and was not otherwise aware of it, or that he was prevented by circumstances beyond his control from appealing within the time limit. (36 F.R. 25097, Dec. 29, 1971). The regulation was amended and renumbered so that it now appears at 5 C.F.R. § 752.203 (1978). These modifications are not relevant in this appeal. . Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); Board of Regents of State College v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Winston v. U. S. Postal Service, supra; Tufts v. United States Postal Service, supra. . We note in this regard that Abbruzzese could have filed a timely appeal with the Commission and then sought a stay pending the results of the arbitration. Although we do not now decide whether such actions would have been ultimately successful, see e. g., Postal Workers v. U. S. Postal Service, 100 LRRM 2114, 2115 (M.D.N.C.1978) (veteran who exercises his right to administrative appeal waives contractual right to grievance-arbitration procedures), nonetheless had he done so, there would now be evidence on the record indicating that he acted to preserve those rights. . Cf. Malone v. United States Postal Service, 526 F.2d 1099, 1105 (6th Cir. 1975) (failure to grant preference-eligible postal employee evi-dentiary hearing before Civil Service Commission following his termination did not violate due process, where employee was advised of his right to such process or arbitration and voluntarily chose the latter). . See note 6, supra. 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_respond2_7_2

A

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). Louis R. HARPER, Jr., et al., Appellees, v. Joseph M. KLOSTER and Stanley C. Leonard, Appellants. Louis R. HARPER, Jr., et al., Appellees, v. Giffen B. NICKOL et al., Appellants. Louis R. HARPER, Jr., et al., Appellants, v. MAYOR AND CITY COUNCIL OF BALTIMORE, a municipal corporation, et al., Appellees. Nos. 73-1853 to 73-1855. United States Court of Appeals, Fourth Circuit., Argued Aug. 15, 1973. Decided Oct. 15, 1973. H. Thomas Howell, Baltimore, Md. (Norman P. Ramsey, Richard T. Sampson, and Semmes, Bowen & Semmes, Baltimore, Md., on brief), for appellants in No. 73-1853. Kenneth L. Johnson, Baltimore, Md. (Howard, Brown & Williams, Baltimore, Md., Jack Greenberg, William L. Robinson and Jeffrey A. Mintz, New York City, on brief), for appellants in No. 73-1855 and for appellees in Nos. 73-1853 and 73-1854. Paul D. Bekman, Baltimore, Md. (William H. Engelman and Kaplan, Heyman, Engelman & Belgrad, Baltimore, Md., on brief), for appellants in No. 73-1854. George L. Russell, Jr., City Sol., Baltimore (Gerald S. Klein, Asst. City Sol., Baltimore, on brief), for appellees in No. 73-1855. Before WINTER, FIELD and WIDENER, Circuit Judges. WINTER, Circuit Judge: . Four black employees (Harper, et al.) of the Baltimore City Fire Department brought a class action under 42 U.S.C.A. §§ 1981, 1983 and 1988; 28 U.S.C.A. § 2201; and the thirteenth and fourteenth amendments, against Baltimore City and the members of the Board of Fire Commissioners and the Civil Service Commission, in their representative capacity, * to obtain declaratory and injunctive relief against allegedly racially discriminatory practices of the defendants in the appointment and promotion of firemen and various officers of Baltimore City’s fire department. Twenty-six white firemen intervened in the case. Finding pronounced past racial discrimination, lesser current racial discrimination and significant consequences of past and current racial discrimination, the district court granted substantial relief. Harper v. Mayor and City Council of Baltimore, 359 F.Supp. 1187 (D.Md.1972). It declared invalid and enjoined continued use of the type of written entrance examination which was currently in use for initial appointment and for promotion. It also prescribed how acceptable forms of written examinations could be developed. Because it found that a higher percentage of blacks resided in Baltimore City than the surrounding counties, which had become havens for white flight, it required that city residents be given preference in hiring over non-city residents so long as there were a sufficient number of city residents to fill vacancies. It invalidated existing promotional lists, and it restricted the use of existing eligibility lists for initial hiring. It invalidated seniority for promotions to certain levels for years of past service, accumulated during periods that it found that racial discrimination had been rampant; and it required a reduction of the “time in grade” requirements for promotion to various levels. 359 F.Supp. at 1218-1219. I Following the district court’s main decision (May 2, 1972), a group of black ’and white non-residents of Baltimore City (Nickol, et al.), who learned on May 12, 1973, that they had passed the firefighters entrance examinations and would be eligible for appointment as firemen but for the district court’s May 2, 1973 decision and the place of their residence, sought to intervene in the proceedings. Leave to intervene was denied by the district court in an oral ' opinion rendered after a hearing. Plaintiffs, the intervenors, and the would-be intervenors have appealed. No appellant questions the correctness of the district court’s findings of fact, but each raises legal questions. Plaintiffs contend that the district court should have granted a more drastic remedy to cure past and present racial discrimination and its present discriminating consequences. Specifically, they advocate that the district court fix minimum quotas for black officers of the fire department, the quotas to be achieved by a date certain. With a complete lack of specificity, they contend that the district court “should have completely proscribed all aspects of . [the seniority system] that retard promotions” and that “[s]ince time in grade was not shown to be job related, it should not be used against the victims of discrimination who otherwise demonstrate (sic) the ability to successfully perform the job.” Finally, they argue that there was error in the district court's failing to retain jurisdiction until racial discrimination and the consequences of past racial discrimination have been fully eradicated, i The intervenors contend that the district court’s invalidation of existing eligibility lists for promotion was error— in sum, that the relief granted by the district court was too drastic. Their contention is grounded upon the dual assertions that the promotional lists were prepared without resort to racially discriminatory criteria and the reduction of “time in grade” requirements for promotion should not have been applied, retroactively (they claim), to invalidate),' current promotional eligibility lists. Í The would-be intervenors contend that’ they should have been allowed to intervene and to relitigate the case, at least to the extent that it concerned the eligibility of non-residents of Baltimore City for appointment to the fire department. After the case was argued, Baltimore^ City filed a motion to dismiss the appeals and to vacate the district court’s judgment, on the ground that under City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), the city could not be sued under 42 U.S.C.A. § 1983 by a complaint seeking equitable relief, since it was not a “person” within the meaning of that statute. We conclude that the appeals are lacking in merit. While we conclude that the motion to dismiss is well taken as to Mayor and City Council of Baltimore, a municipal corporation, the relief decreed by the district court may be fully effective as to the other defendants, and we do not think that Kenosha requires dismissal as to them. Accordingly, except for dismissal of the City of Baltimore as a defendant, we affirm the orders appealed from. I. We reject plaintiffs’ argument that the district court should have fixed racial quotas for various categories of employees of the fire department and prescribed a minimum time schedule for those quotas to be met. We agree with the district court’s discussion and conclusion in regard to this issue as set forth in 359 F.Supp., pages 1213-1215 of its opinion, and more need not be said. We agree also that this is not a case in which it would be appropriate for the district court to continue jurisdiction. The district court’s remedies to eradicate present discrimination and the current consequences of discrimination are complete in and of themselves. Counsel for defendants have assured the court that full access to all relevant data and statistics, short of the questions on a particular examination before the examination is administered, to determine if defendants are in compliance with the district court’s decree, will be available to plaintiffs and other interested parties at all times within regular business hours. As the district court correctly observed, it lacks the authority to operate the Baltimore City fire department, although it does have “the responsibility to see that the procedures for hiring and promoting firemen are within the bounds proscribed by applicable constitutional and statutory provisions.” 359 F.Supp. at 1213. We think that the district court did not abuse its discretion when, in accommodating these conflicting interests, it concluded not to retain jurisdiction. II. We think that the voiding of existing eligibility lists for promotion was proper, notwithstanding intervenors’ argument to the contrary. The district court found, and its findings are not only amply supported but unchallenged, that the “time in grade” requirements, seniority and efficiency ratings — all components of promotional lists — had the potential of adverse effect on blacks and that this potential amounted to a denial of equal protection of the laws. 359 F.Supp. at 1211-1212. Under such circumstances, we cannot say that, given the breadth of the district court’s discretion to fashion equitable relief, the district court abused its discretion in voiding existing promotional lists forthwith rather than to let them expire by the passage of time so that certain of the intervenors, all of whom are white, could be promoted to higher classifications before there could be corrective alteration of the promotional lists. Intervenors argue strenuously that they are being unfairly denied promotions to which they are entitled, but we rejected this argument in Robinson v. Lorillard Corporation, 444 F.2d 791, 800 (4 Cir. 1971), cert, dis., 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655, where we approved modification of an offensive seniority system, saying “Where some employees now have lower expectations than their coworkers because of the influence of one of these forbidden factors [i e., race, color, religion, sex or national origin], they are entitled to have their expectations raised even if the expectations of others must be lowered in order to achieve the statutorily mandated equality of opportunity.” III. We agree with the district court that, for the reasons set forth in its oral opinion, would-be intervenors’ application to intervene in the proceedings was not timely. Rule 24(a), F.R.Civ.P. It follows that denial of leave to intervene was proper. The would-be intervenors wish to litigate further the propriety and validity of the aspect of the district court’s decree giving preference to residents of Baltimore City in the initial appointment of firefighters. As the district court stated in denying leave to intervene, “they may seek to bring a separate action on the narrow issue involved which would not require a full review and consideration of the testimony in the five week trial.” We agree. There had been a five week, well publicized trial and the interests of the would-be intervenors had apparently been adequately represented. Additionally, throughout most of the period of the litigation, as well as the trial itself, Baltimore City had been preliminarily enjoined from filling certain positions in its complement of firefighters. The effect of permitting intervention would have continued that disability for even longer. Manifestly, the public interest in efficient, effective firefighting services requires that would-be intervenors be heard in a separate proceeding. IV. In City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), the Supreme Court flatly held that a municipal corporation was not a “person” within the meaning of 42 U.S. C.A. § 1983 when equitable relief under that statute was sought. Earlier, it had held in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), that a municipal corporation was not a “person” within the meaning of 42 U.S. C.A. § 1983 when damages under that statute were sought. In Monroe, never-, theless, the Court held that § 1983 applied to municipal officers and employees when damages were sought. See also Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). We see no reason to give Keno-sha any wider application. In the instant case, the district court apparently exercised its jurisdiction under § 1983, although it may well have been exercising federal question jurisdiction under the thirteenth and fourteenth amendments or jurisdiction under 28 U.S.C.A. § 2201. If it exercised jurisdiction on a basis other than § 1983, jurisdiction over the City of Baltimore may be sustainable, as proper in the first instance or under a theory of pendent jurisdiction, because Monroe does not purport to immunize municipal corporations from suit in such instances. See, however, Moor v. County of Alame-da, supra. But we need not explore these possibilities, because there have been named as defendants the individuals who constitute the fire board, the body which makes appointments and promotions, and the Civil Service Commission, the body which recruits, tests, prepares and publishes eligibility lists for appointment and promotion. Monroe holds that jurisdiction attaches as to them and we do not think that Kenosha is to the contrary. The decree of the district court will be just as effective if it applies only to the defendants, excluding Baltimore City, a municipal corporation, as if Baltimore City were also a defendant. To comply with Kenosha, we must direct the district court to dismiss Baltimore City from the proceedings. In all other respects, the district court’s orders are affirmed. Modified and affirmed. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. A. not ascertained B. male - indication in opinion (e.g., use of masculine pronoun) C. male - assumed because of name D. female - indication in opinion of gender E. female - assumed because of name Answer:

songer_initiate

B

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. MARKOWITZ BROTHERS, INC., a Corporation, and Continental Casualty Co., Appellants, v. FOX-GREENWALD SHEET METAL CO., Inc., a Corporation, Appellee. No. 20900. United States Court of Appeals District of Columbia Circuit. Argued Jan. 26, 1968. Decided June 25, 1968. Mr. Charles C. Hartman, Jr., Annapolis, Md., with whom Messrs. Kahl K. Spriggs and Mark P. Friedlander, Washington, D. C., were on the brief, for appellants. Messrs. Mark P. Friedlander, Jr., Blaine P. Friedlander, Washington, D. C., Harry P. Friedlander, Marshall H. Brooks, Arlington, Va., and John F. Myers, Washington, D. C., also entered appearances for appellants. Mr. Fred C. Sacks, Washington, D. C., for appellee. Before Bazelon, Chief Judge, and McGowan and Robinson, Circuit Judges. PER CURIAM: Fox-Greenwald Sheet Metal Co., Inc., obtained a jury verdict of $103,458.91 in the District Court against Markowitz Brothers, Inc., and Continental Casualty Company for money due on unpaid requisitions resulting from work allegedly performed by Fox-Greenwald under a sub-contract with Markowitz. Marko-witz and Continental, upon this appeal, assert the failure of Fox-Greenwald to establish liability as a substantive matter, as well as error in the conduct of the trial. We leave the jury’s verdict undisturbed. Under the contractual arrangements formulated for this construction project, Fox-Greenwald submitted requisitions for work completed to Markowitz; Markowitz thereupon . included these amounts in its monthly requisitions to Blake, the prime contractor; and, subsequent to receiving payments of its requisitions from Blake, it paid Fox-Green-wald. Pursuant to this plan, the work and payments proceeded relatively well until December of 1963. In this month, Markowitz, while submitting the full amount of Fox-Greenwald’s requisition in its requisition to Blake, remitted to Fox-Greenwald only part of the amount claimed by it, and failed to pay anything on Fox-Greenwald’s January requisition. Fox-Greenwald’s effort to collect what it considered due and owing proved unavailing, and it instituted this suit. During an eight-day trial both parties presented an abundance of testimony and exhibits relating to the amount of work satisfactorily performed. After comprehensive closing arguments, the jury was instructed that it had to decide: (1) whether any amount was due Fox-Green-wald for work performed prior to the termination of the contract on February 15, 1964, and (2) if Markowitz had received from Blake money for the benefit of Fox-Greenwald which it had not paid over to the latter. As we view the case, the primary issue is appellant’s contention that the jury verdict is insupportable because it exceeded the amount that Blake paid Markowitz. Although the presentation of evidence in this- case is marked by considerable confusion, as is also its treatment in appellant brief and argument, our own examination of the record leaves us unpersuaded that it was inadequate. From a procedural standpoint, appellants were afforded their day in court. Every possible circumstance which arose during the Markowitz-Fox-Greenwald relationship was permitted to be explored, and appellants had a full and fair opportunity to convince the jury that no sum of money was due Fox-Greenwald, and that Blake had not paid Markowitz in any event. More specifically, during closing arguments appellants’ counsel referred to a blackboard on which appeared all the relevant figures relied upon to show that no money was owing. Obviously the jury, in deliberating seven hours, thoroughly considered the positions of the parties. The thoroughness of the jury’s consideration of the case is supported by the fact that the jury, during deliberation, requested and obtained: (1) the figures placed on the blackboard by appellants, (2) Markowitz’s statement to the Bonding Company, giving the percentage figures of completion of the project as of December 31, 1963, (3) witnesses’ statements relating to the overall completion of the project and (4) Blake’s checks to Markowitz. We find no error necessitating the imposition upon an already over-extended District Court of the reenactment of this lengthy proceeding in which the full opportunity afforded to illuminate the issues succeeded, as often as not, only in obscuring them. Affirmed. . Continental is a party because Marko-witz had secured a payment bond from it. . Markowitz had entered into a sub-contract with Blake Construction Company, which had contracted with the United States Government to construct buildings of the National Bureau of Standards at Gaithersburg, Maryland, to perform the plumbing, heating, and air conditioning. Markowitz, in turn, sub-subcontracted the “sheetmetal” portion of its work to Fox-Greenwald. . The contract involved was dated July 20, 1962, but was not executed until October 1962 when Fox-Greenwald commenced working on the project. . Although Markowitz included the full amount of Fox-Greenwald’s requisition in its requisition to Blake, it attached a note stating it had not approved Fox-Green-wald’s requisition. When Blake did not pay the full amount of Markowitz’s requisition, Markowitz apparently apportioned all of this reduction to Fox-Green-wald. During the trial a Blake representative testified that none of the cut related to Fox-Greenwald’s work. . Although Blake did not remit any cash to Markowitz for its January requisition, there was some testimony to the effect that Markowitz had earlier over-requisitioned and Blake credited Markowitz’s account accordingly. . Appellants also claim that the District Court erred when it (1) decided as a matter of law that Fox-Greenwald did not have to prove it met certain contractual conditions precedent in order to be entitled to be paid for work performed, and (2) limited the instruction of the jury to the issue of money due and owing for work performed. We reject both of these claims. With regard to the first, we do not think this has any bearing on the issue of money had and received by one party for work performed by another which was the non-contractual theory upon which the court, with the explicit assent of all parties, received evidence and submitted the case to the jury. On appeal, appellants argue that such assent was not given by them, but the record is clearly to the contrary. As to the instruction argument, appellants’ trial counsel understood what issue was to be submitted to the jury and he tendered no proposed instructions. One other issue raised by appellants is that the judge erred when he refused to incorporate any specfic figures in his instructions. We do not think that this was error because counsel had ample opportunity to present and explain the figures to the jurv Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:

sc_lcdisagreement

B

What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent. RAILWAY EXPRESS AGENCY, INC., v. VIRGINIA. No. 38. Argued October 15, 1958. — Decided February 24, 1959. Thomas B. Gay argued the cause for appellant. With him on the brief were Robert J. Fletcher, William H. Waldrop, Jr. and H. Merrill Pasco. Frederick T. Gray, Special Assistant Attorney General of Virginia, argued the cause for appellee. With him on the brief was Albertis S. Harrison, Jr., Attorney General. Mr. Justice Clark delivered the opinion of the Court. Once again the effort of the Commonwealth of Virginia to levy a tax against express agencies is before us for decision. Nearly five years ago this Court struck down as a “privilege tax” violative of the Commerce Clause of the Federal Constitution its tax statute under which was laid an assessment on appellant’s “privilege of doing business” in Virginia. Railway Express Agency v. Virginia, 347 U. S. 359 (1954). Subsequently the Virginia General Assembly enactéd the Act here involved levying a “franchise tax” on express companies, measured by gross receipts from operations within Virginia, in lieu of all other property taxes on intangibles and rolling stock. In due course an assessment against appellant was made thereunder for 1956. Both the State Corporation Commission, which has jurisdiction of such levies in Virginia, and the Commonwealth’s highest court have upheld the validity of the new law as well as the assessment made thereunder, Railway Express Agency v. Virginia, 199 Va. 589, 100 S. E. 2d 785. Appellant levels a dual attack, the first being that the statute is a “privilege tax” and like the former one violates the Commerce Clause; or, secondly, that in any event the assessment under it is calculated in such a manner as to deprive appellant of its property without due process of law in violation of the Fourteenth Amendment. On appeal we noted probable jurisdiction, 356 U. S. 929 (1958). We believe that Virginia has eliminated the Commerce Clause objections sustained against its former tax law. While the tax is in lieu of other property taxes which Virginia can legally assess and should be their just equivalent in amount, Postal Telegraph Cable Co. v. Adams, 155 U. S. 688, 696 (1895), we will not inquire into the exactitudes of the formula where appellant has not shown it to be so baseless as to violate due process. Nashville, C. & St. L. R. v. Browning, 310 U. S. 362 (1940). The failure of the appellant to furnish, in its return, certain necessary information showing its gross receipts allocated to Virginia, called for under the statute and requested by the Commonwealth, has left the correct amount unobtainable by the latter except by some method of approximation and places the burden on appellant to come forward with affirmative evidence of extraterritorial assessment. Background and Activity of Appellant in Virginia. Since the opinion in the former appeal, supra, at pp. 360-361, relates the factual details concerning appellant’s operations in Virginia, we believe it sufficient to say here that it is a Delaware corporation, owned by 68 of the railroads of the United States. It is engaged in both an interstate and intrastate express business throughout the Nation, save in Virginia, where a constitutional provision bars foreign corporations from possessing or exercising any of the powers or functions of public service corporations. There it operates a wholly owned subsidiary, a Virginia corporation, which carries on its intrastate functions within the Commonwealth. Appellant’s Virginia business is thus of an exclusively interstate nature. Through exclusive contract arrangements with 177 of the railroads of the Nation appellant is the sole operator of express facilities on their lines, including Virginia. It pays therefor all of its net income, thus achieving one of the stated purposes of the agreement — that appellant . . shall have no net taxable income.” In turn, appellant’s Virginia subsidiary pays all of its net income over to it for the privilege of exercising appellant’s exclusive contracts in intrastate business in the Commonwealth. Appellant owns property within Virginia, its return filed with the Commonwealth for tax purposes showing $120,110.70 in cash on deposit; automotive equipment and trucks $262,719.63; real estate of the value of $32,850; and office equipment listed at $42,884.83. Virginia’s General Taxing System. The Commonwealth has a comprehensive tax structure covering public service corporations. It empowers local governments to levy ad valorem taxes on the “dead” value of all real property and tangible personal property, except rolling stock, located within their respective jurisdictions. This leaves free for state purposes taxes on rolling stock, money and other intangibles, and the “live” or “going-concern” value of the business in Virginia. We are concerned only with the state tax which is levied on the franchises of express companies. It provides in pertinent part that “[e]ach express company . . . shall . . . pay to the State a franchise tax which shall be in lieu of taxes upon all of its other intangible property and in lieu of property taxes on its rolling stock.” The franchise tax is measured by “the gross receipts derived from operations within” Virginia which is deemed “to be all receipts on business beginning and ending within this State and all receipts derived from the transportation within this State of express transported through, into, or out of this State.” The State Corporation Commission is directed, after notice, to assess the franchise tax on the basis of a report to be filed by the company involved or, in case of its failure to file such report, the Commission is to base the assessment “upon the best and most reliable information that it can procure.” The Issues Under the Statute. First, let us clear away the dead underbrush of the old law. The new tax is not denominated a license tax laid on the “privilege of doing business in Virginia”; nor is it “in addition to the property tax” levied against appellant, nor a condition precedent to its engaging in interstate commerce in the Commonwealth. The General Assembly has made crystal-clear that the tax is now a franchise tax laid on the intangible property of appellant, and is levied “in lieu of taxes upon all of its other intangible property and . . . rolling stock.” The measure of the tax is on gross receipts, fairly apportioned, and, as to appellant, is laid only on those “derived from the transportation within this State of express transported through, into, or out of this State.” Appellant concedes that the Commerce Clause does not prohibit the States from levying a tax on property owned by a concern doing an interstate business. It agrees that it has rolling stock and money in the Commonwealth, as well as intangibles, including its exclusive express privileges with the railroads. It readily admits that the latter agreements are “valuable contract rights” and contribute a principal element to the “going concern value” of its business in the Commonwealth. Subsuming that a valid tax levy might be levied on such intangibles, it argues, however, that the incidence of the tax is on appellant’s privilege to carry on an exclusively interstate business in Virginia rather than on intangible property. Our sole question under the Commerce Clause is whether the tax in practical operation is on property or on privilege. The due process issue is entangled with appellant’s failure to file, in its report, data covering its gross receipts allocated to Virginia. Failing to do this the State Corporation Commission used a formula which in effect ascribed to Virginia the proportion of such receipts as the mileage of carriers within Virginia bore to the total national mileage of the same lines. Appellant contends that the assessment made in this manner is violative of due process and that the resulting amount of tax levied was confiscatory. In any event, appellant argues, the “in lieu” provisions of the law, as applied to it, are invalid. Admitting that it had cash, intangibles and rolling stock that were subject to a state tax but which suffered none because of the “in lieu” provisions of this law, it contends that the tax assessed under the latter was no just equivalent of the “in lieu” taxes but was greatly in excess thereof and violative of due process. Validity of the Law Under the Commerce Clause. As we have pointed out, the statute levies a franchise tax in lieu of all taxes on “other intangible property” and rolling stock. (Emphasis added.) This leaves no room for doubt that the General Assembly intended to levy a tax upon appellant’s intangibles. Moreover, supporting this interpretation, both the State Commission and the Supreme Court of Appeals have construed it as a tax on appellant’s intangible property and “going concern” value. This trinity of agreement by three state agencies, though not conclusive, has great weight in our determination of the natural and reasonable effect of the statute. Railway Express v. Virginia, supra; Spector Motor Service v. O’Connor, 340 U. S. 602 (1951); Cudahy Packing Co. v. Minnesota, 246 U. S. 450 (1918); United States Express Co. v. Minnesota, 223 U. S. 335, 346 (1912). This is not to say that a legislature may effect a validation of a tax, otherwise unconstitutional, by merely changing its descriptive words. Lawrence v. State Tax Commission, 286 U. S. 276, 280 (1932); Galveston, H. & San Antonio R. Co. v. Texas, 210 U. S. 217, 227 (1908). One must comprehend, however, the difference between the use of magic words or labels validating an otherwise invalid tax and their use to disable an otherwise constitutional levy. The latter this Court has said may sometimes be done. Railway Express Agency v. Virginia, supra, at 364; Spector Motor Service v. O’Connor, supra, at 607; McLeod v. Dilworth Co., 322 U. S. 327, 330 (1944). Appellant buttresses its argument with reasoning that a tax on “going concern” value just cannot be measured by fairly apportioned gross receipts. While it may be true that gross receipts are not the best measure, it is too late now to question its constitutionality. Illinois Cent. R. Co. v. Minnesota, 309 U. S. 157 (1940); Great Northern R. Co. v. Minnesota, 278 U. S. 503 (1929); Pullman Co. v. Richardson, 261 U. S. 330 (1923); Cudahy Packing Co. v. Minnesota, 246 U. S. 450 (1918); United States Express Co. v. Minnesota, 223 U. S. 335 (1912); Wisconsin & M. R. Co. v. Powers, 191 U. S. 379 (1903). These decisions are still in good standing on our books. Even on the former appeal this Court used the following language: “Of course, we have held, and it is but common sense to hold, that a physical asset may fluctuate in value according to the income it can be made to produce. A live horse is worth more than a dead one, though the physical object may be the same, and a smooth-going automobile is worth more than an unassembled collection of all its parts. The physical facilities used in carrying on a prosperous business are worth more than the same assets in bankruptcy liquidation or on sale by the sheriff. No one denies the right of the State, when assessing tangible property, to use any fair formula which will give effect to the intangible factors which influence real values. Adams Express Co. v. Ohio State Auditor 166 U. S. 185. But Virginia has not done this.” 347 U. S., at 364. We feel that Virginia has now done just that. We are not convinced by appellant’s “boot strap” argument that the express privileges it enjoys have no value to it because all of its net income by agreement with the railroads is paid over to them. We believe it more accurate to rely on its admission that “No one would question the fact that Appellant’s exclusive express privileges on the railroads are valuable contract rights.” This concession, when taken in the light of the expressed purpose of appellant that the payment of its net income for the use of the express privileges was solely to make certain “that the Express Company shall have no net taxable income,” exposes the frivolous nature of this contention. We are not so blinded to business realities as to permit such a manipulation of the finances of appellant, the railroads’ wholly owned subsidiary, to frustrate the Commonwealth in its effort to collect an otherwise fair tax. Nor is there any substance to the contention that since Virginia could not prohibit appellant from engaging in its exclusively interstate business, it therefore may not tax “good will” or “going concern” value which is built up thereby. We need only cite some of the cases of this Court holding to the contrary: Great Northern R. Co. v. Minnesota, 278 U. S. 503 (1929); Pullman Co. v. Richardson, 261 U. S. 330 (1923); Cudahy Packing Co. v. Min nesota, 246 U. S. 450 (1918); United States Express Co. v. Minnesota, 223 U. S. 335 (1912); Adams Express Co. v. Ohio, 165 U. S. 194 (rehearing 166 U. S. 185 (1897)); Western Union Telegraph Co. v. Taggart, 163 U. S. 1 (1896); Cleveland, C., C. & St. L. R. Co. v. Backus, 154 U. S. 439 (1894). Validity of the Tax Under the Due Process Clause. In view of the fact that appellant failed to file the required information as to its gross receipts, thus placing an almost insurmountable burden on the Commonwealth to ascertain them, it is necessary that appellant make an affirmative showing that the mileage method used by Virginia is so palpably unreasonable that it violates due process. This it has failed to do. Appellant rests its argument not on facts and figures covering its actual gross income in Virginia but on comparative statistics based on tangible assets. It points out that during the taxable year the value of its tangible assets in Virginia ($475,065) was only 0.6% of its total assets ($79,700,426), while the amount of gross receipts apportioned to Virginia by the State Corporation Commission was 1.7% ($6,499,519) of its total gross receipts ($387,241,764). The difference in the two percentages, appellant contends, must represent intangible values on which Virginia cannot operate because located outside of its jurisdiction. This syllogism does not take into account the facts of business life. Tangible assets in Virginia may produce much more income than like assets elsewhere. Death Valley Scotty generated much less gross from his desert sightseeing wagon than did his counterpart in Central Park. The utter fallacy of using tangible assets as the test of going-concern value here is demonstrated by the fact that appellant’s tangible assets in Virginia depend entirely on whether it elects to retain title to tangible property or place it in the name of its subsidiary, the Virginia company. By placing them in the Virginia company it could thus, on a tangible asset formula, escape all tax on its intangibles. There is nothing in the record even to indicate that the tangible assets that appellant carries in its own name in Virginia did not actually generate the amount of gross receipts attributed to it by the State Corporation Commission. In this connection, we note that 1.9% of appellant's total contract mileage was located there. Even where taxpayers have attempted to show through evidence, as this appellant has not, that a given apportionment formula effected an appropriation of more than that to which the State was entitled, this Court has required “ 'clear and cogent evidence’ that it results in extraterritorial values being taxed.” Butler Bros. v. McColgan, 315 U. S. 501, 507 (1942); Norfolk & Western R. Co. v. North Carolina, 297 U. S. 682, 688 (1936); cf. Bass, Ratcliff & Gretton, Ltd., v. Tax Comm’n, 266 U. S. 271, 282-284 (1924). As this Court said in Nashville, C. & St. L. R. v. Browning, 310 U. S. 362, 365-366 (1940): “In basing its apportionment on mileage, the Tennessee Commission adopted a familiar and frequently sanctioned formula. Pullman’s Car Co. v. Pennsylvania, 141 U. S. 18; Maine v. Grand Trunk Ry. Co., 142 U. S. 217; Pittsburgh, C., C. & St. L. Ry. Co. v. Backus, 154 U. S. 421; Branson v. Bush, 251 U. S. 182. See 2 Cooley on Taxation, pp. 1660-64. Its asserted inapplicability to the particular situation is rested on petitioner’s evidence as to the comparative revenue-producing capacity of its lines in and out of Tennessee. But both the Commission and the Supreme Court of the state thought that this evidence, however weighty, was insufficient to displace the relevance of the formula. In a matter where exactness is concededly unobtainable and the feel of judgment so important a factor, we must be on guard lest unwittingly we displace the tax officials’ judgment with our own. Certainly we cannot say that the combined judgment of Commission, Board, and state courts is baseless.” (Emphasis added.) Appellant’s final argument is to the effect that the tax in question, in the amount of $139,739.66, is “no just equivalent” of the tax “in lieu of which” it was levied, and therefore violates the Due Process Clause. This argument is based upon a false premise which can be quickly disposed of. Appellant states that under Virginia’s system of segregation of property for state and local taxation the only property which the Commonwealth had the power to tax was cash on hand and on deposit and appellant’s rolling stock, which, under the old rates, would have yielded a tax of $679.77. Appellant is clearly in error. As we read the Virginia statutes, and as they were construed below, the Commonwealth (as contrasted with the local) government also had the power to tax the “going concern” value of all of appellant’s Virginia property, as well as its other intangible property rights such as its valuable express privileges. Thus, the new tax is not only in lieu of the previous tax on rolling stock and cash on hand, but also reaches intangible rights of great value which since Railway Express, supra, had escaped taxation altogether. It follows from what we have said that the tax is valid, and the judgment below is therefore Affirmed. Mr. Justice Frankfurter concurs in the result. Va. Code, 1950, § 58-547. See Va. Const., § 170; and Va. Code, 1950, §§ 58-9, 58-10. Va. Code, 1950, § 58-546, et seq., as amended by Va. Acts 1956, c. 612. In its return, appellant stated that it was “unable” to ascertain its gross receipts from express transported “through, into or out of” the Commonwealth. The record contains testimony to this effect by one of appellant’s officers. The record also shows, from one of appellant’s own exhibits, that since 1931 the tax year in question is the only year in which appellant has been “unable” to report this information. From 1931 to 1953, appellant managed to find a way of compiling or computing and reporting such data, and in only 7 of these 23 years did the Commonwealth disagree with appellant’s figures. Due to the downfall of the old tax in Railway Express Agency v. Virginia, supra, there was no reporting requirement for 1954 and 1955. Under the new tax, for 1956, appellant made no attempt to present evidence to show what reductions should be made in the Commission’s figures, nor did it explore the possibility of an agreement about it as it apparently had in prior years. Cf. Cohan v. Commissioner of Internal Revenue (C. A. 2d Cir. 1930), 39 F. 2d 540, 543-544. Instead, it relied completely upon its claim that the tax was unconstitutional. Actually, the amounts paid to such carriers for Virginia traffic were ascertained by that method. Since the carrier payments represent only net receipts, the Virginia gross receipts were determined by applying to the Virginia carrier payments the ratio that its total gross receipts bore to its total carrier payments. Parenthetically, it might be noted that the Adams case involved a “going concern” valuation of $488,265 as compared to a “dead” valuation of property in the amount of $28,438. 165 U. S. 194, 237. Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented? A. Yes B. No 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"). James Edward CHITWOOD, Jr., Appellant, v. UNITED STATES of America, Appellee. No. 7035. United States Court of Appeals Fourth Circuit. Argued October 4, 1955. Decided October 4, 1955.. C. Carter Lee, Rocky Mount, Va., for appellant. Beverly A. Davis, III, Asst. U. S. Atty., Rocky Mount, Va. (John Stickler, U. S. Atty., and Benjamin F. Sutherland, Asst. U. S. Atty., Roanoke, Va., 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 the accused was convicted of violation of the Internal Revenue laws in the removal of distilled spirits on which the tax had not been paid. The case was tried before a jury and the evidence showed that officers of the law chased an automobile which they suspected of being engaged in violating the law and .that, when they forced it to the curb, two men who had been riding in the car jumped from it and ran away. A quantity of untaxpaid liquor was found in the car and two fruit jars filled therewith fell from the car and were broken when the two occupants ran away. Appellant denied that he was in the car, but there was ample evidence to identify him as one of the men who -ran therefrom. He contends that there was not sufficient evidence to sustain the jury’s verdict of guilty because he was not shown to be the owner of the car or to have had any interest in the liquor. The contention is frivolous. The fact that he was riding in a car filled with liquor and that he ran from the officers was ample evidence that he was aiding and abetting in the crime which was being committed whether he was the owner of the car or the liquor or not. Harding v. United States, 4 Cir., 182 F.2d 524; Windsor v. United States, 6 Cir., 286 F. 51; Rowan v. United States, 7 Cir., 277 F. 777; 20 Am.Jur. 1221. The complaint as to the charge of the court is absolutely without merit. The judge made it perfectly clear that mere presence of the appellant in the automobile would not make him guilty, if he had no proprietary interest and no part in the delivery, removing or concealing of the liquor. As the appeal presents no substantial question, the mandate will issue forthwith and will not be stayed pending application for rehearing or certiorari. 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_appel1_1_2

A

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed 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". V.S.H. REALTY, INC., Plaintiff, Appellant, v. TEXACO, INC., Defendant, Appellee. No. 84-1531. United States Court of Appeals, First Circuit. Argued Nov. 7, 1984. Decided March 15, 1985. Rehearing En Banc Denied April 29, 1985. Allan van Gestel, Boston, Mass., with whom Allan J. Sullivan and Goodwin, Procter & Hoar, Boston, Mass., were on brief for plaintiff, appellant. Robert M. Gault, Boston, Mass., with whom Bruce F. Metge, Washington, D.C., and Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., Boston, Mass., were on brief for defendant, appellee. Before COFFIN and BREYER, Circuit Judges, and WYZANSKI, Senior District Judge. Of the District of Massachusetts, sitting by designation. COFFIN, Circuit Judge. Appellant V.S.H. Realty, Inc. (V.S.H.) claims that appellee Texaco, Inc. (Texaco) must return a $280,000 down payment V.S.H. paid on a piece of real estate in Chelsea, Massachusetts. V.S.H. claims that Texaco breached the sales agreement, fraudulently induced it into agreeing to the purchase, and violated a Massachusetts statute prohibiting unfair and deceptive acts in business dealings. The district court dismissed the case under Fed.R. Civ.P. 12(b)(6) for failure to state a claim, and denied V.S.H.’s subsequent motion to vacate judgment and to permit an amendment of the complaint. We think the court was correct in dismissing the breach of contract claim but erring in dismissing the common law and statutory deception counts. I. Factual Background On August 11, 1983, V.S.H. offered to purchase from Texaco a used bulk storage petroleum facility for $2.8 million. Texaco accepted the offer on September 7, and V.S.H. made a deposit of $280,000 to be applied against the purchase price. The offer to purchase required Texaco to convey the property “free and clear of all liens, encumbrances, tenancies and restrictions”, except for those set forth in the offer. Attached to the offer to purchase was an acknowledgement signed by Texaco stating that, to the best of the company’s knowledge and belief, it had not received “any notice, demand, or communication from any local county, state or federal department or agency regarding modifications or improvements to the facility or any part thereof.” The offer also included a disclosure by Texaco that fuel oils had “migrated under [Texaco’s] garage building across Marginal Street from the terminal [and that] the fuel oil underground as a result of heavy rains or high tides, seeps into the boiler room of the garage building.” V.S.H., for its part, expressly stated in the offer that it had inspected the property, and accepted it “as is” without any representation on the part of Texaco as to its condition. Problems arose when V.S.H. representatives visited the property in mid-October 1983, approximately a month after Texaco accepted the offer to purchase, and observed oil seeping from the ground at the western end of the property. During a subsequent visit, V.S.H. representatives discovered another oil seepage at the eastern end of the property. V.S.H. then notified Texaco that it would not go through with the purchase unless Texaco corrected the oil problem, provided V.S.H. with full indemnification, or reduced the purchase price. When Texaco refused, V.S.H. demanded return of its down payment. Texaco again refused, and V.S.H. filed this lawsuit on January 10, 1984. In its three-count complaint, V.S.H. alleges first that Texaco violated Mass.Gen. Laws Ann. ch. 93A, § 2, which prohibits unfair and deceptive acts and practices, basing that assertion largely on Texaco’s failure to disclose the seeping oil, and its failure to disclose an investigation of the property by the U.S. Coast Guard. V.S. H.’s second count claims relief for breach of contract, based on Texaco’s alleged inability to convey the property at the specified time free of all liens, encumbrances and restrictions. V.S.H.’s contract theory is that the penalties associated with the oil seepage problem constitute an encumbrance on the property. Finally, V.S.H. charges Texaco with common law misrepresentation and deceit for failing to disclose the oil seepage problems and Coast Guard investigation “in the face of repeated inquiries by V.S.H. about the subject.” At the conclusion of a hearing on Texaco’s motion to dismiss all three counts, the district court announced without explanation that the contract claims should be dismissed. It also dismissed the common law fraud count at that time, stating that V.S.H. had failed to allege the required affirmative misrepresentation or implicit misrepresentation by partial and ambiguous statements. It deferred decision on the chapter 93A count, and in a latter written decision dismissed that count on two grounds: an Attorney General’s regulation upon which V.S.H. relied was not. intended to apply in a transaction between two sophisticated business entities, when one party agrees to take the property “as is”; and Texaco had no duty to disclose the oil seep-ages to V.S.H., and so its failure to do so could not have violated chapter 93A. Our approach to reviewing a dismissal of a complaint at such a preliminary stage of proceedings is necessarily informed by the teaching that we must consider “not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims”, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). With that view of our task in mind, we disagree with the action taken by the district court with respect to the counts based on chapter 93A and common law misrepresentation. V.S. H. ’s original complaint may well have been vague in some allegations, but we believe that it presented “enough information to ‘outline the elements of the pleaders’ claim’ ”, Kadar Corp. v. Milbury, 549 F.2d 230, 233 (1st Cir.1977) (quoting Wright & Miller, Federal Practice and Procedure § 1357). V.S.H. is therefore “entitled to be heard more fully than is possible on a motion to dismiss a complaint.” Scheuer, id. 416 U.S. at 250, 94 S.Ct. at 1693. We affirm the dismissal of the count based on breach of contract. We shall first discuss the counts based on common law misrepresentation and chapter 93A, ending with the count based on breach of contract. II. Sufficiency of the Complaint A. Common Law Misrepresentation V.S.H. bases its count for common law misrepresentation on Texaco’s partial disclosure of oil seepages, the deliberate concealment of other leaks and the failure to acknowledge the U.S. Coast Guard investigation of the spills. The failure to disclose is actionable, V.S.H. argues, because it repeatedly asked Texaco about oil leaks on the premises, yet Texaco knowingly made only partial disclosure of them. V.S.H. alleges that Texaco’s fragmentary disclosures induced it to enter into the contract, and caused it damage in the form of the $280,000 down payment which it otherwise would not have made. The district court dismissed the misrepresentation count because “[tjhere was no fiduciary duty here. The parties dealt at arm’s length with each other, and there was no peculiar duty to speak. There were no material misrepresentations on which the buyers relied.” What we face here, however, are allegations of partial or incomplete statements that may by their incompleteness be actionable. Restatement of Torts (Second), §§ 529, 551(2)(b). There is much case law in Massachusetts supporting the proposition that a party who discloses partial information that may be misleading has a duty to reveal all the material facts he knows to avoid deceiving the other party. “Although there may be ‘no duty imposed upon one party to a transaction to speak for the information of the other ... if he does speak with reference to a given point of information, voluntarily or at the other’s request, he is bound to speak honestly and to divulge all the material facts bearing upon the point that lie within his knowledge. Fragmentary information may be as misleading ... as active misrepresentation, and half-truths may be as actionable as whole lies____’ See Harper & James, Torts, § 7.14. See also Restatement: Torts, § 529; Williston, Contracts (2d ed.) §§ 1497-1499.” Kannavos v. Annino, 356 Mass. 42, 48, 247 N.E.2d 708 (1969). See also Maxwell v. Ratcliffe, 356 Mass. 560, 562-63, 254 N.E.2d 250 (1969) (“Because the question of the dryness of the cellar had been raised expressly, there was special obligation on the brokers to avoid half truths and to make disclosure at least of any facts known to them or with respect to which they had been put on notice.”); Nei v. Boston Survey Consultants, Inc., 388 Mass. 320, 322, 446 N.E.2d 681 (1983) (“[Tjhere is no suggestion that the defendants made a partial disclosure or stated a half truth which may be tantamount, under certain conditions, to a falsehood if there is no further expatiation.”); Nei v. Burley, 388 Mass. 307, 446 N.E.2d 674 (1983); Catalina Yachts v. Old Colony Bank & Trust Co., 497 F.Supp. 1227 (D.Mass.1980). This duty to avoid misrepresentations is so strong that the deceived party is not charged with failing to discover the truth. Snyder v. Sperry & Hutchinson Co., 368 Mass. 433, 446, 333 N.E.2d 421 (1975) (“[Ijf the seller’s representations are such as to induce the buyer not to undertake an independent examination of the pertinent facts, lulling him into placing confidence in the seller’s assurances, his failure to ascertain the truth through investigation does not preclude recovery.”). We believe the allegations in V.S. H.’s complaint regarding partial and ambiguous statements satisfy the requirements for stating a claim of misrepresentation. V.S.H. has alleged that it made “repeated inquiries” about oil leaks on the property, to which Texaco failed to fully respond. In addition, Texaco stated in an acknowledgement attached to the contract that it had “not received any notice, demand, or communication from any local county, state or federal department or agency regarding modifications or improvements to the facility or any part thereof.” Even if it is technically correct that Texaco had received no governmental communication specifically related to modifications or improvements to the facility, its failure to disclose the Coast Guard investigation of the property is arguably an actionable misrepresentation. The district court also recognized the ambiguity in Texaco’s assertion, noting that “the question whether that [the Coast Guard investigation] is a notice regarding modifications or improvements of the facility is a matter of argument.” Finally, and significantly, we note that Texaco affirmatively stated (with some implication of exclusivity) the existence of one leak. The combination of Texaco’s affirmative disclosure of one leak, its failure to disclose the others, and its failure to acknowledge alleged Coast Guard investigation of the seepages, at a minimum, makes this case a stronger one of misrepresentation than Nei v. Burley, 388 Mass. 307, 310, 446 N.E.2d 674, where the Supreme Judicial Court held that the defendants “did not convey half truths nor did they make partial disclosure of the kind which so often requires a full acknowledgement to avoid deception.” It is our conclusion, therefore, that the district court erred in dismissing the claim for common law misrepresentation. B. Breach of Mass.Gen.Laws Ann. ch. 93A Mass.Gen.Laws Ann. ch. 93A generally prohibits unfair or deceptive acts or practices in business. When it was first enacted in 1967, its primary goal was protection of consumers, Manning v. Zuckerman, 388 Mass. 8, 12, 444 N.E.2d 1262 (1983), but the addition of section 11 in 1972 extended chapter 93A’s coverage to business persons involved in transactions with other business persons. Id. Chapter 93A has been interpreted to be “ ‘a statute of broad impact which creates new substantive rights and provides- new procedural devices for the enforcement of those rights’ ”, id., (quoting Slaney v. Westwood Auto, Inc., 366 Mass. 688, 693, 322 N.E.2d 768 (1975)). “This act is one of several legislative attempts in recent years to regulate business activities with the view to providing proper disclosure of information ... ”, Commonwealth v. DeCotis, 366 Mass. 234, 316 N.E.2d 748 (1974). Chapter 93A § 2 provides no definition of an unfair or deceptive act or practice, and instead directs our attention to interpretations of unfair acts and practices under the Federal Trade Commission Act as construed by the Commission and the federal courts. Commonwealth v. DeCotis, 366 Mass, at 241, 316 N.E.2d 748; PMP Associates, Inc. v. Globe Newspaper Co., 366 Mass. 593, 595, 321 N.E.2d 915 (1975). The section also empowers the Attorney General to make rules and regulations interpreting § 2(a). See § 2(c). V.S.H. relies heavily on one such regulation to support its allegation that Texaco violated chapter 93A. The Attorney General’s regulation in Mass.Admin.Code tit. 20, § 3.16(2) states that an act or practice violates chapter 93A if: “Any person or other legal entity subject to this act fails to disclose to a buyer or prospective buyer any fact, the disclosure of which may have influenced the buyer or prospective buyer not to enter into the transaction.” V.S.H.’s complaint appears to state a claim under this regulation and, in fact, mirrors its language. V.S.H. alleged in paragraph 19 of its complaint that Texaco’s failure to disclose the oil leaks that V.S.H. representatives discovered in October 1983 “are facts the disclosure of which may have influenced V.S.H. not to enter into the transaction and agree to pay the sum of $2,800,000 for the premises or to pay a deposit in connection therewith of $280,-000.” The district court found an inadequacy in the complaint by concluding that the disclosure language of regulation § 3.16 is incomplete. The court decided that “unless a defendant has a duty to speak, his nondisclosure of a defect does not constitute a violation of chapter 93A even if the information may have influenced the buyer not to enter into the contract.” The court then went on to hold that Texaco did not have a duty to disclose the oil leaks to V.S.H. We disagree for two reasons. First, even if we were to accept the court’s premise that nondisclosure is a violation of chapter 93A only when there is a duty to disclose, we would find that V.S.H. has met its burden of establishing a duty by alleging that Texaco made partial or incomplete statements regarding the oil leaks on the property. See Restatement of Torts (Second) §§ 551, 529. See supra p. 415. We are not convinced, however, that V.S.H. needs to allege more than a failure to disclose a material fact to state a cause of action under chapter 93A. In Slaney v. Westwood Auto, Inc., 366 Mass. 688, 322 N.E.2d 768 (1975), the Massachusetts Supreme Judicial Court examined chapter 93A at length, and emphasized the distinction between that statutory cause of action and the common law action for fraud and deceit, which would require a duty to disclose. It pointed out that “the definition of an actionable ‘unfair or deceptive act or practice’ goes far beyond the scope of the common law action for fraud and deceit____ [A] § 9 [or § 11] claim for relief ... is not subject to the traditional limitations of preexisting causes of action such as tort for fraud and deceit.” Id., at 703-04, 322 N.E.2d 768. Massachusetts case law suggests that one difference between a fraud claim and the more liberal 93A is allowance of a cause of action even in the absence of a duty to disclose. See Nei v. Boston Survey Consultants, Inc., 388 Mass. 320, 323-24, 446 N.E.2d 681 (1983), where the court appeared ready to find chapter 93A liability even though it found no duty to speak. See also Nei v. Burley, 388 Mass. 307, 316, 446 N.E.2d 674 (1983). The district court, however, had another reason for dismissing the claim. It concluded that chapter 93A liability was precluded because V.S.H. is a sophisticated buyer who had the opportunity to inspect the property and who agreed to purchase the property “as is”. The court noted that “this type of contractual arrangement is expressly permitted under the Uniform Commercial Code, M.G.L. c. 106, § 2-316, in non-consumer sales of goods”, and it thus “would be anomalous to hold that ‘as is’ contracts are permissible in sales of goods cases but not in commercial sales of land cases.” It concluded: “Absent allegations of the non-detectability of defects on inspection or their fraudulent concealment by a defendant, a plaintiff who has inspected the premises to be purchased and has agreed to purchase the land ‘as is’ cannot rely on § 3.16(2) to establish a defendant’s viola: tion of chapter 93A.” We believe the district court’s view of the law regarding “as is” clauses is incorrect. Although the Uniform Commercial Code does expressly permit disclaimers in the sale of goods between merchants, § 2-316 refers specifically to disclaimers of implied warranties, suggesting to us that it was intended only to permit a seller to limit or modify the contractual bases of liability which the Code would otherwise impose on the transaction. The section does not appear to preclude claims based on fraud or other deceptive conduct. Section 1-102(3) of Mass.Gen.Laws ch. 106 lends support to this interpretation of § 2-316. It states: “The effect of provisions of this chapter may be varied by agreement, except as otherwise provided in this chapter and except that the obligations of good faith, diligence, reasonableness and care prescribed by this chapter may not be disclaimed by agreement ...” (emphasis added). We find further support for our view implicit in Marcil v. John Deere Industrial Equipment Co., 9 Mass.App. 625, 403 N.E.2d 430, app. denied, 380 Mass. 940 (1980). The court in that case upheld a disclaimer of all express and implied warranties other than the warranty specified on the purchase order, finding that there was no indication that the disclaimer was unconscionable. The court went on to note that the vaguely worded allegations of the plaintiff’s complaint may have stated claims for deceit or violation of chapter 93A, but the plaintiff failed to characterize them as such to the trial judge, and so he was not allowed to do so for the first time on appeal. Our reading of Marcil is that even if a disclaimer on its face is not unconscionable, it is subject to challenge if a plaintiff, as in this case, properly raises allegations of deceit and violation of chapter 93A. Our conclusion here does not mean that an “as is” clause would never be given effect in real estate transactions where the buyer alleged the seller’s failure to disclose a material defect in the property. The Supreme Judicial Court has’ held that § 3.16(2) imposes liability only when the defendant had knowledge, or should have known of the defect, and where a direct relationship existed between the parties. See Lawton v. Dracousis, 14 Mass.App. 164, 171, 437 N.E.2d 543, 547, app. denied, 387 Mass. 1103, 440 N.E.2d 1177 (1982) (failure to disclose building code violations not actionable where seller did not know or have reason to know of violations); Nei v. Boston Survey Consultants, Inc., 388 Mass. 320, 324, 446 N.E.2d 681 (1983). It is possible that § 3.16(2) will be found inapplicable in other situations involving “as is” clauses. Even more persuasive than this inferential reasoning based on the Uniform Commercial Code is the fact that Massachusetts case law unequivocally rejects assertion of an “as is” clause as an automatic defense against allegations of fraud: “The same public policy that in general sanctions the avoidance of a promise obtained by deceit strikes down all attempts to circumvent the policy by means of contractual devices. In the realm of fact it is entirely possible for a party knowingly to agree that no representations have been made to him, while at the same time believing and relying upon representations which in fact have been made and in fact are false but for which he would not have made the agreement.” Bates v. Southgate, 308 Mass. 170, 182, 31 N.E.2d 551 (1941). See also Schell v. Ford Motor Company, 270 F.2d 384, 386 (1st Cir.1959) (“under the law of Massachusetts ... in the absence of fraud a person may make a valid contract exempting himself from any liability to another which he may in the future incur as a result of his negligence____) (emphasis added). Texaco acknowledges that a party may not contract out of liability for fraud. It argues instead that the specific language of the disclaimer in this case precludes recovery by V.S.H., (i.e., that V.S.H. did not rely on any representations); Texaco relies heavily, however, on a case from another jurisdiction to support this proposition, Landale Enterprises, Inc. v. Berry, 676 F.2d 506 (11th Cir.1982). Bates v. Southgate, 308 Mass. 170, 31 N.E.2d 551 (1941), is the controlling precedent on this issue in Massachusetts, not Landale. Texaco also implies that the disclaimer must be given full effect because V.S.H. is a “sophisticated” purchaser, experienced in real estate transactions. Although we agree that V.S.H.’s experience in the real estate business, along with the presence of an “as is” clause, is relevant to the ultimate disposition of the chapter 93A claim, we do not find that either factor makes V.S.H.’s claim insufficient as a matter of law. Sophistication of the parties is not mentioned in chapter 93A and the amendment of chapter 93A to cover business entities did not limit the statute’s protection to small, unsophisticated businesses. It may be that the Massachusetts Supreme Judicial Court ultimately should decide the question of whether an “as is” clause ever should be ignored in a transaction between two sophisticated businesses and, thus, whether the existence of one should preclude a chapter 93A cause of action. We do not believe, however, that it would, or could, do so without development of a factual record. For that reason, and the absence of any contrary precedent in Massachusetts law, we conclude that the district court erred in dismissing the chapter 93A claim. C. Breach of Contract V.S.H. argues that Texaco breached the contract between them when it refused to return V.S.H.’s $280,000 down payment even though Texaco could not convey the Chelsea property free of all encumbrances, restrictions and liens. V.S.H.’s argument is that the oil seepages and barrier facility constructed to control the seepages subject the property and its owners to various penalties, which amount to encumbrances on the title. V.S.H. cites, among other statutes, the Massachusetts Oil and Hazardous Material Release Prevention Act, Mass. Gen.Laws Ann. ch. 21E. Section 5 of that statute imposes liability on the owner of a site at which there is or has been a release or threat of release of oil, and section 13 provides that the cost of clean-up may constitute a lien on the property of all persons liable under the statute. V.S.H. also points to Mass.Gen.Laws Ann. ch. 131, § 40, which prohibits the filling, dredging or altering of any bank bordering on any creek of any land subject to tidal action, coastal storm flowage or flooding, without permission from the local conservation commission. V.S.H. alleges in its complaint that the bank bordering on Chelsea Creek, and the land surrounding it, are subject to those environmental events, and that Texaco’s construction of a dam or barrier facility on its property following the Coast Guard investigation is a violation of the statute. The statute provides that anyone who acquires the property is responsible for restoring it to its prior condition, and that fines, imprisonment or injunctive relief may be obtained by the Attorney General, local officials or any group of ten Massachusetts residents. Texaco contends that V.S.H.’s citation to these Massachusetts statutes, and equivalent federal statutes, is insufficient because V.S.H. has not alleged enough facts to establish that conditions presently exist such that the property would be deemed encumbered by a statutory violation. As a general proposition, the “mere possibility” that someone might subject the purchaser to litigation is not enough to require a return of a deposit, Orenberg v. Johnston, 269 Mass. 312, 316, 168 N.E. 794 (1929). Sufficient facts must be alleged “showing that the property was or might be subject to adverse claims such as might reasonably be expected to expose the purchaser to controversy in order to maintain his title”, Hill v. Levine, 252 Mass. 513, 517, 147 N.E. 837 (1925) (emphasis added). On the other hand, V.S.H. cites several cases more hospitable to recognizing the existence of an encumbrance. In Silverblatt v. Livadas, 340 Mass. 474, 164 N.E.2d 875 (1960), it was held that a letter from a building inspector to a seller of property that a fire escape would have to be replaced by either the owner or the city (in which case a lien would be imposed) would not be an encumbrance made by the grant- or — even if, arguably, this kind of inchoate lien could constitute an encumbrance. In Sawl v. Kwiatkowski, 349 Mass. 712, 212 N.E.2d 228 (1965), the court held that a prospective buyer was not entitled to specific performance of a real estate contract because of a possible inheritance tax lien on the property. The master had found that there was a “ ‘reasonable probability’ ” that an inheritance tax was due and that “ ‘the probability of ... a lien ... [was] sufficiently great to render the tile non-marketable in the absence of ... evidence that [the locus was] free of such lien....’” Id. at 713, 212 N.E.2d 228. In Mahoney v. Nollman, 309 Mass. 522, 35 N.E.2d 265 (1941), the court ruled that a buyer was entitled to a return of its deposit because of a possible lien on the land in favor of a legatee who had not been satisfied by the testatrix' estate. Even though no specific claim had been made and the Attorney General was the only one who could enforce the lien, the court held that the title to the property was sufficiently doubtful: “The defendant is entitled to assume that [the Attorney General] will perform his duties in that respect in the matter of the estate of the testatrix. So far as appears, resort may be necessary to the land in question for satisfaction of these legacies for a public charity.” Id. at 527, 35 N.E.2d 265. We resolve this issue by affirming the district court. As far as any “encumbrance” attributable to chapter 21E, proscribing the release of oil and enabling the Commonwealth to secure its recovery of any clean-up costs by means of a lien, we note several missing links in the chain of imminency that characterized both Sawl and Mahoney. In the first place, nearly three months had elapsed between V.S.H.’s discovery of additional seepage and the filing of its complaint. Thus, the absence of any allegations concerning complaints or clean-up orders renders quite speculative their likely existence. In the second place, the appropriateness of any clean-up order was subject both to an adjudicatory administrative hearing and judicial review. Chapter 21E § 10. As for any encumbrance attributable to chapter 130 § 40, we note the nearly three month period mentioned above; the uncertainty of an encumbrance arising from the precondition of suit in equity being brought and won; and, finally, the fact that neither in the original nor amended complaint was there an allegation that Texaco, in responding to the Coast Guard investigation and constructing a dam or barrier on its bank bordering Chelsea Creek, did so without giving notice to and receiving permission from the appropriate authorities. In short, no violation of § 40 was alleged. We therefore cannot fault the district court for dismissing this count. For the foregoing reasons, we affirm the dismissal of the contract count, and reverse the judgment of the district court on the misrepresentation and chapter 93A counts, remanding for further proceedings consistent with this opinion. . When we consider the amended complaint, see appendix, rejected by the court, our conclusion takes on added strength. The new averments, especially paragraphs 10 and 13, seem to state a classical misrepresentation claim. Indeed, we cannot escape the impression that had the court directly focused on them, it might well have allowed the amendments. For it had earlier asked counsel for V.S.H. if he intended to amend, had learned that counsel would ask leave to amend if dismissal were contemplated, and had, on dismissing two counts, specifically noted that V.S.H. could file an amendment within a reasonable period of time. Counsel said he would await a formal ruling on all counts. Subsequently, as if the matter had fallen between stools, the court dismissed the entire complaint and, eight days later, V.S.H. served its motion on Texaco. Under these circumstances the short delay and absence of any likelihood of prejudice would have clearly indicated granting the motion for leave to amend under Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962) and Austin v. Unarco Industries, Inc., 705 F.2d 1 (1st Cir.1983) had the new averments received a focused attention. . This paragraph followed V.S.H.’s acknowledgement that various regulations may require it to spend substantial sums of money for improvements to the facility, and that it was willing to assume responsibility for compliance with all applicable regulations. In its amended complaint, V.S.H. alleged that it insisted on the disclaimer from Texaco because it knew that current landowners can be held liable for oil leaks, spills and related problems even if the actual environmental damage was caused by a prior owner. V.S.H.'s allegation implies that the Texaco disclaimer was its form of protection when it agreed to accept responsibility, since the disclaimer suggested that Texaco knew of no outstanding problems with the property. It may be that there was no significant problems. V.S.H. should be allowed to proceed on the basis of its allegations, however, to discover the extent, if any, of Texaco's culpability. . Chapter 93A reads, in relevant part, as follows: "§ 2. Unfair practices; legislative intent; rules and regulations (a) Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful. "§ 11. Any person who engages in the conduct of any trade or commerce and who suffers any loss of money or property, real or personal, as a result of the use or employment by another person who engages in any trade or commerce of an unfair method of competition or an unfair or deceptive act or practice declared unlawful by section two or by any rule or regulation issued under paragraph (c) of section two may ... bring an action____” . Texaco argues that § 3.16 actually condemns only failures to disclose that are unfair or deceptive as described by Massachusetts standards, Purity Supreme, Inc. v. Attorney General, 380 Mass. 762, 775, 407 N.E.2d 297 (1980), and that this is not such a case. While we agree with that general proposition, it is also true that "the existence of unfair acts and practices must be determined from the circumstances of each case”, Commonwealth v. DeCotis, 366 Mass. at 242, 316 N.E.2d 748; see also Mechanics National Bank of Worcester v. Killeen, 377 Mass. 1 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_jurisdiction

A

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ. CHAPMAN et al. v. UNITED STATES No. 90-5744. Argued March 26, 1991 Decided May 30, 1991 Rehnquist, C. J., delivered the opinion of the Court, in which White, Blackmun, O’ConnoR, Scalia, Kennedy, and SouteR, JJ., joined. Stevens, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 468. T. Christopher Kelly, by appointment of the Court, 498 U. S. 1045, argued the cause and filed briefs for petitioners. Donald Thomas Bergerson filed briefs for Stanley Marshall, respondent under this Court’s Rule 12.4, urging reversal. Paul J. Larkin, Jr., argued the cause for the United States. With him on the brief were Solicitor General Starr, Assistant Attorney General Mueller, and Deputy Solicitor General Bryson. Alan Ellis and Kevin Zeese filed a brief for the Drug Policy Foundation et al. as amici curiae urging reversal. Chief Justice Rehnquist delivered the opinion of the Court. Section 841(b)(l)(B)(v) of Title 21 of the United States Code calls for a mandatory minimum sentence of five years for the offense of distributing more than one gram of a “mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD).” We hold that it is the weight of the blotter paper containing LSD, and not the weight of the pure LSD, which determines eligibility for the minimum sentence. Petitioners Richard L. Chapman, John M. Schoenecker, and Patrick Brumm were convicted of selling 10 sheets (1,000 doses) of blotter paper containing LSD, in violation of § 841(a). The District Court included the total weight of the paper and LSD in determining the weight of the drug to be used in calculating petitioners’ sentences. Accordingly, although the weight of the LSD alone was approximately 50 milligrams, the 5.7 grams combined weight of LSD and blotter paper re-suited in the imposition of the mandatory minimum sentence of five years required by § 841(b)(l)(B)(v) for distributing more than 1 gram of a mixture or substance containing a detectable amount of LSD. The entire 5.7 grams was also used to determine the base offense level under the United States Sentencing Commission, Guidelines Manual (1990) (Sentencing Guidelines). Petitioners appealed, claiming that the blotter paper is only a carrier medium, and that its weight should not be included in the weight of the drug for sentencing purposes. Alternatively, they argued that if the statute and Sentencing Guidelines were construed so as to require inclusion of the blotter paper or other carrier medium when calculating the weight of the drug, this would violate the right to equal protection incorporated in the Due Process Clause of the Fifth Amendment. The Court of Appeals for the Seventh Circuit en banc held that the weight of the blotter paper or other carrier should be included in the weight of the “mixture or substance containing a detectable amount” of LSD when computing the sentence for a defendant convicted of distributing LSD. The Court of Appeals also found that Congress had a rational basis for including the carrier along with the weight of the drug, and therefore the statute and the Sentencing Guidelines did not violate the Constitution. United States v. Marshall, 908 F. 2d 1312 (1990). We granted certiorari, 498 U. S. 1011 (1990), and now affirm. Title 21 U. S. C. § 841(b)(1)(B) provides that “any person who violates subsection (a) of this section [making it unlawful to knowingly or intentionally manufacture, distribute, dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance] shall be sentenced as follows: “(1)(B) In the case of a violation of subsection (a) of this section involving— “(v) 1 gram or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD); “such person shall be sentenced to a term of imprisonment .which may not be less than 5 years . . . Section 841(b)(1)(A)(v) provides for a mandatory minimum of 10 years’ imprisonment for a violation of subsection (a) involving “10 grams or more of a mixture or substance containing a detectable amount of [LSD].” Section 2D1.1(c) of the United States Sentencing Commission, Guidelines Manual (1991) parallels the statutory language and requires the base offense level to be determined based upon the weight of a “mixture or substance containing a detectable amount of” LSD. According to the Sentencing Commission, the LSD in an average dose weighs 0.05 milligrams; there are therefore 20,000 pure doses in a gram. The pure dose is such an infinitesimal amount that it must be sold to retail customers in a “carrier.” Pure LSD is dissolved in a solvent such as alcohol, and either the solution is sprayed on paper or gelatin, or paper is dipped in the solution. The solvent evaporates, leaving minute amounts of LSD trapped in the paper or gel. Then the paper or gel is cut into “one-dose” squares and sold by the dose. Users either swallow the squares, lick them until the drug is released, or drop them into a beverage, thereby releasing the drug. Although gelatin and paper are light, they weigh much more than the LSD. The ten sheets of blotter paper carrying the 1,000 doses sold by petitioners weighed 5.7 grams; the LSD by itself weighed only about 50 milligrams, not even close to the one gram necessary to trigger the 5-year mandatory minimum of §841(b)(1)(B)(v). Petitioners argue that § 841(b) should not require that the weight of the carrier be included when computing the appropriate sentence for LSD distribution, for the words “mixture or substance” are ambiguous and should not be construed to reach an illogical result. Because LSD is sold by dose, rather than by weight, the weight of the LSD carrier should not be included when determining a defendant’s sentence because it is irrelevant to culpability. They argue that including the weight of the carrier leads to anomalous results, viz: a major wholesaler caught with 19,999 doses of pure LSD would not be subject to the 5-year mandatory minimum sentence, while a minor pusher with 200 doses on blotter paper, or even one dose on a sugar cube, would be subject to the mandatory minimum sentence. Thus, they contend, the weight of the carrier should be excluded, the weight of the pure LSD should be determined, and that weight should be used to set the appropriate sentence. We think that petitioners’ reading of the statute — a reading that makes the penalty turn on the net weight of the drug rather than the gross weight of the carrier and drug together — is not a plausible one. The statute refers to a'“mixture or substance containing a detectable amount.” So long as it contains a detectable amount, the entire mixture or substance is to be weighed when calculating the sentence. This reading is confirmed by the structure of the statute. With respect to various drugs, including heroin, cocaine, and LSD, it provides for mandatory minimum sentences for crimes involving certain weights of a “mixture or substance containing a detectable amount” of the drugs. With respect to other drugs, however, namely phencyclidine (PCP) or methamphetamine, it provides for a mandatory minimum sentence based either on the weight of a mixture or substance containing a detectable amount of the drug, or on lower weights of pure PCP or methamphetamine. For example, § 841(b)(1)(A)(iv) provides for a mandatory 10-year minimum sentence for any person who distributes “100 grams or more of. . . PCP ... or 1 kilogram or more of a mixture or substance containing a detectable amount of. . . PCP. . . .” Thus, with respect to these two drugs, Congress clearly distinguished between the pure drug and a “mixture or substance containing a detectable amount of” the pure drug. But with respect to drugs such as LSD, which petitioners distributed, Congress declared that sentences should be based exclusively on the weight of the “mixture or substance.” Congress knew how to indicate that the weight of the pure drug was to be used to determine the sentence, and did not make that distinction with respect to LSD. Petitioners maintain that Congress could not have intended to include the weight of an LSD carrier for sentencing purposes because the carrier will constitute nearly all of the weight of the entire unit, and the sentence will, therefore, be based on the weight of the carrier, rather than the drug. The same point can be made about drugs like heroin and cocaine, however, and Congress clearly intended the dilutant, cutting agent, or carrier medium to be included in the weight of those drugs for sentencing purposes. Inactive ingredients are combined with pure heroin or cocaine, and the mixture is then sold to consumers as a heavily diluted form of the drug. In some cases, the concentration of the drug in the mixture is very low. E. g., United States v. Buggs, 904 F. 2d 1070 (CA7 1990) (1.2% heroin); United States v. Dorsey, 198 U. S. App. D. C. 313, 591 F. 2d 922 (1978) (2% heroin); United States v. Smith, 601 F. 2d 972 (CA8) (2.7% and 8.5% heroin), cert. denied, 444 U. S. 879 (1979). But, if the carrier is a “mixture or substance containing a detectable amount of the drug,” then under the language of the statute the weight of the mixture or substance, and not the weight of the pure drug, is controlling. The history of Congress’ attempts to control illegal drug distribution shows why Congress chose the course that it did with respect to sentencing. The Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. 91-513, 84 Stat. 1236, divided drugs by schedules according to potential for abuse. LSD was listed in schedule 1(c), which listed “any material, compound, mixture, or preparation, which contains any quantity of the following hallucinogenic substances,” including LSD. Pub. L. 91-513, § 202(c). That law did not link penalties to the quantity of the drug possessed; penalties instead depended upon whether the drug was classified as a narcotic or not. The Controlled Substances Penalties Amendments Act of 1984, which was a chapter of the Comprehensive Crime Control Act of 1984, Pub. L. 98-473, 98 Stat. 2068, first made punishment dependent upon the quantity of the controlled substance involved. The maximum sentence for distribution of five grams or more of LSD was set at 20 years. 21 U. S. C. § 841(b)(l)(A)(iv) (1982 ed., Supp. II). The 1984 amendments were intended “to provide a more rational penalty structure for the major drug trafficking offenses,” S. Rep. No. 98-225, p. 255 (1983), by eliminating sentencing disparaties caused by classifying drugs as narcotic and nonnarcotic. Id., at 256. Penalties were based instead upon the weight of the pure drug involved. See United States v. McGeehan, 824 F. 2d 677, 681 (CA8 1987), cert. denied, 484 U. S. 1061 (1988). The current penalties for LSD distribution originated in the Anti-Drug Abuse Act of 1986, Pub. L. 99-570, 100 Stat. 3207. Congress adopted a “market-oriented” approach to punishing drug trafficking, under which the total quantity of what is distributed, rather than the amount of pure drug involved, is used to determine the length of the sentence. H. R. Rep. No. 98-845, pt. 1, pp. 11-12, 17 (1986). To implement that principle, Congress set mandatory minimum sentences corresponding to the weight of a “mixture or substance containing a detectable amount of” the various controlled substances, including LSD. 21 U. S. C. §§ 841(b)(1) (A)(i)-(viii) and (B)(i)-(viii). It intended the penalties for drug trafficking to be graduated according to the weight of the drugs in whatever form they were found—cut or uncut, pure or impure, ready for wholesale or ready for distribution at the retail level. Congress did not want to punish retail traffickers less severely, even though they deal in smaller quantities of the pure drug, because such traffickers keep the street markets going. H. R. Rep. No. 99-845, supra, at pt. 1, p. 12. We think that the blotter paper used in this case, and blotter paper customarily used to distribute LSD, is a “mixture or substance containing a detectable amount” of LSD. In so holding, we confirm the unanimous conclusion of the Courts of Appeals that have addressed the issue. Neither the statute nor the Sentencing Guidelines define the terms “mixture” and “substance,” nor do they have any established common-law meaning. Those terms, therefore, must be given their ordinary meaning. See Moskal v. United States, 498 U. S. 103, 108 (1990). A “mixture” is defined to include “a portion of matter consisting of two or more components that do not bear a fixed proportion to one another and that however thoroughly commingled are regarded as retaining a separate existence.” Webster’s Third New International Dictionary 1449 (1986). A “mixture” may also consist of two substances blended together so that the particles of one are diffused among the particles of the other. 9 Oxford English Dictionary 921 (2d ed. 1989). LSD is applied to blotter paper in a solvent, which is absorbed into the paper and ultimately evaporates. After the solvent evaporates, the LSD is left behind in a form that can be said to “mix” with the paper. The LSD crystals are inside of the paper, so that they are commingled with it, but the LSD does not chemically combine with the paper. Thus, it retains a separate existence and can be released by dropping the paper into a liquid or by swallowing the paper itself. The LSD is diffused among the fibers of the paper. Like heroin or cocaine mixed with cutting agents, the LSD cannot be distinguished from the blotter paper, nor easily separated from it. Like cutting agents used with other drugs that are ingested, the blotter paper, gel, or sugar cube carrying LSD can be and often is ingested with the drug. Petitioners argue that the terms “mixture” or “substance” cannot be given their dictionary meaning because then the clause could be interpreted to include carriers like a glass vial or an automobile in which the drugs are being transported, thus making the phrase nonsensical. But such nonsense is not the necessary result of giving the term “mixture” its dictionary meaning. The term does not include LSD in a bot-tie, or LSD in a car, because the drug is easily distinguished from, and separated from, such a “container.” The drug is clearly not mixed with a glass vial or automobile; nor has the drug chemically bonded with the vial or car. It may be true that the weights of containers and packaging materials generally are not included in determining a sentence for drug distribution, but that is because those items are also clearly not mixed or otherwise combined with the drug. Petitioners argue that excluding the weight of the LSD carrier when determining a sentence is consistent with established principles of statutory construction. First, they argue that the rule of lenity requires an ambiguous statute of this type to be construed in favor of the defendant. Petitioners also argue that the statute should be construed to avoid a serious constitutional question and an interpretation of the statute that would require it to be struck down as violating due process. The rule of lenity, however, is not applicable unless there is a “grievous ambiguity or uncertainty in the language and structure of the Act,” Huddleston v. United States, 415 U. S. 814, 831 (1974), such that even after a court has “‘seize[d] every thing from which aid can be derived,’” it is still “left with an ambiguous statute.” United States v. Bass, 404 U. S. 336, 347 (1971) (quoting United States v. Fisher, 2 Cranch 358, 386 (1805)). “The rule [of lenity] 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.” Callanan v. United States, 364 U. S. 587, 596 (1961). See also, e. g., Moskal v. United States, supra, at 107-108. The statutory language and structure indicate that the weight of a carrier should be included as a “mixture or substance containing a detectable amount” of LSD when determining the sentence for an LSD distributor. A straightforward reading of § 841(b) does not produce a result “so ‘absurd or glaringly unjust,’” United States v. Rodgers, 466 U. S. 475, 484 (1984) (citation omitted), as to raise a “reasonable doubt” about Congress’ intent. Moskal v. United States, supra, at 108. There is no reason to resort to the rule of lenity in these circumstances. Petitioners also argue that constructions which cast doubt on a statute’s constitutionality should be avoided, citing Public Citizen v. Department of Justice, 491 U. S. 440, 465-466 (1989). “ ‘[E]very reasonable construction must be resorted to, in order to save a statute from unconstitutionality,”’ Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U. S. 568, 575 (1988), but reading “mixture” to include blotter paper impregnated with LSD crystals is not only a reasonable construction of § 841(b), but it is one that does not raise “grave doubts” about the constitutionality of the provision. United States v. Jin Fuey Moy, 241 U. S. 394, 401 (1916). The canon of construction that a court should strive to interpret a statute in a way that will avoid an unconstitutional construction is useful in close cases, but it is “ ‘not a license for the judiciary to rewrite language enacted by the legislature.’” United States v. Monsanto, 491 U. S. 600, 611 (1989). Petitioners’ argument is unavailing here for the reasons we explain below. Petitioners argue that the due process of law guaranteed them by the Fifth Amendment is violated by determining the lengths of their sentences in accordance with the weight of the LSD “carrier,” a factor which they insist is arbitrary. They argue preliminarily that the right to be free from deprivations of liberty as a result of arbitrary sentences is fundamental, and therefore the statutory provision at issue may be upheld only if the Government has a compelling interest in the classification in question. But we have never subjected the criminal process to this sort of truncated analysis, and we decline to do so now. Every person has a fundamental right to liberty in the sense that the Government may not punish him unless and until it proves his guilt beyond a reasonable doubt at a criminal trial conducted in accordance with the relevant constitutional guarantees. Bell v. Wolfish, 441 U. S. 520, 535, 536, and n. 16 (1979). But a person who has been so convicted is eligible for, and the court may impose, whatever punishment is authorized by statute for his offense, so long as that penalty is not cruel and unusual, McMillan v. Pennsylvania, 477 U. S. 79, 92, n. 8 (1986); Meachum v. Fano, 427 U. S. 215, 224 (1976), and so long as the penalty is not based on an arbitrary distinction that would violate the Due Process Clause of the Fifth Amendment. In this context, as we noted in Jones v. United States, 463 U. S. 354, 362, n. 10 (1983), an argument based on equal protection essentially duplicates an argument based on due process. We find that Congress had a rational basis for its choice of penalties for LSD distribution. The penalty scheme set out in the Anti-Drug Abuse Act of 1986 is intended to punish severely large-volume drug traffickers at any level. H. R. Rep. No. 99-845, pt. 1, at 12, 17. It assigns more severe penalties to the distribution of larger quantities of drugs. By measuring the quantity of the drugs according to the “street weight” of the drugs in the diluted form in which they are sold, rather than according to the net weight of the active component, the statute and the Sentencing Guidelines increase the penalty for persons who possess large quantities of drugs, regardless of their purity. That is a rational sentencing scheme. This is as true with respect to LSD as it is with respect to other drugs. Although LSD is not sold by weight, but by dose, and a carrier medium is not, strictly speaking, used to “dilute” the drug, that medium is used to facilitate the distribution of the drug. Blotter paper makes LSD easier to transport, store, conceal, and sell. It is a tool of the trade for those who traffic in the drug, and therefore it was rational for Congress to set penalties based on this chosen tool. Congress was also justified in seeking to avoid arguments about the accurate weight of pure drugs which might have been extracted from blotter paper had it chosen to calibrate sentences according to that weight. Petitioners do not claim that the sentencing scheme at issue here has actually produced an arbitrary array of sentences, nor did their motions in District Court contain any proof of actual disparities in sentencing. Rather, they challenge the Act on its face on the ground that it will inevitably lead to arbitrary punishments. While hypothetical cases can be imagined involving very heavy carriers and very little LSD, those cases are of no import in considering a claim by persons such as petitioners, who used a standard LSD carrier. Blotter paper seems to be the carrier of choice, and the vast majority of cases will therefore do exactly what the sentencing scheme was designed to do — punish more heavily those who deal in larger amounts of drugs. Petitioners argue that those selling different numbers of doses, and, therefore, with different degrees of culpability, will be subject to the same minimum sentence because of choosing different carriers. The same objection could be made to a statute that imposed a fixed sentence for distributing any quantity of LSD, in any form, with any carrier. Such a sentencing scheme — not considering individual degrees of culpability — would clearly be constitutional. Congress has the power to define criminal punishments without giving the courts any sentencing discretion. Ex parte United States, 242 U. S. 27 (1916). Determinate sentences were found in this country’s penal codes from its inception, see United States v. Grayson, 438 U. S. 41, 45-46 (1978), and some have remained until the present. See, e. g., 18 U. S. C. §1111 (mandatory life imprisonment under federal first-degree-murder statute); 21 U. S. C. § 848(b) (mandatory life imprisonment for violation of drug “super-kingpin” statute); 18 U. S. C. §2114 (1982 ed.) (flat 25-year sentence for armed robbery of a postal carrier) (upheld against due process challenge in United States v. Smith, 602 F. 2d 834 (CA8), cert. denied, 444 U. S. 902 (1979), and Smith v. United States, 284 F. 2d 789, 791 (CA5 1960)). A sentencing scheme providing for “individualized sentences rests not on constitutional commands, but on public policy enacted into statutes.” Lockett v. Ohio, 438 U. S. 586, 604-605 (1978) (plurality opinion). See also Mistretta v. United States, 488 U. S. 361, 364 (1989). That distributors of varying degrees of culpability might be subject to the same sentence does not mean that the penalty system for LSD distribution is unconstitutional. We likewise hold that the statute is not unconstitutionally vague. First Amendment freedoms are not infringed by §841, so the vagueness claim must be evaluated as the statute is applied to the facts of this case. United States v. Powell, 423 U. S. 87, 92 (1975). The fact that there may be plausible arguments against describing blotter paper impregnated with LSD as a “mixture or substance” containing LSD does not mean that the statute is vague. This is particularly so since whatever debate there is would center around the appropriate sentence and not the criminality of the conduct. We upheld the defendant’s conviction in United States v. Rodgers, 466 U. S. 475 (1984), even though the Court of Appeals for the Circuit in which the defendant had resided had construed the statute as not applying to one in his position. Here, on the contrary, all of the Courts of Appeals that have decided the issue, and all except one District Court, United States v. Healy, 729 F. Supp. 140 (DC 1990), have held that the weight of the carrier medium must be included in determining the appropriate sentence. We hold that the statute requires the weight of the carrier medium to be included when determining the appropriate sentence for trafficking in LSD, and that this construction is neither a violation of due process nor unconstitutionally vague. Accordingly, the judgment of the Court of Appeals is Affirmed. Chapman was sentenced to 96 months; Schoenecker was sentenced to 63 months; and Brumm was sentenced to 60 months’ imprisonment. Brief for Petitioners 4. Likewise, under the Sentencing Guidelines, those selling the same number of doses would be subject to widely varying sentences depending upon which carrier medium was used. For example, those selling 100 doses would receive the following disparate sentences: Brief for Petitioners 11 (footnotes omitted). Even among dealers using blotter paper, the sentences can vary because the weight of the blotter paper varies from dealer to dealer. Petitioners’ blotter paper, containing 1,000 doses of LSD, weighed 5.7 grams, or 5.7 milligrams per dose. In United States v. Rose, 881 F. 2d 386, 387 (CA7 1989), 472 doses on blotter paper weighed 7.3 grams, or 15.4 milligrams per dose. In United States v. Elrod, 898 F. 2d 60 (CA6 1990), 1,990 doses on blotter paper weighed 11 grams, or 5.5 milligrams per dose. In United States v. Healy, 729 F. Supp. 140, 141 (DC 1990), 5,000 doses on blotter paper weighed 44.133 grams, or 8.8 milligrams per dose. United States v. Larsen, 904 F. 2d 562 (CA10 1990); United States v. Elrod, 898 F. 2d 60 (CA6), cert. denied, 498 U. S. 835 (1990); United States v. Bishop, 894 F. 2d 981, 985-987 (CA8 1990); United States v. Daly, 883 F. 2d 313, 316-318 (CA4 1989), cert. denied, 498 U. S. 1116 (1990); United States v. Rose, 881 F. 2d 386 (CAT 1989); United States v. Taylor, 868 F. 2d 125, 127-128 (CA5 1989). Petitioners point to the views of some Members of Congress that the use of the phrase “mixture or substance containing a detectable amount of LSD” was less than precise. These views were manifested by the introduction of bills in the Senate that would have excluded LSD carrier mediums from the “mixture or substance” clause. Neither of the bills was enacted into law, and it is questionable whether they even amount to subsequent legislative history—itself an unreliable guide to legislative intent. See Pierce v. Underwood, 487 U. S. 552, 566-567 (1988); Quern v. Mandley, 436 U. S. 725, 736, n. 10 (1978). Every Court of Appeals to have addressed the issue has held that this sentencing scheme is rational. See United States v. Mendes, 912 F. 2d 434, 438-439 (CA10 1990); see United States v. Murphy, 899 F. 2d 714, 717 (CA8 1990); United States v. Bishop, 894 F. 2d, at 986-987; United States v. Holmes, 838 F. 2d 1175, 1177-1178 (CA11), cert. denied, 486 U. S. 1058 (1988); United States v. Klein, 860 F. 2d 1489, 1501 (CA9 1988); United States v. Hoyt, 879 F. 2d 505, 512 (CA9 1989); United States v. Savinovich, 845 F. 2d 834, 839 (CA9), cert. denied, 488 U. S. 943 (1988); United States v. Ramos, 861 F. 2d 228, 231-232 (CA9 1988). We note that distributors of LSD make their own choice of carrier and could act to minimize their potential sentences. As it is, almost all distributors choose blotter paper, rather than the heavier and bulkier sugar cubes. Question: What is the manner in which the Court took jurisdiction? A. cert B. appeal C. bail D. certification E. docketing fee F. rehearing or restored to calendar for reargument G. injunction H. mandamus I. original J. prohibition K. stay L. writ of error M. writ of habeas corpus N. unspecified, other Answer:

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. KLEHR et ux. v. A. O. SMITH CORP. et al. No. 96-663. Argued April 21, 1997 Decided June 19, 1997 Breyer, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Kennedy, Souter, and Ginsburg, JJ., joined, and in which Scalia and Thomas, JJ., joined as to Part III. Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which Thomas, J., joined, post, p. 196. Charles A. Bird argued the cause for petitioners. With him on the briefs were Mary R. Vasaly, Michael C. McCarthy, and Malcolm McCune. Bruce J. Ennis, Jr., argued the cause for respondents. With him on the brief were Frederick W. Morris, Blake Shepard, Jr., Jeffrey E. Grell, Nory Miller, and Kathleen M. Massey. Briefs of amici curiae urging reversal were filed for the National Association of Securities and Commercial Law Attorneys by Kevin P. Roddy, G. Robert Blakey, Patrick E. Cafferty, Bryan L. Clobes, and Jonathan W. Cuneo; and for Plaintiffs’ Executive Committee, MDL No. 1069, et al. by Richard B. McNamara, Gregory A. Holmes, Stephanie A. Bray, Martin J. Oberman, Alice W. Ballard, Michael M. Baylson, Charles Barnhill, Jr., Judson Miner, and Edward R. Garvey. Briefs of amici curiae urging affirmance were filed for the National Association of Manufacturers by Alfred W. Córtese, Jr., Daniel I. Prywes, Michael F. Wasserman, Jan S. Amundson, and Quentin Riegel; for the National Hockey League by Michael A. Cardozo, Steven C. Krane, and William L. Daly; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp. Philip Allen Lacovara, Evan M. Tager, and Phillip E. Stano filed a brief for the American Council of Life Insurance et al. as amici curiae. Justice Breyer delivered the opinion of the Court. The petition in this case asked us to consider two aspects of “statute of limitations” law. One concerns the date upon which a civil action accrues under the Racketeer Influenced and Corrupt Organizations Act and the limitations period starts to run. The other concerns “fraudulent concealment,” a doctrine that extends the time for a plaintiff to file suit. In respect to the first, we focus upon, and disapprove, an accrual rule followed in the Third Circuit called the “last predicate act” rule. In respect to the second, we hold that a plaintiff may not rely upon “fraudulent concealment” unless he has been reasonably diligent in trying to discover his cause of action. I The Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C. §§ 1961-1968, among other things, makes it a crime “to conduct” an “enterprise’s affairs through a pattern of racketeering activity.” § 1962(c). The phrase “racketeering activity” is a term of art defined in terms of activity that violates other laws, including more than 50 specifically mentioned federal statutes, which forbid, for example, murder-for-hire, extortion, and various kinds of fraud. § 1961(1). The word “pattern” is also a term of art defined to require “at least two acts of racketeering activity,. .. the last of which occurred within ten years ... after the commission of a prior act of racketeering activity.” § 1961(5). A special RICO provision — commonly known as civil RICO — permits “[a]ny person injured in his business or property by reason of a violation” of RICO’s criminal provisions to recover treble damages and attorney’s fees. § 1964(c). RICO does not say what limitations period governs the filing of civil RICO claims. But in Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U. S. 143, 156 (1987), this Court held that civil RICO actions are subject to the 4-year limitations period contained in § 4B of the Clayton Act (Antitrust), as added by 69 Stat. 283, and as amended, 15 U. S. C. § 15b — the statute of limitations that governs private civil antitrust actions seeking treble damages; Marvin and Mary Klehr, the petitioners here, are dairy farmers. They filed this civil RICO action on August 27, 1993, claiming that A. O. Smith Corporation and A. O. Smith Harvestore Products, Inc. (whom we shall simply call “Harvestore”), had committed several acts of mail and wire fraud, 18 U. S. C. §§ 1341, 1343, thereby violating RICO and causing them injury. Their injury, they said, began in 1974, when Harvestore sold them a special “Harvestore” brand silo, which they used for storing cattle feed. The Klehrs alleged that they bought the silo in reliance on Harvestore’s representations, made through advertisements and a local dealer, that the silo would limit the amount of oxygen in contact with the silage, thus preventing moldy and fermented feed, and thereby producing healthier cows, more milk, and higher profits. The representations, they claim, were false; the silo did not keep oxygen away from the feed, the feed became moldy and fermented, the cows ate the bad feed, and milk production and profits went down. They add that Harvestore committed other acts — consisting primarily of additional representations made to them and to others and sales made to others — over a period of many years after 1974. Harvestore, pointing out that the Klehrs had filed suit almost 20 years after they had bought the silo, moved to dismiss the lawsuit on the ground that the limitations period had long since run. The Klehrs could not file suit, Harvestore said, unless their claim had accrued within the four years prior to filing, i. e., after August 25, 1989, or unless some special legal doctrine nonetheless tolled the running of the limitations period or estopped Harvestore from asserting a statute of limitations defense. See Holmberg v. Armbrecht, 327 U. S. 392, 396-397 (1946); Bailey v. Glover, 21 Wall. 342, 349-350 (1875); Cada v. Baxter Healthcare Corp., 920 F. 2d 446, 450-451 (CA7 1990), cert. denied, 501 U. S. 1261 (1991). The Klehrs responded by producing evidentiary material designed to support a legal justification for the late filing. Essentially they claimed that Harvestore had covered up its fraud — preventing them from noticing the silo’s malfunction — for example, by means of an unloading device that hid the mold by chopping up the feed instantly as it emerged; through continued dealer misrepresentations; with advertisements that tried to convince farmers that warm, brown, molasses-smelling feed was not fermented feed, but good feed; and even by hanging on the silo itself a plaque that said: “DANGER DO NOT ENTER NOT ENOUGH OXYGEN TO SUPPORT LIFE” Not until 1991, say the Klehrs, did they become sufficiently suspicious to investigate the silo, at which time, by opening the silo wall and chopping through the feed with an ice chisel, they discovered “ ‘mold hanging all over the silage.’ ” Brief for Petitioners 16. The District Court, after examining the Klehrs’ evidence, found their lawsuit untimely. The Eighth Circuit affirmed the dismissal, and said that a civil RICO action accrues “ ‘as soon as the plaintiff discovers, or reasonably should have discovered, both the existence and source of his injury and that the injury is part of a pattern.’ ” 87 F. 3d 231, 238 (1996) (quoting Association of Commonwealth Claimants v. Moylan, 71 F. 3d 1398, 1402 (CA8 1995)). After examining the Klehrs’ evidence de novo, the Circuit held that they failed to satisfy the standard. It said they had suffered “one single, continuous injury . . . sometime in the 1970s”; and that they should have discovered “the existence and source of [their] injury,” as well as any related “pattern,” well before August 1989. 87 F. 3d, at 239. The Circuit refused to find “fraudulent concealment” because, among other things, the Klehrs had not been sufficiently “diligen[t].” Id., at 238, 239, n. 11. We granted certiorari in this case to consider the Klehrs’ claim in light of a split of authority among the Courts of Appeals. Two other Circuits, like the Eighth Circuit here, have applied forms of an “injury and pattern discovery” civil RICO accrual rule. Bivens Gardens Office Building, Inc. v. Barnett Bank, 906 F. 2d 1546, 1554-1555 (CA11 1990), cert. denied, 500 U. S. 910 (1991); Bath v. Bushkin, Gaims, Gaines & Jonas, 913 F. 2d 817, 820 (CA10 1990). Other Circuits have applied forms of an “injury discovery” rule, i. e., without the “pattern.” See Grimmett v. Brown, 75 F. 3d 506, 511 (CA9 1996), cert. dism’d as improvidently granted, 519 U. S. 233 (1997); McCool v. Strata Oil Co., 972 F. 2d 1452, 1464-1465 (CA7 1992); Rodriguez v. Banco Central Corp., 917 F. 2d 664, 665-666 (CA1 1990); Bankers Trust Co. v. Rhoades, 859 F. 2d 1096, 1102 (CA2 1988), cert. denied, 490 U. S. 1007 (1989); Pocahontas Supreme Coal Co. v. Bethlehem Steel Corp., 828 F. 2d 211, 220 (CA4 1987); see also Riddell v. Riddell Washington Corp., 866 F. 2d 1480, 1489-1490 (CADC 1989) (assuming, but not deciding, that injury discovery rule applies). One court, the Third Circuit, has applied a “last predicate act” rule, which we shall discuss below. We also agreed to decide the Klehrs’ argument that “reasonable diligence” is not a necessary component of the doctrine of “fraudulent concealment.” For reasons we shall describe, we affirm the judgment of the Court of Appeals. II A We shall first discuss the Third Circuit’s accrual rule — the “last predicate act” rule — for it is the only accrual rule that can help the Klehrs. Like the Eighth Circuit, the Third Circuit believes that the limitations period starts to run when a plaintiff knew or should have known that the RICO claim (including a “pattern of racketeering activity”) existed, but the Third Circuit has added an important exception, which it states as follows: “[If], as a part of the same pattern of racketeering activity, there is further injury to the plaintiff or further predicate acts occur, . . . the accrual period shall run from the time when the plaintiff knew or should have known of the last injury or the last predicate act which is part of the same pattern of racketeering activity. The last predicate act need not have resulted in injury to the plaintiff but must be part of the same pattern.” Keystone Ins. Co. v. Houghton, 863 F. 2d 1125, 1130 (1988). For purposes of assessing the rule’s lawfulness, we assume, as do the Klehrs, that this rule means that as long as Harvestore committed one predicate act within the limitations period (i. e., the four years preceding suit), the Klehrs can recover, not just for any added harm caused them by that late-committed act, but for all the harm caused them by all the acts that make up the total “pattern.” We also assume that they can show at least one such late-committed act. Finally, we note that the point of difference between the Third Circuit and the other Circuits has nothing to do with the plaintiff’s state of mind or knowledge. It concerns only the accrual consequences of a late-committed act. Consequently, we can consider the merits of the rule on the simplifying assumption that the plaintiff is perfectly knowledgeable. We conclude that the Third Circuit’s rule is not a proper interpretation of the law. We have two basic reasons. First, as several other Circuits have pointed out, the last predicate act rule creates a limitations period that is longer than Congress could have contemplated. Because a series of predicate acts (including acts occurring at up to 10-year intervals) can continue indefinitely, such an interpretation, in principle, lengthens the limitations period dramatically. It thereby conflicts with a basic objective — repose—that underlies limitations periods. See Wilson v. Garcia, 471 U. S. 261, 271 (1985) (citing Adams v. Woods, 2 Cranch 336, 342 (1805)); Crown, Cork & Seal Co. v. Parker, 462 U. S. 345, 352 (1983). Indeed, the rule would permit plaintiffs who know of the defendant’s pattern of activity simply to wait, “sleeping on their rights,” ibid., as the pattern continues and treble damages accumulate, perhaps bringing suit only long after the “memories of witnesses have faded or evidence is lost,” Wilson, supra, at 271. We cannot find in civil RICO a compensatory objective that would warrant so significant an extension of the limitations period, and civil RICO’s further purpose — encouraging potential private plaintiffs diligently to investigate, see Malley-Duff, 483 U. S., at 151—suggests the contrary. We recognize that RICO’s criminal statute of limitations runs from the last, i. e., the most recent, predicate act. But there are significant differences between civil and criminal RICO actions, and this Court has held that criminal RICO does not provide an apt analogy. Id., at 155-156 (declining to apply criminal RICO’s 5-year statute of limitations to civil RICO actions and noting “competing equities unique to civil RICO actions or, indeed, any other federal civil remedy”). Second, the Third Circuit rule is inconsistent with the ordinary Clayton Act rule, applicable in private antitrust treble damages actions, under which “a cause of action accrues and the statute begins to run when a defendant commits an act that injures a plaintiff’s business.” Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U. S. 321, 338 (1971); Connors v. Hallmark & Son Coal Co., 935 F. 2d 336, 342, n. 10 (CADC 1991); 1 C. Corman, Limitation of Actions § 6.5.5.1, p. 449 (1991) (hereinafter Corman); 2 P. Areeda & H. Hovenkamp, Antitrust Law ¶ 338b, p. 145 (rev. ed. 1995) (hereinafter Areeda). We do not say that a pure injury accrual rule always applies without modification in the civil RICO setting in the same way that it applies in traditional antitrust eases. For example, civil RICO requires not just a single act, but rather a “pattern” of acts. Furthermore, there is some debate as to whether the running of the limitations period depends on the plaintiff’s awareness of certain elements of the cause of action. As we said earlier, however, for purposes of evaluating the Third Circuit’s rule we can assume knowledgeable parties. Hence the special problems associated with a discovery rule, see Part II — B, infra, are not at issue. And we believe, in these circumstances, the Clayton Act analogy is helpful. In Malley-Duff, this Court indicated why the analogy is useful. It concluded “that there is a need for a uniform statute of limitations for civil RICO, that the Clayton Act clearly provides a far closer analogy than any available state statute, and that the federal policies that lie behind RICO and the practicalities of RICO litigation make the selection of the 4-year statute of limitations for Clayton Act actions . . . the most appropriate limitations period for RICO actions.” 483 U. S., at 156 (citing 15 U. S. C. § 15b). The Court left open the accrual question. But it did not rule out the use of a Clayton Act analogy. As the Court has explained, Congress consciously patterned civil RICO after the Clayton Act. 483 U. S., at 150-151 (comparing 15 U. S. C. § 15(a) with 18 U. S. C. § 1964(c)); see also Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 489 (1985). And by the time civil RICO was enacted, the Clayton Act’s accrual rule was well established. See Crummer Co. v. DuPont, 223 F. 2d 238, 247-248 (CA5), cert. denied, 350 U. S. 848 (1955); Foster & Kleiser Co. v. Special Site Sign Co., 85 F. 2d 742, 750-751 (CA9 1936), cert. denied, 299 U. S. 613 (1937); Bluefields S. S. Co. v. United Fruit Co., 243 F. 1, 20 (CA3 1917). The Clayton Act helps here because it makes clear precisely where, and how, the Third Circuit’s rule goes too far. Antitrust law provides that, in the case of a “continuing violation,” say, a price-fixing conspiracy that brings about a series of unlawfully high priced sales over a period of years, “each overt act that is part of the violation and that injures the plaintiff,” e. g., each sale to the plaintiff, “starts the statutory period running again, regardless of the plaintiff’s knowledge of the alleged illegality at much earlier times.” 2 Areeda ¶ 338b, at 145 (footnote omitted); see also Zenith, supra, at 338; Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U. S. 481, 502, n. 15 (1968); DXS, Inc. v. Siemens Medical Systems, Inc., 100 F. 3d 462, 467 (CA6 1996). But the commission of a separate new overt act generally does not permit the plaintiff to recover for the injury caused by old overt acts outside the limitations period. Zenith, supra, at 338; Pennsylvania Dental Assn. v. Medical Serv. Assn., 815 F. 2d 270, 278 (CA3), cert. denied, 484 U. S. 851 (1987); Hennegan v. Pacifico Creative Serv., Inc., 787 F. 2d 1299, 1300 (CA9), cert. denied, 479 U. S. 886 (1986); National Souvenir Center v. Historic Figures, Inc., 728 F. 2d 503, 509 (CADC), cert. denied sub nom. C. M. Uberman Enterprises, Inc. v. Historic Figures, Inc., 469 U. S. 825 (1984); Imperial Point Colonnades Condominium, Inc. v. Mangurian, 549 F. 2d 1029, 1034-1035 (CA5 1977); Crummer Co., supra, 247-248. Cf. 2 Areeda ¶ 338b, at 149. Similarly, some Circuits have adopted a “separate accrual” rule in civil RICO cases, under which the commission of a separable, new predicate act within a 4-year limitations period permits a plaintiff to recover for the additional damages caused by that act. But, as in the antitrust cases, the plaintiff cannot use an independent, new predicate act as a bootstrap to recover for injuries caused by other earlier predicate acts that took place outside the limitations period. See, e. g., Grimmett, 75 F. 3d, at 512-514; McCool v. Strata Oil Co., 972 F. 2d, at 1465-1466, and n. 10; Bivens Gardens Office Building, Inc. v. Barnett Bank, 906 F. 2d, at 1552, n. 9; State Farm Mut. Auto. Ins. Co. v. Ammann, 828 F. 2d 4, 5 (CA9 1987) (Kennedy, J., concurring). But see Bingham v. Zolt, 66 F. 3d 553, 560 (CA2 1995) (citing Bankers Trust, 859 F. 2d, at 1103). Thus, the Klehrs may point to new predicate acts that took place after August 1989, such as sales to other farmers or the printing of new Harvestore advertisements. But that fact does not help them, for, as the Court of Appeals pointed out, they have not shown how any new act could have caused them harm over and above the harm that the earlier acts caused. 87 F. 3d, at 239. Nor can the presence of the new act help them recover for the injuries caused by pre-1989 acts, for it is in this respect that we find the Third Circuit’s rule incorrect. Petitioners also point to Zenith, a case in which this Court considered antitrust damages that were so “speculative” or “unprovable,” 401 U. S., at 339, at the time of a defendant’s unlawful act (and plaintiff’s initial injury) that to follow the normal accrual rule (starting the limitations period at the point the act first causes injury) would have left the plaintiff without relief. This Court held that, in such a case, a claim for the injuries that had been speculative would accrue when those injuries occurred, even though the act that caused them had taken place more than four years earlier. Id., at 339-340. This case does not help the petitioners here, however, for their injuries — the harm to their farm — have always been specific and calculable. B We recognize that our holding in Part II-A does not resolve other conflicts among the Circuits. For' example, the Circuits have applied “discovery” accrual rules, which extend accrual periods for plaintiffs who could not reasonably obtain certain key items of information. The use of a discovery rule may reflect the fact that a high percentage of civil RICO cases, unlike typical antitrust cases, involve fraud claims. See Sedima, supra, at 499, n. 16 (most civil RICO claims involve underlying fraud offense); 1 A. Mathews, A. Weissman, & J. Sturc, Civil RICO Litigation, p. 1-6 (2d ed. 1992) (citing Report of the Ad Hoc Civil RICO Task Force of the ABA Section of Corporation, Banking and Business Law 243 (1985)) (as of 1985, approximately 90% of civil RICO cases resulting in a published decision involved mail, wire, or securities fraud as a predicate offense); cf. Connors, 935 F. 2d, at 342 (federal courts generally apply discovery accrual rule when statute does not call for a different rule); 1 Corman § 6.5.5.1, at 449 (same). Moreover, different Circuits have applied discovery accrual rules that differ, one from the other, in important ways. Compare, e. g., Bankers Trust, supra, at 1103 (civil RICO cause of action accrues when the plaintiff discovers or should have discovered his injury), with 87 F. 3d, at 238 (civil RICO cause of action accrues when, in addition, plaintiff discovers or should have discovered the “source” of injury and a “pattern”). We further realize that, contrary to our assumption in Part II-A, supra (where we discussed a legal issue in respect to which knowledge was irrelevant), the Klehrs did claim that they lacked knowledge of the faulty silo — the “source” of their injury. But that particular “lack of knowledge” claim does not require us to consider the various “discovery rule” differences among the Circuits, because the Klehrs failed the “knowledge” test that favors them the most — the Eighth Circuit’s “injury plus source plus pattern” rule. That rule would have found the Klehrs’ action timely had it not been the case that the Klehrs reasonably “should have discovered” all of those elements prior to 1989. 87 F. 3d, at 239. If the Klehrs cannot fit their case through the Eighth Circuit’s larger hole, they cannot squeeze it through a smaller one. In addition, the major difference among the Circuits— whether a discovery rule includes knowledge about a “pattern” — is clearly not at issue here. Harvestore marketed and sold its “oxygen-limiting” silos for many years before the Klehrs purchased theirs, and the Klehrs have not claimed lack of knowledge of a “pattern.” Nor has anyone argued any other legal differences among the Circuits’ various tests that would affect the outcome in this case. In these circumstances, we believe we should not consider differences among the various discovery accrual rules used by the Circuits. The legal questions involved may be subtle and difficult. Compare id., at 238 (claim accrues with discovery of existence and source of injury, plus pattern), with Bivens Gardens, supra, at 1554 (claim accrues with discovery of injury and pattern); see also Cada, 920 F. 2d, at 451 (describing differences among various discovery rules and doctrines of “equitable tolling” and “equitable estoppel”). And the facts of this case do not force focused argument as to how the traditional Clayton Act “injury” accrual rule, principles of equitable tolling, and doctrines of equitable estoppel should interact in circumstances where the application of one, or another, of these different limitations doctrines would make a significant legal difference. To say this is not, as the concurrence claims, to advocate a “mix-and-match” statute of limitations theory. Post, at 200, n. 3. Rather, it is to recognize that the Clayton Act’s express statute of limitations does not necessarily provide all the answers. We shall, at the very least, wait for a case that clearly presents these or related issues, providing an opportunity for full argument, before we attempt to resolve them. Finally, the Klehrs have asked us to review the Eighth Circuit’s application of its rule in this case. Doing so would involve examining an evidentiary record of several thousand pages to determine the validity of the independent conclusion of each of two lower courts that the Klehrs should reasonably have discovered the silo’s flaws before 1989 (and that a reasonable factfinder could not conclude to the contrary). That conclusion is highly fact based, depending not only upon how much mold the Klehrs noticed in their silage and when, but also upon such matters as the effect of the Klehrs’ failure to consult the herd performance records they were continu-. ously sent, and whether their having done so would have led them to tell veterinarians a more revealing story, to question Harvestore’s representatives more fully, or to investigate the silo sooner. See 87 F. 3d, at 234. We have no reason to believe that there is any very obvious or exceptional error below. And our writ of certiorari commits us to decide only the purely legal question whether or not a claim accrues “where the Respondent continues to commit predicate acts” in the 4-year period immediately preceding suit. Pet. for Cert. i. We have answered that question in Part II-A. And we shall not go beyond the writ’s question to reexamine the fact-based rule-application issue that the Klehrs now raise, and which the Eighth Circuit decided in Harvestore’s favor. Ill Our writ of certiorari contained one further question, namely, whether “affirmative continuing acts of fraud . . . coupled with active cover up of the fraud, act to equitably toll the statute of limitations ... whether or not Petitioners have exercised reasonable diligence to discover their claim.” Ibid. (emphasis added). This question refers to the doctrine of “fraudulent concealment,” which some courts have said “equitably tolls” the running of a limitations period, see, e. g., Grimmett, 75 F. 3d, at 514, while other courts have said it is a form of “equitable estoppel,” see, e. g., Wolin v. Smith Barney Inc., 83 F. 3d 847, 852 (CA7 1996). Regardless, the question presented here focuses upon a relevant difference among the Circuits in respect to the requirement of “reasonable diligence” on the part of the plaintiff. Some Circuits have held that when a plaintiff does not, in fact, know of a defendant’s unlawful activity, and when the defendant takes “affirmative steps” to conceal that unlawful activity, those circumstances are sufficient to toll the limitations period (or to “estop” the defendant from asserting a limitations defense) irrespective of what the plaintiff should have known. See, e. g., id., at 852-853. Other courts have held that a plaintiff who has not exercised reasonable diligence may not benefit from the doctrine. See, e. g., Wood v. Carpenter, 101 U. S. 135, 143 (1879); Bailey, 21 Wall., at 349-350; J. Geils Band Employee Benefit Plan v. Smith Barney Shearson, Inc., 76 F. 3d 1245, 1252-1255 (CA1 1996) (diligence required for fraudulent concealment under federal law); Urland v. Merrell-Dow Pharmaceuticals, Inc., 822 F. 2d 1268, 1273-1274 (CA3 1987) (same with respect to Pennsylvania law); see also 2 Corman § 9.7.1, at 56-57, 60-61, 64-66. We limit our consideration of the question to the context of civil RICO. In that context, we conclude that “reasonable diligence” does matter, and a plaintiff who is not reasonably diligent may not assert “fraudulent concealment.” We reach this conclusion for two reasons. First, in the related antitrust context, where the “fraudulent concealment” doctrine is invoked fairly often, relevant authority uniformly supports the requirement. Professor Areeda says, for example, that “[t]he concealment requirement is satisfied only if the plaintiff shows that he neither knew nor, in the exercise of due diligence, could reasonably have known of the offense.” 2 Areeda ¶ 338, at 152; see also I. Scher, Antitrust Adviser § 10.27, p. 10-62 (4th' ed. 1995). We have found many antitrust cases that say the same, and none that says the contrary. See, e. g., Conmar Corp. v. Mitsui & Co., 858 F. 2d 499, 502 (CA9 1988), cert. denied sub nom. VSL Corp. v. Conmar Corp., 488 U. S. 1010 (1989); Texas v. Allan Constr. Co., 851 F. 2d 1526, 1533 (CA5 1988); Pinney Dock & Transport Co. v. Penn Central Corp., 838 F. 2d 1445, 1465 (CA6), cert. denied sub nom. Pinney Dock & Transport Co. v. Norfolk & Western R. Co., 488 U. S. 880 (1988); New York v. Hendrickson Bros., Inc., 840 F. 2d 1065, 1083 (CA2), cert. denied, 488 U. S. 848 (1988); Berkson v. Del Monte Corp., 743 F. 2d 53, 56 (CA1 1984), cert. denied, 470 U. S. 1056 (1985); Charlotte Telecasters, Inc. v. Jefferson- 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_counsel2

D

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party Eerik HEINE, Appellant, v. Juri RAUS, Appellee. No. 11195. United States Court of Appeals Fourth Circuit. July 22, 1968. Robert J. Stanford, and Ernest C. Raskauskas, Washington, D. C., for appellant. Paul R. Connolly, Washington, D. C. (Williams & Connolly, E. Barrett Prettyman, Jr., and Hogan & Hartson, Washington, D. C., on brief), for appellee. Before HAYNSWORTH, Chief Judge, and BOREMAN and CRAVEN, Circuit Judges. HAYNSWORTH, Chief Judge: In this slander action, the plaintiff appeals from an order of summary judgment entered against him, on the ground of governmental privilege, after a partial disclosure limited by invocation by the Central Intelligence Agency of the governmental privilege against disclosure of state secrets. The controversy, thus partially surfaced, arose out of the Central Intelligence Agency’s intelligence and counterintelligence activities and its attempt to expose the plaintiff as a Soviet KGB agent, a defamation which the plaintiff alleges to be false. The plaintiff, Eerik Heine, is an Estonian emigré residing in Canada. With an apparent history as a “freedom fighter” in Estonia, he was an occasional lecturer in the United States and an exhibitor of an anti-communist film. As such, he was known to the leaders of Estonian emigrés in the United States and apparently entitled to their confidence. The defendant, Juri Raus, is also an Estonian emigré. He resides in the United States and is the National Commander of the Legion of Estonian Liberation. He readily admits that he told the Board of Directors of the Legion that he was reliably informed by an official agency of the United States that Heine was a Soviet agent or collaborator and that the Legion should not cooperate with him. This, the plaintiff charges, made his film and his lecture no longer salable and brought him into disgrace in the Estonian communities in the United States and Canada. In his initial answer, Raus claimed only a qualified privilege. He claimed that he had spoken, without malice, only as an officer of the Legion and only on privileged occasions to privileged persons. There was no indication of any involvement of the CIA. Later, however, an amended answer was tendered, supported by a series of affidavits executed by the Director or Deputy Director of the CIA, in which the absolute executive privilege was claimed. In those documents it was alleged that Raus was an undercover or secret agent of the CIA, ad executed special assignments for it in the past and acted under the instructions of the CIA when he “warned” his fellow Legionnaires that Heine was a Soviet agent. Earlier disclosure of these circumstances was said to have been prevented by a CIA secrecy agreement, to which Raus had subscribed and which purported to carry with it punishment for violations under 18 U.S.C.A. §§ 793 and 794, including life imprisonment or death. When the first answer was filed, counsel for the CIA had refused permission to Raus to disclose his CIA connection. Thereafter, the plaintiff sought to take Raus’ deposition in order to obtain additional information about his employment by the CIA. The Director of the CIA, through his General Counsel, appeared for the taking of the deposition, and, on a question by question basis, in the presence of the Judge, invoked the government’s privilege against disclosure of state secrets. Raus was allowed to state that he had been paid, directly or indirectly, for services he had rendered the CIA, but the privilege was sustained to prevent probing of the details of his employment. Otherwise, it appears from affidavits of the Director of the CIA that Raus and other Estonian emigrés in the United States had been sources of foreign intelligence and that the purpose of the instruction to Raus to discredit Heine was to protect the integrity of the CIA’s sources of foreign intelligence within Estonian emigré groups or developed through them. In that state of the litigation, the District Court granted a motion for summary judgment. It was of the opinion that the absolute governmental privilege was available to a government employee such as Raus, who faithfully executed his instructions, as to one of higher authority exercising discretionary functions within the outer perimeter of his authority. We agree, provided the instructions were isued by one having authority to issue them. I At the outset it is well to put to one side the question of the CIA’s right to invoke the government’s privilege of silence with respect to “state secrets.” “The privilege belongs to the Government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect. The latter requirement is the only one which presents real difficulty.” United States v. Reynolds, 345 U.S. 1, 7—8, 73 S.Ct. 528, 532, 97 L.Ed. 727 (1953). The District Court was quite correct in its allowance of the governmental claim of the privilege of secrecy. It was properly invoked generally by the Director of the CIA. The Court made sufficient inquiry — some of it in camera — to assure that it had not been done lightly, without pressing so far as to reveal the very .state secrets the privilege is intended to protect. When the deposition of Raus was taken, he ruled upon each question calling for information arguably within the privilege, requiring Raus to answer those which the Court thought would not impair the privilege while foreclosing answers to those questions which apparently would. In his conduct of the proceedings, we think he balanced, as fairly as possible, the conflicting inter-ests and was faithful to the “formula of compromise” taught by Reynolds. We affirm the right of the CIA in this case to invoke the governmental privilege against disclosure of state secrets and its allowance, to the extent it was allowed, ^y District Court. II On the question of executive privilege in defamation suits, we also agree generally with the District Court, its analysis of Barr v. Matteo and its reasoning, though we come to the conclusion that one more detail should have been supplied before entry of summary judgment, in Barr v. Matteo, it was held that the Acting Director of the Office of Rent stabilization was entitled to the protection of the absolute executive privilege, Responding to congressional criticism of the agency, Barr issued a press release announcing his intention to suspend two subordinate officials and placing upon their shoulders responsibility for the payouts under criticism. Three justices joined Mr. Justice Harlan in the leading opinion in which the governmental interest in having officials, exercising discretionary authority, assured freedom to act in the interest of the agency without fear of having to defend actions for defamation was balanced against the interest of the individual plaintiffs in seeking judicial rehabilitation of their reputations. With reliance upon the analysis and justification of Judge Learned Hand in Gregorie v. Biddle, 2 Cir., 177 F.2d 579, 581, quoted also by the District Court in its opinion in this case, preference was given to the governmental interest. Mr. Justice Black, emphasizing the interest of the public in being informed of such matters, concurred. Mr. Justice Stewart agreed with the analysis of the leading opinion, but dissented because he thought Barr had acted to save his own hide by diverting criticism from himself to the plaintiffs, and not in the interest of the agency. The Chief Justice and Justices Douglas and Brennan dissented generally on the ground that the absolute executive privilege should be limited to the President and cabinet officers and, possibly, other appointed officials directly responsible to the President. If “Barr v. Matteo extended the earlier decisions of this Court to what I and others considered to be the breaking point,” as Mr. Chief Justice Warren observed when dissenting from the denial of a writ of certiorari in Becker v. Philco Corp., 389 U.S. 979, 980, 88 S.Ct. 408, 409, 19 L.Ed.2d 473, this case is much closer to the earlier precedents if we assume that the actor was the Director, himself. Unlike Mr. Barr, the Director of the CIA is appointed by the President of the United States with the advice and consent of the Senate. He is responsible to the President through the National Security Council. His office is not of cabinet rank, but it is a highly sensitive position. Necessarily, the Director must work in close collaboration with the President, himself, and with such cabinet officers as the Secretary of State and the Secretary of Defense. He is closer by far to the White House than an acting Director of Rent Stabilization, a subordinate official under the Director of Economic Stabilization. In Barr v. Matteo, too, there was room for Mr. Justice Stewart’s view that Barr acted not so much to protect the agency from criticism as to divert the criticism from his shoulders to those of his two subordinates. Here, in contrast, we have no such possibility. While we cannot penetrate the cloak of secrecy which surrounds the CIA, there is no reason to suppose the defamation had any relation to the Director’s personal career or his reputation or to those of his subordinates. For all that appears, it was done entirely out of consideration of the national interest. The CIA and its Director are specifically charged with the duty and responsibility of protecting sources of foreign intelligence and methods of collecting such intelligence from unauthorized disclosure. That aliens within this country are sources of foreign intelligence, as claimed by the Director, has been recognized by the Congress. If the Director determines that an alien’s entry for permanent residence in the United States is in the interest of national security or essential to the Agency’s intelligence mission, the entry of the alien and his family is allowed though they would be otherwise inadmissible. Unlike Barr, who acted under no direction or specific authorization to issue press releases, action here to protect the integrity of sources of foreign intelligence was explicitly directed by Congress. If it be said that the defamation here was deliberate, and it was, it was no more deliberate than the defamation in Barr v. Matteo, and its purpose was loftier. While the veil of secrecy hampers our appraisal of the situation confronting the CIA, enough appears to relate the defamation to governmental interests. The Director has sworn in his affidavits that Raus and other Estonian emigrés in this country had been sources of foreign intelligence and that other sources of such intelligence had been developed through them. Plainly implicit in the Director's affidavits and the testimony is the receipt by the CIA of information, believed reliable, that Heine was a secret Soviet agent. Such agents do not wear the guise of their masters and if one could successfully infiltrate the Estonian emigré sources in this country he could expect to discover the foreign sources of intelligence developed through them. In such circumstances, is the CIA to seek an indictment on charges it cannot prove if the sources of its information are its own secret agents in the Soviet Republic? Is it to sit idly by, suffering a pollution of its sources of foreign intelligence and the intimidation, arrest and persecution of its foreign agents? Or can it protect its sources of information, as required by the statute, by “warning” its own sources that the infiltrator is, or may be, a Soviet agent? In a sensitive area, closely touching national defense, the latter choice seems the one demanded by the national interest, notwithstanding the devastating impact of the warning upon the one thus accused of espionage. While the effect of the defamation upon the plaintiff here may have been greater than the harm suffered by the plaintiffs in Barr v. Matteo, the relation of the defamation to the national interest is much closer. While the claim of secrecy prevents our obtaining a clear view of the entire scene, the Director’s sworn, but undocumented, claims are enough to support the claim of governmental privilege. That ought to be enough when the statements are those of an official in so responsible an office and a requirement of further documentation and elaboration would violate the privilege of state secrets or greatly burden its exercise. Thus far, our analysis of the problem is deficient, for we have assumed that the Director, himself, was the author of the defamation. The present record does not show that he was, though it is certainly inferable that the instructions to Raus were given by one having authority from the Director to issue them. In appraising this case in comparison-with Barr v. Matteo, however, it has been useful to start with the assumption that the Director, himself, uttered the defamation, for it should follow, as of course, that the subordinate who acts with the authorization of the superior is entitled to claim the same privilege as the superior. If, in defamation cases, recognition of an absolute privilege for judges, legislators and highly placed executive officers of the government, when acting in line of duty, is to serve its intended purpose, it must extend to subordinate officials and employees who execute the official’s orders. There would be little purpose to a cloak of immunity for Mr. Barr if Mr. Matteo were allowed to maintain an action for defamation against all of those subordinates in his office who “published” the defamation in the course of handling and distributing the press release. There would be no advantage in protection to a judge against actions for defamation founded upon statements made by him in an official opinion written for his court, if such actions could readily be maintained against his secretary who, at his direction, typed and transmitted the opinion, or against the clerk of the court who published it. If the circumstances impose a compelling moral obligation upon the superior to defend and indemnify the subordinates, immunization of the superior alone from direct defamation actions would be a useless formalism. Recognition of an absolute privilege of the subordinate by attribution of the superior thus appears to be a necessary corollary of the superior’s privilege. It is generally recognized that an agent, acting within the scope of his authority, does have whatever privilege the principal would have enjoyed if he had acted for himself. The principle is applicable in defamation actions and, if an authorized agent would have been privileged, subsequent ratification confers the privilege upon an unauthorized agent. Applicability of the principle to this case has been suggested in an article generally critical of the District Court’s decision. We conclude that the absolute privilege is available to Raus if his instructions were issued with the approval of the Director or of a subordinate authorized by the Director, in the subordinate’s discretion, to issue such instructions, or if the giving of the instructions was subsequently ratified and approved by such an official. Though the Director’s affidavits state that Raus acted under instructions of the CIA, which certainly strongly implies that the instructions were given by, or with the approval of, a responsible, authorized official of the Agency and though the Director’s appearance in the case carries with it a strong implication of his personal ratification and approval, it is said that on the present record there is still a permissible inference that the instructions were given by an unauthorized underling and that his action has never had the approval of a responsible official of the Agency having authority to issue or approve such instructions. The inference seems unlikely, but we cannot say it is foreclosed by the present record. Since summary judgment was issued, we will vacate the judgment so that, if the plaintiff represents to the District Court serious reliance upon the inference, further inquiry may be had and additional findings made. The inquiry should be directed to the identity of the official within the Agency who authorized or approved the instructions to Raus. Disclosure of the identity of the individual who dealt with Raus is not required; the answer to be sought is whether or not the Director or a Deputy Director or a subordinate official, having authority to do so, authorized, approved or ratified the instructions. If such disclosures are reasonably thought by the District Judge to violate the claimed privilege for state secrets, they may be made in camera, to that extent. Disclosures in camera are inconsistent with the normal rights of a plaintiff of inquiry and cross-examination, of course, but if the two interests cannot be reconciled, the interest of the individual litigant must give way to the government’s privilege against disclosure of its secrets of state. Finally, we may observe that while we generally approve entry of summary judgment for the defendant, subject only to the limited additional inquiry we direct, the plaintiff would fare no better if the defendant’s privilege were held to be not absolute, but only qualified. Heine cannot controvert the claim of Raus, supported by the CIA, that he acted under instructions of that Agency. Heine claims no publication exceeding the instructions. He has no basis for a showing of malice. If summary judgment is appropriate after the additional, limited inquiry we direct, it will avoid the necessity of a trial and possible compromise of state secrets which the government is entitled to preserve. Vacated and remanded. . His overt employment was in the Bureau of Public Roads in Washington. . Earlier, in an affidavit, the Director, himself, had sought to invoke the secrecy privilege generally as to any information in addition to that disclosed in the affidavits. . Heine v. Raus, D.C.Md., 261 F.Supp. 570. . Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434; Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454. . In addition to requiring Raus to answer some questions, the District Court rejected the first affidavits of the Director of the CIA as insufficient to support the claim of absolute governmental privilege. As a result, additional affidavits containing additional information were filed. . See Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780. . 50 U.S.C.A. §§ 403(d) (3), 403g. . 50 U.S.C.A. § 403h. . Restatement (Second), Agency § 345 (1958). . Ibid. Illustration 2. . Ibid. Comment (e). . Spying and Slandering: An Absolute Privilege for the CIA Agent? 67 Col.L. Rev. 752. . Here, it would matter not if the instructions were unauthorized within the Agency as long as Raus believed them to be. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:

songer_genapel2

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. UNITED STATES of America, Appellee, v. James C. HAMILTON, Appellant. Nos. 79-1340, 79-1611. United States Court of Appeals, Ninth Circuit. April 30, 1980. Rehearing Denied June 23, 1980. Patrick R. Doyle, Las Vegas, Nev., for appellant. C. Stanley Hunterton, Las Vegas, Nev., for appellee. Before KILKENNY, SKOPIL and PRE-GERSON, Circuit Judges. KILKENNY, Circuit Judge: NATURE OF THE CASE Appellant was indicted, tried by a jury, and convicted of filing a false and fraudulent income tax return, understating his income for the year 1975, in violation of 26 U.S.C. § 7201. From January, 1975, through May, 1976, appellant was the manager of slot machine operations for the Fremont Hotel and Casino in Las Vegas, Nevada. Briefly stated, the evidence showed that appellant acquired substantial holdings in real estate, stocks, and savings accounts while his liabilities increased by less than $13,000.00 in 1975. The government showed that appellant experienced an increase in net worth of $64,664.00 in twelve months on a reported taxable income of less than $26,000.00, and ultimately demonstrated that appellant had a true taxable income for the year 1975 of $68,000.00, and that he had evaded $12,-878.00 in taxes. Substantial evidence was presented from which it could be inferred that the likely source of the increase in net worth was a slot machine “skim.” METHOD OF PROOF Appellee employed what is commonly known as the “net worth and expenditures” method of proof. This procedure was approved by the Supreme Court in Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), and was recognized and approved by this court as recently as United States v. Gardner, 611 F.2d 770 (CA9 1980). In framing the law on the subject, the Supreme Court has said that the government, to sustain a conviction, must prove the three elements of the offense: (1) the existence of a tax deficiency, (2) willfulness in evading taxes, and (3) an affirmative act constituting an evasion or attempted evasion of the income tax. Sansone v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 1010, 13 L.Ed.2d 882 (1965). In proving the elements, the government is required to: (1) accurately establish the defendant’s opening net worth, (2) identify a likely source of taxable income from which it may be inferred that the defendant’s increase in net worth arose, and (3) conduct a reasonable investigation of any leads that suggest that defendant properly reported his income. Holland, supra; Gardner, supra. The latter three requirements are imposed because of the nature of the net worth and expenditures method of proof. As Holland and Gardner caution, the evidence in this kind of case should be carefully reviewed “bearing constantly in mind the difficulties that arise when circumstantial evidence as to guilt is the chief weapon of a method that is itself only an approximation.” Holland, supra at 129, 75 S.Ct. at 132. PRINCIPAL ISSUES ON APPEAL I. Whether the government proved the existence of a tax deficiency. II. Whether the government proved the element of willfulness of appellant in attempting to evade income taxes. III. Whether the government proved an affirmative act constituting an evasion of income taxes. I. The establishment of an accurate opening net worth is crucial under the net worth and expenditures method of proof for “the correctness of the result depends entirely upon the inclusion in this sum of all assets on hand at the outset.” Holland, supra 348 U.S. at 132, 75 S.Ct. at 134. Our review of the record convinces us that the government has supplied evidence to meet this requirement. Appellant’s chief argument is that he must have had a cash hoard on hand at the end of 1974 and that this would mean that his opening net worth was substantially greater than the amount the government established. In this regard, he argues that the government failed to investigate and “purify” assets and sources of income allegedly revealed by a “150 M” notation on a 1974 new account form with a brokerage firm, by large bank deposits in 1972, 1973, and 1975, and by a 1967 loan application. The government is not required “to embark on a Magellan-like expedition in order to prove that the unreported income was taxable.” United States v. Heitt, 581 F.2d 1199, 1201 (CA5 1978). It is only required to pursue any reasonable leads as to possible sources of nontaxable income, United States v. Hom Ming Dong, 436 F.2d 1237, 1242 (CA9 1971). It need not “negate every possible source of nontaxable income, a matter peculiarly within the knowledge of the defendant.” Holland, supra 348 U.S. at 138, 75 S.Ct. at 137. The principle remains that once the government has established its case, the defendant remains silent at his peril. Holland, supra at 138-139, 75 S.Ct. at 136-37; United States v. Costello, 221 F.2d 668, 671 (CA2 1955), aff’d. 350 U.S. 354, 76 S.Ct. 406, 100 L.Ed. 397 (1956). Appellant provided no reasonable leads, but now argues that the documents and deposits mentioned above put the government on notice of possible sources of income. We disagree. The loan application made only vague references to some assets allegedly held by appellant in 1967. Only a fraction of those assets were even valued on the application; and that at only $2,500.00. There was no indication that these assets were sold to produce a cash hoard or that they were the source of nontaxable income. At trial, it became apparent that the “150 M” notation on the brokerage house new account form meant nothing. Testimony revealed that it was put on the form by a salesman and that there was no evidence in the record to substantiate the figure. Finally, there was no reasonable suggestion that the bank deposits camo from nontaxable sources. It would be entirely unreasonable to require the government to pursue these phantom clues as to some mysterious sources and assets. We, of course, recognize that the burden is always on the government to prove each element of the offense beyond a reasonable doubt. The record reveals that the government thoroughly investigated appellant’s financial status at the beginning of 1975. It established appellant’s opening net worth figure by considering the information contained in appellant’s income tax returns over the previous six years, nine bank accounts and their records, the acquisition and sale of ten securities, and six real estate transactions. Viewing the evidence in the light most favorable to the government, as this court must, Gardner, supra at 775; Horn Ming Dong, supra at 1242, there is sufficient evidence to support the jury’s verdict on this question. As part and parcel of this issue of the sufficiency of the evidence of a tax deficiency, it is appellant’s contention that the government failed to meet its burden of proving the likely source for the unreported income, Holland, supra 348 U.S. at 138, 75 S.Ct. at 136; Gardner, supra at 775, and that the district court improperly admitted figures from standard budgets prepared by the Bureau of Labor to show appellant’s living expenses. We have no difficulty in holding that the jury could well have found that the likely source of taxable funds was the illegal diversion of money from slot machine revenues at the Fremont Hotel, where appellant was the slot machine manager. Fremont employees testified to the unusual system of dealing with slot machine revenues. The comptroller of the Fremont testified that during 1975 his representative was barred from the counting and wrapping of coins taken from the slot machines. Other witnesses testified regarding the operation of an unusual auxiliary bank which was very susceptible to being used to divert funds. The corporate head of the Fremont testified that he had filed an insurance claim to recover money lost by the Fremont through employee dishonesty. Most convincingly, a statistical expert examined the Fremont’s slot machines, reviewed their reported performance, and compared them with similar machines at other casinos and with the manufacturer’s built in performance specifications. He concluded that the odds against such machines performing as poorly as the Fremont’s records indicated were greater than two billion to one. We disagree with appellant’s contention that this statistical analysis should not have been admitted because it was speculative, confusing to the jury, and introduced without proper foundation. There is no question that it was highly relevant to whether moneys were being diverted from the slot machines and that it would likely assist the trier of fact in reaching its decision as to whether the government showed a likely source of income. The admission of the testimony was well within the trial court’s discretion under FRE 702 and 703. We observe that those involved in gambling and its related activities are engaged in enterprises having indeterminate possibilities and capable of bringing in large sums of money in cash. Costello, supra at 672. Appellant was manager of the slot machine operation at the Fremont and was present at the counting and wrapping of the coins. He also told an acquaintance that he had been making $1,000.00 a day during his tenure at the Fremont. Taken in its totality, the evidence, both circumstantial and direct, established the likely source of appellant’s unreported income. As noted above, the proof of the nondeductible expenditures is one factor in the net worth and expenditures method of proof. The taxpayer’s nondeductible expenditures are added to the adjusted net values of the defendant’s assets at the end of the subject year and, consequently, increase the figure to be compared with the opening net worth. In this case, the government found that during 1975 there was little activity in appellant’s checking account and that the microfilming from two of appellant’s banks was illegible. Consequently, it was impossible to reconstruct appellant’s living expenses in the typical manner of producing checking account records. Instead, the government was forced to rely on independent estimates from the Bureau of Labor on what a person with appellant’s reported income and family and financial obligations would be expected to spend on nondeductible items. Certainly, appellant must have expended some funds to maintain himself. At all times the government relied on the figures most favorable to appellant. Under these circumstances, we see no reason why these statistics should not have been admitted. II. Relying principally on a set of guidelines set forth in Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943), appellant argues that there is absolutely no evidence, circumstantial or otherwise, to support the finding of willfulness. However, the Spies decision does not support appellant’s position. For that matter, the decision recognizes that willfulness may be shown by a variety of circumstances: “Congress did not define or limit the methods by which a willful attempt to defeat and evade might be accomplished and perhaps did not define lest its effort to do so result in some unexpected limitation. Nor would we by definition constrict the scope of the Congressional provision that it may be accomplished ‘in any manner.’ By way of illustration, and not by way of limitation, we would think affirmative willful attempt may be inferred from conduct such as keeping a double set of books, making false entries or alterations, or« false invoices or documents, destruction of books or records, concealment of assets or covering up sources of income, handling of one’s affairs to avoid making the records usual in transactions of the kind, and any conduct, the likely effect of which would be to mislead or conceal. If the tax-evasion motive plays any part in such conduct the offense may be made out even though the conduct may also serve other purposes such as concealment of other crime.” Spies, supra at 499, 63 S.Ct. at 368. [Emphasis supplied.] It is clear that the acceptable indicia of willfulness are not set in concrete. It has been said that the crime of attempted tax evasion has its roots in nondisclosure. United States v. Ramsdell, 450 F.2d 130, 133 (CA10 1971). Every indication is that appellant was involved in a slot machine “skim.” Certainly, one engaged in such conduct would not be expected to fore-go his prior secretive design of concealment and tell all on his tax return. We consider it significant that the underlying activity producing the unreported income is itself illegal. We also note that the amount of the understatement alone is sizeable and we think that that is not altogether irrelevant on the issue of willfulness. However, mere understatement of income, without more, is not sufficient evidence on this element. Holland, supra 348 U.S. at 139, 75 S.Ct. at 137; United States v. House, 524 F.2d 1035, 1044-45 (CA3 1975). Here, we have much more than a mere understatement. One of the important indicia of willfulness mentioned in Spies is handling one’s affairs to avoid making a record of transactions, and any other conduct, the likely effect of which is to mislead or to conceal. See also, United States v. Mansfield, 381 F.2d 961 (CA7 1967), cert. denied 389 U.S. 1015, 88 S.Ct. 593, 19 L.Ed.2d 661. Appellant made large cash deposits and withdrawals from his several accounts during the indictment period and he acquired large holdings in corporate stock by paying $6,000.00 in cash in one instance and $20,000.00 in cash in another. Certainly, such large acquisitions are normally accomplished by a check or with some other record of the transaction. The record shows that for the six years from 1969 through 1974, the six years preceding the indictment, appellant was employed as a slot machine mechanic, making a taxable income of something less than $10,000.00 per annum on up to a high of just over $16,000.00. In 1975, he became the manager of all slot machine operations of his employer, the Fremont Hotel. He was paid at the beginning at the rate of $732.00 twice each month, up to $780.00 prior to the termination of his employment in May, 1976. Not only did he work full time at this job, but there is testimony in the record which would show that he occasionally worked seven days a week. Almost half of the salary checks went directly into a savings account. In addition to all of the unusual cash transactions and the substantial increase in his wealth on a reported income which could not account for the increase, appellant remarked to an associate that he was earning $1,000.00 a day. While each of these factors standing alone might not be sufficient to support a finding of willfulness, we have no difficulty in holding that the entire record provided substantial evidence from which a jury could properly infer that appellant knowingly underreport-ed his income for the purposes of attempting to evade income taxes. III. Appellant’s filing a false and fraudulent return understating his income is sufficient to satisfy the affirmative act requirement. Sansone, supra 380 U.S. at 352, 85 S.Ct. at 1010; United States v. Schafer, 580 F.2d 774 (CA5 1978), cert. denied 439 U.S. 970, 99 S.Ct. 463, 58 L.Ed.2d 430; Swallow v. United States, 307 F.2d 81, 83 (CA10 1962), cert. denied 371 U.S. 950, 83 S.Ct. 504, 9 L.Ed.2d 499 (1963). INCIDENTAL ISSUES Appellant’s contention that the district court abused its discretion in refusing to conduct an investigation into the allegation that the jury relied on sources outside the record is meritless. For that matter, counsel’s conduct in calling the jurors after the verdict and secretly tape recording the conversations was improper. To hold a hearing on whether the jury relied on sources outside the record, with counsel’s investigation as the basis for such a hearing, might well establish a precedent which would encourage the harassment of jurors and encourage jury tampering. See United States v. Weiner, 578 F.2d 757 (CA9 1978), cert. denied 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 651. We have examined appellant’s claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and find it but a figment of his imagination. CONCLUSION Viewing the entire evidence in the light most favorable to the government, as we must, we find there was sufficient evidence to find appellant guilty beyond a reasonable doubt. Furthermore, the other assignments of error are groundless. The judgment of conviction must be affirmed. IT IS SO ORDERED. . To prove the existence of a tax deficiency under the net worth and expenditures method of proof, the government must first establish an “opening net worth” or total net assets of the taxpayer at the beginning of a given year. The government then proves the increase in the taxpayer’s net worth for the year by calculating the difference between the net worth of the taxpayer’s assets at the beginning and at the end of the year. To that figure is added the taxpayer’s nondeductible expenses, including living expenses, yielding the putative income. If that figure is substantially greater than that reported by the taxpayer, the government claims the difference is unreported income. . We note that had they in fact been sold between 1969 and 1975, appellant failed to report any gain on his tax returns. . See also, United States v. Hom Ming Dong, 436 F.2d 1237, 1240 (CA9 1977) (absence of business record sufficient to establish willfulness); Feichtmeir v. United States, 389 F.2d 498, 503 (CA9 1968) (buying of several large cashier’s checks on different days, irregularities in personal books, large volume of currency transactions during indictment period sufficient to support a finding of willfulness); United States v. Swallow, 511 F.2d 514 (CA10 1975), cert. denied 423 U.S. 845, 96 S.Ct. 82, 46 L.Ed.2d 66; United States v. House, 524 F.2d 1035 (CA3 1975). 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_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. JONES DAIRY FARM, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, and Local 538, United Food and Commercial Workers Union, AFL-CIO-CLC, Intervening Respondent. Nos. 89-2512, 89-2821. United States Court of Appeals, Seventh Circuit. Argued April 10, 1990. Decided Aug. 7, 1990. Herbert P. Wiedemann, Foley & Lardner, Milwaukee, Wis., for petitioner/cross-respondent. Aileen A. Armstrong, N.L.R.B., Appellate Court — Enforcement Litigation, Joseph Oertel, Paul J. Spielberg, N.L.R.B., Washington, D.C., George F. Squillacote, N.L. R.B., Milwaukee, Wis., for respondent/cross-petitioner. Kenneth R. Loebel, Previant, Goldberg, Uelman, Gratz, Miller & Brueggeman, Milwaukee, Wis., for intervening respondent. Before CUDAHY, COFFEY and MANION, Circuit Judges. CUDAHY, Circuit Judge. On June 15, 1989, the National Labor Relations Board (the “Board,” the “NLRB”) ordered Jones Dairy Farm (“Jones”) to cease and desist from implementing a mandatory “work hardening” program. Jones asks us to review and set aside the Board’s order; the Board cross-petitions for enforcement of its order. Jones raises two points in its petition. First, Jones argues that the Wisconsin Worker’s Compensation Act, Wis.Stat. § 102.01 et seq., grants it a right to implement the program in order to reduce its disability payments to injured and ill employees. Second, Jones contends that the administrative law judge (the “AU”) and the NLRB violated its right to due process by deciding the case on the basis of a no-strike clause in the collective bargaining agreement (the “CBA”), despite the fact that Local 538 (the “Union”) did not prosecute its case on that theory. For the reasons discussed below, we deny Jones’s petition for review and grant the NLRB’s petition for enforcement of its order. I. BACKGROUND At the time the dispute arose over the work hardening program, Jones and the Union were parties to a CBA effective from November 9, 1985, to October 1, 1988. The CBA contained seniority and sick pay provisions. Article XI, the seniority clause, provided in material part: 11. In cases of proven disability, where an employee is not able to perform a job according to his seniority, the Company and the Union may deviate from the seniority provisions in order to place him on a job he can perform. General Counsel’s Exh. 2, at 34. Article XVI set out the sick pay provisions. It read: 1. Regular full-time employees with twelve (12) months or more of continuous service with the Company, who are absent because of physical disability due to sickness or accident (except where such disability is covered by the Workmen’s Compensation Law of Wisconsin), where such disability is supported by acceptable medical evidence, shall receive Sick Pay. 2. Subject to the other provision [sic] of this Article, Sick Pay shall be payable for each period the employee is prevented by such disability from performing any and every duty pertaining to the employee’s occupation. 5. In cases of disability which would have been covered by this article but for the fact that they are covered by the Workmen’s Compensation Law of the State of Wisconsin, the employee, if eligible under this article, will receive the difference between what he received as compensation under said law and the amount he would have received under this article but for the exclusion of the disability because of his being covered by the Workmen’s Compensation Law. Id. at 43, 45-46. Further, the CBA contained a no-strike/no-lockout clause that read in part: 1. Since arbitration is provided for grievances, since the procedures of the National Labor Relations Board are available for claims of unfair labor practices, and since negotiation on matters not covered by this Agreement is to be deferred until the expiration of this Agreement, the Union will not call or sanction any strike, stoppage, slowdown or other interference with work during the term of this Agreement and the Company will not lock out any or all of its employees. Id. at 42 (emphasis added). Because of a high work-related accident rate, Jones and its worker’s compensation insurer, EBI, began studying methods to reduce the number and severity of acci-' dents and the cost of the company’s disability payments. Among the options explored by the company was a so-called “work hardening” program offered by Opportunities, Inc. (“OI”), an organization specializing in boosting the confidence and strength of temporarily partially disabled workers and preparing them to return to their regular jobs. OI provides light duty jobs in a factory setting to temporarily partially disabled employees of participating companies. The companies pay a service fee to OI and also pay wages to their own employees. Under the program, a participating company’s physician would examine a disabled employee and determine what, if any, work he could perform. An appropriate assignment would be made at OI, and the employee would work at the assigned position under the supervision and direction of OI. The employee would earn wages, which would be offset by a reduction in disability benefits. Jones proposed to pay its employees assigned to 01 an hourly wage of $4.00 — about one-third of the normal wages prescribed by the CBA. Jones Dairy Farm and Local No. P-1236, United Food and Commercial Workers Union, AFL-CIO-CLC, Case No. 30-CA-9395, at 3 (June 23, 1987) (hereafter the “ALJ’s findings”). Jones asserts that even after state and federal taxes, the partially disabled employee would be no worse off than if he had remained on temporary total disability status. If the employee declines the limited duty work, however, his benefits are still reduced according to the formula, and he obviously does not receive any wages. On June 23, 1986, Jones first notified the Union that it was considering the work hardening program as well as several plans directed at accident prevention and injury and health counseling. Representatives of Jones, EBI and the Union toured OI’s facilities two days later, but when Jones again raised the proposal at a regular grievance meeting on July 14, the Union refused to give its consent. On September 29, 1986, Jones informed the Union that it intended to implement the 01 program unilaterally on October 15; at the Union’s request, Jones delayed action on the plan until it met with Union officials at a special meeting on October 17. At the meeting, the Union refused to consent to the work hardening program and specifically stated as its major concern the issue of bargaining unit employees working outside of Jones’s premises. On October 24, Jones advised the Union that it would unilaterally implement the program on November 3; the company sent letters to the same effect to all of its employees on October 31. On November 11, the Union filed a grievance protesting Jones’s unilateral implementation of the work hardening program, General Counsel’s Exh. 7, and on November 17, the Union filed its charge with the NLRB. The complaint issued by the General Counsel of the NLRB pursuant to the Union’s charge accuses Jones of engaging in unfair labor practices in violation of sections 8(a)(1) and (5) and 8(d) of the National Labor Relations Act (the “Act,” the “NLRA”), 29 U.S.C. §§ 158(a)(1) and (5), 158(d). Jones’s App. at 32-37. The complaint explicitly alleges that the work hardening program modified the seniority and sick pay provisions without the Union’s consent. The complaint mentions neither the no-strike clause nor the “management rights” clause contained in Article V of the CBA. General Counsel’s Exh. 2, at 9. Between November 1986 and April 1987 (when the parties presented their cases to the AU), Jones assigned seven of its employees to the 01 work hardening program. Four agreed to participate; three refused and suffered reduced disability compensation. AU’s findings at 5. The AU concluded that the work hardening program was encompassed within “wages, hours, and other terms and conditions of employment” and was therefore a mandatory subject of bargaining under section 8(d) of the NLRA. The AU further determined that the Wisconsin Worker’s Compensation Act was not preempted by the NLRA since the employer was not required to implement a light duty/rehabilitation program. Rather, according to the AU, the implementation of such a program was negotiable. The AU next addressed the Union’s contention that the program impermissibly expanded the bargaining unit. He concluded that “farming out” bargaining unit employees, AU’s findings at 12, was a permissible subject of bargaining that required the consent of both the Union and the employer. The AU then rejected Jones’s contention that the no-strike clause permitted it to take unilateral action on any subject (like the work hardening program) not covered by the CBA. The ALJ read the no-strike clause in a manner wholly contrary to Jones’s interpretation, concluding that, in fact, the clause mandated that the status quo be preserved during the term of the CBA with regard to any subjects not specifically addressed in the CBA. Consequently, the AU ordered Jones to cease and desist from implementing the work hardening program without the Union’s consent. Jones fared no better with the NLRB, although the NLRB did modify the AU’s findings in some respects. The NLRB agreed with the AU that the work hardening program was a mandatory bargaining subject under section 8(d) because worker’s compensation benefits, although provided by state law, are nevertheless “emoluments of value which accrue to employees out of their employment relationship.” Jones Dairy Farm and Local No. P-1236, United Food and Commercial Workers Union, AFL-CIO-CLC, 295 N.L.R.B. No. 20, at 7 (June 15, 1989) (citations omitted) (hereafter the “NLRB decision”). The Board rejected the AU's finding that the program was a permissive bargaining subject because it expanded the scope of the bargaining unit. However, the Board concluded that this aspect of the AU’s determination was not necessary to the resolution of the case, since the Board also agreed with the AU that the no-strike clause prohibited Jones from unilaterally implementing the OI program. II. JONES’S CLAIMED RIGHT TO IMPLEMENT THE OI PROGRAM UNILATERALLY Jones asserts, essentially, that its implementation of the work hardening program was authorized by state law and was none of the NLRB’s concern. In support of its position, Jones cites the Supreme Court’s decisions in Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987), and Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985). Neither of these cases, however, removed the OI program from the purview of the NLRA and the regulatory jurisdiction of the Board. Although neither the AU nor the NLRB devoted much attention to the matter, we consider it important to inquire initially whether the Wisconsin Worker’s Compensation Act did in fact grant Jones a right to-impose a light duty rehabilitation program as a means of reducing its disability indemnity. None of the parties has directed us to a provision of the Worker’s Compensation Act that expressly vests an employer with such a right. The record, too, is ambiguous on this point. Jones relies in large measure on a decision in its favor rendered by an AU in the Worker’s Compensation Division of Wisconsin’s Department of Industry, Labor and Human Relations (the “DILHR”). Castenon v. Jones Dairy Farm, Nos. 87 64614 & 88 11916 (Mar. 20, 1989), reprinted in Jones’s App. at 38-46. The Casten-on decision, which explicitly declined to consider the applicability of federal labor law to the matter, referred to Wis.Stat. section 102.35(3), but then stated that the present matter was not a section 102.35(3) dispute. That section provides: (3) Any employer who without reasonable cause refuses to rehire an employe who is injured in the course of employment, where suitable employment is available within .the employe’s physical and mental limitations, upon order of the department and in addition to other benefits, has exclusive liability to pay to the employe the wages lost during the period of such refusal, not exceeding one year’s wages. In determining the availability of suitable employment the continuance in business of the employer shall be considered and any written rules promulgated by the employer with respect to seniority or the provisions of any collective bargaining agreement with respect to seniority shall govern. (Emphasis added.) Section 102.35(3) is clearly concerned with the rights of recuperating employees. It may be that the Wisconsin AU in Castenon extrapolated from this provision to a corresponding right in employers to insist that temporarily partially disabled employees work up to their physical and mental capacities. Another section of the Worker’s Compensation Act that may apply is section 102.-43(2). That section provides that the weekly compensation schedule for partial disability is “such proportion of the weekly indemnity rate for total disability as the actual loss of the injured employe bears to his average weekly wage at the time of his injury.” Chris M. Faulhaber, Jr., Administrator of the Worker’s Compensation Division of the DILHR, referred to section 102.43(2) in a letter to the Union’s president and explained how benefits for partial disability are affected by earnings from part-time work. It could be inferred from Faul-haber’s letter — although the letter did not say so expressly — that the DILHR would require a healing worker to accept a position within his capabilities if such a position were offered by his employer. But the letter emphasized that any “part-time or limited employment must be employment with the employer for whom the employe was working when injured” and “should be within the parameters of the union contract in effect.” General Counsel’s Exh. 8. Jones cites another source in support of its claimed right — the Worker’s Compensation Handbook (1983 & Supp.1985) prepared by the Wisconsin Bar and reprinted in Jones’s Exhibit 8. The Handbook does say that an employee is required to take light duty work (to the extent of his capacities) if it is offered by his own employer; however, the Handbook does not address whether an employee must take light duty work, assuming he is able, with a different employer or on different terms of employment. Further, the Handbook makes no mention of the potential effect of a CBA on the recuperating employee’s obligation to return to light duty work. Finally, the Handbook asserts that its summary of employees’ obligation to take light duty work is based on the “long-standing construction of the [Worker’s Compensation] Statutes” by the DILHR and one unpublished opinion of the Wisconsin Circuit Court. Jones’s App. at 36-37. The Handbook cites as its sole authority an unpublished Wisconsin Circuit Court case — Gillette Well Drilling v. DILHR, Case No. 143-142 (Dane Co. Cir.Ct. April 7, 1975). Under Wisconsin Civil Procedure Rule 809.23(3), unpublished cases have no precedential value. It may be under Wisconsin law that employers do have a right to insist that their partially disabled employees accept positions they are capable of performing, if the employer has such a position and makes it available. The parties have cited no published case, nor has our own research uncovered any, that establishes such a right. The evidence of DILHR policy contained in the record is inconclusive. Nevertheless, for the purposes of resolving this matter, we will assume that an employer is entitled under Wisconsin law to recall a recovering employee to an appropriate job at the employer’s place of business. Jones attempts to equate its asserted right with rights guaranteed to workers under state laws prescribing, for example, minimum wages and maximum hours. Such laws predated the federal labor laws, and they form a floor for the negotiation of the substantive terms of a collective bargaining agreement. See Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 21, 107 S.Ct. 2211, 2222, 96 L.Ed.2d 1 (1987) (“[P]re-emption should not be lightly inferred in [the area of state regulation establishing minimum terms of employment], since the establishment of labor standards falls within the traditional police power of the State.”); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 757, 105 S.Ct. 2380, 2398, 85 L.Ed.2d 728 (1985) (“When a state law establishes a minimal employment standard not inconsistent with the general legislative goals of the NLRA, it conflicts with none of the purposes of the Act.”). By comparing its asserted right, which it also labels an unqualified right, to minimum labor standards laws, Jones would require us to choose between recognizing its asserted right or declaring the Wisconsin Worker’s Compensation Act preempted. Such a choice is unnecessary. The Wisconsin statute has been drafted and interpreted to account for CBA provisions. Section 102.35(3) expressly defers to any applicable seniority provisions in a labor contract, and Faulhaber’s letter to the Union’s president emphasized that the employer’s recall of an employee is subject to the terms of a binding CBA. In our view, therefore, the NLRB persuasively argues that even if Jones had a right under Wisconsin law to insist that its injured workers accept employment up to their capacities, Jones was not required by state law to exercise that right. The right — if it indeed existed — was negotiable. The Board accepted the ALJ’s conclusion that the OI program was a mandatory subject of bargaining, since it clearly fell within the scope of “wages, hours, and other terms and conditions of employment.” 29 U.S.C. § 158(d). The Board’s findings of fact must be upheld if they are supported by substantial evidence on the record as a whole, 29 U.S.C. § 160(e); David R. Webb Co. v. NLRB, 888 F.2d 501, 503 (7th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2560, 109 L.Ed.2d 743 (1990). Further, the Board’s legal conclusions should be accepted and enforced unless they are irrational or inconsistent with the act. NLRB v. Financial Institution Employees, 475 U.S. 192, 202, 106 S.Ct. 1007, 1012-13, 89 L.Ed.2d 151 (1986); Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1849, 60 L.Ed.2d 420 (1979); David R. Webb Co., 888 F.2d at 503, 505; Maas & Feduska v. NLRB, 632 F.2d 714 (9th Cir.1979). In particular, we give substantial deference to the Board’s determinations about mandatory and permissive subjects of bargaining. Ford Motor Co., 441 U.S. at 497, 99 S.Ct. at 1849; Jack Thompson Oldsmobile, Inc. v. NLRB, 684 F.2d 458, 461-62 (7th Cir.1982); Maas & Feduska, 632 F.2d at 718-19. The NLRB noted that the OI program affected temporarily disabled employees’ wages, hours, types of work and workloads. Further, the program would have reduced employees’ sick pay and disability benefits, and these welfare benefits are a mandatory subject of collective bargaining. See Metropolitan Life, 471 U.S. at 751-52, 105 S.Ct. at 2395-96 (citing Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 159 & n. 1, 92 S.Ct. 383, 387 & n. 1, 30 L.Ed.2d 341 (1971)). Even if sick pay and disability benefits were not per se mandatory bargaining items, they became so by their inclusion in the CBA. Article XVI(2) clearly stated that sick pay “shall be payable for each period that the employee is prevented by such disability from performing any and every duty pertaining to the employee’s occupation.” (Emphasis added.) Subsection 5 of the same article required Jones to make up the difference, if any, between an employee’s state-mandated worker’s compensation benefits and “the amount [the employee] would have received under this article but for the exclusion of the disability because of his being covered by the Workmen’s Compensation Law.” Jones’s obligations under the CBA with regard to sick pay and disability benefits were explicit. Jones could not attempt to modify unilaterally those provisions during the term of the CBA without obtaining the Union’s consent or bargaining to impasse. 29 U.S.C. § 158(d). The NLRB’s conclusion that the OI program was a mandatory bargaining topic is, therefore, objectively reasonable and wholly supported. We accept that determination as conclusive in these circumstances. The Board did not reach the question, however, whether Jones had bargained with the Union over the OI program in good faith to impasse. Jones does not argue in its petition to us that impasse was reached, or even sought. In the alternative to its claim of an unqualified right to implement the OI program unilaterally, Jones maintained before the ALJ and the Board that the no-strike clause permitted it to take action unilaterally with respect to any item not covered by the CBA. Both the ALJ and the Board took the opposite view of the no-strike clause’s import, and the Board resolved the matter on the basis of its reading of that clause. We owe the Board no special deference in matters of contractual interpretation. Irvin H. Whitehouse & Sons Co. v. NLRB, 659 F.2d 830, 833 (7th Cir.1981); Local Union 1395, Int’l Bhd. of Electric Workers, AFL-CIO v. NLRB, 797 F.2d 1027, 1030-31 (D.C.Cir.1986). But we are, of course, mindful of the Board’s considerable experience in interpreting collective bargaining agreements. According to the Board, the no-strike clause was intended by the parties to preserve the status quo during the agreement’s term on mandatory bargaining matters not addressed by the CBA, “just as Section 8(d) [of the NLRA] preserves the status quo as to subjects covered by the agreement.” NLRB decision at 8. Thus, any alteration of the terms of employment during the life of the CBA required mutual assent, and it is undisputed that the Union withheld its consent here. The no-strike clause clearly evinced a desire by the parties to defer negotiation on mandatory items, not, as Jones argues, to waive it. Therefore, we agree with the NLRB and the ALJ that Jones was not free to implement the OI program during the term of the CBA without the Union’s consent; nor could Jones insist that the Union bargain to impasse on that subject. Jones’s unilateral implementation of the OI program therefore violated sections 8(a)(1) and (5) of the NLRA. The Board properly ordered Jones to cease and desist from unilaterally implementing the program and to make restitution to the affected employees. III. JONES’S DUE PROCESS CLAIM Having failed to convince the AU or the NLRB of its “right” to implement the OI program, Jones now claims that its due process rights were violated because the AU and the NLRB resolved the matter on the basis of the no-strike clause. Since the Union’s charge did not specifically allude to the no-strike clause, Jones complains that it did not receive fair notice of that theory and that it was consequently deprived of an opportunity to prepare an adequate defense. It is somewhat incongruous that Jones should charge the NLRB with a due process violation, since it was Jones that drew the AU’s and the Board’s attention to the no-strike clause in the first place. This clause was, indeed, a principal component of Jones’s defense in the administrative proceedings to the Union’s unfair labor practice charge. Jones is now dissatisfied with the intepretation of the clause rendered by the AU and accepted by the NLRB (and by this court). That the AU and Board disagreed with Jones over the meaning of the no-strike clause, however, is no basis for a claim that Jones was denied due process. Evidently, Jones hopes for a remand so that it can introduce some unspecified evidence from the bargaining history in support of its reading of the no-strike clause. But Jones has already been afforded two opportunities to marshall its evidence. We will not remand the case merely because Jones “assures” this court that such evidence exists, Jones’s Brief at 13, without making any effort to particularize the substance of its would-be proffer. Finally, Jones argues that, had it been apprised that the AU and NLRB would base their decisions on the no-strike clause, it would have defended its position by referring to a “management rights” clause in the CBA. Since Jones itself brought up the no-strike clause, it could have (and should have) drawn the NLRB’s attention to the management rights clause as support for its reading of the no-strike clause. Jones’s inexcusable failure to avail itself before the Board of all of its possible defenses, particularly after the adverse decision of the AU, deprives it of the right to have those arguments decided here. Jones’s claim that it was denied due process of law rings hollow. IV. CONCLUSION The NLRB concluded that “[n]othing in the management-rights, sick leave, no-strike/no-lockout provisions or any other section of the collective bargaining agreement permitted the Respondent to alter the status quo in the manner that it has in this case.” NLRB decision at 9-10. Because we agree with the Board’s reading of the CBA, Jones’s petition for review is Denied, and the NLRB’s order is Enforced. . In 1966, Jones recognized Local P-1236 of the United Food and Commercial Workers Union as the bargaining agent of its production and maintenance, employees. Local P-1236 merged with Local 538 during the pendency of this case. The parties do not dispute that Local 538 is the successor to Local P-1236. See NLRB’s Brief at 4 n. 3. . Jones gives the following example of the program's operation: Assume the employee’s regular wage is $8.00 per hour and he regularly works 40 hours per week. His average weekly earnings are $320 ($8.00 X 40 hours). His worker’s compensation indemnity for temporary total disability is $213.00 (Vi X $320.00) [sic] If he works 20 hours per week on a limited duty job he is paid $80.00 ($4.00 x 20 hours) for that work. His wage loss is thus reduced from $320.00 to $240.00, i.e., from 100% to 75% ($240.00 divided by $320.00). This, results in a worker’s compensation indemnity for partial disability of $159.75 (.75 X $213.00). He receives that indemnity, $159.75, plus the pay for the limited duty work, $80.00, for a total of $239.75, which is $26.75 more than the indemnity for temporary total disability. Jones’s Brief at 8-9. . Jones does not explain precisely how much of the employee’s wages from the limited duty work would be subject to federal and state taxes. Jones directs us to its Exhibit 13 in the administrative record, but that document expressly involves calculations based only on gross earnings. In light of our disposition of this case, however, the effect of taxes on the disability package is irrelevant. . The Union concedes that a temporarily partially disabled employee may be required to accept light duty work at Jones's plant. Subsection 11 of Article XI (the seniority provision of the CBA) nevertheless appears to require the consent of both the Union and Jones to place a recovering employee in a suitable position. . Shortly after implementing the program, Jones declared that it would not apply to employees whose sickness or disability was not work-related; Jones feared that subjecting such employees to the 01 program would violate the sick pay provisions of the CBA. Jones’s Brief at 5 n. 3. Jones does not explain, however, why application of the program to employees suffering from a work-related disability would not ¡also violate the CBA’s sick pay regimen. . We discuss the management rights clause below. . Hereafter, we follow the pagination of Jones’s Appendix when referring to the Castenon decision. . Indeed, the Labor and Industry Review Commission, to which Castenon and his fellow claimants appealed the state ALJ’s decision, reversed the state ALJ’s decision and declared the matter preempted in light of the NLRB’s decision and order in the present case. Intervenor's Motion to Supplement the Record filed Oct. 10, 1989, at 1-7. Whether a matter that may be governed by state law is preempted by an applicable federal law is, of course, a question of Congress’s intent. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S.Ct. 1904, 1909-10, 85 L.Ed.2d 206 (1985); Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1190, 55 L.Ed.2d 443 (1978). For the reasons we give in this section, we agree with the NLRB that the NLRA and the Wisconsin Worker’s Compensation Act can "peacefully coexist.” NLRB decision at 6. . The Wisconsin AU who rendered the Casten-on decision testified before the NLRB that Cas-tenon reflects the DILHR’s interpretation of the Worker’s Compensation Act. Tr. at 94-112. . Unpublished opinions may be cited only "to support a claim of res judicata, collateral estop-pel or law of the case." Wis.Civ.P.R. 809.23(3). . Jones declares in its brief: “Even if the collective bargaining agreement in haec verba were to preclude Jones from providing limited duty work, a unilateral modification of the agreement to elimination [sic] that prohibition would not constitute a violation of section 8(d).” Jones's Brief at 19. Since we have some difficulty accepting Jones's argument that such a right exists at all, we have considerably more reservations about deeming the “right” absolute and independent of Jones's collective bargaining obligations. . As we noted above, the ALJ rested his decision on the determination that Jones’s "farming out” of bargaining unit employees to OI was a permissive subject of bargaining that could not be implemented without the Union’s consent. Although the Board disagreed with this aspect of the ALJ’s findings, the issue did not affect the outcome óf the case. Since we resolve the matter on other grounds, we do not reach the Union’s contention that the OI program illegally enlarged the scope of the bargaining unit. . In any event, it appears that the NLRB, which had the entire CBA before it as an exhibit, in fact considered whether the CBA gave Jones residual authority to take unilateral action in the furtherance of its business with respect to matters not covered by the CBA. NLRB decision at 9 n. 13. The Board found no such broad grant of authority in the CBA in this case. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:

sc_issue_1

09

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. KNAPP v. SCHWEITZER, JUDGE OF THE COURT OF GENERAL SESSIONS, et al. No. 189. Argued March 6, 10, 1958. Decided June 30, 1958. Bernard, H. Fitzpatrick argued the cause for petitioner. With him on the brief was William J. Keating. Richard O. Denzer argued the cause for respondents. With him on the brief were Frank S. Hogan, Charles W. Manning, H. Richard Uviller and Harold Birns. Mr. Justice Frankfurter delivered the opinion of the Court. Petitioner is a partner in a New York manufacturing firm engaged in interstate commerce, some of whose employees have been organized by a local union of the International Brotherhood of Teamsters. Petitioner was subpoenaed to appear before a New York grand jury conducting an inquiry regarding bribery of labor representatives, conspiracy and extortion, constituting crimes under state law. Petitioner, duly sworn, was asked a question concerning the union’s representation in certain wage negotiations with petitioner’s firm; he refused to answer on the ground that his answer might tend to incriminate him. The grand jury then granted petitioner immunity from prosecution, applying N. Y. Penal Law, §§ 381, 2447, which provides that one duly granted immunity “shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which, in accordance with the order by competent authority, he gave answer or produced evidence, and that no such answer given or evidence produced shall be received against him upon any criminal proceeding.” § 2447 (2). Having been thus granted immunity, petitioner was directed to answer the question. He again refused to do so on the ground of possible self-incrimination. In a subsequent appearance before the grand jury, petitioner was asked, and was directed to answer by the foreman, fourteen other questions concerning relations and transactions between petitioner and union officials. Petitioner again invoked the privilege against self-incrimination. On application of the foreman of the grand jury, respondent Schweitzer, as judge of a New York Court of General Sessions, ordered petitioner to return to the grand jury and make answer to the questions put to him. After further refusal to answer, petitioner was once more ordered to appear before respondent Schweitzer; when he did so, the respondent district attorney moved that petitioner be punished for contempt of court. In opposition to this application petitioner stood on his refusal to answer inasmuch as the immunity granted by the grand jury did not protect him against federal prosecution. Respondent Schweitzer adjudged petitioner in contempt of court and sentenced him to serve thirty days in jail and to pay a fine of $250. 4 Mise. 2d 449, 157 N. Y. S. 2d 820. Petitioner applied to the Supreme Court of New York for reversal of the contempt conviction and for an order prohibiting respondents from proceeding further in the matter. He alleged that his danger of self-incrimination was attributable to the prosecutorial potentialities of § 302 of the Labor Management Relations Act of 1947, 61 Stat. 136, 157, 29 U. S. C. § 186, making it unlawful “for any employer to pay or deliver, or to agree to pay or deliver, any money or other thing of value to any representative of any of his employees who are employed in an industry affecting commerce” (§302 (a)), and to the fact that the United States Attorney for the Southern District of New York had “made public announcement of his intention to cooperate with the [respondent] District Attorney ... in the prosecution of criminal cases in the field of the subject matter out of which petitioner’s commitment arose.” The petition for reversal of the contempt conviction was denied by the Supreme Court; this judgment was unanimously affirmed in the Appellate Division, 2 App. Div. 2d 579, 157 N. Y. S. 2d 158, and, without opinion, by the Court of Appeals of New York, 2 N. Y. 2d 913, 141 N. E. 2d 825, which duly amended its remittitur to show that it had passed on and rejected petitioner's claim of a privilege against self-incrimination under the Fifth Amendment, 2 N. Y. 2d 975, 142 N. E. 2d 649. We granted certiorari, 355 U. S. 804, to consider this constitutional question. Petitioner does not claim that his conviction of contempt for refusal to answer questions put to him in a state proceeding deprived him of liberty or property without due process of law in violation of the Fourteenth Amendment; that such a claim is without merit was settled in Twining v. New Jersey, 211 U. S. 78. His contention is, rather, that, because the Congress of the United States has in the exercise of its constitutional powers made certain conduct unlawful, the Fifth Amendment gives him the privilege, which he can assert against either a State or the National Government, against giving testimony that might tend to implicate him in a violation of the federal Act. Because of the momentum of adjudication whereby doctrine expands from case to case, such a claim carries dangerous implications. It may well lead to the contention that when Congress enacts a statute carrying criminal sanctions it has as a practical matter withdrawn from the States their traditional power to investigate in aid of prosecuting conventional state crimes, some facts of which may be entangled in a federal offense. To recognize such a claim would disregard the historic distribution of power as between Nation ■ and States in our federal system. The essence of a constitutionally formulated federalism is the division of political and legal powers between two systems of government constituting a single Nation. The crucial difference between federalisms is in a wide sweep of powers conferred upon the central government with a reservation of specific powers to the constituent units as against a particularization of powers granted to the federal government with the vast range of governmental powers left to the constituent units. The difference is strikingly illustrated by the British North America Act, 1867, 30 Vict., c. 3, and the Commonwealth of Australia Constitution Act, 1900, 63 & 64 Vict., c. 12. It is relevant to remind that our Constitution is one of particular powers given to the National Government' with the powers not so delegated reserved to the States or, in the case of limitations upon both governments, to the people. Except insofar as penal remedies may be provided by Congress under the explicit authority to “make all Laws which shall be necessary and proper for carrying into Execution” the other powers granted by Art. I, § 8, the bulk of authority to legislate on what may be compendi-ously described as criminal justice, which in other nations belongs to the central government, is under our system the responsibility of the individual States. The choice of this form of federal arrangement was the product of a jealous concern lest federal power encroach upon the proper domain of the States and upon the rights of the people. It was the same jealous concern that led to the restrictions on the National Government expressed by the first ten amendments, colloquially known as the Bill of Rights. These provisions are deeply concerned with procedural'safeguards pertaining to criminal justice within the restricted area of federal jurisdiction. They are not restrictions upon the vast domain of the criminal law that belongs exclusively to the States. Needless to say, no statesman of his day cared more for safeguarding the liberties that were enshrined in the Bill of Rights than did James Madison. But it was his view that these liberties were already protected against federal action by the Constitution itself. “My own opinion,” he wrote to Thomas Jefferson, “has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration. At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others. I have favored it because I supposed it might be of use, and if properly executed could not be of disservice. I have not viewed it in an important light 1. Because I conceive that in a certain degree, though not in the extent argued by Mr. Wilson, the rights in question are reserved by the manner in which the federal powers are granted. ...” Plainly enough the limitations arising from the manner in which the federal powers were granted were limitations on the Federal Government, not on the States. The Bill of Rights that Madison sponsored because others anxiously desired that these limitations be made explicit patently was likewise limited to the Federal Government. If conclusive proof of this were needed, it is afforded by the fact that when Madison came to sponsor the Bill of. Rights in the House of Representatives as safeguards against the Federal Government he proposed that like safeguards against the States be placed in the United States Constitution. Congress; however, rejected such limitations upon state power. While the adoption of the Fourteenth Amendment in 1868 did not change the distribution of powers between the States and the Federal Government so as to withdraw the basic interests of criminal justice from the exclusive control of the States, it did impose restrictions upon the States in the making and in the enforcement of the criminal laws. It did this insofar as the “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,” Hebert v. Louisiana, 272 U. S. 312, 316; Palko v. Connecticut, 302 U. S. 319; Malinski v. New York, 324 U. S. 401, 412-416, with 438, are implied in the comprehensive concept of due process of law. But this concept does not blur the great division of powers between the Federal Government and the individual States in the enforcement of the criminal law. Generalities though these observations be, they bear decisively on the issue that has been tendered in this case. To yield to the contention of the petitioner would not only disregard the uniform course of decision by this Court for over a hundred years in recognizing the legal autonomy of state and federal governments. In these days of the extensive sweep of such federal statutes as the income tax law and the criminal sanctions for their evasions, investigation under state law to discover corruption and misconduct, generally, in violation of state law could easily be thwarted if a State were deprived of its power to expose such wrongdoing with a view to remedial legislation or prosecution. While corruption and generally low standards in local government may not today be as endemic as Lord Bryce reported them to be in The American Commonwealth (1888), not even the most cheerful view of the improvements that have since taken place can afford justification for blunting the power of States to ferret out, and thereby guard against, such corruption by restrictions that would reverse our whole constitutional history. To achieve these essential ends of state government the States may find it necessary, as did New York, to require full disclosure in exchange for immunity from prosecution. This cannot be denied on the claim that such state law of immunity may expose the potential witness to prosecution under federal law. See Jack v. Kansas, 199 U. S. 372. Every witness before a state grand jury investigation would feel free to block those vitally important proceedings. In construing the Fifth Amendment and its privilege against self-incrimination, one must keep in mind its essential quality as a restraint upon compulsion of testimony by the newly organized Federal Government at which the Bill of Rights was directed, and not as a general declaration of policy against compelling testimony. It is plain that the amendment can no more be thought of as restricting action by the States than as restricting the conduct of private citizens. The sole — although deeply valuable — purpose of the Fifth Amendment privilege against self-incrimination is the security of the individual against the exertion of the power of the Federal Government to compel incriminating testimony with a view to enabling that same Government to convict a man out of his own mouth. Of course the Federal Government may not take advantage of this recognition of the States’ autonomy in order to evade the Bill of Rights. If a federal officer should be a party to the compulsion of testimony by state agencies, the protection of the Fifth Amendment would come into play. Such testimony is barred in a federal prosecution, see Byars v. United States, 273 U. S. 28. Whether, in a case of such collaboration between state and federal officers, the defendant could successfully assert his privilege in the state proceeding, we need not now decide, for the record before us is barren of evidence that the State was used as an instrument of federal prosecution or investigation. Petitioner’s assertion that a federal prosecuting attorney announced his intention of cooperating with state officials in the prosecution of cases in a general field of criminal law presents a situation devoid of legal significance as a joint state and federal endeavor. This Court with all its shifting membership has repeatedly found occasion to say that whatever inconveniences and embarrassments may be involved, they are the price we pay for our federalism, for having our people amenable to — as well as served and protected by — two governments. If a person may, through immunized self-disclosure before a law-enforcing agency of the State, facilitate to some extent his amenability to federal process, or vice versa, this too is a price to be paid for our federalism. Against it must be put what would be a greater price, that of sterilizing the power of both governments by not recognizing the autonomy of each within its proper sphere. Judgment affirmed. No force or validity is added to petitioner’s argument by the invocation of the Supremacy Clause, Art. VI, cl. 2, and the Privileges and Immunities Clause of the Fourteenth Amendment. Whatever the applicability of the Fifth Amendment, it is in no way expanded by those two provisions. Cf. Twining v. New Jersey, supra, at 99: “[T]he exemption from compulsory self-incrimination is not a privilege or immunity of National citizenship In 1833 Mr. Chief Justice Marshall had this to say: “Had the framers of these amendments intended them to be limitations on the powers of the state governments, they would have imitated the framers of the original constitution, and have expressed that intention. Had congress engaged in the extraordinary occupation of improving the constitutions of the several states by affording the people additional protection from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language. “But it is universally understood, it is a part of the history of the day, that the great revolution which established the constitution of the United States, was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government — not against those of the local governments.” Barron v. Baltimore, 7 Pet. 243, 250. Letter to Thomas Jefferson, Oct. 17, 1788, 14 Papers of Thomas Jefferson (Boyd ed. 1958) 16,18. Madison-went on to give the following additional reasons for his view: “2. Because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power. ... 3. Because the limited powers of the federal Government and the jealousy of the subordinate Governments, afford a security which has not existed in the case of the State Governments, and exists in no other. 4. Because experience proves the. inefficacy of a bill of rights on those occasions when its eontroul is most needed.” 14 id., at 18-19. The entire, rather long, letter merits reading. For an account of Madison’s management of the resolution that became the Bill of Rights, see Brant, James Madison: Father of the Constitution, 1787-1800, c. 21. “Mr. MadisoN conceived this to be the most valuable amendment in the whole list. If there were any reason to restrain the Government of the United States from infringing upon these essential rights, it was equally necessary that they should be secured against the State Governments. He thought that if they provided against the one, it was as necessary to provide against the other, and was satisfied that it would be equally grateful to the people.” 1 Annals of Cong. 755 (1789). By 1900 the applicability of the Bill of Rights to the States had been rejected in cases involving claims based on virtually every provision in the first eight Articles of Amendment. See, e. g., Article I: Permoli v. Municipality No. 1, 3 How. 589, 609 (free exercise of religion); United States v. Cruikshank, 92 U. S. 542, 552 (right to assemble and petition the Government); Article II: United States v. Cruikshank, supra, at 553 (right to keep and bear arms); Article IV: Smith v. Maryland, 18 How. 71, 76 (no warrant except on probable cause); Spies v. Illinois, 123 U. S. 131, 166 (security against unreasonable searches and seizures); Article V: Barron v. Baltimore, note 2, supra, at 247 (taking without just compensation); Fox v. Ohio, 5 How. 410, 434 (former jeopardy); Twitchell v. Pennsylvania, 7 Wall. 321, 325-327 (deprivation of life without due process of law); Spies v. Illinois, supra, at 166 (compulsory self-incrimination); Eilenbecker v. Plymouth County, 134 U. S. 31, 34-35 (presentment or indictment by grand jury); Article VI: Twitchell v. Pennsylvania, supra, at 325-327 (right to be informed of nature and cause of accusation); Spies v. Illinois, supra, at 166 (speedy and public trial by impartial jury); In re Sawyer, 124 U. S. 200, 219 (compulsory process); Eilenbecker v. Plymouth County, supra, at 34-35 (confrontation of witnesses); Article VII: Livingston’s Lessee v. Moore, 7 Pet. 469, 551-552 (right of jury trial in civil cases); Justices v. Murray, 9 Wall. 274, 278 (re-examination of facts tried by jury) ; Article VIII: Pervear v. Massachusetts, 5 Wall. 475, 479-480 (excessive fines, cruel and unusual punishments). 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:

songer_appel1_3_3

C

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. 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. MOFFETT v. FISKE. No. 5061. Court of Appeals of District of Columbia. Argued March 9, 1931. Decided June 29, 1931. H. C. Workman, and C. B. Rugg, both of Washington, D. C., for appellant. Ernest Wilkinson and R. J. Mawhinney, both of Washington, D. C., for appellee. Before MARTIN, Chief Justice, and ROBB, HITZ, and GRONER, Associate Justices. HITZ, Associate Justice. This is an appeal by William A. Moffett, one of the defendants in an action for damages in'the Supreme Court of the District of Columbia, from a judgment of $198,500, with interest and costs, for alleged infringement of a patent. - Bradley A. Mske, appellee here, plaintiff there, .was in 1874 graduated from the United States Naval Academy and commissioned an officer of the line. After various assignments of duty ashore and afloat he served for two years, commencing in the spring of 1900, as inspector of ordnanee at the Bliss Plant, in Brooklyn, where, as he admits and the court finds, “he acquired all the knowledge of torpedoes extant in this country, and he retained that knowledge and experience until the time he applied for his said patent.” During the winter of 1910-1911, as captain, he was a member of the General Board of the Navy, and head of the Committee on War Plans. Most of his time in that post being spent in devising plans for recapturing the Philippine Islands, if captured by an enemy, it occurred to him that such capture might be avoided by airplanes equipped to carry and discharge torpedoes. After much thought on this subject, and discussion with his associates of the board, he, then a rear admiral, went to duty as commander of a division of the Atlantic Fleet. While so detailed, he applied for a patent for a “Method of and apparatus for delivering submarine torpedoes from airships.” This application, with drawings and specifications, being filed in April, 1912, a patent issued thereon July 16, 1912. This patent covered a device for dropping automobile torpedoes from airships by gravity, with the principle and method of its operation. For present purposes, the method and apparatus may be described as follows: An airplane with a torpedo suspended therefrom was to fly at a comparatively high elevation to about 1,500 yards of" its target, swoop down as rapidly and as vertically as possible to within 10 or 15 feet of the water, and, with the bow of the torpedo bearing on the target, start the mechanism, and release the torpedo, to fall by gravity to the water, after which it was to perform its work by its own power and in the usual way. For this purpose the airplane was to be equipped with chocks on its bottom or lower frame, in which the torpedo was to be held rigid by a strap under its middle connected at one .end with the ship and at the other by a ring with a pivoted latch disengaged by a hand lever to release the torpedo-. The usual protruding lever for starting the propelling mechanism of the torpedo was to be first pressed forward by the toe of a lever connected by a link with the same hand lever. Shortly after obtaining his patent, the plaintiff became aide for operations, and though it appears he tried, from time to time, to interest naval authorities in the subject of his patent, he met with little success. Later, however, the Navy Department undertook experiments with torpedoes, together with airplanes, and, without plaintiff’s assistance, expended much time, energy, and money in obtaining planes which could successfully carry and discharge torpedoes as well as torpedoes which could suceessfuly be carried and discharged. Those experiments met with some approval, and a number of torpedo planes were placed in service. Plaintiff claiming infringement of his patent, sought compensation from the government, and, being denied, filed suit under Rev. St. § 4919 (35 USCA § 67) for damages for infringement against the then Secretary of the Navy, two officers alleged to have been concerned in torpedo plane experiments, and Rear Admiral Moffett, who for the greater part of the time of said experiments was chief of the Bureau of Aeronautics. The suit was brought' against them personally, and as to all but defendant Moffett a voluntary nonsuit was taken before judgment. It was by agreement tried to the court without a jury, and a judgment of $198,500, with interest and costs, rendered against Admiral Moffett. .At the conclusion of the evidence, consistently with the manner of trial, the defendant, instead of the usual motion for a directed verdict, moved for judgment because of a shop right in the government, or actual ownership of the patent by the government, because the evidence showed no infringement of the patent, and for other reasons. This motion was taken under advisement with the case, and denied when the cause was decided for the plaintiff. In arriving at its judgment, the court found the right of an officer- in the army or navy to take out a patent of the class in suit, citing as one of the two cases United States v. Burns, 12 Wall. 246, 20 L. Ed. 388, and further upheld the right of such a patentee to sue an officer of the government personally for infringement in making use of his patent in government work, citing with another case U. S. v. Lee, 106 U. S. 196, 1 S. Ct. 240, 27 L. Ed. 171, and Crozier v. Fried Krupp Aktiengesellschaft, 224 U. S. 290, 32 S. Ct. 488, 56 L. Ed. 771. We will first consider the refusal of the trial court to find the ownership of the patent or a shop right therein by the government, and its finding to the contrary, being assignments of error numbered 33, 34, and 35. In Solomons v. United States, 137 U. S. 342, 11 S. Ct. 88, 34 L. Ed. 667, the chief of the Bureau of Engraving and Printing invented a self-canceling stamp which he thereafter patented, and assigned the patent to Solomons, who sued the government in the Court of Claims because of its use, and appealed from an adverse decision. The Supreme Court, at page 346 of 137 U. S., 11 S. Ct. 88, 89, in affirming the Court of Claims, said: “An employee, performing all the duties assigned to him in his department of service, may exercise his inventive faculties in any direction he chooses, with the assurance that whatever invention he may thus eoneeive and perfect is his individual property. There is no difference between the government and any other employer in this respect. But this general rule is subject to these limitations: If one is employed to devise or perfect an instrument, or a means for accomplishing a prescribed result, he cannot, after successfully accomplishing the work for which he was employed, plead title thereto as against his employer. That which he has been employed and paid to accomplish becomes, when accomplished, the property of his employer. Whatever rights as an individual he may have had in and to his inventive powers, and that which they are able to accomplish, he has sold in advance to his employer. So, also, when one is in the employ of another in a certain line of work, and devises an improved method or instrument for doing that work, and uses the property of his employer and services of other employees to develop and put in practicable form his invention, and explicitly assents to the use by his employer of such invention, a jury, or a court, trying the facts, is warranted in finding that he has so far recognized the obligations of service flowing from his employment and the benefits resulting from his use of the property, and the assistance of the co-employees, of his employer, as to have given to such employer an irrevocable license to use such invention.” In the later ease of Gill v. United States, 160 U. S. 426, 16 S. Ct. 322, 40 L. Ed. 480, Gill, a machinist in a government arsenal, patented certain inventions he made while there, and sought to recover for their use by the government. The Supreme Court, in affirming the decision of the Court of Claims against Gill, said at page 434 of 160 U. S., 16 S. Ct. 322, 325: “Now, whether the property of the government and the services of its employees be used in the experiments neeessary to develop the invention, or in the preparation of patterns and working drawings, and the construction of the completed machines, is of no importance. We do not care, in this connection, to dwell upon the niceties of the several definitions of the word 'develop’ as applied to an invention. The material fact is that in both this and the Solomons Case the patentee made use of the labor and property of the government in putting his invention into the form of an operative machine; and whether such employment was in the preliminary stage of elaborating and experimenting upon the original idea, putting that idea into definite shape by patterns or working drawings, or finally embodying it in a completed machine, is of no consequence. In neither case did the patentee risk anything but the loss of his personal exertions in conceiving the invention. In both cases there was a question whether machines made after his idea would be successful or not, and, if such machines had proven to be impracticable, the loss would have fallen upon the government.” In Houghton v. United States (C. C. A.) 23 F.(2d) 386, the same rule was applied in the ease of a government chemist claiming on a patent for a fumigant invented while in the service. Did the trial court correctly apply this law to the facts of this ease? The plaintiff, after receiving education at the Naval Academy fitting him for a career of naval service, was graduated and commissioned in 1874. The record here shows little of his activities until 1900, when he went for two years as inspector of ordnance at the Bliss Plant in Brooklyn, where he testifies that he inspected all torpedoes manufactured, with their assembly, with shop tests and running tests at Sag Harbor, thus acquiring as an officer in the naval service all knowledge of automobile torpedoes then known, which knowledge and experience he retained until he applied for the patent in suit. This was his duty, and in its discharge he acquired his knowledge, and the experience thus acquired belonged to the nation, from which he received the compensation providr ed for officers of his rank. He displayed inventive ingenuity during his career, which added to* his qualifications as an officer, and, having reached the rank of captain by 1910, was then ordered to the important billet of member of the General Board of the Navy and head of the Committee on War Plans, all of which means that his employment was not'manual but intellectual, and that all the powers of his mind, including his inventive ingenuity, if exercised upon means'and instruments of naval warfare, belonged to the nation as his employer. He testified that he spent most of his time at that period in devising plans for recapturing the Philippine Islands in ease of their capture by an ememy, and that it occurred to him that such capture might be prevented by airplanes equipped to drop bombs or discharge torpedoes. That was a war plan, and he claims its origin, but it was none the less in line of his employment and the result of the training and education which he owed to the government. The application of his idea was difficult, and he gave it much thought, testifying in effect that it took him two years to solve the difficulties to his satisfaction. The record is not clear as to just when he completed his invention as patented. According to his testimony, as read to the court from a prepared statement, it was sometime in March, or before April 12,1912, when the application for patent was filed, and while a rear admiral in command of a. division of the Atlantic Fleet. But in his letter of February 5, 1926, to the Judge Advocate General of the Navy, he wrote: “In fact, I invented the torpedo plane before I was a Rear Admiral, though I did not patent it for sometime afterwards.” He had already testified he was a captain on the General Board when head of the Committee on War Plans. And in his article “The Future of the Torpedo Plane” he wrote: “I did not apply for a patent on this scheme for a year or more. * * * ” That would place the time of invention as prior to April 12, 1911, and the record shows he was head of the Committee on War Plans 1910-1911. It was his duty as head of that committee to devise plans to protect the Philippines, and he said most of his time there was so spent, and much thought during that time given to the utilization of torpedo planes in that connection. Now, if he spent that time and thought, while in the service of the government, in endeavoring to find a method and apparatus for adapting torpedoes to airplanes, and finally conceived a way of doing so, it follows that the invention became his employer’s, that is to say, the government’s. We cannot agree with the trial court that, when a member of the General Board of the Navy and head of the Committee on War Plans spends his time and ingenuity in devising a method and apparatus for discharging torpedoes from airplanes as a part of a scheme of naval defense, he is entitled to withhold the device from the government. Nor does the fact, if it be a fact, that some details were not perfected to his satisfaction until shortly after he was transferred to command of a fleet, alter the situation. Furthermore, the great expense and labor involved in experiments by others to- ultimately adapt torpedoes for discharge from airplanes were borne by the government and its agents other than the plaintiff, whose invention when, and as, patented was plainly inoperative for the purpose intended. Much of this work and experimentation was done at, and all after, the earnest and frequent solicitation of the plaintiff, who made no claim for compensation until the efforts of others were well on the way to whatever success has been attained by the patented device. “A patentee is bound to deal fairly with the government, and, if he has a claim against it, to make such claim known openly and frankly, and not endeavor silently to raise up a demand in his favor by entrapping ifs officers to make use of his inventions.” Gill v. United States, 160 U. S. at page 437, 16 S. Ct. 322, 327, 40 L. Ed. 480. If ownership and license of the patents of government employees are to be decided by the general rules of master and servant governing patent rights, as the Supreme Court holds in the Solomons Case, the rule .applies to naval officers with even greater reason than to civil employees such as the machinist in the Gill Case on his per diem pay. For naval officers are educated at the expense of the government; paid during their academic career; have life tenure of office thereafter; subsistence allowances in addition to salary; retirement pay in old age; and pensions to dependents after death. In our opinion, application of the law, as laid down by the eases decided to the facts recited, establish an irrevocable license in the government to the use of plaintiff’s invention and patent, even if that patent were not, as we think it is, invalid for inoperativeness. Several assignments of error make this claim. In Fowler v. Dodge, 14 App. D. C. at page 482, this court, on a question of oper-ativeness, said: “it is not usual for the courts to disturb the conclusions of the Patent Office upon any such question as that without very cogent proof of error.” But this record presents cogent proof of error. For Admiral Fiske testified that when he-applied for this patent he had never seen a seaplane, and but two airplanes in exhibition flight, which were flimsy affairs and purely experimental. The verdict formally find's as facts that at the date of the patent'no airplane was in existence capable of carrying the torpedo required, that no torpedo was known able to sustain the shock of dropping from an airplane at the minimum speed of flight, that improved torpedoes were required for such use, that years of work and experimentation subsequent to the patent were required to produce such torpedoes and to make the conception of launching torpedoes from airplanes practical, while all labor, material, and money required for such experimentation had been furnished by the United States. Yet, at a time when airplanes were hardly capable of rising from the ground, Admiral Fiske presumes a plane capable of carrying and discharging a torpedo weighing a ton. This plane was to swoop down from a “comparatively high elevation,” as rapidly and as vertically as possible to within 10 or 15 feet of the water; then, to start the internal mechanism of the torpedo by the forward movement of a lever such as the inventor says he had never seen; and then drop the torpedo into the water in a condition to strike its target 1500 yards away. To the development of such a plane, the plaintiff has contributed nothing, yet by this judgment he is given damages against a brother officer based upon the total cost of 397 such planes alleged to have been used with torpedo dropping devices infringing his patent. The plaintiff testified that he was aware of these difficulties, but “felt sure that airplanes would rapidly grow bigger and stronger.” While in the meantime his patent was a pioneer patent entitled to be liberally construed. But this invention “does not belong to that class of simple inventions which require no other proof of their practicability than the construction of a model.” O’Connell v. Schmidt, 27 App. D. C. 81. For the plaintiff’s invention not only-required a plane then unknown to the world, and a torpedo equally unknown, but subsequent experiments demonstrated the uncertainty or failure of several details of his device and his method of operation. The plaintiff provides for the security of his torpedo in its chocks by a bellyband which was later found to be impracticable, because, among other reasons, the launching by release as contemplated could not be successfully accomplished. He provides for starting the internal mechanisms of the torpedo by a forward movement of a lever, while the testimony showed, and the verdict found, that up to the time of trial below, in July 1929, seventeen years after his patent, no torpedo was known with a starting lever actuated in the forward direction. He provides for starting the mechanisms of the torpedo before its release from the plane, but later experiments of others demonstrated the compelling wisdom, if not the necessity, of doing this after its release, by use of a lanyard instead of a lever. In fact, the plaintiff testified that his invention “was a pure dream embodied in the descriptions and drawings,” and that he was amazed at the facility with which a patent was obtained for a thing so obvious. We think his amazement was justified; but a dream, like an idea, is not an invention, _ and cannot be patented until embodied in a physical contrivance making it practically useful. And- the useful contrivance cannot be patented, even if new, unless its novelty amounts to discovery. Until the inventor has done this as a matter of reasonable legal certainty, and not as a matter of mere conjecture or prophetical possibility, he has given nothing to the public in return for the monopoly which he seeks by letters patent. Le Roy v. Tatham, 14 How. 156, 14 L. Ed. 367; Thompson v. Boisselier, 114 U. S. 11, 5 S. Ct. 1042, 29 L. Ed. 76; Clark Thread Co. v. Willimantic Co., 140 U. S. 489, 11 S. Ct. 846, 35 L. Ed. 521; Coffin v. Ogden, 18 Wall. (85 U. S.) 120, 21 L. Ed. 821; De Forest Radio Co. v. Gen. Electric Co., 51 S. Ct. 563, 75 L. Ed. 1339, decided May 25, 1931; Columbia Motor Car Co. v. Duerr & Co. (C. C. A.) 184 F. 893, 908; In re Mattullath, 46 App. D. C. 143; Wickers v. McKee, 29 App. D. C. 13; Gilman v. Hinson, 26 App. D. C. 415. As we are of opinion that the patent issued was invalid, for-inoperativeness, and, in any event, that the United States was entitled to an irrevocable, but nonexclusive, license therein, the judgment is reversed, without costs, and the cause remanded for further proceedings. Question: This question concerns the first listed appellant. 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:

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. UNITED STATES v. INTERNATIONAL BUILDING CO. No. 508. Argued April 8, 1953. Decided May 4, 1953. Philip Elman argued the cause for the United States. With him on the brief were Acting Solicitor General Stern, Assistant Attorney General Holland, Ellis N. Slack, Lee A. Jackson and Cecelia H. Goetz. Malcolm I. Frank argued the cause for respondent. With him on the brief was Irl B. Rosenblum. Mr. Justice Douglas delivered the opinion of the Court. Respondent, a Missouri corporation, owns a leasehold of a plot of ground together with an office building erected on it. In 1942 the Commissioner assessed deficiencies against respondent for the taxable years 1933, 1938, and 1939, determining that it had claimed an excessive value as its basis for depreciating the property. These deficiencies were predicated on a basis of $385,000 amortized over the life of the lease. Respondent, who claimed a base of $860,000 amortized over a shorter period, filed petitions for review with the Tax Court. Meanwhile respondent filed a petition under ch. X of the Bankruptcy Act which ended in a confirmed plan of reorganization. Although the Collector filed proof of claim for the deficiencies in those proceedings, he later withdrew the claim under a stipulation that the withdrawal was "without prejudice” and did not constitute a determination of or prejudice the rights of the United States to any taxes with respect to any year other than those involved in the claim. Shortly thereafter respondent and the Commissioner filed stipulations in the pending Tax Court proceedings stating that "there is no deficiency in Federal income tax due” from respondent for the taxable years in question, that the tax liability for each of the years was nil, and that the jeopardy assessment was abated. The Tax Court, pursuant to the stipulation, entered formal decisions that there were no deficiencies for the taxable years in question. The Tax Court, however, held no hearing; no stipulations of fact were entered into; no briefs were filed or argument had. The issue as to the correctness of the basis of depreciation used by respondent was, however, the basis of its appeal to the Tax Court. And so, when the Commissioner in 1948 ■ assessed deficiencies for the years 1943, 1944, and 1945, challenging once more the correctness of the basis of depreciation, respondent paid the deficiencies and brought this suit to recover, alleging inter alia that the decisions of the Tax Court for the years 1933, 1938, and 1939 were res judicata of the fact that the basis for depreciation was $860,000. The District Court held against respondent. 97 F. Supp. 595. The Court of Appeals reversed. 199 F. 2d 12'. Because of a conflict between that decision and Trapp v. United States, 177 F. 2d 1, decided by the Court of Appeals for the Tenth Circuit, we granted certiorari. 344 U. S. 927. The governing principle is stated in Cromwell v. County of Sac, 94 U. S. 351, 352-353. A judgment is an absolute bar to a subsequent action on the same claim. “But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action.” And see Tait v. Western Md. R. Co., 289 U. S. 620, 623; Mercoid Corp. v. Mid-Continent Co., 320 U. S. 661, 671; Commissioner v. Sunnen, 333 U. S. 591, 597-598. Estoppel by judgment, or collateral estoppel as it is often called, is applicable in the federal income tax field. Tait v. Western Md. R. Co., supra, at 624; Commissioner v. Sunnen, supra, at 598. We conclude that the decisions entered by the Tax Court for the years 1933, 1938, and 1939 were only a pro forma acceptance by the Tax Court of an agreement between the parties to settle their controversy for reasons undisclosed. There is no showing either in the record or by extrinsic evidence (see Russell v. Place, 94 U. S. 606, 608) that the issues raised by the pleadings were submitted to the Tax Court for determination or determined by that court. They may or may not have been agreed upon by the parties. Perhaps, as the Court of Appeals inferred, the parties did agree on the basis for depreciation. Perhaps the settlement was made for a different reason, for some exigency arising out of the bankruptcy proceeding. As the case reaches us, we are unable to tell whether the agreement of the parties was based on the merits or on some collateral consideration. Certainly the judgments entered are res judicata of the tax claims for the years 1933, 1938 and 1939, whether or not the basis of the agreements on which they rest reached the merits. But unless we can say that they were an adjudication of the merits, the doctrine of estoppel by judgment would serve an unjust cause: it would become a device by which a decision not shown to be on the merits would forever foreclose inquiry into the merits. Estoppel by judgment includes matters in a second proceeding which were actually presented and determined in an earlier suit. See Commissioner v. Sunnen, supra, at 598. A judgment entered with the consent of the parties may involve a determination of questions of fact and law by the court. But unless a showing is made that that was the case, the judgment has no greater dignity, so far as collateral estop-pel is concerned, than any judgment entered only as a compromise of the parties. Reversed. The stipulation for the year 1933, which is typical, reads as follows: “It is hereby stipulated that there is no deficiency in Federal income tax due from the petitioner for the taxable year 1933 and that the following statement shows the petitioner’s Federal income tax liability for the taxable year 1933: “Tax liability. None “Assessment (Jeopardy): “January 23, 1942 (not paid). $2,188.12 “Assessment to be abated. $2,188.12” 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_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. SHELLABARGER v. COMMISSIONER OF INTERNAL REVENUE. No. 4220. Circuit Court of Appeals, Seventh Circuit. Feb. 28, 1930. Charles C. Le Porgee, of Chicago, Ill., for-petitioner. John G. Remey, of Washington, D. C.,. for respondent. Before ALS CHULEE, EVANS, and SPAEKS,' Circuit Judges. ALSCHULEE, Circuit Judge. Beyond mention in its finding of facts that respondent’s ground for such determination was that the payments to Georgia and the hank were in the nature of gifts, the Board’s opinion makes no mention of this, but seems to predicate its conclusion upon the ground that the contract did not assume to give Georgia and the bank any right to demand and receive from the trustees of the two trusts any part of the net income therefrom, but could demand it only from Maud after she had received it from the testamentary trustees; also, that under the terms of the contract Maud did not completely deprive herself of that part of the income payable under the contract to Georgia and the bank, or give Georgia or the bank absolute control of the payments to them; but that in certain contingencies the rights of Georgia and the bank,. under the contract, might terminate; and that Maud reserved some discretion in the making of certain payments by the bank to Georgia’s children. The renunciation of Georgia’s right to contest the will was a lawful consideration for the contract, and the payments to her and the bank under the contract were in no sense gifts or payments in the nature of gifts. Page on Contracts, § 554. The fact that in certain contingencies the contracted payments to Georgia and the bank might cease, and Maud might then be entitled to receive them for her own use, has no relevaney to the question here involved. This could happen only when conditions! specified in the contract came to pass. Until then the right of Georgia and the trustee bank to receive half of the net income was absolute. The contract left no option of revocation in Maud, and no authority to withhold at will from Georgia or the bank and to take unto herself any of the net income so payable to them. Income taxes look to the period for which they are imposed, and operate upon income accrued and paid to the taxpayer as income to the taxpayer within that period. That in some subsequent tax year conditions might come into existence under which Maud would again have for her own use a greater part, or even the whole, of the net income from the testamentary trusts, is wholly beside the question in determining her taxable income for the year 1924. In that year it appears that not only were Georgia and the bank lawfully entitled under the contract to demand and receive to their respective uses the half of the net income from these trusts, but they actually did so then receive it. The bare fact that the entire net income from the trusts was first paid to Maud does not of necessity determine the question. An examination of the trust provisions of the will reveals an excellent reason why it would be paid to her. In both of the trusts it was provided that the income was “payable to her (Maud) on her sole and separate receipt therefor.” This made it at least questionable whether the testamentary trustees were authorized in any event to make the payment to any one but Maud, or to give heed to any direction to pay to another any part of the net income; and this may serve to indicate why the contract omitted any direction to the trustees to pay the three-tenths and the one-fifth of the net income directly to Georgia and the bank; and it tends to dispel any inference that, under the terms of the contract, any power or control over the three-tenths and the one-fifth remained in Maud except to receive it and turn it over as in the contract specified. The mere fact of Maud’s receiving it does not indicate that it was her taxable income. The statute (Act June 2,1924, e. 234, § 213[a], 43 Stat. 267) does not impose an income tax upon everything which is received by the taxpayer. Many items may be received which are not taxable income of the recipient. “Derive” — not “receive”— is the word the statute employs. Under the contract, for the year in question Maud was but an instrumentality or agency for receiving and conveying to Georgia and the bank their contracted proportion of the net income. Maud could not convey the fund itself since she had no title to it. She did not direct the testamentary trustees to pay the half to Georgia and the bank, since the terms of the trusts seemingly required the payments to be made to Maud herself. She did all she reasonably could to invest Georgia and the bank with full right and title to the half. As was said in Barnes v. Alexander, 232 U. S. 117, 34 S. Ct. 276, 277, 58 L. Ed. 530: “They therefore used words of contract rather than of conveyance; but the important thing is not whether they used the present or the future tense but the scope of the- contract. In this case it aimed only at the fund.” So in the case before us it is quite immaterial whether there was employed lan gnage purporting to convey a half interest in the net income, or agreeing to pay over the half as it was received — the result is the same. As the fund was paid over to Maud, the interest of Georgia and the bank immediately attached, and Maud became in equity a trustee for the benefit of Georgia and the bank. Barnes v. Alexander, 232 U. S. 117, 34 S. Ct. 276, 58 L. Ed. 530. And where the beneficiary of a trust assigns an interest in the income therefrom, the grantee who received the income pursuant to the agreement, and not the grantor, is liable for the federal income tax thereon. Young v. Gnichtel (D. C.) 28 F.(2d) 789; O’Malley-Keyes v. Eaton (D. C.) 24 F.(2d) 436. In any event, the valid agreement to pay as received half of the income of the trusts conferred an equitable lien on the fund when it came into existence. Ingersoll v. Coram, 211 U. S. 335, 29 S. Ct. 92, 53 L. Ed. 208. While the whole ofl the net income from the trusts was physically received by Maud, the half did not accrue to her as her income, but on the instant of receiving it she held it in trust for Georgia and the bank, and it was in good faith paid over as received, pursuant to her valid and binding contract. We think the Board of Tax Appeals erred in sustaining respondent’s redetermination of petitioner’s 1924 tax, and the order of the Board approving the redetermination of the tax is reversed, and the cause is remanded with direction for further proceedings in harmony with these views. Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:

sc_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. POWER REACTOR DEVELOPMENT CO. v. INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO, et al. No. 315. Argued April 26-27, 1961. Decided June 12, 1961. Solicitor General Cox argued the cause for petitioners in No. 454. With him on the briefs were former Solicitor General Rankin, Assistant Attorney General Orrick, Assistant Attorney General Doub, Daniel M. Friedman, Morton Hollander, Neil D. Naiden, Courts Oulahan and Lionel Kestenbaum. W. Graham Claytor, Jr. argued the cause for petitioner in No. 315. With him on the briefs were John Lord O’Brian, David E. McGiffert, Edward S. Reid, Jr. and Richard B. Gushee. Benjamin C. Sigal argued the cause for respondents. With him on the brief were Harold Cranefield and Lowell Goerlich. R. M. Stroud filed a brief for Adolph J. Ackerman, as amicus curiae. Together with No. 454, United States et al. v. International Union of Electrical, Radio and Machine Workers, AFL-CIO, et al., also on certiorari to the same Court. Mr. Justice Brennan delivered the opinion of the Court. This case is the first contested licensing proceeding to be decided by the Atomic Energy Commission under the Atomic Energy Act of 1954, 68 Stat. 919, 42 U. S. C. § 2011 et seq. It presents the question whether the Commission erred in continuing in effect a provisional construction permit which authorizes the petitioner Power Reactor Development Company to construct, but not to operate, a fast-neutron breeder reactor for the generation of electric power. The Court of Appeals for the District of Columbia Circuit set that order aside. 108 U. S. App. D. C. 97, 280 F. 2d 645 (1960). We granted certiorari, 364 U. S. 889 (1960), on petitions of the United States and of Power Reactor Development Company (hereafter PRDC), to decide an important question of the scope of the Commission’s power under the Atomic Energy Act of 1954. Stated more precisely, the question before us is whether the Commission, in issuing a permit for the construction of a facility which will utilize nuclear materials, such as the power reactor presently involved, must make the same definitive finding of safety of operation as it admittedly will have to make before it licenses actual operation of the facility. The Court of Appeals said: “It is undisputed that the Commission must make such a finding when it authorizes operation. The question is whether it must make such a finding when it authorizes construction. In our opinion it must.” 108 U. S. App. D. C., at 100, 280 F. 2d, at 648. Petitioners agree that some finding directed to safety of operation must be made at the construction-permit stage of the proceeding, but argue that the Court of Appeals erred in holding that the Commission must have the same degree of certitude at this preliminary point as when it licenses operation. In order to understand how the controversy arises and what is involved in its resolution, it will be necessary to state the proceedings in the case at some length, and then describe in detail the governing statute and administrative regulations. For the decision of this case ultimately turns on a comparison of what the Commission found with what the statute and regulations require. The case began on January 7, 1956, when PRDC filed with the Commission (hereafter sometimes referred to as the AEC) an application to construct and operate a developmental power reactor of a relatively new type. This device has two characteristics which distinguish it from other nuclear reactors. First, the neutrons which fly about inside the reactor (to use crude but graphic layman’s terminology) and split atoms of fissionable Uranium-235 — thus releasing new neutrons and energy in the form of heat — are “fast” neutrons. That is, they travel at a velocity of about 10,000 miles per second, much faster than neutrons in ordinary reactors. Second, this réactor is a “breeder”: it has the property of being able to produce about 1.2 times as much fissionable material as it consumes. This result comes about through a sort of modern alchemy; when the neutrons fly outside the inner core of the reactor, which is composed of fissionable U-235, they enter a blanket of nonfissionable U-238. Atoms in this blanket are changed, when struck by a neutron, into Plutonium, itself a fissionable fuel which can be removed from the reactor and be put to possible use in other installations. Thus, the reactor “breeds” Plutonium faster than it uses up U-235. It not only generates energy to produce electric power, it also creates new reactor fuel. This “breeder” effect is attainable because of the use of fast neutrons. Two boron control rods inserted into the reactor are a means designed to reduce its power level at any time. And in addition to these rods, eight more boron rods are suspended by an electromagnet over the reactor; in case the reactivity rises to a dangerously high level, these safety rods are intended to drop into the reactor automatically and shut it down immediately. The whole machine is housed in a series of thick concrete, graphite, and steel layers, all underground. Over this entire complex is placed a football-shaped building, enclosed in a two-inch steel shield capable of containing an explosion equal in force to 1,000 pounds of TNT, which is greater than any explosion which any of the experts who testified in this case believes is at all likely to result from an accident in the operation of the reactor. The application, after describing the reactor in much greater detail than this rudimentary summary, went on to provide that the reactor would be located at Lagoona Beach, Mich., on the shores of Lake Erie, about 35 miles from the center of Detroit, Mich., and about 30 miles from the center of Toledo, Ohio. The Commission took the case under advisement and, on August 4, 1956, despite a report of its Advisory Committee on Reactor Safeguards which was at best noncommittal about the probable safety of the proposed reactor in operation, issued a provisional construction permit without having held public hearings, as the law at that time permitted it to do. This permit was subject to the following condition: “The conversion of this permit to a license is subject to submittal by PRDC to the Commission (by amendment of the application) of the complete, final Hazards Summary Report (portions of which may be submitted and evaluated from time to time). The final Hazards Summary Report must show that the final design provides Reasonable assurance . . . that the health and safety''of the public will not be endangered by operation of the reactor On August 31, 1956, in accordance with the Commission’s then existing rules of practice, the respondents in this Court, International Union of Electrical, Radio, and Machine Workers, United Automobile, Aircraft, and Agricultural Implement Workers of America, and United Papermakers and Paperworkers, petitioned the Commission for permission to intervene and oppose continuation in effect of PRDC’s provisional construction permit. The AEC granted permission to intervene on October 8, 1956, and set the case down for a hearing before one of its hearing examiners. Extensive hearings were held between January 8, 1957, and August 7, 1957, and on November 22, 1957, in accordance with the AEC’s order setting the case for hearing before him, the examiner, instead of issuing an initial decision and opinion of his own, transferred and certified the record of the hearings to the full Commission for its consideration. Oral argument was had before the Commission on May 29, 1958. On December 10, 1958, the Commission rendered its “Opinion and Initial Decision” continuing PRDC’s permit in effect, subject to the same condition recited above. To its opinion were appended extensive findings of fact, including Finding 22, which is of central importance to the decision of this case. That finding reads as follows: “22. The Commission finds reasonable assurance in the record that a utilization facility of the general type proposed in the PRDC application and amendments thereto can be constructed and will be able to be operated at the location proposed without undue risk to the health and safety of the public.” Commissioners Vance and Floberg joined in the opinion. Commissioner Graham filed a short concurring opinion agreeing with the Commission’s basic safety findings, just quoted, but doing so in much shorter compass than the majority. Commissioners Libby and McCone (the chairman) took no part in the decision. The result of this initial opinion was an order continuing PRDC’s provisional construction permit in effect, but containing the same condition which the original permit, issued on August 4, 1956, had contained. The intervening unions, as was their right, filed detailed exceptions to this initial decision. The Commission fully reconsidered all the contentions and reviewed the evidence presented at the lengthy hearings, with particular attention to the testimony of the scientific experts, several of them members of the Advisory Committee on Reactor Safeguards, who had testified. On May 26,1959, the Commission issued its “Opinion and Final Decision,” dealing with all questions presented in even greater detail and reaffirming its initial decision. The Commission emphasized that “public safety is the first, last, and a permanent consideration in any decision on the issuance of a construction permit or a license to operate a nuclear facility.” Even after operation of the reactor is licensed — if it ever is — the Commission, it said, will retain jurisdiction over PRDC’s activities to ensure that the highest safety standards are maintained. The opinion went on to examine the suitability of the proposed site, noted that it was near a great population center, and nevertheless concluded that at the present stage there was reasonable assurance that the general type of reactor proposed by PRDC would be safe enough at that location. The Commission pointed out, however, that its action in allowing PRDC to proceed with construction was by its nature tentative and preliminary, and that it was by no means committed to the issuance of an operating license. “PRDC has been on notice since before the first shovel of dirt was moved,” it said, “that its construction permit is provisional upon further demonstration of many technological and financial facts, including the complete safety of the reactor.” A more severe safety test would have to be passed when the reactor was completed, the opinion said, since “[t]he degree of ‘reasonable assurance’. . . that satisfies us . . . for purposes of the provisional construction permit would not be the same as we would require in considering the issuance of the operating license.” The Commission then made new findings of fact, including the following counterpart of its initial Finding 22: “22. The Commission finds reasonable assurance in the record, for the purposes of this provisional construction permit, that a utilization facility of the general type proposed in the PRDC Application and amendments thereto can be constructed and operated at the location without undue risk to the health and safety of the public.” All three of the Commissioners who took part in the case joined in this final decision, and the Commission entered its final order continuing in effect the PRDC provisional construction permit, but again subject to the condition that a more extensive safety investigation, and a definitive safety finding, would have to be made before operation was permitted. The intervening unions, respondents in this Court, then petitioned the Court of Appeals for the District of Columbia Circuit to review and set aside this order of the Commission. Only the final order continuing the permit in effect was drawn in question. No complaint was made of the original ex parte grant of the permit in 1956. PRDC intervened in the Court of Appeals in support of the AEC. On June 10, 1960, by a divided vote, a three-judge panel of the Court of Appeals set aside the AEC’s order and remanded the case to the Commission. A petition for rehearing en banc was denied, two judges dissenting, and we brought the case here. We turn now to an examination of the statutes and regulations pursuant to which the Commission purported to continue in effect PRDC’s construction permit. The basic provision is § 104b of the Atomic Energy Act of 1954, 42 U. S. C. § 2134 (b), which authorizes the AEC to “issue licenses to persons applying therefor for utilization and production facilities involved in the conduct of research and development activities .... In issuing licenses under this subsection, the Commission shall impose the minimum amount of such regulations and terms of license as will permit the Commission to fulfill its obligations under this chapter to promote the common defense and security and to protect the health and safety of the public . . . .” Two things about this section should be emphasized. First, there is no doubt that the term “licenses” as used therein includes the provisional construction permit which PRDC has received. The last sentence of § 185, 42 U. S. C. § 2235, expressly so provides, as we shall soon see. And second, there is also no doubt that construction permits, like all other licenses, can be issued only consistently with the health and safety of the public. But the responsibility for safeguarding that health and safety belongs under the statute to the Commission. And § 104b, especially when read in connection with the general rule-making power conferred by § 161i (3), 42 U. S. C. § 2201 (i) (3), clearly contemplates that the Commission shall by regulation set forth what the public safety requires as a prerequisite to the issuance of any license or permit under the Act. The issuance of construction permits is subject to § 185, 42 U. S. C. § 2235. That section provides that “All applicants for licenses to construct or modify production or utilization facilities shall, if the application is otherwise acceptable to the Commission, be initially granted a construction permit. The construction permit shall state the earliest and latest dates for the completion of the construction or modification. Unless the construction or modification of the facility is completed by the completion date, the construction permit shall expire, and all rights thereunder be forfeited, unless upon good cause shown, the Commission extends the completion date. Upon the completion of the construction or modification of the facility, upon the filing of any additional information needed to bring the original application up to date, and upon finding that the facility authorized has been constructed and will operate in conformity with the application as amended and in conformity with the provisions of this chapter and of the rules and regulations of the Commisson, and in the absence of any good cause being shown to the Commission why the granting of a license would not be in accordance with the provisions of this chapter, the Commission shall thereupon issue a license to the applicant. For all other purposes of this chapter, a construction permit is deemed to be a ‘license.’ ” It is clear from the face of this statute — and all parties agree — that Congress contemplated a step-by-step procedure. First an applicant would have to get a construction permit, then he would have to construct his facility, and then he would have to ask the Commission to grant him a license to operate the facility. This procedure is described in its general outlines in Marks and Trowbridge, Framework for Atomic Industry, 76-77 (1955). See also Green, The Law of Reactor Safety, 12 Yand. L. Rev. 112, 121-127 (1958). The second step of the procedure, the application for and granting of an operating license, is governed by § 182a, 42 U. S. C. § 2232 (a). That provision reads, in pertinent part: “In connection with applications for licenses to operate production or utilization facilities, the applicant shall state such technical specifications . . . and such other information as the Commission may, by rule or regulation, deem necessary in order to enable it to find that the utilization or production of special nuclear material will be in accord with the common defense and security and will provide adequate protection to the health and safety of the public.” It is clear from this provision that before licensing the operation of PRDC’s reactor, the AEC will have to make a positive finding that operation of the facility will “provide adequate protection to the health and safety of the public.” What is not clear, and what is at the center of the controversy in this case, is whether the Commission must also have made such a finding when it issued PRDC’s construction permit. There is nothing on the face of either § 182 or f 185 which tells us what safety findings must be made before this preliminary step is taken. We know, however, from § 104b that some such finding must be made. For enlightenment on the nature of this finding, both parties urge us to examine the Commission’s regulations, and accordingly we proceed to do so. The crucial regulation for our purposes is the Commission’s regulation 50.35, 10 CFR § 50.35: “§ 50.35. Extended time for providing technical information. Where, because of the nature of a proposed project, an applicant is not in a position to supply initially all of the technical information otherwise required to complete the application, he shall indicate the reason, the items or kinds of information omitted, and the approximate times when such data will be produced. If the Commission is satisfied that it has information sufficient to provide reasonable assurance that a facility of the general type proposed can be constructed and operated at the proposed location without undue risk to the health and safety of the public and that the omitted information will be supplied, it may process the application and issue a construction permit on a provisional basis without the omitted information subject to its later production and an evaluation by the Commission that the final design provides reasonable assurance that the health and safety of the public will not be endangered.” This regulation, obviously, elaborates upon and describes in fuller detail the step-by-step licensing procedure contemplated by §§ 182 and 185. It states, pursuant to the authority conferred by §§ 104b and 161i (3), what safety findings shall be required at each stage of the proceeding. There is general agreement that the second safety finding referred to, “that the final design provides reasonable assurance that the health and safety of the public will not be endangered,” comports with the requirements of § 182 concerning the issuance of a license to operate. There is also agreement that the regulation’s first required safety finding, “that [the AEC] has information sufficient to provide reasonable assurance that a facility of the general type proposed can be constructed and operated at the proposed location without undue risk to the health and safety of the public,” is a valid exercise of the rule-making power conferred upon the AEC by statute, and requires that some finding as to safety of operation be made even before a provisional construction permit is granted. The question is whether that first finding must be backed up with as much conviction as to the safety of the final design of the specific reactor in operation as the second, final finding must be. We think the great weight of the argument supports the position taken by PRDC and by the Commission, that Reg. 50.35 permits the Commission to defer a definitive safety finding until operation is actually licensed. The words of the regulation themselves certainly lean strongly in that direction. The first finding is to be made, by definition, on the basis of incomplete information, and concerns only the “general type” of reactor proposed. The second finding is phrased unequivocally in terms of “reasonable assurance,” while the first speaks more tentatively of “information sufficient to provide reasonable assurance.” The Commission, furthermore, had good reason to make this distinction. For nuclear reactors are fast-developing and fast-changing. What is up to date now may not, probably will not, be as acceptable tomorrow. Problems which seem insuperable now may be solved tomorrow, perhaps in the very process of construction itself. We see no reason why we should not accord to the Commission's interpretation of its own regulation and governing statute that respect which is customarily given to a practical administrative construction of a disputed provision. Particularly is this respect due when the administrative practice at stake “involves a contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new.” Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294, 315 (1933). And finally, and perhaps demanding particular weight, this constructtion has time and again been brought to the attention of the Joint Committee of Congress on Atomic Energy, which under § 202 of the Act, 42 TJ. S. C. § 2252, has a special duty during each session of Congress to “conduct hearings in either open or executive session for the purpose of receiving information concerning the development, growth, and state of the atomic energy industry,” and to oversee the operations of the AEC. See, e. g., Hearings on Development, Growth, and State of the Atomic Energy Industry, 84th Cong., 2d Sess., p. 106 (1956); Hearings on Development, etc., 85th Cong., 2d Sess., pp. 119-121 (1958) ; Hearings on Development, etc., 86th Cong., 2d Sess., pp. 103-109, 677-678 (1960); Hearings on Development, etc., 87th Cong., 1st Sess., pp. 29-32 (1961); Hearings on Governmental Indemnity for Private Licensees and AEC Contractors Against Reactor Hazards, 84th Cong., 2d Sess., pp. 62-65 (1956); A Study of AEC Procedures and Organization in the Licensing of Reactor Facilities, 85th Cong., 1st Sess., pp. 11-14, 100-108 (Joint Comm. Print 1957). No change in this procedure has ever been suggested by the Committee, although it has on occasion been critical of other aspects of the PRDC proceedings not before us. It may often be shaky business to attribute significance to the inaction of Congress, but under these circumstances, and considering especially the peculiar responsibility and place of the Joint Committee on Atomic Energy in the statutory scheme, we think it fair to read this history as a de jacto acquiescence in and ratification of the Commission’s licensing procedure by Congress. Cf., e. g., Ivanhoe Irrig. Dist. v. McCracken, 357 U. S. 275, 292-294 (1958); Brooks v. Dewar, 313 U. S. 354, 360-361 (1941). This same procedure has been used in each of the nine instances in which The Commission has granted a provisional construction permit for a developmental nuclear power reactor, e. g., Yankee Atomic Elec. Co., CPPR- Question: What is the court whose decision the Supreme Court reviewed? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims Answer:

songer_respond1_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 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". In re HARTMAN PAVING, INC., South Berkeley Lumber & Supply, Inc., Debtors-In-Possession. Thomas G. PYNE, Appellant, v. HARTMAN PAVING, INC., Appellee. No. 83-1443. United States Court of Appeals, Fourth Circuit. Argued Nov. 1, 1983. Decided Oct. 2, 1984. Rehearing Denied Nov. 15, 1984. John C. Skinner, Jr., Charles Town, W. Va. (Nichols and Skinner, L.C., Charles Town, W. Va., on brief), for appellant. Michael L. Bray, Clarksburg, W. Va. (Steptoe & Johnson, Clarksburg, W. Va., on brief), for appellee. Before WINTER, Chief Judge, and PHILLIPS and ERVIN, Circuit Judges. ERVIN, Circuit Judge: Thomas G. Pyne appeals from the district court’s order affirming the bankruptcy court’s denial of relief from the automatic stay imposed under 11 U.S.C. § 362. We reverse. I. In August of 1979 Pyne conveyed real estate and several mobile homes by deed to the Hartman Paving Corporation [Hartman] in exchange for a promissory note. The deed was recorded in the office of the Clerk of the County Commission of Berkeley County, West Virginia. The promissory note required Hartman to pay Pyne the principal sum of $88,000.00 at the rate of 10% interest in 240 monthly installments. To secure payment for the note, Hartman executed and delivered a deed of trust conveying the real estate and mobile homes to Michael B. Keller, an appointed trustee. The deed was signed by Thomas Hartman, President of Hartman Paving Corporation, and notarized by Keller who was then a Notary Public for Berkeley County, West Virginia. On August 19, 1981, Hartman filed a Chapter 11 bankruptcy petition in the United States Bankruptcy Court for the Northern District of West Virginia. In November of the same year Pyne filed a proof of claim with the bankruptcy court. Pyne alleged that he was the holder of a claim secured by a deed of trust lien on real estate. According to Pyne, between November 1981 and March of the following year Hartman refused to make monthly payments on the note and continued to remove shale from the secured property. Accordingly, in March of 1982 Pyne filed a complaint in bankruptcy court seeking (1) an Order of Abandonment releasing the land; (2) an order lifting the automatic stay; and (3) an order enjoining Hartman from using the real estate as a shale pit. Hartman responded by arguing that the deed of trust was void as a matter of law because Keller had acted as both trustee and notary public. If the deed of trust were void, as Hartman contended, Pyne would be an unsecured creditor of Hartman Paving, Inc. and would not be entitled to the relief sought. After Hartman filed its answer, Pyne moved the court to certify to the Supreme Court of Appeals of West Virginia the question “Under West Virginia law, is the acknowledgement of a Trust Deed by the Grantor before the Trustee, with the Trustee acting as a Notary, void?” On April 23, 1982, the Bankruptcy Court held the deed of trust void and therefore concluded that Pyne’s claim was unsecured. The court denied Pyne’s request to lift the automatic stay, and denied the motion to certify the question. Pyne then appealed to the District Court for the Northern District of West Virginia. While this appeal was pending, Pyne filed a second complaint in the bankruptcy court seeking a modification of the automatic stay to allow the filing of a declaratory judgment action in the Circuit Court of Berkeley County, West Virginia. The stated purpose of the declaratory judgment action was to determine the legal effect under West Virginia law of a trustee serving as notary. The bankruptcy court dismissed the complaint on the ground that it lacked jurisdiction while the first complaint was on appeal. Pyne then filed a motion in the district court to remand the initial complaint to the bankruptcy court. The.district court denied the motion and affirmed the initial decision of the bankruptcy court. II. It is well established under West Virginia law that a deed of trust acknowledged by the grantor before a trustee, acting as a notary, is valid as between the parties to the instrument “or those purchasing with actual notice,” but invalid as against all judgments and all subsequent bona fide purchasers for value. Tavenner v. Barrett, 21 W.Va. 656 (1883); Central Trust Co. v. Cook, 111 W.Va. 637, 163 S.E. 60 (1932). Before Hartman filed for bankruptcy, therefore, the deed was valid between Hartman and Pyne because both were parties to the instrument and had actual notice of the execution and conveyance of the deed. Under § 1107(a) of the Bankruptcy Reform Act, however, a debtor becomes a “debtor-in-possession” upon filing for bankruptcy and thereby gains “all the rights and powers of a trustee serving in a case under said chapter.” 11 U.S.C. § 1107(a). Section 544(a) of the Bankruptcy Act provides, in turn, that the trustee “shall have ... the rights and powers of, or may avoid any transfer of property of the debtor or any obligation incurred by the debtor” that is voidable by a judicial lien creditor, an execution lien creditor, or a subsequent bona fide purchaser for value. 11 U.S.C. § 544(a). Under § 544(b), the applicable rights and powers of the trustee are those provided by local state law. See Martin v. Crocker-Citizens National Bank, 349 F.2d 580 (9th Cir.1965). When Hartman filed for bankruptcy, therefore, he became a debtor-in-possession under § 1107(a) and was entitled to avoid any obligations that would have been voidable by a subsequent bona fide purchaser for value or lien creditor under West Virginia law. Tavenner —the controlling West Virginia precedent — states in part that a deed acknowledged by a trustee acting as a notary will not be valid against subsequent bona fide purchasers for value. Thus Hartman argued below, and now contends on appeal, that as debtor-in-possession he was entitled under § 544(a) to avoid the deed of trust and treat Pyne as an unsecured creditor. We are not persuaded by Hartman’s argument because it ignores a critical part of the Tavenner holding. Tavenner stands for the proposition that an improperly acknowledged deed is only void against subsequent bona fide purchasers for value who take without actual notice: [A] conveyance though improperly acknowledged is good between the parties or those purchasing with actual notice. The court thus reasons: “The objection to the trustee taking such acknowledgement is analogous to the one forbidding a judge to pass upon his own case. Though this act may not be strictly judicial, it is of a judicial nature and requires disinterested fidelity. We know that in practice such a trustee is always selected by the beneficiary; he is controlled by the beneficiary in fixing the time of sale, and its proceeds come into his hands. There is such an interest, that as to the requisite of the deed itself, it should be placed upon a level with other parties, and be incapacitated from holding any official relation to its execution. The want of a proper acknowl-edgement does not however invalidate the deed (of one sui juris) but only goes to the effect of the record. If not acknowledged or proved, its record is not provided for by law, and the fact that it may be copied upon the book of records will not operate as constructive notice to subsequent purchaser. Dussaume v. Burnett, 5 Iowa 95; Lessee of Shultz v. Moore, 1 McLean 520; Barney v. Sutton, 2 Watts 31; Hastings v. Vaughan, 5 Cal. 315; Price v. McDonald, 2 Md. 403; Johns v. Scott, 5 Md. 81. The deed however is good between the parties, (being sui juris) and should prevail against subsequent deeds to those who had actual notice of its existence. Dussaume v. Burnett, 5 Iowa 95; Caldwell v. Head, 17 Mo. 561; Cooley v. Rankin, 11 Mo. 647.” Tavenner at 688 (emphasis added). This rule makes considerable practical sense, for one who purchases with actual notice, even if a subsequent purchaser, is not subject to the same dangers of fraud as a subsequent purchaser who is dependent solely on record notice. To treat both the same simply because each is a subsequent purchaser would elevate form over substance. Hartman was a party to the transaction and consequently had actual notice of the conveyance. Thus although Hartman is entitled to claim the powers of a subsequent purchaser for value under § 544(a), those powers, as properly defined under local law, do not permit him to void the deed because — simply stated — Hartman is not the type of subsequent purchaser that Tavenner was designed to protect. III. For the foregoing reasons, Pyne’s claims for relief are granted. REVERSED. . Because the court found that Pyne was an unsecured creditor and could not reach the land, it also denied Pyne’s motion for injunctive relief. . Pyne’s request to certify this issue to the West Virginia Supreme Court of Appeals was properly denied. Under the Uniform Certification of Questions of Law Act, which West Virginia has adopted, the certifying court must conclude that there is no controlling precedent before ordering certification. W.Va.Code § 51-1A-1. Ta-venner and Central Trust are directly on point. . Section 1107(a) states in pertinent part that: (a) Subject to any limitations on a trustee under this chapter, and to such limitations or conditions as the court prescribes, a debtor in possession shall have all the rights, other than the right to compensation under section 330 of this title, and powers, shall perform all the functions and duties, except the duties specified in sections 1106(a)(2)(3) and (4) of this title, of a trustee serving in a case under this chapter. . Section 544(a) states in pertinent part that: (a) The trustee shall have, as of the commencement of the case, and without regard to any knowledge of the trustee or of any creditor, the rights and powers of, or may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by— ****** (3) a bona fide purchaser of real property from the debtor, against whom applicable law permits such transfer to be perfected, that obtains the status of a bona fide purchaser at the time of the commencement of the case, whether or not such a purchaser exists. . The district court stated in its opinion that under Tavenner "a deed of trust acknowledged by the grantor before a trustee, acting as a notary, is valid as between the parties to the instrument and all who have actual notice, but invalid as against all judgments and all bona fide purchasers for value.” (J.A. at 30). For the reasons discussed above, we believe this reading of Tavenner is incorrect. We note in addition, however, that once the district court concluded that a valid deed requires a party be both a party to the instrument and have actual notice, it followed necessarily that an improperly acknowledged deed must be invalid against all subsequent purchasers. This reasoning produces a result here that is incongruous with the rationale of Tavenner. Tavenner was concerned primarily with protecting against danger of fraud. Because Hartman had actual notice, he cannot now claim that the improper ac-knowledgement caused him injury. To read West Virginia law as the district court did, therefore, permits Hartman to turn a legal "fiction” found in § 544(a) to unfair personal gain. In short, the lower court’s interpretation of Ta-venner turns West Virginia law on its head. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:

sc_casesource

028

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. Clyde REED, et al., Petitioners v. TOWN OF GILBERT, ARIZONA, et al. No. 13-502. Supreme Court of the United States Argued Jan. 12, 2015. Decided June 18, 2015. David A. Cortman, Lawrenceville, GA, for Petitioners. Eric J. Feigin, Washington, DC, for the United States as amicus curiae, by special leave of the Court, supporting neither party. Philip W. Savrin, Atlanta, GA, for Respondents. Kevin H. Theriot, Jeremy D. Tedesco, Alliance Defending Freedom, Scottsdale, AZ, David A. Cortman, Counsel of Record, Rory T. Gray, Alliance Defending Freedom, Lawrenceville, GA, for Petitioner. Philip W. Savrin, Counsel of Record, Dana K. Maine, William H. Buechner, Jr., Freeman Mathis & Gary, LLP, Atlanta, GA, for Respondents. Opinion Justice THOMASdelivered the opinion of the Court. The town of Gilbert, Arizona (or Town), has adopted a comprehensive code governing the manner in which people may display outdoor signs. Gilbert, Ariz., Land Development Code (Sign Code or Code), ch. 1, § 4.402 (2005).The Sign Code identifies various categories of signs based on the type of information they convey, then subjects each category to different restrictions. One of the categories is "Temporary Directional Signs Relating to a Qualifying Event," loosely defined as signs directing the public to a meeting of a nonprofit group. § 4.402(P). The Code imposes more stringent restrictions on these signs than it does on signs conveying other messages. We hold that these provisions are content-based regulations of speech that cannot survive strict scrutiny. I A The Sign Code prohibits the display of outdoor signs anywhere within the Town without a permit, but it then exempts 23 categories of signs from that requirement. These exemptions include everything from bazaar signs to flying banners. Three categories of exempt signs are particularly relevant here. The first is "Ideological Sign[s]." This category includes any "sign communicating a message or ideas for noncommercial purposes that is not a Construction Sign, Directional Sign, Temporary Directional Sign Relating to a Qualifying Event, Political Sign, Garage Sale Sign, or a sign owned or required by a governmental agency." Sign Code, Glossary of General Terms (Glossary), p. 23 (emphasis deleted). Of the three categories discussed here, the Code treats ideological signs most favorably, allowing them to be up to 20 square feet in area and to be placed in all "zoning districts" without time limits. § 4.402(J). The second category is "Political Sign[s]." This includes any "temporary sign designed to influence the outcome of an election called by a public body." Glossary 23.The Code treats these signs less favorably than ideological signs. The Code allows the placement of political signs up to 16 square feet on residential property and up to 32 square feet on nonresidential property, undeveloped municipal property, and "rights-of-way." § 4.402(I).These signs may be displayed up to 60 days before a primary election and up to 15 days following a general election. Ibid. The third category is "Temporary Directional Signs Relating to a Qualifying Event." This includes any "Temporary Sign intended to direct pedestrians, motorists, and other passersby to a 'qualifying event.' " Glossary 25 (emphasis deleted). A "qualifying event" is defined as any "assembly, gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar non-profit organization." Ibid.The Code treats temporary directional signs even less favorably than political signs.Temporary directional signs may be no larger than six square feet. § 4.402(P). They may be placed on private property or on a public right-of-way, but no more than four signs may be placed on a single property at any time. Ibid. And, they may be displayed no more than 12 hours before the "qualifying event" and no more than 1 hour afterward. Ibid. B Petitioners Good News Community Church (Church) and its pastor, Clyde Reed, wish to advertise the time and location of their Sunday church services. The Church is a small, cash-strapped entity that owns no building, so it holds its services at elementary schools or other locations in or near the Town. In order to inform the public about its services, which are held in a variety of different locations, the Church began placing 15 to 20 temporary signs around the Town, frequently in the public right-of-way abutting the street. The signs typically displayed the Church's name, along with the time and location of the upcoming service. Church members would post the signs early in the day on Saturday and then remove them around midday on Sunday. The display of these signs requires little money and manpower, and thus has proved to be an economical and effective way for the Church to let the community know where its services are being held each week. This practice caught the attention of the Town's Sign Code compliance manager, who twice cited the Church for violating the Code. The first citation noted that the Church exceeded the time limits for displaying its temporary directional signs. The second citation referred to the same problem, along with the Church's failure to include the date of the event on the signs. Town officials even confiscated one of the Church's signs, which Reed had to retrieve from the municipal offices. Reed contacted the Sign Code Compliance Department in an attempt to reach an accommodation. His efforts proved unsuccessful. The Town's Code compliance manager informed the Church that there would be "no leniency under the Code" and promised to punish any future violations. Shortly thereafter, petitioners filed a complaint in the United States District Court for the District of Arizona, arguing that the Sign Code abridged their freedom of speech in violation of the First and Fourteenth Amendments. The District Court denied the petitioners' motion for a preliminary injunction. The Court of Appeals for the Ninth Circuit affirmed, holding that the Sign Code's provision regulating temporary directional signs did not regulate speech on the basis of content. 587 F.3d 966, 979 (2009). It reasoned that, even though an enforcement officer would have to read the sign to determine what provisions of the Sign Code applied to it, the " 'kind of cursory examination' " that would be necessary for an officer to classify it as a temporary directional sign was "not akin to an officer synthesizing the expressive content of the sign." Id.,at 978. It then remanded for the District Court to determine in the first instance whether the Sign Code's distinctions among temporary directional signs, political signs, and ideological signs nevertheless constituted a content-based regulation of speech. On remand, the District Court granted summary judgment in favor of the Town. The Court of Appeals again affirmed, holding that the Code's sign categories were content neutral. The court concluded that "the distinctions between Temporary Directional Signs, Ideological Signs, and Political Signs ... are based on objective factors relevant to Gilbert's creation of the specific exemption from the permit requirement and do not otherwise consider the substance of the sign." 707 F.3d 1057, 1069 (C.A.9 2013). Relying on this Court's decision in Hill v. Colorado,530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), the Court of Appeals concluded that the Sign Code is content neutral. 707 F.3d, at 1071-1072. As the court explained, "Gilbert did not adopt its regulation of speech because it disagreed with the message conveyed" and its "interests in regulat[ing] temporary signs are unrelated to the content of the sign." Ibid.Accordingly, the court believed that the Code was "content-neutral as that term [has been] defined by the Supreme Court." Id.,at 1071. In light of that determination, it applied a lower level of scrutiny to the Sign Code and concluded that the law did not violate the First Amendment. Id.,at 1073-1076. We granted certiorari, 573 U.S. ----, 134 S.Ct. 2900, 189 L.Ed.2d 854 (2014), and now reverse. II A The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws "abridging the freedom of speech." U.S. Const., Amdt. 1. Under that Clause, a government, including a municipal government vested with state authority, "has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Dept. of Chicago v. Mosley,408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). Content-based laws-those that target speech based on its communicative content-are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. R.A.V. v. St. Paul,505 U.S. 377, 395, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992);Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd.,502 U.S. 105, 115, 118, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991). Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. E.g., Sorrell v. IMS Health, Inc.,564 U.S. ----, ---- - ----, 131 S.Ct. 2653, 2663-2664, 180 L.Ed.2d 544 (2011); Carey v. Brown,447 U.S. 455, 462, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980); Mosley, supra,at 95, 92 S.Ct. 2286. This commonsense meaning of the phrase "content based" requires a court to consider whether a regulation of speech "on its face" draws distinctions based on the message a speaker conveys. Sorrell, supra,at ----, 131 S.Ct., at 2664. Some facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose. Both are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny. Our precedents have also recognized a separate and additional category of laws that, though facially content neutral, will be considered content-based regulations of speech: laws that cannot be " 'justified without reference to the content of the regulated speech,' " or that were adopted by the government "because of disagreement with the message [the speech] conveys," Ward v. Rock Against Racism,491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989).Those laws, like those that are content based on their face, must also satisfy strict scrutiny. B The Town's Sign Code is content based on its face. It defines "Temporary Directional Signs" on the basis of whether a sign conveys the message of directing the public to church or some other "qualifying event." Glossary 25. It defines "Political Signs" on the basis of whether a sign's message is "designed to influence the outcome of an election." Id.,at 24. And it defines "Ideological Signs" on the basis of whether a sign "communicat [es] a message or ideas" that do not fit within the Code's other categories. Id.,at 23. It then subjects each of these categories to different restrictions. The restrictions in the Sign Code that apply to any given sign thus depend entirely on the communicative content of the sign. If a sign informs its reader of the time and place a book club will discuss John Locke's Two Treatises of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke's followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke's theory of government. More to the point, the Church's signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas. On its face, the Sign Code is a content-based regulation of speech. We thus have no need to consider the government's justifications or purposes for enacting the Code to determine whether it is subject to strict scrutiny. C In reaching the contrary conclusion, the Court of Appeals offered several theories to explain why the Town's Sign Code should be deemed content neutral. None is persuasive. 1 The Court of Appeals first determined that the Sign Code was content neutral because the Town "did not adopt its regulation of speech [based on] disagree [ment] with the message conveyed," and its justifications for regulating temporary directional signs were "unrelated to the content of the sign." 707 F.3d, at 1071-1072. In its brief to this Court, the United States similarly contends that a sign regulation is content neutral-even if it expressly draws distinctions based on the sign's communicative content-if those distinctions can be " 'justified without reference to the content of the regulated speech.' " Brief for United States as Amicus Curiae20, 24 (quoting Ward, supra,at 791, 109 S.Ct. 2746; emphasis deleted). But this analysis skips the crucial first step in the content-neutrality analysis: determining whether the law is content neutral on its face. A law that is content based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of "animus toward the ideas contained" in the regulated speech. Cincinnati v. Discovery Network, Inc.,507 U.S. 410, 429, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993). We have thus made clear that " '[i]llicit legislative intent is not the sine qua nonof a violation of the First Amendment,' " and a party opposing the government "need adduce 'no evidence of an improper censorial motive.' " Simon & Schuster, supra,at 117, 112 S.Ct. 501. Although "a content-based purpose may be sufficient in certain circumstances to show that a regulation is content based, it is not necessary." Turner Broadcasting System, Inc. v. FCC,512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). In other words, an innocuous justification cannot transform a facially content-based law into one that is content neutral. That is why we have repeatedly considered whether a law is content neutral on its face beforeturning to the law's justification or purpose. See, e.g.,Sorrell, supra,at ---- - ----, 131 S.Ct., at 2663-2664(statute was content based "on its face," and there was also evidence of an impermissible legislative motive); United States v. Eichman,496 U.S. 310, 315, 110 S.Ct. 2404, 110 L.Ed.2d 287 (1990)("Although the [statute] contains no explicit content-based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government's asserted interest is related to the suppression of free expression" (internal quotation marks omitted)); Members of City Council of Los Angeles v. Taxpayers for Vincent,466 U.S. 789, 804, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)("The text of the ordinance is neutral," and "there is not even a hint of bias or censorship in the City's enactment or enforcement of this ordinance"); Clark v. Community for Creative Non-Violence,468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)(requiring that a facially content-neutral ban on camping must be "justified without reference to the content of the regulated speech"); United States v. O'Brien,391 U.S. 367, 375, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)(noting that the statute "on its face deals with conduct having no connection with speech," but examining whether the "the governmental interest is unrelated to the suppression of free expression"). Because strict scrutiny applies either when a law is content based on its face or when the purpose and justification for the law are content based, a court must evaluate each question before it concludes that the law is content neutral and thus subject to a lower level of scrutiny. The Court of Appeals and the United States misunderstand our decision in Wardas suggesting that a government's purpose is relevant even when a law is content based on its face. That is incorrect. Wardhad nothing to say about facially content-based restrictions because it involved a facially content-neutralban on the use, in a city-owned music venue, of sound amplification systems not provided by the city. 491 U.S., at 787, and n. 2, 109 S.Ct. 2746. In that context, we looked to governmental motive, including whether the government had regulated speech "because of disagreement" with its message, and whether the regulation was " 'justified without reference to the content of the speech.' " Id.,at 791, 109 S.Ct. 2746. But Ward's framework "applies only if a statute is content neutral." Hill,530 U.S., at 766, 120 S.Ct. 2480(KENNEDY, J., dissenting). Its rules thus operate "to protect speech," not "to restrict it." Id.,at 765, 120 S.Ct. 2480. The First Amendment requires no less. Innocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech. That is why the First Amendment expressly targets the operation of the laws-i.e., the "abridg[ement] of speech"-rather than merely the motives of those who enacted them. U.S. Const., Amdt. 1. " 'The vice of content-based legislation ... is not that it is always used for invidious, thought-control purposes, but that it lends itself to use for those purposes.' " Hill, supra,at 743, 120 S.Ct. 2480(SCALIA, J., dissenting). For instance, in NAACP v. Button,371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), the Court encountered a State's attempt to use a statute prohibiting " 'improper solicitation' " by attorneys to outlaw litigation-related speech of the National Association for the Advancement of Colored People. Id.,at 438, 83 S.Ct. 328. Although Buttonpredated our more recent formulations of strict scrutiny, the Court rightly rejected the State's claim that its interest in the "regulation of professional conduct" rendered the statute consistent with the First Amendment, observing that "it is no answer ... to say ... that the purpose of these regulations was merely to insure high professional standards and not to curtail free expression." Id.,at 438-439, 83 S.Ct. 328. Likewise, one could easily imagine a Sign Code compliance manager who disliked the Church's substantive teachings deploying the Sign Code to make it more difficult for the Church to inform the public of the location of its services. Accordingly, we have repeatedly "rejected the argument that 'discriminatory ... treatment is suspect under the First Amendment only when the legislature intends to suppress certain ideas.' " Discovery Network, 507 U.S., at 429, 113 S.Ct. 1505. We do so again today. 2 The Court of Appeals next reasoned that the Sign Code was content neutral because it "does not mention any idea or viewpoint, let alone single one out for differential treatment." 587 F.3d, at 977. It reasoned that, for the purpose of the Code provisions, "[i]t makes no difference which candidate is supported, who sponsors the event, or what ideological perspective is asserted." 707 F.3d, at 1069. The Town seizes on this reasoning, insisting that "content based" is a term of art that "should be applied flexibly" with the goal of protecting "viewpoints and ideas from government censorship or favoritism." Brief for Respondents 22. In the Town's view, a sign regulation that "does not censor or favor particular viewpoints or ideas" cannot be content based. Ibid. The Sign Code allegedly passes this test because its treatment of temporary directional signs does not raise any concerns that the government is "endorsing or suppressing 'ideas or viewpoints,' " id.,at 27, and the provisions for political signs and ideological signs "are neutral as to particular ideas or viewpoints" within those categories. Id.,at 37. This analysis conflates two distinct but related Question: What is the court whose decision the Supreme Court reviewed? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. 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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. JAFFEE, special administrator for ALLEN, DECEASED v. REDMOND et al. No. 95-266. Argued February 26, 1996 Decided June 13, 1996 Stevens, J., delivered the opinion of the Court, in which O’Connor, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., joined as to Part III, post, p. 18. Kenneth N. Flaxman argued the cause for petitioner. With him on the briefs were Ronald L. Futterman and Craig B. Futterman. Gregory E. Bogus argued the cause for respondents. With him on the brief were Paul E. Wojcicki, Robert E. Wilens, and Richard N. Williams. James A. Feldman argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Days and Deputy Solicitor General Bender Briefs of amici curiae urging affirmance were filed for the American Association of State Social Work Boards by John F. Atkinson; for the American Civil Liberties Union et al. by Steven R. Shapiro, Harvey Gross-man, Leonard S. Rubenstein, Bruce J. Winick, and Daniel W. Shuman; for the American Counseling Association by Lee H. Simowitz; for the American Psychiatric Association et al. by Richard G. Taranto; for the American Psychoanalytic Association et al. by Carter G. Phillips, Rex E. Lee, and Joseph R. Guerra; for the American Psychological Association by Paul M. Smith, Robert M. Portman, and James L. McHugh, Jr.; for the Employee Assistance Professionals Association, Inc., by Peter J. Rubin; for the Menninger Foundation by James C. Geoly, Michael T. Zeller, and Kevin R. Gustafson; for the National Association of Police Organizations, Inc., by William J. Johnson; for the National Association of Social Workers et al. by Michael B. Trister, Carolyn I. Polowy, Sandra G. Nye, Kenneth L. Adams, James van R. Springer, and Peter M. Brody; and for George R. Caesar et al. by Kurt W. Melchior. Briefs of amici curiae were filed for the international Union of Police Associations, AFL-CIO, by Michael T. Leibig; and for the National Network to End Domestic Violence et al. by William C. Brashares. Justice Stevens delivered the opinion of the Court. After a traumatic incident in which she shot and killed a man, a police officer received extensive counseling from a licensed clinical social worker. The question we address is whether statements the officer made to her therapist during the counseling sessions are protected from compelled disclosure in a federal civil action brought by the family of the deceased. Stated otherwise, the question is whether it is appropriate for federal courts to recognize a “psychotherapist privilege” under Rule 501 of the Federal Rules of Evidence. I Petitioner is the administrator of the estate of Ricky Allen. Respondents are Mary Lu Redmond, a former police officer, and the Village of Hoffman Estates, Illinois, her employer during the time that she served on the police force. Petitioner commenced this action against respondents after Redmond shot and killed Allen while .on patrol duty. On June 27,1991, Redmond was the first officer to respond to a “fight in progress” call at an apartment complex. As she arrived at the scene, two of Allen’s sisters ran toward her squad car, waving their arms and shouting that there had been a stabbing in one of the apartments. Redmond testified at trial.that she relayed this information to her dispatcher and requested an ambulance. She then exited her car and walked toward the apartment building. Before Redmond reached the building, several men ran out, one waving a pipe. When the men ignored her order to get on the ground, Redmond drew her service revolver. Two other men then burst out of the building, one, Ricky Allen, chasing the other. According to Redmond, Allen was brandishing a butcher knife and disregarded her repeated commands to drop the weapon. Redmond shot Allen when she believed he was about to stab the man he was chasing. Allen died at the scene. Redmond testified that before other officers arrived to provide support, “people came pouring out of the buildings,” App. 134, and a threatening confrontation between her and the crowd ensued. Petitioner filed suit in Federal District Court alleging that Redmond had violated Allen’s constitutional rights by using excessive force during the encounter at the apartment complex. The complaint sought damages under Rev. Stat. § 1979, 42 U. S. C. § 1983, and the Illinois wrongful-death statute, Ill. Comp. Stat., ch. 740, §180/1 et seq. (1994). At trial, petitioner presented testimony from members of Allen’s family that conflicted with Redmond’s version of the incident in several important respects. They testified, for example, that Redmond drew her gun before exiting her squad car and that Allen was unarmed when he emerged from the apartment building. During pretrial discovery petitioner learned that after the shooting Redmond had participated in about 50 counseling sessions with Karen Beyer, a clinical social worker licensed by the State of Illinois and employed at that time by the Village of Hoffman Estates. Petitioner sought access to Beyer’s notes concerning the sessions for use in cross-examining Redmond. Respondents vigorously resisted the discovery. They asserted that the contents of the conversations between Beyer and Redmond were protected against involuntary disclosure by a psychotherapist-patient privilege. The district judge rejected this argument. Neither Beyer nor Redmond, however, complied with his order to disclose the contents of Beyer’s notes. At depositions and on the witness stand both either refused to answer certain questions or professed an inability to recall details of their conversations. In his instructions at the end of the trial, the judge advised the jury that the refusal to turn over Beyer’s notes had no “legal justification” and that the jury could therefore presume that the contents of the notes would have been unfavorable to respondents. The jury awarded petitioner $45,000 on the federal claim and $500,000 on her state-law claim. The Court of Appeals for the Seventh Circuit reversed and remanded for a new trial. Addressing the issue for the first time, the court concluded that “reason and experience,” the touchstones for acceptance of a privilege under Rule 501 of the Federal Rules of Evidence, compelled recognition of a psychotherapist-patient privilege. 51 F. 3d 1346, 1355 (1995). “Reason tells us that psychotherapists and patients share a unique relationship, in which the ability to communicate freely without the fear of public disclosure is the key to successful treatment.” Id., at 1355-1356. As to experience, the court observed that all 50 States have adopted some form of the psychotherapist-patient privilege. Id., at 1356. The court attached particular significance to the fact that Illinois law expressly extends such a privilege to social workers like Karen Beyer. Id., at 1357. The court also noted that, with one exception, the federal decisions rejecting the privilege were more than five years old and that the “need and demand for counseling services has skyrocketed during the past several years.” Id., at 1355-1356. The Court of Appeals qualified its recognition of the privilege by stating that it would not apply if, “in the interests of justice, the evidentiary need for the disclosure of the contents of a patient’s counseling sessions outweighs that patient’s privacy interests.” Id., at 1357. Balancing those conflicting interests, the court observed, on the one hand, that the evidentiary need for the contents of the confidential conversations was diminished in this case because there were numerous eyewitnesses to the shooting, and, on the other hand, that Officer Redmond’s privacy interests were substantial. Id., at 1358. Based on this assessment, the court concluded that the trial court had erred by refusing to afford protection to the confidential communications between Redmond and Beyer. The United States Courts of Appeals do not uniformly agree that the federal courts should recognize a psychotherapist privilege under Rule 501. Compare In re Doe, 964 F. 2d 1325 (CA2 1992) (recognizing privilege); In re Zuniga, 714 F. 2d 632 (CA6) (same), cert. denied, 464 U. S. 983 (1983), with United States v. Burtrum, 17 F. 3d 1299 (CA10) (declining to recognize privilege), cert. denied, 513 U. S. 863 (1994); In re Grand Jury Proceedings, 867 F. 2d 562 (CA9) (same), cert. denied sub nom. Doe v. United States, 493 U. S. 906 (1989); United States v. Corona, 849 F. 2d 562 (CA11 1988) (same), cert. denied, 489 U. S. 1084 (1989); United States v. Meagher, 531 F. 2d 752 (CA5) (same), cert. denied, 429 U. S. 853 (1976). Because of the conflict among the Courts of Appeals and the importance of the question, we granted certiorari. 516 U. S. 930 (1995). We affirm. II Rule 501 of the Federal Rules of Evidence authorizes federal courts to define new privileges by interpreting “common law principles ... in the light of reason and experience.” The authors of the Rule borrowed this phrase from our opinion in Wolfle v. United States, 291 U. S. 7, 12 (1934), which in turn referred to the oft-repeated observation that “the common law is not immutable but flexible, and by its own principles adapts itself to varying conditions.” Funk v. United States, 290 U. S. 371, 383 (1933). See also Hawkins v. United States, 358 U. S. 74, 79 (1958) (changes in privileges may be “dictated by ‘reason and experience’ ”). The Senate Report accompanying the 1975 adoption of the Rules indicates that Rule 501 “should be understood as reflecting the view that the recognition of a privilege based on a confidential relationship . . . should be determined on a case-by-case basis.” S. Rep. No. 93-1277, p. 13 (1974). The Rule thus did not freeze the law governing the privileges of witnesses in federal trials at a particular point in our history, but rather directed federal courts to “continue the evolutionary development of testimonial privileges.” Trammel v. United States, 445 U. S. 40, 47 (1980); see also University of Pennsylvania v. EEOC, 493 U. S. 182, 189 (1990). The common-law principles underlying the recognition of testimonial privileges can be stated simply. “Tor more than three centuries it has now been recognized as a fundamental maxim that the public . . . has a right to every man’s evidence. When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule.’ ” United States v. Bryan, 339 U. S. 323, 331 (1950) (quoting 8 J. Wigmore, Evidence §2192, p. 64 (3d ed. 1940)). See also United States v. Nixon, 418 U. S. 683, 709 (1974). Exceptions from the general rule disfavoring testimonial privileges may be justified, however, by a “ ‘public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.’ ” Trammel, 445 U. S., at 50 (quoting Elkins v. United States, 364 U. S. 206, 234 (1960) (Frankfurter, J., dissenting)). Guided by these principles, the question we address today is whether a privilege protecting confidential communications between a psychotherapist and her patient “promotes sufficiently important interests to outweigh the need for probative evidence . . . .” 445 U. S., at 51. Both “reason and experience” persuade us that it does. III Like the spousal and attorney-client privileges, the psychotherapist-patient privilege is “rooted in the imperative need for confidence and trust.” Ibid. Treatment by a physician for physical ailments can often proceed successfully on the basis of a physical examination, objective information supplied by the patient, and the results of diagnostic tests. Effective psychotherapy, by contrast, depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment. As the Judicial Conference Advisory Committee observed in 1972 when it recommended that Congress recognize a psychotherapist privilege as part of the Proposed Federal Rules of Evidence, a psychiatrist’s ability to help her patients “‘is completely dependent upon [the patients’] willingness and ability to talk freely. This makes it difficult if not impossible for [a psychiatrist] to function without being able to assure . . . patients of confidentiality and, indeed, privileged communication. Where there may be exceptions to this general rule . . . , there is wide agreement that confidentiality is a sine qua non for successful psychiatric treatment.’” Advisory Committee’s Notes to Proposed Rules, 56 F. R. D. 183, 242 (1972) (quoting Group for Advancement of Psychiatry, Report No. 45, Confidentiality and Privileged Communication in the Practice of Psychiatry 92 (June 1960)). By protecting confidential communications between a psychotherapist and her patient from involuntary disclosure, the proposed privilege thus serves important private interests. Our cases make clear that an asserted privilege must also “serv[e] public ends.” Upjohn Co. v. United States, 449 U. S. 383, 389 (1981). Thus, the purpose of the attorney-client privilege is to “encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Ibid. And the spousal privilege, as modified in Trammel, is justified because it “furthers the important public interest in marital harmony,” 445 U. S., at 53. See also United States v. Nixon, 418 U. S., at 705; Wolfle v. United States, 291 U. S., at 14. The psychotherapist privilege serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem. The mental health of our citizenry, no less than its physical health, is a public good of transcendent importance. In contrast to the significant public and private interests supporting recognition of the privilege, the likely evidentiary benefit that would result from the denial of the privilege is modest. If the privilege were rejected, confidential conversations between psychotherapists and their patients would surely be chilled, particularly when it is obvious that the circumstances that give rise to the need for treatment will probably result in litigation. Without a privilege, much of the desirable evidence to which litigants such as petitioner seek access — for example, admissions against interest by a party — is unlikely to come into being. This unspoken “evidence” will therefore serve no greater truth-seeking function than if it had been spoken and privileged. That it is appropriate for the federal courts to recognize a psychotherapist privilege under Rule 501 is confirmed by the fact that all 50 States and the District of Columbia have enacted into law some form of psychotherapist privilege. We have previously observed that the policy decisions of the States bear on the question whether federal courts should recognize a new privilege or amend the coverage of an existing one. See Trammel, 445 U. S., at 48-50; United States v. Gillock, 445 U. S. 360, 368, n. 8 (1980). Because state legislatures are fully aware of the need to protect the integrity of the factfinding functions of their courts, the existence of a consensus among the States indicates that “reason and experience” support recognition of the privilege. In addition, given the importance of the patient’s understanding that her communications with her therapist will not be publicly disclosed, any State’s promise of confidentiality would have little value if the patient were aware that the privilege would not be honored in a federal court. Denial of the federal privilege therefore would frustrate the purposes of the state legislation that was enacted to foster these confidential communications. It is of no consequence that recognition of the privilege in the vast majority of States is the product of legislative action rather than judicial decision. Although common-law rulings may once have been the primary source of new developments in federal privilege law, that is no longer the case. In Funk v. United States, 290 U. S. 371 (1933), we recognized that it is appropriate to treat a consistent body of policy determinations by state legislatures as reflecting both “reason” and “experience.” Id., at 376-381. That rule is properly respectful of the States and at the same time reflects the fact that once a state legislature has enacted a privilege there is no longer an opportunity for common-law creation of the protection. The history of the psychotherapist privilege illustrates the latter point. In 1972 the members of the Judicial Conference Advisory Committee noted that the common law “had indicated a disposition to recognize a psychotherapist-patient privilege when legislatures began moving into the field.” Proposed Rules, 56 F. R. D., at 242 (citation omitted). The present unanimous acceptance of the privilege shows that the state lawmakers moved quickly. That the privilege may have developed faster legislatively than it would have in the courts demonstrates only that the States rapidly recognized the wisdom of the rule as the field of psychotherapy developed. The uniform judgment of the States is reinforced by the fact that a psychotherapist privilege was among the nine specific privileges recommended by the Advisory Committee in its proposed privilege rules. In United States v. Gillock, 445 U. S., at 367-368, our holding that Rule 501 did not include a state legislative privilege relied, in part, on the fact that no such privilege was included in the Advisory Committee’s draft. The reasoning in Gillock thus supports the opposite conclusion in this case. In rejecting the proposed draft that had specifically identified each privilege rule and substituting the present more open-ended Rule 501, the Senate Judiciary Committee explicitly stated that its action “should not be understood as disapproving any recognition of a psychiatrist-patient . . . privileg[e] contained in the [proposed] rules.” S. Rep. No. 93-1277, at 13. Because we agree with the judgment of the state legislatures and the Advisory Committee that a psychotherapist-patient privilege will serve a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth,” Trammel, 445 U. S., at 50, we hold that confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence. IV All agree that a psychotherapist privilege covers confidential communications made to licensed psychiatrists and psychologists. We have no hesitation in concluding in this case that the federal privilege should also extend to confidential communications made to licensed social workers in the course of psychotherapy. The reasons for recognizing a privilege for treatment by psychiatrists and psychologists apply with equal force to treatment by a clinical social worker such as Karen Beyer. Today, social workers provide a significant amount of mental health treatment. See, e. g., U. S. Dept. of Health and Human Services, Center for Mental Health Services, Mental Health, United States, 1994, pp. 85-87, 107-114; Brief for National Association of Social Workers et al. as Amici Curiae 5-7 (citing authorities). Their clients often include the poor and those of modest means who could not afford the assistance of a psychiatrist or psychologist, id., at 6-7 (citing authorities), but whose counseling sessions serve the same public goals. Perhaps in recognition of these circumstances, the vast majority of States explicitly extend a testimonial privilege to licensed social workers. We therefore' agree with the Court of Appeals that “[d]rawing a distinction between the counseling provided by costly psychotherapists and the counseling provided by more readily accessible social workers serves no discernible public purpose.” 51 F. 3d, at 1358, n. 19. We part company with the Court of Appeals on a separate point. We reject the balancing component of the privilege implemented by that court and a small number of States. Making the promise of confidentiality contingent upon a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege. As we explained in Upjohn, if the purpose of the privilege is to be served, the participants in the confidential conversation “must 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. 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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". CHILDERS OIL COMPANY, INCORPORATED, a corporation; James E. Childers, Jr.; Erma L. Childers, doing business as Childers Short Stop, Plaintiffs-Appellants, v. EXXON CORPORATION, a corporation, Defendant-Appellee. No. 91-2598. United States Court of Appeals, Fourth Circuit. Argued Dec. 4, 1991. Decided April 3, 1992. Carl Lee Fletcher, Jr., Spilman, Thomas, Battle & Klostermeyer, Charleston, W.Va., argued (David A. Faber, R. Scott Long, on brief), for plaintiffs-appellants. William R. O’Brien, Howrey & Simon, Washington, D.C., argued (Darren B. Bern-hard, Gregory J. Commins, Jr., Howrey & Simon, Washington, D.C., Thomas B. Bennett, Bowles, Rice, McDavid, Graff & Love, Charleston, W.Va., William R. Hurt, Exxon Co., U.S.A., Houston, Tex., on brief), for defendant-appellee. Before HALL, NIEMEYER, and LUTTIG, Circuit Judges. OPINION K.K. HALL, Circuit Judge: Childers Oil Company and James and Erma Childers d/b/a Short Stop appeal the district court’s grant of summary judgment for defendant Exxon Corporation in Childers’ action for breach of contract, tor-tious interference with prospective business relations, and fraud, and on Exxon’s counterclaims for trademark infringement, breach of contract, and recovery on a promissory note. Through a combination of waiver, the parol evidence rule, and the statute of limitations, the appellants are unable to recover. In addition, they offer no colorable defenses to Exxon’s counterclaims. Accordingly, the judgment is affirmed. I. The appellants are two businesses, both wholly owned by James and Erma Child-ers — Childers Oil Co., Inc., and Short Stop, a partnership. Childers Oil was formed in 1975 to operate a bulk fuel distributorship in Bluefield, West Virginia. Childers Oil initially sold Amoco products. Shortly after it began operations, Childers Oil built a new plant near Princeton, West Virginia, at the junction of two major highways — Interstate 77 and U.S. Route 460. In January 1980, Childers Oil built a retail service station adjacent to its Princeton plant. It leased the station to the Short Stop partnership. The competition-less station prospered. In early 1982, however, Amoco announced its withdrawal from West Virginia. Mr. Childers learned of-Amoco’s action in his Sunday newspaper. If Mr. Childers worried of not having a supplier, his fears were quickly erased. The very next day, William Lucas, a distributorship salesman for Exxon, telephoned Mr. Childers to express Exxon’s interest in replacing Amoco as Childers Oil’s supplier. At the time, Exxon had no retail outlets on Interstate 77 from Charleston, West Virginia, to Wytheville, Virginia — a stretch of over 120 miles — and it was interested in filling this lacuna in its competitive ubiquity. Mr. and Mrs. Childers had one serious concern about Exxon. Exxon owned a tract of land 400 yards from Short Stop, and the Childers had heard rumors that Exxon planned to build a companyowned station there. The Childers did not want to become an Exxon distributor and then be forced to compete with another retail Exxon outlet. A few days after the initial telephone call, Lucas came to the Childers Oil plant to discuss Exxon’s proposal, Mr. Childers asked Lucas about Exxon’s plans for its tract of land. According to Mr. Childers, Lucas promised that Exxon would not build a retail station on the tract if Childers Oil would sign an Exxon Distributor Agreement. A few weeks passed. Then Lucas and his boss, Lowe Lunsford, paid Mr. Childers another visit. Again, Mr. Childers brought up his concern about Exxon’s plans for its land. Lunsford assured him that the property was in Exxon’s inactive “land bank,” and Exxon had no plans to construct a station there. Through the summer of 1982, Mr. Child-ers continued negotiations with Exxon. Both Lucas and Lunsford repeated their assurances that Exxon would not compete with Short Stop by building on its “land bank” tract. On September 14, 1982, Childers Oil signed Exxon’s standard Distributor Agreement. The agreement contains a boilerplate integration clause: 25. ENTIRE AGREEMENT: This writing is intended by the parties to be the final, complete and exclusive statement of their agreement about the matters covered herein. THERE ARE NO ORAL UNDERSTANDINGS, REPRESENTATIONS OR WARRANTIES AFFECTING IT. Mr. Childers asked that Exxon’s promise not to compete be included in the agreement, but was told that no changes could be made in the form. He signed anyway. The agreement was to expire on March 31, 1984. Within a few months, Mr. and Mrs. Child-ers began hearing new rumors that Exxon was planning to develop its property. Mr. Childers called Lunsford each time he heard such a rumor. At first, Lunsford said that he had heard nothing, but he later expressly stated that a company-owned station would not be built. Sometime in late 1983, a contractor showed up at Childers Oil and said he was there for a pre-bid conference on the “new station.” Mr. Childers told the contractor that he had no intention of building a new station. He immediately called Lunsford, who said that Exxon was “just getting some cost figures together” and was not actually planning to build. Nonetheless, before the end of 1983, Exxon began construction of a station to compete with Short Stop. Mr. Childers called Lunsford at the first sign of construction. Lunsford said, “Jim, I am sorry, I didn’t have the clout I thought I had, I couldn’t prevent this from happening.” By June 1984, Exxon’s retail service station was open for business. Short Stop’s business immediately and sharply declined. On June 10, 1984, Mr. Childers appeared in front of the Small Business Subcommittee of the Joint Committee of Government and Finance of the West Virginia Legislature to complain of Exxon’s conduct. To contravene Mr. Childers’ complaint, Exxon sent a written response, with a cover letter signed by Lunsford, to members of the subcommittee on September 14,1984. In it, Exxon asserted that it had always planned to build the station, and no one at Exxon had told Childers otherwise. Exxon’s response was not sent to Mr. Childers, and he did not inquire about the subcommittee’s handling of his complaint. In September 1988, at Mr. Childers' deposition, he first learned of the existence of this document. If they desired relief through litigation, 1984 was the most apt moment for the Childers to have filed suit against Exxon. Instead, they took fateful steps toward financial and litigation ruin. In early 1984, with construction of the company station going on before their eyes, they signed a second distributorship agreement, substantively identical to and expressly superseding the first. This new agreement extended the Exxon franchise for three years. The Childers spent $700,000, most of it borrowed, turning Short Stop into an extravagant traveler’s mecca. The new and improved Short Stop included an ice cream store, convenience store, delicatessen, separate restroom building, and a large increase in gasoline capacity. The revenue of Short Stop could not keep up with the increased debt burden. In January 1986, Childers Oil’s account with Exxon became delinquent (over thirty days late) in an amount exceeding $100,000. The parties agreed on a payment plan under which Childers Oil would pay the two oldest outstanding invoices each time it picked up a load of gasoline from Exxon. This repayment scheme did not work, however, because Childers Oil began purchasing gasoline from Pennzoil instead of Exxon, and thus avoided the triggering of two-for-one payments. Exxon soon exercised its contractual right to demand payment by cashier’s check. Things got even worse when Exxon learned that Childers Oil had sold Pennzoil gas under Exxon’s trademark. On April 23, 1986, Exxon exercised its right under the Petroleum Marketing Practices Act to terminate the franchise, effective July 24, 1986, because of the misbranding. The appellants admit the misbranding and the lawfulness of the franchise termination. During the three-month window between notice and the effective date of the termination, Mr. and Mrs. Childers tried to sell Childers Oil to H.C. Lewis, an Exxon distributor in Welch, West Virginia. The Childers and Lewis agreed that Lewis would purchase Childers Oil and sell gas to Short Stop, which the Childers would continue to own. The agreement, however, was contingent on Exxon’s increasing Lewis’ allotment so that he would have enough gas to supply Short Stop. Because it had no more wish to entrust its trademark to the Childers indirectly as directly, Exxon refused to increase Lewis’ allotment, and the proposed deal collapsed. In October 1986, two months after termination of the franchise, the Childers still owed Exxon $224,168.27. They signed a promissory note providing for monthly payments and interest. They have made only small payments, and do not dispute the amount that they owe on the note. On August 10, 1987, the Childers filed this suit against Exxon in district court. Jurisdiction rests on diversity of citizenship. They amended the complaint twice, the last time on March 24, 1989. The final complaint pled three claims: (1) breach of contract, (2) tortious interference with plaintiffs’ prospective business relationship with Lewis, and (3) fraud. The fraud claim did not appear in earlier versions of the complaint. Exxon counterclaimed for breach of the distributorship agreement, for trademark infringement, and to recover on the promissory note. At the conclusion of discovery, on September 15, 1989, Exxon moved for summary judgment on all claims and counterclaims. On June 27, 1991, the district court granted summary judgment for Exxon. Plaintiffs appeal. II. The substantive law of West Virginia applies to this diversity action. A concept central to the contract issues we must address — the parol evidence rule — is not, as its name may suggest, a procedural rule of evidence, but is rather a substantive component of West Virginia’s law of contracts. United States v. Bethlehem Steel Co., 215 F.Supp. 62, 68 n. 12 (D.Md.1962), aff'd, 323 F.2d 655 (4th Cir.1963); Jack H. Brown & Co., Inc. v. Toys “R” Us, Inc., 906 F.2d 169, 173 (5th Cir.1990); see Mohr v. Metro East Manufacturing Co., 711 F.2d 69, 72 (7th Cir.1983). The district court held that the parol evidence rule barred use of Exxon’s oral promises to vary the terms of the written distributorship agreement. See generally, Kanawha Banking and Trust Co. v. Gilbert, 131 W.Va. 88, 46 S.E.2d 225, 232-233 (1947); Cardinal State Bank v. Crook, 184 W.Va. 152, 399 S.E.2d 863, 866-867 (1990). Appellants proffer various exceptions to the rule, but none of them quite fit. A. Fraudulent inducement is an exception to the parol evidence rule, because such evidence does not “alter or vary” the terms of the contract; instead, a party may avoid the contract altogether (through rescission) by showing that it was fraudulently procured. Central Trust Co. v. Virginia Trust Co., 120 W.Va. 23, 197 S.E. 12, 16 (1938); Foremost Guaranty Cory. v. Meritor Savings Bank, 910 F.2d 118, 123 (4th Cir.1990) (applying Virginia law). The Childers do not seek rescission of the distributorship agreement; they seek damages for breach of the alleged parol promise. B. Appellants’ argument that the no-competition promise was a collateral contract is unavailing as well. They do not identify the separate consideration for the collateral promise. The subject matter of the supposed collateral contract is very closely related to the distributorship agreement, and indeed, a covenant not to compete would naturally be a part of an integrated distributorship agreement. This close connection precludes a finding of a collateral contract. Jones v. Kessler, 98 W.Va. 1, 126 S.E. 344, 349 (1925). Finally, the agreement’s integration clause emphasizes that no “ORAL UNDERSTANDINGS ... AFFECT[ ] IT.” The district court rightly rejected the collateral contract argument. C. In direct contradiction to the collateral contract theory, appellants posit that the oral promise was additional consideration for the distributorship agreement. Where consideration is a mere recital (e.g. “one dollar and other good and valuable consideration”), parol evidence may establish what the actual consideration was. However, West Virginia law draws a line at enforcement of parol promises as “additional consideration.” Kanawha Banking & Trust, 46 S.E.2d at 233-234. In a sense, every promise made in a contract is in “consideration” of the other party’s promises, and the “additional consideration” exception would swallow the rule if it were applied as appellants suggest. D. Finally, with full knowledge that Exxon had broken its promise not to compete, Childers entered into a new distribution agreement. This second agreement specifically states: 28. PRIOR AGREEMENT: This Agreement cancels and supersedes any prior agreements between the parties thereto, covering the purchase and sale of product(s) covered by this Agreement. The parol term the Childers seek to enforce was, if anything, a part of the original distributorship agreement. Signing a new agreement that “cancels and supersedes” the former, with knowledge of a breach of the old agreement, is a clear waiver of that breach. In sum, the Childers have no tenable breach of contract claim, and the summary judgment on that claim was proper. III. The district court held that Exxon had an absolute right to refuse to increase Lewis’ allotment, and its refusal can never be “tortious interference” with the proposed Lewis-Childers transaction. Restatement (Second) of Torts § 766, comment b; Torbett v. Wheeling Dollar Savings & Trust Co., 173 W.Va. 210, 314 S.E.2d 166, 171-173 (1983) (relying on Restatement definition). We agree with the district court, for the reason it gave and more. Tortious interference claims lie only against a party that is a stranger to the relationship. Torbett, 314 S.E.2d at 173. Exxon would have been the supplier of the fuel that was the subject of the proposed transaction, it would have had to license the use of its marks, and it would have derived profits from the sale of the product. Finally, even if Exxon were a stranger to the deal, and had some legal duty to supply the fuel, we think it was entitled as a matter of law to refuse to entrust its product to a person who had admitted prior misuse of its trademark. See Humboldt Oil Co. v. Exxon Co., USA, 823 F.2d 373, 375 (9th Cir.1987), cert. denied, 485 U.S. 1021, 108 S.Ct. 1575, 99 L.Ed.2d 890 (1988). IV. The West Virginia statute of limitations for claims of fraud is two years. W.Va. Code § 55-2-12. The parties agree that if the statute of limitations began to run when the Childers learned that Exxon was going to build a company-owned station, the action is barred. A. Appellants, however, argue that they did not find out that Exxon knew its promise was false when made until September 1988, when, at his deposition, Mr. Child-ers was shown Exxon’s 1984 letter to the state legislative subcommittee. Breaking a promise, without more, is only a breach of contract. Making a promise that is not intended to be kept may be a fraud, if the other elements of that tort are present. Janssen v. Carolina Lumber Co., 137 W.Va. 561, 73 S.E.2d 12, 17 (1952); Dyke v. Alleman, 130 W.Va. 519, 44 S.E.2d 587 (1947). Consequently, the Childers argue that they did not “discover” their fraud cause of action until Mr. Childers’ deposition, and the statute of limitations did not begin to run until then. Appellants assert that the possibility of sanctions under Fed.R.Civ.Pr. 11 is a strong deterrent to pleading fraud claims on bare suspicion that a broken promise was never intended to be kept. Appellees counter that Rule 9(b) permits intent to be pled generally, and, if fraud claims do not accrue until a smoking gun is in the plaintiff's hands, few claims will accrue until after a suit is filed and information in the defendant’s possession is discovered. This debate, whether knowledge of so-called “legal” causation is required to begin the running of a statute of limitations, is not new to jurisprudence. Two recent West Virginia cases provide guidance. In Hickman v. Grover, 178 W.Va. 249, 358 S.E.2d 810 (1987), the plaintiff had been injured by a bursting air tank. He sued a defendant, who then filed a third-party claim against the manufacturer of the tank. More than two years after the accident, the plaintiff attempted to assert a claim directly against the manufacturer. He asserted that the statute of limitations did not begin to run until he discovered that the tank was defective. The West Virginia court rejected his argument, 358 S.E.2d at 813-814: In products liability cases, the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence should know, (1) that he has been injured, (2) the identity of the maker of the product, and (3) that the product had a causal relation to his injury. * * * * * * Hickman asks us to take this one step further. He suggests that we add another requirement, i.e., that the product was defective as a result of the conduct of its manufacturer. Indeed, this is a big requirement, because such knowledge is often not known with legal certainty until after the jury returns its verdict. At the very least, this knowledge would be very difficult to obtain, except during the discovery phase of trial. Thus, we would have a situation where the statute of limitations would almost never accrue until after the suit was filed. This would almost abrogate the statute of limitations in products liability claims. We cannot accept such a holding. Hickman was followed by Stemple v. Dobson, 184 W.Va. 317, 400 S.E.2d 561 (1990), which imported its concepts into a fraud case. The court held, 400 S.E.2d at 565: [W]e conclude that where a cause of action is based on tort or on a claim of fraud, the statute of limitations does not begin to run until the injured person knows, or by the exercise of reasonable diligence should know, of the nature of his injury, and determining that point in time is a question of fact to be answered by the jury. The court identifies the “injury” as the thing to be discovered, not that the defendant’s state of mind or breach of duty may legally entitle the plaintiff to recover damages. The majority rule is the same. United States v. Kubrick, 444 U.S. 111, 118-125, 100 S.Ct. 352, 357-360, 62 L.Ed.2d 259 (1979); Phillips v. Amoco Oil Co., 799 F.2d 1464, 1469 (11th Cir.1986); Berkley v. American Cyanamid Co., 799 F.2d 995, 999 (5th Cir.1986). The “discovery rule” tolls a statute of limitations until the plaintiff has, or ought to have, answers to two questions: Am I injured? Who injured me? Kubrick, 444 U.S. at 122, 100 S.Ct. at 359. At that point, the plaintiff has enough information to begin investigating his claims. Phillips, 799 F.2d at 1469 (fraud cause of action accrues “when the plaintiff should have discovered facts that would provoke a person of ordinary prudence to inquiry”); Berkley, 799 F.2d at 999 (fraud cause of action accrues when plaintiff knows of “falsity of defendant’s statements and their relationship to the claimed injury”). He may not know enough to win a verdict or even file a complaint on that first day, but that is why the law gives him a reasonable limitations period to investigate. The appellants had sufficient knowledge to be put on a duty to inquire when Exxon built its company station. Lest the discovery rule abrogate West Virginia’s fraud statute of limitations, we hold that the fraud claim is barred. B. Appellants seize the Stemple court’s comment that the point in time that a plaintiff discovers enough to start the clock running is a question of fact to be resolved by a jury. Appellants argue that the district court should have let a jury decide when the statute began to run. We do not read Stemple to require submission of a statute of limitations defense on undisputed facts to a jury. Stemple was a pair of homeowners’ appeal of a summary judgment entered against them in their suit against the prior owners for, among other things, fraudulently concealing severe termite damage to the structure. As we described above, the court identified the termite damage, and not the defendants’ state of mind, as the thing to be discovered. 400 S.E.2d at 565. The court then surveyed the evidence in the case, which consisted of a series of events, each one of which would tend to cause more alarm in the plaintiffs. Inasmuch as application of the statute of limitations required identifying one of these discoveries as the proverbial straw that broke the camel’s back, the court concluded, in reversing the summary judgment (400 S.E.2d at 566, emphasis added): Clearly, reasonable persons could draw different conclusions from these facts.... Because there is a material question of fact with regard to when the plaintiffs’ right of action accrued so as to commence the running of the statute of limitations, the matter was clearly a question for the jury. In other words, if resolution of a statute of limitations defense presents a genuine question of material fact, a jury should resolve it. If not, a statute of limitations may be applied as a matter of law. Here, if Childers’ knowledge of Exxon’s state of mind were a prerequisite to the running of the statute, a jury might very well have to resolve whether Childers should have, with reasonable diligence, discovered the 1984 report to the legislative subcommittee sooner. However, because knowledge of the injury and the injurer is enough, and appellants admittedly had both more than two years before suit, there is no material issue of fact for a jury to resolve. Exxon is entitled to the benefit of its statute of limitations defense as a matter of law. The judgment of the district court is affirmed. AFFIRMED. . This opinion will refer to the appellants collectively as "Childers,” except where the context indicates otherwise. . Exxon denies that this oral promise was made, but concedes that disputed issues of fact must be resolved in appellants’ favor for purposes of Exxon's motion for summary judgment. Our recital of facts applies this rule, and we make no attempt to identify every fact that Exxon might controvert if the case were tried. . 15 U.S.C. §§ 2801-2841. . Exxon also argues that if the promise not to compete were a freestanding contract independent of the distributorship agreement, it would be unenforceable under the Statute of Frauds, because any contract for a term of more than one year must be in writing. W.Va.Code, § 55-1 — 1(f) (1981 & Supp.1991). Exxon did not as-serf this defense below, however, and it was not considered by the district court. Because adequate alternate grounds for affirmance are present, we need not decide whether Exxon may interpose a statute of frauds defense for the first time on appeal. . Mr. Childers admitted at his deposition that he knew Exxon had broken its promise, and that he felt he had been lied to, when construction of the station began. . Kubrick was cited by the West Virginia court in a medical malpractice case, Harrison v. Seltzer, 165 W.Va. 366, 268 S.E.2d 312, 315 n. 2 (1980), where the court stated in dicta the rule it was later to explicitly adopt in Hickman: [W]here the adverse results of medical treatment are so extraordinary that the patient is immediately aware that something went wrong, ... the statute of limitations will begin to run once the extraordinary result is known to the plaintiff even though he may not be aware of the precise act of malpractice. Harrison, 268 S.E.2d at 315. West Virginia’s medical malpractice/discovery rule jurisprudence is disproportionately replete with cases involving foreign objects left within a patient’s body during surgery. Hill v. Clarke, 161 W.Va. 258, 241 S.E.2d 572 (1978); Morgan v. Grace Hospital, 149 W.Va. 783, 144 S.E.2d 156 (1965); Gray v. Wright, 142 W.Va. 490, 96 S.E.2d 671 (1957), overruled in part, Morgan, 144 S.E.2d at 161 (fraudulent concealment of object's presence by physician not required for discovery rule tolling); Baker v. Hendrix, 126 W.Va. 37, 27 S.E.2d 275 (1943). Inasmuch as discovery of such an object not only identifies the source of the injury, but also virtually establishes malpractice res ipsa loquitur, the Kubrick issue did not arise in those cases. . Without citation to authority, appellants assert that Exxon’s counterclaim on the promissory note should have been held in abeyance pending resolution of appellants’ claims "by a jury.” Of course, the district court had disposed of appellants’ claims on summary judgment when it ruled in Exxon’s favor on the note, and the premise of their argument is rendered nugatory by our affirmance. Moreover, the Childers proffer no defense to collection of the note. 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_counsel2

E

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party UNITED STATES of America, Plaintiff-Appellee, v. Frank A. WYSS, Defendant-Appellant. No. 11674. United States Court of Appeals Seventh Circuit. Jan. 11, 1957. C. A. Lincoln, Fort Wayne, Ind., John J. Naughton, William C. Wines, Chicago, 111., for appellant. Jack C. Brown, U. S. Atty., Don A. Tabbert, Asst. U. S. Atty., Charles K. Rice, Asst. Atty. Gen., Stephen Leonard, Asst. U. S. Atty., Indianapolis, Ind., for appellee. Before FINNEGAN, SWAIM and SCHNACKENBERG, Circuit Judges. FINNEGAN, Circuit Judge. Following in the wake of Commissioner of Internal Revenue v. Wilcox, 1946, 327 U.S. 404, 66 S.Ct. 546, 90 L.Ed. 752, an occasional taxpayer has firmly insisted upon being recognized and classed as a self-made embezzler hoping to avoid the economic impact, and penal provisions, of the Internal Revenue Code by insulating against the majority views reported in Rutkin v. United States, 1952, 343 U.S. 130, 72 S.Ct. 571, 96 L.Ed. 833. This case is faithful to that pattern. Consequently we are again treating with the elusive and restless concept of income, for tax purposes, which has plagued courts since Eisner v. Macomber, 1920, 252 U.S. 189, 40 S.Ct. 189, 64 L.Ed. 521. Convicted, after a comparatively lengthy bench trial, of violating 26 U.S. C. § 145(b) through omissions of sums of money from his joint tax return for the calendar years 1948 and 1949, Wyss contends here that the amounts admittedly received and eicluded by him were derived from two sources: (1) funds he “embezzled” and (2) “gifts” received by him from a long-standing friend for leads defendant supplied to prospective purchasers of soda fountain equipment. That these moneys were simply not in come, illegal or otherwise, is the pith of Wyss’ attack on the judgment appealed. By his briefing counsel for Wyss emphasizes that all certain evidence received below: “ * * * tended to show is that the defendant received about $20,000 for having procured contracts with the City of Fort Wayne, treated the money as his own by investing it and keeping the returns on the investment, and failed to report or pay a tax upon any part of these receipts. “The defendant conceded in his Original Brief that such was the import of the Government’s evidence, did not challenge its sufficiency to support a finding was true if there had been a finding which there was not, that the defendant did receive, exploit for his own use, and fail to report or pay a tax upon monies given him for procuring public contracts * * *. Defendant raises no question in this court as to his intent. “He intended to and did exercise personal dominion over these funds for his own benefit.” (Defendant’s reply brief, p. 2. Italics In the original material.) But to dispell the impact of that concession, and the state of the record as we find it from our canvass, the defendant urges on us that the funds were not in fact or in law his regardless of his subjective attitude toward them. He contends that if the funds were “kickbacks” they belong to the City of Fort Wayne or, in the alternative, if they were misappropriated by him they were embezzled. Both record and briefs for the parties exhibited the undisputed fact Wyss received the moneys in question. There is evidence of Wyss’ political activities on behalf of Henry E. Branning who, during 1947, was a candidate for, and ultimately elected to, the office of Mayor for Fort Wayne. Defendant was treasurer of “The Branning for Mayor Club,” and Wyss now points to contributions received, in that capacity, as the source from which he purchased securities for personal investment, reporting incidentally, dividends received therefrom on his tax return. But on the other hand evidence adduced by the Government tends to show these receipts were “kickbacks” for Wyss’ procurement of city coal contracts, lumber and insurance. Detailing all the evidence is unnecessary in this opinion for it is a tragic situation where the government prosecuted on the theory of unreported bribes with the defendant denying he was bribed but claiming he embezzled. From that thesis Wyss contends that if such funds were “kickbacks” then they constituted money which under the Wilcox case were nontaxable because he was supposed to return or repay them — indeed, he argues the Indiana law-enforcing officials have a positive duty to recover political “kickbacks.” Rule 23(c), Federal Rules of Criminal Procedure, 18 U.S.C. was not invoked by defendant. United States v. Owen, 7 Cir., 1956, 231 F.2d 831, 833. By his failure to take advantage of that Rule, defendant left uncrystallized questions of fact to which the law would be applied. The inherent weakness in the major points raised on appeal and la-belled questions of law pivot on several inarticulated major premises. The trial judge was not foreclosed from disbelieving, on the evidence before him, that Wyss was an embezzler. Because the district judge made no express finding as to whether the money Wyss admitted receiving, were “kickbacks” or embezzled funds we are told by the defendant if they were the former then the money belonged to the City of Fort Wayne, but if they were political contributions — donated to a political trust fund, then Wyss embezzled them and therefore in either event were nontaxable. In Marienfeld v. United States, 8 Cir., 1954, 214 F.2d 632, the court rejected the Missouri statute proscribing embezzlement as a factor in determining taxability. See also: Kann v. Commissionér, 3 Cir., 1954, 210 F.2d 247. We are by no means the bellwether among the Circuits to point up the Supreme Court’s statement in Rutkin v. United States, 1952, 343 U.S. 130, 138, 72 S.Ct. 571, 576: “We do not reach in this case the factual situation involved in Commissioner of Internal Revenue v. Wilcox, 327 U.S. 404, 66 S.Ct. 546. We limit that case to its facts.” The Rutkin majority of a sharply divided court said: “An unlawful gain, as well as a lawful one, constitutes taxable income when its recipient has such control over it that, as a practical matter, he derives readily realizable economic value from it. [Citing.] That occurs when cash, as here, is delivered by its owner to the taxpayer in a manner which allows the recipient freedom to dispose of it at will, even though it may have been obtained by fraud and his freedom to use it may be assailable by someone with a better title to it. “Such gains are taxable in the yearly period during which they are realized.” 343 U.S. 130, 137, 72 S.Ct. 571, 575. Until the funds in question are reclaimed if they were “kickbacks” we think they constituted taxable income despite Wyss’ alleged vulnerability, if any, under Indiana law to return it when and if, or because of a duty of the Indiana Attorney General or County Attorney to institute recovery proceedings. We are not rescinding Wilcox, as defendant’s anticipatory argument suggests but observing that Wyss cannot come within the Wilcox holding unless the district judge found him to be an embezzler. And as both sides unanimously agree this Court does not weigh evidence nor find facts. Defendant has confused weight and credibility with questions of law. Though in this opinion we have devoted comparatively more space to a discussion of points involving “kickbacks” and embezzlement than to the alleged “gifts,” the latter are not overlooked. Haigler v. United States, 10 Cir., 1949, 172 F.2d 986, relied upon by Wyss in this phase of his appeal, is distinguishable by the confusing jury instructions precipitating that reversal. But see: United States v. Wain, 2 Cir., 1947, 162 F.2d 60. There being substantial evidence to support the judgment appealed, and an absence of reversible error, it is affirmed. Judgment affirmed. . “The taxpayer was convicted in a Nevada state court in 1942 of the crime of embezzlement. He was sentenced to serve from 2 to 14 years in prison and was paroled in December, 1943.” 327 U.S. 404, 406, 66 S.Ct. 546, 548. . A statemont by the district judge after the close of the evidence constitutes the springboard for defendant’s argument and conclusions. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:

sc_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. ANIMAL SCIENCE PRODUCTS, INC., et al., Petitioners v. HEBEI WELCOME PHARMACEUTICAL CO. LTD., et al. No. 16-1220. Supreme Court of the United States Argued April 24, 2018. Decided June 14, 2018. Michael J. Gottlieb, Washington, DC, for Petitioners. Brian H. Fletcher, for the United States, as amicus curiae, by special leave of the Court, supporting the petitioners. Carter G. Phillips, for the Ministry of Commerce of the People's Republic of China, as amicus curiae, by special leave of the Court, supporting the respondents. Jonathan M. Jacobson, New York, NY, for Respondents. James T. Southwick, Shawn L. Raymond, Susman Godfrey LLP, Houston, TX, Michael D. Hausfeld, Brian A. Ratner, Melinda R. Coolidge, Hausfeld LLP, Michael J. Gottlieb, Karen L. Dunn, William A. Isaacson, Aaron E. Nathan, Boies Schiller Flexner LLP, Washington, DC, David Boies, Boies Schiller Flexner LLP, Armonk, NY, Brent W. Landau, Hausfeld LLP, Philadelphia, PA, for Petitioners. Jonathan M. Jacobson, Daniel P. Weick, Justin A. Cohen, Wilson Sonsini Goodrich & Rosati, P.C., New York, NY, Susan A. Creighton, Scott A. Sher, Bradley T. Tennis, Elyse Dorsey, Wilson Sonsini Goodrich & Rosati, P.C., Washington, D.C., for Respondents. Justice GINSBURG delivered the opinion of the Court. When foreign law is relevant to a case instituted in a federal court, and the foreign government whose law is in contention submits an official statement on the meaning and interpretation of its domestic law, may the federal court look beyond that official statement? The Court of Appeals for the Second Circuit answered generally "no," ruling that federal courts are "bound to defer" to a foreign government's construction of its own law, whenever that construction is "reasonable." In re Vitamin C Antitrust Litigation, 837 F.3d 175, 189 (2016). We hold otherwise. A federal court should accord respectful consideration to a foreign government's submission, but is not bound to accord conclusive effect to the foreign government's statements. Instead, Federal Rule of Civil Procedure 44.1 instructs that, in determining foreign law, "the court may consider any relevant material or source ... whether or not submitted by a party." As "[t]he court's determination must be treated as a ruling on a question of law," Fed. Rule Civ. Proc. 44.1, the court "may engage in its own research and consider any relevant material thus found," Advisory Committee's 1966 Note on Fed. Rule Civ. Proc. 44.1, 28 U.S.C. App., p. 892 (hereinafter Advisory Committee's Note). Because the Second Circuit ordered dismissal of this case on the ground that the foreign government's statements could not be gainsaid, we vacate that court's judgment and remand the case for further consideration. I Petitioners, U.S.-based purchasers of vitamin C (hereinafter U.S. purchasers), filed a class-action suit against four Chinese corporations that manufacture and export the nutrient (hereinafter Chinese sellers). The U.S. purchasers alleged that the Chinese sellers, two of whom are respondents here, had agreed to fix the price and quantity of vitamin C exported to the United States from China, in violation of § 1 of the Sherman Act, 15 U.S.C. § 1. More particularly, the U.S. purchasers stated that the Chinese sellers had formed a cartel "facilitated by the efforts of their trade association," the Chamber of Commerce of Medicines and Health Products Importers and Exporters (Chamber). Complaint in No. 1:05-CV-453, Docket No. 1, ¶ 43. The Judicial Panel on Multidistrict Litigation consolidated the instant case and related suits for pretrial proceedings in the United States District Court for the Eastern District of New York. The Chinese sellers moved to dismiss the U.S. purchasers' complaint on the ground that Chinese law required them to fix the price and quantity of vitamin C exports. Therefore, the Chinese sellers urged, they are shielded from liability under U.S. antitrust law by the act of state doctrine, the foreign sovereign compulsion doctrine, and principles of international comity. The Ministry of Commerce of the People's Republic of China (Ministry) filed a brief as amicus curiae in support of the Chinese sellers' motion. The Ministry's brief stated that the Ministry is "the highest administrative authority in China authorized to regulate foreign trade," App. to Pet. for Cert. 190a; that the Chamber is "an entity under the Ministry's direct and active supervision" and is authorized to regulate vitamin C exports, id., at 196a; and that the conspiracy in restraint of trade alleged by the U.S. purchasers was in fact "a regulatory pricing regime mandated by the government of China," id., at 197a. In response, the U.S. purchasers disputed that Chinese law required the Chinese sellers to engage in price fixing. Among other things, the U.S. purchasers noted that the Ministry had not identified any written law or regulation expressly ordering the Chinese sellers' price agreement. They also highlighted a Chamber announcement that the manufacturers "were able to reach a self-regulated agreement ... whereby they would voluntarily control the quantity and pace of exports ... without any government intervention." App. 109. In addition, the U.S. purchasers presented expert testimony that the Chinese Government's authorization of a Vitamin C Subcommittee within the Chamber did not necessarily mean that the subcommittee's price fixing was mandated by law. The District Court denied the Chinese sellers' motion to dismiss the complaint in relevant part. In re Vitamin C Antitrust Litigation, 584 F.Supp.2d 546, 559 (E.D.N.Y.2008). That court acknowledged that the Ministry's amicus brief was "entitled to substantial deference." Id., at 557. The court, however, did not regard the Ministry's statements as "conclusive," emphasizing particularly that the U.S. purchasers had submitted evidence suggesting that the price fixing was voluntary. Ibid. The record, the District Court determined, was "too ambiguous to foreclose further inquiry into the voluntariness of [the Chinese sellers'] actions." Id., at 559. After further discovery, focused on whether Chinese law compelled the Chinese sellers to enter into a price-fixing agreement, the Chinese sellers moved for summary judgment. See In re Vitamin C Antitrust Litigation, 810 F.Supp.2d 522, 525-526 (E.D.N.Y.2011). The Ministry submitted an additional statement, reiterating that "the Ministry specifically charged the Chamber ... with the authority and responsibility ... for regulating, through consultation, the price of vitamin C manufactured for export." App. 133. The Chinese sellers tendered expert testimony in accord with the Ministry's account, which stressed that the Ministry's "interpretation of its own regulations and policies carries decisive weight under Chinese law." Id., at 142. The U.S. purchasers, in response, cited further materials supporting their opposing view, including China's statement to the World Trade Organization (WTO) that it "gave up export administration of ... vitamin C" in 2002. 810 F.Supp.2d, at 532 (internal quotation marks omitted). Denying the Chinese sellers' motion for summary judgment, the District Court held that Chinese law did not require the sellers to fix the price or quantity of vitamin C exports. Id., at 525. The case was then tried to a jury, which returned a verdict for the U.S. purchasers. The jury found that the Chinese sellers had agreed to fix the prices and quantities of vitamin C exports, see App. to Pet. for Cert. 276a-279a, and further found that the Chinese sellers were not "actually compelled" by China to enter into those agreements, id., at 278a. In accord with the jury's verdict, the District Court entered judgment for the U.S. purchasers, awarding some $147 million in treble damages and enjoining the Chinese sellers from further violations of the Sherman Act. The Court of Appeals for the Second Circuit reversed, holding that the District Court erred in denying the Chinese sellers' motion to dismiss the complaint. In re Vitamin C Antitrust Litigation, 837 F.3d 175, 178, 195 (2016). The Court of Appeals determined that the propriety of dismissal hinged on whether the Chinese sellers could adhere to both Chinese law and U.S. antitrust law. See id., at 186. That question, in turn, depended on "the amount of deference" owed to the Ministry's characterization of Chinese law. Ibid . Cognizant of "competing authority" on this question, ibid., the Court of Appeals settled on a highly deferential rule: "[W]hen a foreign government, acting through counsel or otherwise, directly participates in U.S. court proceedings by providing a [statement] regarding the construction and effect of [the foreign government's] laws and regulations, which is reasonable under the circumstances presented, a U.S. court is bound to defer to those statements," id., at 189. The appeals court "note[d] that[,] if the Chinese Government had not appeared in this litigation, the [D]istrict [C]ourt's careful and thorough treatment of the evidence before it in analyzing what Chinese law required at both the motion to dismiss and summary judgment stages would have been entirely appropriate." Id., at 191, n. 10. Applying its highly deferential rule, the Court of Appeals concluded that the Ministry's account of Chinese law was "reasonable." In so concluding, the Court of Appeals inspected only the Ministry's brief and sources cited therein. Id., at 189-190. Because it thought that "a U.S. court [must] not embark on a challenge to a foreign government's official representation," id., at 189, the Court of Appeals disregarded the submissions made by the U.S. purchasers casting doubt on the Ministry's account of Chinese law, id., at 189-190. Based solely on the Ministry's statements, the Court of Appeals held that "Chinese law required [the Chinese sellers] to engage in activities in China that constituted antitrust violations here in the United States." Ibid. We granted certiorari to resolve a Circuit conflict over this question: Is a federal court determining foreign law under Rule 44.1 required to treat as conclusive a submission from the foreign government describing its own law? 583 U.S. ----, 138 S.Ct. 734, 199 L.Ed.2d 601 (2018). II At common law, the content of foreign law relevant to a dispute was treated "as a question of fact." Miller, Federal Rule 44.1 and the "Fact" Approach to Determining Foreign Law: Death Knell for a Die-Hard Doctrine, 65 Mich. L. Rev. 613, 617-619 (1967) (Miller). In 1801, this Court endorsed the common-law rule, instructing that "the laws of a foreign nation" must be "proved as facts." Talbot v. Seeman, 1 Cranch 1, 38, 2 L.Ed. 15 (1801) ; see, e.g., Church v. Hubbart, 2 Cranch 187, 236, 2 L.Ed. 249 (1804) ("Foreign laws are well understood to be facts."). Ranking questions of foreign law as questions of fact, however, "had a number of undesirable practical consequences." 9A C. Wright & A. Miller, Federal Practice and Procedure § 2441, p. 324 (3d ed. 2008) (Wright & Miller). Foreign law "had to be raised in the pleadings" and proved "in accordance with the rules of evidence." Ibid. Appellate review was deferential and limited to the record made in the trial court. Ibid. ; see also Miller 623. Federal Rule of Civil Procedure 44.1, adopted in 1966, fundamentally changed the mode of determining foreign law in federal courts. The Rule specifies that a court's determination of foreign law "must be treated as a ruling on a question of law," rather than as a finding of fact. Correspondingly, in ascertaining foreign law, courts are not limited to materials submitted by the parties; instead, they "may consider any relevant material or source ..., whether or not ... admissible under the Federal Rules of Evidence." Ibid. Appellate review, as is true of domestic law determinations, is de novo . Advisory Committee's Note, at 892. Rule 44.1 frees courts "to reexamine and amplify material ... presented by counsel in partisan fashion or in insufficient detail." Ibid. The "obvious" purpose of the changes Rule 44.1 ordered was "to make the process of determining alien law identical with the method of ascertaining domestic law to the extent that it is possible to do so." Wright & Miller § 2444, at 338-342. Federal courts deciding questions of foreign law under Rule 44.1 are sometimes provided with the views of the relevant foreign government, as they were in this case through the amicus brief of the Ministry. See supra, at 1866 - 1871. As the Court of Appeals correctly observed, Rule 44.1 does not address the weight a federal court determining foreign law should give to the views presented by the foreign government. See 837 F.3d, at 187. Nor does any other rule or statute. In the spirit of "international comity," Societe Nationale Industrielle Aerospatiale v. United States Dist. Court for Southern Dist. of Iowa, 482 U.S. 522, 543, and n. 27, 107 S.Ct. 2542, 96 L.Ed.2d 461 (1987), a federal court should carefully consider a foreign state's views about the meaning of its own laws. See United States v. McNab, 331 F.3d 1228, 1241 (C.A.11 2003) ; cf. Bodum USA, Inc. v. La Cafetiere, Inc., 621 F.3d 624, 638-639 (C.A.7 2010) (Wood, J., concurring). But the appropriate weight in each case will depend upon the circumstances; a federal court is neither bound to adopt the foreign government's characterization nor required to ignore other relevant materials. When a foreign government makes conflicting statements, see supra, at 1871 - 1872, or, as here, offers an account in the context of litigation, there may be cause for caution in evaluating the foreign government's submission. Given the world's many and diverse legal systems, and the range of circumstances in which a foreign government's views may be presented, no single formula or rule will fit all cases in which a foreign government describes its own law. Relevant considerations include the statement's clarity, thoroughness, and support; its context and purpose; the transparency of the foreign legal system; the role and authority of the entity or official offering the statement; and the statement's consistency with the foreign government's past positions. Judged in this light, the Court of Appeals erred in deeming the Ministry's submission binding, so long as facially reasonable. That unyielding rule is inconsistent with Rule 44.1 (determination of an issue of foreign law "must be treated as a ruling on a question of law"; court may consider "any relevant material or source") and, tellingly, with this Court's treatment of analogous submissions from States of the United States. If the relevant state law is established by a decision of "the State's highest court," that decision is "binding on the federal courts." Wainwright v. Goode, 464 U.S. 78, 84, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983) (per curiam ); see Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). But views of the State's attorney general, while attracting "respectful consideration," do not garner controlling weight. Arizonans for Official English v. Arizona, 520 U.S. 43, 76-77, n. 30, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) ; see, e.g., Virginia v. American Booksellers Assn., Inc., 484 U.S. 383, 393-396, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988). Furthermore, because the Court of Appeals riveted its attention on the Ministry's submission, it did not address other evidence, including, for example, China's statement to the WTO that China had "g[i]ve[n] up export administration ... of vitamin C" at the end of 2001. 810 F.Supp.2d, at 532 (internal quotation marks omitted). The Court of Appeals also misperceived this Court's decision in United States v. Pink, 315 U.S. 203, 62 S.Ct. 552, 86 L.Ed. 796 (1942). See 837 F.3d, at 186-187, 189. Pink, properly comprehended, is not compelling authority for the attribution of controlling weight to the Ministry's brief. We note, first, that Pink was a pre- Rule 44.1 decision. Second, Pink arose in unusual circumstances. Pink was an action brought by the United States to recover assets of the U.S. branch of a Russian insurance company that had been nationalized in 1918, after the Russian revolution. 315 U.S., at 210-211, 62 S.Ct. 552. In 1933, the Soviet Government assigned the nationalized assets located in this country to the United States. Id., at 211-212, 62 S.Ct. 552. The disposition of the case turned on the extraterritorial effect of the nationalization decree-specifically, whether the decree reached assets of the Russian insurance company located in the United States, or was instead limited to property in Russia. Id., at 213-215, 217, 62 S.Ct. 552. To support the position that the decree reached all of the company's assets, the United States obtained an "official declaration of the Commissariat for Justice" of the Russian Socialist Federal Soviet Republic. Id., at 218, 62 S.Ct. 552. The declaration certified that the nationalization decree reached "the funds and property of former insurance companies ... irrespective of whether [they were] situated within the territorial limits of [Russia] or abroad." Id., at 220, 62 S.Ct. 552 (internal quotation marks omitted). This Court determined that "the evidence supported [a] finding" that "the Commissariat for Justice ha[d] power to interpret existing Russian law." Ibid . "That being true," the Court concluded, the "official declaration [wa]s conclusive so far as the intended extraterritorial effect of the Russian decree [wa]s concerned." Ibid. This Court's treatment of the Commissariat's submission as conclusive rested on a document obtained by the United States, through official "diplomatic channels." Id., at 218, 62 S.Ct. 552. There was no indication that the declaration was inconsistent with the Soviet Union's past statements. Indeed, the Court emphasized that the declaration was consistent with expert evidence in point. See ibid. That the Commissariat's declaration was deemed "conclusive" in the circumstances Pink presented scarcely suggests that all submissions by a foreign government are entitled to the same weight. The Court of Appeals also reasoned that a foreign government's characterization of its own laws should be afforded "the same respect and treatment that we would expect our government to receive in comparable matters." 837 F.3d, at 189. The concern for reciprocity is sound, but it does not warrant the Court of Appeals' judgment. Indeed, the United States, historically, has not argued that foreign courts are bound to accept its characterizations or precluded from considering other relevant sources. The understanding that a government's expressed view of its own law is ordinarily entitled to substantial but not conclusive weight is also consistent with two international treaties that establish formal mechanisms by which one government may obtain from another an official statement characterizing its laws. Those treaties specify that "[t]he information given in the reply shall not bind the judicial authority from which the request emanated." European Convention on Information on Foreign Law, Art. 8, June 7, 1968, 720 U.N.T.S. 154; see Inter-American Convention on Proof of and Information on Foreign Law, Art. 6, May 8, 1979, O.A.S.T.S. 1439 U.N.T.S. 111 (similar). Although the United States is not a party to those treaties, they reflect an international practice inconsistent with the Court of Appeals' "binding, if reasonable" resolution. * * * Because the Court of Appeals concluded that the District Court was bound to defer to the Ministry's brief, the court did not consider the shortcomings the District Court identified in the Ministry's position or other aspects of "the [D]istrict [C]ourt's careful and thorough treatment of the evidence before it." 837 F.3d, at 191, n. 10. The correct interpretation of Chinese law is not before this Court, and we take no position on it. But the materials identified by the District Court were at least relevant to the weight the Ministry's submissions should receive and to the question whether Chinese law required the Chinese sellers' conduct. We therefore vacate the judgment of the Court of Appeals and remand the case for renewed consideration consistent with this opinion. It is so ordered. The Ministry told the District Court: For much of the 20th century, China allowed only state-owned entities to export products. App. to Pet. for Cert. 198a. When China started to allow private enterprises to obtain export licenses, the Ministry established the Chamber to regulate exports under the Ministry's authority and direction. Ibid. In 1997, the Ministry authorized the establishment of the Chamber's Vitamin C Subcommittee. Id., at 202a. That year, the Ministry promulgated a regulation authorizing and requiring the subcommittee to limit the production of vitamin C for export and to set export prices. Id., at 202a-204a. Under the regulation delineating this "Export Licensing System," the Ministry issued export licenses only to manufacturers whose export volume and price complied with the output quota and price coordinated by the Vitamin C Subcommittee. Id., at 204a. In 2002, the Ministry replaced the Export Licensing System with a "Verification and Chop System." Id., at 208a. As set forth in a 2002 Ministry Notice, the Chamber itself-instead of the Ministry-would inspect each export contract and certify its compliance with the coordinated quotas and price by affixing a special seal, known as a "chop." Id., at 208a-209a. China's Customs would allow export only if the exporter presented its contract bearing the Chamber's "chop." Id., at 209a. According to the Ministry, it was implicit in this arrangement that vitamin C exporters would remain under an obligation to fix prices and volumes. Id., at 208a. The effect of China's regime on the Chinese sellers' liability under the Sherman Act, we note, is not an issue before the Court today. The complaint, the U.S. purchasers emphasized, was directed only at conduct occurring after December 2001. As they understood the Ministry's 2002 Notice, see supra, at 1870, n. 1, vitamin C exporters could have lawfully opted out of price fixing. Beyond that, the Vitamin C Subcommittee had replaced its 1997 Charter with a new 2002 Charter, App. 182-197, which eliminated the 1997 Charter's requirement that subcommittee members "[s]trictly execute" the "coordinated price" set by the Chamber, compare id., at 85, with id., at 185, and granted members an express "[r]igh[t]" to "freely resign from the Subcommittee," id., at 186. Compare In re Vitamin C Antitrust Litigation, 837 F.3d 175 (C.A.2 2016) (case below), with In re Oil Spill by Amoco Cadiz, 954 F.2d 1279, 1311-1313 (C.A.7 1992) (adopting French Government's interpretation of French law, but only after considering all of the circumstances, including the French Government's statements in other contexts); United States v. McNab, 331 F.3d 1228, 1239-1242 (C.A.11 2003) (noting Honduran Government's shift in position on the question of Honduran law and determining that the original position stated the proper interpretation); McKesson HBOC, Inc. v. Islamic Republic of Iran, 271 F.3d 1101, 1108-1109 (C.A.D.C.2001), vacated in part on other grounds, 320 F.3d 280 (C.A.D.C.2003) (declining to adopt the view of Iranian law advanced by Iranian Government because it was not supported by the affidavits submitted by Iran's experts). Federal Rule of Criminal Procedure 26.1 establishes "substantially the same" rule for criminal cases. Advisory Committee's 1966 Note on Fed. Rule Crim. Proc. 26.1, 18 U.S.C. App., p. 709. The Court of Appeals additionally mischaracterized the Ministry's brief as a "sworn evidentiary proffer." 837 F.3d, at 189. In so describing the Ministry's submission, the Court of Appeals overlooked that a court's resolution of an issue of foreign law "must be treated as a ruling on a question of law." Fed. Rule Civ. Proc. 44.1. The Ministry's brief, while a probative source for resolving the legal question at hand, was not an attestation to facts. The Chinese sellers assert, see Supp. Brief for Respondents 7-8, that the United States sought a greater degree of deference in a 2002 submission to a World Trade Organization panel. In fact, the submission acknowledged that "the Panel is not bound to accept the interpretation [of U.S. law] presented by the United States." Brief for United States as Amicus Curiae 29, n. 6 (quoting Second Written Submission of the United States of America, United States-Section 129(c)(1) of the Uruguay Round Agreements Act, WT/DS221 ¶ 11 (Mar. 8, 2002)). 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_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 v. MESSINGER. No. 3526. Circuit Court of Appeals, Fourth Circuit. Jan. 4, 1934. Okey P. Keadle, Asst. U. S. Atty., of Huntington, W. Va. (David D. Ashworth, U. S. Atty., of Beckley, W. Va., and Thomas E. Walsh, Chief Atty., U. S. Veterans’ Administration, of Washington, D. C., on the brief), for the United States. Samuel Biern, of Huntington, W. Va., for appellee. Before PARKER, NORTHCOTT, and SOPER, Circuit Judges. PARKER, Circuit Judge. This is an appeal in a war risk insurance ease in which there was a verdict and judgment for the plaintiff. Insured was discharged from the Army in 1919 and paid premiums on his policy until March, 1920. ■ He had had attacks of pneumonia and influenza while in the Army, and was unquestionably suffering from pulmonary tuberculosis at the time of his discharge. He died of tuberculosis in 1931. The question in the case was whether the disease had reached such stage at the time insured stopped paying premiums on the policy as to constitute total and permanent disability within the meaning of its terms. The appeal presents only two points of substantial merit: (1) The contention that there was not sufficient evidence of total and permanent disability to take the case to the jury; and (2) that the court erred in. a portion of the charge dealing with the testimony as to the ability of insured to do light work under favorable conditions. On the first question, we think that the evidence as to total and permanent disability was sufficient to present a jury question. There was evidence that in 1919 and 1920 insured had tuberculosis and was advised to go to a dry climate for his health; that he acted upon this advice, and in 1921 sold a share of property which he had inherited and went to New Mexico, where he stayed for a number of months; that the disease remained active, notwithstanding the efforts of insured to effect a cure, and grew gradually worse until it resulted in his death; and that, while he did some work from time time, he was at no time able to work without material injury to his health. Taking this evidence in the light most favorable to plaintiff, it tended to show that, at the time insured stopped paying premiums, his disease constituted total disability and was based upon conditions rendering it reasonably certain that this disability would continue throughout life. Carter v. United States (C. C. A. 4th) 49 F.(2d) 221. There was no such work record in the case as to completely negative the existence of total and permanent disability as in United States v. Harrison (C. C. A. 4th) 49 F.(2d) 227 or United States v. Diehl (C. C. A. 4th) 62 F.(2d) 343. And the testimony of .physicians to the effect that the disease was continuously active and disabling, taken with the ineffectual efforts to effect a cure by going to a favorable climate and otherwise, distinguish the case from such cases as United States v. Stack (C. C. A. 4th) 62 F.(2d) 1056, where it was merely shown that insured had tuberculosis at the time of the lapse of the policy, with nothing to show that it had reached such stage or was of such character as to render it reasonably certain to be disabling throughout life. But, while there was evidence for the consideration of the jury to the effect that insured was totally and permanently disabled when he ceased paying premiums, there was a strong showing by the government that he was not so disabled; and we think that the government was denied the full benefit of this defense as a result of the portion of the court’s charge of which complaint is made. An examination of insured made in New Mexico in April, 1921, showed that his tuberculosis was incipient and inactive, and that, while he had' more than 10 per cent, disability, he was able to resume his pre-war occupation of laborer. An examination made by Dr. W. W. Point in July, 1922, showed that insured had incipient pul-’ monary tuberculosis which had been arrested, that the prognosis was good, and that his mental and physical condition was such that vocational training was feasible “away from gases, fumes, dust, excessive labor, heat or cold.” Dr. Point testified that in his .opinion a man with arrested tuberculosis could work without impairing his health, and that insured could do almost any kind of work except such as would expose him to the things mentioned in his report of examination, viz., “gases, fumes, dust, excessive labor, heat or cold.” Dr. E. E. Rose, who examined him in October, 1923, found him suffering with arrested tuberculosis, and testified that he could have done any light outside work or light farm work. The learned trial judge, after charging on the general principles of law applicable, charged specifically on insured(s contention that he was not to be denied recovery merely because he had worked, if in fact he was not able to work, reading at length from the opinion of this court in the Carter Case, which was perfectly good law as applied to that aspect of the case. When, however, he came to the government’s contention that the insured was not totally and permanently disabled because his tuberculosis was of such a character that it was possible to arrest it, and that it was arrested and he was able thereafter to do light work under proper conditions, this aspect of the case was treated in a very different manner. The law properly applicable thereto was not charged, the defense itself was subjected to ridicule, and the jury were told in effect that it amounted to nothing. The portion of the charge relating thereto, being the portion to which exception was taken, is as follows: “I cannot help but smile at my good friend Dr. Point’s statement of what a man in MeComas’ condition could do. As he puts it down on this piece of paper he says he should work ‘away from gases, fumes, dust, excessive labor in heat or cold.’ Now where in the world are you going to work? It is positively amusing to me to hear people talk about ‘light farm work,’ for there never was any'such thing as ‘light farm work’ if you really work on a farm. There might be loafers on the farm, probably are, the same as any place else. I have known some myself, but there is no such thing as farm work being light if it is real farm work. Nobody could call it ‘light farm work’ if you drive a plow, hit a stump in the field and have the plow throw you over on your head. At least, that wouldn’t be ‘light’ in my opinion. Nor would ,1 call it ‘light farm work’ to hoe com all day or to pull weeds. Try it. No, I do not think there is any such thing as ‘light’ work on a farm. I am the owner of four farms and have paid a good many hands, but I would never hire any man for ‘light farm work,’ for there simply is no such animal and you know it as well as I do. Returning to this proposition of working away from gases, fumes, dust, excessive heat or cold: Is there any such work as that up G-uyan Valley? I do not know where it is. You could not work in the mines, you could not work on the roads and you could not work on a farm. Where would you work? That is for such consideration as you care to give it. That is what Walter Point said, and what he put on this paper that he could do when he said he had a case of arrested tuberculosis. He said he could work at that sort of work. That is the testimony of the government’s doctor, who is an awfully nice fellow, I will say,. one of the best I know, and he states the facts as he sees them and there they are.” As stated above, this charge virtually amounted to an instruction to ignore the government’s defense. That defense was that, although insured had tuberculosis, the disease had been arrested, and insured was able to do light work amid favorable conditions, and therefore could not be said to be totally and permanently disabled. The court ridiculed the idea that any farm work could be light or that any place could be found in the valley where insured lived complying with the conditions prescribed by Dr. Point. Of course, the insured would not be deemed totally disabled merely because he could not do farm work or because he could not work in a particular valley. We know as a matter of common knowledge that many cases of tu-bereulosis are arrested, and that, after they are arrested, the patient can engage in many occupations, although he cannot ordinarily do heavy manual labor, nor can he work amid conditions tending to cause a recurrence of the disease, such as dust, extreme heat, or cold, etc. To say that a man who has an arrested case of tuberculosis, or a case which can be arrested with proper treatment, is totally and permanently disabled, because he cannot do heavy labor or work amid all eonditions, is to adopt a theory contrary to human experience and one which has been repudiated by the courts m a practically nnbroken line of decisions. See particularly Ivey v. United States (C. C. A. 4th) 67 F.(2d) 204; United States v. Diehl, supra; United States v. Rosborough (C. C. A. 4th) 62 F.(2d) 348; United States v. Stack, supra; Eggen v. United States (C. C. A. 8th) 58 F.(2d) 616, 620. Instead of charging the jury as he did with respect to the defense of the defendant, which practically eliminated that detense from their consideration, the learned judge should have charged them that they should find in favor of the defendant if the tubereulosis with which insured was afflicted during the life of the policy was of such a character or had progressed only to such a stage that it was possible to arrest its progress and render him able again to engage in some substantially gainful occupation without material injury to his health, even though such occupation might involve only light labor and might be carried on only under conditions which would not cause a recurrence of the disease. And he should have charged them further that, in passing upon this question, they should give consideration to the testimony of the witnesses to the effect that the disease was in fact arrested during the years 1922 and 1923, and that defendant was then able to engage in light work without material injury to his health. Having charged nt length upon the theory of plaintiff and the law applicable thereto, he should have charged upon the principles applicable to the defense of the government. Quercia v. U. S., 289 U. S. 466, 470, 53 S. Ct. 698, 77 L. Ed. 1321; Allison v. U. S., 160 U. S. 203, 16 S. Ct. 252, 40 L. Ed. 395; Pullman Co. v. Hall (C. C. A. 4th) 46 F.(2d) 399, 404; Weiss v. Bethlehem Iron Co. (C. C. A. 3d) 88 F. 23, 30; Hall v. Weare, 92 U. S. 728, 23 L. Ed. 500. For reasons stated, the judgment appealed from will be reversed, and the case will be remanded for a new trial, Reversed 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_casetyp1_7-2

C

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". 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: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:

songer_genapel2

H

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the 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. FRATES et al. v. EASTMAN et al. No. 549. Circuit Court of Appeals, Tenth Circuit. March 17, 1932. COTTERAL, Circuit Judge, dissenting. R. A. Kleinschmidt and Marvin T. Johnson, both of Tulsa, Okl., for appellants. Samuel A. Boorstin and John F. Conway, both of Tulsa, Okl., for appellee. Before LEWIS, COTTERAL, and Me-DERMOTT, Circuit Judges. MeDERMOTT, Circuit Judge. The plaintiff, a seven year old hoy, was injured when the Chevrolet car in which, he was riding with his mother collided at a street intersection with a bus operated by the defendants. He recovered judgment for $1,-000, and the defendants appeal. 1. Error is assigned because the court denied a motion for an instructed verdict. It is argued that one of plaintiff’s witnesses testified that the Chevrolet struck the bus, instead of the bus striking the Chevrolet; and that the bus stopped within a few feet from the point of impact. There was a dispute in the evidence on these points; but, were it otherwise, these facts alone are not conclusive on the question of fault. Where cars collide at an intersection, one of the drivers is generally at fault; which one it is does not depend upon the precise location of the cars at the moment of impact, nor upon the question of speed at that moment. One must look further back than the moment of impact to ascertain the fault. .If a ear races into an intersection, or enters upon tho wrong' side of the street, or fails fo yield the right of way to one entitled, it is no answer to say: “I was at fault, but I had almost stopped, and besides, I so nearly cleared the other car that the impact was between the rear end of my ear and the front end of the other.” While the evidence was conflicting, one disinterested witness testified that the bus was on the left side of the street; that it was traveling 30 miles an hour; that the Chevrolet was two-thirds of the way across the intersection when the collision occurred; others testified that the Chevrolet entered the intersection first. This is ample evidence to carry the case to the jury. 2. Error is assigned because the court admitted, over objection, city ordinances which limited the speed of automobiles at intersections to 15 miles per hour, and which required that vehicles shall be driven on the light side of the street at intersections. The record discloses tho following : “Mr. Conway: We offer in evidence Section 7 of Article 3 of the Ordinances of the City of Tulsa; Section 8, subsection 3, of Section 8, and Sect ion. 9, and Section 80. “Mr. Kleinschmidt: What is this you are reading from. I don’t know whether these are the ordinances in effect at that time or not. “Mr. Conway: The statutes of this state say that any copy of ordinances purporting to be published by any city or municipality are admissible in evidence without further proof, and this one purports to be published by the City of Tulsa in November, 1929, and I have pleaded those in my petition. “Mr. Kleinschmidt: I understand, but I don’t know whether they are the ordinances in force or not and I am not ready to admit it. Of course, there might be a lot of changes in the ordinance between the time those were published and the date of this accident, March 14,1930. * * * “Mr. Kleinschmidt: To this offer and to each section of the purported ordinances the defendants object as incompetent, irrelevant, and immaterial, no proper foundation having been laid, and no proper proof that such ordinances were in force and effect at the time of tho alleged accident. “The Court: Overruled, they may be received. “Mr. Kleinschmidt: Exception. “The Court: I will give you the opportunity to offer in evidence if you wish on that proposition of what the ordinances may be.” While the formal objection was comprehensive, the specific objection to which counsel emphatically directed the attention of tlie trial court was “there might bo a lot of changes in the ordinance between the time those were published and the date of this accident.” That objection is not renewed here, and it is not sound, for the burden is not upon one who introduces an official compilation to prove that a particular ordinance has not been amended or repealed. To prove such negative would require the introduction of all subsequent ordinances or statutes, or reliance upon opinion evidence. As a rule oP convenience, the burden is on the adversary to introduce proof of repeal or modification, and full opportunity was afforded the appellants to offer such proof. Cragg v. Los Angeles Trust Co., 154 Cal. 663, 98 P. 1063, 36 Ann. Cas. 1061; Bouver v. City of Bessemer, 17 Ala. App. 665, 88 So. 192. Section 645 of tho Compiled Statutes of Oklahoma, 3921, provides: “Printed copies of any of the ordinances, resolutions, rules, orders, and by-laws of any city or incorporated town in this State purporting to be published by authority of‘ such city or incorporated town, or manuscript copies of the same, certified under the hand of the proper officer, and having corporate seal of such city or town affixed thereto, shall be received as evidence.” The appellants now object tonthe ordinances on the ground that there was no proof that the compilation offered purported to be published by authority of the city. The objection is not well taken, for two reasons. In the first place, the appellants in the court below expressly waived the point. When tho compilation was offered, appellants’ counsel asked: “What is this you are reading from?” Appellee’s counsel replied by referring to the quoted statute, and said: “And this one purports to be published by tho City of Tulsa in November, 1929, and I have pleaded those in my petition.” Whereupon appellants’ counsel stated: “I understand, hut I don’t know whether they are the ordinances in force,” etc. There is no room here to quibble; there can be but one interpretation of this colloquy, and but one meaning to be ascribed to Ms statement, “I understand.” He brushed aside proof as to the purported publication, and centered his fire on the proposition that “there might be a lot of^ehanges” in the five months that elapsed between their publication and the accident. In the second place, the law is abundantly settled that counsel may not speeificallyeall the attention of the trial court to one ground of pbjeetion, and then, under a blanket objection, direct our attention to another. Frey & Son, Inc., v. Cudahy Packing Co., 256 U. S. 208, 41 S. Ct. 451, 65 L. Ed. 892; Robinson & Co. v. Belt, 187 U. S. 41, 50, 23 S. Ct. 16, 47 L. Ed. 65; United States v. U. S. Fidelity & Guaranty Co., 236 U. S. 512, 529, 35 S. Ct. 298, 59 L. Ed. 696; Guarantee Co. of North America v. Phenix Ins. Co. of Brooklyn (C. C. A. 8) 124 F. 170; Ottumwa Box Car Loader Co. v. Christy Box Car Loader Co. (C. C. A. 8) 215 F. 362; Louisville & N. R. Co. v. Western Union Telegraph Co. (C. C. A. 5) 233 F. 82; Arkansas Bridge Co. v. Kelly-Atkinson Const. Co. (C. C. A. 8) 282 F. 802; Monument Pottery Co. v. Imperial Coal Corporation (C. C. A. 3) 21 F.(2d). 683. 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_stpolicy

A

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Arthur and Hilda HAFFER, Appellants, v. Alvin A. VOIT and The Mengel Company, et al., Appellees. Ann F. AMES, Appellant, v. Alvin A. VOIT and The Mengel Company, et al., Appellees. No. 12215. United States Court of Appeals, Sixth Circuit. Feb. 7, 1955. L. Lyne Smith, Jr. (of Woodward, Hob-son & Fulton), Louisville, Ky., Sidney L. Garwin, and Israel Beckhardt, New York City, for appellants. Charles G. Middleton, Leo T. Wolford, and Edwin G. Middleton, Louisville, Ky. (Middleton, Seelbach, Wolford, Willis & Cochran, Louisville, Ky., of counsel), for appellees. Before ALLEN, MILLER and STEWART, Circuit Judges. PER CURIAM. This case came on to be heard upon the record and briefs and oral argument of counsel: And it appearing that plaintiffs herein, minority stockholders in The Mengel Company, a New Jersey corporation, have filed a derivative action against the corporation and its president attacking the revision on October 21,1949, of an option by the corporation’s directors without approval of the stockholders; And it appearing that said revised option provided in substance for the sale to the president of 10,000 shares of unissued common stock of the corporation to be paid for by the president’s demand note for $100,000, the stock to be pledged as collateral, the dividends paid on such shares to be applied to payment on the note, and the corporation to have no recourse against the president on the note except to the extent of the stock deposited as collateral; And it appearing that on October 26, 1949, the president exercised the option in accordance with the terms thereof; And it appearing that the stockholders were fully apprised through the proxy dated April 4, 1950, sent them for the stockholders’ meeting, of the terms of the said revised option; And it appearing that said revised option was authorized by 14:9-1 (a), Revised Statutes of New Jersey, 1937, and by 14:9-4 as amended in 1948, Revised Statutes Cumulative Supplement, New Jersey, 1948, N.J.S.A.; And it appearing that while under the amended statute of 1948 the revised option was subject to be altered, changed or repealed by the stockholders, no such action was taken by the stockholders ; And it appearing that plaintiffs made no earnest and honest effort to secure from the stockholders such action as they desired, Cf. Rule 23(b) Rules of Civil Procedure, 28 U.S.C.A.; Long v. Stites, 6 Cir., 88 F.2d 554; And it appearing that plaintiffs’ explanation that they made no effort to secure such action from the stockholders upon the ground, among others, that they were widely scattered and that there would be expense and delay incident to such demand, is legally insufficient. Bruce & Co. v. Bothwell, D.C., 8 F.R.D. 45. Cf. Stone v. Holly Hill Fruit Products, Inc., 5 Cir., 56 F.2d 553: It is ordered that the judgment of the District Court be and it hereby is affirmed for the reasons stated in the findings of fact and conclusions of law of the District Court entered January 13, 1954. Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_applfrom

E

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). MARTIN v. HIATT, Warden. No. 12666. United States Court of Appeals Fifth Circuit. May 9, 1949. Rehearing Denied May 25, 1949. Joe Freels Martin, of Atlanta, Ga., in prop. per. Walter G. Cooper, of Atlanta, Ga., for amicus curiae Robt. Clayton St. Clair. J. Ellis Mundy, U. S. Atty., and Harvey H. Tisinger, Asst. U. S. Atty., both of Atlanta, Ga., for appellee. Before HOLMES, McCORD, and WALLER, Circuit Judges. WALLER, Circuit Judge. This is another of the more than 1500 petitions for habeas corpus that have been filed in recent years in the Atlanta Division of the United States District Court for the Northern District of Georgia, wherein release from the custody of 'the United States Penitentiary at Atlanta has been sought The petitioner here, who was sentenced to imprisonment for three years for violation of the National Motor Vehicle Theft Act, Title 18, U.S.C., Sec. 408 [now §§ 2311-2313], by the United State's District Court for the Eastern District of Kentucky, alleges that he was illegally held in custody without arraignment or bail from May 7 to May 21, 1948, contrary to the Fifth and Fourteenth Amendments of the Federal Constitution; that between these dates petitioner was subjected to repeated and protracted questioning by members of the Kentucky State Highway Patrol and of the Federal Bureau of Investigation, during which “petitioner was threatened and coerced by use of reference to his past record and threatened’ reprisal against a you'ng lady in company of petitioner at the time of his arrest”; that he was advised that if he would sign a confession, the young lady in question would be released and he would be given an early trial rather than having to wait until the October term of the Court; that petitioner took notice of thi-s advice and having the welfare of the young lady in mind, as well as the threats of irrelevant matters, and being ignorant and untutored and without the advice of counsel or friends, he agreed to, and did, sign a confession, waive indictment, and plead guilty, in consequence of which he was sentenced. In short, he alleges violation of due process in being held without bail or arraignment between May 7 and May 21, 1948, and in being intimidated into signing a statement while being so held for such period. The writ issued and upon final hearing the petitioner’s application was denied and he was remanded to the custody of the respondent because of the failure of the petitioner to comply with Sec. 2255 of Title 28 U.S.C.A., which reads in part as follows: “§ 2255. Federal custody; remedies on motion attacking sentence “A prisoner in custody under sentence of a court of Che United States claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. “A motion for such relief -may be made ■at any time.” * * * * * * “An application for a writ of 'habeas-corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to-the court which sentenced him, or that such court has denied 'him relief, unless it also appears that the remedy by motion is-inadequate o-r ineffective to test the legality of his detention.” Petitioner, -appealing here, asserts that Sec. 2255 is in violation of Article 1, Sec. 9, Clause 2, of the Federal Constitution,, which provides that: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Concededly the great writ of habeas corpus has not been, and could not be, suspended by Congress in the absence of a rebellion or invasion, and the sole question presented to us is whether o-r not Sec. 2255 is tantamount to a suspension of the writ. The great writ is of such -antiquity that its origin is unknown, but from its inception as a writ designed to put people in jail rather than to get them out its status-has been far from static. No attempt will be made here to trace its development through the ages, but it is interesting to note that since the First Judiciary Act of 1789 the statutes have provided that judges of the Supreme and District Courts of the United States should have the right to issue writs of habeas corpus, etc., “which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.” From time immemorial it was thought that trial courts, State and Federal, had been invested with the primary duty of safeguarding the constitutional rights of defendants, and from the time of the enactment of the statute of 1789 until the present the courts have held in at least half a thousand cases that the writ of (habeas corpus cannot be used as a substitute for a writ of error or an appeal. But for some reason, not readily discernible, there seems to 'have grown up the notion that final judgments in criminal trials in the lower courts should be attended by no favorable presumptions, and that only in the higher courts of the United States does constitutional justice really abide. In drawing to such courts the power through 'habeas corpus to supervise the “intrinsic fairness” of criminal trials in both State and Federal courts, there has been not only a disinclination to accord full faith and credit to final judgments of trial courts of competent jurisdiction but also a readiness to grant permission to petitioners, admittedly guilty of serious offenses, to dispute, orally, collaterally, and as often as they chose, the solemn records and final judgments of the courts. It is not subject to argument that the great writ cannot be suspended in times of peace, but the proposition is also undebatable that it ought not to be abused in times of war or peace. It was doubtless to these ends that Congress .passed Chap. 153, Title 28 U.S.C.A., §§ 2241 to 2255, inclusive, whereby to provide that an -attack upon a final judgment of conviction by a Federal court in a criminal case ought usually to be made first in the court that rendered such judgment, proximate to which the records, the witnesses, and the alleged despoilers of constitutional rights generally reside. It was doubtless believed that there the petitioners could get at these despoilers in frontal, rather than collateral, attacks, no more handicapped by estoppels of records or judgments than if the attacks were made in places far remote if they also alleged that the violated Constitution or “intrinsic fairness” was on their side. Then, if sudh a petitioner’s effort were an ineffective test or if he failed to succeed in the court that had cast the yoke upon him, the right of appeal would still be his; and if either or' both of these efforts should prove inadequate, then he should still have access to the great, age-old, and grossly abused writ of habeas corpus ad subjiciendum. The right to the writ has never been absolute. The statute from 1789 until the present has required that for the writ to issue it must be “agreeable to the principles and usages of law.” The petition must be in writing and under oath. Section 454 [now § 2242], Title 28 U.S.C.A. If the petitioner be held under a judgment of a State court, a showing that he has exhausted his State remedies or that the State affords him no remedy is a condition precedent to maintaining the writ in the Federal court. If petitioner appeal's from a judgment of a court of the United States in a proceeding where the detention complained of is by virtue of process issued out of a State court, Sec 466 [now § 2253], Title 28 U.S.C.A., provides that no appeal will be allowed unless the judge of the United States court who rendered the final decision, or a judge of the appellate court, certifies that there is probable cause for the appeal. The procedure in habeas corpus has been the subject of change by legislation down through the centuries but the intent and purpose of the writ have remained substantially unchanged. In the passage of Chapter 153, supra, Congress has not undertaken to suspend the writ but has set up procedure that is designed to supply a more appropriate remedy to those -unlawfully detained as well as to preserve the 'writ for those who are entitled to it and at the same time to protect it from abuse by those who do not deserve it, but who clamor for it incessantly. The additional remedy provided above has not ended or suspended the writ of habeas corpus although it may have lessened its abuse by placing some emphasis on the finality of final judgments against collateral attacks without limit, thereby rendering perjury less tempting to tho-se of little veracity, convenient memory, or evil purpose. The Act in question has had the approval of the Judicial Conference of Senior Circuit Judges, the Congress of the United States, and United States District Courts in the cases of Lowe v. Humphrey, Warden, 80 F.Supp. 442, and Wong v. Vogel, 80 F.Supp. 723. Moreover, a presumption of constitutionality attends the Act. The provisions of Sec. 2255 — which are the only provisions of the chapter here under consideration — whether viewed as an additional method of testing the validity of a detention or as conditions precedent to the issuance of a writ, appear not only to he reasonable and valid but also as a highly desirable means of lessening the abuse of the writ. The judgment of the lower Court is affirmed. The order of the Court erroneously refers to the section as 2455 of Title 28 U.S.C.A. but the record clearly shows that the section involved was 2255 of Title 28 U.S.C.A. Jenks, 18 Quarterly Law Review (1902), p. 64, et seq. See 1 Stat. 81, Sec. 377, Title 28 U. S.C.A.; § 1651, Title 28 U.S.Code Annotated Judiciary and Judicial Procedure. Carter v. Illinois, 329 U.S. 173, 67 S.Ct. 216, 91 L.Ed. 172. Carter v. Illinois, supra. Question: What is the 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_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". STEIN v. BOSTIAN et al. (two cases). Nos. 12213, 12246. Circuit Court of Appeals, Eighth Circuit. Feb. 25, 1943. Phineas Rosenberg, of Kansas City, Mo., for appellant. Warren S. Earhart and Roy B. Cunningham, both of Kansas City, Mo., for appellees. Before SANBORN, WOODROUGH, and THOMAS, Circuit Judges. SANBORN, Circuit Judge. The question for decision is whether the court of bankruptcy could subject a cash exemption, to which the bankrupt was entitled under the laws of Missouri, to the payment of claims for taxes filed by that State and by the City of Kansas City. The facts are stipulated. Sigmund Stein, a merchant of Kansas City, Missouri, and the head of a family, was adjudicated a bankrupt February 17, 1941, upon an involuntary petition. On that day he filed his schedules showing his liabilities, among which were taxes aggregating $530, and his assets which consisted of his stock in trade, fixtures and accounts receivable. In' his schedules the bankrupt made the following claim for exemptions: “I claim as exempt under and by virtue of Article 19, Chapter 5 of the Revised Statutes of Missouri, 1929 [Art. 19, Ch. 6, Revised Statutes of Missouri, 1939, Mo.R.S.A. § 1316 et seq.], all of my household goods, wearing apparel, furniture, household stores, and ornaments of myself and family heretofore scheduled, as well as all other personal property heretofore scheduled herein, all of them not exceeding in value the amount allowed me by law or the sum of $400.” William B. Bostian was appointed receiver on February 17, 1941, and on February 18, without notice to the bankrupt, he procured from the referee in bankruptcy an order to sell the bankrupt’s merchandise and fixtures free of liens. The sale was at public auction, and the highest bid received was $710 for the merchandise and fixtures together, and they were sold for that amount. Prior to the sale, the referee had mailed notice thereof to the bankrupt, who did not appear and object. The sale was confirmed on February 26, 1941. The bankrupt did not waive his exemption rights or stipulate them away. At the first meeting of creditors, held on March 10, 1941, William B. Bostian was elected trustee. On March 12, 1941, he filed a report of exemptions, specifying as exempt: “Household goods and furniture Wearing apparel if unencumbered and if encumbered the equity therein Household stores.” The attorney for the bankrupt objected to the failure of the trustee to “set off merchandise or cash equivalent as exempt, and as claimed in bankrupt’s schedules.” On April 29, 1941,, the trustee filed a supplemental report of exemptions, specifying as exempt: “Cash $300 (Subject to costs of administration and claims adjudged prior to cash exemptions by the Bankruptcy Court).” No creditor of the bankrupt filed exceptions to or challenged in any way the trustee’s reports of exemptions. The bankrupt filed exceptions to so much of the trustee’s supplemental report as sought to subordinate his cash exemption to costs of administration and claims adjudged prior to such exemption. The tax claims filed against the estate of the bankrupt were as follows: State of Missouri, $191.05; Jackson County, Missouri, $71.93; City of Kansas City, Missouri, $267.02. None of these tax claimants had levied upon or seized or sold any part of the assets for taxes or commenced any proceedings for that purpose or for establishing a lien thereon. The referee on July 9, 1941, issued an order directing the bankrupt and the tax claimants to show cause why the referee “should not make either an order allowing the payment by the trustee in bankruptcy of $300.00 as cash exemptions out of the proceeds of the sale of the assets of this estate, or an order that the bankrupt is not entitled to such cash exemptions as against said tax claims or rights of the trustee in bankruptcy.” After a hearing, the referee decided that the court of bankruptcy had jurisdiction to determine the controversy between the bankrupt and the tax claimants over the $300 cash exemption conditionally set off to the bankrupt; that the tax claimants, State of Missouri and Kansas City, Missouri, had rights superior to those of the bankrupt in the $300 exemption; that it should be equitably divided between these two tax creditors; and that Jackson County, Missouri, “having defaulted”, had forfeited its right to participate in a distribution of the bankrupt’s exemption. The bankrupt petitioned for a review of the referee’s order directing the application of the exemption to the payment of the tax claims. The District Court affirmed the referee, and the bankrupt appealed. The effect of what the court of bankruptcy did was to set off to tax creditors the cash exemption to which the bankrupt was entitled. The trustee contends that the Bankruptcy Act confers jurisdiction on the courts of bankruptcy to determine all claims to exemptions of bankrupts; that the object and effect of the Missouri statutes is to abolish exemptions as against taxes due the State and its subdivisions; and that when an exemption is set apart in cash, the court of bankruptcy may order it applied to the claims of creditors against whom the bankrupt can not claim exemptions. The trustee does not contend that the exemption is subject to costs of administration. The statutes of Missouri providing that certain property “owned by the head of a family, shall be exempt from attachment and execution,” are Sections 1324 and 1327, Revised Statutes of Missouri, 1939, Mo.R.S.A. §§ 1324, 1327. Section 1330 of the same Statutes provides: “Sec. 1330. Nothing contained in this article shall be construed so as to exempt any property from seizure and sale for the payment of taxes due this state, or any' city, town or county thereof.” Thus, while exempt property in Missouri is not subject to attachment and execution, it is subject to seizure and sale for taxes due the State or its subdivisions. It is agreed, however, that none of the property of the bankrupt had been seized or sold for taxes or that any lien for taxes had been established thereon. The right to an exemption under Missouri law is not made to depend upon the payment of taxes, nor is the amount of the exemption determined by deducting the amount of the debtor’s liability for taxes. The question presented is, in our opinion, so well settled that we shall not indulge in a discussion of the pertinent provisions of the Bankruptcy Act or a review of the cases construing those provisions. The exempt property to which a bankrupt is entitled is no part of his estate in bankruptcy, is not subject to administration by the court of bankruptcy, and the title to such property does not pass to the trustee, but remains in the bankrupt. Lockwood v. Exchange Bank, 190 U.S. 294, 299, 300, 23 S.Ct. 751, 47 L.Ed. 1061. The authority of the court of bankruptcy to determine claims of bankrupts to their exemptions is “to control exempt property in order to set it aside, and thus exclude it from the assets of the bankrupt estate to be administered.” Lockwood v. Exchange Bank, supra [p. 299 of 190 U.S., 23 S.Ct. at page 753, 47 L.Ed. 1061]. See also, Smalley v. Laugenour, 196 U.S. 93, 97, 98, 25 S.Ct. 216, 49 L.Ed. 400; Lucius v. Cawthon-Coleman Co., 196 U.S. 149, 151, 25 S.Ct. 214, 49 L.Ed. 425. If creditors of a bankrupt assert that property, while exempt generally, is not exempt from process to enforce their particular debts, they must resort to courts other than the court of bankruptcy to enforce payment out of such property. Duffy v. Tegeler, 8 Cir., 19 F.2d 305, 308. Compare, Hukill-Hunter Co. v. Oliver, 3 Cir., 43 F.2d 100. It may be true, as the referee points out, that the cash exemption set off to the .bankrupt can be reached by his tax creditors through other proceedings, and that it would be convenient, expeditious and economical to have the court of bankruptcy order that the exemption be applied to the payment of the tax claims. That, however, does not alter the fact that Congress has not conferred upon the courts of bankruptcy jurisdiction to administer the exempt property of a bankrupt when a claim for exemptions has been filed, or to treat such property as any part of a bankrupt’s estate. The fact that, prior to the appointment of a trustee, the property of the bankrupt was converted into cash and that he did not protest against the sale, is immaterial. He claimed his exemptions in his schedules, and it is conceded that he did not waive his right to his exemptions or stipulate it away. It was the duty of the trustee and of the court to safeguard the right of the bankrupt to his exempt property. That right was, under the plainest principles of equity and fair dealing, transferred, without impairment, to the proceeds of the sale. Smith v. Thompson, 8 Cir., 213 F. 335, 336; In re Miller, 7 Cir., 95 F.2d 441, 443; In re Kane, 7 Cir., 127 F. 552, 554; Bank of Nez Perce v. Pindel, 9 Cir., 193 F. 917, 922. Compare, Steele v. Leonori, 28 Mo.App. 675, 683; State, to Use of Codding v. Finn, 8 Mo.App. 261, 264; Marchildon v. O’Hara, 52 Mo.App. 523, 526, 527. It is evident that both the referee and the District Court thought that the decision of the Supreme Court of Missouri in the case of United States ex rel. First Nat. Bank v. Lufcy, 329 Mo. 1224, 49 S.W.2d 8, sanctioned the action taken in this case. That case is not controlling and is clearly distinguishable. In the Lufcy case the court ruled that the bankrupt had consented to the sale of his exempt homestead upon condition that out of the proceeds liens of creditors upon it should be paid, and that his right to an exemption should be transferred to the proceeds, if any, in excess of such liens. In the case at bar there were no liens on the exempt cash and no consent by the bankrupt that tax creditors should be paid out of his exemptions. The order appealed from is reversed, and the case is remanded, with directions to allow the bankrupt his cash exemption unconditionally. The bankrupt, not being certain whether be could appeal as of right or whether this court must allow his appeal, gave notice of appeal and also procured from this court an order allowing his appeal. That is why this case is captioned as though it involved two appeals. Hereafter, we think that appeals so taken should be treated as a single appeal and not as two separate appeals as has been done in the past. In Missouri, taxes are not by statute made a lion on personal property, exempt or unexempt. See: State ex rel. Davis v. Goodnow, 80 Mo. 271, 275; State, to Use of Phillips v. Rowse, 49 Mo. 586, 592; City of Carondelet v. Picot, 38 Mo. 125, 130; Greeley v. Provident Sav. Bank, 98 Mo. 458, 460, 11 S.W. 980. Personal property may be seized and sold for taxes “in the same manner as goods and chattels are or may bo required to be seized and sold under execution issued on judgments at law,” and after demand and notice. § 11086, R.S.Mo.1939, Mo.R.S.A. § 11086. Personal taxes are a debt to be collected only in the manner authorized by statute. National Lumber & Creosoting Co. v. Burrows, Mo.App., 284 S.W. 153, 154, and may be presented against the estates of insolvent debtors in the same manner as other indebtedness. State ex rel. and to Use of Graves v. Farmers’ Trust Co. of Macon, Mo.Sup., 31 S.W.2d 1069, 1070. Sec. 24, Title 11 U.S.C.A. “This title shall not affect the allowance to bankrupts of the exemptions which are yrcscribed by the laws of the United States or by the State laws in force at the time of the filing of the petition * * * .” Sec. 75, sub. a (6), Title 11 U.S.C.A. “Trustees shall * * ~ (6) set apart the bankrupts’ exemptions allowed by law, if claimed, and report the items and estimated value thereof to the courts as soon as practicable after their appointment.” Sec. 110, Title 11 U.S.C.A. “The trustee of the estate of a bankrupt * * * shall * * * be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition in bankruptcy * * * except insofar as it is to property which is held to be exempt, * * *.” Sec. 11, sub. a (11), Title 11 U.S.C.A., gives to the courts of bankruptcy jurisdiction to “determine all claims of bankrupts to their exemptions.” 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_treat

C

What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. Alvin Eugene BAKER, Appellant, v. UNITED STATES of America, Appellee. No. 19073. United States Court of Appeals Eighth Circuit. June 5, 1968. James L. Homire, Jr., St. Louis, Mo., for appellant. Jim J. Shoemake, Asst. U. S. Atty., St. Louis, Mo., for appellee; Veryl L. Riddle, U. S. Atty., on the brief. Before VOGEL, Senior Circuit Judge, and BLACKMUN and LAY, Circuit Judges. VOGEL, Senior Circuit Judge. Defendant-appellant herein was convicted by a jury of a violation of 18 U.S.C.A. § 2312 and thereafter sentenced to confinement for a period of two years. He appeals from the judgment of conviction and raises the sole issue of sufficiency of the evidence to support the verdict of guilty. Viewing the evidence in the light most favorable to the government, it discloses that on the evening of August 8, 1967, a 1967 Buick automobile parked at 2415. Louisiana Street, Little Rock, Arkansas, was stolen. That same evening, the appellant testified that he entered the stolen car at Fourteenth and Chester in Little Rock. James Rideout and Kenneth Pippins were in the car when appellant entered it, and immediately upon entering the car appellant apparently learned that it was stolen. Appellant was 18 years of age and without any money at the time he entered the car. Appellant rode in the car as it was driven directly from Little Rock, Arkansas, to St. Louis, Missouri, where, six hours latér, he was. let out at his home at 4355 Maryland, in St. Louis. Appellant further testified that he did not drive the car, he bought no gas for the car, and he paid no expenses for the trip. There is no suggestion that appellant stole or helped steal the car and there is no evidence or suggestion that appellant entered into a conspiracy with the two other occupants of the car to steal a car for transportation to St. Louis. Thus, the only evidence, as testified to by appellant and by an FBI Agent, against the appellant was his admission that he rode in the stolen car. The trial court instructed the jury that it could infer transportation of the car by possession and further instructed the jury as to what constitutes active or constructive possession. The government argues that the ease may be affirmed under this theory. We disagree. There is no evidence suggesting even the barest elements of either actual or constructive possession of this car by appellant. As appropriately noted in another context in Barnes v. United States, 5 Cir., 1965, 341 F.2d 189, 191: “ * * * The effect of the charge in the instant case was to shift the burden of proof to the defendant to overcome a prima facie inference of guilt from the fact of possession, when possession had not been clearly established by the evidence. There was no direct testimony that defendant Barnes ever had possession of the vehicle, but only circumstantial evidence from which the jury could draw the conclusion that the defendant had been in possession.” It is obvious that here the jury would have to infer possession by appellant’s mere presence in the car. The constitutional infirmities of such an inference have already been suggested in United States v. Romano, 1965, 382 U.S. 136, 141, 86 S.Ct. 279, 15 L.Ed.2d 210. Even accepting the appropriateness of this initial inference, however, to further infer that appellant transported or caused to be transported this car from the inference of his possession of the car involves such obvious speculation as to be totally inconsistent with the requirements of due process. We agree, to this extent, with the holding in Julian v. United States, 9 Cir., February 28, 1968, 391 F.2d 279, that “where convicting presumptions are projected on possession, the evidence of possession ought to be very clear to satisfy the test of guilt beyond a reasonable doubt.” See, also, Wheeler v. United States, 10 Cir., 1967, 382 F.2d 998, 1000. (Appellants “correctly contend that being a mere passenger in a stolen automobile moving in interstate commerce does not prove requisite possession so as to give rise to the presumption of guilty knowledge.”) The trial court also instructed the jury that they could return a guilty verdict if they found that appellant had aided and abetted in the transportation of this stolen car. These instructions properly required “participation” by the appellant in the crime because, as noted by Judge Learned Hand in discussing various definitions of aiding and abetting: “It will be observed that all these definitions have nothing whatever to do with the probability that the forbidden result would follow upon the accessory’s conduct; and that they all demand that he in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed. All the words used — even the most colorless, ‘abet’ — carry an implication of purposive attitude towards it.” United States v. Peoni, 2 Cir., 1938, 100 F.2d 401, 402. Accord: Nye & Nissen v. United States, 1949, 336 U.S. 613, 619-620, 69 S.Ct. 766, 770, 93 L.Ed. 919 (aiding and abetting is “a rule of criminal responsibility for acts which one assists another in performing.”); Pereira v. United States, 1954, 347 U.S. 1, 10-11, 74 S.Ct. 358, 98 L.Ed. 435. This court has had occasion to consider the question of sufficiency of the evidence to find a defendant guilty as a principal because he aided and abetted the criminal acts of another. In a case involving facts similar to the instant case, this court stated, in Johnson v. United States, 8 Cir, 1952, 195 F.2d 673, 675: “ * *. * To be an aider and abetter it must appear that one so far participates in the commission of the crime charged as to be present, actually or constructively, for the purpose of assisting therein. * * * Generally speaking, to find one guilty as a principal on the ground that he was an aider and abetter it must be proven that he shared in the criminal intent of the principal and there must be a community of unlawful purpose at the time the act is committed. As the term ‘aiding and abetting’ implies, it assumes some participation in the criminal act in furtherance of the common design, either before or at the time the criminal act is committed. It implies some conduct of an affirmative nature and mere negative acquiescence is not sufficient.” See, also, Mays v. United States, 8 Cir, 1958, 261 F.2d 662, 664; Mack v. United States, 8 Cir, 1964, 326 F.2d 481, 484-486. Mere association is not sufficient to establish aiding and abetting, Ramirez v. United States, 9 Cir, 1966, 363 F.2d 33, 34; presence by itself is not sufficient, Hicks v. United States, 1893, 150 U.S. 442, 450, 14 S.Ct. 144, 37 L.Ed. 1137; United States v. Williams, 1951, 341 U.S. 58, 64, n. 4, 71 S.Ct. 595, 95 L.Ed. 747; United States v. Minieri, 2 Cir, 1962, 303 F.2d 550, 557; and it is also established that knowledge that a crime was to be committed and presence at the scene of the crime are generally not sufficient. Ramirez v. United States, supra; United States v. Garguilo, 2 Cir, 1962, 310 F.2d 249, 253. This review of the law convinces us that the government has not sustained its burden of proving participation in transporting a car in interstate commerce when it proves only that someone has ridden in a stolen car as it was being so transported. The government argues that Lambert v. United States, 5 Cir, 1958, 261 F.2d 799, is sufficient authority for the government’s position here. There, the appellant waited at the corner of a parking lot as his friend entered the lot and stole a car in New Orleans. The two then drove to Birmingham, Alabama, where a service station operator testified that appellant was still a passenger in the car when the occupants thereof had the gasoline tank filled and drove off without paying. The crucial distinction in that case is that there appellant actually participated in the stealing of the car, possibly by acting as a lookout for his companion, or that the appellant there had formed a conspiracy with his companion to steal the ear. Moreover, the appellant was still with his companion in the car the next day and remained in the car even after his companion had left a filling station without paying for the car’s service. Thus Lambert involved not only association, but also evidence of participation in the illegal act. Here there is no evidence of participation. Neither does the government’s reliance on Garrison v. United States, 10 Cir, 1965, 353 F.2d 94, impress us because much more circumstantial evidence suggesting possession was presented in that case than is present here. In Garrison, defendant attempted to sell a tire from the car, defendant bought gasoline for the car, defendant directed his partner to drive the car when they left a motel, and defendant was later found in the front seat of the car while his partner was in the back seat. As the court there noted, this evidence “certainly shows some control by Garrison over the recently stolen car and was sufficient for the jury to infer that Garrison was at least an aider and abettor in the transportation of the car and, as such, had possession of it as his codefendant did.” No such circumstantial evidence of control is present in the instant case. A recent case in which the facts most closely parallel the facts here is Allison v. United States, 10 Cir, 1965, 348 F.2d 152. In Allison, a car was stolen in Springfield, Missouri, the night of July 11th. The morning of July 13th Allison was identified as occupying the right-hand front seat of the car which was parked in a field near Elk City, Kansas. This car was abandoned near Elk City and on the afternoon of July 13th another car was stolen in Elk City and found the next day in Pawhuska, Oklahoma. Allison and another were arrested several blocks from that car and one of them had a jumper cable in his pocket. The court found this evidence insufficient to sustain the Dyer Act conviction of Allison because, “Neither the fingerprint nor the presence in the ear shows control, dominion, or authority over the car.” 348 F.2d at 154. We find that the government has failed to present sufficient evidence to prove that appellant transported or caused to be transported the stolen car in interstate commerce so that appellant’s motion for directed verdict should have been granted. Reversed. . “Possession in one state of property recently stolen in another state, if not satisfactorily explained, is a circumstance from which the jury might reasonably draw the inference and find, in the light of surrounding circumstances, that the person in possession not only knew it to be stolen property, but also transported or caused it to be transported in interstate commerce.” . “The law recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over a thing at a given time is then in actual possession of it. “A person who, although not in actual possession, knowingly has the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. “The law recognizes also that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, their possession is joint. “If you find from the evidence beyond a reasonable doubt that the accused either alone or jointly with others had. actual or constructive possession of the automobile described in the indictment, then you may find that such automobile was in the possession of the accused within the meaning of the word ‘possession’ as used in these instructions.” . “Whoever commits an offense against the United States, or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal. “Every person who thus willfully participates in the commission of a crime may be found to be guilty of an offense. Participation is willful if done voluntarily and purposely and with specific intent to do some act the law forbids, or with specific intent to fail to do some act the law requires to be done; that is to say, with bad purpose either to disobey or to disregard the law.” 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_petitioner

009

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. ALDINGER v. HOWARD, TREASURER OF SPOKANE COUNTY, et al. No. 74-6521. Argued March 24, 1976 Decided June 24, 1976 Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Powell, and SteveNs, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall and Blackmun, JJ., joined, post, p. 19. Norman Rosenberg argued the cause for petitioner. With him on the brief was R. Max Etter, Sr. Donald C. Brockett argued the cause and filed a brief for respondents. Mb. Justice Rehnquist delivered the opinion of the Court. This case presents the “subtle"and complex question with far-reaching implications,” alluded to but not answered in Moor v. County of Alameda, 411 U. S. 693, 715 (1973), and Philbrook v. Glodgett, 42117. S. 707, 720 (1975): whether the doctrine of pendent jurisdiction extends to confer jurisdiction over a party as to whom no independent basis of federal jurisdiction exists. In this action, where jurisdiction over the main, federal claim against various officials of Spokane County, Wash., was grounded in 28 U. S. C. § 1343 (3), the Court of Appeals for the Ninth Circuit held that pendent jurisdiction was not available to adjudicate petitioner’s state-law claims against Spokane County, over which party federal jurisdiction was otherwise nonexistent. While noting that its previous holdings to this effect were left undisturbed by Moor, which arose from that Circuit, the Court of Appeals was “not unaware of the widespread rejection” of its position in almost all other Federal Circuits. 513 F. 2d 1257, 1261 (1975). We granted certio-rari to resolve the conflict on this important question. 423 U. S. 823 (1975). We affirm. I This case arises at the pleading stage, and the allegations in petitioner’s complaint are straightforward. Petitioner was hired in 1971 by respondent Howard, the Spokane County treasurer, for clerical work in that office. Two months later Howard informed petitioner by letter that although her job performance was “excellent,” she would be dismissed, effective two weeks hence, because she was allegedly “living with [her] boy friend.” Howard’s action, petitioner alleged, was taken pursuant to a state statute which provides that the appointing county officer “may revoke each appointment at pleasure.” Though a hearing was requested, none was held before or after the effective date of the discharge. Petitioner’s action in the United States District Court for the Eastern District of Washington, as embodied in her second amended complaint, claimed principally under the Civil Rights Act of 1871, 42 U. S. C. § 1983, that the discharge violated her substantive constitutional rights under the First, Ninth, and Fourteenth Amendments, and was procedurally defective under the latter’s Due Process Clause. An injunction restraining the dismissal and damages for salary loss were sought against Howard, his wife, the named county commissioners, and the county. Jurisdiction over the federal claim was asserted under 28 U. S. C. § 1343 (3), and pendent jurisdiction was alleged to lie over the “state law claims against the parties.” As to the county, the state-law claim was said to rest on state statutes waiving the county's sovereign immunity and providing for vicarious liability arising out of tortious conduct of its officials. 513 F. 2d, at 1358. The District Court dismissed the action as to the county on the ground that since it was not suable as a “person” under § 1983, there was no independent basis of jurisdiction over the county, and thus “this court [has no] power to exercise pendent jurisdiction over the claims against Spokane County.” From this final judgment, see Fed. Rule Civ. Proc. 54 (b), petitioner appealed. The Court of Appeals first rejected petitioner’s claim that her § 1983 action against the county fell within the District Court’s § 1343 (3) jurisdiction, as obviously foreclosed by this Court’s decisions in Moor, supra, and City of Kenosha v. Bruno, 412 U. S. 507 (1973). Turning to petitioner’s pendent-jurisdiction argument, the Court of Appeals noted, 513 F. 2d, at 1260, that the District Court had made no alternative ruling on the “suitability of this case for the discretionary exercise of pendent jurisdiction” under the second part of the rule enunciated in Mine Workers v. Gibbs, 383 U. S. 715, 726-727 (1966). But since this Court in Moor had expressly left undisturbed the Ninth Circuit’si refusal to apply pendent jurisdiction over a nonfederal party, the instant panel felt free to apply that rule as set out in Hymer v. Chai, 407 F. 2d 136 (CA9 1969), and Moor v. Madigan, 458 F. 2d 1217 (CA9 1972), aff’d in part, rev’d in part, 411 U. S. 693 (1973). This kind of case, the Court of Appeals reasoned, presented the “weakest rationale” for extension of Gibbs to pendent parties: (1) The state claims are pressed against a party who would otherwise not be in federal court; (2) diversity cases generally present more attractive opportunities for exercise of pendent-party jurisdiction, since all claims therein by definition arise from state law; (3) federal courts should be wary of extending court-created doctrines of jurisdiction to reach parties who are expressly excluded by Congress from liability, and hence federal jurisdiction, in the federal statute sought to be applied to the defendant in the main claim; (4) pendent state-law claims arising in a civil rights context will “almost inevitably” involve the federal court in difficult and unsettled questions of state law, with the accompanying potential for jury confusion. 513 F. 2d, at 1261-1262. II The question whether “pendent” federal jurisdiction encompasses not merely the litigation of additional claims between parties with respect to whom there is federal jurisdiction, but also the joining of additional parties with respect to whom there is no independent basis of federal jurisdiction, has been much litigated in other federal courts and much discussed by commentators since this Court’s decision in Gibbs. Gibbs, in turn, is the most recent in a long line of our cases dealing with the relationship between the judicial power of the United States and the actual contours of the cases and controversies to which that power is extended by Art. III. In Osborn v. Bank of the United States, 9 Wheat. 738 (1824), Mr. Chief Justice Marshall in his opinion for the Court addressed the argument that the presence in a federal lawsuit of questions which were not dependent on the construction of a law of the United States prevented the federal court from exercising Art. Ill jurisdiction, even in a case in which the plaintiff had been authorized by Congress to sue in federal court. Noting that “[tjhere is scarcely any case, every part of which depends” upon federal law, id., at 820, the Chief Justice rejected the contention: “If it be a sufficient foundation for jurisdiction, that the title or right set up by the party, may be defeated by one construction of the constitution or law of the United States, and sustained by the opposite construction, provided the facts necessary to support the action be made out, then all the other questions must be decided as incidental to this, which gives that jurisdiction. Those other questions cannot arrest the proceedings. . . . “We think, then, that when a question to which the judicial power of the Union is extended by the constitution, forms an ingredient of the original cause, it is in the power of congress to give the Circuit Courts jurisdiction of that cause, although other questions of fact or of law may be involved in it.” Id., at 822-823. This doctrine was later applied in Siler v. Louisville & Nashville R. Co., 213 U. S. 175 (1909), to hold that where federal jurisdiction is properly based on a colorable federal claim, the court has the “right to decide all the questions in the case, even though it decided the Federal questions adversely to the party raising them, or even if it omitted to decide them at all, but decided the case on local or state questions only.” Id., at 191. In Moore v. N. Y. Cotton Exchange, 270 U. S. 593, 609-610 (1926), the Court in similar fashion sustained jurisdiction over a defendant’s compulsory counterclaim arising out of the same transaction upon which the plaintiff’s federal antitrust claim was grounded, although the latter had been dismissed for failure to state a claim, and the former had no independent federal jurisdictional basis. A few years later, in Hurn v. Oursler, 289 U. S. 238 (1933), the Court drew upon the foregoing cases to establish federal jurisdiction to decide a state-law claim joined with a federal copyright infringement claim, where both were considered “two distinct grounds in support of a single cause of action,” although the federal ground had proved unsuccessful. Id., at 246. In Gibbs, the respondent brought an action in federal court against petitioner UMW, asserting parallel claims— a federal statutory claim and a claim under the common law of Tennessee — arising out of alleged concerted union efforts to deprive him of contractual and employment relationships with the coal mine’s owners. Though the federal claim was ultimately dismissed after trial, and though diversity was absent, the lower courts sustained jurisdiction over the state-law claim, and affirmed the damages award based thereon. Before reaching the merits (on which the lower courts were reversed), this Court addressed the argument that under the rule of pendent jurisdiction as set out in Hurn v. Oursler, supra, at 245-246, Gibbs had merely stated “two separate and distinct causes of action” as opposed to “two distinct grounds in support of a single cause of action,” in which former case the federal court lacked the power to “retain and dispose” of the “non-federal cause of action.” The Court stated that since the Hum test was formulated before the unification of law and equity by the Federal Rules of Civil Procedure, it was therefore unnecessarily tied to the outmoded concept of a “cause of action” developed under code pleading rules. Recognizing that the Federal Rules themselves cannot expand federal-court jurisdiction, the Court nevertheless found in them a sufficient basis to go beyond Hum’s “unnecessarily grudging” approach to parallel claims, and to adopt a more flexible treatment within the contours of Art. Ill, § 2. Thus, in a federal-question case, where the federal claim is of sufficient substance, and the factual relationship between “that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional ‘case/ ” pendent jurisdiction extends to the state claim. 383 U. S., at 725. The Court, in the second aspect of the Gibbs formulation, went on to enumerate the various factors bearing on a district court’s discretionary decision whether the power should be exercised in a given parallel-claims case, emphasizing that “pendent jurisdiction is a doctrine of discretion, not of plaintiff’s right.” Id., at 726. These cases, from Osborn to Gibbs, show that in treating litigation where nonfederal questions or claims were bound up with the federal claim upon which the parties were already in federal court, this Court has found nothing in Art. Ill’s grant of judicial power which prevented adjudication of the nonfederal portions of the parties’ dispute. None of them, however, adverted to the separate question, involved in the instant case, of whether a nonfederal claim could in turn be the basis for joining a party over whom no independent federal jurisdiction exists, simply because that claim could be derived from the “common nucleus of operative fact” giving rise to the dispute between the parties to the federal claim. But while none of the foregoing line of cases discussed the joining of additional parties, other decisions of this Court have developed a doctrine of “ancillary jurisdiction/’ and it is in part upon this development — and its relationship to Gibbs — that petitioner relies to support “pendent party” jurisdiction here. Under this doctrine, the Court has identified certain considerations which justified the joining of parties with respect to whom there was no independent basis of federal jurisdiction. In Freeman v. Howe, 24 How. 450 (1861), the Court held that the state court had no jurisdiction over a replevin action brought by creditor claimants to property that had already been attached by the federal marshal in a federal diversity action. The claimants argued that a want of state-court jurisdiction would leave them without a remedy, since diversity between them and the marshal was lacking. This Court stated that an equitable action in federal court by those claimants, seeking to prevent injustice in the diversity suit, would not have been “an original suit, but ancillary and dependent, supplementary merely to the original suit,” and thus maintainable irrespective of diversity of citizenship. Id., at 460. A similar approach was taken in Stewart v. Dunham, 115 U. S. 61 (1885), where, after a creditors’ suit to set aside an allegedly fraudulent conveyance was removed to federal court on grounds of diversity, other nondiverse creditors were permitted to intervene to assert an identical interest. Since it was merely a matter of form whether the latter appeared as parties or came in later under a final decree to prove their claims before a master, the federal court “could incidentally decree in favor of [the nondiverse] creditors[, and s]uch a proceeding would be ancillary to the jurisdiction acquired between the original parties . . . .” Id., at 64. Dunham was in turn held controlling in Supreme Tribe of Ben-Hur v. Cauble, 255 U. S. 356 (1921). There, suing in diversity, out-of-state “Class A” members of an Indiana fraternal benefit society had sought a decree adjudicating their common interests in the control and disposition of the society’s funds. After successfully defending that action, the society brought a second suit in federal court seeking to protect that judgment as against an identical state-court action brought by members of “Class A” who were of Indiana citizenship. Since under Dunham “intervention of the Indiana citizens in the [original] suit would not have defeated the jurisdiction already acquired,” 255 U. S., at 366, the earlier judgment was binding against them, and the federal court had ancillary jurisdiction over the society’s suit to enjoin the later state action, irrespective of diversity. The doctrine of ancillary jurisdiction developed in the foregoing cases is bottomed on the notion that since federal jurisdiction in the principal suit effectively controls the property or fund under dispute, other claimants thereto should be allowed to intervene in order to protect their interests, without regard to jurisdiction. As this Court stated in Fulton Bank v. Hozier, 267 U. S. 276, 280 (1925): “The general rule is that when a federal court has properly acquired jurisdiction over a cause it may entertain, by intervention, dependent or ancillary controversies; but no controversy can be regarded as dependent or ancillary unless it has direct relation to property or assets actually or constructively drawn into the court's possession or control by the principal suit.” The decisional bridge between these two relatively discrete lines of cases appears to be this Court’s decision in Moore. Since the defendant’s nonfederal counterclaim in Moore arose out of the same transaction giving rise to the antitrust dispute between the parties, and federal jurisdiction was sustained over the former, the Court in Hum, though faced with a plaintiff’s assertion of pendent jurisdiction over an additional nonfederal claim, thought the two cases, “in principle, cannot be distinguished.” Hum, 289 U. S., at 242. It was Hum’s, “unnecessarily grudging” test of pendent jurisdiction, of course, which the Court expanded in Gibbs. On the other hand, because Moore was a suit in equity, the jurisdiction sustained there has been rationalized as falling under the umbrella of ancillary jurisdiction, though Moore neither used that term nor cited to Fulton Bank, supra. Petitioner thus suggests that since Moore, read as an “ancillary” case, adopted a “transactional” test of jurisdiction quite similar to that set out in Gibbs, there is presently no “principled” distinction between the two doctrines. Since under the Federal Rules “join-der of claims, parties and remedies is strongly encouraged,” Gibbs, 383 U. S., at 724, her use of the Rules here is as a matter of jurisdictional power assertedly limited only by whether the claim against the county “derive [s] from a common nucleus of operative fact.” Id., at 725. Hence, petitioner concludes, based on Gibbs’ treatment of pendent claims, and the use of ancillary jurisdiction to bring in additional parties, that her nonfederal claim against a nonfederal defendant falls within pendent jurisdiction since it satisfies Gibbs’ test on its face. For purposes of addressing the jurisdictional question in this case, however, we think it quite unnecessary to formulate any general, all-encompassing jurisdictional rule. Given the complexities of the many manifestations of federal jurisdiction, together with the countless factual permutations possible under the Federal Rules, there is little profit in attempting to decide, for example, whether there are any “principled” differences between pendent and ancillary jurisdiction; or, if there are, what effect Gibbs had on such differences. Since it is upon Gibbs’ language that the lower federal courts have relied in extending the kind of pendent-party jurisdiction urged by petitioner here, we think the better approach is to determine what Gibbs did and did not decide; and to identify what we deem are important differences between the jurisdiction sustained in Gibbs and that asserted here. Gibbs and its lineal ancestor, Osborn, were couched in terms of Art. Ill's grant of judicial power in “Cases... arising under this Constitution, the Laws of the United States, and [its] Treaties,” since they (and implicitly the cases which linked them) represented inquiries into the scope of Art. Ill jurisdiction in litigation where the “common nucleus of operative fact” gave rise to non-federal questions or claims between the parties. None of them posed the need for a further inquiry into the underlying statutory grant of federal jurisdiction or a flexible analysis of concepts such as “question,” “claim,” and “cause of action,” because Congress had not addressed itself by statute to this matter. In short, Congress had said nothing about the scope of the word “Cases” in Art. Ill which would offer guidance on the kind of elusive question addressed in Osborn and Gibbs: whether and to what extent jurisdiction extended to a parallel state claim against the existing federal defendant. Thus, it was perfectly consistent with Art. Ill, and the particular grant of subject-matter jurisdiction upon which the federal claim against the defendant in those cases was grounded, to require that defendant to answer as well to a second claim deriving from the “common nucleus” of fact, though it be of state-law vintage. This would not be an “unfair” use of federal power by the suing party, he already having placed the defendant properly in federal court for a substantial federal cause of action. Judicial economy would also be served because the plaintiff’s claims were “such that he would ordinarily be expected to try them all in one judicial proceeding . . . .” Gibbs, 383 U. S., at 725. The situation with respect to the joining of a new party, however, strikes us as being both factually and legally different from the situation facing the Court in Gibbs and its predecessors. From a purely factual point of view, it is one thing to authorize two parties, already present in federal court by virtue of a 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. Charles A. BLANEY et al., Appellants, v. FLORIDA NATIONAL BANK AT ORLANDO et al., Appellees. No. 22229. United States Court of Appeals Fifth Circuit. March 7, 1966. Robert Dyer, George T. Eidson, Jr., Akerman, Senterfitt, Eidson, Mesmer & Robbinson, Orlando, Fla., for appellants. Fred H. Kent, Clarence G. Ashby, Haywood M. Ball, Ulmer, Murchison, Kent, Ashby & Ball, Jacksonville, Fla., for ap-pellees. Before TUTTLE, Chief Judge, WISDOM, Circuit Judge, and-FISHER, District Judge. TUTTLE, Chief Judge: Appellants (plaintiffs below) brought this action individually, and as representatives of a class comprised of the holders of ten per cent mortgage bonds, issued pursuant to a trust indenture agreement by Fischer-Electro-Magnetics, Inc., a now bankrupt corporation. The complaint alleges improper action by appellee-bank (and its Trust Officer) as trustee under said indenture agreement. In light of our disposition of the case, we do not elaborate upon the specific acts which appellants urge as a breach of the bank’s fiduciary obligations as trustee, other than to note the substantiality of their claim. It should be noted, however, that the trust indenture contained an exculpatory clause, purporting to limit the trustee’s liability to “gross neglect of its duties hereunder or for failure to exercise good faith in the performance hereof.” In holding, as we do, that appellants’ complaint does not state a federal claim, we are mindful of the possibility that the Florida courts may give effect to this exculpatory clause, thus rendering non-compensable an otherwise actionable breach of fiduciary duty on the part of the bank. See Smith v. Boyd, 119 Fla. 481, 161 So. 381 (1935). A threshold problem faces this court in light of the disposition of this case below. The district court’s dismissal for lack of diversity or “other jurisdictional grounds” was improper in light of Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 13 A.L.R.2d 383 (1946). This latter case teaches that where a complaint is drawn, as here, to seek recovery directly under the Constitution or laws of the United States, a federal court must entertain the suit “to decide whether the allegations state a cause of action on which the court can grant relief as well as to determine issues of fact arising in the controversy,” id. at 682, 66 S.Ct. at 776, unless 1) the alleged federal claim appears to be immaterial and made solely for the purpose of obtaining jurisdiction, or 2) the claim is wholly insubstantial and frivolous. Ibid. However, in the interest of economy of judicial time and effort, this court expressly declines to remand on this ground. Rather, we proceed to determine whether, as a matter of law, appellants’ claim states a federal cause of action — a question which “must be decided after and not before the court has assumed jurisdiction over the controvesy.” Ibid. Appellants premise their claim for relief upon the following regulation promulgated by the Board of Governors of the Federal Reserve System, pursuant to its authority under former 12 U.S.C. § 248(k) (repealed Sept. 28, 1962) : “Every such national bank shall conform to sound principles in the operation of its trust department.” 12 C.F.R. § 206.6(f) (1961). [Footnote 5 to this subsection “commended” to banks operating trust departments the statement of “principles” of trust institutions approved by the Executive Council of the American Bankers Association (Appendix to Regulation F of the Board of Governors of the Federal Reserve System, 12 C.F.R. § 206 at p. 35 et seq.).] Appellants ask this court to imply from Section 206.6(f) a federal civil remedy in their favor, as holders of securities subject to the trust indenture administered by appellee. Such an implied cause of action would be based upon the bank’s failure to “conform to sound principles in the operation of its trust department.” Thus, in effect, we are invited to fashion a federal common law of “sound” trust principles pursuant to “authorization” found in an innocuous administrative regulation. We decline this invitation. Our conclusion is based partially upon the most recent Supreme Court pronouncement on implying civil remedies from federal regulatory statutes, J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). There the plaintiff alleged that defendant-corporation, by seeking support for a merger through circulation of a false and misleading proxy statement, in violation of Section 14(a) of the Securities Exchange Act and regulations issued pursuant thereto, had deprived shareholders of their pre-emptive rights. The question as put by the Court was whether Section 27 of the Securities Exchange Act authorized a federal cause of action for rescission or damages, based upon such an alleged deprivation. The approach of the Supreme Court in allowing such a private cause of action is illuminating. First, it noted that Section 27 is broad in its terms, granting to approprate district courts jurisdiction over “all suits in equity and actions at law brought to enforce any liability or duty created” by the Act. Second, it emphasized the broad remedial purposes of the Section 14(a) and the proxy rules issued pursuant thereto — purposes expressly noted in the Act itself. Third, it implicitly noted that both the stockholders and the corporation were within the group sought to be protected by the proxy rules. Fourth, it concluded that “[pjrivate enforcement * * * provides a necessary supplement to Commission action,” -Borak at 432, 84 S.Ct. at 1560, especially since “[t]ime does not permit an independent examination of the facts set out in the proxy material and this results in the Commission’s acceptance of the representations contained therein at their face value * * Ibid. Under these circumstances, the Court held that a private remedy existed. Measuring the circumstances involved in this case by the general approach of the Supreme Court in Borak, we readily observe that appellants, as security holders, are within the class of persons sought to be benefited by the banking regulation. In our opinion, however, the similarity ends at this point. Unlike Section 27 of the Securities Exchange Act (footnote 2, supra), the section which prescribes specific liabilities for violations of the Federal Reserve Act (Title 12, U.S.C., Chapter 3), speaks in narrow terms, as follows: “Should any national banking association in the United States now organized fail within one year after December 23, 1913, to become a member bank or fail to comply with any of the provisions of this chapter applicable thereto, all of the rights, privileges, and franchises of such association granted to it under chapter 2 of this title, or under the provisions of this chapter, shall be thereby forfeited. Any noncompliance with or violation of this chapter shall, however, be determined and adjudged by any court of the United States of competent jurisdiction in a suit brought for that purpose in the district or territory in which such bank is located, under direction of the Board of Governors of the Federal Reserve System by the Comptroller of the Currency in his own name before the association shall be declared dissolved. In cases of such noneompliance or violation, other than the failure to become a member bank under the provisions of this chapter, every director who participated in or assented to the same shall be held liable in his personal or individual capacity for all damages which said bank, its shareholders, or any other person shall have sustained in consequence of such violation. Such dissolution shall not take away or impair any remedy against such corporation, its stockholders, or officers, for any liability or penalty which shall have been previously incurred.” 12 U.S.C. § 501a. Thus, solely as a matter of statutory construction, we would hold the remedies enumerated in Section 501a to be exclusive. Furthermore, we doubt seriously whether the national trust regulations were motivated by the broad remedial purposes underlying the Securities Exchange Act; they were primarily designed, rather, to place national banks on an equal competitive basis with state banks and trust companies in the state where the national bank is situated. This is obvious from the most cursory reading of repealed 12 U.S.C. § 248(k), now 12 U.S. C. § 92a, For this same reason, since we are not dealing with broad, remedial social legislation, we feel justified in concluding that Congress intended regulatory controls to be exercised solely by the Board of Governors (or the Comptroller, today), without room or need for supplementary enforcement. Cf. Consolidated Freightways v. United Truck Lines, 216 F.2d 543, 547 (9th Cir. 1954). In our conclusions we are reinforced by a basic feeling that the law of trusts and estates, like the law of domestic relations, see DeSylva v. Ballentine, 351 U.S. 570, 580, 76 S.Ct. 974, 100 L. Ed. 1415 (1956), is primarily a matter of state concern. See United States v. Yazell, January 17, 1966, 86 S.Ct. 500, (family property interests are “intensely local”). That Congress, too, recognized this fact seems obvious from the provisions of 12 U.S.C. § 92a itself, making the right of national banks to act as trustees, executors, administrators or in any other fiduciary capacity turn upon the law of the state in which such national bank is located [see also former 12 U.S.C. Section 248 (k) ]. The areas in which the federal courts have recently returned to “the free-wheeling days antedating Erie R. Co. v. Tompkins * * * are few and restricted,” Wheeldin v. Wheeler, 373 U.S. 647, 651, 83 S.Ct. 1441, 1445, 10 L.Ed.2d 605 (1963), and should remain so. Accordingly, we hold that appellants’ complaint does not state a federal cause of action. The judgment is affirmed because of the failure to allege a state of facts upon which relief could be granted. . Upon the repeal of 12 U.S.C. § 248(k), the jurisdiction of the Board of Governors of the Federal Reserve System over trust departments of national banks was transferred to the Comptroller of the Currency. 12 U.S.C. § 92a. Subsequently the Comptroller promulgated Regulation 9, which superseded Regulation F, see 12 C.F.R. Part 9, and which contains a regulation exactly corresponding to 12 C.F.R. § 206.6(f), i. e., 12 C.F.R. § 9.6(f) (1968 ed.), and footnote 2 thereto. Since it appears from the complaint that substantially all of the events allegedly creating liability on the part of the bank occurred while 12 C.F.R. § 206.6 (f) was in effect, we feel that appellants were correct in basing their claim primarily thereupon. Nevertheless, to whatever extent appellants must base their claim for relief upon 12 C.F.R. § 9.6(f), our holding also applies pro tanto to this latter regulation. . Section 27, 15 U.S.C. § 78aa, provides in relevant part: “The district courts of the United States, the Supreme Court of the District of Columbia, and the United States courts of any Territory or other place subject to the jurisdiction of the United States shall have exclusive jurisdiction of via--lations of this title or the rules and regulations thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by this title or the rules and regulations thereunder. Any criminal proceeding may be brought in the district wherein any act or transaction constituting the violation occurred. Any suit or action to enforce any liability or duty created by this title or rules and regulations thereunder, or to enjoin any violation of such title or rules and regulations, may be brought in any such district or in the district wherein the defendant is found or is an inhabitant or transacts business, and process in such cases may be served in any other district of which the defendant is an inhabitant or wherever the defendant may be found.” . To whatever (if any) extent appellants must base their claim for relief upon Regulation 9 of the Comptroller of the Currency, 12 C.F.R. § 9.6(f), see footnote 1, supra, their claim is cast under the National Banking Act, and, accordingly, 12 U.S.C. § 93, rather than 12 U.S.C. § 501a, will become applicable. Since 12 U.S.C. § 93 also speaks in narrow terms, it is indistinguishable from 12 U.S.C. § 501a for purposes of our analysis. . It should be noted that appellants here sue the bank and its trust officer — not its directors. 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_genapel1

G

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. HOLLOWAY v. LOONEY. No. 4705. United States Court of Appeals Tenth Circuit. Oct. 8, 1953. Writ of Certiorari Denied Dec. 7, 1953. See 74 S.Ct. 245. Tyree Holloway, pro se. George Templar, Arkansas City, Kan., and Charles H. Rooney, Topeka, Kan., on the brief, for appellee. Before BRATTON, MURRAH and PICKETT, Circuit Judges. PER CURIAM. This is an appeal from a judgment of the District Court of Kansas discharging a writ of habeas corpus to test the lawfulness of petitioner’s custody by the respondent Warden. The material facts are that pursuant to a conviction, the petitioner was sentenced in July 1944 by the District Court for the District of Columbia for a term of five to fifteen years. He appealed from this judgment and elected not to commence the service of his sentence. While this appeal was pending and on October 27, 1944, the petitioner was convicted on another offense in the same District and sentenced for a term of two and one-half to seven years, to take effect at the expiration of the sentence imposed in the first case. He was committed to the custody of the Attorney General and did not appeal from the latter sentence. The appeal from the first sentence was affirmed on February 26, 1945, and he commenced the service of that sentence on March 7, 1945. ■ As grounds for his discharge, peti-. tioner contends that the latter sentence of two and one-half to seven years, to commence at the expiration of the first sentence, which had not commenced at the time of the imposition of the latter, is fatally lacking in definiteness and certainty as a consecutive sentence and must therefore be construed to have commenced on the date of its imposition and his commitment; that having served the two and one-half to seven years, he is entitled to a discharge from further custody for that offense. This identical question was raised and decided adversely to the petitioner in a motion to vacate under Section 2255, 28 U.S.C.A. See Holloway v. United States, 89 U.S.App.D.C. 332, 191 F.2d 504. The remedy provided under Section 2255 to test the validity of a sentence upon the ground that the court was without jurisdiction to impose it, or that it was in excess of the maximum provided by law or otherwise subject to collateral attack, being in lieu of the former remedy in habeas corpus, is exclusive and habeas corpus is not available to relitigate the question or review the decision of the court in a proceedings under Section 2255. See Barnes v. Hunter, 10 Cir., 188 F.2d 86; Clough v. Hunter, 10 Cir., 191 F.2d 516; Kreuter v. United States, 10 Cir., 201 F.2d 33; Smith v. United States, 10 Cir., 205 F.2d 768. A prisoner may however be heard in habeas corpus “to contend that he is being held in confinement without any judgment of a court, or that he is being held after having fully served the sentence for which he was committed.” Mills v. Hunter, 10 Cir., 204 F.2d 468, 470. But habeas corpus is available only to effectuate a prisoner’s immediate release and not to test the legality of his imprisonment at some future time. Pope v. Huff, 73 App.D.C. 170, 117 F.2d 779. The writ will not issue in the absence of a showing that the prisoner is presently restrained of his liberty without warrant of law. Macomber v. Hudspeth, 10 Cir., 115 F.2d 114; Wall v. Hudspeth, 10 Cir., 108 F.2d 865; McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238. The petitioner does not contend that he is not presently in lawful custody of the Warden. He admits, as the record shows, that he is not presently entitled to release from custody under the first sentence of five to fifteen years. He is therefore in lawful custody under a valid sentence and the trial court correctly discharged the writ. The judgment is affirmed. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:

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. The RATH PACKING COMPANY, a corporation, Plaintiff, Counter-Defendant and Appellant, v. M. H. BECKER, as Director of the County of Los Angeles Department of Weights and Measures, Defendant, Appellee and Cross-Appellant, C. B. Christensen, as Director of Agriculture of the State of California, Intervenor, Appellee and Cross-Appellant. The RATH PACKING COMPANY, a corporation, Plaintiff and Appellant, v. Joseph W. JONES, as Director of the County of Riverside Department of Weights and Measures, Defendant, Appellee and Cross-Appellant. Nos. 73-2481, 73-2482, 73-3092, 73-2496 and 73-3180. United States Court of Appeals, Ninth Circuit. Oct. 29, 1975. Certiorari Granted April 19, 1976. See 96 S.Ct. 1663. Arnold K. Graham, Deputy County Counsel (argued), Los Angeles, Cal., for M. H. Becker. Allan J. Goodman, Deputy Atty. Gen. (argued), Los Angeles, Cal., for C. B. Christensen. Loyal E. Keir, Deputy County Counsel (argued), Riverside, Cal., for Joseph W. Jones. Dean C. Dunlavey (argued), of Gibson, Dunn & Crutcher, Los Angeles, Cal., for Rath Packing Co. Before BROWNING and TRASK, Circuit Judges, and RICH, Judge. The Honorable Giles S. Rich, Judge, United States Court of Customs and Patent Appeals, sitting by designation. OPINION RICH, Judge: These suits were brought by Rath Packing Company (hereinafter “Rath”) to enjoin the enforcement of certain California statutes and regulations pertaining to the labeling by weight of packaged foods at retail, and for a declaration that the federal Wholesome Meat Act of 1967, 21 U.S.C. § 601 et seq., and a regulation promulgated thereunder, 9 CFR 317.2(h)(2), preempt these California statutes and regulations. They were consolidated for decision in the district court and on appeal. Rath is a nation-wide processor and seller of meat products, including bacon, and maintains a meat-packing establishment at Vernon, California, which is subject to federal inspection under the Wholesome Meat Act and 9 CFR 302.1 as an establishment in which “any products of * * * carcasses of livestock are * * * prepared for transportation or sale as articles of commerce, which are intended for use as human food.” Becker and Jones are the Directors of the Departments of Weights and Measures of Los Angeles and Riverside Counties, California, respectively. They are responsible for the actual enforcement of the State weights and measures laws in their counties. Intervenor Christensen is the Director of Agriculture of the State of California. Jurisdiction in the district court was based on 28 U.S.C. § 1331(a), as it was alleged that a case or controversy arising under the laws of the United States involving more than $10,000 was presented. We have jurisdiction of this appeal under 28 U.S.C. § 1291. The district court, in a memorandum and order reported at 357 F.Supp. 529 (C.D.Cal.1973), granted in part the relief requested, and all parties appealed the determinations adverse to them. This case is a companion to General Mills, Inc., et al. v. Jones, 530 F.2d 1317, decided concurrently herewith. Much of the discussion in this opinion is applicable to the General Mills case as well. Background This case concerns the packaging and weighing of bacon. In order to understand the issues, a brief description of the properties of bacon and how it is packed and weighed is necessary. The weighing and packaging of bacon at the Rath plant takes place under internal Rath procedures which have been submitted to an official of the United States Department of Agriculture (USDA). After the pickled and smoked pork bellies come from the bacon press, where they are squared into uniform rectangular shapes, they are sliced by a machine, which distributes the slices in “drafts” of approximately one pound weight. An operator places each draft on an insert, or “tux”, board, which is a hardboard coated either with wax or with polyethylene. The drafts are then passed to a scaling station, where they are weighed and the operator either adds or removes bacon to bring the weight within a predetermined target limit. After scaling the bacon is passed to a tux overwrap machine, which inserts the bacon into a carton and seals it. This carton is not hermetically sealed and the bacon in it does lose some moisture to the atmosphere over time. Although Rath now does use some hermetically sealed bacon containers, this packing method is agreed to be in accordance with good distribution practices. Once the bacon is weighed at the scaling station, it is not weighed again before it leaves the Rath plant, an average of 4 days, never more than 8 or 9 days, later. In determining the pass zone Rath follows the USD A procedure of subtracting from the actual weight of the draft and the tux board on which it lies the weight of a dry tux board. This method uses a “dry tare.” There is no evidence that Rath has violated federal weight standards in any way. The federal program for regulation of net weight labeling of meat and meat food products exists in part under the Wholesome Meat Act of 1967, supra. The Act added the concept of “misbrand-ing” to the prior federal meat inspection laws. 21 U.S.C. § 601(n) provides in relevant part: (n) The term “misbranded” shall apply to any carcass, part thereof, meat or meat food product under one or more of the following circumstances: * * * * * ^ (5) if in a package or other container unless it bears a label showing (A) the name and place of business of the manufacturer, packer, or distributor; and (B) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count: Provided, That under clause (B) of this sub-paragraph (5), reasonable variations may be permitted, and exemptions as to small packages may be established, by regulations prescribed by the Secretary [of Agriculture]; * * * * * * In 9 CFR 317.2(h)(2) the Secretary purported to implement § 601(n)(5): (2) The statement as it is shown on a label shall not be false or misleading and shall express an accurate statement of the quantity of contents of the container exclusive of wrappers and packing substances. Reasonable variations caused by loss or gain of moisture during the course of good distribution practices or by unavoidable deviations in good manufacturing practice will be recognized. Variations from stated quantity of contents shall not be unreasonably large. In the supermarket the California inspectors employed a different weighing method, using a “wet tare.” The California procedure is set forth in detail in 4 Cal.Admin.Code ch. 8, subch. 2, Art. 5. Briefly, the California inspectors follow a twelve-step procedure set forth in Section 2933.3 of the regulations: (1) determine the number of packages in the lot to be sampled; (2) from a table in the regulation, determine the total package sample size (e. g., 15 packages out of a lot of 300); (3) from the same table, determine the tare sample size (e. g., 2 packages out of a lot of 300); (4) record the gross weight of each tare sample package; (5) remove the usable contents from each tare sample, weigh the used, empty container, and compute the average tare Weight; (6) weigh the remaining packages in the package sample and record their weights, determining the amount of error from labeled weight for each package; (7) [not applicable to bacon]; (8) calculate the preliminary total error for the sample, and determine the arithmetical average error; (9) calculate the range of error for each sub-group of the package sample; (10) determine whether any unreasonable errors exist, and eliminate from further computations all samples whose errors exceed the preliminary average error in underweight situations by more than the amounts set forth in tables in the regulations; if the number of unreasonable errors exceeds a certain set figure for each sample size, further action, including the issuance of off-sale orders, may be undertaken. (11) recalculate the total and average error of the sample excluding the unreasonable errors; (12) “(a) If the total error as obtained from the sample is plus and is less than the value shown in Table III for the corresponding range and sample size, then a shortage may or may not exist, and additional samples may or may not be taken, depending upon the discretion of the weights and measures official. If no additional samples are taken then the procedures as set forth in the following sections shall govern the disposition of the lot. “(b) If the total error obtained from the sample is less than the above-determined value, and the error is minus, then a shortage may or may not exist, and additional samples may or may not be taken, depending upon the discretion of the weights and measures official. If no additional samples are taken the lot shall be passed. If additional samples are taken then the procedures as set forth in the following sections shall govern the disposition of the lot.” [Sec. 2933.3.12.] If an inspector cannot pass the lot based on this sampling technique or after retesting, he then may order the lot off-sale under the provisions of California Business and Professions Code § 12211: Each sealer shall, from time to time, weigh or measure packages, containers or amounts of commodities sold, or in the process of delivery, in order to determine whether the same contain the quantity or amount represented and whether they are being sold in accordance with law. # # * sif * # Whenever a lot or package of any commodity is found to contain, through the procedures authorized herein, a less amount than that represented, the sealer shall in writing order same off sale and require that an accurate statement of quantity be placed on each such package or container before the same may be released for sale by the sealer in writing. The sealer may seize as evidence any package or container which is found to contain a less amount than that represented. Evidence was adduced at the trial from various California officials, including Becker, that the county departments do not recognize variations in net weight that result from water loss during good distribution practice. Mr. Cervinka, a statistician employed by the California Department of Agriculture, testified on direct examination as an expert for Christensen that Art. 5 of the regulation, described above, is a statistically valid procedure. On cross-examination he indicated that Art. 5 does not make any distinction between products that lose water and those that do not, nor does it make provision for any weight reductions during the course of handling. On this and other evidence the district court concluded that Art. 5 uses “absolute” weight as determined by statistical methods as its measure of compliance and makes no reference in describing the steps of the weighing and calculating process to reasonable variations from label weight caused by “loss * * * of moisture during the course of good distribution practice.” The district court’s fact findings have substantial evidentia-ry support and are not clearly erroneous. F.R.Civ.P. 52(a). Becker, Christensen, and Jones do not urge error in the district court’s construction of Art. 5. Procedural History During the period September 1971 to March 1972 inspectors under the supervision of Becker and Jones visited supermarkets in Los Angeles and Riverside Counties and weighed packages of Rath bacon to determine compliance with the State statute and regulations concerning net weight labeling. Becker’s representatives ordered approximately 84 lots of bacon off sale for short weight; Jones ordered nearly 400 packages of Rath bacon off sale in the period September 29 to December 30, 1971, for the same reason. On February 17, 1972, the Riverside County Counsel brought an action in the name of the People against Rath in the Superior Court for Riverside County for an injunction under Cal.Civ.Code § 3369 and for civil penalties under Cal.Bus. and Prof.Code § 17536, alleging that Rath had committed acts of unfair competition in violation of Cal.Bus. and Prof. Code § 17500 by distributing for sale in Riverside County supermarkets the packages of bacon that Jones’ representatives had ordered off sale. On March 1, 1972, the Los Angeles County Counsel filed a similar action against Rath in the Superior Court for Los Angeles County. Rath removed both actions to federal district court within a week thereafter; but on March 20, 1972, the district court remanded the actions to the State courts, finding, at least with respect to the Riverside action, that there was no diversity of citizenship and that “[n]o substantial federal question is presented on the face of the pleadings.” Meanwhile, on March 17, 1972, Rath filed two actions in federal district court, one against the People and Becker, the other against Jones. Rath requested declarations that the California statutes and regulations impose labeling standards on meat food products prepared by Rath that are in addition to or different than the standards of the Wholesome Meat Act of 1967, specifically 21 U.S.C. § 601(n)(5) and 9 CFR 317.2(h)(2) and that California could not impose weight labeling requirements on Rath meat food products after they left the Rath plant. Rath also requested injunctions against the enforcement by Becker and Jones of labeling requirements in addition to or different than those in the Act and against the ordering off-sale or otherwise preventing the sale of Rath products for failure of the products to bear an accurate label in terms of net weight after they have left Rath’s plant. Becker, Jones, and Christensen counterclaimed for the same relief sought by the State in the state court actions. After the remands, on March 30, 1972, Rath answered the state court complaints and filed cross-complaints seeking the same relief, in virtually the same language, as Rath sought in federal court. In July 1972 Christensen intervened in both the state and federal court litigations. Becker filed in the district court motions requesting the court either to abstain from deciding the federal court action or to stay the federal action pending final determinations in the state court actions. The district court denied these motions in May 1972. On November 14, 1972, the superior court in the Riverside action dismissed Rath’s cross-complaint; Rath appealed. On the very next day, Christensen and Becker moved the district court to dismiss Rath’s action or to stay it pending decision on Rath’s state appeal. The district court denied the motions, and this court, on Christensen and Becker’s petition for a writ of prohibition, declined to disturb the district court’s assumption of jurisdiction. On April 3, 1973, the district court, after a trial on .the merits of Rath’s action against Becker and on cross-motion for summary judgment in the action against Jones, entered judgment declaring Cal.Bus. and Prof.Code § 12211 and 4 Cal.Admin.Code ch. 8, subch. 2, Art. 5 to be preempted by federal law and enjoining their enforcement. In the course of its Memorandum the court held that 9 CFR 317.2(h)(2) was invalid, and that thus the sole federal labeling standard was “accurate” weight. The court also held that accurate weight labeling standards could be applied to packages of meat and meat food products at the retail level. Cross-appeals were taken to this court. The Riverside action continued, and in January 1974, while Rath’s first appeal was still pending in the California District Court of Appeal, the superior court entered summary judgment on the complaints of Jones and Christensen against Rath; Rath appealed again. In an unreported decision in April 1974 on Rath’s first appeal, the California appellate court reversed the dismissal of Rath’s cross-complaint against Jones, holding that the federal court’s judgment was res judicata on the issue of the validity of § 12211 and Art. 5 (to the extent that it implemented § 12211). On Rath’s second appeal, in December 1974, the appellate court reversed the grant of summary judgment on the complaints and remanded the case to the Riverside superior court for trial, holding that there existed issues of fact that required trial. People v. Rath Packing Company, 44 Cal. App.3d 56, 118 Cal.Rptr. 438 (1974). The appellate court also explained further the basis of its decision on Rath’s first appeal, holding that the effect of the federal court judgment was to preclude relitigation of the narrow issue of the preemption of § 12211, and its implementation in Art. 5, by the Wholesome Meat Act. The appellate court held, 118 Cal. Rptr. at 446 n.6, that Art. 5 is not unconstitutional. Although the record does not contain any notice of the proceedings in the Los Angeles superior court action, we are informed by Rath’s reply brief that in February 1974 the Los Angeles court gave res judicata effect to the final judgment on the preemption issue and decided in Rath’s favor the issues of constitutionality and whether Becker’s ordering of Rath’s bacon off sale complied with state law. An appeal from this judgment is pending. I. Becker, Jones, and Christensen contend that the district court lacked jurisdiction of the subject matter before it, and, in the alternative, that the principles of abstention and comity required the court to stay its hand until the state court actions had proceeded to judgment. We reject both contentions. A. The question of subject matter jurisdiction may be raised by the parties at any time or by the court sua sponte. Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001 (1938); F.R.Civ.P. 12(h)(3). Becker et al. first contend that the declaratory judgment actions brought by Rath are nothing more than attempts to get collateral review of the remands to state court of the actions brought against Rath by the People which Rath had removed to the district court. 28 U.S.C. § 1447, provides: § 1447. Procedure after removal generally. (d) An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise * * *. Their second contention is that Rath’s claim for declaratory and injunctive relief in the district court is in reality a defense to the state court actions, and, as such, cannot form a basis for federal question jurisdiction under 28 U.S.C. § 1331. After the institution of Rath’s federal action Becker at al. presented these contentions to this court by way of a petition for a writ of prohibition, Becker et al. v. Real, No. 72-3037, which the court, ELY and HUFSTEDLER, Circuit Judges, denied. We find no reason to depart from that decision. Federal question jurisdiction is determined by the federal district court solely from the face of plaintiff’s complaint. Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936). Removability cannot be created by defendant pleading a counter-claim presenting a federal question under 28 U.S.C. § 1331. See 1 Barron & Holtzoff, Federal Practice and Procedure (Wright Ed.) § 102; United Artists Corp. v. Ancore Amusement Corp., 91 F.Supp. 132 (S.D.N.Y.1950). Thus, Rath’s answer and cross-complaint in the state court, raising its claim for declaratory and injunctive relief under federal law, were not before the district court when it remanded the state court actions and do not raise any issues necessarily adjudicated by the court in deciding to remand. The decision of the district court that the case does not invoke the federal jurisdiction and must be remanded precludes further litigation of the issue of the forum in which the removed case is to be litigated. Missouri Pacific Ry. Co. v. Fitzgerald, 160 U.S. 556, 583, 16 S.Ct. 389, 40 L.Ed. 536 (1896). The decision of the district court to remand has no bearing on the merits of the underlying claims. Since the district court did not make any decision with respect to the propriety of a federal forum for Rath’s claims, we cannot say that the maintenance of Rath’s claim in federal court works a circumvention of 28 U.S.C. § 1447(d). Cf. Chandler v. O’Bryan, 445 F.2d 1045, 1057 (10th Cir. 1971). Rath is not contending that the remand orders were erroneous, but only that it has a right to a federal forum for its alleged federal claims. The argument that Rath’s claims are not within the federal question jurisdiction, it not being denied that there is no diversity of citizenship, takes its roots in the statement of the Supreme Court in Public Service Commission v. Wycoff, 344 U.S. 237, 248, 73 S.Ct. 236, 242, 97 L.Ed. 291 (1952): Where the complaint in an action for declaratory judgment seeks in essence to assert a defense to an impending or threatened state court action, it is the character of the threatened action, and not of the defense, which will determine whether there is a federal-question jurisdiction in the District Court. If the cause of action, which the declaratory defendant threatens to assert, does not itself involve a claim under federal law, it is doubtful if a federal court may entertain an action for a declaratory judgment establishing a defense to that claim. This is dubious even though the declaratory complaint sets forth a claim of federal right, if that right is in reality in the nature of a defense to a threatened cause of action. Federal courts will not seize litigations from state courts merely because one, normally a defendant, goes to federal court to begin his federal-law defense before the state court begins the case under state law * * * (emphasis added [by the Court]). The doubt that the Court expresses is still with us, e. g., C. Wright, Law of Federal Courts § 18, at 62 (2d Ed. 1970). In order to appreciate the Wycoff case we must first look to the jurisdictional background of the Declaratory Judgment Act, 28 U.S.C. § 2201. The Act is procedural only, creating a new federal remedy without expanding the jurisdiction of the federal courts. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617 (1937). “ ‘Jurisdiction’ means the kinds of issues which give right of entrance to federal courts.” Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 879, 94 L.Ed. 1194 (1950). The Wycoff “test” quoted supra has its origins in Tennessee v. Union & Planters’ Bank, 152 U.S. 454, 464, 14 S.Ct. 654, 657, 38 L.Ed. 511 (1894), where the Court said, “a suggestion of one party, that the other will or may set up a claim under the Constitution or laws of the United States, does not make the suit one arising under that Constitution or those laws.” Furthermore, the complaint of the declaratory plaintiff must present a federal question “unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose.” Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724, 58 L.Ed. 1218 (1914). In Wycoff the complainant brought an action for declaratory judgment against the Utah Public Service Commission, requesting a finding that the business conducted by complainant in carrying goods between points in Utah was interstate commerce (and thus not subject to regulation by the Commission). The principal concern of the Court was the nature of the controversy presented, 344 U.S. at 244, 73 S.Ct. at 240: A multitude of rights and immunities may be predicated upon the premise that a business consists of interstate commerce. What are the specific ones in controversy? The record is silent and the counsel little more articulate. We may surmise that the purpose to be served by a declaratory judgment is ultimately the same as respondent’s explanation of the purposes of the injunction it originally asked, which is “to guard against the possibility that said Commission would attempt to prevent respondent from operating under its certificate from the Interstate Commerce Commission.” (Emphasis supplied [by the Court].) From this the Court concluded that “this dispute has not matured to the point where we can see what, if any, concrete controversy will develop.” 344 U.S. at 245, 73 S.Ct. at 241. In the portion of Wycoff quoted three paragraphs above, the Court was applying its concern that the controversy was not ripe for adjudication by pointing out a declaratory plaintiff may not create a controversy by seeking to have a federal court adjudicate federal defenses he might assert in a proceeding before a state court or administrative tribunal which is not ripe, but which is merely threatened or impending. In a case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. * * *. (Emphasis added.) Another aspect of the matter was aired in Chandler v. O’Bryan, supra. O’Bryan brought a libel action in Oklahoma state court against Chandler, a United States District Judge, on statements made by Chandler to a newspaper accusing O’Bryan of bribing judges of the Oklahoma Supreme Court. Chandler removed the action to federal district court; but the district court held that the acts alleged in the complaint were not done in performance of Chandler’s official duties as a federal judge, nor were they done under color of judicial office, and remanded the case to the state court for lack of a federal question, there being no diversity of citizenship. It is settled that Chandler’s judicial immunity defense arises under federal law. Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454 (1959). A verdict for O’Bryan was returned in the state court. Chandler then filed a declaratory judgment action in federal court seeking to have the state libel judgment enjoined and expunged, alleging his federal judicial immunity claim. The district court granted relief to Chandler, 311 F.Supp. 1121 (W.D.Okl.1969), but the 10th Circuit (by a panel of three judges of the 8th Circuit) reversed. The court found Wycoff directly applicable, and held that Chandler was seeking a separate federal adjudication of a matter which was “in reality in the nature of a defense” to the state court libel action, which was based solely on state libel law and raised no federal question itself. The action was dismissed for lack of federal jurisdiction. The instant case is different. While it is true that judgment in Rath’s favor affects the results of the,Los Angeles and Riverside actions, we cannot say that Rath’s action is premature or that Rath’s claim is merely a defense to the state court actions. The ordering off-sale of Rath’s products in September 1971 and afterward and the upward adjustment of the pass range at the sealing station at Rath’s plant, increasing the overpack of bacon necessitated by California weighing procedures, it was stipulated below, caused Rath a loss of more than $10,000. The off-sale orders themselves are sufficient State action to create an actual controversy between Rath and the state weights and measures officials. See Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 508, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972). The present controversy was not created by the institution of the state court actions against Rath, but arose independently thereof by virtue of the off-sale orders. Unlike Chandler, Rath’s claims have vitality in the absence of the litigation in state court; Rath had the right to a federal forum before the institution of the state court actions. Chandler’s federal claim was purely in the nature of a defense to the libel action. Brought without reference to the underlying state court proceeding, Chandler’s claim would be a useless gesture: no one would care whether Chandler acted under the protection accorded by the courts to his office if O’Bryan had refrained from suing him. That Rath’s claim is or can be the basis for a defense to the state court actions states a mere truism; the test is whether Rath has created a federal controversy where none existed or is seeking an adjudication of a claim which is essentially meaningful only when pleaded as a defense to the particular pending state court actions. We find neither factor present and consider that Rath has stated claims which are within the federal jurisdiction conferred on the district court by 28 U.S.C. § 1331. The Commission has plainly indicated an intent to enforce the Act; and prohibition of the statute is so broad as to deny the United States the right to ship at reduced rates, unless the Commission first gives its approval. The case is, therefore, quite different from Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291, where a carrier sought relief in a federal court against a state commission in order “to guard against the possibility,” id., 344 U.S. at page 244, 73 S.Ct. at page 240, that the Commission would assume jurisdiction. Here the statute limits transportation at reduced rates unless the Commission first gives approval. The controversy is present and concrete — whether the United States has the right to obtain transportation service at such rates as it may negotiate or whether it can do so only with state approval. B. We also hold that considerations of comity and abstention did not require the district court to relinquish jurisdiction. Comity is a principle of long standing: We live in the jurisdiction of two sovereignties, each having its own system of courts to declare and enforce its laws in. common territory. It would be impossible for such courts to fulfil their respective functions without embarrassing conflict unless rules were adopted by them to avoid it. The people for whose benefit these two systems are maintained are deeply interested that each system shall be effective and unhindered in its vindication of its laws. The situation requires, therefore, not only definite rules fixing the powers of the courts in cases of jurisdiction over the same persons and things in actual litigation, but also a spirit of reciprocal comity and mutual assistance to promote due and orderly procedure. * * *• * * * The chief rule which preserves our two systems of courts from actual conflict of jurisdiction is that the court which first takes the subject-matter of the litigation into its control, whether this be person or property, must be permitted to exhaust its remedy, to attain which it assumed control, before the other court shall attempt to take it for its purpose. Ponzi v. Fessenden, 258 U.S. 254, 259-60, 42 S.Ct. 309, 310, 66 L.Ed. 607 (1921). This circuit has defined the rule of comity as “merely of recognizing exclusive jurisdiction in the court first acquiring jurisdiction of any action.” Gregg v. Winchester, 173 F.2d 512, 513 (9th Cir. 1949). Under these rules and in the present circumstances, the principle of comity does not suggest that the district court should have declined to hear Rath’s claims. The subject matter of the litigation before us consists of the federal questions raised by Rath in its complaint. These federal questions were first taken into the control of a court when Rath filed its complaint in the district court on March 17, 1972. No state court could have acquired jurisdiction over this subject matter until Rath answered and filed its cross-complaints in the state courts on March 30, 1972. Our conclusion is reinforced by the actions of the District Court of Appeal in the Riverside action twice giving res judicata effect to the federal district court judgment. If 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_geniss

A

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". Asa Hurrial MINOR, Jr., Appellant, v. UNITED STATES of America, Appellee. No. 18408. United States Court of Appeals Eighth Circuit. March 13, 1967. Rehearing Denied April 21, 1967. Heaney, Circuit Judge, dissented. John W. Walker, Little Rock, Ark., for appellant and filed brief. Lindsey J. Fairley, Asst. U. S. Atty., Little Rock, Ark., for appellee and filed brief with Robert D. Smith, Jr., U. S. Atty., Little Rock, Ark. Before VAN OOSTERHOUT, GIBSON and HEANEY, Circuit Judges. VAN OOSTERHOUT, Circuit Judge. This is an appeal by the defendant Asa Hurrial Minor, Jr., from his conviction by a jury on Count II of an indictment charging him with the transportation of a specifically described Chevrolet automobile in interstate commerce from Indiana to Arkansas, knowing said motor ve-hiele to have been stolen in violation of 18 U.S.C.A. § 2312. Defendant was sentenced to two years imprisonment. The court on its own motion dismissed Count I of the indictment which charged interstate transportation of another automobile upon the ground that proof that such automobile was stolen was insufficient. Defendant represented himself in the trial court. His right to counsel, including right to court-appointed counsel without expense to him, was fully explained. Defendant persistently declined counsel and insisted upon representing himself. The court just prior to the opening of the trial again offered to provide counsel. Defendant has not, either in the trial or here, raised the issue that he has been deprived of his constitutional right to be represented by counsel. He is represented on this appeal by competent counsel and raises no brief point that his waiver of counsel in the trial court was not knowingly and intelligently made, nor does he in any way intimate or suggest that he has been wrongly deprived of his constitutional right to counsel. Hence, the issue of denial to defendant of his right of counsel is not now before us. Defendant urges he is entitled to a reversal for the following reasons: (1) Insufficiency of the evidence to support the guilty verdict. (2) Admission of prejudicial evidence and failure to give instruction limiting the consideration of such evidence. (3) The jury was unconstitutionally selected. None of the errors here asserted was raised in the trial court. No motion for acquittal was made; no objection was made to any evidence offered; no exception to or request for instructions was made and there was no challenge to the jury panel. Thus absent a plain error situation, there is nothing before us for review. “A trial judge ordinarily should not be held to have erred in not deciding correctly a question that he was never asked to decide.” Page v. United States, 8 Cir., 282 F.2d 807, 810; Petschl v. United States, 8 Cir., 369 F.2d 769. Defendant attempts to excuse his failure to preserve errors here asserted by a contention that he is unskilled and unknowledgeable in the law. It is well settled that the right to counsel may be waived as long as the waiver is knowingly and intelligently made. Moore v. State of Michigan, 355 U.S. 155, 161, 78 S.Ct. 191, 2 L.Ed.2d 167; Carter v. People of State of Illinois, 329 U.S. 173, 177, 67 S.Ct. 216, 91 L.Ed. 172; Johnson v. Zerbst, 304 U.S. 458, 463, 58 S.Ct. 1019, 82 L.Ed. 1461. The Constitution does not force an unwanted attorney upon a defendant. Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268; United States v. Washington, 3 Cir., 341 F.2d 277, 285. The accused may before trial elect to conduct his own defense. Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 92 L.Ed. 1356; United States ex rel. Maldonado v. Denno, 2 Cir., 348 F.2d 12, 15; Johnson v. United States, 8 Cir., 318 F.2d 855, 856; Butler v. United States, 8 Cir., 317 F.2d 249, 258. However, as aptly stated by the Court of Appeals for the Fifth Circuit: “Once it is found * * * that such an accused has properly waived his right to counsel, the effects flowing from that decision must be accepted by him, together with the benefits which he presumably sought to obtain therefrom.” Smith v. United States, 5 Cir., 216 F.2d 724, 727. Thus, when accused elects to waive his constitutionally guaranteed right of counsel, he does so at his own risk and must accept the consequences of his action. United States v. Redfield, D.C.Nev., 197 F.Supp. 559, 572, affirmed on the basis of the trial court’s opinion, 9 Cir., 295 F.2d 249. Sound policies of judicial administration as prescribed by the Rules of Criminal Procedure should apply to all trials whether conducted by counsel or by a defendant. Otherwise, defendant would in practical effect be given two trials, one in which he conducts his own defense and if unsuccessful, another trial with representation by counsel. In the event the trial results in a clear miscarriage of justice, the 52(b) plain error rule affords a defendant representing himself all of the protection to which he is justly entitled when he has knowingly and intelligently elected to waive counsel and has deliberately chosen to act as his own attorney. A careful examination of the record shows that no plain error has been committed and that defendant has had in all respects a fair trial. Defendant by representing himself secured many advantages that would not have been available to him had he been represented by ■counsel. Defendant was permitted to testify in narrative form and was permitted to say everything that he desired to without restriction. He made his own ■opening statement to the jury, his own closing argument, and he was allowed to supplement his argument after the court had instructed the jury. Defendant cross-examined the witnesses and was given much more freedom than would have been afforded counsel. As heretofore pointed out, the court on its own motion at the close of the Government’s case dismissed Count I and advised the defendant that he would not have to meet such charge. On several occasions, the court restricted the Government’s testimony on its own motion. The instructions given are simple, easily understood and fair. Resort to the plain error rule is appropriate only in exceptional cases where such course is necessary to prevent a clear miscarriage of justice. Petschl v. United States, supra; Page v. United States, supra; Johnson v. United States, 8 Cir., 362 F.2d 43, 46; West v. United States, 8 Cir., 359 F.2d 50, 53; Gendron v. United States, 8 Cir., 295 F.2d 897, 902. We find no plain error requiring a reversal has been committed and affirm the conviction. The evidence is clearly sufficient to support the guilty verdict. Title 18 U.S.C.A. § 2312 reads: “Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.” There is direct proof from the owner that the precise car involved in this offense was stolen from the Placke Chevrolet Company in St. Louis, Missouri, on September 24, 1964, and was reported stolen to the police at 7:30 p. m. on that date. The invoice of the manufacturer to the Placke Chevrolet Company showing ownership of the car in such company was introduced. After the car was recovered by the authorities, it was returned to such owner. Such evidence is not contradicted. Defendant himself stated to the jury, “I believe this vehicle was stolen on the 24th of September. I came into acquisition of it about one month later.” Defendant specifically admitted that he transported the car from Indiana to Arkansas where it was recovered. Thus the only element of the offense with respect to which any dispute exists is whether defendant knew the automobile was stolen at the time he transported it to Arkansas. The court in an instruction to the jury, not excepted to and not asserted to be error upon this appeal, told the jury: “Possession of property recently stolen, if not satisfactorily explained, is ordinarily a circumstance from which the jury may reasonably draw the inference and find, in the light of surrounding circumstances shown by the evidence in the case, that the person in possession knew that the property had been stolen, * * * ” The foregoing instruction contains a proper statement of the applicable law. Lee v. United States, 8 Cir., 363 F.2d 469, 474; Cloud v. United States, 8 Cir., 361 F.2d 627, 629; Harding v. United States, 8 Cir., 337 F.2d 254, 257. As we point out in Harding, supra, the instruction here given differs' materially. from the supplemental instruction in Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350, relied upon by the defendant. Defendant’s defense is based upon his testimony that he was holding the car as security for a loan to Ellsworth Turner. He said that he had a chattel mortgage on the car but produced no evidence to prove that he did. The jury was not compelled to accept defendant’s uncorroborated explanation of his possession of the car. Defendant’s contention that plain error was committed in receiving certain evidence, not objected to, is without merit. Defendant went to trial on a two-count indictment charging two transportation offenses involving separate stolen automobiles. Such counts were properly joined in the same indictment under Rule 8, Fed.R.Crim.P., and no Rule 14 request for severance was made. Trial upon all counts of indictments such as this is the usual procedure. While Count I was before the jury, some evidence was introduced with respect to the stealing of the car there involved and the registration and transportation thereof. The transactions involved in each of the counts were closely related. Both cars were discovered at the same place and at the same time. The evidence offered was competent to support Count I at the time it was offered. Count I was subsequently dismissed by the court on its own motion. The defendant has failed to demonstrate that any prejudicial error was committed in the reception of such evidence. There is some hearsay testimony as to reports received by officers that the cars were stolen and that the license number and registration certificate on the Chevrolet did not pertain to the car involved in fcount II but was issued for a 1950 Chevrolet owned by the defendant. No plain error was demonstrated. Such evidence is merely cumulative. The theft is shown by the direct testimony of the owner and the registration is shown by the license bureau officer’s testimony. Complaint is also made of receiving evidence as to registration from the registration official without the introduction of the exhibits. The exhibits were in court. If objection had been made, the exhibits could have been readily identified and introduced. Defendant could also have introduced the exhibits. The Government made out a prima facie case by showing defendant’s admitted possession of recently stolen property. The registration evidence was not essential to the Government’s case. In any event, such evidence was not prejudicial. Defendant’s final contention that the jury was not selected in a constitutional manner, in that the panel does not represent a fair cross section of the community, is not supported by the record. No challenge was made nor was any evidence offered in support thereof in the trial court. All we have before us is an attachment to defendant’s brief showing a list of jurors called to serve on October 17, 1966, and purporting to list the occupations of most of such jurors. This is not the jury that tried the defendant. He was tried on April 5, 1966. We are satisfied that there is no record support for defendant’s contention. Even if the list submitted on appeal is considered, it falls far short of meeting the burden resting upon the defendant to show that the jury which convicted him was improperly constituted. We hold that none of the errors asserted upon this appeal were properly raised in the trial court and that none of the errors urged constitute plain error under Rule 52(b). The defendant has had in all respects a fair trial. The judgment of conviction is affirmed. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:

songer_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". John S. MARCHANT, Plaintiff, Appellant, v. The DAYTON TIRE & RUBBER CO., Defendant, Appellee. Nos. 87-1487, 87-1634. United States Court of Appeals, First Circuit. Heard Oct. 7, 1987. Decided Jan. 6, 1988. Joseph T. Papetti with whom Stephen M. Ouellette, Orlando & Associates, Gloucester, Mass., and Peter A. Donovan, Boston, Mass., were on brief, for plaintiff, appellant. Francis H. Fox with whom David A. Schecker and Bingham, Dana & Gould, Boston, Mass., were on brief, for defendant, appellee. Before COFFIN, Circuit Judge, BROWN, Senior Circuit Judge, and TORRUELLA, Circuit Judge. Of the Fifth Circuit, sitting by designation. COFFIN, Circuit Judge. Plaintiff-Appellant, John Marchant, was injured when a tire manufactured by the defendant-appellee, Dayton Tire & Rubber, exploded while plaintiff was mounting it onto his truck. Following a jury trial at which defendant was found liable for damages for a breach of warranty on the tire, the trial judge entered a judgment for the defendant notwithstanding the verdict. Plaintiff appeals the judgment n.o.v. I. On April 28,1982, plaintiff was mounting a tire manufactured by defendant on a light truck wheel rim. Plaintiff had gotten the tire, which seemed to be in excellent condition, out of storage at his place of employment, J & P Trucking Co. He was mounting the second of two tires when the explosion occurred. Plaintiff had been mounting the actual rubber tire onto the wheel of the truck. He had learned to perform this procedure during previous employment in garages, and had performed this operation many times previously. The trial judge described the operative facts as follows: The process, oversimplifying, involves lubricating the deflated tire, prying it into position within the “well” of the wheel, and applying air pressure to force the wire “bead” of the tire outward, over an interior “hump,” until it is seated firmly along the outer rim of the wheel. On this occasion plaintiff had just completed this process and was about to place the tire on his truck, when he discovered an air leak. He removed the tire, repaired the leak, and started again. He placed the tire on the floor, and while he was standing over it and reapplying air, the tire exploded. Subsequent examination of the tire showed that the bead had been broken, presumably during the second mounting, although it might have been damaged during the first. Defendant’s witness testified that, if the bead gets “hung up” during the mounting process, too much air pressure may break it. It is industry-wide practice to advise against exceeding 40 lbs. per square inch (p.s.i.). Plaintiff estimated that he inflated the tire to no more than 55 p.s.i. on the first mounting of the tire, and to a lower pressure on the second. Plaintiff claims that the accident resulted from improper design of the bead. The bead, embedded in the rubber, consists of a number of circles of several wires that ultimately overlap at their ends. Plaintiffs expert testified that there should have been no overlap. Defendant conceded that if excessive air pressure during mounting damaged the bead, it was most likely to break at an inside end of the overlap. However, its position was that the likelihood of beads being damaged was extremely remote, so remote that all domestic manufacturers, producing millions of tires a year, uniformly made their beads in this manner. Plaintiffs expert conceded that this was, and still is, the domestic practice, and stated he had criticized it “since the late ’60’s,” and complained to the Department of Transportation in 1982. He pointed to a French manufacturer, Michelin, that uses many turns of a single wire, with the ends socket-welded to avoid the overlap. There was no evidence that even Michelin had adopted this procedure in 1973, the year of the present tire. At the same time, there would seem nothing so mechanically difficult about the process that it would not have been feasible earlier. Marchant v. Dayton Tire & Rubber Co., No. 85-1122-C-A, slip op. at 2-4 (D.Mass. May 6, 1987). There was further testimony that the plaintiff had never noticed any warning concerning the maximum air pressure for safe mounting of defendant’s tire, but that he assumed from experience that no more than about 65 p.s.i. should be used. The jury found for the plaintiff following a three-day trial, and awarded him $600,000 in damages. The district court granted the defendant’s motion for judgment notwithstanding the verdict. It found that the plaintiff had failed to establish a breach of warranty either on a theory of design deficiency or on the alternative theory of failure to warn. The district court also conditionally ordered a new trial, in the event that the j.n.o.v. was reversed on appeal. The court found that no reasonable jury, upon proper argument, would have rejected the affirmative defense that plaintiff’s own unreasonable behavior was the proximate cause of his injury. The judge added that his decision to order a new trial was influenced by plaintiff’s counsel’s “improper closing” to the jury. Slip op. at 10-12. We address each of these issues in turn, beginning with the district court’s judgment j.n.o.v. on the breach of warranty cause of action. II. The Massachusetts Legislature has transformed warranty liability “into a remedy intended to be fully as comprehensive as the strict liability theory of recovery that has been adopted by a great many other jurisdictions.” Back v. Wickes, 375 Mass. 633, 639, 378 N.E.2d 964 (1978). Massachusetts law of warranty is thus now “congruent in nearly all respects with the principles expressed in Restatement (Second) of Torts § 402A (1965).” Id. at 640, 378 N.E.2d 964. This variant of “strict liability” offers two methods of establishing liability: proving a design defect, and demonstrating a failure to warn adequately of a dangerous condition. A. A manufacturer has the duty to design products “so that they are reasonably fit for the purposes for which they are intended.” Smith v. Ariens Co., 375 Mass. 620, 624, 377 N.E.2d 954 (1978). A product is “reasonably fit” for its purposes if the design prevents the “reasonably forseeable risks attending the product’s use in that setting.” Back v. Wickes, 375 Mass, at 641, 378 N.E.2d 964. There is no real question in this case that plaintiff’s use was forseeable. This does not, however, end the inquiry. The “fitness” of the product “is a question of degree, depending largely, although not exclusively, on reasonable consumer expectations.” Id. at 642, 378 N.E.2d 964. Even where the product design creates a risk of foreseeable harm, “[t]he question is whether this risk was ‘unreasonable.’ ” Raney v. Honeywell, Inc., 540 F.2d 932, 935 (8th Cir.1976). The Supreme Judicial Court of Massachusetts has explained how this determination should be approached: In deciding this issue, the jury must weigh competing factors much as they would in determining the fault of the defendant in a negligence case. The inquiry focuses on product characteristics rather than on the defendant’s conduct, but the nature of the decision is essentially the same. In evaluating the adequacy of a product’s design, the jury should consider, among other factors, “[1] the gravity of the danger posed by the challenged design, [2] the likelihood that such danger would occur, [3] the mechanical feasibility of a safer alternative design, [4] the financial cost of an improved design, and [5] the adverse consequences to the product and to the consumer that would result from an alternative design.” Back v. Wickes, 375 Mass, at 642, 378 N.E.2d 964 (quoting Barker v. Lull Eng’r Co., 20 Cal.3d 413, 431, 143 Cal.Rptr. 225, 573 P.2d 443 (1978)) (citations omitted). In balancing these “pertinent factors,” the jury must make a judgment as to the “social acceptability of the design.” Back, 375 Mass, at 642, 378 N.E.2d 964. In the present case, plaintiff offered evidence to show the gravity and likelihood of danger posed by the design. Plaintiff also introduced the current Michelin tire in evidence, to show the “feasibility” of an alternative design at the time of manufacture. The district judge acknowledged that the Michelin design was not “so mechanically difficult ... that it would not have been feasible earlier.” Slip op. at 4. The plaintiffs expert testified that the Michelin design was a safer alternative. Defendants concentrated on showing that the Michelin design would not have decreased the chances of explosion. Neither party offered any evidence as to the costs and consequences of the alternative design, the “fourth” and “fifth” factors in the Back v. Wickes analysis. According to both the district court and the defendant, this omission of evidence as to the “trade-offs” is fatal to the plaintiffs case. The defendant introduced testimony that no domestic manufacturer was using the alternative design at the time the tire in question was built. The court reasoned that the plaintiff then had the burden to offer evidence “of the cost of the Michelin structure, or how much stronger the Michelin design would be, or whether there were any other performance or safety characteristics that would favor or disfavor its use. One or more of these factors presumably was of moment, in light of the fact that no domestic manufacturer was using it.” Slip op. at 4-5. Defendant’s expert did concede that the vast majority of bead failures occurred at the overlap, and plaintiff’s expert testified that he had never seen such a failure on a Michelin “non-overlapped” tire. The judge insisted that this alone did not establish a case for liability, without further evidence proving that the “trade-offs” made the alternative design more reasonable. In essence, the court insisted that the plaintiff prove to the jury the cost/benefit efficiency of the alternative design. Defendant also relied, both in its brief and at oral argument, on the proposition that the plaintiff has the burden of presenting to the jury the Back v. Wickes factors. See, e.g., Appellee’s Brief at 18. This is not, however, the holding of Back v. Wickes. The question which prompted the listing of relevant factors in that case was whether evidence could be introduced to show what the trade practices were at the time. The Supreme Judicial Court ruled that such evidence was relevant, because it was probative of the reasonableness of the challenged design. Id. 375 Mass, at 642-43, 378 N.E.2d 964. Even this evidence, however, is not dispositive, and “counsel may argue that industry standards can and should be more stringent.” Id. at 643, 378 N.E.2d 964. Thus, plaintiff’s case is not automatically defeated merely because the alternative design was not being used at the material time. The trial judge properly instructed the jury here that the “competing factors” should be balanced when deciding reasonableness of design. Such an instruction is all that Back v. Wickes requires. There is no authority for the proposition that these factors must be introduced by the plaintiff, nor that the plaintiff must prove that the alternative design was efficient on a cost/benefit basis. But cf. Oberst v. Int’l Harvester Co., Inc., 640 F.2d 863, 865 (7th Cir.1980) (under Illinois law, plaintiffs must prove that alternative design was “feasible” “in terms of cost, practicality and technological possibility,” where “feasibility” includes elements of economy, effectiveness and practicality); Lolie v. Ohio Brass Co., 502 F.2d 741, 744 (7th Cir.1974) (same). Defendant’s theory on the burden of proof is further belied by the Supreme Judicial Court’s dispositions in Smith v. Ariens Co., 375 Mass. 620, 377 N.E.2d 954 (1978), and doCanto v. Ametek, Inc., 367 Mass. 776, 328 N.E.2d 873 (1975). In those cases, the SJC specifically held that in some circumstances, the plaintiff need not present any expert testimony at all in order to demonstrate unreasonable design. A jury might be able to find that the challenged design breaches the duty of reasonable care in design simply on the basis of its own lay knowledge. 375 Mass, at 625, 377 N.E.2d 954; 367 Mass, at 782-83, 328 N.E.2d 873. In Smith, decided the same day that the Back v. Wickes catalogue of factors was announced, the SJC upheld a verdict that a snowmobile was designed such that an “unreasonable risk of harm” was created, where the only evidence relied upon by the jury was the snowmobile itself. Id. Not only did the plaintiff in Smith fail to address the costs and efficiencies of alternative designs, but no alternatives were even suggested. See also Raney v. Honeywell, Inc., 540 F.2d 932, 935 (8th Cir.1976) (reiterating “relevant factors to be considered,” but upholding jury verdict even without plaintiff evidence of alternatives’ costs and benefits). We conclude, then, that unless the Supreme Judicial Court was taking with one hand what it was providing with the other when it issued the Back and Smith opinions, plaintiff here has presented sufficient evidence for a finding of an unreasonable defect. If the defendant believed that a cost/benefit analysis of alternatives would demonstrate its design to be reasonable, then it was its responsibility to produce evidence in support of such a theory. It might, e.g., have offered evidence to explain why no one in the industry was using the Michelin design in 1973. Its failure to do so should not redound to the detriment of the plaintiff. On this record, the jury’s verdict must be upheld on the plaintiff’s theory of breach through defective and unreasonable design. B. Plaintiff’s alternative ground for liability also supports the verdict. A product is “unreasonably dangerous and, therefore, ... not fit for the purposes for which such goods are used, if foreseeable users are not adequately warned of dangers associated with its use.” Hayes v. Ariens, 391 Mass. 407, 413, 462 N.E.2d 273 (1984). The defendant offered evidence that it had distributed to tire dealers a chart prepared by the Rubber Manufacturers Association that warned not to inflate tires above 40 p.s.i. when mounting. No warning was placed on the tire or distributed to every forseeable mounter of the tire. The plaintiff, who was a forseeable user, testified that he had never inflated a tire while mounting at more than about 65 p.s.i. The jury was within its rights to decide that the poster distributed to dealers was inadequate to warn forseeable consumers, especially if the plaintiff had not noticed the warnings on the poster in all his years in the business. The district court acknowledged that questions regarding the adequacy of warnings are “are ‘almost always an issue to be resolved by a jury.' ” Slip op. at 7 (quoting MacDonald v. Ortho Pharmaceutical Corp., 394 Mass. 131, 140, 475 N.E.2d 65 (1985)). The court nevertheless found that the jury’s verdict could not stand, again because the plaintiff had not introduced any evidence to rebut the industry-wide practice of not providing warnings. The plaintiff's alleged dereliction once more was to ignore the “trade-offs” which would have to be made if a more specific warning was provided, according to the trial judge. Slip op. at 7-8. However, contrary to the court’s assertions, we do not think that the process by which the industry makes decisions regarding proper warnings on its products is such a “specialized area” that “it would be beyond the province of a lay jury, unaided, to make a substantive finding outweighing that of an entire industry.” Slip op. at 8. The test is whether the warning is comprehensible to the average user and whether it conveys a fair indication of the nature and extent of the danger to the mind of a reasonably prudent person. MacDonald, 394 Mass, at 140, 475 N.E.2d 65. “Few questions are ‘more appropriately left to a common sense lay judgment than that of whether a written warning gets its message across to an average person.’ ” Id. (quoting Ferebee v. Chevron Chem. Co., 552 F.Supp. 1293, 1304 (D.D.C.1982)). Just as in the area of defective design, the jury is perfectly capable of assessing whether the proposed warning would be unreasonable because of possible cost or confusion. Defendant argues that the plaintiff had the burden of showing how a particular hypothesized alternative warning would have prevented the accident in this case. But if the jury may use its lay knowledge to decide that a particular design is defective, it can just as easily infer that a warning on the tire wall would have alerted plaintiff to the dangers of inflating over 40 p.s.i. Cf. Hayes, 391 Mass, at 409-10, 462 N.E.2d 273 (even without specific evidence of alternative warnings, jury could have found that reasonably prudent manufacturer of snowmobile would have affixed a different warning). This is particularly true where, as here, the user would have had numerous opportunities to notice such a warning, since he had had extensive exposure to the tires in the past. The jury’s verdict was therefore supported by the evidence on the warning theory as well; defendant’s failure to demonstrate why other warnings might have been inefficient or ineffective does not change the fact that plaintiff introduced sufficient evidence from which the jury could infer inadequate warning in this case. The trial court’s judgment notwithstanding the verdict is vacated, and the district court is instructed to reinstate the verdict as to liability. III. The district court also ordered, in the alternative, that a new trial be granted, on the ground that an affirmative defense was so clearly made out that no reasonable jury should have rejected it. In order to establish an affirmative defense in this context, the defendant must prove “that the plaintiff knew of the product’s defect and its danger, that he proceeded voluntarily and unreasonably to use the product and that, as a result, he was injured.” Allen v. Chance Manufacturing Co., 398 Mass. 32, 34, 494 N.E.2d 1324 (1986). The defendant in this case, however, could not possibly establish the affirmative defense to the claim of defective design, because there is no evidence that the plaintiff was even aware of the dangerousness of the bead design. As to the claim of breach for failure to warn of a dangerous condition, the trial judge decided that the plaintiff had acted “unreasonably” under the Allen standard, in that he “knew that too much air could cause a tire to explode, that mounting a tire called for special knowledge, and ... that instructions were available, but stood over the tire administering a high amount of pressure without consulting them.” Slip op. at 9-10. The plaintiff testified that he had never before inflated a tire during mounting to more than about 65 p.s.i., because he estimated that a greater pressure would be unsafe. He also testified that he thought that the tire in question at no time had more than 55 p.s.i. while he was mounting it, and that the tire was at approximately 40 p.s.i. when it exploded. One of the defendant’s experts contended that plaintiff might have inadvertantly pumped in over 60 p.s.i. Plaintiff’s expert testified that not only was plaintiff’s mounting proper, but also that the bead would not burst until the tire had reached pressures of approximately 320 p.s.i. One of the defendant’s experts estimated the “bursting pressure” of the tire at 160 p.s.i. Another expert testified that the bead could not be broken at pressures lower than 60 p.s.i., presuming the tire had been properly mounted. From all this testimony, the jury properly could have concluded that plaintiff reasonably thought that the tire could not explode at pressures below 65 p.s.i., and that his inflation of the tire that day was below this figure. They could have also found that plaintiff, who had performed this process at least 20 or 30 times previously, was not acting unreasonably in his mounting procedure, despite the fact that he did not stop to check instructions. In fact, such a precaution would be rarely taken by someone with plaintiff’s experience. Moreover, because there was testimony that pressures far above the 55 p.s.i. plaintiff estimated he used would be necessary to cause the bead to explode, the jury could have decided that the air pressure alone was not the cause of the bead’s failure. In that case plaintiff's behavior, whether or not it was reasonable, would not have been the proximate cause of the explosion and his injuries. See Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 356, 446 N.E.2d 1033 (1983). The jury’s verdict reflects an appropriate rejection of the defendant’s affirmative defense. We have accepted the truism that a trial judge is not a thirteenth juror who may set aside a verdict because he interpreted the evidence to reflect another result. See, e.g., United States v. Rothrock, 806 F.2d 318, 322 (1st Cir.1986); Payton v. Abbott Labs, 780 F.2d 147, 153 (1st Cir.1985); Borras v. Sea-Land Service, Inc., 586 F.2d 881, 887 (1st Cir.1978). Despite our general deference to the trial court, this circuit “puts definite limits upon a district court’s right to upset a jury verdict,” so as to “protect the fragile power given to the jury.” Rothrock, 806 F.2d at 322. We have thus developed the following standard of review: Where an order for a new trial is predicated on the district court’s evaluation of the weight of the evidence rather than its concern about the effect of prejudicial acts that may have resulted in an unfair trial, we will exercise a more stringent standard of review, Payton, 780 F.2d at 152, requiring the court to refrain from interfering “ ‘unless it is quite clear that the jury has reached a seriously erroneous result.’ ” Borras, 586 F.2d at 887, quoting 6A J. Moore, Moore’s Federal Practice 1159.-08[5], at 59-160 to 161. Rothrock, 806 F.2d at 322. In this case, we think that it was improper for the court to second-guess the jury’s evaluation of the evidence on the affirmative defense, for reasons we have explained above. The jury’s result was not “seriously erroneous.” IY. The district court’s final (and perhaps pivotal) ground for a new trial is that plaintiff’s counsel indulged in many errors during closing argument. Under the Roth-rock standard quoted above, we do not exercise as strict a standard of review for an order of new trial when that order is predicated on concern about the effect of prejudicial acts that may have resulted in an unfair trial. The misrepresentations of evidence alluded to by the judge, however, do not rise to the level necessary to erase the jury’s otherwise reasonable verdict on liability. Most of these alleged errors consisted of interpretations by counsel of the inferences suggested by the evidence. At two separate points in counsel’s argument, the court specifically instructed the jury to ignore counsel’s opinions as to the credibility or interpretation of evidence. Again in its jury charge, the court criticized counsel “both in general for stating his opinion, which is fundamentally off limits, and also with respect to a particular instance when he spoke of the evidence which did not at all coincide with my memory.” (A. 291.) We think that these admonitions were sufficient to offset any slight prejudice that may have been engendered by counsel’s remarks. We therefore set aside the order for a new trial. Y. The jury awarded plaintiff $600,-000 in damages, although his only substantial injury was a broken wrist. The trial judge generously characterized the jury’s award as “very high.” Slip op. at 12. The plaintiff has undergone extensive physical therapy on his wrist, with prospects of further therapy in the future. Plaintiff was also required to undergo surgery where a cube of bone was transferred from his hip to his wrist, a procedure that might be repeated in the near future. He was confined to bed for four weeks following the first procedure, and had to go without work for approximately two years. He still must soak and heat the wrist on a daily basis. Plaintiff had, until the accident, been in the process of investing time, money and effort into learning the trade of carpentry. He had planned to start his own carpentry business, but is prevented by his injury from pursuing that career. While plaintiff thus has been denied the livelihood to which he had aspired, he evidently has not suffered significant financial losses on account thereof. His employment as an operator of heavy equipment has provided a higher salary than he would normally have realized as a carpenter. Plaintiff introduced evidence, however, that this alternative employment is possibly more provisional and uncertain than carpentry, because of the indeterminate future effects of the health of the industry, the weather, and plaintiff’s continued abilities to work with heavy equipment despite his injuries. Plaintiff also testified as to his pain and suffering as a result of the injury. We think that, in light of this evidence, $600,000 in damages is so excessive as to warrant our intervention. The evidence of medical expenses and lost wages indicates special damages totaling at most $50,000. Even accounting for future damages, $550,000 for pain and suffering is not reasonable in these circumstances; it is “so grossly disproportionate to the injuries ... as to be unconscionable.” Laaperi v. Sears, Roebuck & Co., Inc., 787 F.2d 726, 735 (1st Cir.1986). The verdict is not “within the universe of possible awards which are supported by the evidence.” Clark v. Taylor, 710 F.2d 4, 13 (1st Cir.1983). We conclude that a new trial on damages is appropriate here. However, we condition this holding on plaintiffs declining to remit half of the total amount awarded by the jury. We think that $300,000 represents the highest reasonable total of damages for which there is adequate evidentia-ry support in this case. See Laaperi, 787 F.2d at 734. Conditioning a new trial on such a remittitur comports with the “maximum recovery rule” adopted by this and other circuit courts. See, e.g., Liberty Mutual Ins. Co. v. Continental Casualty Co., 771 F.2d 579, 588-89 (1st Cir.1985); Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033, 1046-47 (5th Cir.1970). Plaintiff has the privilege under the Seventh Amendment of choosing to take his chances on a new trial in the hope that a second jury might return a verdict for a higher amount. If, however, plaintiff opts to remit half of the general verdict, defendant would not in any way be prejudiced. Cf. Liberty Mutual, 771 F.2d at 588. The remaining total is a reasonable one which cannot be challenged; the remittitur “has the effect of merely lopping off an excrescence.” Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603 (1935). Accordingly, the district court shall reinstate the verdict of the jury on liability. The judgment notwithstanding the verdict is vacated. A new trial shall be ordered on damages only if plaintiff decides not to remit $300,000 (plus any interest accrued thereon) from the general verdict of $600,000. . Plaintiff brought this action on alternative theories of negligence and breach of warranty. The judge’s charge to the jury did not specify which causes of action the jury was being asked to rule on. According to the district court, plaintiff waived the negligence count. The defendant thought, on the other hand, that the negligence count was the only theory on which the jury had been charged. The plaintiff contends that it did not waive either count, and that the jury charge reflects both theories. All discussion of these matters seems to have taken place off the record. We agree with the district court that the jury was charged on a warranty theory, even though "a small portion of the charge might be read as sounding in negligence." Slip op. at 1 n. 1. Because we conclude that the verdict should stand on the warranty cause of action, we need not reach the question of whether the jury verdict further supports a finding on negligence. The plaintiffs recovery would not be enhanced by the additional finding of negligence. . Appellee also contends that the Michelin tire was insufficient to establish an alternative design because there was no evidence that it was actually available at the time that the tire in question was manufactured. The alternative need not be in fact available, however. The Back test is one of feasibility. There is no. dispute here that the Michelin design was feasible in 1973. All the jury must find is that a more reasonable design than the one in question could have been produced. As we explain below, though the absence of the alternative design in the industry might be probative of its unreasonableness, such an absence is not dis-positive on the issue of feasibility. . The court’s charge was as follows: Some precautions ... may not be practical, either because the expense would be so great that the article would be too expensive for purchasers or a precaution might spoil the utility. A child might put his hand in the toaster and burn it. This could be prevented by some kind of a guard perhaps, but who would buy such a toaster? There must be a reasonable limit. [Y]ou may ask yourself did the defendant make the bead rings as safe as was reasonable? What were the alternatives? You may consider the likelihood of the danger and you may consider the extent, the seriousness, of the danger. In your weighing of what is a reasonable product you may properly look to the industry at large as a guide. It is not necessarily a guide. Did all of them go wrong? . We note in passing that it makes sense not to place upon the plaintiff the initial burden of showing the relative efficiency and cost of the alternative design. The defendant has the actual knowledge of why certain designs were chosen over others, and it cannot be presumed that this specialized knowledge could be readily discerned by the plaintiff. We do not mean to suggest, however, that the burden of proof is shifted to the defendant as soon as the plaintiff introduces evidence of a viable alternative. The jury is free to weigh all of the Back factors on the evidence before it. As the trial judge suggested in his jury charge in this case, the jury could simply decide that the proposed alternative design is self-evidently unreasonable, just as it could conclude that a challenged product is defective without any evidence of viable alternatives. . There is no suggestion in the record that an intermediary’s failure to warn was a superseding cause of the injury. See MacDonald, 394 Mass, at 135-36, 475 N.E.2d 65. Plaintiff, whose job it was for many years to perform this precise operation, is exactly the sort of "consumer” whose use of the tire for mounting purposes is most forseeable. Reliance on an intermediary to warn such a user would not be reasonable. If, however, the tire had been sold to a person untrained in mounting, there might be an argument that the manufacturer reasonably relied on the seller to provide the warning. In this case, however, there is no evidence that the defendant provided proper warning even to those persons who would most likely be mounting the tire on a wheel. . It should also be noted that trial judge seemed to have considered this factor only insofar as it contributed to what he viewed as the jury’s improper verdict on the affirmative defense. Slip op. at 10. He explicitly noted that he was not treating counsel’s remarks as an independent ground for new trial, but only as a "makeweight” within his analysis of the verdict on the affirmative defense. Id. at 10 n. 5. Because we have already found that verdict to be sound, we do not think it appropriate to presume that the district court would have granted a new trial solely on the basis of the closing argument. . It might be argued that setting a maximum possible figure on remittitur is impossible in a case involving unliquidated damages such as pain and suffering. See, e.g., Hulett v. Brinson, 229 F.2d 22, 25 (2d Cir.1955). Cf. Kolb v. Goldring, Inc., 694 F.2d 869, 875 (1st Cir.1982) (where defects in award are “readily identified and measured,” remittitur more appropriate, because "[a]djustment of the award is fairly mechanical and does not interfere with the jury’s function”). But this assumption is probably merely a vestige of the obsolete belief that appellate review is always inappropriate as to these types of damages. See 11 C. Wright & A. Miller, Federal Practice and Procedure § 2820, at 134-35 (1973). It is now not uncommon for appellate courts to prescribe remittitur in such a case. See, e.g,, Sant’s Style Shop v. Cosmos Broadcasting Corp., 694 F.2d 998, 1008 (5th Cir.1982); Keyes v. Lauga, 635 F.2d 330, 336 (5th Cir.1981). Of course, we cannot pretend to simple precision in establishing a maximum reasonable amount of pain and suffering damages. We believe, however, that $300,000 is a very generous estimate of the outer bounds of a reasonable award in this case. 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_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. BROWN et al. v. BOARD OF EDUCATION OF TOPEKA et al. No. 8. November 24, 1952. Robert L. Carter, Thurgood Marshall, Spottswood W. Robinson, III, George E. C. Hayes, George M. Johnson, William R. Ming, Jr., James M. Nabrit, Jr. and Frank D. Reeves for appellants. Per Curiam. This action was instituted by the appellants attacking a Kansas statute which authorized segregation in the schools of that State. It was urged that the State of Kansas was without power to enact such legislation, claimed by appellants to be in contravention of the Fourteenth Amendment. In the District Court, the State, by its Governor and Attorney General, intervened and defended the constitutionality of the statute. The court upheld its validity. In this Court, the appellants continue their constitutional attack. No appearance has been entered here by the State of Kansas, the Board of Education of Topeka, and the other appellees; nor have they presented any brief in support of the statute’s validity. The Court has been advised by counsel for the Board of Education that it does not propose to appear in oral argument or present a brief. Because of the national importance of the issue presented and because of its importance to the State of Kansas, we request that the State present its views at oral argument. If the State does not desire to appear, we request the Attorney General to advise whether the State’s default shall be construed as a concession of invalidity. 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_genapel1

A

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. HEALY-TIBBITTS CONSTRUCTION COMPANY, Plaintiff/Appellee, v. HAWAIIAN INDEPENDENT REFINERY, INC., Defendant/Third-Party Plaintiff/Appellant, and Bechtel, Inc., Third-Party Defendant. No. 80-4270. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 19, 1981. Decided March 31, 1982. Alexander C. Marrack, Hoddick, Reinwald, O’Connor & Marrack, Honolulu, Hawaii, for defendant/third-party plaintiff/appellant. Felix A. Maciszewski, Honolulu, Hawaii, for plaintiff/appellee. Before ALARCON, POOLE and FERGUSON, Circuit Judges. FERGUSON, Circuit Judge: Healy-Tibbitts Construction Company sued Hawaiian Independent Refinery, Inc. (“HIRI”) for damages plus interest, costs, and attorneys’ fees in an action allegedly arising out of performance of a construction contract. The original complaint listed seven counts, five of which were in contract, two of which were arguably in tort. At trial, defendants prevailed on all counts. Pursuant to the judgment on the complaint, HIRI submitted a bill of costs, including attorneys’ fees to be taxed to the losing party in actions in the nature of assumpsit pursuant to Hawaii Rev.Stat. § 607-14 (1972). The court awarded HIRI its costs, but denied the statutory attorneys’ fees on the basis that the plaintiff’s initial claim included nonassumpsit claims and that, therefore, the attorneys’ fees statute did not apply. Defendant HIRI appeals from the latter ruling. The only issue presented is whether the district court erred in denying attorneys’ fees to HIRI on the basis that Hawaii Rev. Stat. § 607-14 does not apply to this action because plaintiff’s initial complaint included nonassumpsit as well as assumpsit claims. The original statute provided that in all actions of assumpsit the prevailing party is entitled to attorneys’ fees taxed to and paid by the losing party. With Hawaii’s acceptance of modern rules of civil procedure, the original statute became very difficult to apply because under the new rules it was no longer necessary to plead specific legal theories. The modern Federal Rules of Procedure also do not distinguish between different forms of civil action. Rule 2 of the Federal Rules of Civil Procedure explicitly states that there shall only be one form of action known as a civil action. Rule 8 of the Federal Rules of Civil Procedure establishes that it is unnecessary to plead a specific legal theory when filing a complaint in a civil action. Instead, the complaint need only contain a short statement of the facts and a demand for judgment to which the claimant believes he or she is entitled. In recognition of the reality that the modern rules of civil procedure abolish assumpsit as a separate form of civil action, the Hawaiian statute was revised to provide attorneys’ fees in all actions in the nature of assumpsit. What constitutes a case in the nature of assumpsit has been broadly defined by Hawaiian case law. There is no doubt that assumpsit covers all possible contract claims. Historically actions in assumpsit were suits at common law for breach of contract, express or implied. Suits for extra work performed under a contract and for quantum meruit were considered to be actions in assumpsit.- When there is doubt as to whether the action is in assumpsit or in tort, there is a presumption that the suit is in assumpsit. Given the fact that under the modern rules of civil procedure the technicalities of common law pleadings are no longer important, it is not unusual for doubt to arise as to the nature of the suit. The determination of when an action is in the nature of assumpsit should be based on whether the actual factual allegations are such that historically the action would have been brought in assumpsit. See Osorio v. Waterhouse Trust Co., 29 Haw. 376, 388 (1926); Barkhorn v. Adlib Associates, Inc., 225 F.Supp. 474, 475 (D.Haw.1964), 222 F.Supp. 339, aff’d per curiam, 409 F.2d 843 (9th Cir. 1969). When there is doubt as to whether or not the plaintiff’s complaint is in assumpsit or in tort, a plaintiff's prayer for attorneys’ fees has been cited as a significant indication that the action sounded in assumpsit. Braham v. Honolulu Amusement Co., 21 Haw. 583, 584 (1913). The parties agree that five of the plaintiff’s seven counts were in the nature of assumpsit. Two of the remaining counts are arguably in tort. Simply adding claims that are arguably in tort does not automatically, however, turn the action into a suit in tort. At most, the two questionable counts would raise a doubt as to whether the action was in assumpsit or in tort. However, when there is doubt as to the nature of the suit, the presumption is that it sounds in assumpsit and not in tort. See Osorio v. Waterhouse Co., 29 Haw. 376, 385 (1926) The presumption in favor of assumpsit is strengthened when the plaintiff has prayed for attorneys’ fees in his original complaint. Under Hawaii law, a plaintiff who claims statutory attorneys’ fees can be estopped to deny that his action is in the nature of assumpsit. If it were doubtful in the light of these allegations, whether this was an action ex delicto or in assumpsit, the doubt would be resolved against the plaintiff since he himself until the filing of the bill of costs evidently regarded it as being in assumpsit (Whittenton Mfg. Co. v. Memphis Packet, 21 F. 896, 901). In his prayer for judgment he asks for attorney’s commissions, a prayer wholly inappropriate in any action other than assumpsit. Braham v. Honolulu Amusement Co., supra, 21 Haw. at 584. In this case, then, even if the two additional counts that sounded in tort raised a doubt as to whether or not the action was in assumpsit, the fact that the plaintiff prayed for attorneys’ fees in his original complaint means that doubt should be resolved in favor of the defendant. Of course, not every complaint that joins claims sounding in contract with claims sounding in tort need be considered a case “in the nature of assumpsit.’’ If the contract claims are merely decorative, for instance, and not germane to the genuine dispute being litigated, the court might appropriately decline to apply the provisions of Hawaii Rev.Stat. § 607-14. The case before us, however, is clearly not of that character. Here, the trial judge held the statute inapplicable merely because tort claims were included in the complaint. That holding was error. Attorneys’ fees, then, should have been granted. The amount of such fees is left to the discretion of the trial judge. We observe, however, that the judge is limited in the exercise of that discretion by the schedule set out in the statute. In determining a reasonable fee within the statutory limits, the judge is free to consider such factors as the amount and difficulty of legal services reasonably called for and actually provided, in the prosecution or defense of the various counts of the complaint, and the degree of success attributable to the various elements of those services. In evaluating these factors, the judge should of course be guided by the policy inherent in a statute which grants attorneys’ fees for cases “in the nature of assumpsit,” but not for other kinds of cases. REVERSED AND REMANDED. 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_jurisdiction

D

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer". LUCAS v. SWAN. No. 3498. Circuit Court of Appeals, Fourth Circuit. Oct. 3, 1933. John S. Stump, Jr., of Clarksburg, W. Va. (Howard L. Robinson, of Clarksburg, W. Va., on the brief), for appellant. S. T. Spears, of Elkins, W. Va., and Hardin R. Harmer, of Shinnston, W. Va., for appellee. Before PARKER and SOPER, Circuit Judges, and WATKINS, District Judge. PARKER, Circuit Judge. This is an appeal in an action instituted by the receiver of the failed First National Bank of Shinnston, W. Va., to recover from one of the indorsers on a negotiable promissory note held by the bank. The note was a demand note for the sum of $11,000, payable at the bank, and was dated December 30, 1927. It was executed by the Derbrah Silk Company, a corporation of Pennsylvania, was made payable to maker, and was indorsed by the maker and five other persons, among whom was the defendant. It was the fifth renewal of a note executed September 10,1924, and originally given for the sum of $14,000, but subsequently, upon one of the renewals, reduced to $11,000. The notice of motion, which was the pleading of plaintiff, in addition to alleging presentment for payment at the bank, dishonor, and notice to defendant, alleged that the maker was a fictitious or nonexistent person, that the note was accepted hy the bank for the accommodation of the defendant, and that defendant as a result of being a director both of the bank and the silk company must be held to have waived demand, presentment, and notice of dishonor, and to be estopped from setting up lack of these as a defense. The defendant filed “Particulars of Defense” alleging that he was an accommodation indorser of the note sued on, that there had been no presentment or demand for payment, that necessity therefor had not been excused or waived, and that notice of dishonor had not been given defendant, nor had same been waived or excused. The evidence showed that the proceeds of the original note had gone to the silk company and had been used in large part for the payment of the obligations of that company then outstanding; that the note had been renewed from time to time upon the indorsement of the same persons who had indorsed the original instrument; and that the defendant, who was a director of the silk company as well as of the bank, had been present at the meetings of the bank’s directors when the renewal of the note was approved. It appeared also that the silk company was wholly insolvent and for some time before the institution of the action on the note had had no assets whatever. Its president had filed with the department of revenue of Pennsylvania in the year 1926, an affidavit showing that it had ceased to do business in 1923, that its assets had been distributed in payment of debts, and that since that time it had owned no property, and the purpose foi which it had been chartered had been permanently abandoned. The records of the department of revenue show that, on the strength of this affidavit, the silk company was marked “out of existence” on April 27, 1928. The evidence, however, is that this entry is used merely to indicate that the corporation has been dropped from the list of those from which the revenue department collects taxes. It does not result in the dissolution of the corporation under the law; and it may later register anew, upon filing returns and paying a nominal tax for the years during which it has been inactive., Defendant denied that he knew that the silk company was without assets until late in the year 1928, some time after the execution of the note sued on. The receiver testified that, 'in August after he took charge of the bank, he declared the note due and payable, exhibited it to the defendant at the bank, and advised defendant that he was looking to him for payment; that defendant requested time for the handling of the note; and that time was granted him. He further testified that the maker of the note and the other indorsers were insolvent and that he was looking for payment to the defendant alone. Defendant denied any presentation or demand; and testified that he had no notice that he was to be held for the note until he received a letter from the attorney for the receiver, notifying him that the note must be paid. The trial judge instructed the jury that if they believed from the evidence that the plaintiff looked to the defendant for the payment of the note and demanded payment of him, and that defendant knew that plaintiff looked to him and demanded payment, then formal presentment, demand, and notice were dispensed with, and they should find for plaintiff. There was verdict for plaintiff; and from judgment thereon defendant has appealed assigning a number of errors, the one principally relied upon being the instruction to which we have referred. Plaintiff contends that the charge as given was correct, and that the judgment should not be disturbed on the additional grounds: (1) That, the maker being “out of existence,” the indorsers were liable as makers, and that presentment for payment, demand, and notice of dishonor were not necessary to charge them; (2) that these were unnecessary for the further reason that defendant was an accommodated indorser; (3) that demand for payment was made upon defendant and no additional notice or demand was necessary; and (4) that presentment and notice were waived by the conduct of the defendant. We think it clear that the instruction complained of was erroneous. Even though the maker of a note be insolvent, it is necessary that it be presented for payment in accordance with its terms, and that notice of dishonor be given the indorsers in order to1 hold them. Grandison v. Robertson (C. C. A. 2d) 231 F. 785, 797; Nolan v. H. E. Wilcox Motor Co., 137 Tenn. 667, 195 S. W. 581; Haynes Automobile Co. v. Shepherd, 220 Mich. 231, 189 N. W. 841, 25 A. L. R. 930 and note at page 963. The vice of the instruction is that it makes the liability of the indorser depend, not upon the presentment for payment and notice of dishonor, which under the contract of the indorser are conditions of liability (Grandison v. Robertson, supra [C. C. A.] 231 F. 785, at page 797; Case v. McKinnis, 107 Or. 223, 213 P.422, 32 A. L. R. 167, 179), but upon the mental attitude of the plaintiff and knowledge of same on the part of the defendant. It is true that the instruction couples with this the matter of demand; but it is elementary that mere demand upon the indorser is not sufficient to charge him, in the absence of presentment and notice of dishonor, unless the case is one where presentment or notice fire not necessary, or unless these have been waived. Case v. McKinnis, supra; 8 C. J. 525 and cases cited. In most cases where the maker is insolvent, the holder looks to the indorsers for payment and the indorsers know that they are being looked to, but this is no reason why the holder should not comply with the conditions upon which the liability of the indorsers depends. And we see nothing in the position that presentment and notice were dispensed with because the silk company had disposed of its assets and been marked “out of existence” on the records of the revenue department of the state of Pennsylvania. So far as the evidence shows, the corporation had not been dissolved or its charter surrendered. It had the power, therefore, whether it had assets or not, to enter into contracts. It was a real person within contemplation of law, ánd not a fictitious person, or person not having capacity to contract, as was necessary to come within the provisions of section 115, subd. 1, of the Negotiable Instruments Law (Code W. Va. 1981, 46-7-27, subd. (a). It is well settled that a corporation does not cease to exist because it has become insolvent or has lost its property and ceased to carry on the business for which it was chartered. Brock v. Poor, 216 N. Y. 387, 111 N. E. 229; Essex Co. v. Commonwealth, 246 Mass. 242, 141 N. E. 38; Jones Mining Co. v. Cardiff Min. & Mill. Co., 56 Utah, 449, 191 P. 426. Equally without foundation is the position that the defendant was an accommodated indorser, and hence not entitled to notice under section 115, subd. 3, of the Negotiable Instruments Law (Code W. Va. 1931, 46-7-27, subd. (e). An indorser is accommodated when the maker, drawer, or acceptor of a negotiable instrument makes, draws, or accepts same for his benefit, and without consideration. See N. I. L. § 29 (Code W. Va. 1931, 46-2-6). The maker here was the person accommodated and primarily liable; and the indorsers were accommodation indorsers for the maker. Case v. McKinnis, supra, 107 Or. 223, 213 P. 422, 32 A. L. R. at page 181; Murray v. Third Nat. Bank of St. Louis (C. C. A. 6th) 234 F. 481; McDonald v. Luckenbach (C. C. A. 3d) 170 F. 434. The fact that the original note was renewed from time to time and that the liability of the indorsers might have been enforced if renewals had not been granted does not change! their relationship. Brannan Neg. Inst. Law (4th Ed.) p. 717; Nolan v. Brown, 152 La. 333, 93 So. 113; Maynard Trust Co. v. Furbush, 243 Mass. 190, 137 N. E. 270. It was still the debt of the silk company for which the renewal notes were given, and the indorsers were still signing without consideration to themselves in order to lend credit to the principal debtor. The position that the note was “accepted” by the bank for the accommodation of defendant within the meaning of section 115, subd. 3 (Code W. Va. 1931, 46-7-27, subd. (c) Of the Negotiable Instruments Law is clearly unsound. The word “accepted” is used in that section in its technical sense and means, with relation to a bill of exchange, the “signification by the drawee of his assent to the order of the drawer” (N. I. L. § 132 [Code W. Va. 1931, 46-10-1]). It has no reference to loans upon, or discount of, promissory notes. We have carefully considered the eases of Fosdiek v. Government Mineral Springs Hotel Co., 115 Wash. 127,196 P. 652, and Greenwade v. First Nat. Bank of Louisa, 240 Ky. 60, 41 S.W.(2d) 369, upon which the receiver relies. In the Fosdiek Case, we think that the court has misinterpreted the meaning of “accepted” as used in the statute; and we cannot follow its reasoning to the effect that a bank which discounts a note for an insolvent maker is to be held to have “accepted” it for the accommodation of the indorsers. For an illuminating comment on this decision, see Brannan, Negotiable Instruments Law' (4th Ed.) p. 716. The same may be said of the reasoning in the Greenwade Case, with the added observation that in that case the court rested its decision primarily on the ground that the evidence supported the finding as to waiver made by the chancellor in the court below. The case of Dankmer v. Wheeling Printing Co., 103 W. Va. 40, 136 S. E. 690, also relied upon by the receiver, is not remotely in point. The decision there was merely that it was error to exclude evidence offered for the purpose of showing that the note sued on had been executed for the accommodation of the persons appearing thereon as indorsers. It is, of course, well settled that such indorsers are the primary debtors, and that presentment and notice of dishonor are not necessary to charge them. Some confusion in thinking arises because the indorsers here were irregular indorsers. 8 C. J. 74. There was much conflict of authority, prior to the Negotiable Instruments Law, as to the nature of the contract into which such indorsers had entered and what was necessary in order to charge them. See 8 C. J. 74, and cases there cited. The Negotiable Instruments Law has settled this matter in the states where it is applicable, however, by providing that such irregular indorsers are liable as ordinary indorsers in accordance with the rules prescribed in section 64, subdivision 2 of which (Code W. Va. 1931, 46-5-5, subd. (b)), is applicable here. With regard to the demand made upon defendant, we do not think that a mere demand, with nothing else, was sufficient to fix his liability. Since the note was a demand note, demand within a reasonable time was necessary to fix the liability of the indorsers, as well as of the maker, unless, of course, this requirement was in some manner waived; and ordinarily it is for the jury to say whether demand was made within a reasonable time. Murray v. Third Nat. Bank of St: Louis, supra (C. C. A. 6th) 234 F. 481; Davis Nat. Bank v. Kight, 86-W. Ya. 319-, 193 S. E. 482, As the note was payable at the bank, it was sufficient that the demand for payment be* made there. N. I. L. § 73 (Code W. Ya. 1931, 46-6-4); Davis Nat. Bank v. Kight, supra. But the mere presence of the paper in the bank was not sufficient presentment and demand to fix the liability of indorsers, as would be true in the ease of paper payable on a specific date. See notes 11 A. L. R. at page 976, 59 A. L. R. 1291 and Bank of United States v. Smith, 11 Wheat. 173, 175, 6 L. Ed. 443; Bank of United States v. Carnea!, 2 Pet. 543, 549, 7 L. Ed. 513. We think that the rule with respect to demand paper held by the bank at which it is made payable, is that, to fix liability, the bank must take some unequivocal action showing that it elects to exercise the right to declare the paper due and collect it. National Hudson River Bank v. Kinder-hook & H. Ry. Co., 17 App. Div. 232, 45 N. Y. S. 588, affirmed' National Hudson River Bank v. Moffett, 162 N. Y. 623, 57 N. E. 1118. Such action was taken by the receiver, according to his testimony, when, in the bank and in the presence of the defendant, he declared the note due and called on defendant to pay it. This was an unequivocal act, performed at the place where the note was payable, showing that plaintiff demanded payment ; and it at the same time gave notice to defendant that the note had been dishonored and that plaintiff looked to him for payment. As stated, however, the testimony of plaintiff on this point was contradicted; and the instruction of which complaint is made did not present to the jury the question raised by the contradiction, nor the question as to reasonable time. On the question of waiver, there is evidence on the part of plaintiff, contradicted however by the defendant, that upon plaintiff’s demanding payment of him, defendant asked and was given time to arrange payment. If this is true, it was a waiver of presentment and demand upon the maker and of any further notice of dishonor. Dillon v. Bron, 96 Kan. 189, 159 P. 553; Moll v. Roth Co., 77 Or. 593,152 P. 235; K'uhl v. Sehliehtemeier (C. C. A. 8th) 14F.(2d) 593; Washington Horse Exch. Co. v. Bonner, 189 N. C. 29, 193 S. E. 997. But this, as well as any other matter showing waiver upon which plaintiff may rely, is a matter for the jury to pass on under proper instructions from the court. The mere fact that the defendant was a director of the bank would not amount to a waiver of his rights as indorser (Case v. MeKinnis, supra; Maynard Trust Co. v. Fur-bush, supra); but in this connection it should be said that, in passing upon whether demand for payment of the note was made within a -reasonable time, or whether demand in what might otherwise be considered a reasonable time was waived (but not on the question as to whether there was a waiver of any demand) , the jury might properly consider that the defendant was one of the directors of the bank who acquiesced in the renewal of the original loan over a period of more than three years, and that he allowed the bank without protest to hold the note sued on for the period of more than a year during which he remained a director after the last renewal, although he had learned some time before his resignation that the silk company had no assets with which to pay it. Linthicum v. Bag-by, 131 Md. 644, 192 A. 997. Because of the error in the instructions to the jury, we must grant a new trial. It is not necessary, therefore, to discuss the other matters embraced in the assignments of error. We feel that it is well to say, however, as the question may come up again on the retrial of the case, that we do not think that the affidavit filed with the Pennsylvania department of revenue was admissible to prove the financial condition of the company, nor that the insolvency of the company or the indorsers could be proved by the testimony of the receiver based merely upon inquiries which he had made. On the question of solvency or insolvency, general reputation is admissible in a proper ease. Wigmore on Evidence (2d Ed.) vol. 3, § 1623, p. 378. And an expert who has had opportunity to examine the facts may express an opinion on the question, if a proper basis is laid for his testimony. Wig-more on Evidence (2d Ed.) vol. 4, § 19591, and eases cited. But it is not permissible for one, even though he be an expert, to give an opinion on solvency or insolvency based, not upon an examination of facts and records, but upon mere hearsay. Freeman v. State, 108 Miss. 818, 67 So. 460; Fletcher, Cyclopedia Corporations, vol. 8, p. 8614. The position of the defendant is not one which appeals to the conscience of the court; but it must be remembered that we are not passing upon any liability of the defendant arising out of his relationship as a director of the bank, and that the sole question before us is the application to the ease of the Negotiable Instruments Law, which affects commercial transactions throughout the country. In applying such a statute it is of more than ordinary importance to remember that “hard cases are the quicksands of the law,” and not, for the purpose of doing equity in the particular ease, to give the statute an interpretation which will introduce confusion into a law which it is of the utmost importance to have free of ambiguity. For the reasons stated, the judgment will be reversed, and the ease will be remanded for a new trial. Reversed. Question: Did the court determine that it had jurisdiction to hear this case? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

sc_caseorigin

042

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. KAWAKITA v. UNITED STATES. No. 570. Argued April 2-3, 1952. Decided June 2, 1952. Morris Lavine and A. L. Wirin argued the cause for petitioner. With them on the brief was Fred Okrand. Oscar H. Davis argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Mclnerney and Beatrice Rosenberg. Mr. Justice Douglas delivered the opinion of the Court. Petitioner, a national both of the United States and of Japan, was indicted for treason, the overt acts relating to his treatment of American prisoners of war. He was convicted of treason after a jury trial (see 96 F. Supp. 824) and the judgment of conviction was affirmed. 190 F. 2d 506. The case is here on certiorari. 342 U. S. 932. First. The important question that lies at the threshold of the case relates to expatriation. Petitioner was born in this country in 1921 of Japanese parents who were citizens of Japan. He was thus a citizen of the United States by birth (Amendment XIV, § 1) and, by reason of Japanese law, a national of Japan. See Hirabayashi v. United States, 320 U. S. 81, 97. In 1939 shortly before petitioner turned 18 years of age he went to Japan with his father to visit his grandfather. He traveled on a United States passport; and to obtain it he took the customary oath of allegiance. In 1940 he registered with an American consul in Japan as an American citizen. Petitioner remained in Japan, his father returning to this country. In March, 1941, he entered Meiji University and took a commercial course and military training. In April, 1941, he renewed his United States passport, once more taking the oath of allegiance to the United States. During this period he was registered as an alien with the Japanese police. When war was declared, petitioner was still a student at Meiji University. He became of age in 1942 and completed his schooling in 1943, at which time it was impossible for him to return to the United States. In 1943 he registered in the Koseki, a family census register. Petitioner did not join the Japanese Army nor serve as a soldier. Rather, he obtained employment as an interpreter with the Oeyama Nickel Industry Co., Ltd., where he worked until Japan’s surrender. He was hired to interpret communications between the Japanese and the prisoners of war who were assigned to work at the mine and in the factory of this company. The treasonable acts for which he was convicted involved his conduct toward American prisoners of war. In December, 1945, petitioner went to the United States consul at Yokohama and applied for registration as an American citizen. He stated under oath that he was a United States citizen and had not done various acts amounting to expatriation. He was issued a passport and returned to the United States in 1946. Shortly thereafter he was recognized by a former American prisoner of war, whereupon he was arrested, and indicted, and tried for treason. Petitioner defended at his trial on the ground that he had renounced or abandoned his United States citizenship and was expatriated. Congress has provided by § 401 of the Nationality Act of 1940, 54 Stat. 1137, 1168, as amended, 8 U. S. C. § 801, that a national of the United States may lose his nationality in certain prescribed ways. It provides in relevant part, “A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: “(a) Obtaining naturalization in a foreign state . . .; or “(b) Taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state; or “(c) Entering, or serving in, the armed forces of a foreign state unless expressly authorized by the laws of the United States, if he has or acquires the nationality of such foreign state; or “(d) Accepting, or performing the duties of, any office, post, or employment under the government of a foreign state or political subdivision thereof for which only nationals of such state are eligible The court charged that if the jury found that petitioner had lost his American citizenship prior to or during the period specified in the indictment, they must acquit him even if he did commit the overt acts charged in the indictment, since his duty of allegiance would have ceased with the termination of his American citizenship. The court further charged that if the jury should find beyond a reasonable doubt that during the period in question petitioner was an American citizen, he owed the United States the same duty of allegiance as any other citizen. The court also charged that even though the jury found that petitioner was an American citizen during the period in question, they must acquit him if at the time of the overt acts petitioner honestly believed he was no longer a citizen of the United States, for then he could not have committed the overt acts with treasonable intent. The special verdicts of the jury contain, with respect to each overt act as to which petitioner was found guilty, an affirmative answer to an interrogatory that he was at that time “an American citizen owing allegiance to the United States, as charged in the indictment.” Petitioner asks us to hold as a matter of law that he had expatriated himself by his acts and conduct beginning in 1943. He places special emphasis on the entry of his name in the Koseki. Prior to that time he had been registered by the police as an alien. There is evidence that after that time he was considered by Japanese authorities as a Japanese and that he took action which might give rise to the inference that he had elected the Japanese nationality: he took a copy of the Koseki to the police station and had his name removed as an alien; he changed his registration at the University from American to Japanese and his address from California to Japan; he used the Koseki entry to get a job at the Oeyama camp; he went to China on a Japanese passport (see United States v. Husband, 6 F. 2d 957, 958); he accepted labor draft papers from the Japanese government; he faced the east each morning and paid his respects to the Emperor. The difficulty with petitioner’s position is that the implications from the acts, which he admittedly performed, are ambiguous. He had a dual nationality, a status long recognized in the law. Perkins v. Elg, 307 U. S. 325, 344-349. The concept of dual citizenship recognizes that a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both. The mere fact that he asserts the rights of one citizenship does not without more mean that he renounces the other. In this setting petitioner’s registration in the Koseki might reasonably be taken to mean no more than an assertion of some of the rights which his dual citizenship bestowed on him. The deposition of the Attorney General of Japan states that the entry of a person’s name in the Koseki is taken to mean that one has Japanese nationality. But since petitioner already had Japanese nationality, he obviously did not acquire it by the act of registration. The Attorney General of Japan further deposed that all Japanese nationals, whether or not born abroad, are duty bound to Japanese allegiance and that registering in the Koseki is “not necessarily a formal declaration of allegiance but merely a reaffirmation of an allegiance to Japan which already exists.” From this it would appear that the registration may have been nothing more than the disclosure of a fact theretofore not made public. Conceivably it might have greater consequences. In other settings it might be the equivalent of “naturalization” within the meaning of § 401 (a) of the Act or the making of “an affirmation or other formal declaration of allegiance” to Japan within the meaning of §401 (b). Certainly it was relevant to the issue of expatriation. But we cannot say as a matter of law that it was a renunciation of petitioner’s American citizenship. What followed might reasonably be construed to mean no more than recognition of the Japanese citizenship which petitioner had acquired on birth- — nationality that was publicly disclosed for the first time in Japan by his registration in the Koseki. Cf. 3 Hackworth, Digest of International Law (1942), p. 373. The changing of his registration at the police station and at the University, so as to conform those records to the public record of his Japanese nationality, might reasonably mean no more than announcing the fact of his Japanese nationality to the interested authorities. As we have said, dual citizenship presupposes rights of citizenship in each country. It could not exist if the assertion of rights or the assumption of liabilities of one were deemed inconsistent with the maintenance of the other. For example, when one has a dual citizenship, it is not necessarily inconsistent with his citizenship in one nation to use a passport proclaiming his citizenship in the other. See 3 Hackworth, supra, p. 353. Hence the use by petitioner of a Japanese passport on his trip to China, his use of the Koseki entry to obtain work at the Oeyama camp, the bowing to the Emperor, and his acceptance of labor draft papers from the Japanese government might reasonably mean no more than acceptance of some of the incidents of Japanese citizenship made possible by his dual citizenship. Those acts, to be sure, were colored by various other acts and statements of petitioner. He testified for example that he felt no loyalty to the United States from about March, 1943, to late 1945. There was evidence that he boasted that Japan was winning and would win the war, that he taunted American prisoners of war with General MacArthur’s departure from the Philippines, that he expressed his hatred toward things American and toward the prisoners as Americans. That was in 1943 and 1944. This attitude continued into 1945, although in May or June, 1945, shortly before Japan’s surrender, he was saying he did not care “which way the war goes because I am going back to the States anyway.” On December 31, 1945, he applied for registration as an American citizen, and in that connection he made an affidavit in which he stated that he had been “temporarily residing” in Japan since August 10, 1939; that he came to Japan to study Japanese; that he possessed dual nationality from birth but that his name was not entered in the census register until March 8, 1943; and that he had “never been naturalized, taken an oath of allegiance, or voted as a foreign citizen or subject, or in any way held myself out as such.” The United States foreign service officer concluded that petitioner had overcome the presumption of expatriation. He reported, “In 1943 his possession of Japanese nationality was made a matter of record by the entry of his name into his uncle’s Family Census Register. He states that this action was taken under severe pressure by the Japanese police and by his uncle, on whom he was financially dependent after his supply of funds from the U. S. was cut off; this office has reason to believe this statement.” These representations led to the issuance of an American passport on which he returned to the United States in 1946. If petitioner were to be believed in December, 1945, he never once renounced his American citizenship. If what petitioner now says were his thoughts, attitudes, and motives in 1943 and 1944 and in part of 1945, he did intend to renounce his American citizenship. If the latter version were believed by the jury, the signing of the family register, and the changing of his registration at the police station and at the University would assume different significance; those acts might then readily suggest the making of a declaration of allegiance to Japan within the meaning of § 401 (b). If, on the other hand, petitioner were to be believed when in 1945 he stated he had not done acts by which he renounced his American citizenship, then the Koseki incident and the changes in his police and University registration could reasonably be taken as amounting to no more than a public declaration of an established and preexisting fact, viz. his Japanese nationality. We think, in other words, that the question whether petitioner had renounced his American citizenship was on this record peculiarly for the jury to determine. The charge was that the jury must be satisfied beyond a reasonable doubt that during the period specified in the indictment, petitioner was an American citizen. We cannot say there was insufficient evidence for that finding. Petitioner concedes he did not enter the armed services of Japan within the meaning of § 401 (c) of the Act but claims that during his tour of duty at the Oeyama camp he was “serving in” the Japanese armed services within the statutory meaning of those words. In this connection he also argues that his work in the Oeyama camp was the performance of the duties of an “office, post, or employment under the government” of Japan “for which only nationals of such state are eligible” within the meaning of § 401 (d) of the Act. The Oeyama Nickel Industry Co., Ltd., was a private company, organized for profit. It was engaged in producing metals used for war under contracts with the Japanese government. In 1944 it was designated by the Japanese government as a munitions corporation and under Japanese law civilian employees were not allowed to change or quit their employment without the consent of the government. The company’s mine and factory were manned in part by prisoners of war. They lived in a camp controlled by the Japanese army. Though petitioner took orders from the military, he was not a soldier in the armed services; he wore insignia on his uniform distinguishing him as nonmilitary personnel; he had no duties to perform in relation to the prisoners, except those of an interpreter. His employment was as an interpreter for the Oeyama Nickel Industry Co., Ltd., a private company. The regulation of the company by the Japanese government, the freezing of its labor force, the assignment to it of prisoners of war under military-command were incidents of a war economy. But we find no indication that the Oeyama Company was nationalized or its properties seized and operated by the government. The evidence indicates that it was a part of a regimented industry; but it was an organization operating for private profit under private management. We cannot say that petitioner's status as an employee of a private company was changed by that regimentation of the industry. It would require a broad and loose construction of “office, post, or employment under the government of a foreign state" as those words are used in § 401 (d) to hold that petitioner had sacrificed his American citizenship by accepting or performing the duties of interpreter. We are thinking not only of this case but of other cases to which § 401 (d) is applicable. We are reluctant to resolve the ambiguity contained in § 401 (d) so as to provide treacherous ground for the loss of the rights of citizenship by the Nisei. As the Court said in Perkins v. Elg, supra, p. 337, “Rights of citizenship are not to be destroyed by an ambiguity.” It would be harsh indeed to* hold that a Nisei, marooned in Japan when World War II broke out, would be expatriated merely by working for a private company whose business was supervised and whose labor supply was controlled by the Japanese government in time of war. That would give § 401 (d) a broad, pervasive sweep. Section 401 (d) not only makes acceptance of “any office, post, or employment under the government of a foreign state” the basis of expatriation; it also makes “performing the duties” of any such office, post, or employment a ground for expatriation. One who was drafted for such service would be included, as well as one who volunteered. In time of war that would bring most employees of private companies within the danger zone in view of the hold which a war economy places on industry and the supervision and control which it asserts. We therefore incline to a construction of the words “under the government of a foreign state” to mean the relationship that public employees have with their government or with the bureaus or corporations which are government owned and controlled. Support for that narrower meaning is found in the legislative history. Section 402 creates a presumption that a national in Kawakita’s category who remains six months or longer within a foreign state of which he or either of his parents shall have been a national shall be presumed to have expatriated himself under § 401 (c) or (d). Section 402 does not enlarge § 401 (c) or (d); it creates a rebuttable presumption of expatriation; and when it is shown that the citizen did no act which brought him under § 401 (c) or (d), the presumption is overcome. On that showing the person never loses his American nationality. See Dos Reis v. Nicolls, 161 F. 2d 860, 868. In other words, once it was shown that petitioner was not expatriated under § 401 (c) or (d), the force of § 402 was spent. Section 408 provides, “The loss of nationality under this Act shall result solely from the performance by a national of the acts or fulfillment of the conditions specified in this Act.” The District Court therefore charged the jury that the only methods of expatriation are those contained in § 401. Petitioner claims that charge was error. He argues that § 408 is applicable only to the loss of nationality “under this Act” and that there are other methods of losing it. He refers to R. S. § 1999, 8 U. S. C. § 800, which survived the Nationality Act of 1940 and is not part of it, and which proclaims the right of expatriation as “a natural and inherent right of all people.” We do not undertake to resolve the question for the reason that it is not squarely presented. On this issue of expatriation, petitioner tenders no question of fact which was inadmissible under § 401. Petitioner merely says that “by his conduct” he had “expatriated himself from United States citizenship.” But he has failed to show that that issue is narrower than or different from the issue presented on this record under § 401 (b) — the declaration of allegiance to Japan. As we have indicated, the major factual problem on the issue of expatriation revolved around the entry of petitioner’s name in the Koseki. All of the other conduct referred to, including the paying of respects to the Emperor and the expressions of hostility to the United States, were relevant and admissible on that issue. If it could not in the eyes of the jury make the signing of the Koseki and the changes in the registration that followed that event tantamount to renunciation under § 401 (b), it hardly could do so standing alone. Hence, if there was error in the charge, it was harmless. That conclusion is reinforced by another aspect of the case. Petitioner testified that he believed when he signed the Koseki that he lost his American citizenship. He testified that during the period charged in the indictment he believed that he was no longer an American citizen. The District Court charged that if the jury found (1) defendant had committed any overt act charged in the indictment and (2) he was an American citizen, yet they should not convict if they further found that at the time “the defendant honestly believed that he was no longer a citizen of the United States” since in that event he could not have committed the act with treasonable intent. Under this charge the belief of petitioner that he had renounced his American citizenship was sufficient to acquit if the jury believed him. His belief could not have been made more relevant to the issue of guilt if it had been admitted as proof of expatriation separate and apart from the other grounds specified in § 401 of the Act. Hence even if we assume, arguendo, that the court was wrong in charging that § 408 made the grounds specified in § 401 exclusive, the error was harmless. Second. Petitioner contends that a person who has a dual nationality can be guilty of treason only to the country where he resides, not to the other country which claims him as a national. More specifically, he maintains that while petitioner resided in Japan he owed his paramount allegiance to that country and was indeed, in the eyes of our law, an alien enemy. The argument in its broadest reach is that treason against the United States cannot be committed abroad or in enemy territory, at least by an American with a dual nationality residing in the other country which claims him as a national. The definition of treason, however, contained in the Constitution contains no territorial limitation. “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. . . .” Art. Ill, § 3. A substitute proposal containing some territorial limitations was rejected by the Constitutional Convention. See 2 Farrand, The Records of the Federal Convention, pp. 347-348. The Act of April 30, 1790, 1 Stat. 112, which was passed by the first Congress defining the crime of treason likewise contained no territorial limitation; and that legislation is contained in substantially the same form in the present statute. 18 U. S. C. (Supp. IV) § 2381. We must therefore reject the suggestion that an American citizen living beyond the territorial limits of the United States may not commit treason against them. See Chandler v. United States, 171 F. 2d 921, 929-930; Burgman v. United States, 88 U. S. App. D. C. 184, 185, 188 F. 2d 637, 640. One who has a dual nationality will be subject to claims from both nations, claims which at times may be competing or conflicting. The nature of those claims has 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. 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